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Spencer v. Burrillville School Committee

United States District Court, D. Rhode Island

August 27, 2018

NICOLE SPENCER, et. al.,
v.
BURRILLVILLE SCHOOL COMMITTEE

          REPORT AND RECOMMENDATION

          Lincoln D. Almond, United States Magistrate Judge

         Background

         This is an action for review of the decision (“Decision”) of a due process hearing officer (“Hearing Officer”) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA” or the “Act”). Section 1415(i)(2)(A) of the Act provides that any party aggrieved by a decision made at the conclusion of an IDEA administrative hearing may bring a civil action in this Court seeking review of the decision.

         Before this Court are the Cross-Motions for Summary Judgment (ECF Doc. Nos. 8 and 15) filed on December 1, 2017 and February 27, 2018. The parties are the Burrillville School Committee and School Department (“Burrillville”) and Nicole Spencer and her parents Albert and Holly Spencer (“Plaintiffs” or “the Spencers”). This matter was referred to me for preliminary review, findings and recommended disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72. After reviewing the Administrative Record, the parties' Memoranda and considering relevant legal research, I recommend that the Spencer's Motion for Summary Judgment be DENIED and Burrillville's Motion for Summary Judgment be GRANTED.

         Statement of Facts

         Nicole Spencer is a bright, college-bound student who was diagnosed at age 2 with cerebral palsy. (ECF Doc. No. 8-1 at p. 1, ECF Doc. No. 18-1 at p. 4). Nicole began receiving early intervention services at approximately three years of age, and upon moving to Burrillville, she received services through an Individualized Education Plan (“IEP”) beginning at age 5. (ECF Doc. No. 18-1 at p. 4). Nicole was homeschooled by her mother beginning during her fifth-grade year, returning in her eighth-grade year to Burrillville schools. Id.

         After she returned to Burrillville schools, Nicole was evaluated in early 2013 by Dr. Dana Osowiecki, a Clinical Neuropsychologist, and was subsequently diagnosed with Autism Spectrum Disability, Pervasive Development Disorder. Id. The parties agreed on an IEP following Dr. Osowiecki's diagnosis. (ECF Doc. No. 8-1 at p. 2).

         In eighth grade, Nicole's grades in math declined throughout the school year, which culminated in her parents receiving a notice during the third quarter that she was in danger of failing. (ECF Doc. No. 18-1 at p. 4). Nicole's parents requested additional support in math, and Burrillville agreed to provide a math tutor, Barbara Menard, who subsequently tutored her from May 2014 through June 2015. Id. Ms. Menard was not a special educator, and was provided as a supplemental aid by Burrillville, but her tutoring was not mandated by - or memorialized in - Nicole's IEP. (ECF Doc. No. 17 at p. 3; ECF Doc. No. 8-3 at p. 5).

         In ninth grade, Nicole took Algebra I with numeracy support and her IEP called for a math teacher and a special educator to be present in the math class. Nevertheless, no special educator was assigned to the class. (ECF Doc. No. 18-1 at p. 5; ECF Doc. No. 8-3 at pp. 5-6). Nicole attended a program called BELLA (Burrillville Extended Learning Laboratory Academy) available to all students, throughout ninth grade and received assistance in math. She passed Algebra I and was on track to take Geometry in tenth grade. (ECF Doc. No. 18-1 at p. 5).

         In the spring of her ninth-grade year, several events occurred which brought about a focus on Nicole's performance and progress in math. First, Burrillville sought to discontinue the tutoring Nicole was receiving, and second, Nicole's parents became aware that her math classroom did not have a special educator present. (ECF Doc. No. 8-3 at p. 6). Ultimately, Nicole's parents requested that a psychoeducational assessment of Nicole be conducted by Burrillville. Dr. Osowiecki conducted the assessment in the summer of 2015 and noted that “[e]xecutive functioning challenges can impact day-to-day performance with math activities.” (ECF Doc. No. 18-1 at pp. 4-5). Dr. Osowiecki found that Nicole made “educational progress in math between 2013 and 2015” and that Nicole did not have a learning disability in math. (ECF Doc. No. 17 at p. 6). She stated that Nicole's “basic math knowledge was average relative to age norms on the Calculation subtest” of the Woodcock-Johnson Achievement test and that “[t]he only math subtest that showed a weakness was her math fluency subtest, a speed-based test, which was below average.” (ECF Doc. No. 17 at pp. 6-7). Dr. Osowiecki identified that Nicole made progress in math despite the fact that it was a “non-preferred activity for Nicole.” Id. at p. 7. Dr. Osowiecki determined that rather than being learning disabled in math, Nicole had a processing disorder that “impacted all activities that required speed.” Id. at p. 8. Dr. Osowiecki testified at the Hearing and submitted a thorough report describing the assessment.

         At the IEP meeting in August 2015, Dr. Osowiecki's recommendations were reviewed, along with Nicole's scores and grades, and the District determined that the math goal that existed in the May 2015 IEP should be eliminated. Id. The IEP team discussed Nicole's processing speed deficit in all academic areas and made several recommendations that were specific to math. (ECF Doc. No. 17 at p. 10). The IEP provided to Plaintiffs on September 16, 2015 did not include a math goal or tutoring or any individualized instruction. (ECF Doc. No. 8-3 at p. 13).

         In September 2015, Plaintiffs requested that Burrillville pay for a neuropsychological evaluation by Dr. Allison Evans. Ultimately, Dr. Evans conducted her evaluation including a single classroom visit, and her report was shared with Burrillville. (ECF Doc. No. 18-1 at pp. 5-6). Dr. Evans testified as an expert in clinical neuropsychology and, as noted in the Decision, she “concur[red] with all of the recommendations provided” by Dr. Osowiecki. Id. at p. 15. The Hearing Officer found, after listening to the testimony, that Dr. Evans' “additional testing…did not add new information to Dr. Osowiecki's.” Id. at pp. 18-19. The parties litigated the payment issue, and the Hearing Officer found that Plaintiffs were not entitled to reimbursement for the evaluation conducted by Dr. Evans. Id.

         Plaintiffs requested an impartial due process hearing on February 1, 2016. Eight hearing days were held between February and May 2016. The Hearing Officer issued his decision on August 18, 2017 finding that Nicole's IEP afforded her a Free Appropriate Public Education (“FAPE”), despite not including a math goal, math objectives or specialized instruction in math. The Hearing Officer also held that Nicole is not entitled to any ESY services or math tutoring and that such was appropriately excluded from her IEP, that she is not entitled to compensatory services and that her parents are not entitled to reimbursement for the Evaluation conducted by Dr. Evans. The Spencers have appealed the Hearing Officer's decision as to FAPE, as well as compensatory services. Plaintiffs do not appeal the Decision as to the reimbursement of Dr. Evans. For the reasons discussed below, the Court concludes that the Hearing Officer's determination is legally correct, supported by the record and should be AFFIRMED.

         Standard ...


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