PAMELA A. BARKER, District Judge.
Currently pending is the Amended Motion of Plaintiffs Paul and Jennifer Dougall, in their own capacities and as natural guardians of a minor, A.D., for Judgment on the Administrative Record regarding their claims under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (Doc. No. 49.) Defendants Copley-Fairlawn City School District Board of Education; Board Members Kenneth Calderone, Jessica Vargo, Paul Cevasco, Sue Emich and Richard Levin; and Copley-Fairlawn Schools Superintendent Brian Poe
For the following reasons, Plaintiffs' Amended Motion (Doc. No. 49) is DENIED.
A.D. was a student in the Copley-Fairlawn City School District ("CFCSD") from Kindergarten until her withdrawal in November 2015, when she was in ninth grade. (Administrative Record ("A.R.") (Doc. No. 34) at 973.)
The parties do not direct this Court's attention to much testimony and evidence relating to A.D.'s elementary school years (i.e., Kindergarten through fifth grade). A.D.'s parents testified generally that A.D. has had irritable bowel issues since the second grade, which caused her to have to frequently go to the bathroom and sometimes caused her to soil herself. (A.R. 1820 (Tr. 1081-1082); A.R. 1822 (Tr. 1089)). Mrs. Dougall also testified that, although A.D. was not diagnosed with autism until much later, A.D. must have had autism since birth, as autism "is not an acquired disorder."
When A.D. was in fifth grade (i.e., the 2011-2012 school year), she was placed in a special, all-girls, lunch group "so that she wouldn't feel alone." (A.R. 2007-2008 (Tr. 1517-1518); A.R. 2279 (Tr. 2249-2250)). In addition, Mrs. Dougall testified that, at her request, the school moved A.D. to a different math class because the noise level in her current class was distracting to her and affecting her grades. (A.R. 2007-2008 (Tr. 1517-1518)). Mrs. Dougall also testified that A.D.'s gastrointestinal problems caused A.D. to have to go to the bathroom frequently during the fifth grade, causing Mrs. Dougall to reach out to A.D.'s fifth grade teacher for understanding regarding the issue. (A.R. 2008 (Tr. 1520-1521)).
Despite these issues, however, the record reflects that, academically, A.D. was a strong student during both the fifth and sixth grades. Specifically, the record reflects that A.D.'s grades consisted primarily of A's and B's during this time period,
The Dougalls testified that A.D. experienced increased problems with her teachers and peers during the seventh and eighth grades (i.e., the 2013-2014 and 2014-2015 school years, respectively). Of particular note, in September 2014 (when A.D. was in the eighth grade), an incident occurred on a school bus during which a student threatened to "shove pills down [A.D.'s] throat" and "dig a hole and watch [her] burn." (A.R. 3711, 3716.) Shortly thereafter, a student called A.D. a "snitch." (A.R. 3710, 3708.) The following month, Mrs. Dougall contacted the school to complain after learning that A.D.'s band teacher allegedly called A.D. "stupid" after she left the band room. (A.R. 3861-3862.) Mrs. Dougall also noticed inattention and focus issues during this time period
Mrs. Dougall testified that she and Mr. Dougall "started noticing behavior changes and withdrawal and isolation in the fall of 2014," when A.D. was in the eighth grade. (A.R. 1819 (Tr. 1077)). In December 2014, A.D. expressed suicidal ideation, after which she began regular psychiatric counseling. (A.R. 1819 (Tr. 1077-1087)). Mrs. Dougall testified that she promptly notified A.D.'s guidance counselor, Robert Cowie, regarding A.D.'s suicidal ideation and treatment. (Id.) Mr. Cowie did not recall being advised that A.D. had experienced suicidal ideation. (A.R. 2526, 2527 (Tr. 2810, 2817)).
In early 2015, the Dougalls arranged for A.D. to undergo a private psychological assessment. As part of this assessment, several of A.D.'s teachers completed questionnaires regarding A.D.'s classroom behavior. A.D.'s eighth grade accelerated math teacher, Timothy Green, noted several concerns regarding A.D.'s behavior in his questionnaire responses. (A.R. 3661-3664.) In particular, he indicated that A.D. "often" exhibited the following behaviors and/or traits: (1) has difficulty paying attention to tasks; (2) does not seem to listen when spoken to directly; (3) is easily distracted by other things going on; (4) is touchy or easily annoyed by others; (5) is angry and resentful; (6) acts restless or edgy; (7) is irritable; (8) is more anxious in social situations than most other youths; (9) is excessively shy; and (10) seems to have lost interest in doing things or talking to people. (Id.) Mr. Green also stated that A.D. "very often" exhibited the following behaviors: (1) is extremely tense or unable to relax; (2) is emotionally cold or indifferent towards people; and (3) shows little interest in (or enjoyment of) pleasurable activities. (Id.) In the narrative section of the questionnaire, Mr. Green observed as follows:
(A.R. 3664.)
During the due process hearing, Mr. Green testified that A.D. had poor eye contact, was socially awkward, and "didn't really seem like she was ultra-engaged in what was happening." (A.R. 2336, 2337 (Tr. 2327-2328, 2330)). However, he testified that this did not impact A.D.'s ability to understand the class material or otherwise affect her grades or her performance in his class. (A.R. 2336-2337 (Tr. 2328-2331)). Mr. Green further noted that, although he thought A.D. might be on the "very low end" of the autism spectrum, he did not think that she needed any specially designed instruction. (A.R. 2338 (Tr. 2336-2337)). He stated he had "no concerns" regarding A.D.'s academic performance. (A.R. 2339 (Tr. 2341)). The record reflects that A.D. received B's each quarter in Mr. Green's accelerated math class. (A.R. 3133.)
Several of A.D.'s other eighth grade teachers also testified at the due process hearing. A.D's eighth grade English/Language Arts teacher Adam Virgei, testified that A.D. was a strong English student, both in terms of her writing and her ability to speak in public. (A.R. 2355 (Tr. 2404-2405)). Although he remembered A.D. as being "a little shy" at the beginning of the school year, he testified that she became less so as the year progressed and had no difficulty relating to others or maintaining eye contact. (A.R. 2358, 2362 (Tr. 2414, 2430-2432)). Mr. Virgei also testified he did not see any evidence of depression, anxiety, or lack of attention or focus. (A.R. 2358, 2369 (Tr. 2414-2416, 2458-2461)). Mr. Virgei noted that A.D. received an A in his class during the third and fourth quarters and stated that he did not think there was any reason for A.D. to have had an Individualized Education Plan ("IEP").
A.D.'s eighth grade science teacher, Hallie Simenc, also testified that she had no reason to suspect that A.D. needed special education services. (A.R. 2427 (Tr. 2558)). Ms. Simenc indicated that A.D. was a good student and did very well in her class. (A.R. 2426-2427 (Tr. 2554, 2558)). She noted in particular that A.D. worked well in groups, stating "she definitely had a group of students that she enjoyed working with in my classroom." (A.R. 2426 (Tr. 2553)). Ms. Simenc characterized A.D.'s class participation as "great" and testified that A.D. had no problems interacting with other students. (A.R. 2426-2427 (Tr. 2554-2555)). The record reflects that A.D.'s final eighth grade science grade was a B. (A.R. 3133.)
The Independent Hearing Officer ("IHO") that presided over A.D.'s due process hearing found that Mr. Green, Mr. Virgei, and Ms. Simenc were all credible witnesses. (A.R. 972-973.)
A.D.'s private psychological evaluation was completed on May 23, 2015 by psychologist Tracie Baker, Ph.D. (A.R. 3775-3782). In her report,
Dr. Baker recommended that A.D. continue with her therapy services and medication management. (A.R. 3779.) She suggested that A.D. participate in social skills training and recommended the Dougalls contact the Anxiety Disorders Clinic at the Akron Children's Hospital for additional resources. (A.R. 3780-3781.) Finally, with regard to Academic/School recommendations, Dr. Baker stated as follows:
(A.R. 3781) (emphasis added).
Shortly thereafter, on May 28, 2015, Mrs. Dougall emailed High School Counselor Jennifer Morganti to advise her that A.D. would be entering the ninth grade in the fall and had recently been diagnosed with autism. (A.R. 3665.) Mrs. Dougall indicated "we have the results of [A.D.'s] academic testing [and were] not sure how we should proceed with informing the High School of her special needs." (Id.) She requested a meeting to "talk with you about our concerns for [A.D.] for next year." (Id.) Mrs. Dougall emailed High School Principal Kathy Ashcroft several days later, also advising of A.D.'s autism diagnosis. (A.R. 3599.)
A meeting was held with Mr. and Mrs. Dougall, Ms. Morganti and High School Psychologist Caitlyn Kowalski on June 4, 2015. (A.R. 1517, 1600 (Tr. 304-305, 475)). It is undisputed that the Dougalls brought Dr. Baker's assessment to this meeting and provided a copy to Ms. Morganti and Ms. Kowalski. (A.R. 1518 (Tr. 307)). During this meeting, the Dougalls discussed the results of Dr. Baker's assessment and talked about their concerns regarding A.D.'s social and emotional well-being. (A.R. 2769 (Tr. 3455)). Mrs. Dougall testified that they specifically advised the school that A.D. had been severely bullied during the eighth grade.
