R.S. et al v. Morgan County Board of Education

Filing 21

MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT. Signed by Chief Judge Gina M. Groh on 6/18/2019. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
R.S., individually and on behalf of
D.S., a child with a disability, and
C.S., individually and on behalf of
D.S., a child with a disability,
Plaintiffs,
v.

CIVIL ACTION NO.: 3:18-CV-80
(GROH)

MORGAN COUNTY
BOARD OF EDUCATION,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING
IN PART DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT
Now before the Court is the Plaintiffs’ Motion for Summary Judgment, Additional
Evidence and Attorney Fees [ECF No. 13], filed on March 6, 2019, and the Defendant’s
Motion for Summary Judgment and Response in Opposition to Plaintiffs’ Motion for
Summary Judgment [ECF No. 15]. The Plaintiffs filed a reply [ECF No. 17] on April 22,
2019. The Defendant filed a surreply on May 3, 2019. ECF No. 20. Accordingly, the
matter has been fully briefed and is now ripe for review. For the following reasons, the
Plaintiffs’ Motion [ECF No. 13] is GRANTED IN PART and the Defendant’s Motion [ECF
No. 15] is GRANTED IN PART.
I. Background
On May 18, 2018, Plaintiffs R.S. and C.S. on behalf of D.S. (“Plaintiffs”) filed the
complaint in this action under the Individuals with Disabilities Education Act (“IDEA”)

and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), partially appealing
Due Process Hearing Decision D18-007, dated February 19, 2018. ECF No. 1 at 1.
Specifically, the Plaintiffs allege that the Impartial Due Process Hearing Officer (“IHO”)
erred when she found that Defendant Morgan County Board of Education (“Defendant”)
did not violate the IDEA and Section 504 by failing to provide a one-to-one aide and
specialized instruction to address his reading disability.

ECF No. 1 at 8-10.

The

relevant facts are as follows.
Plaintiff D.S. is a child with a disability who attends an elementary school in
Morgan County, West Virginia. Since birth, D.S. has suffered from a life-threatening
disorder, Medium Chain Acyl CoA Dehydrogenase Deficiency (“MCADD”), which
prevents his body from converting fats into energy. As a result, D.S.’s blood sugar must
be checked on a regular schedule and when it is suspected that his blood sugar is low.
If D.S.’s blood sugar falls too low, he must be transported to the hospital by ambulance,
and if there is no timely treatment, D.S. could die. D.S. has also been diagnosed with
Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional/Defiant and
Disruptive Behaviors (“ODD”).
For D.S., MCADD manifests itself in several ways in the educational
environment. For example, when D.S.’s blood sugar is low, he exhibits observable
symptoms ranging from disassociation to hyperactivity. In kindergarten, D.S. became
dehydrated during physical education and had to be hospitalized for a week. To ensure
regular monitoring of D.S.’s blood sugar levels, D.S. spends a minimum of forty minutes
per day in the nurse’s office. Because of his medical condition, the school has been
unable to provide transportation to and from school, and this transportation has been

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provided by D.S.’s parents. D.S.’s mother, his geneticist, and his dietician provided the
school with instructions on how to manage and treat D.S.’s condition. Dr. Narumanchi,
D.S.’s geneticist, further recommended the Defendant provide D.S. with an aide.
As a result of D.S.’s health issues, D.S.’s parents requested he be tested for
special education eligibility. The school declined to test D.S. prior to his beginning
kindergarten. However, in first grade, D.S. was tested by the school psychologist who,
along with the Eligibility Committee, determined that D.S. was ineligible for special
education services. Instead, the Defendant proposed a Section 504 Plan.
Unsatisfied with this solution, D.S.’s mother requested an Independent
Educational Evaluation (“IEE”). After receiving the request, the Defendant provided
D.S.’s mother with its criteria for evaluations and a list of pre-approved evaluators.
D.S.’s mother chose Dr. Margaret Kay, who was not on the Defendant’s list, as the
evaluator.

While Dr. Kay determined that D.S. was eligible for special education

services, she reviewed only one of the eight special education evaluation criteria.
Furthermore, Dr. Kay did not confer with D.S.’s teachers, nor did she observe D.S. in
the educational setting. Nevertheless, Dr. Kay found that D.S. has a learning disability
in reading for which he should qualify for special education services in addition to being
eligible as Other Health Impaired (“OHI”) due to his MCADD and ADHD diagnoses.
Following Dr. Kay’s evaluation, D.S.’s mother requested that D.S. be provided
with an Individualized Education Program (“IEP”). That request was denied because
the Eligibility Committee found that D.S. did not qualify as OHI or for a specific learning
disability. In light of the denial, D.S.’s mother filed for a due process hearing. In that
hearing, D.S.’s mother argued that the Defendant must: (1) identify D.S. as eligible for

