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Rayna P. v. Campus Community School

United States District Court, D. Delaware

August 10, 2018

RAYNA P., et al., Plaintiffs,
v.
CAMPUS COMMUNITY SCHOOL, Defendant.

          MEMORANDUM

          Gerald Austin McHugh United States District Judge.

         This is an appeal under the Individuals with Disabilities Education Act from a decision by a Delaware Special Education Due Process Hearing Panel. Plaintiff Rayna is a student with disabilities who transferred to Defendant Campus Community School (CCS), a charter school, at the start of fourth grade. In her three years at CCS, health issues caused Rayna to be absent nearly half the time, yet CCS provided only a handful of hours of home instruction. Eventually, Rayna's parents filed a Due Process complaint, claiming that the school had failed to provide a free and appropriate public education as required by law. Upon review of the record, I am struck by a profound inconsistency between the Panel's findings in favor of Rayna, and the relief it awarded. Despite its identification of multiple, serious deficits, it limited her relief to fifth and sixth grades, awarded no compensatory education for days she attended school, and just one hour for each of the many days she was absent. On appeal, the family challenges the sufficiency of the Panel's compensatory education award, while CCS asks that the Panel's decision be affirmed. Because I conclude that the Panel placed an improper time limit on Rayna's award, and provided no explanation for its decision not to compensate her for time she was in school without an appropriate Individualized Education Program (IEP), I will modify certain aspects of the compensatory education award and affirm the remainder of the Panel's Order.

         I. Background

         Plaintiff Rayna P. is a child with learning disabilities, Attention Deficit Hyperactivity Disorder (ADHD), and several persistent health issues, who transferred from Dover's public school district to Defendant Campus Community Schools, a charter school, to begin fourth grade in September 2011. Despite Rayna missing all but thirty-two days from the start of the school year through the end of January because of documented health issues, and even though records from the school district showed she had special needs and required special services, CCS waited until March 2012 (spring of fourth grade) to evaluate her.

         Based on that evaluation, CCS determined that she did not qualify for an IEP but did qualify for services under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, a federal law that requires public and charter schools, as recipients of federal funding, to provide a free and appropriate public education for children with disabilities. Rayna's 504 Plan called for certain accommodations in the classroom-like preferential seating, pairing verbal instruction with written instruction, and the use of a privacy shield during independent work time-but did not address frequent absences caused by her health problems. A year later, despite Rayna having missed even more days in fifth grade than in fourth, the school continued her 504 Plan, and in fact eliminated certain accommodations.

         Just as Rayna's sixth grade year began, she contracted pertussis and could not attend school from August 2013 through the end of January 2014. Despite doctor's notes and a request for instruction at home, CCS provided Rayna only 12.25 hours of homebound instruction during this extended absence of nearly five months. Rayna continued to struggle academically when she returned to school in the second part of the year, and in April 2014 her family hired, at their own expense, a certified special education teacher to work with Rayna privately.

         In May 2014, Rayna's family requested an independent educational evaluation funded by CCS, which the school approved. The evaluator concluded that Rayna had ADHD, short term and working memory deficits, a Learning Disability in Reading, executive functioning deficits, and extremely poor handwriting. Based on the evaluator's report, CCS determined for the first time that Rayna qualified for an IEP under the “Specific Learning Disability” and “Other Health Impairment” classifications of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1414. The IEP Plan, finalized on May 27, 2014, just before the end of Rayna's sixth grade year, provided for some of the same accommodations that had been part of her 504 Plan, determined that she did not need summer instruction through the extended school year program (ESY), and did not include a plan to support Rayna through her frequent absences.