Ms. Morganti testified that, during this meeting, neither she nor Ms. Kowalski provided any information to the Dougalls regarding special education services, the IDEA evaluation process, or the possibility that A.D.'s autism, depression, and/or anxiety might be considered a "disability." (A.R. 1521 (Tr. 322)). Rather, Ms. Morganti indicated that the she talked with the Dougalls about (1) communicating with the teachers regarding their concerns; (2) meeting with them again prior to the beginning of the school year to help with the transition; and (3) "staying in touch if there were any concerns that were presented once the school year had started and having [A.D.] access the guidance office as needed." (A.R. 1524 (Tr. 331)). She testified that the June 2015 meeting did not cause her to believe that A.D. had any need for special education services, explaining as follows:
(A.R. 2770 (Tr. 3458)).
Over the summer, A.D. joined the high school cross country team but experienced gastrointestinal issues and stress. (A.R. 3079-3080). Both Mr. and Mrs. Dougall emailed A.D.'s cross country coach, Nathan Cropper, at various points in June and July 2015 and advised him that A.D. (1) had "recently been suffering from high anxiety" for which she was taking medication: (2) had been diagnosed with autism; and (3) suffered from asthma.
On July 23, 2015, Mrs. Dougall emailed Ms. Morganti and provided her with a list of additional students "that have caused problems for her last year that [A.D.] would like to strongly avoid." (A.R. 3671.) She also advised Ms. Morganti regarding A.D.'s struggles in cross country and indicated that "any input from you or Caitlyn Kowalski regarding her course load with Marching Band and [cross country] with her [diagnosis] background would be very helpful." (Id.)
On August 11, 2015, Ms. Morganti acknowledged the list of student names and indicated that she would make every effort to accommodate the Dougalls' wishes. (A.R. 3672.) Mrs. Dougall responded via email that same day and indicated that A.D. had decided to "hold off" on cross country. (A.R. 3673.) She noted, however, that A.D. was having a "positive experience with band," despite the fact that she had a "rough first day at band camp." (Id.) Mrs. Dougall indicated that A.D. decided to participate in the band Color Guard and had been "doing well." (Id.) She requested the opportunity for A.D. to meet with Ms. Morganti prior to the beginning of the school year. (Id.) A.D. and Mrs. Dougall thereafter had a meeting with Ms. Morganti in mid-August to discuss scheduling and to provide an opportunity for A.D. to become familiar with the high school guidance office. (A.R. 1800-1801, 2771 (Tr. 1002-1003, 3463)).
Mr. and Mrs. Dougall testified that, at this point in time, nobody from CFCSD had ever explained to them what an IEP was or discussed with them the possibility that A.D. might be eligible for special education services. (A.R. 1706, 2023-2024, 2110 (Tr.754-755, 1581-1582, 1770-1772)). Mr. and Mrs. Dougall both testified that, prior to November or December of A.D.'s ninth grade year, they did not, in fact, know what an IEP was, nor were they aware that A.D. could possibly have been eligible for one. (Id.)
A.D.'s teachers testified that they did not notice any significant academic or behavioral issues relating to A.D. during the first six weeks of A.D.'s ninth grade year (i.e. late August through mid-October 2015). A.D's U.S. history teacher, Heather Estright, testified that A.D. seemed to her to be a "normal freshman girl." (A.R. 2234 (Tr. 2071)). Ms. Estright explained that A.D. was "performing well" academically, had friends, and did not seem reluctant to come to class. (A.R. 2234-2235 (Tr. 2071-2074)). She further testified that she did not notice any signs of depression or anxiety and did not have any concerns regarding A.D.'s socialization. (A.R. 2235 (Tr. 2074)). Ms. Estright indicated that she did not observe anything that suggested that A.D. needed special education services. (A.R. 2235 (Tr. 2076)).
A.D.'s honors physical science teacher, Brian Falhamer, testified that A.D. was doing "really well" in his class, even noting that the work she turned in had been "stellar." (A.R. 2263-2264 (Tr. 2186, 2191)). He did not observe that A.D. had any difficulty working in groups or with her lab partners. (A.R. 2264 (Tr. 2190-2191)). Mr. Falhamer testified that he did not observe that A.D. had any signs of anxiety, depression, or difficulty focusing; and he had no concerns about her interactions with her peers. (A.R. 2265 (Tr. 2195)). He stated that A.D. had an A in his class at the end of the first quarter, and he did not observe anything that would suggest A.D. needed special education services. (A.R. 2263, 2265 (Tr. 2186, 2195-2196)). See also A.R. 3277. A.D.'s honors math teacher, Michelle Flanagan, likewise testified that she did not observe any depression or anxiety and did not suggest that A.D. needed to be evaluated for special education services. (A.R. 2253, 2261 (Tr. 2148, 2178-2179)). She indicated that A.D. was maintaining a B in the class at the end of the first quarter. (A.R. 2258 (Tr. 2166)). See also A.R. 3277.
Meanwhile, in or around September 2015, the Dougalls enrolled A.D. in a six-week social skills and anxiety management course at Akron Children's Hospital, which she completed in mid-October 2015. (A.R. 2109 (Tr. 1768)).
On October 12, 2015, a student handed a folded piece of paper to Ms. Estright that appeared to outline a plan to shoot six students at the school. (A.R. 2231 (Tr. 2060)). This "shooting plan" listed the names of six CFCSD students who were to be shot, including A.D. (A.R. 3139). The note stated that "we will be stealing my dad's hunting gun (whatever's smallest)" and "remember there is no turning back. . . this is a suicide mission." (Id.) The note contained a map of the school and indicated "go to band with gun, shoot as many on above list as possible." (Id.)
The school immediately commenced an investigation. On October 13, 2015, A.D. admitted to writing the shooting plan. (A.R. 3140.) She wrote the following confession:
(A.R. 3140). On that same date, she was suspended from school for ten days with a recommendation for expulsion.
On October 14, 2015, the Dougalls executed a release to allow CFCSD to obtain A.D.'s medical records from the Akron Children's Hospital. (A.R. 3457.) The following week, on October 21, 2015, the Dougalls, through counsel, sent a letter to Defendant Brian Poe, the Superintendent of CFCSD. (A.R. 3741.) This letter referenced A.D.'s autism, anxiety and adjustment disorder diagnoses and stated that "we believe that the behavior that led to the suspension and the potential expulsion was a manifestation of her disability as described above." (Id.) The Dougalls requested a Manifestation Determination pursuant to 20 U.S.C. § 1415
From October 15, 2015 through October 30, 2015, A.D. was treated in Akron Children's Hospital's Full Day Partial Hospitalization Program for mental health. (A.R. 3591, 3417.) On October 22, 2015, A.D.'s psychiatrist Sumru Bilge Johnson, M.D., wrote a letter indicating that A.D. had been diagnosed with Depressive Disorder, Generalized Anxiety Disorder, Social Phobia, and Autism Spectrum Disorder. (A.R. 3591.) Upon her completion of the program, one of her providers, Licensed Professional Clinical Counselor ("LPCC") Megan Ott, wrote a letter setting forth several suggestions for accommodations that could be implemented to support A.D., and stated that she believed "it would be helpful if [A.D.] were evaluated for a 504 plan and/or IEP to most effectively attended to her specialized educational needs."
An expulsion hearing was conducted on October 28, 2015, at which numerous witnesses testified, including A.D. (A.R. 245-276.) As a result of this hearing, A.D. was expelled from school for 80 days, with 60 days held in abeyance with the following conditions: "(1) [A.D.] will continue with her Partial Hospitalization and Intensive Outpatient Program at parent expense and will return at its completion or no later than December 2, 2015; (2) [A.D.'s] mental health practitioner must provide assurances to me that [A.D.] does not present a threat to herself, or others, and is fully capable of resuming her education in our setting; (3) [A.D.] and her parents will follow any recommended course of treatment/counseling (again, at parent expense) recommended by her mental health practitioner and provide the district with a release to speak directly with this professional during any course as such treatment or counseling continues and to plan for [A.D.'s] entry into the school environment." (A.R. 3158-3159.)
On November 5, 2015, the Dougalls withdrew A.D. from CFCSD and enrolled her in Our Lady of the Elms, a private parochial school located in the Akron City School District.
The Dougalls appealed A.D.'s expulsion. (A.R. 3160, 3163.) An expulsion appeal hearing was conducted on November 17, 2015. (A.R. 277-310.) At this hearing, the Dougalls, through counsel, requested that CFCSD rescind the expulsion and conduct a multi-factored (or evaluation team) report regarding A.D. (A.R. 279 (Tr. 7-8)). On that same date, the Dougalls made this same request in writing. (A.R. 3583.) At that time, the Dougalls also revoked any consent for records or other items and communications that the parents had previously executed. (Id.)
On November 19, 2015, the CFCSD upheld A.D's expulsion. (A.R. 3615.)
On November 30, 2015, the Dougalls filed a Due Process Complaint and Request for Due Process Hearing. (A.R. 3109-3110.) Among other things, this Complaint alleged that (1) the school failed to identify, locate, and evaluate A.D. as a child with disabilities despite having documentation and knowledge of her disabilities; and (2) the school failed to provide A.D. with a free and appropriate public education ("FAPE") by not providing her with an Evaluation Team Report ("ETR") and an IEP despite having knowledge of her disabilities.
On December 7, 2015, CFCSD (through high school psychologist Ms. Kowalski) emailed the Dougalls an invitation to an ETR planning meeting to be held on December 9, 2015.
(A.R. 2749 (Tr. 3374-3375)).
