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Albright v. Mountain Home School District

United States District Court, W.D. Arkansas, Harrison Division

July 5, 2017

JACQUIE ALBRIGHT, as Parent and Next Best Friend of CHILD DOE PLAINTIFF
v.
MOUNTAIN HOME SCHOOL DISTRICT; DEBBIE ATKINSON, Director of Special Education; and SUSANNE BELK, BCBA Consultant DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT COURT JUDGE.

         Currently before the Court are:

• Plaintiff Jacquie Albright's Brief Supporting IDEA Appeal (Doc. 49) from the Hearing Officer's Final Decision and Order (Doc. 72-1); and Defendants Mountain Home School District's (“the District”), Debbie Atkinson's, and Susanne Belk's Brief in Opposition (Doc. 53);
• Plaintiff's Motion to File Amended and Supplemental Complaint and Related Relief (Doc. 75) and Brief in Support (Doc. 76); and Defendants' Response in Opposition (Doc. 80);
• Plaintiff's Motion to Accept Response to Summary Judgment Out of Time (Doc. 84); and Defendants' Response in Opposition (Doc. 90);
• Plaintiff's Motion to File Pretrial Conference Information Sheet Out of Time (Doc. 93); Defendants' Response in Opposition (Doc. 94) and Supplement (Doc. 95); and Plaintiff's Response to Defendants' Opposition (Doc. 96);
• Defendants' Motion for Summary Judgment (Doc. 72), Statement of Undisputed Facts in Support (Doc. 73), and Brief in Support (Doc. 74); and Plaintiff's Response in Opposition (Doc. 81), Supplements (Docs. 82-85), Brief in Support (Doc. 86), Statement of Facts Precluding Summary Judgment (Doc. 87), and Response to Defendants' Statement of Material Facts (Doc. 88);
• Defendants' Combined Motion to Exclude Opinions of Dr. Howard Knoff and Brief in Support (Doc. 67); Plaintiff's Response in Opposition (Doc. 68) and Brief in Support (Doc. 69); and Defendants' Reply (Doc. 71);
• Defendants' Motion Requesting that the Court Disregard Plaintiff's Improperly Filed Reply (Doc. 97); and
• Defendants' four Motions in Limine and Briefs in Support (Docs. 98-104).

         For the reasons given below, the decision of the Hearing Officer is AFFIRMED; Plaintiff's Motion to File Amended and Supplemental Complaint and Related Relief (Doc. 75), Motion to Accept Response to Summary Judgment Out of Time (Doc. 84), and Motion to File Pretrial Conference Information Sheet Out of Time (Doc. 93) are DENIED; Defendants' Motion for Summary Judgment (Doc. 72) is GRANTED; and Defendants' Motion to Exclude Opinions of Dr. Howard Knoff (Doc. 67), Motion Requesting that the Court Disregard Plaintiff's Improperly Filed Reply (Doc. 97), and four Motions in Limine (Docs. 98, 99, 101, 103) are MOOT.

         I. BACKGROUND

         Ms. Albright is an employee of the District, and her daughter, Child Doe, is a student at the District. Child Doe has autism spectrum disorder, attention deficit hyperactivity disorder, and mild mental retardation. Under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., the District must provide Child Doe with a free appropriate public education (“FAPE”), id. at § 1412(a)(1), which includes special education and related services in conformity with an individualized education program (“IEP”), id. at § 1401(9)(D). The IDEA sets out a process by which teachers, school officials, and a child's parents should collaborate to draft an IEP that fits the child's unique needs. See Id. at § 1414(d)(1)(B).

         When a parent disagrees with other members of the IEP team over what the IEP should include, the parties may attempt to resolve the disagreement, either through a “preliminary meeting” or through mediation. Id. at §§ 1415(e), (f)(1)(B)(i). If unsuccessful, then the parent may file a complaint with the Arkansas Department of Education to initiate a “due process hearing.” See Id. at § 1415(f)(1)(A). Following the Hearing Officer's decision, the losing party may appeal it by filing a lawsuit in federal court. See Id. at § 1415(i)(2)(A). And that is what happened here.

         By now, a long history of bad blood has accumulated between Ms. Albright and the District concerning Child Doe's educational needs. The due process complaint that is the subject of the instant appeal, for example, was actually the third such complaint that Ms. Albright filed against the District; the previous two were settled in August 2012 and March 2014, respectively, before their due process hearings occurred. Ms. Albright also filed three more due process complaints against the District after the instant one. While it would probably be impossible to identify any single coup de gras for any remaining shreds of trust or good will between the parties, some strong contenders would likely be Ms. Albright's practice of concealing audio recorders in Child Doe's clothes at school, or the various reports that District personnel have filed with the Arkansas Department of Human Services and the local police department against Ms. Albright.

         The due process complaint that is the subject of the instant appeal concerns whether Child Doe was denied a FAPE between November 15, 2013 and October 17, 2014. The Hearing Officer issued his decision on October 29, 2015, finding that no such denial of a FAPE occurred. See Doc. 72-1. Plaintiff filed her Complaint (Doc. 1) in this Court on January 27, 2016, and then replaced it on August 23, 2016 with her Amended Complaint (Doc. 41), which sets forth six counts regarding: (1) her IDEA appeal from the Hearing Officer's October 2015 decision; (2) various violations of the United States Constitution under 42 U.S.C. § 1983; (3) disability discrimination in violation of Section 504 of the Rehabilitation Act; (4) retaliation in violation of Section 504 of the Rehabilitation Act; (5) disability discrimination in violation of Title II of the Americans with Disabilities Act (“ADA”); and (6) various causes of action under Arkansas state law. In addition to the District, Plaintiff has also named two individuals as Defendants: Debbie Atkinson, who is the District's Director of Special Education, and Susanne Belk, who is a Board Certified Behavior Analyst consultant for the District and a member of Child Doe's IEP team.

