TODD J. CAMPBELL, District Judge.
This action is an appeal, pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., from the Final Order of an Administrative Law Judge ("ALJ") dated December 15, 2014 (Docket No. 20-1). Pending before the Court are Defendant's Motion for Judgment on the Administrative Record (Docket No. 19) and Plaintiff's Motion for Judgment on the Administrative Record (Docket No. 21).
N.J.B. ("Plaintiff")
The school psychologist stated that Plaintiff "recently began to experience some social/emotional difficulty in the classroom that is having an adverse impact on his educational performance and is related to his medical diagnoses." AR 623. She found that Plaintiff was eligible for special education due to his "medical diagnosis of ADHD and mood disorder." AR 624. She noted that Plaintiff "demonstrates an inability to learn which cannot be explained by intellectual or sensory factors." Id.
Defendant developed an Individual Education Program ("IEP"), dated December 12, 2012, for Plaintiff, as required by the IDEA. AR 625-643. The IEP noted that, although Plaintiff was very strong academically, his "health impairment [ADHD and Mood Disorder] interferes with his progress in the general curriculum and makes special programming necessary." AR 626. The IEP also noted that Plaintiff's behavior impeded his learning and that of others. AR 628. The IEP team addressed Plaintiff's behavior with a functional behavior assessment, goals and objectives, a behavior intervention plan, and accommodations. Id.
Under the IEP, which Plaintiff's father signed, the annual goal was for Plaintiff to "work to develop control over their (sic) own behaviors." AR 629. The special education service Plaintiff was to receive, at Northside Elementary, related to "Social Behavior," and the provider title was "Resource," which Plaintiff would receive 3 times per week in a regular education setting and 5 times per week in a special education setting. AR 634. All of the goals/objectives in this IEP were behavioral:
AR 629.
Plaintiff's teacher, Ms. Rotella, testified:
AR 1278.
Plaintiff's behavior deteriorated,
The teacher for Plaintiff's classroom at Mitchell-Nielson, Ms. Herod, attended the IEP meeting in February of 2013, but by the time Plaintiff got to Mitchell-Nielson, she was out on maternity leave. AR 1344 and 1361-63. At the IEP meeting, Herod expressed concern over Plaintiff's placement at Mitchell-Nielson, indicating that the classroom did not run on a set schedule or routine and she was concerned that the situation in her classroom was not the safest for Plaintiff. AR 961 and 1364-65. She noted that Plaintiff's outbursts would interrupt the other students, that the class was individually structured for each child, and that it was not the placement for Plaintiff. Id.
Plaintiff's father testified that he signed the February 2013 IEP because he thought Plaintiff clearly needed a special education teacher, what was going on at his current school was not working, he thought this would work, and he was not offered anything else. AR 377.
The substitute teacher in Plaintiff's classroom at Mitchell-Nielson, Amy Oliver, was not a certified special education teacher, even though Plaintiff's IEP required a special education behavior management teacher. AR 1344 and 932. Plaintiff continued to have serious behavior problems at Mitchell-Nielson. See, e.g., AR 1333-1341.
Dr. Raulston, Plaintiff's child psychiatrist (who first saw Plaintiff in November of 2008 and last saw him in April of 2013), testified that when he last saw Plaintiff, he was having approximately three rage episodes
On April 11, 2013, Plaintiff's father took him out of Mitchell-Nielson. He (father) was concerned that it was unsafe for Plaintiff to be at school since the behavioral measures, even in the behavior classroom, had not reduced the frequency, intensity and duration of Plaintiff's rages.
From there, Plaintiff's father moved Plaintiff to Laurel Heights Treatment Center in Atlanta. AR 455-56. He notified Defendant that he was dis-enrolling Plaintiff from Murfreesboro City Schools "because Murfreesboro City Schools has (sic) been unable to meet his educational needs this year." AR 1051. On June 5, 2013, Plaintiff's father suggested that Plaintiff's educational needs require a facility that has structure and takes a multi-modal approach, something no public school anywhere could provide. AR 1066.
On August 1, 2013, Plaintiff's father moved Plaintiff to Intermountain Deaconess Children's Services ("Intermountain") in Helena, Montana.