The ETR planning meeting was conducted on December 14, 2015 and attended by Mr. Dougall, two of the Dougalls' lawyers, Dr. Doyle, and an attorney for CFCSD. (A.R. 3115-3116; A.R. 1749 (Tr. 929).) Mr. Dougall testified that "[w]e did not know this meeting was happening on December 14 until December 14." (A.R. 1749 (Tr. 929)). He explained that, when he (and his two attorneys) decided to go forward with the planning meeting, Mrs. Dougall had already left. (Id.) Thus, Mrs. Dougall did not participate in the planning meeting. (Id.)
Dr. Doyle testified that, during the planning meeting, she discussed with Mr. Dougall and his attorneys the various disability categories identified in the IDEA. (A.R. 2751 (Tr. 3381-3383)). She also testified that she explained how the evaluation would be conducted and discussed the types of assessments and tests that would be used, the types of other information that would be gathered, and the staff who would be conducting the tests and assessments and gathering the information. (A.R. 2751-2756 (Tr. 3383-3401)). Dr. Doyle testified that, during this meeting, it was expressly discussed and agreed that testing and observations would need to occur at Our Lady of the Elms as part of the evaluation. (A.R. 2756 (Tr. 3403)).
The ETR Planning Form indicated it was an initial evaluation and identified A.D's suspected disabilities as autism, emotional disturbance, and other health impairment. (A.R. 3115.) The form indicated that CFCSD did not have "information provided by the parent" or "classroom based evaluations and progress in the general curriculum." (Id.) With regard to the latter category, the form indicated that this information would be obtained from "general education teachers at Copley and the Elms and the school psychologist." (Id.) It also indicated that CFCSD did not have data available regarding A.D's "communicative status" and stated this information would be obtained by a speech language patholo gist. (Id.) At the conclusion of the meeting, Mr. Dougall signed the Parent Consent for Evaluation.
Shortly thereafter, on December 18, 2015, Ms. Kowalski contacted the Principal of Our Lady of the Elms, Cynthia Wilhite, and left a voicemail requesting to arrange testing and observation as part of the ETR process. (A.R. 3119.) Ms. Wilhite returned the call and proposed dates for classroom observation were discussed. (Id.) On December 29, 2015, Dr. Doyle sent the Dougalls an evaluation packet that included several forms and questionnaires and record release forms for Dr. Baker. (A.R 1943 (Tr. 1406-1408)).
On January 5, 2016, Mr. Dougall executed a records release that allowed CFCSD to engage in communication with Our Lady of the Elms regarding A.D. in order to complete an evaluation to determine eligibility for special education services. (A.R. 3443.) On the portion of the form indicating the types of communication and information that could be shared, Mr. Dougall checked the boxes for "cumulative records (including attendance and discipline records from Our Lady of the Elms" and "transcripts/report cards/grades." (Id.) However, Mr. Dougall did not check the boxes on the form granting permission for the release of several other categories of information, including "interviews with teachers and school personnel," or "data from classroom-based evaluations and progress in the general education curriculum." (Id.) Mr. Dougall also did not indicate permission for CFCSD to conduct observations in A.D.'s classrooms at Our Lady of the Elms. (Id.) At the bottom of the form, he wrote as follows: "If you need specific information on the other items above, please let us know and we will help facilitate it." (Id.)
On January 7, 2016, CFCSD speech and language pathologist Christine Regueiro arrived at Our Lady of the Elms to conduct an assessment of A.D. (A.R. 3622.) A.D. advised Principal Wilhite that she believed she was not supposed to speak to anyone from CFCSD and declined the evaluation. (Id.) Ms. Wilhite spoke to Mr. Dougall, who gave his consent for the evaluation. (Id.) The following day, January 8, 2016, Ms. Kowalski met with A.D.'s teachers at Our Lady of the Elms to explain the evaluation process. (Id.) An observation of A.D. was scheduled for January 13 and 14, 2016.
On January 13, 2016, Ms. Kowalski arrived at Our Lady of the Elms to conduct an observation. (A.R. 3622.) She was informed that the Dougalls had removed A.D. from school that day. (Id.) On that same date, counsel for CFCSD, Giselle Spencer, emailed counsel for the Dougalls, Jason Wallace, and noted that the "parents' executed consent will not permit staff at the Elms to complete rating scales, permit observations, or interviews." (A.R. 3543.) Ms. Spencer also noted that "the parents have not returned the packet with the rating scales that were due on January 8th." (Id.) She stated that "these issues along with your mandate that the District can't speak to parents directly to resolve these concerns. . . are making it impossible to complete the [Multi-Factored Evaluation or `MFE']." (Id.)
Mr. Wallace responded via email that "we do not want personnel from Copley coming to the Elms because of the breakdown in trust between the District and the parents, nor do we want the District interacting with Elms personnel." (A.R. 3542-3543.) Additionally, Mr. Wallace stated "we do not want people interacting with [A.D.] who would bring up old memories and potentially re-traumatize her." (Id.) He inquired "are there any available options to get an MFE done without having the District staff interact with the Elms or [A.D.] anymore?" (A.R. 3542.)
On January 18, 2016, Mr. Dougall revoked his consent, as follows: "We are revoking all releases executed by us to Copley Fairlawn School District concerning [A.D.]" (A.R. 3547.) On that same date, Mr. Wallace sent the following email to Ms. Spencer:
(A.R. 3546.) Ms. Spencer responded the next day and asked: "are [the Dougalls] revoking consent for the evaluation, or releases for the following: to speak to Elms staff, to obtain records and information from the Elms, and to obtain records and information from the Student's providers; or are they revoking all of it?? Your narrative suggests that we can't observe, or obtain records/information, or test." (A.R. 3546.) Mr. Wallace replied that "as of this moment, we are revoking all releases executed by the Dougalls." (A.R. 3545.)
The next day, Mr. Wallace advised Ms. Spencer that "we are revoking all releases for everything." (A.R. 3548.) He stated that "we do consent to an evaluation but will take the testing and other things the district wants to do on an item by item basis." (Id.) Mr. Wallace asked Ms. Spencer to "let us know what the District deems as `required' versus what the District simply wants." (Id.) Several days later, on January 22, 2016, Mr. Wallace emailed Ms. Spencer to inquire "how the family can get an ETR completed for [A.D.] without giving up unfettered access to her medical records and without setting her back in her treatment anymore." (A.R. 3551.)
On January 27, 2016, CFCSD issued a Prior Written Notice to the Dougalls, in which it indicated that "based on [the Dougalls'] revocation of consent, [the] District will not continue with or finalize the MFE of [A.D.] unless and until full consent is reinstated." (A.R. 3622.) CFCSD explained as follows:
(A.R. 3623.) The Notice also stated that the "District was prepared to discuss the option of having the MFE conducted by Akron City School District as the district of service for students at Elms in compliance with the [IDEA]." (Id.) However, "parents refused to meet with the District" to discuss this option. (Id.)
On February 11, 2016, Mr. Wallace sent a letter to Ms. Spencer to "see what my clients need to do in order for their daughter to receive a multi-factored evaluation (MFE) from Copley-Fairlawn." (A.R. 3540.) He noted "we have revoked all releases that provide the school with unfettered access to her records, medical care, or providers, and her new school, but we did not revoke consent for an MFE to be completed." (Id.) Mr. Wallace argued that, during the December 14, 2015 meeting, Dr. Doyle failed to adequately explain the evaluation process to Mr. Dougall and, therefore, he did not give informed consent.
During the Due Process Hearing, Dr. Doyle indicated that, because Our Lady of the Elms is located in the Akron Public School District, "technically it would be Akron Public Schools that would be responsible for identifying. . . students with disabilities at the Elms." (A.R. 1665 (Tr. 734-735)). She acknowledged, however, that "there are cases where the district of residence does do the ETR."
As noted above, Plaintiffs filed a Due Process Complaint and Request for Administrative Hearing on November 30, 2015. (A.R. 3109-3110.) Thereafter, on February 4, 2016, Plaintiffs filed a pleading captioned "Clarification of Issues" that set forth the specific issues that Plaintiffs sought to raise at the Due Process Hearing. (A.R. 106-107.)
On February 11, 2016, the Independent Hearing Officer ("IHO") issued an Order identifying the following issues for determination at the Due Process Hearing: "(1) Was Student denied a free, appropriate public education, or FAPE?; (2) Did School District fulfill its responsibilities to Student regarding the child find process? (3) Was Student deprived of educational opportunities, accommodations, or related services? (4) Did School District fail to follow procedural requirements following a request by Petitioners for a multi-factored evaluation of Student?" (A.R. 181.)
The Due Process Hearing took place over 22 non-consecutive days between February and September 2016. (A.R. 1406-3066.) Eighteen witnesses testified, including the Dougalls, Dr. Doyle, Ms. Kowalski, Ms. Morganti, Mr. Cowie, Ms. Sako, Mr. Green, Mr. Virgei, Ms. Flanagan, Mr. Falhamer, Ms. Estright, Ms. Simenc, and Ms. Wilhite. (Id.) The hearing transcript is 4,133 pages in length, and over 70 exhibits were admitted. (Id.) See also A.R. 969-970. Post-hearing briefs were submitted by both parties. (A.R. 749-782, 784-819, 824-835, 838-921.)
The IHO issued a 37-page written decision on November 16, 2016. (A.R. 965-1001.) Therein, the IHO found in favor on the CFCSD on all issues. (Id.) Specifically, the IHO concluded that (1) Mr. Dougall gave informed consent to conduct a MFE on December 14, 2015; (2) A.D. was not denied educational opportunities; (3) CFCSD did not have knowledge that A.D. was a child with disability at any time prior to February 12, 2016; (4) A.D. is not a child with a disability under the IDEA; and (5) CFCSD did not violate its child find requirements with respect to A.D. (A.R. 1000-1001.)