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special education services; (2) provide him with an appropriate IEP; (3) provide an aide;
(4) provide appropriate placement and transportation or reimburse for transportation; (5)
pay the balance of $2,400 for Dr. Kay’s evaluation; and (6) pay D.S.’s parents’ attorney
fees.
The IHO’s findings are the subject of this lawsuit. Both parties filed motions for
summary judgment [ECF Nos. 13, 15] requesting that the IHO’s determinations be
affirmed in part and reversed in part. Additionally, D.S.’s parents request that the Court
hear additional evidence and reimburse them for the reasonable attorney fees, costs,
and expenses incurred in bringing this action. ECF No. 13 at 2.
II. MOTION FOR ADDITIONAL EVIDENCE
Before the Court decides the parties’ motions for summary judgment, the
Plaintiffs seek to present additional evidence to inform the Court of D.S.’s current
educational program and his continued need for an aide and for specialized instruction
in reading. ECF No. 13 at 24. The Plaintiffs argue that this additional evidence will
assist the Court in making its determinations on the motions for summary judgment.
A. Applicable Legal Standard
Pursuant to 20 U.S.C. § 1415, a court hearing an IDEA appeal “shall receive the
records of the administrative proceedings [and] . . . hear additional evidence at the
request of a party.” 20 U.S.C. § 1415(i)(2)(C).

The Fourth Circuit has defined

“additional evidence” to mean “supplemental evidence.”

Springer v. Fairfax County

Sch. Bd., 134 F.3d 659, 667 (4th Cir.1998). The Fourth Circuit stated:
We construe “additional” in the ordinary sense of the word . . . to mean
supplemental. Thus construed, this clause does not authorize witnesses at
trial to repeat or embellish their prior administrative hearing testimony; this
would be entirely inconsistent with the usual meaning of “additional.” We
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are fortified in this interpretation because it structurally assists in giving
due weight to the administrative proceeding, as Rowley requires.
Id. (quoting Town of Burlington v. Dept. of Educ., 736 F.2d 773, 790 (1st Cir. 1984)
(citations and footnote omitted). The Springer court further held “[a] lax interpretation of
‘additional evidence’ would ‘reduce the proceedings before the state agency to a mere
dress rehearsal by allowing appellants to transform the [IDEA]’s judicial review
mechanism into an unrestricted trial de novo.’” Springer, 134 F.3d at 667 (quoting
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997 (1st Cir. 1990)). “Therefore, the
exclusion of testimony from all who did, or could have, testified before the administrative
hearing would be an appropriate limit in many cases.” Springer, 134 F.3d at 667 (citing
Burlington, 736 F.2d at 790) (internal citations omitted).
When additional evidence relates to events that occurred after the administrative
hearing, the Court should consider the evidence but may “treat[] such evidence
cautiously . . . [because] [i]t is inevitable that additional information will become
available after an administrative hearing.” Schaffer ex rel. Schaffer v. Weast, 554 F.3d
470, 476 (4th Cir. 2009). “Assigning dispositive weight to evidence that arises only after
the administrative hearing” would frustrate the purposes of the IDEA. Id. at 475-77.
B. Analysis
Here, the Plaintiffs seek to present Plaintiff Christinea Stotler’s affidavit as
additional evidence. ECF No. 13 at 25. While the affidavit contains some information
that could have been presented at the administrative hearing, the affidavit also contains
information regarding “ongoing violations.” These allegations concern events that have
occurred since the hearing took place. In so far as the affidavit narrates acts that
occurred after the December 19, 2017 and December 20, 2017 hearing, the Court will
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consider the evidence in relation to the parties’ motions for summary judgment. See
Schaffer ex rel. Schaffer v. Weast, 554 F.3d 470 (2009). Nevertheless, the Court will
treat such evidence “cautiously” so as to “protect the role of the administrative hearing”
under the IDEA. Id. at 476.
C. Conclusion
For the aforementioned reasons, the Court ORDERS that the Plaintiffs’ Motion
for Additional Evidence [ECF No. 13] is GRANTED IN PART. The Court will consider
the evidence submitted in so far as it relates to events that occurred after the
administrative hearing.
III. MOTION FOR SUMMARY JUDGMENT
Next, the parties filed opposing motions for summary judgment seeking to affirm
in part and reverse in part the IHO’s decisions. ECF Nos. 13, 15.
A. Standard of Review
“When a district court reviews a state administrative decision under the IDEA,
that court must make an ‘independent decision based on a preponderance of the
evidence,’” affording the administrative findings “due weight.” AW ex rel. Wilson v.
Fairfax Cty. Sch. Bd., 372 F.3d 674, 678 (4th Cir. 2004) (citing Doyle v. Arlington Cty.
Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991), Springer v. Fairfax Cty. Sch. Bd., 134 F.3d
659, 663 (4th Cir. 1998)). Due weight requires that “findings of fact by hearing officers
be considered prima facie correct.” Doyle, 953 F.2d at 105; see also Cty. Sch. Bd. V.
Z.P. ex rel. R.P., 399 F.3d 298, 304 (4th Cir. 2005) (holding that “state administrative
proceedings are entitled to a presumption of correctness”). If a district court declines to
adopt the hearing officer’s findings of fact, it is “required to explain why it does not.” Id.

