S.D., individually and as parent and legal guardian of HV, a minor, Plaintiff,
PORTLAND PUBLIC SCHOOLS, Defendant.
Plaintiff S.D. as Parent and Legal Guardian of HV Represented by Nicole L. Bradick
Defendant PORTLAND PUBLIC SCHOOLS Represented by Eric R. Herlan Peter C. Felmly Drummond Woodsum
ORDER ON PLAINTIFF’S APPEAL OF THE ADMINISTRATIVE HEARING OFFICER’S DECISION
JON D. LEVY, UNITED STATES DISTRICT JUDGE
This action is before the court on the complaint filed by the plaintiff, SD, who requests that the court vacate an administrative hearing officer’s decision under the administrative procedures of the Individuals with Disabilities in Education Act (“IDEA” or “the Act”), 20 U.S.C. § 1415(i)(2). For the reasons stated below, I find that the administrative hearing officer’s decision should be AFFIRMED IN PART and VACATED IN PART.
I. FACTUAL BACKGROUND
SD brings this appeal on behalf of her 14 year-old son, HV. Plaintiff’s Brief, ECF No. 22 at 1. In March 2008, HV was diagnosed with a variety of reading and anxiety disorders which required a “structured and systematic multi-modal reading approach that focuses on phonics.” Administrative Record at 2536. HV’s diagnosing psychologist, Sharon Etzweiler, Ph.D., recommended the Orton-Gillingham program or the Wilson Reading Program (“Wilson”) to address HV’s reading difficulties. Id.
Shortly after HV’s diagnosis, the Portland Public Schools (“Portland” or “the School District”) found HV to be eligible for IDEA services under the category of “specific learning disability” and held an individualized education plan (“IEP”) team meeting at which it was decided that HV would receive five hours per week of one-on-one (1:1) or one-on-two (1:2) instruction in reading and writing. ECF 22 at 2; R. at 2537. Accordingly, HV received reading instruction in the Wilson program through the end of his second grade year (2007-2008) and throughout his third grade (2008-2009) and fourth grade years (2009-2010) from Cynthia Johnson, a Wilson-certified special education teacher. R. 2537-38. HV also received extended school year tutoring in the Wilson program during the summer breaks between school years. Id.
A. Fifth Grade (2010-2011)
In May 2010, HV’s IEP team met for its annual review and drafted HV’s fifth grade IEP to require “specially designed instruction 5 hours weekly to address reading or writing” to be conducted in a small group or individual setting. R. 1127.
The IEP team reconvened in November 2010 to address SD’s concerns about how HV’s Wilson instruction was being administered. R. 679-688. Although the Wilson program required 100% accuracy on a given level in order to progress to the next level, Johnson admitted that she sometimes allowed HV to progress to the next level if he exhibited 90% accuracy in order to keep him motivated. R. 2540-41. S.D. objected to Johnson’s approach, and asked that she administer the Wilson program without skipping any steps, which Johnson agreed to do. Id. at 2541. Later the same month, Jane Boulos, a Portland school psychologist, conducted HV’s triennial reevaluation and found that he had significant deficits in word reading, reading fluency, and reading comprehension. ECF No. 22 at 5. The IEP team reconvened again in January 2011 in order to hear Boulos present the results of her evaluation and agreed that the IEP should continue to require “5 hours per week of special, multi-sensory instruction in reading and spelling.” R. 1045; R. 2544.
B. Sixth Grade (2011-2012)
In June 2011, the IEP team met for its annual review and to plan HV’s transition from elementary to middle school. R. 2544; ECF No. 22 at 6. Johnson reported to the team that HV was working on level 7 of the Wilson program, and that he was doing “quite well.” Id. The team agreed that HV’s sixth grade IEP should require five 50-minute sessions per week of individual, multisensory instruction in reading and writing; three 50-minute sessions per week of special education support to help HV complete classroom assignments; and extended school year services consisting of six hours per week for five weeks during the upcoming summer. R. 1034.
HV began attending the sixth grade at Lincoln Middle School (“Lincoln”) in September 2011. ECF No. 22 at 6. Almost immediately, a scheduling conflict arose between HV’s participation in band and his 50-minute 1:1 reading instruction, which S.D. and school officials resolved by reducing the reading instruction to one 50-minute session every other day. R. 275-278; R. 2546. They agreed to reevaluate HV’s reading progress in four to six weeks to ensure that the reduced amount of 1:1 instruction was not affecting his reading progress. Id. At approximately the same time, HV’s new Wilson-certified instructor, Maryanne Scally, reviewed HV’s files and decided to re- test him in the Wilson program, identifying what she characterized as “some holes in his knowledge” which caused her to return HV to Wilson level 2. R. 2546-47. S.D. testified that she only learned of this setback “a couple of months into the school year” and that she learned of it from HV rather than from a teacher or other school official.R. 2630.
After meeting with HV’s teachers in late October 2011, S.D. decided to have HV drop band and take private music lessons in order to allow him to devote more time to his 1:1 reading instruction. R. 2547. Yet rather than return to five 50-minute sessions per week, the school scheduled HV for four 50-minute sessions per week. Id.