The Education Director testified that Plaintiff's behavior gets in the way of his education, even though he is a bright student.
The Chief Clinical Officer at Intermountain, Dr. Kohlstaedt, a licensed psychologist, testified that the child's Treatment Plan guides the integrated treatment of all of Intermountain's services. AR 1374. She stated that it is necessary for Plaintiff's treatment to be integrated so that in all his environments — educationally, in the cottage, with peers, in the lunchroom, with parents — treatment is consistent and collaborative and communicated across environments so that the maximum effect can take place. AR 1375. She stated that the problem with a complex child like Plaintiff is that treatment of an individual part of his issues without incorporating all of the relationships that are significant will not help him get better. The treatment for one thing — like medical treatment at Vanderbilt or behavioral treatments in school — is fine, but if you only treat a piece of the problem, it is not enough — you cannot treat one in isolation. AR 1392-93. She testified that Plaintiff's Treatment Plan is integrated, meaning that he is working on the same goals and objectives with slightly different strategies in the classroom as he is in his cottage, as he is in therapy. AR 1399. "So there's one treatment plan that says this is what we believe is what [Plaintiff] needs to get better and that that is worked on in every environment differently." Id. She explained that Plaintiff has struggled in all environments (at home, with peers, in the classroom, with parents, in the lunchroom). AR 1401.
Plaintiff's Initial Treatment Plan at Intermountain states that his Reason for Admission is because he "has struggled to have healthy relationships with both adults and peers. [He] has been physically and verbally aggressive and threatening to the point that he has been unable to maintain in a family and community setting." AR 1096. The Treatment Plan provides for two objectives, both of which include Education Strategies. AR 1096-97. For example, the Education Strategies for Objective 1 (Plaintiff will begin to accept adult care as evidenced by tolerating adult closeness) include "Education Staff will help [Plaintiff] learn and understand the classroom structure and routines" and "Education Staff will physically contain [Plaintiff] when he is a harm to himself or others." AR 1096. Subsequent Treatment Plans at Intermountain also included Education Strategies. See, e.g., AR 1100-01, 1106-07, 1174-75 and 1227-29. Some of Plaintiff's Treatment Plans at Intermountain also provide an Educational Summary, which includes a description of Plaintiff's behavior and his progress in the classroom setting. See e.g., AR 1102, 1156, 1166 and 1230-31.
Plaintiff's teacher for fourth grade at Intermountain, Jarrod Murgel, testified that Intermountain's educational staff marked Plaintiff's educational progress at the end of every school day, indicating Plaintiff's progress toward meeting education goals. AR 304-05. That information is used in the Treatment Plan review every three months. AR 305. Murgel described Plaintiff as "a very intelligent young man when he's not emotionally overwhelmed." AR 313. He stated that when Plaintiff is emotionally overwhelmed, it is very difficult for him to concentrate while he is in the classroom setting, but when he is emotionally stable he does well academically and he has made progress academically at Intermountain. Id.
The March 10, 2014 Psychological Assessment Report of Intermountain's Chief Clinical Officer, Dr. Kohlstaedt, indicates that Plaintiff's difficulties in school are not due to his cognitive abilities, but they are secondary to emotional disturbance which makes him exquisitely sensitive to rejection from valued others. AR 1184. "Treating the medical, emotional, psychological and educational components separately has been ineffective, and will continue to be so, since his emotional disturbance bridges all of those arenas." Id.
Defendant denied Plaintiff's request for reimbursement for Intermountain, and the dispute was heard by an ALJ to determine whether Defendant violated the IDEA and whether Plaintiff was entitled to relief. After a three-day hearing, the ALJ ruled that Defendant did provide Plaintiff a free, appropriate education in compliance with the IDEA and Plaintiff was not entitled to any relief. This action is an appeal from that decision.
The IDEA was enacted to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living. 20 U.S.C. § 1400(d)(1)(A). In general, the IDEA aims to ensure that every child has a meaningful opportunity to benefit from public education. Holman v. District of Columbia, ___ F. Supp. 3d ___, 2016 WL 355066 at * 1 (D.D.C. Jan. 28, 2016).
