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Paris School District v. A.H.

United States District Court, W.D. Arkansas, Fort Smith Division

April 3, 2017

PARIS SCHOOL DISTRICT PLAINTIFF
v.
A.H., by and through her parent CYNDI HARTER DEFENDANTS

          ORDER AND OPINION

          P.K. HOLMES, III, CHIEF U.S. DISTRICT JUDGE.

         Before the Court is Paris School District's (PSD) motion for summary judgment (Doc. 26), brief in support of its motion (Doc. 27), and a statement of facts in support of its motion (Doc. 28). PSD also submitted the administrative record on the docket. (Docs. 29-40). Defendants filed a response in opposition to summary judgment (Doc. 41), a brief in support of their response (Doc. 42), and a statement of facts to which they contend there is a dispute of material fact (Doc. 43). PSD filed a reply to Defendants' opposition (Doc. 44). Defendants, as a party prevailing in part at the state administrative level, made a demand for reasonable attorney's fees. (Doc. 6, ¶¶ 87-96). As originally filed and up through all of the filings described above, this case had involved PSD's lawsuit seeking reversal of the Hearing Officer's final order and opinion, as well as counterclaims asserted by Defendants. On July 13, 2016, the Court severed the non-IDEA claims from this lawsuit. (Doc. 45). For the reasons set forth below, PSD's motion for summary judgment (Doc. 26) on the claims in this case is GRANTED IN PART and DENIED IN PART.

         I. Background

         On November 13, 2013, A.H. first enrolled in the PSD as a fourth grader. (Doc. 6-1, p. 3). While enrolled at PSD, A.H. received special education services for her diagnosis of autism. (Id.). A.H. previously attended school in Memphis, Tennessee. Upon moving into the area covered by the PSD A.H. was enrolled at the “virtual academy” of the Memphis school, and then a private school within the PSD. (Id.).

         Upon enrolling A.H. at PSD, Ms. Harter provided the following to PSD: (1) a May 18, 2012 neuropsychological evaluation conducted at Memphis Neuropsychology, LLC that contained 16 specific recommendations; (2) a September 9, 2013 speech language evaluation conducted by Pediatrics Plus in Russellville, Arkansas; (3) a September 13, 2013 occupational therapy evaluation conducted at Pediatrics Plus, complete with four treatment goals and ten objectives that were considered appropriate treatment for A.H.'s deficits; (4) a September 19, 2013 physical therapy evaluation conducted by Pediatrics Plus that concluded that A.H. qualified for physical therapy to improve her participation in activities at home, in the community, and at school; (5) a November 6, 2013 letter from A.H.'s treating neurologist recommending that A.H. receive homebound services and that she be slowly integrated into a school setting at PSD; and (6) an assessment and behavior support plan developed by an independent consultant between October 2011 and August 2012 when A.H. was attending school in Memphis. (Id., pp. 5-6). A team first convened on November 13, 2013 to develop an Individualized Education Program (IEP) for A.H. (Doc. 36, p. 30). In attendance were Ms. Harter, a special education teacher, a general education teacher, the director of special education, and two occupational therapists. (Id.). The IEP team decided to initially educate A.H. on a shortened school day in a regular classroom with special education services being provided in a resource room. (Doc. 6-1, pp. 6-7). The IEP provided for related services including occupational therapy, physical therapy, and speech therapy. (Id., p. 7). PSD did not collect any evaluative data prior to developing the IEP, but presumably they were informed by the multiple assessments and opinions that Ms. Harter provided. (Id.).

         The IEP team met again on December 13, 2014 to revise the IEP “to include a behavior management plan devised by the director of special education and to define the shortened school day that [A.H.] would attend.” (Id.). The documentation shows that there were “other factors which needed consideration.” (Id.). Allegedly, a behavior support plan was put in place at the December 13 meeting while the school worked to develop another one.[1] On December 20, 2013, PSD submitted a request for a behavior support specialist[2] to assist in the development of a behavior support plan. (Id., p. 8). The specialist then came to PSD to observe A.H. five times between January 30, 2014 and April 7, 2014. (Id.). After these observations, the specialist developed a behavior support plan which she provided to PSD on April 28, 2014. (Id.). That behavior plan addressed the issue of “noncompliance, ” but did not address any of the other behaviors reported by previous schools, reported by Ms. Harter, or those contained in evaluations. (Id.). The behavior plan generally lumped all of A.H.'s behaviors into the category “noncompliance.” (Id., p. 9). This, and other facts in the record summarized below, show the lack of a baseline understanding of autism, which would have resulted in a more nuanced analysis. (Id.).

