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N.S. v. Burriville School Committee

United States District Court, D. Rhode Island

November 13, 2018

N.S., et al., Plaintiffs,


          WILLIAM E. SMITH, Chief Judge.

         Before the Court is Magistrate Lincoln D. Almond's Report and Recommendation (“R. & R.”) (ECF No. 40), which recommends that Plaintiffs' Motion for Summary Judgment (“Pl.'s MSJ”) (ECF No. 8) be denied and that Defendants' Cross Motion for Summary Judgment (“Defs.' MSJ”) (ECF No. 15) be granted. Plaintiffs (“N.S.” or “N.S.'s parents”) objected to the R. & R. (ECF No. 42.) Defendants responded (ECF No. 44), and Plaintiffs replied (ECF No. 46.) After careful review of the R. & R. and the relevant papers, the Court accepts the R. & R. over Plaintiffs' objections.


         N.S. is a bright, hardworking graduate[1] of Burriville High School who has been diagnosed with cerebral palsy and autism. (See Pl.'s Mem. in Supp. of MSJ 2, ECF No. 8-1; Pl.'s Obj. to R. & R. 5, ECF No. 42.) N.S.'s autism impairs her social skills and makes it difficult for her to switch between tasks, while her cerebral palsy impairs her motor skills and causes her to have an extremely low mental processing speed. (See Tr. VI 24:9-12, 61:7-12, 23.) Both of her diagnoses constitute disabilities which adversely affect her ability to learn, as contemplated in the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., (“IDEA”). (Pl.'s Mem. in Supp. of MSJ 2.) Pursuant to the IDEA, every year since she started preschool, N.S. has received an Individual Education Plan (“IEP”) identifying certain special education services and accommodations that she must receive during the school year to help her manage her disabilities in the classroom. (Id. at 1-2.)

         In ninth grade, N.S.'s IEP included a math goal and the school district paid for one-on-one tutoring in math; however, the parties agree that the tutoring was not a special education service, it was not provided by a special educator, and it was not included in N.S.'s IEP.[2] (See Hearing Officer's Decision 4-5 ¶¶ 11, 13, ECF No. 18-1 (“Decision”); Defs.' Undisputed Facts ¶ 4, ECF No. 17.)

         In July of 2015, the parties agreed that Dr. Dana M. Osowiecki, PhD would conduct a psychoeducational evaluation of N.S. (See Admin. R. Pet'r's Ex. 2 “Dr. Osowiecki's Report.”) Dr. Osowiecki noted that N.S.'s “basic math knowledge was average relative to age norms” and that “[t]he only math subtest that showed a weakness was her math fluency subtest, a speed-based test, which was below average.” (Defs.' Undisputed Facts ¶ 16; R. & R. 3; see Tr. VI 30:10-31:16.) Dr. Osowiecki did not diagnose N.S. with a learning disability in math or indicate that N.S. needed specially designed instruction in order to succeed and make progress in math; instead, she opined that N.S. had a processing disorder that “impacted all activities that required speed.” (R. & R. 3 (quoting Defs.' Undisputed Facts ¶ 18).) Dr. Osowiecki recommended that N.S. receive various accommodations in all of her classes to help her cope with her disabilities.[3] (See Dr. Osowiecki's Report at 16.)

         Based on Dr. Osowiecki's report, as well as the fact that N.S. had met her ninth-grade math goals and passed Algebra I, N.S.'s IEP team concluded that N.S. no longer required a math goal or special education services in math. (See Decision 5 ¶ 19; Tr. VII 179:6-24; see also Admin. R. Pet'r's Ex. 26 (“Tenth-Grade IEP”).) Having eliminated her math goal, the tenth-grade IEP identified only three goals: “Self-Determination/Self-Advocacy, ” “Communication, ” and “Study Skills.” (See Tenth-Grade IEP 7.) To help N.S. achieve those goals, her tenth-grade IEP provided her with the following special education and related services: “Study skills period to provide small group instruction, ” “Adaptive Physical Education, ” and “Speech and Language Pathology Services.” (Id. at 16.) The IEP also outlined twenty-nine accommodations that would be provided to help N.S. manage her disabilities at school, including: “direct adult support when using the stairs, ” “visuals to accompany instructions/directions, ” “[a]llow N.S. to type out lengthy writing assignments, ” “[a]dditional time for taking tests/quizzes and class work (up to 50% more), ” and “[c]lass notes provided by using a copy of peer student notes or teacher notes.” (Id. at 17-18.) The IEP also provided the following math-specific accommodations:

[T]alk through calculation problems with [N.S.] use guiding questions to prompt her through errors; utilize models to complete math problems; avoid rote memorization, instead focus on how problems are thought through; use of a calculator as needed; encourage [N.S.] to highlight or color code key information.

(Id. at 18.)

         N.S.'s parents disagreed with Dr. Osowiecki's assessment and with the school district's decision to eliminate math goals from the tenth-grade IEP and so they retained Dr. Allison Schetteni Evans, PhD to provide a second opinion. (Decision 5 ¶ 20.) After conducting a neuropsychological evaluation of N.S. in October of 2015, Dr. Evans concluded that her academic difficulties were not the result of a specific learning disability, but were attributable either to her slow processing speed, caused by her cerebral palsy, or to her limited social skills, caused by her autism. (See Admin. R. Pet'r's Ex. 3 (“Dr. Evans' Report”); see also, Tr. I 85:21-23, 89:11-16, 93:17-19, 95:13-18; Tr. VI 96:3-18.) Dr. Evans discussed N.S.'s educational needs mostly in terms of accommodations, rather than special education, but nonetheless opined that the pervasiveness of N.S.'s disabilities required her to have “special education support in all of her classes.” (Tr. V 42:16-17; 59:9-10; see generally Dr. Evans' Report.)

         The school district made no changes to N.S.'s tenth-grade IEP in response to Dr. Evans' report, despite that N.S.'s parents voiced their concern that the pace of instruction was too fast and that N.S. needed extra instruction outside the classroom to be successful. (Decision 6 ¶ 23.) As a result, Plaintiffs sought a due process hearing to challenge the adequacy of the IEP.[4] That hearing occurred over eight days between February 25 and May 23, 2016. (See Decision 3.) After considering all of the evidence and submissions of the parties, the hearing officer issued a written decision concluding that N.S.'s tenth-grade IEP “which [did] not include [a] math goal, math objectives, or specialized instruction in math, [did] afford her access to a Free Appropriate Public Education” and that N.S. “is not entitled to compensatory services.” (Decision 19.)

         Dissatisfied with this outcome, N.S.'s parents filed a Complaint in this Court seeking review of the hearing officer's decision based on the allegation that it was “contrary to the preponderance of the evidence and to applicable federal and state statutes and precedents.” (See Compl. 11, ECF No. 1.) Shortly thereafter, the parties cross-moved for summary judgment. The case was referred to Magistrate Judge Almond, who recommended that the Court affirm the decision of the hearing officer.


         “The IDEA was enacted to provide ‘free appropriate public education' to children with disabilities.” Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 73 (1st Cir. 2016) (citing 20 U.S.C. §§ 1400(d)(1)(A)). Substantively, the free appropriate public education (“FAPE”) contemplated by the IDEA requires schools to provide, at public expense, “special education and related services, ” which are “sufficient to confer some educational benefit upon the handicapped ...

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