The Dougalls filed a Notice of Appeal on December 18, 2016. (A.R. 1007-1009.) A State Level Review Officer ("SLRO") was appointed on December 20, 2016, and briefs were submitted in February and March 2017. (A.R. 1112-1200, 1203-1229, 1230-1249.) The SLRO issued his decision on May 11, 2017. (A.R. 1388-1394.) After conducting a de novo review, the SLRO found in favor of CFCSD on all claims.
On August 8, 2017, Plaintiffs in their own capacities and as natural guardians of A.D., a minor, filed a Complaint in this Court against the CFCSD Defendants and the Ohio Department of Education ("ODE"), seeking judicial review of the administrative decisions below. (Doc. No. 1.) In the Complaint, Plaintiffs state various claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132; the Individuals with Disabilities Education Act ("IDEA"), 42 U.S.C. §§ 1401 et seq.; and 42 U.S.C. § 1983. (Id.) Plaintiffs seek a compensatory education; compensatory and consequential damages; a permanent injunction; pre- and post-judgment interest; and attorneys' fees and costs. (Id.) Plaintiffs also seek an order reversing the adverse administrative decisions of the IHO and SLRO, below. (Id.)
Defendant ODE filed an Answer and Motion for Judgment on the Pleadings on November 6 and November 8, 2017, respectively, and the CFCSD Defendants filed their Answer on December 1, 2017. (Doc. Nos. 18, 19, 20.)
On March 7, 2018, the parties stipulated to the dismissal without prejudice of Plaintiffs' claims against Defendant ODE pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii). (Doc. No. 31.) On March 9, 2018, then-assigned District Judge Sara Lioi ordered that Defendant ODE and Count IV of the Complaint be dismissed without prejudice. See Non-Document Order dated March 9, 2018. Judge Lioi also adopted the parties' proposal that Plaintiffs' Rehabilitation Act, ADA, and § 1983 claims (as set forth in Counts V, VI, VII and VIII) be stayed until Plaintiffs' IDEA claims (as set forth in Counts I, II and III) are resolved. (Id.) Judge Lioi then set briefing deadlines relating to Counts I, II, and III. (Id.) Plaintiffs later noted that Count I does not state an IDEA claim and asked that it, also, be stayed. (Doc. No. 44.) The Court agreed, and stayed Count I, in addition to Counts V, VI, VII, and VIII. See Non-Document Order dated March 29, 2019.
Meanwhile, on April 16, 2018, pursuant to an Order of the Court, the ODE filed the Administrative Record in this action under seal. (Doc. No. 34.) The following month, Plaintiffs filed a Motion for Leave to File Supplemental Exhibits under Seal, which the CFCSD Defendants opposed. (Doc. Nos. 36-1, 37, 39.) On March 18, 2019, Judge Lioi issued a Memorandum Opinion and Order denying Plaintiffs' Motion with the caveat that, following the Court's review of Plaintiffs' IDEA claims (set forth in Counts II and III of the Complaint), "should any party desire to supplement the record with any additional documents relevant to the merits of the claims in Counts V-VIII, the Court will entertain (although it is not inviting) an appropriate, timely motion setting forth good cause for limited supplementation." (Doc. No. 42 at p. 10.)
Plaintiffs filed a Motion for Judgment on the Administrative Record regarding Counts II and III on May 8, 2019. (Doc. No. 46.) On June 7, 2019, Judge Lioi issued an Order directing Plaintiffs to refile their motion using the specific citation format to the Administrative Record set forth in her Order. (Doc. No. 47.) In that Order, Judge Lioi directed Defendants to follow the same manner of citation in their opposing Brief. (Id. at p. 3.)
Plaintiffs filed their Amended Motion for Judgment on the Administrative Record regarding Counts II and III on June 19, 2019. (Doc. No. 49.) The CFCSD Defendants filed their Brief in Opposition (Doc. No. 50), to which Plaintiffs replied on August 20, 2019 (Doc. No. 51.)
"The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, offers state governments federal funding to help educate children with disabilities." Gibson v. Forest Hills Local School Dist. Bd. of Educ., 655 Fed. Appx. 423, 426 (6th Cir. 2016) (citing 20 U.S.C § 1411(a)(1)). In exchange for those funds, participating states must adopt policies and procedures that implement the Act's promise of making a FAPE available to every eligible child. See 20 U.S.C. § 1412(a)(1)(A). Ohio has opted to receive IDEA funds. See Gibson, 655 Fed. Appx. at 426 (citing Bd. of Educ. of Austintown Local Sch. Dist. v. Mahoning Cty. Bd. of Mental Retardation & Developmental Disabilities, 613 N.E.2d 167, 172 (Ohio 1993)).
Under the IDEA, states must establish policies and procedures to ensure that children with disabilities are identified, located, and evaluated. 34 C.F.R. § 300.111(a)(1)(i). This is known as the "child-find" requirement. See M.G. by and through C.G. v. Williamson County Schools, 720 Fed. Appx. 280, 284 (6th Cir. 2018). To fulfill their child-find obligation, states must ensure that their schools take appropriate steps to identify and evaluate "[c]hildren who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. § 300.111(c)(1) (emphasis added). See also M.G., 720 Fed. Appx. at 284; Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007) ("Even children who are only suspected of having a disability, although they are progressing from grade to grade, are protected by this requirement."). To establish a violation of the child-find requirement, a plaintiff "must show that school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate." L.M., 478 F.3d at 313 (quoting Clay T. v. Walton Cty. Sch. Dist., 952 F.Supp. 817, 823 (M.D. Ga. 1997)).
"The lynchpin of the IDEA is a document known as the `individualized educational program' (`IEP')." Gibson, 655 Fed. Appx. at 426 (citing Honig v. Doe, 484 U.S. 305, 311-12 (1988)). Each academic year, an "IEP Team" comprising an eligible child's parents, her teachers, a representative of the local educational agency, and, whenever appropriate, the child herself, meets to discuss the child's progress and educational goals. 20 U.S.C. § 1414(c)(1), (d)(1)(A)-(B), (d)(4)(A); Ohio Admin. Code § 3301-51-07(I)(1), (L)(2)(a). The product of these meetings is the IEP, a document that evaluates the child's academic achievement and functional performance, as well as her short-term and long-term goals. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(II), (d)(3)(B); Ohio Admin. Code § 3301-51-07(H)(1)(b)-(c). The IEP also specifies the services that the school will provide to help the child to accomplish her goals and sets forth the criteria that the IEP Team will use to evaluate the child's progress over the course of the coming year. 20 U.S.C. § 1414(d)(1)(A)(i)(III)-(IV); Ohio Admin. Code § 3301-51-07(H)(1)(c)-(d).
When parents feel that a school district has failed to comply with its obligations under the IDEA, they may file an action in federal court. 20 U.S.C. § 1415(i)(2); Ohio Admin. Code § 3301-51-05(K)(17)(a). However, "because federal courts are `generalists with no expertise in the educational needs' of students who have disabilities, the IDEA requires participating states to provide an impartial `due process hearing' to any parent who believes his child has not received a FAPE, and makes the exhaustion of that remedy a prerequisite for review in federal court." Gibson, 755 Fed. Appx. at 427. See also Burilovich v. Bd. of Educ. of Lincoln Consol. Schools, 208 F.3d 560, 566 (6th Cir. 2000).
Ohio has created a two-stage procedure for resolving IDEA disputes. If an aggrieved party files a complaint, the Ohio Department of Education appoints an "impartial hearing officer" ("IHO"), a neutral arbiter with both legal training and familiarity with the IDEA and attendant state and federal regulations, to adjudicate the dispute. See Gibson, 755 Fed. Appx. at 427; Ohio Admin. Code § 3301-51-05(K)(10)(c)(i). After receiving evidence and compiling a record, the IHO renders a decision as to whether the school district has denied the pupil a FAPE. Ohio Admin. Code § 3301-51-05(K)(10) — (13). Any party who is dissatisfied with the IHO's decision may file an appeal with the Ohio Department of Education, which then appoints another neutral arbiter called a "state level review officer" ("SLRO") to review the record and issue an independent decision on the merits. Ohio Admin. Code § 3301-51-05(K)(14)(b). A party may then challenge the SLRO's decision in federal district court. Ohio Admin. Code § 3301-51-05(K)(17)(a).
When an IDEA action is filed in federal court, a 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(i)(2)(C). In so doing, the district court "should make an independent decision based on the preponderance of the evidence but also should give `due weight' to the determinations made during the state administrative process." Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 849 (6th Cir.2004). See also L.H. v. Hamilton County Dep't of Educ., 900 F.3d 779, 790 (6th Cir. 2018); Somberg v. Utica Community Schools, 908 F.3d 162, 172 (6th Cir. 2018).
In applying this "modified de novo" standard of review, district courts may not "simply adopt the state administrative findings without an independent re-examination of the evidence," nor may they "substitute their own notions of sound educational policy for those of the school authorities which they review." Deal, 392 F.3d at 849. See also L.H., 900 F.3d at 790; Woods v. Northpoint Public School, 487 Fed. Appx. 968, 973 (6th Cir. 2012). The amount of "due weight" afforded to the administrative findings varies depending on whether such findings are based on educational expertise. See M.G, 720 Fed. Appx. at 284; McLaughlin v. Holt Pub. Schs. Bd. of Educ., 320 F.3d 663, 669 (6th Cir.2003). "Less weight is due to an agency's determinations on matters for which educational expertise is not relevant.... More weight is due to an agency's determinations on matters for which educational expertise is relevant." McLaughlin, 320 F.3d at 669. In sum, a district court "may set aside administrative findings in an IDEA case only if the evidence before the court is more likely than not to preclude the administrative decision from being justified based on the agency's presumed educational expertise, a fair estimate of the worth of the testimony, or both." Bd. of Educ. of Fayette Cnty., Ky. v. L.M., 478 F.3d 307, 312-13 (6th Cir.2007) (internal quotation marks and citation omitted). See also Woods, 487 Fed. Appx. at 973.