         A.H.'s speech therapist testified that she provided services as outlined in A.H.'s IEP, although progress was not documented on the IEP. (Id., p. 13). A.H. received physical therapy in thirteen sessions from November 26, 2013 to March 17, 2014, although the therapists' notes do not reflect any progress towards the goals. (Id.). As per the IEP developed in November 2013, A.H. was supposed to be receiving 60 minutes of physical therapy per week. (Doc. 36, p. 4). On March 20, 2014, the physical therapist indicated that she received an email from PSD's special education coordinator, indicating that the IEP team had met and made the decision that physical therapy would be discontinued. (Doc. 6-1, p. 13). There was no evaluation done prior to discontinuing these services, and there was not a physical therapist present at the meeting where the decision was made to discontinue physical therapy. (Id.). The special education coordinator testified that the reason for this decision was that A.H. fought the physical therapist on “many occasions” and that “the physical therapist pretty much decided to end services because there was no progress.” (Id., pp. 13-14). However the notes from the physical therapist recording summaries of the sessions held do not reflect this problem. (Id., p. 14). A.H.'s occupational therapist was present at the initial IEP meeting in November 2013, and was therefore part of the decision whereby A.H. was prescribed 60 minutes of occupational therapy in one session per week.[3] (Doc. 36, p. 4). The therapy notes indicate twenty-three occupational therapy treatment sessions between November 21, 2013 and May 23, 2014. (Doc. 6-1, p. 14).

         The Hearing Officer reached the following conclusions about A.H.'s education at PSD during the 2013-2014 school year: the district failed to timely develop a behavior management plan, and when that plan was developed it was deficient because it identified A.H.'s behaviors only as “noncompliant;” A.H.'s teachers were not adequately trained; the occupational therapy and speech therapy were adequate; the physical therapy was deficient and was discontinued without an appropriate evaluation; and A.H. was educated in the least restrictive environment. (Id., pp. 14-15).

         The IEP team convened on May 26, 2014 to evaluate A.H.'s performance during the fourth grade and develop an IEP for the upcoming fifth grade year. (Id., p. 15). At that meeting it was determined that in the upcoming school year A.H. would receive 60 minutes of occupational therapy, 60 minutes of speech therapy, 700 minutes in the resource room, and the remainder of the time in the general education setting. (Id.). Another IEP team meeting was held on August 12, 2014, at which time the IEP team decided to place A.H. in the Alternative Learning Environment (ALE) instead of in the general fifth grade classroom setting. (Id., p. 19). In attendance at this meeting were a counselor and co-therapist social worker, and they indicated that they were concerned about A.H. attending mainstream classes.[4] (Id.). Resulting from the treatment provided to A.H. by the Valley Behavioral group, individuals from that group changed her diagnosis to include “intermittent explosive disorder.” (Id., p. 18). Ms. Harter expressed that she thought this change in diagnosis was in part for insurance reasons, and she disagreed with the recommendations by the Valley Behavioral group. (Id.). There is some evidence that Ms. Harter opposed placing A.H. at ALE, but that is where the IEP team determined that A.H. would be placed. (Id., p. 20). Based on this opposition, the Hearing Officer concluded that the placement agreed to during the May 2014 IEP meeting was the “last fully agreed to placement.” (Id.).

         A.H. began attending ALE for her fifth grade year. (Id., p. 21). The ALE appears to have operated like a one-room-schoolhouse, with nine total students and one teacher. (Id.). Three of the students, including A.H., were from the middle school and six of the students were from the high school. (Id.). There was one teacher, Coach Trey Prieur, who was not a “highly qualified” teacher in any of the core academic subject areas. (Id.). The ALE classroom did not meet any of the criteria of the Arkansas Department of Education (ADE) for educating A.H. (Id.). The ALE Director even acknowledged that criteria and requirements were not met, and that in effect ALE was not an appropriate placement for A.H. (Id., p. 22). Furthermore, Coach Prieur and the ALE Director were not involved in the decision to place A.H. at ALE. (Id., p. 21). PSD did not provide the occupational and speech therapy services provided for in the IEP, because PSD had not yet entered into a contract with a qualified provider. (Id., p. 22). The Hearing Officer concluded that because of all of these breakdowns, PSD had failed to provide a Free Appropriate Public Education (FAPE) to A.H. during the 2014-2015 school year. (Id., pp. 22-23).

