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Richardson v. Dist. of Columbia

March 31, 2008

WANDA RICHARDSON, MOTHER AND NEXT FRIEND OF W.R., A MINOR, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Wanda Richardson, on behalf of her minor son, W.R., brings this action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et. seq., against the District of Columbia and Clifford B. Janey, in his official capacity as superintendent of the District of Columbia Public Schools ("DCPS") (collectively, "Defendants").*fn1 The IDEA provides that all children with disabilities shall receive a free and appropriate public education ("FAPE"), and creates procedural safeguards to ensure that disabled children receive individualized education programs ("IEP") to fulfill the Act's goals. See 20 U.S.C. §§ 1412(a)(1)(A), 1414(d)(1)(A). A parent who objects to the identification, evaluation, or educational placement of his or her child may seek a due process hearing before a Hearing Officer, and if he or she remains dissatisfied, may file a lawsuit. Id. § 1415(f), (i). This case involves a challenge to a Hearing Officer's decision finding that Defendants complied with the IDEA and did not deny W.R. a FAPE. Defendants have moved for summary judgment arguing that the Hearing Officer's decision is correct and entitled to deference. After a thorough review of the Parties' submissions, the administrative record, applicable case law and statutory authority, the Court shall grant Defendants' [8] Motion for Summary Judgment, for the reasons that follow.

I. BACKGROUND

The facts underlying this case are undisputed.*fn2 W.R. is an eleven-year old resident of the District of Columbia, who at the time of the Hearing Officer's decision was enrolled at Assumption Catholic School ("Assumption"), a private school in the District of Columbia without special education services. Defs.' Stmt. ¶ 1. Prior to attending third and fourth grade at Assumption, W.R. attended kindergarten through part of second grade in Maryland public schools. Id. ¶¶ 2-3. During W.R.'s second grade year in Maryland, a multidisciplinary team ("MDT") met and developed an IEP for him based on its determination that he suffered from an "Emotional Disturbance." Id. ¶ 4.

After leaving the Maryland public school system, but prior to enrolling at Assumption, W.R. briefly attended Ann Beers Elementary School, part of the DCPS. Id. ¶ 4. In August 2004, Mr. Anthony White, a school psychologist, evaluated W.R. and issued a Psycho-Educational Evaluation Report. Id. ¶ 5. He found that W.R.'s academic skills were within the low average range when compared to others at his age level. A.R. 4. He also found that W.R. had limited social skills that appeared to impact his educational development, along with mood swings that endangered both him and his classmates. A.R. 66 (Physcho-Educational Evaluation Report).

Mr. White concluded, however, that "[b]ased on the current test data, [W.R.] does not meet the criteria for special education services as a learning disabled student. At this time his academic skills are commensurate with his cognitive abilities." A.R. 69. Mr. White recommended that "a clinical psychological evaluation [] be conducted to determine if his social-emotional functioning is having a negative impact on his achievement." Id.

In December 2005, after W.R. was enrolled at Assumption, Ms. Alice Wilson, a school social worker at Assumption, referred W.R. to DCPS to test for special education eligibility based on observed behavioral problems, poor academic performance, and the fact that he was receiving private therapy but not specialized education services. Defs.' Stmt. ¶ 8. The Central Assessment Referral and Evaluation Center ("CARE") of DCPS, which handles such referrals, convened a meeting to develop an evaluation plan for W.R. Id. ¶ 10. The MDT identified multiple areas of concern as they related to W.R., including his struggles with all areas of his curriculum except math, a low self-esteem and attention span, mood swings that were often accompanied by temper tantrums, and various other behavioral problems. A.R. 54-57 (MDT Meeting Notes). The MDT recommended further evaluation of W.R. in six enumerated areas (e.g., educational observation). A.R. 52 (MDT Meeting Notes).

On January 9, 2006, Ms. Yvonne Rojas, a school psychologist, observed W.R. at Assumption. Defs.' Stmt. ¶ 11. Although she acknowledged that W.R. had been diagnosed with Attention Deficit Hyperactive Disorder and Oppositional Defiant Disorder and had reportedly been having behavioral problems, Ms. Rojas indicated that W.R.'s behavior "from her observation 'seemed different from the behaviors described by his parent and teacher.'" Id. ¶ 14; A.R. 5 (Hearing Officer Decision).*fn3 Ms. Rojas did not recommend W.R. for special education as learning disabled because "[h]is academic skills are commensurate with his cognitive abilities." Defs.' Stmt. ¶ 16. She did recommend a follow-up to W.R.'s current clinical treatment to determine if further assessment was needed. Id.

On February 9, 2006, W.R.'s case was referred to Ms. Gloria Everett, a licensed clinical social worker with DCPS. Id. ¶ 18. Ms. Everett spoke with Plaintiff and drafted a report wherein she noted that W.R. began receiving psychological services at the age of three, and qualified for Social Security Income Benefits as an emotionally disturbed child at age five. Id. ¶ 19. She also noted that he was previously diagnosed with multiple mental health problems, his family had a history of mental illness, and that he was taking various medications to moderate his behavior. A.R. 56 (Social Work Evaluation).