A district court reviews for both procedural and substantive violations. The Sixth Circuit recently explained this two-step review, as follows:
L.H., 900 F.3d at 790-791.
When reviewing the findings of both an IHO and a SLRO, the Court must defer to the SLRO's decision. See Burilovich, 208 F.3d at 567 (citing Renner v. Bd. of Educ. of Pub. Sch. of City of Ann Arbor, 185 F.3d 635, 641 (6th Cir. 1999)). However, "while the court must give the SLRO deference in matters requiring educational expertise, the Court will not `second guess' credibility determinations made by the IHO, who was best situated to assess the credibility of testifying witnesses." Maple Heights City School Bd. of Educ. v. A.C., 2016 WL 3475020 at * 5 (N.D. Ohio June 27, 2016). See also B.H. v. W. Clermont Bd. of Educ., 788 F.Supp.2d 682, 693, (S.D. Ohio 2011) (citing Bd. of Educ. of the City Sch. Dist. of the City of Cincinnati v. Wilhelmy, 689 F.Supp.2d 970, 987 (S.D. Ohio 2010)).
Plaintiffs argue that, as a matter of law, "the issues before this Court deserve a de novo review," rather than a modified de novo review. (Doc. No. 51 at p. 2.) The Court disagrees. The Sixth Circuit has repeatedly held that the "modified de novo" review standard discussed above is applicable in IDEA cases.
Plaintiffs next argue that, even assuming a modified de novo standard of review applies, this Court should accord "very little deference" to the decisions of the IHO and SLRO because "IDEA administrative hearing officers are not required to possess any educational expertise whatsoever." (Doc. No. 51 at p. 3.) The Court disagrees. Ohio Admin Code § 3301-51-05(K)(10)(c)(i) expressly provides that "at a minimum, a hearing officer: . . . (b) Must possess knowledge of, and the ability to understand, the provisions of the IDEA, federal and state regulations pertaining to the IDEA, and legal interpretations of the IDEA by federal and state courts." Moreover, the Sixth Circuit has stated that administrative judges, such as IHOs and SLROs, are "representative[s] of the state presumed to have both the educational expertise and the ability to resolve questions of educational methodology that the federal courts do not have." Deal, 392 F.3d at 865. Thus, this argument in support of Plaintiffs' Motion is without merit and rejected.
Plaintiffs next claim that this Court should accord no deference to the administrative decisions below because "the administrative hearing officers failed to meet the minimum requirements to be hearing officers in numerous respects." (Doc. No. 51 at p.5.) Specifically, Plaintiffs argue that (1) the IHO and SLRO in the instant case "did not possess knowledge of, and the ability to understand, the provisions of the IDEA, federal and state regulations pertaining to the IDEA, and legal interpretations of the IDEA by federal and state courts;" (2) the IHO "employed a quasi-rules of evidence and procedure standard at the administrative hearing which is intended to be informal without such rules;" and (3) "the SLRO failed to cite a single law (and only cited a single O.A.C. provision), case, or fact as it relates to Parents arguments and simply did not address all of the arguments they raised on appeal." (Id. at p. 9.) The Court will address each of these arguments, below.
Plaintiffs first argue that no deference should be accorded to the decisions of either the IHO or the SLRO because "the IHO in this matter discusses FAPE while using an incorrect standard of law for FAPE." (Id. at p. 5.) Specifically, Plaintiffs maintain that the IHO in the instant case improperly relied on the wrong standard when, citing Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 201 (1982), she stated that the "IDEA requires a basic floor of opportunity consisting of access to specialized instruction and related services that are individually designed to provide educational benefit to the disabled child."
The Sixth Circuit has explained that, where a state has a two-tiered review process (as does Ohio) federal courts are required to defer to the final decision of the state authorities, i.e., the decision of the SLRO. See Burilovich, 208 F.3d at 567; Maple Heights, 2016 WL 3275020 at * 5.
Plaintiffs next assert that this Court should accord no deference to the IHO or SLRO decisions because "the IHO refused to consider all of the evidence Parents sought to present and instead employed a quasi-rules of evidence/procedure standard, which is not to be done in the informal IDEA administrative hearings." (Doc. No. 51 at p. 12.) This argument is rejected. Plaintiffs do not identify any specific exhibits or evidence that they believe were improperly excluded, instead citing only to the one page of the due process hearing transcript when Plaintiffs moved to admit all of their exhibits. (Id. at p. 12) (citing A.R. 2987 (Tr. 3946-3949)). The Court notes that the IHO considered the admissibility of the exhibits individually, resulting in a discussion on the record that spans over 50 pages of the transcript and addressed dozens of exhibits (some of which were admitted in full, some of which were admitted in part, and some of which were not admitted at all.) (A.R. 2987-3001 (Tr. 3946-4005)). Plaintiffs do not identify any specific exhibits that they feel should have been admitted, or otherwise offer any meaningful argument as to why they believe any particular exhibits were improperly excluded. Nor do they articulate how they were allegedly harmed by the IHO's alleged failure to admit any specific exhibits. Under these circumstances, the Court finds that Plaintiffs have failed to adequately raise this issue and, therefore, declines to address it.
Lastly, Plaintiffs assert that this Court should not accord deference to the SLRO's decision because the SLRO "failed to cite to a single fact or case or anything other than a single O.A.C. section that was not relevant, was not a decision that was independent from the IHO's, obviously did not examine the entire hearing record, and definitely did not address the issues raised by the Parents." (Doc. No. 51 at p. 13-14.) Again, the Court disagrees. While the SLRO decision was relatively brief (i.e., 7 pages long), the SLRO cited numerous facts in his discussion of the legal issues presented and clearly explained his reasoning and analysis. (A.R. 1388-1394.) Based on its review of the SLRO decision, the Court does not agree that the SLRO failed to examine the entire hearing record and/or render an independent decision.
The Court notes that the SLRO found that "parents' counsel raises a number of arguments in his appeal that I frankly find irrelevant to the issues at hand." (A.R. 1392.) To the extent the SLRO failed to address any specific issues that were properly raised by Plaintiffs (both before the SLRO and herein), the Court will, by necessity, employ a de novo review of such issues.
In this Motion, Plaintiffs argue that the CFCSD Defendants committed fourteen (14) separate procedural violations of the IDEA. (Doc. No. 49 at pp. 23-41.) The Sixth Circuit has held that a district court should "`strictly review an IEP for procedural compliance,' although technical deviations will not render an IEP invalid." Deal, 392 F.3d at 854 (quoting Dong ex rel Dong v. Bd. of Educ. of the Rochester Cmty. Sch., 197 F.3d 793, 800 (6th Cir. 1993)). See also Maple Heights, 2016 WL 3475020 at * 5. "A finding of procedural violations does not necessarily entitle [a plaintiff] to relief." Deal, 392 F.3d at 854. See also Knable, 238 F.3d at 764. Rather, for a court to grant relief for a procedural violation, a plaintiff must show that the violation resulted in substantive harm to the student or her parents, "such as seriously infringing on the parents' opportunity to participate in the IEP process, depriving an eligible student of an IEP, or causing the loss of educational opportunity." Berger v. Medina City Sch. Dist., 348 F.3d 513, 520 (6th Cir. 2003). See also M.G., 720 Fed. Appx. at 285. The Court will address each of the alleged procedural violations separately, below.
Plaintiffs first argue that the CFCSD's failure to timely seek an evaluation of A.D. constituted a procedural violation of the IDEA child-find requirement that resulted in substantive harm to A.D. (Doc. No. 49 at pp. 23-27.) Specifically, Plaintiffs maintain that CFCSD knew, or should have suspected, that A.D. had a disability when Plaintiffs advised the School District of A.D.'s "special needs" and provided it with a copy of Dr. Baker's May 2015 evaluation diagnosing A.D. with autism, depression, and anxiety. (Id.) Plaintiffs also note that Dr. Baker's report itself should have been considered a request for IDEA services, in light of Dr. Baker's discussion of the "extreme negative effects" that bullying had had on A.D., as well as A.D.'s attention problems and "significant" anxiety. (Id.) Finally, Plaintiffs maintain that CFCSD's knowledge, in October 2015, that A.D. had been admitted to a partial hospitalization program for her mental health problems, was sufficient to create a suspicion that A.D. had a disability. (Id.)
The CFCSD Defendants argue that they did not violate the child find requirements of the IDEA by failing to evaluate A.D. prior to October 12, 2015 because "there were no clear signs that A.D. may have had a disability and Copley-Fairlawn had a rational justification for not evaluating A.D." (Doc. No. 55-1 at pp. 6-16.) In support of this argument, CFCSD Defendants argue that A.D.'s academic performance was exemplary throughout her attendance at the Copley-Fairlawn Schools. (Id.) They further note that none of A.D.'s middle school teachers expressed any concerns regarding her class performance or identified any ongoing behavioral issues. (Id.)
