United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
K.W. (“Plaintiff”) filed this action, as mother
and next friend of J.W., against the Tuscaloosa County School
System (“TCSS”) appealing a due process decision
arising from a hearing conducted under the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et
seq. (“IDEA”). Before the Court are
Defendant's Motion for Summary Judgment (doc. 13) and
Plaintiff's Motion for Summary Judgment (doc. 15). For
the reasons discussed below, Plaintiff's Motion for
Summary Judgment (doc. 15) is denied, and Defendant's
Motion for Summary Judgment (doc. 13) is granted.
a student at Taylorville Primary School (“TPS”),
which is in TCSS. In August 2015, Plaintiff enrolled her son
at TPS. During enrollment, K.W. completed a Health Assessment
Report. Although K.W. asserts that J.W. has suffered from
seizures since he was two (2) years old, she indicated that
J.W. had no health, behavioral, or psychological problems on
his Health Assessment Report.
J.W. began to experience difficulty focusing, hyperactivity,
fidgeting and an inability to stay in his seat, and
difficulties with completing work during his first grade
year. In addition, J.W.'s initial STAR reading and DIBELS
assessment scores indicated a reading deficiency. In
response, both J.W.'s teacher Ms. Lewis and the
school's reading intervention specialist Ms. Henderson
began interventions to address the issues. These
interventions included one-on-one and small group time with
Ms. Henderson as well as Ms. Lewis seating J.W. near her and
away from high traffic areas. K.W. was informed that J.W. was
receiving additional support by both Ms. Lewis and Ms.
October 2015, Ms. Lewis and Ms. Henderson referred J.W. to
the TPS Problem Solving Team (PST) because they believed he
would benefit from additional interventions. TCSS's
Response to Intervention (RIT) strategy guidelines provide
for the PST to set goals for a child and track their
progress. If the child stops making progress, then a referral
for special education is made. The PST's initial meeting
was held later in October of 2015. During this meeting, the
PST discussed J.W.'s reading and behavior and determined
that J.W. would benefit from additional support in the
classroom through additional one on one or small group
instruction. It is disputed whether or not K.W. mentioned at
this time that she was taking J.W. to be tested for Attention
Deficit Hyperactivity Disorder (“ADHD”). J.W.
continued to respond to the interventions provided by Ms.
Henderson and Ms. Smith.
November of 2015, the PST and K.W. met again. At this
meeting, the team discussed J.W.'s progress and future
goals. K.W. was then given documents advising her that she
could contact the TPS's reading specialist if she desired
J.W. to be evaluated for a Section 504 or Special Education
plan. K.W. did not request the evaluation for J.W. The school
continued to apprise K.W. of her son's progress, and the
PST met monthly to discuss and review J.W.'s progress
through the school's tiered intervention process. The PST
involved in J.W.'s education continued to see progress
and did not see a need for special education testing.
March 2016, the PST received a report from J.W.'s
pediatrician stating that J.W. had ADHD. J.W.'s
pediatrician prescribed Focalin to treat the ADHD and
recommended that K.W. have J.W. evaluated for a 504 Plan or
an Individualized Education Program (“IEP”).
Around the same time, the school's principal sent K.W. a
letter indicating that the school was considering retaining
J.W. in the first grade. Though the PST was seeing progress
from the interventions, J.W. was not on pace to advance to
second grade by the end of the school year.
light of these circumstances, the PST and K.W. discussed both
the Doctor's recommendation and J.W.'s possible
retention in first grade during the March 2016 PST meeting.
During this meeting, the PST discussed several options to
address J.W.'s deficiencies, including testing J.W. for
special education, implementing a 504 Plan, and retaining
J.W. in his current grade. The school counselor Ms. Guffey,
who was also a member of J.W.'s PST, asked K.W. if she
wanted J.W. tested for special education, and she declined.
Several days later K.W. contacted Ms. Guffey both through a
note and a telephone call to tell her that she wanted a 504
plan but not special education services for J.W. Thus, in
April of 2016 the school began the referral process for a 504
plan pursuant to K.W.'s request. However, before a
meeting could be held to adopt the 504 plan, K.W. filed a due
process complaint with the Alabama State Department of
Education in May 2016.
2016, K.W. and her attorney attended a special education
referral meeting regarding J.W. with the school's IEP
team. The IEP team accepted the referral and at the
eligibility meeting held the following month the IEP team
considered J.W.'s eligibility under the criteria for
Specific Learning Disability (SLD) and Other Health
Impairment (OHI) generally and under the ADD/ADHD category.
The team considered all the required criteria under these
areas, including an IQ test, achievement, reading, math, oral
language, RTI activities and progress, work samples,
observations, behavioral rating scales, and medical
documentation on both J.W.'s ADHD diagnosis and suspected
seizures. Testing by the school determined that J.W. did not
meet the eligibility requirements for services under IDEA
because he did not meet the criteria areas of his suspected
disability under the Alabama Administrative Code.
disagreed with the IEP teams findings and requested that J.W.
undergo an Independent Education Evaluation
(“IEE”) administered by Dr. Joseph Ackerson. Dr.
Ackerson preformed his IEE and provided his report to the
school in January 2017. The IEE stated that J.W. suffered
from “slow cognitive tempo” related to his ADHD.
The school system accepted the report and considered it,
including the recommendation that school system perform a
speech and language evaluation.
February 2017, the IEP team met again and accepted a second
referral on J.W.. K.W. consented to additional evaluations
and the school also considered the report and recommendation
from the IEE performed by Dr. Ackerson. This second round of
testing additionally included a strengths and weaknesses
analysis that was specifically requested by K.W.'s
attorney. The IEP team found J.W.'s results were within
the normal range, and determined that he was not eligible for
special education under categories of SLD, OHI (with or
without ADD/ADHD) or Speech and Language Impairment.