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K.W. v. Tuscaloosa County School System

United States District Court, N.D. Alabama, Western Division

September 21, 2018

K.W., as mother and next friend of J.W., a minor, Plaintiff,


          L. Scott Coogler United States District Judge

         Plaintiff, 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.

         I. Background

         a. Factual Background

         J.W. is 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.

         However, 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. Henderson.

         In 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.

         In 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.

         In 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.

         In 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.

         In July 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.

         K.W. 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.

         In 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.

         B. ...

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