ABL v. Providence Pub. Schs.
| Docket Number | C. A. 22-379 WES |
| Decision Date | 03 November 2023 |
| Parties | ABL, by his parents and legal guardians, DL and AB, and DL, and AB, individually, Plaintiffs, v. PROVIDENCE PUBLIC SCHOOLS, Defendant. |
| Court | U.S. District Court — District of Rhode Island |
ABL, a minor student, and his parents and natural guardians, AB and DL (collectively “Plaintiffs”), seek judicial review and reversal of a final decision by an Impartial Hearing Officer (“IHO”) denying Plaintiffs' due process complaint under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Compl. ¶¶ 1, 96, ECF No. 1. Plaintiffs also bring claims under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. Id. ¶ 2.
Currently pending are cross-motions for partial summary judgment. See Pls.' Mot. Summ. J., ECF No. 9; Def.'s Mot. Summ. J., ECF No. 19. These motions are limited to Plaintiffs' IDEA claims and do not cover Plaintiffs' claims under the ADA or Rehabilitation Act. See Consent Stipulation, ECF No. 21.
For the following reasons, the Court orders the IHO's decision be AFFIRMED IN PART and REVERSED IN PART.
Under the IDEA, children with disabilities are entitled to free appropriate public education (“FAPE”) in states that receive funding under the statute. 20 U.S.C. § 1400(d); see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 18081 (1982). FAPE consists of “special education and related services designed to meet [the recipient's] unique needs and prepare them for further education, employment and independent living.” 20 U.S.C. § 1400(d). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability.” Id. § 1401(26). “Related services” are “the support services ‘required to assist a child . . . to benefit from' that instruction.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390 (2017) (quoting 20 U.S.C. § 1401(29)).
A student's local educational agency (“LEA”) determines whether the student is eligible for FAPE as a “child with a disability.” 20 U.S.C. §§ 1401(3), 1414(a)-(c). If the child is found eligible, then an Individualized Education Program (“IEP”) is developed by an IEP team consisting of teachers, an LEA representative, and the child's parent(s). 20 U.S.C. § 1414(d)(1)(A)-(B). The IEP is a written statement that includes statements of “the child's present levels of academic achievement and functional performance,” “measurable annual goals,” plans for measuring the child's progress towards those goals, the “special education and related services” to be provided and when they will be provided, and the extent to which the child will not participate with nondisabled children. 20 U.S.C. § 1414(d)(1)(A)(i). The IEP serves as “the centerpiece of the statute's education delivery system.” Honig v. Doe, 484 U.S. 305, 311 (1988). “ To ‘ensure the continued adequacy of a child's IEP,' the IEP team must meet at least annually to reevaluate the special education and related services being offered by the school district.” Doe v. Newton Pub. Schs., 48 F.4th 42, 48 (1st Cir. 2022) (quoting D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35 (1st Cir. 2012)).
If there is a disagreement between parents and the LEA, the parties may seek resolution through a preliminary meeting or mediation. 20 U.S.C. § 1415(e), (f)(1)(B)(i). “If these measures fail to produce accord, the parties may proceed to what the Act calls a ‘due process hearing' before a state or local educational agency,” heard by an IHO. Endrew F., 580 U.S. at 391-92 (citing 20 U.S.C. § 1415(f)(1)(A), (g)); see 20 U.S.C. § 1415(b)(6). A party may then challenge the administrative decision by filing a civil action. 20 U.S.C. § 1415(i)(2).
The following constitute the unchallenged facts drawn from Plaintiffs' Statement of Undisputed Facts (“PSUF”), ECF No. 10, and Defendant's Statement of Undisputed Facts (“DSUF”), ECF No. 19-3, which in turn draw from the Due Process Hearing transcript, ECF No. 11, and exhibits admitted during the Hearing, ECF Nos. 2729. The Court focuses on the facts most pertinent to the issues raised in the parties' motions.
Plaintiff ABL is a bright, charming, and engaging boy who was diagnosed with an in-utero stroke and resulting Left-Hemiplegic Cerebral Palsy. PSUF ¶¶ 3, 8. The stroke affected him more on the right side of his brain, which controls the left side of his body. Id. ¶ 9. As a result, ABL has limited use of his left hand, severe hearing loss in his left ear, and an impaired gait. Id. ¶¶ 10, 12. He has fatigue resulting from difficulties with postural control, and difficulties with muscle strength and tone, motor control, and “executive functioning skills.” Id. ¶¶ 11, 14. “His vision has also been affected.” Id. ¶ 13. ABL's disability is “unique” given “the location and nature of his stroke.” Id. ¶ 15.
