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Horne v. Potomac Preparatory P.C.S.

United States District Court, District of Columbia

July 20, 2016

DEIDRE HORNE, On behalf of minor Child R.P., Plaintiff,
v.
POTOMAC PREPARATORY P.C.S, Defendant.

          MEMORANDUM OPINON

          Emmet G. Sullivan United States District Judge

         Minor child R.P., a student at Potomac Preparatory Public Charter School ("Potomac") from 2013 to 2015, was six years old in March 2014 when he attempted to commit suicide by jumping out of a school window because "he wanted to die." Compl., ECF No. 1 ¶ 16. R.P.'s suicide attempt and more than fifteen other disciplinary incidents took place after Potomac's November 2013 evaluation of R.P. Pl's Mem. Supp. Mot. Summ. J. ("Pl's Mem. Supp.") ECF No. 10 at 2. In January 2014, Potomac concluded that R.P. was not eligible to receive special education services under the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400. See Compl. ¶ 13; Pl's Mem. Supp. at 28. R.P.'s mother, Ms. Deidre Home ("Ms. Home"), made several requests for a new evaluation and confirmed that she would not withdraw her request for an independent evaluation. Administrative Record ("AR"), ECF No. 9 at 506.[1] Nevertheless, Potomac did not initiate a hearing or agree to pay for an independent evaluation until August 2015 when, in response to Ms. Home's due process complaint, Potomac filed a counterclaim seeking a ruling that its November 2013 evaluation was appropriate. Def.'s Resp. and Counterclaim, ECF No. 9, Ex. 1 at 19.

         On October 26, 2014, a Hearing Officer ruled in favor of Potomac, finding that the school did not unnecessarily delay its response to Ms. Home's request for a new evaluation and that Potomac's November 2013 evaluation was appropriate. Hearing Officer Determination ("HOD"), ECF No. 9, Ex. 6 at 94-98. In January 2015, Ms. Home hired Dr. Natasha Nelson ("Dr. Nelson") to complete an independent evaluation of R.P. Pl.'s Mem. Supp. Ex. 10-2. Dr. Nelson concluded that R.P. "meets criteria to receive special education services under the category of Emotional Disturbance due to his diagnosis of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct" and that R.P. should "receive an [Individualized Education Plan]." Pl.'s Mem. Supp., Ex. 2 at 12. In February 2015, Potomac officials refused to consider Dr. Nelson's evaluation. Id. , Ex. 3 at 10-3 at 2 . In March 2015, Potomac considered an amended report from Dr. Nelson, but concluded that although R.P. continued to demonstrate behavioral problems, he did not qualify for services under the IDEA because "his behaviors do not impact his ability to make educational progress or access the general education." Def.'s March 2015 Eligibility Mtg. Notes, ECF No. 10, Ex. 5 at 3.

         Pending before the Court are the parties' Cross Motions for Summary Judgment, which present two critical questions: (1) whether the Hearing Officer erred by finding that Potomac's response to Ms. Home did not constitute unnecessary delay; and (2) whether the Hearing Officer erred by finding that Potomac's November 2013 evaluation was appropriate despite R.P.'s March 2014 suicide attempt and other disciplinary infractions between November 2 013 and March 2 014. See generally Pl.'s Mem. Supp.; Def.'s Mem. Supp. Summ. J., ECF No. 13. For the reasons discussed below, and upon consideration of the parties' briefing and oral arguments, Ms. Home's Motion for Summary Judgment is GRANTED in part and DENIED in part without prejudice. Potomac's Motion for Summary Judgment is DENIED and the Hearing Officer's decision is REVERSED. The Court finds that the record before it supports the conclusion that R.P. qualifies for services under the IDEA as a student suffering from a severe emotional disturbance and invites supplemental briefing on the issue of compensatory damages.

         I. Background

         A. Potomac's November 2013 Evaluation

         R.P. began attending Potomac in the fall of 2013. Pl.'s Mem. Supp. at 2. Ms. Home requested that R.P. be evaluated for special education services before the school year started based on a noticeable change in his attitude as a result of bullying he experienced at his previous school. Id. In October 2013, Potomac agreed to complete a psychological and functional behavioral assessment. Id. While these assessments were under advisement, R.P. was moved to a different classroom due to repeated disciplinary incidents. Id.

