THIS
MATTER is before the Court pursuant to the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Daniel
Stephen Lawyer ("Danny") is a handicapped child suffering from moderate
to severe childhood autism who was six years old when his local school
district rejected his parents’ request for a structured summer educational
program. Danny’s parents invoked the due process provisions of the IDEA,
and the schools decision was administratively affirmed. This action
is an appeal from the administrative decision. For the reasons stated
herein, the decision of the Reviewing Officer is REVERSED and SET ASIDE
in part and AFFIRMED in part.
I. Facts
Plaintiff,
Daniel Stephen Lawyer, is a six-year-old student whose date of birth
is September 26, 1986. Danny is a handicapped child and has been identified
as suffering from moderate to severe childhood autism with a developmental
language disability that includes significantly impaired expressive
language, phonological processing problems, and verbal apraxia.
At the
age of three years old, Danny received speech, hearing, educational,
and motor skills evaluations at Children’s Hospital in Richmond, Virginia.
The Children’s Hospital Assessment team found that Danny’s cognitive
level of functioning and expressive language skills were at the 15
month level, and based on the severity of delays, it was recommended
that Danny receive on-going speech language services to begin as soon
as possible.
In November
1989, Children’s Hospital referred Danny to Chesterfield County Public
Schools for an assessment. The school district is operated by the
defendant, Chesterfield County School Board ("Chesterfield"). In February
of 1990, Chesterfield County Schools found Danny eligible to enter
the County’s center-based preschool handicapped program based on significant
delays in language development, cognition, fine motor skills, and
social and interpersonal skills. In the course of determining Daniel’s
eligibility for special education services within Chesterfield County,
Daniel was found to have significantly impaired expressive language
as well as severe behavioral problems, poor interpersonal skills,
and symptoms of hyperactivity.
An Individualized
Educational Program ("IEP") was developed for Danny to attend the
center based preschool program at Evergreen Elementary School. The
IEP provided for two hours weekly of speech and language services
consisting of a combination of direct, indirect, and consultative
services to be delivered through the County’s Integrated Therapy Model
("ITM"). Danny entered Evergreen Elementary School in March 1990.
At the end of the school year, Mrs. Lawyer was dissatisfied with the
progress Danny had made while he was enrolled at Evergreen. As a result
of her dissatisfaction, Mrs. Lawyer employed a private speech therapist,
Laurinda Ogborn, to work with Danny for 2 hours per week during the
summer. Ms. Ogborn worked with Danny twice a week from June 1990 through
mid-August 1991 for a total of 101 individual 1-hour sessions.
In September
1990, Danny entered O.B. Gates Elementary School. At the request of
Mrs. Lawyer, the IEP that was developed for Danny in February was
revised for the 1990-91 school year. Danny was to receive services
four days a week, six hours a day in a preschool program based on
O.B. Gates, in Ms. Lael Ravenscroft’s class. Additional services that
Danny was to receive included a once a month home visit, a visit to
the program once a month by the parent, and speech and language therapy
through the ITM approach. Speech/language services included direct
therapy for thirty minutes by the speech pathologist with reinforcement
in the classroom by the teacher and aide, one hour of group speech
activities and one hour of speech consultation each week. At no time
did Mrs. Lawyer request that the school system modify its 1990-91
IEP that year to increase the level of speech and language services
to be provided during the school year or to provide speech services
during the summer months. In the progress notes sent home by the teacher
during the 1990-91 school year, Ms. Ravenscroft noted that Danny made
progress in all areas.
In April
1991, the school reassessed Danny’s progress in preparation for his
triennial evaluation. The school system reported that Danny’s severe
language delay significantly impacted the results of Daniel’s cognitive
testing results and would continue to play a critical role in the
development of his cognitive and social skills. Despite these continued
delays in speech language which were affecting other areas of development,
it was not recommended that Danny receive speech language therapy
over the summer.
During
the summer of 1991, Danny did not have access to a structured educational
program. He received 12 hours of private speech language therapy from
mid-June to early August, at which point his therapist, Ms. Ogborn,
moved out of state. As a result of the lack of structured education
during the summer of 1991, Danny’s behavior deteriorated significantly.
although he had been initiating some two word phrases, by August 1991
he had returned to one word utterance usage.
In June
1991, an IEP was developed for Danny to be implemented during the
1991-92 school year. Mrs. Lawyer participated in the development of
that IEP and signed giving consent to the implementation of the services
specified in the document. That IEP did not include the provision
of summer services in speech and language.