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B. Analysis
In their motion for summary judgment, the Plaintiffs request that the Court
reverse the IHO’s finding that D.S. does not qualify for a personal aide and that D.S.
does not require specially designed instruction in reading. The Plaintiffs request that
the Court affirm the IHO’s findings that: (1) the Defendant violated multiple provisions of
the IDEA and WV Policy 2419 by failing to timely and comprehensively evaluate D.S.;
(2) the Defendant violated multiple provisions of the IDEA, WV Policy 2419 and WV
Policy 4363 by failing to provide appropriate transportation or payment in lieu of
transportation; and (3) the Defendant is required to reimburse the Plaintiffs for the
remainder of the IEE, even if failure to reimburse was not a violation of the IDEA. ECF
No. 13 at 9.
The Defendant moves to dismiss all IDEA claims against it because the IHO did
not find that any violation of the IDEA led to a denial of a free and appropriate public
education. Additionally, the Defendant requests that the Court: (1) reverse the IHO’s
determination that D.S. is eligible for special education services; (2) affirm the IHO’s
determination that the Defendant did not violate the IDEA by refusing to reimburse the
Plaintiffs for Dr. Kay’s evaluation; (3) reverse the IHO’s finding that the Defendant
violated the IDEA by failing to provide transportation; and (4) affirm the IHO’s
determination that D.S. does not require a one-to-one aide. ECF No. 16 at 8, 10, 14, 16,
and 17. These issues will be addressed in turn.
1. Dismissal of Allegations Against the BOE
First, the Defendant requests that the Court dismiss all alleged IDEA violations
against it. ECF No. 16 at 5. In support, the Defendant argues that to constitute a

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violation of the IDEA, the IHO must have found that the IDEA violation resulted in a
failure to provide a free and appropriate education (“FAPE”).

ECF No. 16 at 8.

Because the IHO did not find that alleged IDEA violations resulted in a failure to provide
a FAPE, the Defendant argues that all IDEA violations must be dismissed.
a. IHO’s Decision
In this case, the IHO found that the Defendant violated the IDEA in evaluating
and transporting D.S. With respect to evaluation, the IHO found that the Defendant
violated the IDEA by “refusing to evaluate [D.S.] starting on May 31, 2016” and by
“substituting a § 504 Plan” for an IEP. ECF No. 12 at 76. The IHO further found that
the Defendant violated the IDEA by failing to “ensure the evaluation was sufficiently
comprehensive.” Id. With respect to transportation, the IHO found that the Defendant
violated the IDEA by “failing to provide appropriate transportation to the student to and
from school or in the alternative, to provide payment in lieu of transportation.” Id. at 77.
b. Applicable Law
In Gadsby by Gadsby v. Grasmick, the Fourth Circuit held that “failure to comply
with IDEA’s procedural requirements . . . can be a sufficient basis for holding that a
government entity has failed to provide a free and appropriate education.” 109 F.3d
940, 956 (4th Cir. 1997). However, the Fourth Circuit opined that “to the extent that the
procedural violations did not actually interfere with the provision of a free appropriate
public education, these violations are not sufficient to support a finding that an agency
failed to provide a free appropriate public education.” Id.

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c. Analysis
Here, the IHO does not specifically state that the violations of the IDEA interfered
with D.S.’s ability to receive a free and appropriate public education. However, the
IDEA violations acknowledged above are not merely procedural in nature. This is not a
case like Gadsby in which the defendant violated a notice provision of the IDEA. In this
case, the violations were such that D.S. was initially denied an evaluation, then denied a
comprehensive evaluation, eliminating his ability to receive an IEP altogether.
Furthermore, without the Plaintiffs transporting D.S. to school, he would not have
received an education at all. Without adequate reimbursement for that transportation,
D.S. certainly was not receiving a free public education.