As noted above, to fulfill their child-find obligation, states must ensure that their schools take appropriate steps to identify and evaluate "[c]hildren who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade." 34 C.F.R. § 300.111(c)(1) (emphasis added).
In Ohio, the term "child with a disability" is defined as follows:
Ohio Admin. Code § 3301-51-01(B)(10) (emphasis added). See also 20 U.S.C. § 1401(3)(A)(i) and (ii).
Of the impairments listed above, the ones that potentially apply to A.D. are autism, serious emotional disturbance, and "other health impairment." For purposes of the IDEA, the term "autism" is defined, in part, as "a developmental disability significantly affecting verbal and non-verbal communication and social interaction, generally evident before age three,
Ohio Admin. Code § 3301-51-01(B)(10)(d)(v) (emphasis added). See also 34 C.F.R. 300.3(c)(4)(i). Finally, the term "other health impairment" is defined as:
Ohio Admin. Code § 3301-51-01(B)(10)(d)(ix) (emphasis added).
Here, the SLRO found that the CFCSD Defendants did not violate their child find obligations under the IDEA, explaining as follows:
(A.R. 1393-1394.)
After a careful and independent review of the administrative record, the Court finds that the SLRO's decision is supported by a preponderance of the evidence. As the CFCSD Defendants correctly note, the definitions of autism, emotional disturbance, and "other health impairment" each expressly require that, in order to qualify for IDEA services, the disability must have an adverse impact on the child's educational performance. In addition, the definition of a "child with disability" requires, not only that the child have one of the enumerated disabilities, but also that "by reason thereof, [the child] needs special education and related services." Ohio Admin. Code § 3301-51-01(B)(10) (emphasis added).
Here, however, the record supports the SLRO's conclusion that A.D. was performing well academically and that no behavioral or social concerns were noted that affected her academic performance. As discussed at length supra, A.D's grades were consistently high. The record reflects A.D. received all A's in fourth grade, and A's and B's in fifth, sixth, seventh and eighth grades. (A.R. 3133-3137.) She was moved to an advanced reading group in fifth grade and was placed in an accelerated math class in the seventh and eighth grades. (A.R. 3133-3134; A.R. 2293 (Tr. 2307)). Ms. Sako testified A.D. was a "high achiever" in the fifth and sixth grades, and stated she had no reason to suspect that A.D. might be a child in need of special education. (A.R. 2283 (Tr. 2265-2267)). Likewise, A.D's eighth grade teachers universally testified that they had no concerns regarding A.D.'s academic performance. Mr. Virgei testified A.D. was a strong English student and had no difficulty relating to others or maintaining eye contact. (A.R. 2355, 2358, 2362 (Tr. 2404-2405, 2414, 2430-2432)). Ms. Simenc testified A.D. was a good student who worked well in groups and showed excellent class participation. (A.R. 2426-2427 (Tr. 2554-2558)). Even Mr. Green (who thought A.D. might be on the "very low end" of the autism spectrum), did not think she needed any specially designed instruction and had "no concerns" regarding her academic performance. (A.R. 2338-2339 (Tr. 2336-2337, 2341)).
Plaintiffs argue that "receiving good grades does not prohibit receiving an IEP." (Doc. No. 51 at p. 8.) They assert that "smart disabled children may need special education due to impairments that adversely affect their education in areas other than academics alone," such as in the areas of behavioral, social, and emotional well-being. (Id. at p. 9-10.) The Court does not disagree. However, in the instant case, Plaintiffs have not directed this Court's attention to evidence that would suggest that the CFCSD Defendants should have been aware (prior to October 2015) that A.D. needed special education services due to behavioral, social, or emotional issues.
In sum, the Court finds that the preponderance of the evidence supports the conclusion that, prior to October 2015, the CFCSD Defendants did not overlook clear signs of disability and were not negligent in failing to order testing. See L.M. 478 F.3d at 313. Nor have Plaintiffs demonstrated that there was no rational justification for not deciding to evaluate A.D. prior to October 2015. Id. Thus, the Court concludes that the CFCSD Defendants did not violate the child find provisions of the IDEA by failing to evaluate A.D. prior to October 2015.
Plaintiffs also assert that they have suffered substantive harm because the CFCSD Defendants should have immediately started the evaluation process once A.D. was expelled and/or when they learned that A.D. was participating in a partial hospitalization program ("PHP"). (Doc. No. 49 at pp. 26-27.) The Court finds this argument to be without merit. As noted above, the events surrounding A.D's expulsion occurred within a very compressed time frame: (1) A.D. was suspended on October 13, 2015; (2) she was placed in the PHP from October 15-30, 2015; (3) A.D. was expelled on October 28, 2015; (4) the Dougalls withdrew A.D. from CFCSD on November 5, 2015; (5) an expulsion appeal hearing was conducted on November 17, 2015; and (6) A.D.'s expulsion was upheld on November 19, 2015. Shortly thereafter, on December 7, 2015, the CFCSD Defendants emailed the Dougalls an invitation to an ETR planning meeting, to begin the process of evaluating A.D. for an IEP.
Even assuming arguendo that the relatively short delay between A.D's admittance to the PHP on October 15, 2015 and the December 7, 2015 ETR planning meeting invitation constitutes a technical procedural violation of the IDEA, the Court finds Plaintiffs have not demonstrated that they suffered substantive harm as a result thereof. Accordingly, and for all the reasons set forth above, the Court finds this ground for relief to be without merit.
Plaintiffs next argue that they suffered substantive harm because the CFCSD did not provide them with information regarding IDEA procedural safeguards until November 24, 2015. (Doc. No. 49 at p. 28.) They assert that they should have been provided with this information much sooner and not later than one of the following: (1) in June 2015, when CFCSD learned that A.D. had been diagnosed with autism, depression, and anxiety, and was experiencing significant bullying, (2) in October 2015, when A.D. was expelled; or (3) in October 2015, when CFCSD learned that A.D. had been admitted to a PHP due to her mental health conditions. (Id.) The CFCSD Defendants do not address this argument.
Ohio Admin. Code § 3301-51-05(I) provides that: "A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents: (a) Upon initial referral or parent request for evaluation; (b) Upon receipt of the first due process complaint under paragraph (K)(7) of this rule in a school year; (c) In accordance with the discipline procedures in paragraph (K)(20) of this rule; and (d) Upon request by a parent."
For the following reasons, the Court finds the CFCSD Defendants did not violate Plaintiffs' procedural rights under the IDEA when they failed to provide an IDEA procedural safeguards notice before November 24, 2015. As discussed at length above, prior to October 15, 2015, CFCSD did not know or have reason to suspect that A.D. was a "child with a disability" for purposes of the IDEA. Thus, the Court finds it was not a procedural violation for CFCSD to fail to provide Plaintiffs with the procedural safeguards notice prior to October 15, 2015. Moreover, even assuming arguendo that the failure to provide an IDEA procedural safeguards notice between October 15, 2015 and November 24, 2015 constituted a procedural violation, the Court finds that Plaintiffs have failed to meaningfully argue or demonstrate that they were substantively harmed as a result.
Accordingly, the Court finds this ground for relief to be without merit.
Plaintiffs next argue that "CFCSD failed to ensure appropriate parental participation for the evaluation planning meeting when it failed to provide the Parents an IDEA prior written notice for the evaluation planning meeting or schedule the meeting in advance, and by failing to allow A.D.'s mother to participate in the planning meeting." (Doc. No. 49 at p. 29.) The CFCSD Defendants do not address this argument.
A school must provide a student's parents with prior written notice within a reasonable time before it proposes to initiate or change (or refuses to initiate or change) the identification, evaluation, educational placement, or provision of a FAPE to a child with a disability. See M.G., 720 Fed. Appx. at 285; 20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a).
Plaintiffs argue that the CFCSD Defendants "sprung the evaluation planning meeting on A.D.'s Father without any notice when he was at the school for a different matter, without A.D. or A.D.'s Mother, and without any explanation of the family's IDEA rights." (Doc. No. 49 at p. 29.) The Court disagrees with Plaintiffs' characterization of the evidence. The record reflects that, on December 7, 2015, CFCSD emailed the Dougalls an invitation to an ETR Planning Meeting scheduled to occur two days later, on December 9, 2015. (A.R. 3558.) The invitation advised the Dougalls to contact Ms. Kowalski if they preferred to schedule the meeting at a different time. (Id.) The Dougalls did not respond to the invitation, and a second invitation was emailed to them on December 8, 2015. (A.R. 3559.) Again, the Dougalls did not respond. Dr. Doyle testified that she then attempted to reach the Dougalls by calling and leaving a voicemail; however, she received no response. (A.R. 2749 (Tr. 3374-3375)). Plaintiffs do not assert that they did not receive the above emails or voice mail messages. The meeting scheduled for December 9, 2015 did not occur. (A.R. 1934 (Tr. 1372)).
Several days later, on December 14, 2015, the parties were engaged in an attempt to mediate Plaintiffs' due process complaint. (A.R. 2749 (Tr. 3374-3375)). Since the parties were gathered together for the mediation, Dr. Doyle suggested to Mr. Dougall and his two attorneys that they conduct the ETR Planning Meeting at that time. (Id.) Mr. Dougall (with the advice of his lawyers, who were both present) agreed to go forward the ETR Planning Meeting, despite the fact that Mrs. Dougall was not present. (Id.) See also A.R. 1749 (Tr. 929). Mr. Dougall and his lawyers participated in the meeting, along with Dr. Doyle and counsel for CFCSD. (A.R. 3115-3116; A.R. 1749 (Tr. 929)).