         Ms. Harter's relationship with PSD deteriorated, and she initiated a separate due process hearing to take up the issue of A.H.'s placement in ALE. (Id., pp. 23-24). PSD argued that the last agreed placement was the placement in ALE. (Id.). Ms. Harter, however, thought that the last agreed placement was the one agreed to at the IEP meeting in May 2014, at which time it was agreed that A.H. would be placed in the regular school setting with supplemental special education services. (Id., p. 24). PSD's superintendent claimed that in part because of Ms. Harter's demands that A.H. be moved out of ALE and in part because of an incident where A.H. allegedly made a death threat while in ALE, PSD was justified in terminating special education services. (Id.). However, there was “no testimony nor evidence presented that [A.H.'s] acting out behaviors were directed towards another student.” (Id.). And the teacher who witnessed the alleged death threat testified that they did not take it as a viable threat. (Id.). The Hearing Officer concluded that “at this point [] it would have been [PSD's] responsibility of the [ADE's] regulations to ask for a due process hearing to resolve the issue of whether or not [A.H.] needed special education services.” (Id.).

         II. Legal Standard

         The IDEA requires every local educational agency (“LEA”) receiving federal funds to implement policies “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE] by such agenc[y].” B.S. ex rel. K.S. v. Anoka Hennepin Public Schools, 799 F.3d 1217, 1219 (8th Cir. 2015) (quoting 20 U.S.C. § 1415(a)). A party challenging whether an LEA provided FAPE has the right to file an administrative complaint and receive an impartial due process hearing before a local or state agency. 20 U.S.C. § 1415(b)(6). The IDEA also allows for a party to seek a review of the local or state due-process hearing in federal district court. 20 U.S.C. § 1415(i)(2)(A) and (3)(A). In reviewing a hearing officer's decision, the IDEA provides that the district court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415.

         In handing such a review, a district court serves a quasi-appellate function while remaining a court of original jurisdiction. See Kirkpatrick v. Lenoir Cnty Bd. of Educ., 216 F.3d 380, 387 (4th Cir. 2000) (“[W]hile a federal district court may review a state review officer's decision and even defer to that decision, the federal district court does not sit as an appellate court. Federal district courts are courts of limited, original jurisdiction with no power to sit as appellate tribunals over state court or administrative proceedings.”); Spiegler v. D.C., 866 F.2d 461, 465-66 (D.C. Cir. 1989) (holding that the quasi-appellate role of the district court in an action brought under the [IDEA] does not differ in important ways from an administrative appeal for purposes of borrowing an appropriate statute of limitations); Adler by Adler v. Educ. Dep't of State of N.Y., 760 F.2d 454, 458-59 (2d Cir. 1985) (same). The Eighth Circuit has explained the nature of a district court's function in handling an IDEA claim as:

The district court must . . . review the administrative record, hear additional evidence if requested, and “basing its decision on the preponderance of the evidence, . . . grant such relief as [it] determines is appropriate.” Id. at § 1415(i)(2)(C). In deciding whether the IDEA has been violated, the district court must “independently determine whether the child [in question] has received a FAPE.” CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 636 (8th Cir. 2003), cert. denied, 540 U.S. 984, 124 S.Ct. 478, 157 L.Ed.2d 375 (2003). In doing so, the court must also give “‘due weight' to agency decision-making.” Id. (quoting Independent Sch. Dist. No. 283 v. S.D. ex rel. J.D., 88 F.3d 556, 561 (8th Cir. 1996)). This somewhat “unusual” standard of review is less deferential than the substantial evidence standard commonly applied in federal administrative law. Dist. No. 283, 88 F.3d at 561. But we have recognized that this limited grant of deference-“due weight”-is appropriate in IDEA cases because the ALJ “had an opportunity to observe the demeanor of the witnesses and because a [district] court should not substitute its own notions of sound educational policy for those of the school authorities that [it] review[s].” CJN, 323 F.3d at 636 (internal quotation marks and citation omitted).