These violations are not

merely procedural, and even if the IHO did not explicitly state that the violations denied
D.S. a FAPE, the Court hereby finds that the Defendant’s violations of the IDEA did in
fact interfere with D.S.’s ability to receive a free and appropriate public education.
d. Conclusion
For these reasons, the Court affirms the IHO’s decision that the Defendant
violated the IDEA. Accordingly, the Defendant’s motion for summary judgment with
respect to dismissal of all violations of the IDEA is DENIED.
2. D.S.’s Eligibility for Special Education Services
Next, the Defendant requests that the Court reverse the IHO’s finding that the
Defendant failed to timely and comprehensively evaluate D.S. and identify him as
eligible for special education services. ECF No. 16 at 5. In support, the BOE argues
that the evidence shows that D.S. was not in need of special education services in

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kindergarten, and that D.S. was timely and adequately evaluated before the beginning
of his first-grade year. ECF No. 16 at 11-14.
a. IHO’s Decision
In finding that the BOE failed to timely evaluate D.S. and identify him as eligible
for special education services, the IHO held that “[w]hen a student is suspected of
needing special education and related services, WV Policy 2419 gives the school
system eighty (80) days to gather information to determine whether the student has a
disability, what the educational needs of the student are[,] . . . the effects of the disability
on educational and functional performance, whether the student needs specially
designed instruction and the nature and extent of the special education needed by the
student.” ECF No. 12 at 65. The IHO further found “it is undisputed that the parents
suspected and asked for an IEP” before D.S. entered kindergarten, but that the BOE did
not evaluate him until approximately one year later. Id. Thus, the IHO found that the
BOE failed to timely evaluate D.S. When D.S. was ultimately evaluated, the IHO found
that the BOE had “multiple evaluations to help them make their decision and their
decision [that D.S. did not qualify for an IEP] seems inconsistent with the evidence.”
ECF No. 12 at 69. Based upon these findings of fact and conclusions of law, the IHO
found that the BOE violated “multiple provisions of the IDEA and [West Virginia] Policy
2419” by refusing to evaluate D.S. starting on May 31, 2016, and failing to adequately
evaluate D.S. over a year later. ECF No. 12 at 75-76.
b. Applicable Law
Under the IDEA, the term “child with a disability” means a child “with intellectual
disabilities, hearing impairments (including deafness), speech or language impairments,

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visual impairments (including blindness), serious emotional disturbance[,] . . . orthopedic
impairments, autism, traumatic brain injury, other health impairments, or specific
learning disabilities . . . who, by reason thereof, needs special education and related
services.” 20 U.S.C. § 1401(3)(A). For children ages 3 through 9, like D.S., the term
“child with a disability” may include children experiencing developmental delays. 20
U.S.C. § 1401(3)(B). A child with a disability must be evaluated in accordance with the
regulations prescribed under the IDEA. 20 U.S.C. § 1414(a)(1)(A).
Under West Virginia Policy 2419, when there is suspicion that a student may be
eligible for special education services, within eighty days, the school system must
gather information to determine: (1) whether the student has a disability; (2) what the
educational needs of the student are, including his present levels of academic
achievement and his related developmental needs; (3) the effects of the disability on
educational and functional performance; (4) whether the student needs specially
designed instruction; and (5) the nature and extent of the special education needed by
the student. W.V.D.E. Policy 2419, Procedural Safeguards, Ch. 3, § 2A.
c. Analysis
In this case, the IHO found that “[t]he undisputed testimony from the parent is
that the student was refused testing prior to kindergarten for special education and
related services.” ECF No. 12 at 64. Based on this refusal, the IHO found that the
Defendant did not timely evaluate D.S. While the statement that the Plaintiffs requested
and were “refused testing” might be misleading, 1 the Court finds that there is sufficient
evidence in the record to support the IHO’s finding that D.S. should have been tested
for special education services before entering kindergarten.
1

It appears that the Plaintiffs’ first formal request for an evaluation occurred on May 17, 2017.

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The record shows that, prior to D.S.’s entrance to kindergarten, the Plaintiffs
shared information regarding D.S.’s medical diagnoses and early education records.
These records included information about D.S.’s early intervention services, MCADD
diagnoses, Disruptive Behavior Disorder diagnoses, Attention Deficit Hyperactivity
Disorder diagnoses and Oppositional Defiant Disorder diagnoses. Under West Virginia
Policy 2419, school districts are tasked with “locat[ing], identify[ing], and evaluat[ing]
students with disabilities.” W.V.D.E. Policy 2419, Procedural Safeguards, Ch. 2 § 1.
Therefore, these medical, educational and psychological records should have triggered
a special education evaluation even if the Plaintiffs did not explicitly request one. Once
the obligation to evaluate D.S. arose, pursuant to WV Policy 2419, the Defendant had
eighty days to gather information and make a determination on D.S.’s needs. However,
the Defendant did not begin the evaluation process until after D.S.’s kindergarten year,
well beyond the eighty days allowed by WV Policy. Therefore, this Court affirms the
IHO’s finding that the Defendant failed to timely evaluate D.S.
Next, the IHO found that when D.S. was ultimately evaluated, the Defendant’s
decision regarding D.S.’s eligibility for special education services was “inconsistent with
the evidence.” ECF No. 12 at 69. Upon review of the evidence, as summarized by the
IHO in pages 30 through 33 of her decision, the Court does not find any basis to reverse
the IHO’s determination that the Defendant incorrectly determined that D.S. was not
eligible for special education services prior to starting first grade.