In light of the above sequence of events, the Court cannot find that the CFCSD Defendants acted improperly or denied Plaintiffs their procedural rights under the IDEA. The CFCSD Defendants first attempted to schedule the meeting on December 7, 2015 and made numerous attempts to contact the Dougalls. CFCSD did not conduct the meeting in the Dougalls' absence. Rather, when the parties were together for a mediation on December 14, 2015, CFCSD simply suggested conducting the meeting on that date as a matter of convenience. Plaintiffs have not offered any explanation as to why they could not have declined Dr. Doyle's suggestion and requested to schedule the meeting for a different time so as to ensure Mrs. Dougall's participation. Indeed, Mr. Dougall was accompanied at this time by his attorneys, who could easily have advocated a different meeting time on his behalf if they felt it was necessary to do so.
In light of the above, the Court rejects Plaintiffs' argument that the CFCSD Defendants committed a procedural violation of the IDEA in connection with the decision to conduct the ETR Planning Meeting on December 14, 2015.
Plaintiffs argue that their procedural rights were violated because the CFCSD did not have all the mandatory IEP team members participate in the December 14, 2015 evaluation planning meeting. (Doc. No. 49 at p. 32.) They further assert that the "non-compliant evaluation planning team did not review any information or data regarding A.D." and, instead, "rushed to conduct more tests on A.D. without ever telling Parents of what assessments or tests it would be doing." (Id.) Had CFCSD done so, Plaintiffs argue, it "would have easily seen there was more than enough information available to proceed with an IDEA evaluation without any additional assessments." (Id.) The CFCSD Defendants do not address this argument.
The Court finds Plaintiffs' argument to be without merit. Ohio Admin. Code § 3301-51-06(B) sets forth the requirements for conducting an initial evaluation under the IDEA. Specifically, Section 3301-51-06(B) states that: "[e]ach school district of residence must conduct a full and individual initial evaluation, in accordance with this rule, before the initial provision of special education and related services under Part B of the Individuals with Disabilities Education Act, . . . to a child with a disability residing in the school district." Ohio Admin. Code § 3301-51-06(B). The initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation and must consist of procedures "to determine if the child is a child with a disability . . . and to determine the educational needs of the child." Ohio Admin. Code § 3301-51-06(B)(4). In conducting the assessment, the school district must "use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parents." Ohio Admin. Code § 3301-51-06(E)(2)(a). Among other things, the school district must review and summarize existing evaluation data regarding the child and identify what additional data, if any, is needed to determine whether the child is a "child with a disability" and the educational needs of the child. Ohio Admin. Code § 3301-51-06(F).
The December 14, 2015 ETR planning meeting was, therefore, the beginning of the IEP evaluation process for A.D. As Ms. Kowalski testified, the purpose of the meeting was to "identify what areas will be assessed or what areas there might be available information that can then be reviewed and identifying the titles of the individual who will be completing the assessment or summarizing the information." (A.R. 1935 (Tr. 1374)) (emphasis added). That is precisely what occurred during the December 14, 2015 meeting. The ETR Planning Form identified A.D.'s suspected disabilities, as well as the specific areas in which additional testing was necessary. (A.R. 3115.) Dr. Doyle explained the types of assessments that would be conducted and invited the Dougalls to provide any existing information to CFCSD that might be helpful in evaluating A.D.'s needs. (A.R. 2751-2756 (Tr. 3383-3401)). Plaintiffs complain that CFCSD should have realized, at the time of the December 14, 2015 planning meeting, that existing information was sufficient to assess whether A.D. was a child with a disability and determine the scope and nature of her educational needs. The Court disagrees. It was not reasonable to expect CFCSD to make that determination at the time of the ETR Planning Meeting, as CFCSD did not have in its possession all of the existing data it needed to make that assessment
Plaintiffs also appear to complain that their procedural rights were violated because the CFCSD Defendants should have, at some undetermined point in time after the ETR Planning Meeting, realized that they did not need any additional information in order to assess A.D. The Court rejects this argument. As discussed infra, it was not unreasonable for the CFCSD Defendants to determine that it needed additional information (including classroom observations of A.D. at her new school) in order to determine whether A.D. was a "child with a disability" and assess her educational needs. Accordingly, the Court finds this argument to be without merit.
Plaintiffs argue that CFCSD failed to obtain informed consent for its evaluation of A.D. because it did not adequately explain the evaluation process and/or what tests and assessments it sought to conduct. (Doc. No. 49 at p. 33.) They assert that "[i]t is clear by refusing to answer Parents' questions, failing to tell the Parents of what types of assessments it was seeking to be done, and when the testing would take place, deprived Parents of the ability to consent to those assessments pursuant to law." (Id. at p. 34.) Plaintiffs further argue, that "[[r]egardless of the consent issue, CFCSD violated the IDEA by not discussing these details with the IEP team, which the Parents were required to be a part of." (Id.) Once again, the CFCSD Defendants do not address this argument.
Under the IDEA, "consent means that . . . the parent has been fully informed of all information relevant to the activity for which consent is sought." 34 C.F.R. § 300.9(a). The Court finds Plaintiffs have not demonstrated either that CFCSD failed to explain the evaluation process, or that Mr. Dougall's consent was not fully informed. As noted above, Dr. Doyle testified, at some length, that she explained how the evaluation would be conducted and discussed the types of assessments and tests that would be used, the types of information that would be gathered, and the staff who would be conducting the tests and gathering the information. (A.R. 2751-2756 (Tr. 3383-3401)). She further testified that, during this meeting, it was expressly discussed and agreed that testing and observations would occur at Our Lady of the Elms as part of the evaluation. (A.R. 2756 (Tr. 3403)).
The IHO determined that Dr. Doyle was a "careful, exact, credible witness." (A.R. 971.) Moreover, the ETR Planning Form (which was signed by Mr. Dougall) also clearly identifies each of the assessment areas (including "classroom-based evaluations") and states that some of the assessment would be based on information from teachers at Our Lady of the Elms. (A.R. 3115.) In light of the above, the Court rejects Plaintiffs' argument that CFCSD violated their procedural rights by failing to fully explain the evaluation process and/or obtain Mr. Dougall's informed consent.
Plaintiffs argue that CFCSD violated their procedural rights by "conducting activities to which they had not yet consented to being done." (Doc. No. 49 at p. 34-35.) Plaintiffs do not identify any specific activities that it believes CFCSD conducted without consent or otherwise further develop this argument, either legally or factually.
The Court finds that Plaintiffs failed to sufficiently raise this issue in their Motion. Plaintiffs' entire discussion of this alleged procedural violation is one paragraph. Plaintiffs do not identify the specific activities they believe were conducted without consent and do not meaningfully apply the law regarding consent to the facts of the instant case. Under these circumstances, the Court finds that Plaintiffs waived any argument regarding this issue. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) ("[I]ssues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.") (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d 284, 293-94 (1st Cir.1995)).
Plaintiffs next assert that CFCSD improperly terminated A.D.'s IEP evaluation based on the erroneous conclusion that the Dougalls' revocation of the release relating to Our Lady of the Elms, constituted a revocation of consent to the IEP evaluation itself. (Doc. No. 49 at pp. 35-37.) They maintain that, as a matter of law, they were "able to reject one proposed `service or activity' and CFCSD was not legally allowed to `deny the parent or child any other service, benefit, or activity' as it did by ceasing the entire IDEA evaluation of A.D." (Id. at p. 36.) Plaintiffs argue that they "never refused consent for the receipt of special education," maintaining that "instead, they sought to work with CFCSD and to be a part of the process as the law guarantees and simply did not agree with a single portion of CFCSD's proposed evaluation." (Id. at p. 37.)
The CFCSD Defendants argue that Plaintiffs' actions "clearly and undisputedly constitute a de facto revocation of their consent to A.D.'s evaluation." (Doc. No. 55-1 at p. 24.) They assert that Plaintiffs' "refusal to permit any Copley-Fairlawn staff member from having contact with A.D. clearly made it impossible for Copley-Fairlawn to use the variety of assessments required by the IDEA to be generated in evaluating A.D., including standardized assessments, classroom-based assessments and classroom-based observations; made it impossible to include observations by A.D.'s teachers in the evaluation; and made it impossible to include observations of A.D.'s classroom setting in the evaluation." (Id. at p. 23.) Defendants argue that Plaintiffs' improperly sought to control the evaluation process, making it "impossible for Copley-Fairlawn to conduct A.D.'s evaluation in the manner required by the IDEA." (Id. at p.24.)
The IDEA provides that, in conducting an evaluation, a school district shall "use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining . . . whether the child is a child with a disability." 20 U.S.C. § 1414(b)(2)(A). IDEA regulations further provide as follows:
34 CFR § 300.305(a)(1) and (2). The regulations further mandate that "[t]he public agency must administer such assessments and other evaluation measures as may be needed to produce the data identified under paragraph (a) of this section." 34 CFR § 300.305(c).
Here, it is undisputed that Plaintiffs revoked consent for CFCSD to conduct any classroom observations of A.D or interact with any of her teachers at Our Lady of the Elms. On January 13, 2016, Plaintiffs (through counsel) informed CFCSD that "we do not want personnel from Copley coming to the Elms . . . nor do we want the District interacting with Elms personnel." (A.R. 3543.) On January 18, 2016, Mr. Dougall formally revoked his consent as follows: "We are revoking all releases executed by us to Copley Fairlawn School District concerning [A.D.]." (A.R. 3547.) Ms. Spencer responded the next day and asked: "are [the Dougalls] revoking consent for the evaluation, or releases for the following: to speak to Elms staff, to obtain records and information from the Elms, and to obtain records and information from the Student's providers; or are they revoking all of it?? Your narrative suggests that we can't observe, or obtain records/information, or test." (A.R. 3546.) Mr. Wallace replied that "as of this moment, we are revoking all releases executed by the Dougalls." (A.R. 3545.) The next day, Mr. Wallace advised Ms. Spencer that "we are revoking all releases for everything." (A.R. 3548.)
