M.B. v. Fairfax Cnty. Sch. Bd.
| Docket Number | 1:22-cv-930 |
| Decision Date | 22 August 2023 |
| Parties | M.B., et al., Plaintiffs, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
M.B and his parents J.B. and S.B. as next friends (collectively “Plaintiffs”), bring this action under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., challenging a Hearing Officer's decision that Defendant Fairfax County Public Schools provided M.B. with a free appropriate public education (“FAPE”), as required by the IDEA. Specifically, Plaintiffs seek reimbursement for tuition costs incurred in sending M.B. to a private day facility during the 2021-22 school year, as well as an Order directing Fairfax County Public Schools (“FCPS”) to place and fund M.B. at the private day facility going forward.
After a seven-day hearing with testimony from eighteen witnesses, the Hearing Officer denied Plaintiffs' request for reimbursement and found that private school placement for M.B. was unnecessary because the public special education that Defendant provided to M.B. satisfied the IDEA's requirements. This matter is now before the Court on the parties' cross motions for judgment on the administrative record,[1]which have been fully briefed and argued orally at a hearing on May 25, 2023. Accordingly, the motions are now ripe for disposition. A careful review of the record makes clear that the Hearing Officer correctly determined that Defendant provided M.B. with a free appropriate public education for the time period at issue, including by providing M.B. with Individualized Education Programs (“IEPs”) reasonably calculated to enable M.B. to make progress in light of his circumstances. Thus, Defendant's motion must be granted and Plaintiffs' motion to the contrary must be denied.
As a preliminary matter, it is important to clarify that although the record in this case includes evidence going as far back as the 2013-14 school year, the only school year at issue in this dispute is the 2021-22 school year, during which M.B.'s parents decided to send M.B. to a private school and for which the parents seek reimbursement from Defendant. Indeed, at oral argument, Plaintiffs agreed that M.B.'s eighth grade year-the 2021-22 school year-is the only year at issue in this case, and the Complaint only seeks reimbursement “for the tuition expenses and costs incurred in enrolling M.B. at Phillips School from the beginning of the 2021-2022 school year to the present.” Compl., Dkt. 5 at 25. Yet the Hearing Officer appropriately considered and made findings regarding school years 2018-19, 2019-20, and 2020-21, because the years 2018-21 provide context for the decisions made during the 2021-22 school year. Accordingly, findings of fact related to those schools years are also relevant here.
Given this, the following findings of facts are derived from a review of the entire administrative record in this case and give due weight to the regularly made findings of the Hearing Officer following a seven-day hearing, which findings are supported by the preponderance of the evidence.
• During the 2012-13 school year, while attending kindergarten at a private school, M.B. was diagnosed by a clinical psychologist as suffering from Attention Deficit Hyperactive Disorder (“ADHD”). AR 1 at 8.[2]In the report, the psychologist concludes, among other things, that M.B. suffers from dyslexia. Id. Based on this evaluation, in 2013 FCPS found M.B. eligible for special education. AR 14 at 1.
• M.B. repeated kindergarten in the FCPS system in 2013-14. M.B. then attended a private school for students with learning disabilities for first and second grade. He was then homeschooled for two years for his third and fourth grade. AR 14 at 1.
Fifth Grade (School Year 2018-19)
• In 2018, M.B.'s parents determined that M.B. needed more assistance in reading than the parents could provide in homeschooling, so M.B.'s parents enrolled him in FCPS at Sunrise Valley Elementary School for fifth grade. FCPS reevaluated M.B. and determined that he continued to be eligible for special education due to his ADHD diagnosis. AR 23 at 1; 180 at 193.
• The FCPS IEP team convened and developed an IEP for M.B. for the 2018-19 school year. The IEP provided M.B. with 13.25 hours per week of special education. M.B.'s parents agreed to the IEP for the 2018-19 school year. AR 24 at 27.
Sixth Grade (School Year 2019-20)
• M.B. also attended Sunrise Valley Elementary public school for sixth grade. FCPS developed a new IEP for M.B.'s sixth grade year, which provided an increase in special education instruction from 13.25 hours per week to 19 hours per week. AR 31 at 29.