In August
1991, Danny was evaluated by Dr. Ronald David, a pediatric neurologist
who referred Danny for additional evaluations to Dr. Pamela Waaland,
a licensed clinical psychologist with a specialty in neuropsychology,
and Candace Pund, an Educational Consultant with Children’s Neurological
Services. These individuals diagnosed Danny as having moderate to
severe autism which included significant expressive language problems
and phonological processing problems. The independent evaluators determined
that Danny’s ability to achieve a reasonable degree of self sufficiency
and independence would be determined by his ability to communicate.
Dr. Waaland, Dr. David, and Ms. Pund, found that in order to prevent
regression such as that experienced during the summer of 1991, and
enable reasonable progress toward the achievement of his goals, Danny
needed intensive speech language services on a continuous (12 month)
basis to be provided in a structured environment.
Daniel
re-entered O.B. Gates Elementary School in September 1991. As per
his IEP he was placed in a self contained class for "trainable mentally
retarded" children and received ½ hour per week direct speech
therapy services and one hour per week group speech therapy through
the ITM model.
Mrs.
Lawyer was concerned about the regression Danny experienced during
the summer of 1991 and wanted the recommendations of Dr. Waaland,
Ms. Pund, and Dr. David implemented. She met with the Principal at
O.B. Gates in October 1991, and subsequently requested that Danny’s
IEP committee be reconvened to discuss extended year services and
specifically the provision of speech language therapy in a structured
setting during the summer of 1992.
In Mrs.
Lawyer’s absence, several days prior to the IEP meeting scheduled
for December 12, 1991, a pre-IEP meeting was held that included several
members of the staff at O.B. Gates. An IEP meeting was held on December
12, 1991. At the meeting, Mrs. Lawyer stated her intention to enroll
Danny in a preschool program offered by the Children’s House during
the summer of 1992, at her expense, in order to provide necessary
structure. She requested that Chesterfield Schools provide 2 hours
per week of speech language therapy to be delivered at the Children’s
House. The evaluations of Dr. David, Dr. Waaland, and Ms. Pund were
summarily dismissed and Mrs. Lawyers’ request for extended year services
was denied.
Following
the IEP meeting, Mr. and Mrs. Lawyer retained counsel, and a Due Process
Hearing was held on April 8 and May 11, 1992 to address three issues:
extended year services, predetermination of the IEP meeting, and reimbursement
for costs incurred for the private speech therapy contracted for by
the parents. After hearing evidence, on June 22, 1992, the Hearing
Officer ordered that Chesterfield County Schools provide an Extended
School Year program for Danny, and specified that he receive speech,
language, and communication services three times a week for two hours
on each occasion for a total of six (6) hours per week. The Hearing
Officer ruled against the parents on the issues of reimbursement for
private speech therapy costs and predetermination of the IEP meeting.
In July
1992, Chesterfield County appealed the Hearing Officer’s decision
as it related to provision of extended year services. Mr. and Mrs.
Lawyer filed a cross appeal on the issue of predetermination of the
IEP meeting. The Reviewing Officer upheld the decision on predetermination
but reversed the decision on extended year services.
At the
end of the 1991-1992 school year, teacher and therapist observations
and formal evaluations demonstrated that Danny had made progress during
the school year.
During
the summer of 1992, while the Reviewing Officer was reviewing the
case, Danny’s parents placed him into and paid for a structured preschool
program at the Children’s House. Mrs. Lawyer again contracted for
private speech language therapy services for Danny. Twice weekly speech-language
intervention was provided by Suzanne Murphy to Danny at the Children’s
House; a total of 21 one-hour sessions from mid-June to the end of
August.
Testing
conducted in August 1992 by Suzanne Murphy, compared to end-of-year
testing conducted in June 1992 by Danny’s speech language therapist
revealed that after 81/2 weeks of summer therapy, Danny’s expressive
language skills increased by the equivalent of 3 months and his receptive
language skills increased by 13 months. The improvements in Danny’s
speech as a result of individualized speech therapy in a structured
environment were seen by Dr. Waaland, Ms. Pund and the staff at Children’s
House.
An IEP
meeting for the 1992-93 school year was held on September 3, 1992.
At the meeting, Mrs. Lawyer and Ms. Murphy presented Danny’s progress
over the summer and requested an increase in individual speech therapy
services. Mrs. Cole, Danny’s classroom teacher, upheld the parents’
position that Danny received more appropriate benefit from individual,
one-on-one speech therapy services, and the IEP Committee agreed to
increase the intensity of speech therapy services for Danny during
the 1992-1993 school year from ½ hour per week direct (one-on-one)
therapy to 2 hours per week direct, individual, one-on-one therapy.
The IEP was signed by all parties with the stipulation that an addendum
be attached which stated that duration of services was still under
litigation.