Tellingly, the

Defendant did ultimately conclude that D.S. is eligible for special education services
only six months later, and one month after the hearing was held. See ECF No. 12 at

12

39. Accordingly, the Court will not now second-guess the IHO’s decision that D.S. was,
and remains, eligible for special education services.
d. Conclusion
For the aforementioned reasons, the IHO’s decision with respect to D.S.’s
evaluation and eligibility for special education services is affirmed. Accordingly, the
Defendant’s motion for summary judgment with respect to this issue is DENIED.
3. Reimbursement for Dr. Kay’s Evaluation
Next, the Defendant requests that the Court affirm the IHO’s finding that the
Defendant did not violate the IDEA by refusing to reimburse the Plaintiffs for Dr. Kay’s
evaluation. ECF No. 16 at 4. In support, the Defendant argues that it followed the
proper procedures and timelines for handling an IEE request.

ECF No. 16 at 15.

Although the Plaintiffs do not explicitly address this issue in their Motion for Summary
Judgment, in their reply, the Plaintiffs argue that the IHO ordered the Defendant to
reimburse the remainder of the evaluation costs. ECF No. 17 at 4.
a. IHO’s Decision
The IHO found that Defendant “did not violate IDEA and/or WV Policy 2419 by
failing to fully reimburse the [Plaintiffs] for [Dr. Kay’s evaluation].” ECF No. 12 at 71.
Nevertheless, the IHO found that the Plaintiffs “were able to demonstrate by sufficient
evidence that the [Defendant] failed to appropriately and timely evaluate [D.S.] for
special education and related services,” and therefore, the IHO ordered that the
Defendant “reimburse the [Plaintiffs] for the remainder of the cost paid by them to [Dr.
Kay].”

Id. at 78.

The IHO made it clear that the remedy is not a result of the

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Defendant’s “fail[ure] to follow WV Policy 2419 or their own county [evaluation] policies.”
Id.
b. Analysis
In this case, the parties’ requested relief can coexist—and does coexist under the
IHO’s decision.

The Defendant does not request that the Court reverse the IHO’s

directive to reimburse Dr. Kay’s evaluation costs in their entirety. The Plaintiff does not
ask the Court to reverse the IHO’s finding that the Defendant did not violate the IDEA or
West Virginia Policy 2419 by failing to fully reimburse the Plaintiffs. Accordingly, the
Court will not reverse the IHO’s decision with respect to the evaluation costs.
c. Conclusion
For these reasons, the Court affirms the IHO’s finding that the Defendant did not
violate the IDEA or WV Policy 2419 by failing to fully reimburse the Plaintiffs for Dr.
Kay’s evaluation.

Accordingly, the Defendant’s motion for summary judgment with

respect to reimbursement for Dr. Kay’s evaluation is GRANTED.
Nevertheless, the Defendant is DIRECTED to fully reimburse the Plaintiffs for Dr.
Kay’s evaluation pursuant to the IHO’s directive on pages 42 and 43 of her decision, for
the reasons provided therein.
4. Reimbursement for Transportation
The Defendant requests that the Court reverse the IHO’s finding that the
Defendant violated the IDEA by failing to provide adequate transportation for D.S. ECF
No. 16 at 16. In support, the Defendant argues that it never denied bus transportation
to D.S. The Defendant further argues that it was not required to provide transportation

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options aside from the school bus because D.S. was not eligible for special education
services at the relevant time. ECF No. 16 at 23.
a. IHO’s Decision
The IHO found that the Defendant violated the IDEA with respect to D.S.’s
transportation to and from school because the transportation offered by the Defendant
was inadequate and, in the alternative, the payment offered to reimburse the Plaintiffs
for driving D.S. was arbitrary and insufficient. ECF No. 12 at 71-72. Specifically, the
IHO found first that the special education bus offered to transport D.S. was inadequate
because the amount of time on the bus would “greatly exceed[] the recommended time
on a school bus for elementary school students.” Id. at 72. Then, the IHO found that
the Defendant’s payment in lieu of transportation alternative was insufficient because
the Defendant only offered the Plaintiffs $0.14 per mile, which is the IRS rate for service
of charitable organizations. Id. The IHO determined that the Defendant should have
offered the IRS business rate, which is approximately $0.55 per mile. Id. Based on this
finding, the IHO ordered the Defendant to pay the payments in lieu of transportation for
the 2016-17 school year and such part of 2017-18 that the parents continue to provide
transportation. ECF No. 12 at 78. The IHO ordered that the cost be calculated by using
the IRS business travel rate. Id.
b. Applicable Law
Pursuant to West Virginia Policy 4336, all students living more than two miles
from their assigned school are eligible for school transportation services. W.V.D.E.
Policy 4336, School Bus Transportation Policy and Procedures Manual, § 3.4. Students
with IEPs, individualized health plans, and § 504 plans are entitled to “special