K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011).

         III. Discussion

         In reviewing whether any of PSD's actions amounted to a violation of the IDEA, the Court must employ a two prong analysis as outlined by the Eighth Circuit. The first inquiry is whether the school complied with the procedures set forth in the IDEA. K.E. ex rel. K.E, 647 F.3d at 804. Second, the court must decide whether the resulting IEP was “reasonably calculated to enable the child to receive educational benefit.” Id. (citations omitted). “If these requirements are met, the [school district] has complied with the obligations imposed by Congress and the courts can require no more.” Id. At the time that the Hearing Officer wrote his final opinion, the Eighth Circuit law to be applied was the standard that a student who “enjoyed more than what [the court] would consider ‘slight' or ‘de minimis' academic progress” was not denied an educational benefit. Id., at 810. At that time, there was a notable circuit split.[5] The Hearing Officer cited to some law from circuits that required more than the Eighth Circuit, so to the extent that the Hearing Officer relied on the authority cited, the Hearing Officer committed legal error during his review.[6] Since that time, the United States Supreme Court rejected the “merely more than de minimis” standard that had previously been the law of the Eighth Circuit. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 WL 1066260, 580 U.S.___ (2017).

         An IEP is “the centerpiece of the [IDEA's] education delivery system for disabled children.” Id., at *4, citing Honig v. Doe, 484 U.S. 305, 311 (1988). Through the development and implementation of an IEP, the school provides a FAPE that is “tailored to the unique needs of a particular child.” Endrew F., 2017 WL 1066260, at *4. An IEP is “not a form document” and must be “constructed only after careful consideration of the child's present levels of achievement, disability, and potential for growth.” Id., at *10. While there is no bright line rule defining what is required of a school, in Endrew F. the Court made it clear that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Id. (citations omitted). In defining what is “reasonably calculated” for a particular student, the Court acknowledged that this is a “fact-intensive exercise, ” and that it “will be informed not only by the expertise of school officials, but also by the input of the child's parents or guardians.” Id. For most students, “a FAPE will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade.” Id. at *11. But even where that is not feasible, an education still needs to be “appropriately ambitious in light of [the child's] circumstances.” Id.

         In comparing this standard to the “merely more than de minimis” test-previously the law of the Eighth Circuit-the Court held that “this standard is markedly more demanding.” Id. Writing for a unanimous Court, Chief Justice Roberts stated that “[i]t cannot be the case that the [IDEA] typically aims for grade level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id. Aiming “so low would be tantamount to sitting idly . . . awaiting the time when [students] were old enough to drop out.” Id. at *12 (citations and quotations omitted). But this standard does not require an ideal education. Id. at *10. It “should not be mistaken for an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Id. at *12 (citations and quotations omitted). The Court will apply the standard articulated by Endrew F., using the existing Eighth Circuit case law where it is still relevant.

         A. PSD's Assignment of Error to what the Hearing Officer Found as Inadequate Training of Staff for the 2013-2014 School Year.

         PSD assigns error to the Hearing Officer's conclusion that the PSD staff who provided services to A.H. in the 2013-2014 school year “were not adequately trained nor were they prepared to address all of [A.H's] behavioral and social needs.” (Doc. 27, pp. 13-14) (quoting Doc. 6-1, p. 15). To the extent set forth below, the Court agrees with PSD on this point, and reverses the finding of the Hearing Officer. In reaching this conclusion, the Hearing Officer relied on the testimony of A.H.'s fourth grade teachers, which the Hearing Officer viewed as “indicat[ing] that they did not understand the noncompliance exhibited by [A.H].” (Doc. 6-1, p. 9). The Hearing Officer similarly viewed the testimony of A.H.'s special education resource teacher. (Id., pp. 9-10). The Hearing Officer also noted that the principal stated that he personally did not know a lot about autism. (Id., p. 11). Further, the Hearing Officer found noteworthy that the school resource officer made the statement that he was “not a hundred percent sure exactly what autism is.” (Id. ...


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