The opinion of the court was delivered by: James M. Moody United States District Judge
Pending is the motion for summary judgment filed by Separate Defendant Arkansas Department of Education. (Docket # 20). Plaintiffs have responded, Defendant has replied and Plaintiffs have filed a rebuttal to Defendant's reply. For the reasons set forth herein, the motion is granted in part and denied in part.
Plaintiff, Calvin Ray Allen, Jr, ("the student") was a seventeen year old student at Altheimer Unified School District at the time of the facts giving rise to this lawsuit. Plaintiffs state that the student is an asthmatic with mild mental retardation, attention deficit disorder, oppositional defiant disorder and speech impairment and was disabled as defined in the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et. seq.
On January 8, 2003 the Arkansas Department of Education ("ADE") received two requests for due process hearings from the student's mother, Louise Bailey. One request was for an Expedited Due Process Hearing, assigned case number EH-03-03, the other request was for a Regular Due Process Hearing, assigned case number H-03-17. The expedited hearing was held on January 17, 2003. On January 20, 2003 the Hearing Officer issued a decision placing the student in a self contained special education class pending the hearing and decision on the parent's regular hearing request.
Altheimer held a programming conference on January 24, 2003 without the student's parent. Plaintiffs assert that the conference was not pursuant to proper notice and was not conducted properly or to completion pursuant to the Individuals with Disabilities Education Act. Barbara Johnson, Compliance Specialist for the Dispute Resolution Section of the Special Education Unit of ADE, contacted the school district on January 29, 2003 to inform it that there were a number of problems with the individualized education program ("IEP") developed at the January 24, 2003 conference, and there was no documentation to show that the parent had been notified of the conference. Ms. Johnson informed the school that a new conference would have to be held regarding the IEP with proper notification to the parent.
A hearing on the student's regular due process hearing request was held on January 30-31, 2003. The hearing officer issued a decision on February 27, 2003 requiring the school district to conduct several evaluations of the student, to provide copies of all evaluations and reports to the parent, to provide all services as recommended by the evaluators, including residential placement, to provide notice of all conferences to the parent and to provide an opportunity for the parent to review and copy records of the student. Plaintiffs claim that the hearing officer's decision also required the school district to: (1) afford the parent an opportunity to examine and copy records; (2) automatically give the parent a copy of every individualized education plan, every evaluation done and every evaluation team report on the student; (3) convene all IEP meetings and evaluation conferences with personnel present who can interpret the evaluations and are specialists in the areas of disabilities; provide the student with a complete independent evaluation which complies with the the ADE's Program Standards and Eligibility Criteria for Special Education, Speech or Language Impairment; (4) provide the child with the recommended speech and language services, and with yearly independent speech/language evaluations, for as long as these services are considered necessary; (5) provide that the speech-language pathologist shall be a member of the student's IEP team for as long as the student is in need of these services; (6) immediately arrange for a complete neuropsychological evaluation of the student; (7) develop a behavior plan in conjunction with the State Coordinator for children with Serious Emotional Disturbances, and the child's independent evaluators; (8) give the parent written notice of any proposed changes, and options to the proposed change prior to any change or conference, sufficient in time for parent to arrange attendance by a professional of her choice; (9) provide psychological services as recommended by independent evaluators; (10) provide whatever residential educational placement is recommended by the independent evaluators; (11) provide the student with compensatory education for a maximum of eight school years; (12) reimburse the parent for all prior testing and evaluations paid by the parent; (13) provide the Juvenile Detention Facility with the results of evaluations; the last IEP and the most current; any manifestation determination and functional behavior analysis and the current behavior plan; supply the juvenile detention center with the due process file and provide notice to the parent that the records have been transferred; (14) provide a stay put placement which is all special education classes at Altheimer High School; (15) not use the juvenile justice system to avoid following due process procedures, but to follow the procedures set out in the Individuals with Disabilities Education Act; and (16) submit a hearing decision status report to the ADE every 30 days, on a form provided by the ADE.
The student turned 18 years old on March 16, 2003. ADE contends that the school district was required to obtain the student's consent prior to conducting an evaluation of him following this date. Plaintiffs dispute that this consent was required.
On March 27, 2003 the ADE received the first status report from the school district. On April 17, 2003, the school district conducted a conference with the student to discuss the necessary evaluations. The parent did not attend this conference and the student would not give his consent to be evaluated. Plaintiffs contend that this conference was not convened with proper notice to the parent or student as required by the hearing officer's ruling.
On May 23, 2003 ADE received notice that the student consented to evaluations. The ADE was notified on May 30, 2003 that the speech language evaluation was scheduled and that the school district had made contact with BridgeWay for the BEAM evaluation. An Evaluation/Programming Conference was held on September 16, 2003 with the school district, parent and student. The school district contends that the student rejected the school district's offer of services and the conference was set to be reconvened at a later time after placement options could be reviewed. Plaintiffs dispute that the student rejected the school district's offer of services and further state that the school district did not offer the stay put placement to the student.
The ADE sent the school district a letter on September 24, 2003 summarizing the information that ADE had received regarding the school district's attempt to comply with the hearing officer's order, notifying the school district that it had not yet achieved compliance with the order and setting a deadline of October 24, 2003 to do so. The school district requested additional time to comply.
On January 5, 2004, ADE had not received copies of all evaluation reports or other information requested to demonstrate compliance with the hearing officer's order. The ADE scheduled a meeting on January 13, 2004 to discuss compliance and requested that the school district bring copies of all evaluation reports. A meeting was held on January 13, 2004 at ADE with John Bynum, Barbara Johnson, Lynn Wood, Dr. Thomas, Maureen Bradshaw and Bronwyn Palmer at which time the ADE found the information provided by the school district insufficient.
On January 30, 2004, Marcia Harding, Associate Director of Special Education, notified Dr. William Thomas, the school district's Chief Operating Officer, that the district had failed to comply with the hearing officer's decision and that the school district had to immediately comply and take corrective actions by February 24, 2004.
An evaluation/ programming conference for the student was attempted on February 19, 2004 but discussion broke down before the conference was completed. Plaintiffs assert that the conference was held without notice required by the hearing officer and that the district and ADE personnel in attendance became argumentative. By letter dated March 16, 2004, ADE notified the school district that failure to resolve the student's case as set forth in the ...