The Plaintiffs
have exhausted their administrative remedies, and this suit is an
appeal of the Reviewing Officer’s reversal of the Hearing Officer’s
decision finding the necessity of extended year services.
II.
The IDEA
requires that all states and school districts which receive funds
under the Act take affirmative steps to identify, evaluate, and provide
appropriate educational programs and services to all handicapped children
within their jurisdiction. A state plan must require that all public
schools within the state provide handicapped children with an individually
designed, free appropriate education in the least restrictive environment
appropriate to the unique needs of the child. 20 U.S.C. § 1401(a)(18).
The IDEA
also requires that each child identified as handicapped be provided
with appropriate "special education" and any "related services" as
may be required to assist a child to benefit from special education.
20 U.S.C. §§ 1401(a)(16) & (17). As part of the child’s
special education, a written statement is developed and implemented
and is known as the IEP. Speech therapy is a related service under
the provisions of IDEA.
III.
In the
State proceedings, the Administrative Reviewing Officer reversed the
finding of the Hearing Officer that, Danny Lawyer is in need of and
is entitled to extended school year services, including speech, language
and communication services during the summer months.
Generally,
in reviewing state administrative decisions pursuant to the IDEA,
district courts are required to make an independent decision based
on a preponderance of the evidence, while giving due weight to state
administrative proceedings. Doyle v. Arlington County School Board,
953 F.2d 100, 103 (4th Cir. 1991). However, in Doyle v. Arlington
County School Board, the Fourth Circuit Court of Appeals concluded
that the district court had committed reversible error by giving due
weight to the state reviewing officer’s decision when the reviewing
officer discredited the testimony of a witness based solely on the
reading of the transcripts and despite the fact that the hearing officer
had heard and seen the witness offer testimony in person. The court
held that where a state administrative appeals authority has departed
from the fact-finding norm to such extent, that facts found as a result
of that departure are entitled to no weight, but the facts as found
by the local hearing are entitled to prima facie correctness.
The court further held that in deciding what is the due weight to
be given an administrative decision, a reviewing court should examine
the way in which the state administrative authorities have arrived
at their administrative decision and the methods employed. Id.
at 104-105.
Similarly
to the Reviewing Officer in Doyle, the Administrative Reviewing
Officer in this case arbitrarily reversed the decision of the Local
Hearing Officer on the issue of extended year services. The Reviewing
Officer heard no testimony and admitted no additional evidence on
which to base this reversal. The Reviewing Officer did not address
any of the relevant factual findings made by the Local Hearing Officer,
nor did she explain why she chose not to accept those findings. Accordingly,
it is the finding of this Court that the Reviewing Officer’s findings
are not entitled to any deference. Thus, the factual findings of the
Hearing Officer are prima facie correct.
IV.
According
the appropriate deference to the findings of the Hearing Officer,
along with a review of the evidence submitted by the parties, leads
this Court to conclude that Daniel Lawyer is in need of and is entitled
to an extended summer special education program which includes speech/language
therapy.
In order
for a State to receive benefits pursuant to the IDEA, the State must
demonstrate that all children with disabilities in its educational
programs have "the right to a free appropriate public education."
20 U.S.C. § 1412(1). The "free appropriate public education"
requirement is satisfied when a State provides the handicapped child
with "personalized instruction with sufficient support services to
permit the child to benefit educationally from the instruction." Board
of Education v. Rowley, 458 U.S. 176, 203 (1982).
The Local
Hearing Officer who saw and heard testimony of witnesses stated the
following in his decision:
The
experts on behalf of this young man base their opinions of the need
of [sic] extended school services upon regression demonstrated and,
more importantly, upon Danny Lawyer’s unique requirements as an autistic
child for intensive speech and communication services during this
critical time period in his development.
Added to
these opinions, however, were the direct observations of the mother
and speech therapist of deteriorating behaviors on the part of this
young man. Both sides concur that regression and loss of ability is
demonstrated in this young man through behaviors which are unacceptable
. . . Throughout all of the testimony both educational progress and
the lack thereof was tied directly to Danny Lawyer’s behavior.
That
his behaviors deteriorated over the summer is, in my opinion, uncontradicted
and firmly established as the result of the lack of services offered
by the school board during that time and the accompanying lack of
the essential and necessary element of structure. Decision, Page 3
of 9.
These
findings made by the Hearing Officer go directly to the question of
whether an IEP formulated at O.B. Gates Elementary School would give
Danny an appropriate education. The evidence in totality indicates
that the most recent IEP (March 24, 1993) developed for Danny is adequate
in terms of providing for the reasonable development of skills. However,
as found by the Hearing Officer and demonstrated by the evidence,
the IEP is inadequate in that, it allows substantial regression in
the summer months, which causes severe impairment of Danny’s educational
progress.
