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B.G. v. City of Chicago School District 299

United States District Court, N.D. Illinois, Eastern Division

March 20, 2017

B.G., by his next friend, J.A.G., Individually and as Parent and Next Friend of B.G., Plaintiff,
City of Chicago School District 299, et al., Defendant.


          Virginia M. Kendall United States District Court Judge

         B.G. and his mother, J.A.G. appeal from an administrative ruling rendered by an Impartial Hearing Officer (“IHO”) on March 23, 2015, following a special education due process hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1401 et seq. The IHO conducted the due process hearing and determined that B.G. was not entitled to public funding for Independent Education Evaluations (IEEs) in Psychology, Speech-Language, Physical Therapy, Occupational Therapy, Nursing, Social Work, and Assistive Technology. Plaintiffs also move to supplement the administrative record with five additional documents, including two IEEs obtained after the administrative hearing.

         For the reasons outlined below, the Court affirms in part, and denies in part, Plaintiffs' Motion to Supplement the Record (Dkt. 48) and denies Plaintiffs' Motion for Judgment Reversing Administrative Decision. (Dkt. 43.)

         I. BACKGROUND

         B.G. is a 16-year-old[1] student who qualifies for special education under the disability categories of emotional disability and specific learning disability. His mother, J.A.G., speaks only Spanish and has four children including B.G. (Dkt. 1 at ¶ 14.) She has spent years advocating for B.G.and seeking assistance from the District on her son's behalf. (Id.) B.G. started school at George Armstrong International Studies Elementary, a Chicago Public School (CPS), in pre-Kindergarten and attended through the beginning of eighth grade.[2] (Dkt. 1 at ¶ 11.) He repeated first grade and entered second grade late as a child with a specific learning disability (SLD). (Id.) While at George Armstrong, the District placed B.G. in a self-contained special education classroom and he received specialized instruction and related services. (Dkt. 1-1 at 2.) Among those services, he received consultative services in the areas of social/emotional, health/medical, and speech/language. The District also had a Behavior Intervention Plan (BIP) for B.G. (Dkt. 1-1 at 3.)

         B.G. had a significant attendance problem. During the 2012-2013 school year, B.G. was absent twenty-six days, and during the 2013-2014 school year, B.G. was absent for approximately sixty days. (AR 21.) His absences were due, at least in part, to his health issues as well as problems in his family. B.G.'s father died in April 2014, and shortly after, B.G. was hospitalized with diagnoses of morbid obesity, hypertension, severe obesity-related hypoxia syndrome, and Type 2 diabetes and obstructive sleep apnea. (Dkt. 1 at ¶ 15.) When he returned to school, B.G. had doctor's orders to use oxygen twice during the day. (Dkt. 1 at ¶ 15; AR 1692). During this same time period, Department of Children and Family Services (DCFS) received a report that J.A.G. was unable to care for her children, and B.G. was sent to live with his god-mother. (AR 1692.) The record is unclear on when, exactly, B.G. returned to live with J.A.G.

         On July 22, 2014, counsel for J.A.G. filed a request for a Due Process Hearing alleging violations of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) and Illinois law. (Dkt. 1 at ¶ 16; AR 4.) She asserted that the District had denied a “free appropriate public education” (FAPE) for B.G. and requested reevaluation and intensive academic and emotional support. (AR 289-305). The Illinois State Board of Education appointed a Hearing Officer on July 25, 2014.

         Following mediation between the parties, in August 2014, the District moved B.G. to a classroom with a teacher who was familiar with multisensory approaches to teaching reading and writing for students with dyslexia, and the District also gave B.G. an aide. (Dkt. No. 1 at ¶ 17.) Plaintiffs allege that these steps were only taken “informally” because there was no formal agreement. (Id.) During the same month, the District began to assess B.G.'s educational needs, particularly in the areas of health, hearing, social emotional status, intelligence, academic skills, communication status, and fine and gross motor abilities. (Id. at ¶¶ 18, 21.) The assessments were reported to B.G.'s Individualized Education Program (IEP) team on October 9, 2014.

         IEP Meeting

         During the October 9, 2014 meeting, the IEP team developed a report based on the educators' assessments and the requests made by J.A.G. and counsel.[3] (Id. at ¶¶ 24-25.) In addition to a special learning disability that B.G. already had been labeled with, the IEP team determined that B.G. had an emotional disorder.