         Potomac's school psychologist, Dr. Sharron Williams ("Dr. Williams"), completed cognitive, educational, visual-motor, and social-emotional tests, in addition to speaking with Ms. Home and observing R.P. in the classroom. Williams' Eval., AR 261. When compared to his peers, R.P.'s cognitive abilities were assessed as average. Id. Dr. Williams concluded that R.P. was experiencing "transient emotional distress" related to "family transitions and traumatic events." Id. at 272. Although Dr. Williams concluded that these difficulties did not appear to interfere with his ability to access the general curriculum, she noted:

Given that childhood is a period of cognitive, social, and emotional growth, [R.P.'s] behaviors should be monitored. If his behaviors increase in frequency and severity, a re-evaluation of his behavior and social-emotional functioning might be warranted.

Id. Although R.P. was not evaluated for any emotional disturbance disorders, Dr. Williams concluded that he did not qualify as having a learning disability or other health impairment under the IDEA. Id. at 273.

         Multi-Disciplinary Team ("MDT") meetings were held in December 2013 and January 2014 to discuss R.P.'s IDEA eligibility. HOD at 6, citing Ex. R-13, AR at 310-311. The MDT concluded that R.P. was not eligible for service under the IDEA, but recommended R.P. have a 504 plan and a behavior intervention plan, both of which were developed in March 2014. Pl.'s Mem. Supp. at 2.[2]

         B. R.P.'s persistent behavioral problems

         Even after R.P's behavior plans were in place, he continued to demonstrate significant behavioral problems. In March 2014, R.P. attempted suicide by jumping out of a window at the school. Potomac Incident Report, AR at 201. In addition, R.P. was suspended six times and expelled four times between March 2014 and May 2014 for disciplinary incidents that typically involved R.P.'s physical assault of teachers and other students. Pl.'s Mem. Supp. at 2-4.

         After R.P. attempted suicide, Potomac advised Ms. Home to consult with a physician about R.P.'s suicidal ideation and required her to submit a letter to the school confirming that R.P. did not pose an immediate danger to himself. Potomac Notification Emerg. Conf., AR at 119. R.P. was evaluated by CHAMPS of Catholic Charities, a children and adolescent mobile psychiatric service. CHAMPS Evaluation, AR 120-25. CHAMPS assessed R.P. as suffering from adjustment disorder with mixed emotional disturbance. May 16, 2014, MDT Meeting Notes, AR at 129.

         C. Ms. Home's repeated requests for a new independent educational evaluation

         On March 31, 2014, Ms. Home sent a letter to Potomac officials requesting an individualized education program ("IEP") . AR at 126. Ms. Home noted that R.P.'s grades were going down and he was acting more aggressively. Id. She also noted that R.P.'s 504 and other behavior plans did not seem to be working in light of R.P.'s numerous suspensions. Id.[3] On May 7, 2104, Ms. Home communicated with a Potomac official by email and specifically requested that the school pay for an Independent Education Evaluation ("IEE"). AR at 348. Potomac acknowledged Ms. Home's IEE request and noted that it would be considered at the MDT meeting scheduled for May 16, 2014. Id. at 347.

         A meeting was held on May 16, 2014, to discuss Ms. Home's request. AR at 127. After that meeting, Potomac agreed via email to pay for an independent functional behavior assessment, but declined to fund an independent IEE. Id. at 140, 357, 538-39. Potomac explained that it would not fund an independent psychological evaluation because Ms. Home

[d]id not actually express disagreement with the comprehensive psychological evaluation completed by [Potomac]. Rather, she stated that she would like a new psychological evaluation in light of the fact that [R.P.] received a mental health diagnosis by an outside provider after the comprehensive psychological evaluation was completed. That is not a basis for requesting an independent educational evaluation under [the] IDEA.

Id. 140. Potomac requested that Ms. Home withdraw her request for an IEE. Id. On May 20, 2014, Ms. Home's attorney sent an email to Potomac officials indicating that Ms. Home would not withdraw her request for an IEE at public expense:

As indicated in my last email Ms. Home does not agree with Dr. Williams' report and her conclusions, including but not limited to the report's conclusion that [R.P.'s] difficulties to not appear to adversely impact his ability to access the general curriculum. Furthermore, Dr. Williams' report seems to indicate that [R.P.J's emotional issues can mostly be attributed to familial transitions and traumatic events. As Ms. Home indicated at the last meeting, being that [R.P.] is the only one of her children exhibiting these types of behaviors, she does not agree with Dr. Williams' conclusions on this matter either. Ms. Home continues to believe that [R.P.] qualifies under the IDEA as a student with an emotional disturbance who requires specialized instruction and related services in order to be able to access the general education curriculum.