Under the IDEA, parents who consider their child's placement and/or IEP inappropriate have a right to an impartial due process hearing by a state or local educational agency. 20 U.S.C. § 1415(f) and (g). Any party aggrieved by the findings and decision at the due process hearing shall have the right to bring a civil action for review of that decision. 20 U.S.C. § 1415(i)(2). The party attacking the appropriateness of the IEP established by the local educational agency bears the burden of showing why the IEP and resulting placements were inappropriate under the IDEA. Houston Independent School Dist. v. Bobby R., 200 F.3d 341, 347 (5
When a party files an action challenging an administrative decision under the IDEA, a district court shall (1) receive the records of the administrative proceedings; (2) hear additional evidence at the request of a party; and (3) grant such relief as the court determines is appropriate. 20 U.S.C. § 1415(i)(2)(C). In order to determine whether the IDEA has been violated, a district court applies a modified de novo standard of review. H.M. v. Weakley County Bd. of Educ., 2015 WL 1179615 at * 10 (W.D. Tenn. March 13, 2015). Under this standard, the court may not simply adopt the state administrative findings without an independent re-examination of the evidence; nor may it substitute its own notions of sound educational policy for those of the school authorities. Id.
The court may set aside the administrative findings 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,
Where, as here, the parents unilaterally change their child's placement without the consent of state or local school officials, they do so at their own financial risk. Berger v. Medina City School Dist., 348 F.3d 513, 519 (6
In determining whether the public placement violated the IDEA, the reviewing court must undertake a twofold inquiry: whether the school system complied with the procedures set forth in the IDEA and whether the IEP developed is reasonably calculated to enable the child to receive educational benefits. Berger, 348 F.3d at 520 (citing Bd. of Educ. of Henrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)). There appears to be no dispute that the Defendant here complied with the procedures set forth in the IDEA. The first issue, therefore, is whether the February 2013 IEP developed for Plaintiff was reasonably calculated to enable him to receive educational benefits. Not surprisingly, Plaintiff argues it was not and Defendant argues that it was.
The Court finds that the February 2013 IEP developed for Plaintiff was not reasonably calculated or implemented to enable him to receive educational benefits. The IEP moving Plaintiff to Mitchell-Nielson was the same as the IEP that was obviously not working at Northside Elementary, except for the placement. According to the IEP, Plaintiff was supposed to be moved into a special education setting full-time, with the requirement of a full-time special education behavior management teacher. The actual teacher in Plaintiff's class, however, was not a special education teacher at all. She was not certified to teach special education.
It is difficult for the Court to see how the ALJ found that Defendant complied with Plaintiff's IEPs, implemented Plaintiff's IEPs, and provided the services that were outlined in Plaintiff's IEPs (Final Order, pp. 8 and 9), when Defendant did not provide full-time special education with a special education behavior management teacher.
The Supreme Court has described the IEP as the primary vehicle for implementing the congressional goals identified in the IDEA. It follows that a school district's adherence to the prescribed IEP is essential to a child's educational development under the IDEA. Holman,2016 WL 355066 at * 4. The IDEA is violated when a school district materially deviates from a student's IEP. Id. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP. Id.; Van Duyn v. Baker School Dist. 5J, 502 F.3d 811, 822 (9
The failure to provide a special education teacher for Plaintiff is not a de minimus failure to implement the provisions of his IEP. Defendant failed to implement the only change to Plaintiff's earlier IEP, placement in a setting with full-time special education, with a full-time special education behavior management teacher. The IDEA requires that as soon as possible following development of an IEP, special education and related services are made available to the child in accordance with the IEP. Holman at * 1. The appropriate special education and related services at Mitchell-Nielson were never made available to Plaintiff in accordance with his IEP. That is a material failure.
As noted earlier, Plaintiff is entitled to a "free appropriate public education" that emphasizes special education and related services designed to meet his unique needs and prepare him for further education, employment, and independent living. "Special education" is defined to mean "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability." 20 U.S.C. § 1401(29). "Related services" include psychological services, social work services, and counseling services as may be required to assist the child with a disability to benefit from special education. 20 U.S.C. § 1401(26).
