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Xykirra C. v. School District of Philadelphia

United States District Court, Third Circuit

May 8, 2013

XYKIRRA C., a minor, Individually and By and Through Her Parent, STEPHANIE C. Plaintiffs,
v.
THE SCHOOL DISTRICT OF PHILADELPHIA Defendant.

MEMORANDUM

RONALD L. BUCKWALTER, Senior District Judge.

Currently pending before the Court are the Cross-Motions for Judgment on the Administrative Record of Plaintiffs Xykirra C. and her Mother Stephanie C. and Defendant School District of Philadelphia ("School District" or "District"). For the following reasons, the School District's Motion is granted and Plaintiffs' Motion is denied.

I. FACTUAL AND PROCEDURAL BACKGROUND[1]

Plaintiff Xykirra C. is a fourteen year old girl who resides with her mother, Plaintiff Stephanie C. In March 2010, Xykirra witnessed an incident in which her mother became involved in an altercation with a police officer. (H.O.D. 3.) As a result of this altercation, Xykirra's mother was placed under arrest and confined. (Id.) Following this incident, Xykirra's psychiatrist recommended she remain home due to reported anxiety regarding contact with police and returning to school. (Id. at 4.) In March, 2010, the School District approved Xykirra for homebound services. (Id.) These services continued based on an administrative decision by the District until the end of the 2009-10 school year. (Id.)

Prior to the 2010-11 school year, the District's school nurse in charge of approving homebound services reviewed a request by Xykirra's psychiatrist to extend homebound services. (Id. at 5.) In September and December of 2010, the District renewed this approval, though it is normally unusual for it to do so. (Id.) The District's nurse attempted to obtain further information from the behavioral health agency that provided psychotherapy to Xykirra. (Id. at 7.) However, from the beginning of homebound instruction, Xykirra's mother restricted the District nurse's access to therapists and the psychiatrist by insisting that any conversation with the therapists be conducted only with the parent's presence. (Id.) When such conversation occurred, Xykirra's mother interfered with the District nurse's ability to discuss Xykirra's return to school with the therapist. (Id.) While receiving homebound services, Xykirra was never evaluated for special education. (Id. at 8.)

In February of 2011, Xykirra's mother submitted a physician referral for continued homebound services. (Id. at 9.) The treating psychiatrist recommended homebound services due to Xykirra's anxiety. (Id..) The District's nurse believed that Xykirra was capable of returning to school with supports and accommodations. (Id. at 10.) On March 31, 2011, the District denied the request for additional homebound services and terminated current homebound services because there was not enough information in the doctor's referral to indicate (1) why Xykirra had not progressed sufficiently under the psychiatrist's care to be able to return to school for at least partial days and (2) because the information available did not demonstrate a plan for Xykirra's return. (Id. at 11.) The District planned for a transition of Xykirra back to school, including supports in school, evaluation, and a meeting after her return. (Id. at 12.) Xykirra's mother was not consulted in preparation of the transition. (Id. at 13.) District personnel advised Xykirra's mother that there was no appeal from the District's denial of homebound services. (Id. at 14.)

Xykirra's mother continued to keep her daughter home from school from March 31, 2011 until September 6, 2011, when she enrolled Xykirra in a cyber charter school. (Id. at 15.) Xykirra did not receive any educational services during this period. (Id.)

In January of 2011, the District's nurse consulted with personnel from the Department of Education and had been advised to consider evaluation of Xykirra due to her lengthy absence from school. (Id. at 17.) The District issued a "permission to evaluate" form to Xykirra's mother, who completed it in April of 2011. (Id.) It was apparent that a medical health professional had written some of the responses for Xykirra's mother. (Id.) The District issued its evaluation report in May of 2011. (Id.) The District initiated truancy proceedings against Xykirra, and the court ordered her to return to school. (Id. at 16.)

In reaching the conclusions in its evaluation report, the District relied upon its psychologist, who is both certified as a school psychologist and licensed as a clinical psychologist in Pennsylvania. (Id. at 18.) The school's psychologist reviewed Xykirra's files and records. (Id. at 19.) Though there was no classroom observation, as Xykirra was not in school, the District's psychologist did not believe this reduced the validity of the evaluation. The psychologist spoke with a former teacher, the special education liaison, and with Xykirra's mother. (Id.) Xykirra's mother filled out a developmental history form with the assistance of a person from the behavioral health agency treating Xykirra. (Id.) This person wrote part of Xykirra's mother's answers on the form. (Id.) In August of 2011, the school psychologist reviewed some, but not all of the referral forms that had been sent to the District in support of Xykirra's mother's requests for homebound instruction. (Id. at 20.) The school psychologist did not speak to or obtain information from Xykirra's homebound instructors, though some effort was made during the summer of 2011 to obtain recommendations from one of the homebound instructors. (Id. at 21.) Specifically, the evaluator asked Xykirra's mother to submit a behavior rating form to one of the homebound instructors, but she declined to do so. (Id. at 21.)

The school psychologist conducted a single lengthy evaluation at Xykirra's home. (Id. at 22.) While standardized procedures were followed for testing, the environment was not appropriate for testing, as there were numerous distractions that could have reduced Xykirra's performance on cognitive and achievement tests. (Id.) The school psychologist solicited a behavior rating inventory form from Xykirra, but her mother tried to fill out answers for her. (Id. at 23.) As a result, the returned inventory form was invalid as it was not filled in by Xykirra in the presence of her evaluator. (Id.) Xykirra's test performance demonstrated no significant discrepancy between her ability and her performance. (Id. at 24.) Her processing speed was a weakness, which was reflected in a lower score in math fluency, but this did not merit her identification as a child with a disability because it could be accommodated by allowing her extra time in regular education, which was recommended. (Id.) Xykirra's mother's behavior inventory did not disclose any emotional difficulties that would require identifying Xykirra as a child with a disability. (Id. at 25.)

Pursuant to a release requested on June 29, 2011 and signed by Xykirra's mother on July 8, 2011, District personnel were able to obtain a psychosocial evaluation from the behavioral health agency that provided treatment services to Xykirra. (Id. at 26.) This information was sought for the purpose of re-evaluation. (Id.) However, full documentation was not received until August of 2011, and the District's evaluator was given the impression that Xykirra's mother was sensitive to any communication that might exceed her permission, which was limited to reviews of records and did not include conversation with staff at the behavioral health agency. (Id.)

The psychosocial evaluation from the behavioral health agency did not support a need for homebound services. (Id. at 29.) The District's recommendation that Xykirra be given support in her transition back to school also concluded that she did not have emotional needs that would interfere with her learning. (Id. at 28.)

On December 13, 2011, Xykirra and her mother sought a due process hearing under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794 seeking compensatory education from March 10, 2010 through September 6, 2011. The subsequent hearing took place in two sessions on February 27, 2012 and March 30, 2012. In a written decision, the Hearing Officer found for the School District. In so finding, he reached three conclusions. First, he determined that the District should have initiated an evaluation earlier, in August of 2010, when it first received a request to extend Xykirra's homebound services. His second finding, however, was that this failure to evaluate in a timely fashion did not deprive Xykirra of a free appropriate public education ("FAPE"). This finding stemmed from the fact that (1) a preponderance of the evidence does not suggest Xykira's mother would have consented to evaluation in August of 2010 as she was affirmatively resisting the efforts of the District to communicate with the behavioral health agency providing psychiatric justification for the request for homebound services; (2) there is no indication by a preponderance of the evidence that Xykirra would have been found to suffer from a learning ...


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