         Dissatisfied with the District's evaluations, J.A.G. requested Independent Educational Evaluations, at public expense, in seven areas: psychology, speech-language, physical therapy, occupational therapy, nursing, social work, and assistive technology (the seven evaluations). (Dkt. 1 at ¶ 28.) The District filed a request for a Due Process Hearing on October 22, 2014. (Dkt. 1-1 at 3.) The administrative hearing followed beginning in February 2015. (Dkt. 1-1 at 3.)

         Administrative Hearing

         Janet K. Maxwell-Wickett was the Hearing Officer (“IHO”) appointed to the case on December 1, 2014. On March 23, 2015, the IHO issued a Final Determination and Order that the District had met its burden in demonstrating that the seven evaluations were appropriate within the meaning of 34 C.F.R. § 300.304(c) (2006) and Plaintiffs were not entitled to IEEs at public expense. (AR 12; 73.)

         The IHO found that each of the District's witnesses who assessed B.G. were qualified, and that their testimony was credible and persuasive. (AR 21, 30, 35, 38, 40, 45, 51, 57.) Each of the assessors testified that they knew B.G., many of them for years, and that they each reviewed his record in anticipation of their assessments. Each of the assessors also interviewed B.G.'s teachers, and with the exception of the school nurse, each made classroom observations. (AR 16, 24-25, 32, 36, 46, 53.) At the IEP meeting, the team discussed each assessment; J.A.G. and Plaintiffs' counsel did not express concerns with the results of the assessments at the meeting. (See, e.g., AR 2, 49-50). The IHO's factual findings relating to the individual assessments are described below.

         Psychological Evaluation

         Two psychologists assessed B.G., Nicole Cintron and Yazmin Coehlo. Coehlo, the first psychologist who worked with B.G. has been employed by the District for three years as a school psychologist. (AR 12 ¶ 2.) She graduated from National Louis University with a Master's Degree in special education and holds an Illinois type 73 license as well as a bilingual certification in Spanish. (AR 12 ¶ 3.) Cintron, the second psychologist who worked with B.G., has been a lead psychologist with the District for the last eight years and has been employed by the District for ten years. Prior to becoming a psychologist, she was a first grade teacher for seven years and a special education teacher for three years. (AR 15 at ¶ 20.) Cintron holds Bachelor's and Master's Degrees in bilingual special education. (AR 16 ¶ 21.)

         Coehlo administered two tests, the WISC-IV, along with the WISC-IV's ten core subtests on the WISC-IV, and the BASC-II. She used the test results to obtain a full scale IQ for B.G. (AR 13 at ¶ 5.) Coehlo left for maternity leave after administering these tests, and she shared the results with Cintron before leaving. (AR 13 ¶ 17.) When Cintron began working with B.G., she attempted to administer an additional test, the KTEA, to assess B.G.'s academic skills, but B.G. was uncooperative throughout the test, rendering those scores unreliable.[4] (AR 18 ¶ 33.)

         At the hearing, Cintron testified about B.G.'s cultural and language background- that Spanish is spoken in the home, but B.G. is proficient in English, which she observed both in the classroom and in her communications with B.G. (AR 16 ¶ 25.) She also interviewed J.A.G., and noted that J.A.G. expressed concerns with B.G.'s “daily living and functional communication, ” (AR 691), and needs assistance waking up on time and reminders to brush his teeth. (AR 689.) Cintron also testified about B.G.'s family history, particularly the period during which his father died and DCFS placed B.G. in the care of his aunt. (AR 17 ¶ 27.)

         The IHO discussed and considered the errors made by the psychologists in administering the tests, but nevertheless, she found their testimony credible and persuasive. (AR 21 at ¶ 50.) For example, she acknowledged that Coehlo erred when she failed to note that she used some Spanish while administering the WISC-IV test. (AR 13 ¶ 11; ¶ 17.) But Cintron also testified that B.G. did not struggle speaking or understanding English, and consistent with the testimony of other District witnesses, she stated that B.G. was more comfortable in English. (AR 13-19; 2441-2442; 2312; 2372-74.) Cintron also conceded that she should not have classified B.G.'s IQ score of 71 as “borderline, ” in her report, because it was in fact a failing score. The IHO found that in spite of the “borderline” classification, the score was low enough that the IEP team was on notice and considered whether B.G. might have an intellectual disability. (AR 14-15, ¶ 16; AR 17 ¶ 36.) Finally, Cintron failed to include an “f score” pertaining to false positive responses in the BASC-2 test. None of these errors, the IHO found, invalidated the assessments because none were reviewed in isolation. Instead, the test results were compared for consistency, and brought to the IEP team for further comparison and input. (AR 18 ¶ 31.)

         Cintron determined that B.G. was eligible for services under the emotional disability and special learning disability categories. (AR 38 ¶ 40.) Cintron did not believe that B.G. had an intellectual disability.