• During the meeting to develop the IEP for M.B.'s sixth grade year, M.B.'s parents requested that M.B. be placed in a more restrictive educational setting called a Comprehensive Services Site (“CSS”). The FCPS IEP team declined the parents' request because the IEP team determined that M.B. could be appropriately educated at Sunrise Valley Elementary, where he would continue to participate in class with his general education peers for portions of the school day. M.B.'s parents then agreed to the IEP for M.B.'s sixth-grade year. AR 180 at 239, 241.
• At the beginning of M.B.'s sixth grade year, his IEP indicated that M.B. could read at a beginning third grade level. AR 31 at 8. For this reason, M.B. participated in a corrective reading program. M.B. also participated in a behavioral program designed to motivate M.B. to participate in class. AR 183 at 67-70.
• On March 15, 2020, during M.B.'s sixth grade year, all public schools in Virginia closed pursuant to the Governor's order during the COVID-19 pandemic. AR 183 at 171.
• Due to school closings during the pandemic, FCPS developed a Temporary Learning Plan (“TLP”) for M.B. to help provide M.B. with a continuity of education and abate any regression by M.B. during the school closure. The TLP contained individualized goals, accommodations, and services for M.B. The TLP was voluntary and not compelled by attendance requirements, and no new grades were provided for this period. AR 186 at 172, 176-77.
• M.B.'s IEP reports from the 2019-20 school year demonstrate that M.B. made progress during sixth grade. Specifically, M.B. received a final progress code of “4” on all of his reading goals, which denotes that M.B. made significant progress.[3]For example, M.B. began sixth grade reading at a beginning third grade level, but by April of his sixth grade year, M.B. was reading at a mid-third grade level.[4] M.B. also progressed in writing and math. Overall, out of his 13 goals, M.B. made sufficient progress towards achieving five goals and some progress achieving six goals. For this reason, the Hearing Officer found that during his sixth-grade year, M.B. made progress towards achieving his IEP goals, which was meaningful progress given M.B.'s circumstances. AR 124; 286 at 40.
• M.B.'s sixth grade report card also demonstrates that M.B. made progress in the sixth grade. FCPS report cards use a numbering system from 1 through 4.[5]On M.B.'s fifth grade report card, he received mostly “2s” and even several “1s,” whereas on M.B.'s sixth grade report card, he received mostly “3s” and “4s.” AR 12 at 1; 35 at 1.
Seventh Grade (School Year 2020-21)
• In preparation for M.B.'s seventh grade year, the IEP team convened in January, April, and May 2020 to discuss goals, services, and placement for M.B., and to plan for M.B.'s transition from elementary school to middle school. AR 42, 47.
• Due to increased behavioral concerns,[6] the IEP team concluded that M.B. needed a greater level of service than that available at Sunrise Valley Elementary, where M.B. had attended fifth and sixth grade. The IEP team considered three options for M.B.'s seventh grade placement: (i) a CSS program at Herndon Middle School, a public school that has lower student/teacher ratios and additional support for special education students while still enabling integration with general educational peers; (ii) Burke School, a separate public day school only for special education students which provides the highest level of support available for students within FCPS; and (iii) a private day school. AR 184 at 3139; 185 at 187.
• Ultimately, FCPS decided to place M.B. in the CSS program at Herndon Middle School because the CSS program offered M.B. necessary support while allowing integration with general education peers. The CSS program also provided access to counseling resources and clinicians. Moreover, FCPS concluded that Burke School or private placement would be too restrictive for M.B., as neither would allow integration with general education peers. AR 47 at 46; 184 at 41.
• Due to the COVID-19 pandemic, M.B. started his seventh-grade year at Herndon Middle School in synchronous virtual format, meaning that students participated in live online instruction with teachers and classmates. Given this, FCPS modified M.B.'s IEP to reflect the change to virtual learning. This lasted until March 2021 when M.B. returned to school for in-person learning. AR 184 at 22-24; AR 47; AR 180 at 292-93.
• In order to address loss of instruction during the COVID-19 school closure, FCPS offered M.B. recovery services in math for 21 weeks, and M.B.'s progress in math improved. FCPS did not offer M.B. recovery services in reading because FCPS determined that M.B. was already receiving adequate reading instruction in two English classes. Moreover, the school members noted that (i) recovery services were offered after school, (ii) M.B. was already receiving after school math recovery, and (iii) M.B.'s behavior...
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