United States District Court, D. Rhode Island
NICOLE SPENCER, et. al.,
BURRILLVILLE SCHOOL COMMITTEE
REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
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.
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.
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
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).
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).
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).
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.
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).
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.
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.