Id. at 506. On May 23, 2014, Potomac's attorney indicated she was in the process of discussing the email with school officials. Id. at 508. On May 30, 2014, Potomac indicated it was "still undecided how to proceed with the request for an independent evaluation." Id. at 353. The school invited counsel and Ms. Home to meet on June 13, 2014, to "discuss eligibility and revisions to the student's program." Id. By this time, Ms. Home was no longer represented by counsel. Id. at 352.

         R.P. was suspended for the last two weeks of the 2013-2014 school year. Id. at 582. During the summer of 2014, a new principal started at Potomac. HOD at 8.In July 2014, Ms. Home met with the new principal to discuss R.P.'s disciplinary record. Id. Ms. Home testified before the Hearing Officer that her request for an IEE was not discussed at that meeting. Hearing Tr., ECF No. 9, Ex. 7 ("Hearing Tr.") at 28. Rather, Ms. Home recalled Potomac officials telling her R.P. would start with a clean record the next school year. Id. Potomac's special education teacher testified that his "impression was that the functional behavior assessment that the school agreed to was - satisfied Ms. Home and that there was - that issue [of an IEE] was resolved." Id. at 77.

         D. Ms. Home's due process complaint, Potomac's counterclaim, and the Hearing Officer's decision

         On August 1, 2014, Ms. Home secured a new attorney who informed Potomac that because the school refused to authorize an IEE or file a due process complaint as required under 34 C.F.R. § 300.304(c) (4), Ms. Home was going to have her son evaluated by an independent examiner and would seek reimbursement from the school. AR at 362-63. In response, the school invited Ms. Home to another meeting. Id. On August 5, 2014, Ms. Home filed a due process complaint requesting reimbursement for an IEE. Id. at 5. On August 15, 2014, Potomac filed a response and counterclaim arguing that its 2013 evaluation was appropriate. Id. at 465.

         On October 26, 2014, the Hearing Officer issued his opinion concluding that Potomac's three-month delay in filing a due process complaint was not "unnecessary delay" because school officials were left with the impression that Ms. Home was satisfied and no longer sought an IEE. HOD at 13. The Hearing Officer also concluded that Potomac's fall 2013 evaluation was appropriate. Id. at 97.

         E. Events after the October 2014 Hearing Officer Determination

         In January 2015, Ms. Home paid for an independent evaluation, which was completed by Dr. Nelson on January 20, 2015. Pl's Mem. Supp., Ex. 10-2. Dr. Nelson concluded that R.P. "meets criteria to receive special education services under the category of Emotional Disturbance due to his diagnosis of Adjustment Disorder with Mixed Disturbance of Emotions and Conduct." Id. at 12. Dr. Nelson recommend that R.P. "receive an IEP which will offer him inclusion supports in core academic classes for ten hours per week" and that R.P. "should receive support in his school in the form of counseling to address his behavioral, social, and emotional difficulties, for one hour per week." Id. Ms. Home sent a copy of Dr. Nelson's report to Potomac. Pl.'s Mem. Supp. at 8.

         In February 2015, R.P. was suspended again. Pl.'s Ex., ECF No. 10-3. On February 19, 2015, a "re-entry" meeting was held. Id. Potomac's new principal stated that the 504 plan was not working and that R.P. shows signs of being bipolar. Id. The principal asked if the team could review Dr. Nelson's evaluation. Id. The special education teacher refused to allow the principal to consider Dr. Nelson's report. Id.[4]

         Dr. Nelson made an updated recommendation in March 2015. Pl's Ex., ECF No. 10-4. On March 27, 2015, Potomac held an eligibility meeting and reviewed Dr. Nelson's reports. Id. Potomac declined to find R.P. eligible for special education under the emotional disturbance classification. Id. The team agreed that while R.P. continued to demonstrate behavioral problems, his behavior did not impact his ability to make educational progress or access the general curriculum. Id. at 3.

         II. ...


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