Defendant determined that Plaintiff was eligible for special education. Therefore, he was entitled to instruction designed to meet his unique needs, which were emotional and behavioral, at no cost to the parents. He was also entitled to related services, including psychological services, social work services, and counseling services as might be required to assist him to benefit from special education. Given what Defendant knew and what was actually implemented (or not) at Mitchell-Nielson, the IEP of February 2013 was not reasonably calculated or implemented to enable Plaintiff to receive educational benefits. In addition, there is no evidence that Plaintiff made any progress at Mitchell-Nielson toward his IEP goals, which were behavioral, not academic.
The Court is aware that the IDEA does not require the furnishing of every special service necessary to maximize each child's potential. Rowley, 458 U.S. at 199. Once a school district determines that a child is eligible for special education and related services, however, those special education and related services, designed to meet that child's unique needs, must be provided. Here, they were not.
Having found that the public placement and Plaintiff's IEP, as implemented, violated the IDEA, the Court must now determine whether the residential placement at Intermountain was appropriate. Parents are entitled to reimbursement for private school placement so long as the placement was reasonably calculated to provide educational benefits. Knable v. Bexley City School Dist., 238 F.3d 755, 771 (6
Florence County, 114 S.Ct. at 366.
Defendant argues that Plaintiff's placement at Intermountain was primarily for treatment, not for education, citing, among other things, Kings Local School Dist. v. Zelazny, 325 F.3d 724 (6
As noted above, the reason Plaintiff was placed into special education in the first place, at Northside Elementary, was because of his emotional and behavioral problems. All the goals and objectives of his IEPs with Defendant were behavioral. Plaintiff has presented evidence that his emotional and behavioral problems are not separate from the learning process. Numerous witnesses testified about and exhibits explained Plaintiff's need for consistency across all his environments and the integrated nature of the Intermountain program. Treating the medical, emotional, psychological and educational components separately was ineffective.
The definition of special education specifically includes instruction conducted in hospitals, institutions, and other settings. 20 U.S.C. § 1401(29); see also Babb v. Knox County School System, 965 F.2d 104, 108-09 (6
Defendant also contends that Intermountain cannot be an "appropriate" placement under the IDEA because there is nothing in the records evidencing that it has been approved by the state as a school. The U.S. Supreme Court has held, however, that a court may award reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under the IDEA and put the child in a private school that provides an education that is otherwise proper under the IDEA, even if it does not meet all of the Act's requirements of the definition of a "free, appropriate, public education." Florence County, 114 S.Ct. at 365. In addition, the Court held that reimbursement is not necessarily barred by a private school's failure to meet state education standards. Id. The parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Id. at 366. Thus, the state approvals Defendant argues are not required in order for Plaintiff to be reimbursed under the IDEA. See also Lauren W. v. Deflaminis, 480 F.3d 259, 276-77 (3d Cir. 2007).
Moreover, the inclusion of Plaintiff's educational goals and objectives in his Treatment Plan, rather than an IEP, is not fatal to Plaintiff's claim. Florence County, 114 S.Ct. at 365. An appropriate private placement need not provide certified special education teachers (which Intermountain does provide) or an IEP for the disabled student. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Although the private placement need not furnish every special service necessary to maximize the child's potential, the placement must provide children with "meaningful access" to education. Id. at 364-65. Plaintiff has shown that this private school placement was reasonably calculated to provide meaningful access to education.
Here, the record indicates that Intermountain has a state license as a residential facility which allows it to house children safely, to treat them with licensed clinicians, special ed certified teachers, and appropriate levels of direct care to child ratios. AR 1371. The License itself states that Intermountain's classification is "Mental Health Center — Child & Adolescent Case Management, Child & Adolescent Day Treatment, Comprehensive School & Community Treatement (sic) Program (CSCT)." AR 1735 (emphasis added). The Court finds that Plaintiff's residential placement at Intermountain makes available to him special education and related services designed to meet his unique needs and prepare him for further education, employment, and independent living, which is one of the purposes of the IDEA. 29 U.S.C. § 1400(d)(1)(A).
For all these reasons, the Court finds that Defendant failed to implement an appropriate IEP for Plaintiff, in violation of the IDEA, and Plaintiff's placement at Intermountain is appropriate. Therefore, the ruling of the ALJ is reversed, and Plaintiff is entitled to reimbursement for his private placement expenses.
IT IS SO ORDERED.