         Count 1, the IDEA appeal, has been fully briefed by the parties for many months now. A hearing for oral argument on the IDEA appeal was continued multiple times, and its most recent setting of March 30, 2017 was cancelled two days before it was to be held, on account of counsel's illness. Since its cancellation, and upon further review of the quite voluminous administrative record, the Court has concluded that oral argument would not be useful to its decisionmaking process on the IDEA appeal, and that accordingly the hearing need not be reset. Therefore, the IDEA appeal is ripe for decision.

         Defendants have moved for summary judgment on Counts 2 through 6, and moved to exclude opinions by an expert witness for Plaintiff named Dr. Howard Knoff. Plaintiff has three pending motions to untimely file various documents. All five of these motions have also been fully briefed and are likewise ripe for decision.

         Below, the Court will first rule on Plaintiff's IDEA appeal. Then the Court will take up Plaintiff's three motions regarding timeliness. Next, the Court will address Defendants' summary judgment motion. And finally, the Court will deal with Defendants' expert motion, as well as five other motions that Defendants filed on July 5, 2017.

         II. DISCUSSION

         A. Plaintiff's IDEA Appeal-Count 1 of the Amended Complaint

         The Court begins with Count 1 of Plaintiff's Amended Complaint: her appeal from the Hearing Officer's Final Decision and Order (Doc. 72-1), which found in favor of the District with respect to her October 17, 2014 Due Process Complaint (Doc. 49-1). This 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.'” K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 547 F.3d 795, 803 (8th Cir. 2011) (quoting 20 U.S.C. § 1415(i)(2)(C)) (alterations in original). In so doing, this Court “must independently determine whether the child in question has received a FAPE, ” while also giving “due weight to agency decision-making” since the Hearing Officer “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 reviews.” See Id. (internal alterations and quotation marks omitted). The centerpiece of a FAPE is the IEP, see Honig v. Doe, 484 U.S. 305, 311 (1988), which must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances, ” see Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S.Ct. 988, 1001 (2017).

         In her Appeal Brief, Plaintiff argues that the Hearing Officer erred in finding that Child Doe was not deprived of a FAPE, and that this ultimate error rested primarily on three erroneous findings: (1) that Ms. Albright had meaningful participation in the IEP process, see Doc. 49, pp. 12-16; (2) that it was unnecessary to perform a new functional behavioral assessment (“FBA”) on Child Doe and develop a new behavioral intervention plan (“BIP”) for her during the relevant time period, see Id. at 16-21; and (3) that the IDEA does not require the use of evidence-based practices in an IEP, see Id. at 21-22. With regard to the issue of parental involvement, Plaintiff is certainly correct that “[t]he core of the [IDEA] . . . is the cooperative process that it establishes between parents and schools . . . .” Schaffer v. Weast, 546 U.S. 49, 53 (2005). But this Court wholeheartedly agrees with the Hearing Officer's observation that “[t]he District's compilation of over several hundred pages of emails and the Parent's multiple pages of transcriptions of various IEP meetings is evidence enough to deny the Parent's claim that she was not provided opportunity to participate in the development of the Student's IEPs.” (Doc. 72-1, p. 7). As for the necessity or lack thereof for a new FBA and BIP-it was proper for the Hearing Officer to credit the testimony of Ms. Belk that none was necessary because she had already conducted an FBA when Child Doe was in second grade, Child Doe's function of maladaptive behavior had not changed since then, and the BIP that was already in place was working well. See Id. at pp. 14-15. This is consistent with the requirements of the IDEA, which mandates that an FBA be conducted after the child is removed because of disability-caused disciplinary problems unless one was already conducted prior to the problematic behavior's occurrence, and which only requires modification of preexisting BIPs “as necessary, to address the behavior.” See 20 U.S.C. § 1415(k)(1)(F)(i)-(ii).

         The matter of “evidence-based practices” presents a more difficult and nuanced issue here. Plaintiff's Appeal Brief takes issue with the Hearing Officer's statement that “[a]fter a lengthy bantering with the District's counsel on cross examination [Plaintiff's expert witness] admitted that the IDEA does not require the use of evidence-based practices.” See Doc. 72-1, p. 25; Doc. 49, p. 21. Plaintiff then asserts in rather broad language that the District “fail[ed] to address [Child Doe]'s escalating behaviors utilizing evidence based practices to effectively address problematic behaviors in children with autism, ” and that this failure “violated IDEA's requirement to utilize evidence based practices to educate students with disabilities.” See Doc. 49, p. 22. As a threshold matter, the Court would observe that regardless of whether the IDEA requires the use of evidence-based practices, it is abundantly clear from the record that the District made extensive use of evidence-based practices to educate Child Doe and to deal with her problematic behaviors. Ms. Belk testified at great length about the nature and variety of such practices that the District uses with Child Doe-including a great many that Plaintiff's expert, Dr. Jason Travers, specifically recommended-and the Hearing Officer found her testimony to be credible. See Hearing Transcript, Volume V, pp. 110-27. At any rate, though, it appears that at the present stage Plaintiff's objection on this point goes primarily to one particular practice that the District employed: the use of sensory integration treatment in Child Doe's BIP.[1]

         At this point it is useful to turn to the text of the IDEA, which it turns out, does not use the phrase “evidence based practices.” Rather, it simply requires the IEP's “special education and related services and supplementary aids and services” to be “based on peer-reviewed research to the extent practicable.” See 20 U.S.C. ยง 1414(d)(1)(A)(i)(IV) (emphasis added). The Court has not found any evidence in the record that sensory integration treatment is not based on peer-reviewed research, nor has it found any evidence in the record ...


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