         Instead of sending Rayna back to CCS for seventh grade, her family withdrew her from the school in September 2014, opting to homeschool her with the help of the private tutor they paid. On July 31, 2015, the family filed an administrative Due Process complaint against CCS seeking full days of compensatory education [hereinafter “comp. ed.”] for CCS's failure to provide a free appropriate public education (FAPE) to Rayna in her three years there, in violation of its duties under the IDEA. Pursuant to Delaware's IDEA structure, her complaint went directly to a three-member Due Process review panel [hereinafter “the Panel”]. Rayna's panel, which consisted of a special education expert, a lay person, and an attorney, heard two days of testimony and argument. Based on that evidentiary hearing and a voluminous documentary record, the Panel issued a forty-page decision on November 6, 2015 granting some limited compensatory education to Rayna and requiring CCS to improve its IDEA compliance schoolwide. Order and Op. 40, ECF No. 18 at 45 [hereinafter “Op.”].

         The Panel based its decision on the following core findings:

• CCS did not meet its Child Find obligations[1] to timely identify and evaluate Rayna;
• When CCS eventually evaluated Rayna, the evaluation report was “insufficiently comprehensive” to identify her special education and service needs;
• The 504 Plan was inadequate to meet her needs for meaningful educational progress;
• CCS did not place Rayna in the Least Restrictive Environment;[2]
• The IEP did not adequately meet Rayna's needs for meaningful educational progress;
• CCS did not provide sufficient homebound instruction during Rayna's long pertussis absence.

Id. at 29-30. In its Opinion, the Panel set forth detailed reasoning behind some of its findings, but no rationale at all for others. I review the Panel's basis for each holding in turn.

         As the basis for its conclusion that CCS failed to timely evaluate Rayna, the Panel explained that the records from Rayna's prior school should have put CCS on notice of several issues: that she had decreased visual motor skills, sensory processing skills, and self-care skills sufficient to require weekly occupational therapy; that she was receiving therapy for a “sensory integration disorder”; that she had a diagnosis of ADD and did not read well, was not persisting with tasks, was rushing and distracted, had difficulty following rules and routines, and needed extra explanations; that she was receiving daily intervention and extra help after school for reading, and had a reading specialist; that she had a list of health problems and had missed fifteen days of school; and that she was “working below grade level” and in danger of not advancing to the next grade. Id. at 32. With all of this knowledge about Rayna, the Panel concluded, CCS should have evaluated her by late September 2011 (instead of in March 2012). Id. The Panel explained that, based on the records alone, “it was already clear that [Rayna] had several issues and [there was] no indication that the new environment could possibly do away with all these issues of [sic] itself.” Id. at 32-33. CCS should have been developing a plan for Rayna far earlier, the Panel emphasized-“especially as her issues began to show in the classroom.” Id. at 33. Additionally, the Panel found that Rayna's repeated, excused absences early in her fourth grade year “should have triggered a Child Find Duty for Other Health Impairment.” Id.

         Moving chronologically through Rayna's time at CCS, the Panel next explained why, when CCS finally evaluated Rayna six months into fourth grade, the evaluation was inadequate. Although it is not clear from the Opinion what aspects of the evaluation the Panel found incomplete, the Panel specified that even the March 2012 evaluation gave CCS enough information to determine that Rayna needed an IEP because she fell within the learning disability and/or Other Health Impairment disability categories. Id. at 35. As a child with a learning disability, Rayna would have satisfied both categories, but her frequent illnesses should have made the Other Health Impairment classification “particularly obvious” to CCS. Id. at 36.

         This determination by the Panel-that Rayna should have been given an IEP from the beginning of her time at CCS-formed the basis for the Panel's holding that the 504 Plan was inadequate. Id. at 36-37 (“[CCS] had reason to suspect that [Rayna] might need an IEP upon consideration of the prior District's records . . . .”). In addition to CCS's knowledge of Rayna's ADD diagnosis, the school also knew of her increasingly frequent absences, which the 504 Plan did nothing to address. Id. Relatedly, the Panel seems to have found Rayna's 504 Plan inadequate on another basis: CCS did not place Rayna in the least restrictive environment. Specifically, the Panel explained that Rayna's “frequent illnesses and absences should have shown [CCS] that some ...


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