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THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

19 IDELR 904
1 ECLPR  297

Daniel Stephen LAWYER ,
Plaintiff,

v.

CHESTERFIELD COUNTY SCHOOL BOARD
Defendants-Appellant.

No. 3:92CV760

May 24, 1993

JAMES R. SPENCER, District Judge.

Counsel for Plaintiff: Peter W. D. Wright, Esq.

Memorandum Opinion

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 be issued.


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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