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transportation,” which is defined as “modifications made in regular school transportation
to assure accessibility of special education and other related services for students with
disabilities.” W.V.D.E. Policy 2419, Procedural Safeguards, Glossary. In lieu of special
transportation, county school districts can make payments to parents so that the parents
can transport their own child.
The standard for the duration of transportation for elementary students is thirty
(30) minutes, one way, WV ST § 18-2E-5d (2019).
reimbursement

is appropriate, federal courts

have

Where transportation

calculated

IDEA mileage

reimbursement using the IRS standard business mileage rate at the time the mileage
expenses were incurred.

B.P. v. Charlotte-Mecklenburg Bd. Of Educ., No. 06-445,

2010 WL 1418334, at *2 (W.D.N.C. Apr. 2, 2010) (“The Court agrees with CMS that the
mileage reimbursement should be calculated using the mileage rate in effect at the time
that the mileage expenses were incurred.”)
c. Analysis
On November 20, 2017, the Defendant offered D.S. a modified transportation
plan on a special education bus. ECF No. 12 at 71. The plan provided that D.S. would
be picked up at 6:09 a.m. and delivered to school at 7:30 a.m.; a bus ride 81 minutes
long. Id. In the afternoon, D.S. would be picked up from school at 2:42 p.m. and arrive
home at 4:20 p.m.; a bus ride 98 minutes long. Id. In total, the plan would result in D.S.
spending a total of 179 minutes per day on the bus—about two hours more than the
state standard.

Because D.S.’s transportation plan results in total bus time far

exceeding the statewide thirty (30) minute standard, the plan is inappropriate. WV ST §
18-2E-5d (2019).

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Alternatively, the Defendant offered to make payment in lieu of transportation.
On November 30, 2017, the Defendant offered D.S.’s parents eight ($8.00) dollars per
day for two (2) round trips at fifty-six (56) miles. Id. The Defendant did not explain how
it arrived at that figure until the Due Process hearing. Id. At the Due Process hearing,
the Defendant specified that the reimbursement rate was equivalent to the “standard
mileage fees at the IRS rate.” Id. The IRS rate the Defendant appeared to be using was
that of “miles driven in service of charitable organizations.” Id. Though there is little
guidance from the Fourth Circuit regarding the proper IRS rate to use, other circuits
have determined that the business rate is proper. See Ruby v. Jefferson Cty. Bd. of
Educ., 122 F. Supp. 3d 1288 (N.D. Ala. 2015) (utilizing the IRS’s 2013 standard
business mileage rate for reimbursement); S.L. ex rel. Loof v. Upland Unified Sch. Dist.,
747 F.3d 1155, 1160 (9th Cir. 2014) (same). Therefore, the amount the Defendant pays
the Plaintiffs to reimburse for transportation costs is far less than the amount which it
should be paying.
Accordingly, from a review of the evidence, it appears that the Defendant did not
offer an appropriate transportation plan for D.S.

The Defendant’s modified

transportation plan was inadequate, and the offered payment in lieu of transportation
was insufficient.
d. Conclusion
Therefore, the Court affirms the IHO’s finding that the Defendant violated the
IDEA and West Virginia Policy 2419 by failing to provide appropriate transportation or
adequate payment in lieu of transportation.

Accordingly, Defendant’s motion for

summary judgment with respect to this issue is DENIED.

