Family seeks more than $3M from Henrico School Board, claims violation of federal special ed law

The Henrico County School Board has been served with a request for judicial review following a years-long dispute between school district staff members and the family of a student with disabilities.

The family, which is being represented by attorney Jason Krumbein, claims that its 10-year-old daughter was denied a “free appropriate public education” (FAPE), which school districts are required to provide to students with disabilities under federal law.

In the complaint, filed in the Henrico County Circuit Court in late March, the plaintiffs ask the court to reverse a hearing officer’s denial to place the student in a private school using public funds. They also ask the court to award $3 million in compensatory damages and $350,000 in punitive damages for the “pain, suffering, embarrassment and other emotional damages” that the child experienced before she withdrew from Henrico County Public Schools.

The girl, who is described as having average ability, performed below grade level for reading, spelling, phonological awareness and math because of her diagnosed disabilities including dyslexia, Attention-Deficit Hyperactivity Disorder and Auditory Processing Disorder, according to the complaint.

The girl, who is referred to as “AC” in court documents, was enrolled at Pinchbeck Elementary School in January 2019. In a Child Find meeting, school staff members identified symptoms associated with ADHD, according to court records. (Child Find is a mandate under the  Individuals with Disabilities Education Act which requires all school districts to identify and evaluate all children with disabilities.)

After an initial refusal, HCPS provided the girl with an an individualized education plan, or IEP, which is a legal document under federal law that is developed for every public school student in special education. The document is required by the federal Individuals with Disabilities Education Act.

The parents claim that the IEP was inadequate for dozens of reasons laid out in the request for judicial review.

After schools shut down in March of 2020 due to COVID-19, IEP services were not delivered for the remainder of the school year, according to the plaintiffs. AC’s parents paid for private tutoring services, for which they are now seeking reimbursement through this legal proceeding.

According to the court filing, HCPS denied a request for an extended school year, claiming that AC was making progress.

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But the plaintiffs claim that HCPS continually engaged in intentional misrepresentation of AC’s performance scores by inflated her failing grades on tests and quizzes so it appeared she received passing grades and was making progress.

AC was evaluated by the Children’s Hospital at Virginia Commonwealth University. The test results showed “unacceptable” results, the plaintiffs alleged, so the parents funded a summer camp at a private school specializing in language disabilities.

The parents and school staffers engaged in several meetings over the years often marked by disagreements.

In the fall of 2020, AC showed evidence of self-injurious behaviors due to anxiety brought on by the school division, according to the complaint.

The girl’s parents requested that she be placed in a private day school for students with language disabilities, but HCPS recommended public school.

Consistent with federal law, school district IEP teams make private day school placement decisions. In Virginia, those out-of-school placements are funded by the Children’s Services Act program.

Lawmakers frustrated with the high cost of the program prompted the Joint Legislative Audit and Review Commission to conduct a study in 2019, which found that the Commonwealth’s funding formula doesn’t incentivize public school divisions to develop the ability to serve higher need students. Because state law doesn’t permit CSA funds to be spent on public school services, divisions can’t access those funds to provide services that could keep children in public school. School divisions have local, state and federal funding to pay for services to keep students in schools, but those funds have decreased.

After back-and-forth with the school district, AC’s parents eventually decided to withdraw her from HCPS in March 2021 due to what they described as a refusal by HCPS to provide their daughter with FAPE. Her parents are paying her tuition at a private school in Richmond geared toward students who are challenged by dyslexia and related learning differences.

The parents said that AC is thriving at The New Community School and that many of her negative behaviors have dissipated or disappeared.

They filed for a due process hearing for denial of FAPE and requested reimbursement for the out-of-pocket expenses for education services AC has received outside of HCPS.

The hearing officer ultimately ruled that AC and her parents were the prevailing parties, and he was convinced that HCPS didn’t comply with the requirements of IDEA and failed to provide AC with FAPE, according to court documents. However, the hearing officer denied the parents’ requests for reimbursement for AC’s educational expenses that they had paid.

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In the request for judicial review, the parents argue that the hearing officer’s decision to deny the request for compensation was contrary to the law and the evidence for compensatory services.

They claim that HCPS discriminated against AC solely by reason of her disability, therefore violating federal law and engaging in bad faith or gross misjudgement.

The plaintiffs request the judge to reverse the hearing officer’s denial and reimburse the parents for the tuition they have paid to the private school. They also ask the court to award $3 million in compensatory damages and $350,000 in punitive damages for the “pain, suffering, embarrassment and other emotional damages that AC has experienced” prior to being enrolled in the private school.

A trial by jury was demanded through the complaint, though that is a standard demand in many lawsuits and similar proceedings. There’s a high likelihood that a decision in this case will be made before it reaches a jury, according to Krumbein.

“The key piece is simply that the school system is not able to provide an adequate education for this particular child, and the child needs to be in a different environment that Henrico can’t provide,” Krumbein told the Citizen.

A HCPS spokeswoman declined to comment, saying that HCPS does not comment on ongoing litigation.

“Whether I do it or somebody else does, this needs to be dealt with — not just here individually, but on a larger scale nationwide,” Krumbein said. “The education of our children is absolutely critical. Putting our children in an insufficient education system has national security problems.”

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Anna Bryson is the Henrico Citizen’s education reporter and a Report for America corps member. Make a tax-deductible donation to support her work, and RFA will match it dollar for dollar. Sign up here for her free weekly education newsletter.