         Speech and Language Assessment

         The speech and language pathologist, Joellyn Martin, has been employed by the District for twelve years, and prior to that she worked in a skilled nursing facility as a speech language pathologist. (AR 23 at ¶ 59.) She earned her graduate degree in Speech and Language Pathology, is licensed in the State of Illinois with a certification in clinical competence, has an early intervention credential, and is a member of the American Speech and Hearing Association (ASHA). (AR 23 ¶ 59; 2612-14.)

         Martin evaluated B.G. for speech and language services in September 2014. (AR 24 at ¶ 60.) She observed B.G. communicate in both small and large educational settings. (AR 25 at ¶ 66.) When she interviewed B.G. one-on-one, B.G. told her he preferred to speak in English, and he was able to maintain an appropriate conversation and was attentive and cooperative. (AR 25 at ¶ 67.) B.G.'s teacher reported to Martin that B.G. did not talk much in class, but his articulation was clear and the teacher could understand him without difficulty. (AR 24 at ¶ 62.)

         Martin administered several assessments, including an Oral Motor Assessment and an informal Voice Assessment, and both rendered results that B.G. was functional for educational purposes. (AR 26 at ¶ 68, ¶ 69.) Through an Articulation Assessment, Martin learned that B.G. occasionally substituted “f” in place of “th.” (AR 26 at ¶ 70.) Martin also performed two formal evaluations, the Peabody Picture Vocabulary Test (PPVT-III) and the Comprehensive Assessment of Spoken Language (CASL). B.G.'s test results for the PPTV revealed B.G. had moderate deficits in receptive vocabulary. (AR 26 at ¶ 71.) The CASL revealed the same; his scores were either just below average or in the average range. (AR 26 at ¶ 72.) On cross examination, when Plaintiffs' counsel questioned why Martin did not perform the Mean Length of Utterance test (MLU), Martin explained that she had considered the MLU, but decided against it because the test is not typically used for children B.G.'s age. (AR 29 at ¶ 83.) She testified that research supports that position. (Id.) Martin also reviewed an outside assessment, the Lindamood-Bell, procured by J.A.G. (AR 28 at ¶ 79.) Martin articulated her concerns that this tool was incomplete because, although it provided scores and recommendations, it failed to provide any descriptions of the evaluator's findings. (Id.)

         Martin determined that B.G. was impaired in receptive language, and the consistent results of the PPVT-III and the CASL tests supported her position. (AR 29 at ¶ 85.) Martin admitted that she lost her speech testing protocols after the IEP meeting, and was unable to produce them at the hearing. (AR 28 at ¶ 81.) The IHO found that this did not invalidate the scores and report, because her report was comprehensive and assessed B.G.'s needs and formulated speech and language goals. (AR 28-29 at ¶ 81.) Finally, Martin testified on cross examination that reading skills was an area beyond her expertise, and that she deferred to the District's reading specialist. (AR 30 at ¶ 87.) Her reluctance to give opinion on subject areas outside of her area of expertise contributed to the IHO's finding that she was a credible and persuasive witness. (Id.)

         Physical Therapy Evaluation

         Andrea Alter has been a District employee for three years. (AR 31 at ¶ 94.) She holds a Doctorate in Physical Therapy from Boston University, and is a licensed physical therapist in Illinois and a member of the American Physical Therapy Association. (Id.)

         Alter conducted her physical therapy evaluation of B.G. on October 24, 2014. (AR 31 at ¶ 95.) Based on her observations during class, recess, lunch, and transitions in between those subjects, Alter observed that B.G. was able to sit upright in class, both on a chair and on the floor, and that he was able to walk and navigate halls, stairs, and other obstacles. (AR 32 at ¶ 98.) He also demonstrated strong performance with gross motor skills. (AR 33 at ¶ 103.) B.G.'s physical education teacher reported to Alter that B.G. participated in gym class, spoke up for himself when he needed breaks, and received necessary curriculum modifications. (AR 32 at ¶¶ 99, 106.) Additionally, B.G. met after school on a weekly basis with the school social worker for twenty minute sessions of interval circuit training. (AR 32 at ¶ 100.)

         During the formal assessments, B.G. demonstrated decreased endurance, likely due to his obesity and other medical conditions. (AR 33 at ¶ 101.) At times, B.G. was unwilling to participate in the formal physical assessments, and so the results of some of those tests, Alter noted, were not accurate because she had seen B.G. move much more outside the assessment times. (AR 33 at ¶ 101.) Ultimately, Alter found that his endurance was not an issue for the short transitions required during the school day. (AR 33 at ¶ 101.)