On May 10, 2006, DCPS convened an MDT meeting to determine whether W.R. was eligible to receive special education services. Id. ¶ 21. W.R.'s report cards reflected poor academic performance and behavior that was "out of control." A.R. 6. The MDT noted that he received an IEP when attending second grade in the Maryland public school system, where he was also characterized as emotionally disturbed. Id. Nevertheless, most of the information available to the MDT concerned evaluations of W.R. that were performed in 2004 and 2005 and were not specifically focused on whether he had an emotional disturbance. The observations made by Ms. Rojas in 2006 did not reveal the same behavioral problems. Consistent with the recommendations of both Ms. Rojas and Mr. White that DCPS evaluate W.R.'s psychological information, and based on the report by Ms. Everett wherein she noted that W.R. had been receiving psychiatric treatment services since the age of three from an outside provider, the MDT asked Plaintiff to sign a consent form to allow DCPS access W.R.'s current or past psychiatric records from his outside provider:

The parent [] requested that DCPS conduct a [new] psychiatric evaluation of the student [W.R.]; however, the DCPS team concluded that since the student was already seeing a psychiatrist, it would be better to first get information from that person, rather than conduct a new evaluation. Therefore, DCPS requested that the parent provide the information from the student's treating medical provider and the parent told the team that the information would be provided. Ms. Everett informed the parent that she would help with getting the information, but the parent had to sign a release form that would authorize DCPS to obtain the information. The information was needed because it would help support the diagnosis of the student.

Def.'s Stmt. ¶ 22; A.R. 5. Without the current treatment information,*fn4 the requisite connection between W.R.'s previous evaluations and an emotional disturbance was missing. See A.R. 173, Tr. 28:6-10 (Testimony of Gloria Everett) (explaining that DCPS needed "to have documented assessments, [and a] diagnosis, to determine if the child is ED [emotionally disturbed]. The ED has to impact him educationally. It has to have a significant impact on him as occasionally, that is . . . . he's not available for learning . . . That would help us to determine if the ED classification was appropriate"). Even W.R.'s education advocate recognized the importance of current psychiatric information, A.R. 127-28 (Notes of A. Pressley) ("the education advocate is requesting a [psychiatric] evaluation and report"), although she inexplicably wanted DCPS to perform a new and independent evaluation that seemingly would not rely on W.R.'s past and current psychiatric treatment records. Without those records, however, the MDT determined that W.R. was not eligible for special education services at that time. However, the MDT "agreed to reconvene once DCPS received information from [W.R.'s] current medical providers."Defs.' Stmt. ¶ 25. Ms. Everett thereafter twice mailed a blank medical release form to Plaintiff for her signature, but she did not receive a signed copy in return.*fn5 Defs.' Stmt. ¶ 24.

Plaintiff filed a due process complaint on June 5, 2006, challenging DCPS' determination that W.R. was not eligible for special education services. Defs.' Stmt. ¶ 26. A due process hearing convened on August 29, 2006. Defs.' Stmt. ¶ 27. Plaintiff's position at the Hearing--and in the present action--is that W.R. should have been found eligible for special services based on the information that was present in the record, or that DCPS should have performed a new, independent psychiatric examination of W.R. apparently without access to W.R.'s past and current psychiatric records.

As was the case at the MDT, the record before the Hearing Officer contained evaluations from 2004 and 2005 suggesting that W.R. was underachieving academically and exhibiting behavioral issues. A.R. 3-7. For example, Ms. Alice Wilson, a School Social Worker at Assumption, testified that W.R. had behavioral problems at Assumption in 2005 and that she had made the referral to DCPS to have W.R. reviewed for special education assistance. A.R. 5. In addition, Mr. David Clark, an Admission Director for the High Road School, testified that he would admit W.R. at High Road with a specialized education program based on his review of the 2004 and 2005 evaluations in the record. A.R. 6. On the other hand, Ms. Rojas testified that during her more recent observations of W.R. at Assumption in 2006, she did not believe W.R. was "out of control," and did not observe the behaviors described by Ms. Wilson. A.R. 8. She found that he was not eligible to be classified as "learning disabled." A.R. 4.

Because Plaintiff did not allow access to the psychiatric records from W.R.'s outside provider, none of these evaluators considered W.R.'s current treatment records. This information was deemed critical because it was the most current information concerning W.R., the only psychiatric information that was already available for consideration, and it was generated by someone familiar with him since he was three years old. A.R. 4; A.R. 173, Tr. 20:10-16 (Testimony of Gloria Everett) ("This was a psychiatrist that has been seeing the child for several years . . . Who the child was familiar with. And therefore that seemed the appropriate person to request the psychiatric from. If he's in on-going treatment, I didn't see a need for us to try to ask for a new person, but to get the information from the person the child was already in treatment with"). Ms. Everett, whose testimony was deemed credible by the Hearing Officer, A.R. 8, explained at the hearing that "[W.R. is] seeing two professionals, and none of that information is at the table, we're not in a position to call this child 'emotionally disturbed.' There was no one who was treating him at the school and then he had a psychological and psychiatrist outside the school. None of that information was made available to us at the table or prior to coming to the table." Id., Tr. 25:6-10. See also Tr. ...


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