Regression,
however, is not the only factor that is considered in determining
whether extended year services are required to provide the student
with an appropriate education. Other factors that are considered include:
the amount of time needed for recoupment in the fall, the child’s
rate of progress, the child’s behavioral or physical problems, the
availability of alternative resources, the areas of the child’s curriculum
which need continuous attention, and the child’s vocational needs.
Johnson v. Independent School District No. 4, 921 F.2d 1022,
1027 (10th Cir. 1990).
With
respect to the issue of recoupment, the evidence in this case indicates
that the services provided to Danny by the Chesterfield County Schools
are insufficient to compensate for the significant amount of regression
that Danny experiences during the summer months when he is not being
provided speech language therapy. Danny’s regression during the summer,
coupled with nominal recoupment, severely limits the educational benefits
he receives from instruction during the regular school year. His rate
of progress is minimized by the interplay of continuous regression
and recoupment.
Moreover,
Danny’s behavioral problems are compounded by his severe language
deficit. His inability to effectively communicate triggers unacceptable
behavior. Therefore, it is critical that Danny be provided with continuous
speech and communication services.
There
are no alternative resources that are available to the public, free
of charge, that will excuse Chesterfield County from its obligation
to provide Danny with an appropriate education.
Finally,
the evidence provided by expert witnesses indicates that for children
who suffer from moderate to severe childhood autism, there is a small,
but vital, window of opportunity in which they can effectively learn.
Such period is generally between the ages of five and eight years
old. Therefore, jointly considering the area of Danny’s curriculum
which needs continuous attention and his vocational needs, the Court
concludes that it is extremely important that at this critical stage
of development, Danny receive uninterrupted speech language therapy.
The provision of such services, or the lack thereof, will have a significant
impact on Danny’s vocational opportunities in the future. Thus, it
is evident that to provide Daniel Lawyer with an appropriate free
education, which will allow him to benefit educationally therefrom,
it is necessary for Chesterfield County Schools to provide Danny with
extended year services, including speech language therapy.
The Reviewing
Officer’s decision is reversed and set aside. The Hearing Officer’s
decision is reinstated in regard to his findings of the necessity
of an extended school year and speech language services.
V.
Whereas
the Reviewing Officer committed reversible error, his decision is
reversed and set aside. The Hearing Officer’s decision is reinstated
in regard to his findings of the necessity of an extended school year
and speech and language services.
According
due weight to the decisions of the Reviewing Officer and the Hearing
Officer, and based on the evidence, the Court will affirm the following
findings:
(1)
The outcome of the December 12, 1991 IEP meeting was not predetermined,
and that
(2)
The Plaintiffs are not entitled to reimbursement for speech language
services provided by Laurinda Ogborn.
Plaintiff’s
request for an award of compensatory education will be denied.
Pursuant
to 20 U.S.C. § 1415(e)(4) and 42 U.S.C. § 1988, Plaintiffs
are awarded court costs, expenditures, and reasonable attorney’s fees.
An appropriate
Order will issue.
Final
Order
This
MATTER is before the Court pursuant to the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff, Daniel
Stephen Lawyer ("Danny"), is a handicapped child suffering from moderate
to severe childhood autism who was six years old when his local school
district rejected his parents’ request for a structured summer educational
program. Danny’s parents invoked the due process provisions of the
IDEA, and the schools’ decision was administratively affirmed. This
action is an appeal from the administrative decision. For the reasons
stated in the accompanying Memorandum Opinion, the decision of the
Reviewing Officer is REVERSED and SET ASIDE in part and AFFIRMED in
part.
The Chesterfield
County School Board is ORDERED, in addition to the speech, language
and communicative services required hereby, to advise, counsel and
work with Mrs. Lawyer and any provider of babysitting or day care
services for Danny Lawyer through the integrated therapy model to
achieve that model as an approach for services. If facilities under
any babysitting condition or adequate day care center are not available
to provide speech, language and communication services another site
must be found and made available by the school board and transportation
thereto and therefrom is ORDERED as a related service. Chesterfield
County School board is not responsible for the cost of day care at
such facility.
The Chesterfield
County School Board is further ORDERED to provide language, speech
and communicative services three (3) times a week for two (2) hours
on each occasion for a total of six (6) hours of speech, language
and communicative services per week. These services shall be provided
by the school board beginning two (2) weeks from the close of the
1993 spring session of Chesterfield schools, and up to, through and
including the period of time to begin two (2) weeks prior to the reopening
of Chesterfield schools during the fall, 1993 session.
Plaintiff’s
counsel is DIRECTED to file data with the Clerk of this Court in support
of costs and reasonable attorney’s fees.
And it
is SO ORDERED.
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