         Alter concluded that B.G. independently accessed the education environment, and therefore did not need physical therapy services. (AR 33 at ¶ 103.) Instead, she recommended modifications and accommodations in physical education areas due to his decreased endurance. (AR 33-34 at ¶ 103.)

         Occupational Therapy

         The occupational therapist, Rebecca Cassidy, is an outside contractor with the District, and she is employed by Health Pro Rehabilitation, a private rehabilitation facility. She has worked with the District for twenty-seven years. (AR 35 at ¶ 109.) She supervises occupational therapists in the District and provides professional development training. (Id.) She has a Bachelor of Science in occupational therapy, and she is licensed in Illinois and certified in the USC Sensory Integration and Praxis Test. (AR 35 at ¶ 110.)

         Cassidy evaluated B.G. on September 19, 2014. (AR 36 at ¶ 113.) B.G.'s teacher reported to Cassidy concerns about B.G. completing work and following routines. (AR 36 at ¶ 115.) After observing B.G. in the classroom, Cassidy followed B.G. through daily transitions, observing his sensory processing, movement, interaction with other students, and strategies to get from place to place. (AR 36 at ¶ 116.) She observed that B.G. was able to access the school environment without difficulty, and that he could perform self-help activities such as managing the bathroom independently. (AR 36 at ¶ 117; ¶ 118.)

         Cassidy administered formal assessments, including the McMasters Writing Assessment, and B.G. was able to copy work legibly, completing 50 letters per minute, within the appropriate range for a sixth grade student. (AR 37 at ¶ 120.) However, due to B.G.'s unwillingness to pay attention, the results of the Visual Closure subtest of the Development Test of Visual Perception (DVPT-A) were not reliable. (AR 37-38 at ¶ 121.) Overall, Cassidy noted that B.G. had the physical skills to write, but putting thoughts on paper was difficult for him. (AR 37-38 at ¶ 120.) Cassidy also evaluated his computer skills, and B.G. was able to navigate an unfamiliar computer, although his typing speed was below average for students his age. (AR 38 at ¶ 122.) She made recommendations to assist and increase B.G.'s speed in performing work, including the use of Co-Writer or word prediction software in the classroom and increased keyboarding practice 3-5 times a week. (AR 38 at ¶ 123.)

         On cross examination, when Cassidy was asked why she did not administer the Sensory Profile School Companion, she explained that the test was inappropriate for a student as old as B.G., and that her position was supported by research. (AR 39 at ¶ 124.) Plaintiff's expert, Dr. Goldstein, opined that there should have been follow up in the area of the Visual Closure subtest of the VPT-A. (AR 40 at ¶ 130.) However, because Dr. Goldstein did not possess any licenses, certification, or work experience in the field of occupational therapy, the IHO did not qualify him as an expert in the subject, and therefore found this testimony unpersuasive. (AR 40 at ¶¶ 133-135.) Cassidy determined that B.G. was not eligible for occupational therapy services.

         Nursing Evaluation

         Frederickson has been employed as a school nurse in the District for twenty-one years. Prior to that position, she was a nurse assigned to the neuroscience unit at Children's Memorial hospital. (AR 41 at ¶ 137.)

         Frederickson evaluated B.G. on September 25, 2014. (AR 41 at ¶ 139.) She reviewed his entire record and specifically B.G.'s poor attendance record. (AR 41 at ¶ 139.) She noted B.G. had hearing issues due to wax impaction, but that he passed the hearing screening in 2013, so she had not followed-up. (AR 43 at ¶ 150.) She noted at the time of her report that B.G. had been losing weight and his daily oxygen was discontinued. (AR 41 at ¶ 140.)

         Frederickson requested B.G.'s list of medications from J.A.G. twice but never received the list. Frederickson also discussed some of her concerns about B.G.'s health with the physical education teacher and social worker, and they shared with her documentation from B.G.'s physician which allowed him to participate in school physical activities without restriction. (AR 41 at ¶ 146.) In 2009, Frederickson noted that B.G. should be monitored for increased distractedness and inattention, but by 2014, ADHD was not an area of suspected disability. (AR 44 at ¶ 154.)

         Frederickson testified that B.G. has been obese all of his life. (AR 44.) She set goals for B.G. relating to reading food labels, and B.G. showed a willingness to try, but gave up after a week. (AR 44-45 at ¶ 156.) She also discussed B.G.'s lunches, and B.G. indicated he was eating school lunches-which Frederickson determined was healthier than those brought from home. (AR 45 at ¶ 156.)

         Social ...

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