Plaintiffs DL and AB (“Parents”) are ABL's parents and natural guardians. Id. ¶ 4. Defendant Providence School District (“Providence”) is the LEA responsible for providing ABL with a FAPE pursuant to the IDEA. Id. ¶ 5.
Parents enrolled ABL in Early Intervention Services when he was eight weeks old, which included occupational therapy (“OT”) and physical therapy (“PT”), due to concerns about his left hand. Id. ¶ 7; see Tr. 22. At age three, noting “developmental delays in speech, gross and fine motor control, and learning readiness skills,” they transitioned him to an Individualized Education Program (“IEP”) administered by Providence. PSUF ¶ 16.
ABL's preschool IEP provided for on-site speech therapy, OT, and PT. Id. ¶ 18. In February 2016, during ABL's final year of preschool, Parents paid for ABL's first neurological evaluation, conducted by Dr. Rachel Baldwin. Id. ¶ 19. Dr. Baldwin determined that ABL had “strong nonverbal reasoning skills and relatively evenly developing verbal and nonverbal intellectual skills,” but faced challenges in math and other “challenges related to weaknesses in right-hemisphere functions and executive functioning.” Id. ¶¶ 20-21 (quoting PX65, Neurodevelopment Center Confidential Neuropsychological Evaluation (June 25, 2010) 450, ECF No. 28-28).
Before ABL's transition to kindergarten, two IEP meetings were held. Id. ¶ 22. Dr. Baldwin's report was reviewed at the first meeting. Id. ¶ 23. At the second meeting, Henry Barnard School (“Henry Barnard”), a private school, was considered for ABL's placement. Id. ¶¶ 24-25. Parents enrolled ABL at Henry Barnard from kindergarten through third grade, with Parents paying tuition and Providence providing special education services through an IEP. Id. ¶ 28; DSUF ¶ 2.
During kindergarten, accommodations for ABL's hearing impairment, including Adaptive Physical Education (“APE”), were added to his IEP. PSUF ¶¶ 30-31.
ABL's first grade IEP addressed writing, APE, PT, and fine motor skills. DSUF ¶ 3. In first grade, around November 2017, a Teacher for the Visually Impaired was added to ABL's IEP team on a consultative basis after ABL was found to have vision difficulties. PSUF ¶¶ 32-33; Compl. ¶ 33; Answer ¶ 33, ECF No. 4.
ABL's second grade IEP, for May 2018 to May 2019, addressed writing and related services (APE, OT, and PT), OT consultation, vision consultation, and a Teacher of the Deaf. PSUF ¶ 35. In November and December 2018, on Providence's behalf, Rebecca Klockars conducted an OT assessment and Jennifer Martinous conducted an assistive technology assessment. Id. ¶¶ 39, 44. Klockars found ABL struggled to maintain postural control, experienced fatigue, and had “decreased organization, motor coordination, visual closure and vestibular processing skills which impact his ability to fulfill daily duties related to being a student.” Id. ¶ 40-41 (quoting PX34, Occupational Therapy Evaluation (Dec. 14, 2018), ECF No. 28-2). Klockars recommended regular direct OT services and consultations. Id. ¶ 42. “To date, Providence has not done any subsequent OT assessment.” Id. ¶ 43.
Martinous determined ABL needed technological support, in part because he primarily uses one hand and his special educator reported concerns with ABL's math skills. Id. ¶¶ 44, 46, 49. Martinous recommended the IEP team develop an assistive technology plan to include additional technological training and a contact person for technical support, especially for the educational software programs because ABL could not use them independently. Id. ¶¶ 44-45, 47-48; see id. ¶¶ 37-38. Martinous also recommended that “the appropriateness of hardware and software be reviewed at least annually.” Id. ¶ 50. “The recommendation for annual reviews has not been followed; Providence has never requested another [assistive technology] assessment for ABL.” Id. ¶ 51.
On December 14, 2018, an IEP meeting was held where the Henry Barnard math data was reviewed. Id. ¶ 53. “The minutes note that fact fluency under 10 was an issue and that [ABL's] effort was inconsistent when given flash cards.” Id. ¶ 54. However, math was not added to the IEP and “Providence did not initiate an evaluation for a math disability.” Id. ¶ 55. ABL's second grade report card showed a need for support in math. Id. ¶ 56.
In third grade, an IEP meeting was held on December 14, 2019 and a new IEP was established for January 2019 to January 2020. Id. ¶ 57. The IEP provided for special education in writing, APE, OT, OT consultation, vision consultation, and a Teacher of the Deaf. Id. ¶ 58. Math was not added to the...
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