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5. D.S.’s Eligibility for One-to-One Aide
The Plaintiffs request that the Court reverse the IHO’s finding that D.S. does not
qualify for a personal aide. In support, D.S.’s parents argue that an aide is required for
D.S. to be able to participate in services equal to that afforded others, i.e., a full
instructional day. ECF No. 13 at 19. Conversely, the Defendant requests that the Court
affirm the IHO’s finding that D.S. does not qualify for a personal aide. In support, the
Defendant argues that there is insufficient evidence that the lack of a one-to-one aide
adversely affects D.S.’s educational performance, and that D.S. lost any educational
opportunities as a result.
a. IHO’s Decision
In finding that the Defendant did not violate the IDEA by not providing D.S. with a
one-to-one aide, the IHO held that “[a]lthough the student could have benefitted from an
aide[,] . . . there was insufficient evidence to demonstrate that he required a one-on-one
aide to benefit from his first grade education.” ECF No. 12 at 75. Evidence presented at
the hearing reflects that the BOE has consistently provided aides that work with D.S.
ECF No. 12 at 44. The IHO further found that “it should be the decision of [the IEP
team] as to whether the student receives a one-on-one aide going forward.” ECF No. 12
at 75. Based upon these findings of fact and conclusions of law, the IHO found that the
Defendant did not violate the IDEA and/or West Virginia Policy 2419 by failing to provide
D.S. with a one-to-one aide. ECF No. 12 at 77.
b. Applicable Law
The Supreme Court has held that, to satisfy the free and appropriate public
education requirement, “a school must offer an IEP reasonably calculated to enable a

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child to make progress appropriate in light of the child’s circumstances.” Endrew F. v.
Douglas Co. Sch. Sist. R-1, 137 S. Ct. 988, 999 (2017). The Supreme Court continued
to say that, although children with disabilities may not always attain grade-level
advancement, the IDEA “demands more” than “de minimis progress from year to year.”
Id.
Although

the

case

law on

D.S.’s

specific

disabilities,

and

therefore,

accommodations required under IDEA is limited, there is some guiding precedent. In
Cedar Rapids Community School District v. Garret F., the Supreme Court found that a
one-on-one aide was appropriate for a quadriplegic, ventilator-dependent student. 526
U.S. 66 (1999). In so holding, the Supreme Court stated that the IDEA is intended to
“enable a disabled child to remain in school during the day” so to provide the student
with “meaningful access to education.” Id. at 73.
c. Analysis
Here, the IHO found that, although D.S. could have benefitted from a one-to-one
aide, there was not sufficient evidence to show that one was required. ECF No. 12 at
39. The Plaintiffs argue that, like in Garret, without a one-on-one aide, “D.S.’s access
to public school is not meaningful” because “he spends a minimum of 40 minutes a day
out of the classroom just for blood sugar checks.” ECF No. 13 at 17. However, D.S.’s
circumstances are distinguishable from the child in Garret. In Garret, the child would
not have been able to attend school at all without an aide.
Moreover, an IEP must only be “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” The evidence presented
indicates that D.S. is making significantly more than de minimis progress, even in the

19

absence of an aide. For example, D.S.’s kindergarten teacher testified that she found
that D.S. was meeting the standards of the West Virginia Department of Education. It
further appears that D.S. does not require an aid for medical reasons because D.S.
attends a school with a full-time nurse. ECF No. 12 at 43. In Kindergarten, D.S.’s
teacher and classroom aide were both able to identify when D.S. was experiencing
problems with his blood sugar. Therefore, so long as educational staff is appropriately
trained, a one-on-one aide should not be necessary for monitoring and identifying signs
of low blood sugar.
Finally, the Court emphasizes that, “[a]ny review of an IEP [by the Court] must
appreciate that the question is whether the IEP is reasonable, not whether the court
regards it as ideal.” Endrew, 137 S. Ct. at 999. Because there are staff members who
can provide for D.S. medically and there were no known adverse effects on his
education due to the absence of an aide, the Court will not substitute its judgement for
that of the IHO and IEP team.
d. Conclusion
Therefore, the Court affirms the IHO’s determination that the Defendant did not
violate the IDEA or West Virginia Policy 2419 by failing to provide a one-on-one aide.
Accordingly, with respect to this issue, the Plaintiffs’ motion for summary judgment is
DENIED and Defendant’s motion for summary judgment is GRANTED.
6. D.S.’s Eligibility for Specially Designed Instruction in Reading
Finally, the Plaintiffs move the Court to reverse the IHO’s finding that D.S. does
not require specially designed instruction in reading. The IHO declined to address this

20

issue because “[t]his issue was not listed on the due process request nor was there any
motion to amend the complaint before or during the hearing to add the issue.”
a. Applicable Law
A school provides a FAPE by developing an IEP for each disabled child. 137 S.
Ct. at 999 (2017). IEPs “must contain statements concerning a disabled child’s level of
functioning, set forth measurable annual achievement goals, describe the services to be
provided, and establish objective criteria for evaluating the child’s progress.” MM ex rel.
DM v. School Dist., 303 F.3d 523, 526-27 (4th Cir. 2002); see 20 U.S.C. § 1414(d)(1)(A)
(2019). An IEP is sufficient if it is “reasonably calculated to enable the child to receive
educational benefits.” Board of Educ. v. Rowley, 458 U.S. 207, 102 S. Ct. 3034 (1982).
b. Analysis
In her decision, the IHO did not address the issue of whether D.S. has a specific
learning disability in reading. ECF No. 12. One month after the hearing, but before the
IHO issued her decision, the Defendant implemented an IEP that did not list the D.S. as
Learning Disabled in reading, as suspected by the Plaintiffs and Dr. Kay. ECF No. 13 at
16.