Through the end of 2011 and into January 2012, HV experienced a number of bullying incidents which caused him to suffer increased school-related anxiety. ECF No. 22 at 7. For example, in December, some students pinned HV’s arms behind his back and verbally taunted him; in January, another student punched HV in the face. Id.; R. 2548. As HV was subject to further bullying, he began to react with “explosive” anger. ECF No. 22 at 7. Following the punching incident, S.D. decided to keep HV out of school until she was assured by the school administration that he would be safe. R. 2549. HV missed a total of three days of school before returning to classes. R. 2550. Following his return, S.D. chose to have Scally spend her 1:1 instructional time helping HV catch up on work that he missed while he was out of school, rather than teach the Wilson program. R. 2550; Defendant’s Brief, ECF No. 25 at 20. On February 6, 2012, HV’s English teacher, Ms. Hood, emailed S.D. regarding her concerns about HV’s return to school. R. 2550. She wrote that she had observed changes in HV’s behavior, including lots of fidgeting, refusing to open the book from which the class was reading, being generally unfocused, and making loud comments while the teacher was talking. Id. In his therapy sessions, HV stated that he felt like he was being blamed for his problems in school. R. 2551.
By March 2012, S.D. was very upset and concerned about the decline in HV’s behavior at school as well as his lack of academic progress. R. 2553. On March 6, she met to discuss HV’s situation with Steven Nolan, the principal of Lincoln Middle School; Suellyn Santiago, the school’s Assistant Principal; Deb Mullis, HV’s case manager; and Jayne Boulos, the school psychologist. Id. At the meeting, S.D. expressed her opinion that nothing the school was doing was working, noting in particular that Maryanne Scally was not helping HV, that he was not benefiting from the Wilson program, and that she did not want Scally working with HV anymore. Id.; R. 2870-73. She also insisted on removing HV from his English and Social Studies classes because she felt that those teachers, Gail Hood and Nancy Chard, were not meeting HV’s learning style. R. 2685-86; R. 2872. S.D. threatened to pull HV out of Lincoln altogether unless she “saw some changes.” R. 2872. The only other Wilson instructor available at Lincoln was not certified, and therefore S.D. refused to have that instructor work with HV. R. 2871. Deb Mullis suggested switching HV’s reading instruction from the Wilson program to a different program called “System 44, ” a reading program similar to the Wilson program except that it was not multi-sensory. R. 2696. Although she was somewhat skeptical, S.D. agreed to have HV try System 44 under the condition that he receive 1:1 instruction and because it would mean that he would no longer be working with Ms. Scally. R. 2696; R. 2554. Thus, after four years of 1:1 or small group instruction, HV ended the 12-level Wilson program in March 2012 at only level 2. ECF No. 22 at 9.
At the end of March 2012, HV began System 44. R. 2557. Initially, S.D. “wasn’t thrilled with the environment” because HV had problems with the computer system and reported that his teacher, Ms. Krasowski, became angry with him, but by early April HV told his mother that school was going well and that he was learning again. Id. Nevertheless, on April 12, S.D. emailed Jayne Boulos to say that System 44 was “a waste.” R. 1508. “Either the computer doesn’t work, the teacher is out sick, the library door is locked, and on and on.” Id.
In late April 2012, S.D. hired Christopher Kaufman, Ph.D., a licensed psychologist and certified school psychologist, to perform an initial consultation and diagnostic interview of HV, as well as to review HV’s previous testing and to attend IEP meetings on May 16 and 30. R. 2558. Kaufman observed that HV had difficulty holding onto the progress he had made in his reading instruction, and assumed that his problems were with working memory or long-term memory. Id. Kaufman felt that it was very unusual for a student to regress in the Wilson program from level 7 to level 2.5, and assumed that this was due to HV’s memory problems. R. 2594. He did not attribute HV’s poor performance to a failure of the IEP or to Cynthia Johnson’s instruction. Id.
At the May 16 IEP team meeting, Kaufman recommended that HV continue to work in a “multisensory systematic reading program.” Id. Notwithstanding the fact that System 44 was not multisensory, the IEP team unanimously agreed to continue the System 44 program with 1:1 instruction. R. 2559. Kaufman later agreed in testimony before the administrative hearing officer that the IEP team’s determination was reasonable based upon the information they had at the time. Id.
C. Seventh Grade (2012-2013)
Two weeks later, on May 30, the IEP team reconvened for its annual review and to draft HV’s IEP for the seventh grade. Id. The team agreed that the special education services for HV in the upcoming academic year would include support in various subject matters for 50 minutes per day each and a continued focus on System 44. R. 2559-60. The team also agreed to change HV’s System 44 instructor at SD’s request. R. 2559.
SD subsequently drafted a letter on August 21, 2012, notifying the School District that she was enrolling HV in the Aucocisco School (“Aucocisco”), a private school that focuses on students with learning disabilities, for the seventh grade and that she intended to seek ...