By revoking consent to perform these assessments, Plaintiffs prevented CFCSD from being able to conduct A.D.'s evaluation in compliance with IDEA regulations and in the manner in which it felt it needed in order to understand A.D.'s educational needs.
Ms, Kowalski further testified that an important part of the initial evaluation process included the ability to perform her own classroom observations, noting that it allows her to evaluate the following: "is the student following directions when the teacher is providing them, does the student appear to be following along with the instruction, are they participating if the teachers are allowing opportunities for participation, or if they're doing any collaborative or group work, how is the student interacting in those situations." (A.R. 1939 (Tr. 1391-1392)). She also explained that she needed to conduct an "individualized measure of academic achievement," which involved "working one on one with the student doing some assessments of reading, writing, and math abilities." (A.R. 1936 (Tr. 1379)). Additionally, in order to determine how A.D.'s autism affects her in the school setting, Ms. Kowalski planned to administer the Behavior Assessment System for Children, Third Edition ("BASC"), which is a rating tool that includes parent, teacher, and self-evaluation forms. (A.R. 1938find (Tr. 1386-1387)). The IHO found Ms. Kowalski to be a credible witness. (A.R. 972.)
Plaintiffs argue that IDEA regulations allow parents to reject one proposed service or activity without forfeiting the right to special education services altogether. They note that IDEA regulations provide that "[a] public agency may not use a parent's refusal to consent to one service or activity under paragraphs (a), (b), (c), or (d)(2) of this section to deny the parent or child any other service, benefit, or activity of the public agency, except as required by this part." 34 C.F.R. § 300.300(d)(3). Here, however, Plaintiffs did not simply refuse to consent to "one service or activity" proposed by CFCSD. Instead, Plaintiffs revoked consent for CFCSD to have any access to A.D. or her teachers at Our Lady of the Elms, instead insisting that the School District already had enough information to complete its evaluation of A.D. The Court agrees with the SLRO and IHO that Plaintiffs' actions and attempts to exert complete control over the evaluation process prevented CFCSD from properly conducting the evaluation and, thereby, amounted to a revocation of consent to the evaluation itself.
The Court also rejects Plaintiffs' argument that their actions should not be construed as a revocation of consent because they repeatedly asked the School to continue with the evaluation and offered to "help get the evaluation completed without bothering [A.D.] at the Elms." (A.R. 3546.) The fact remains that Plaintiffs refused to allow CFCSD to conduct the interviews, evaluations, and observations that they needed to perform in order to evaluate A.D. consistent with IDEA regulations. Under these circumstances, the Court finds Plaintiffs have failed to demonstrate that the CFCSD violated their procedural rights under the IDEA.
Plaintiffs argue that, even if the Court were to determine that consent had been revoked, CFCSD "was still under the affirmative, ongoing obligation of child find, thus, requiring the evaluation to take place once Parents requested IDEA services again." (Doc. No. 49 at p. 37.) They cite authority for the proposition that "[a]fter revoking consent for special education and services for his or her child, a parent maintains the right to subsequently request an initial evaluation to determine if the child is a child with a disability who needs special education and related services." Letter to Cox, 54 IDELR 60 (OSEP 2009). Plaintiffs assert that, despite their repeated requests that it do so, CFCSD failed to move forward with a new evaluation planning meeting and "start the evaluation process over." (Id.) The CFCSD Defendants do not address this argument.
The Court does not disagree that a parent may subsequently request an initial evaluation after revoking consent. Here, while Plaintiffs did request that CFCSD conduct a Multi-Factored Evaluation on February 11, 2016 (A.R. 3540), Plaintiffs made very clear that they continued to "revoke[] all releases that provide the school with unfettered access to [A.D.'s] records, medical care, or providers, and her new school." (Id.) In other words, the situation had not changed. Plaintiffs continued to deny CFCSD the ability to conduct the interviews, evaluations, and observations that it needed to perform in order to evaluate A.D. consistent with IDEA regulations. Under these circumstances, the Court cannot find that the CFCSD Defendants violated Plaintiffs' procedural rights under the IDEA.
Plaintiffs next argue that CFCSD "refused to evaluate A.D. because it wanted a different school to evaluate A.D., despite CFCSD being A.D.'s school district of residence." (Doc. No. 49 at p. 38.) They maintain that, as A.D.'s school district of residence, CFCSD was required, as a matter of law, to provide her with a FAPE. (Id. at pp. 38-39.) Plaintiffs assert that CFCSD violated their procedural rights because they wrongfully required Plaintiffs to reenroll A.D. in Copley-Fairlawn High School before it would conduct an evaluation.
The Court need not reach the legal issue of which school district (i.e., CFCSD as the school district of residence, or Akron City School District as the school district in which Our Lady of the Elms is located) is required to conduct an initial evaluation of A.D. under the IDEA and Ohio's implementing regulations. The fact remains that Plaintiffs have consistently refused to allow CFCSD to conduct the assessments and gather the information necessary to evaluate A.D. consistent with IDEA regulations. Moreover, the Court notes that Dr. Doyle testified that CFCSD would be open to conducting an evaluation of A.D. if consent was provided, stating "we would be happy to do another evaluation, but still we have to have access to the child and to the teachers that are educating the child." (A.R. 1666 (Tr. 738)). In light of the above, the Court rejects Plaintiffs' argument that the CFCSD violated their procedural rights.
Finally, Plaintiffs argue that CFCSD violated their procedural rights because "it is clear that CFCSD was not willing to listen to Parents' concerns or work with them as evidenced by CFCSD's conduct throughout this hearing." (Doc. No. 49 at p. 41.) They assert that CFCSD "simply did not want A.D. to ever return to its school system." (Id.) The CFCSD Defendants do not address this argument.
The Sixth Circuit has held that predetermination amounts "to a procedural violation of the IDEA." Deal, 392 F.3d at 857. See also Nack v. Orange City School Dist., 454 F.3d 604, 610 (6th Cir. 2006). It can cause substantive harm, and therefore deprive a child of a FAPE, where parents are "effectively deprived" of "meaningful participation in the IEP process." Deal, 392 F.3d at 857. "However, predetermination is not synonymous with preparation." Nack, 454 F.3d at 610. Federal law "prohibits a completed IEP from being presented at the IEP Team meeting or being otherwise forced on the parents, but states that school evaluators may prepare reports and come with pre-formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions." N.L. ex rel. Mrs. C v. Knox County Sch., 315 F.3d 688, 694 (6th Cir. 2003).
The crux of Plaintiffs' argument is that, in conducting the initial evaluation, CFCSD failed to listen to (or accommodate) Plaintiffs' concerns about assessments that would disrupt A.D. or cause her to regress in her treatment, because CFCSD had already decided that it did not want A.D. in its school system. The Court rejects this argument. This is not a situation where CFCSD refused to listen to Plaintiffs' concerns.
Plaintiffs allege that the CFCSD failed to meet its substantive obligations under the IDEA by failing to identify A.D. as a "child with a disability" under the IDEA. (Doc. No. 49 at pp. 42-44.)
As noted above, the IDEA requires states that receive federal funds for education to provide every disabled child who wants it a "free and appropriate public education" ("FAPE"). L.H., 900 F.3d at 788. A FAPE, as the Act defines it, includes both "special education" and "related services." 20 U.S.C. § 1401(9). "Special education" is "specially designed instruction... to meet the unique needs of a child with a disability"; "related services" are the support services "required to assist a child... to benefit from" that instruction. 20 U.S.C. §§ 1401(26), (29). A State covered by the IDEA must provide a disabled child with such special education and related services "in conformity with the [child's] individualized education program," or IEP. 20 U.S.C. § 1401(9)(D). "To meets its substantive obligations 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." Endrew F., 137 S.Ct. at 999.
Here, Plaintiffs argue that CFCSD substantively violated the IDEA and denied A.D. a FAPE by failing to recognize that A.D.'s autism and serious emotional disturbance qualified her as a "child with a disability" in need of special education services, including vocational services. (Doc. No. 49 at pp. 42-44.) The Court rejects these arguments for the same reasons set forth supra, in connection with Plaintiffs' argument that CFCSD violated the "child find" provisions of the IDEA.
Accordingly, and for all the reasons set forth above, the Court rejects Plaintiffs' argument that CFCSD denied A.D. a FAPE by failing to identify her as a "child with a disability" for purposes of the IDEA.
For all the foregoing reasons, Plaintiffs' Amended Motion for Judgment on the Administrative Record (Doc. No. 49) is DENIED. The CFCSD Defendants' request that this Court dismiss Counts II and II of the Complaint (Doc. No. 55-1 at p. 27) is GRANTED. Counts II and III of the Complaint are hereby DISMISSED.
Defendants' request that this Court "issue a show cause order why the Dougalls' attorney should not be liable to Copley-Fairlawn for attorneys fees in this action" pursuant to 20 U.S.C. 1415(i)(3)(B) is DENIED. The CFCSD Defendants have not shown that the instant action is frivolous, unreasonable, or without foundation, or presented for an improper purpose such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