While Dr. Kay found that D.S. has a reading disability, initially, the school

psychologist rejected Dr. Kay’s finding because D.S. had not yet been exposed to first
grade curricula. Id. After beginning first grade, the school recognized that D.S. required
assistance in reading. Id. As a result, the Defendant placed D.S. in Title I reading, a
program where D.S. receives additional reading instruction in a small group. There is a
lack of evidence with respect to whether the Title I reading program has improved D.S.’s
reading abilities.

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Accordingly, at this point, the Court declines to substitute its judgment for that of
D.S.’s educators and IEP team. See Springer, 134 F.3d at 666 (holding that “courts
lack the specialized knowledge and experience necessary to resolve persistent and
difficult questions of educational policy”). The IDEA “recognizes that children change
over time,” and “affirmatively requires school districts to create and analyze new
information.” Schaffer, 554 F.3d at 476. Therefore, this issue is best addressed with
D.S.’s IEP team where all parties can analyze any new information presented by D.S.’s
participation in Title I reading.
c. Conclusion
For these reasons, the IHO’s absence of a finding that D.S. qualifies for special
instruction in reading is affirmed.

Accordingly, the Plaintiffs’ motion for summary

judgment with respect to specially designed instruction in reading is DENIED.
C. Conclusion
For the aforementioned reasons, the Court ORDERS that the Motions for
Summary Judgment [ECF Nos. 13, 15] be GRANTED IN PART and DENIED IN PART.
The Court further ORDERS that the IHO’s decision be AFFIRMED.
IV. MOTION FOR COSTS AND ATTORNEY FEES
Finally, Plaintiffs filed a motion for costs and attorney fees. ECF No. 13.
A. Applicable Legal Standard
Under Federal Rule of Civil Procedure 54(d), costs, other than attorney’s fees,
should be awarded to the prevailing party after judgment. The IDEA provides that “the
court, in its discretion, may award reasonable attorneys’ fees as part of the costs (I) to a
prevailing party who is the parent of a child with a disability . . . ” 20 U.S.C. § 1415(i)(3)

22

(2019). A prevailing party is one who receives “actual relief on the merits of his claim
[that] materially alters the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506
U.S. 103, 111-12 (1992). A party is “prevailing” where it can “point to a resolution of the
dispute which changes the legal relationship between itself and the defendant.” Tex.
State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989).

If

attorney’s fees are awarded, those fees may be reduced if the prevailing party has
unreasonably protracted the final resolution of the controversy.

20 U.S.C. §

1415(i)(3)(F)-(G).
B. Analysis
Here, the Plaintiffs are not technically the prevailing party because the legal
relationship between the parties did not change as a result of the due process hearing
nor the appeal. At the time the IHO’s decision was entered, the Defendant had already
found that D.S. was eligible for special education services, which is the root of issues in
the instant case.

However, the Defendant designated D.S. as eligible for special

education services after the due process hearing. At that point, the Plaintiffs’ attorney
had already expended a significant number of hours on this case.

Nevertheless,

because the Plaintiffs did not prevail on appeal, the Court finds that the appropriate
amount of attorney’s fees are those to compensate the Plaintiffs’ attorney up until the
Plaintiffs’ appeal of the due process decision.
C. Conclusion
Accordingly, the Plaintiffs’ Motion for Attorney Fees [ECF No. 13] is GRANTED
IN PART.

The Court will award attorney’s fees for the hours worked by Plaintiffs’

23

counsel up until the appeal was filed. Plaintiffs’ counsel is DIRECTED to file a separate
motion for attorney’s fees addressing the amount and reasonableness of those fees.
V. Conclusion
For the reasons provided herein, the Plaintiffs’ Motion for Summary Judgment,
Additional Evidence, and Attorney Fees is GRANTED IN PART and DENIED IN PART.
The Defendant’s Motion for Summary Judgment [ECF No. 15] is GRANTED IN PART
and DENIED IN PART.

The IHO’s decision is AFFIRMED.

Plaintiffs’ counsel is

DIRECTED to file a separate motion addressing the amount and reasonableness of any
attorney’s fees sought on or before July 2, 2019. Defense counsel is directed to file
any response to the motion on or before July 9, 2019.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
herein.
DATED: June 18, 2019

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