TIMOTHY S. BLACK, District Judge.
This civil action is before the Court on the parties' cross motions for summary judgment (Docs. 20, 21)
This is an appeal from a special education administrative proceeding, and the parties to the appeal have filed cross motions for summary judgment. Plaintiff seeks a reversal of the Ohio Department of Education's State Level Review Officer's ("SLRO") decision and reinstatement of the Impartial Hearing Officer's ("IHO") initial decision. Additionally, Plaintiff seeks attorney fees and costs.
Plaintiff initially filed a due process complaint on May 5, 2009. The due process hearing was held over seven days on July 28-30, August 10-12 and 28, 2009. (IHO decision at 2). The IHO's final decision was issued on October 26, 2009. (Id. at 15-16). The IHO found that West Clermont procedurally violated the Individuals with Disabilities Education Act ("IDEA")
West Clermont timely appealed the October 26, 2009 IHO decision with respect to the 2010-11 school year, ABS placement, and remedial therapy awards to State Level Review Officer ("SLRO") Teresa L. Hagan, Esq. In a decision dated June 28, 2010, the SLRO reversed the IHO's decision and order in its entirety. The SLRO found that the IHO incorrectly concluded that West Clermont had denied B FAPE in the 2007-2008 and 2008-2009 school years. (SLRO Decision at 2-4). The SLRO found that Plaintiff failed to show by a preponderance of the evidence that any procedural violations caused adverse or substantive effects on B's educational performance. Furthermore, the SLRO determined that there was no serious denial of the Plaintiffs participation rights in the IEP process and that B did not suffer any denial of educational benefits as a result. (Id. at 3). The SLRO also determined that B was not prevented from benefitting from her IEP due to the use of physical restraints or from the failure of West Clermont to provide a more effective behavior management plan. (SLRO Decision at 3-4). Finally, the SLRO also determined that because B had not been denied FAPE, the IHO erred in awarding any compensatory education. (Id. at 4).
As a result of the SLRO's decision, Plaintiff brought the instant action seeking a review and appeal of the SLRO decision.
At the time of the hearing in this matter, B was a 10 year-old child residing in the West Clermont Local School District. When B was four months old, Plaintiff B.H. ("Mrs. H"), took her in and subsequently became her legal guardian. (Tr. at 738). B has a variety of diagnoses including mental retardation, poorly controlled epilepsy, asthma, selective mutism,
B had significant behavior issues which included aggression, noncompliance, and leaving the classroom and building without permission. (IHO Opinion at 4; Pet. Exs. U, W, VV, JJ, EEE). Plaintiff had B evaluated at Cincinnati Children's Hospital for both speech and occupational therapy issues in 2006-2007, and those evaluations were provided to West Clermont (Pet. Exs. OO, QQ), including to Nancy Parks, the principal of Holly Hill Elementary, where B was a student. (Tr. 745-7, 1026; IHO Opinion at 3, 5). The speech evaluation recommended that B receive direct speech therapy, and the occupational therapy evaluation recommended that she receive direct occupational therapy. (Pet. Exs. OO, QQ). The communication evaluations found that B has expressive-receptive language deficits. (IHO Opinion at 5; Pet. Ex. OO). The occupational therapy evaluation identified B as having significant deficits in the areas of hygiene, toileting, self-care, reciprocal communication, and attention to task, among other things. (IHO Opinion at 6; Pet. Ex. QQ).
B was also treated by a behavior specialist, Dr. Jessica McClure, who wrote letters in the fall of 2007, which were provided to Principal Parks, stating that B required speech services, and a positive reward program to help address her behavior. (IHO Opinion at 6, 7; Pet. Ex. RR, SS and Tr. 1026). B also had several neuropsychological evaluations from Cincinnati Children's Hospital in 2005, 2007, and 2008, recommending direct speech and occupational therapy for a severe expressive-receptive language deficit, and a positive behavior reinforcement system to help her control her behavior. (IHO Opinion at 3, 5; Pet. Ex. F, NN and PP). All of the neuropsychological evaluations state that B's I.Q. is in the high 50's or low 60's
B attended Holly Hill Elementary School from August 2007 through January 2009. (IHO Decision at 2-3). She attended the third and fourth grade in the 2007-2008 and 2008-2009 school years. (Id.) Her Individualized Education Program ("IEP") period ran from November to November so that in August of 2007, B was still following the 2006-07 IEP.
In the fall of 2007, Plaintiff sent letters to both Mrs. Parks, the principal of Holly Hill, and Mr. Nacke, B's special education teacher, detailing concerns she had about B's behavior, adaptive behavior deficits, and need for direct speech and occupational therapy. (Pet. Ex. TT, UU; IHO Opinion at 7). While both Parks and Nacke acknowledged receiving these documents, no changes to B's IEP were made at that or any other time. (Tr. 376-378, 1003-04; 1032-34). At no time did anyone in the District send a prior written notice to Plaintiff explaining the District's refusal to provide speech or occupational therapy, or its refusal to address B's functional needs in her IEP, or advising her of her rights. (Tr. 749, 1097, 1032-34). B's IEP for the 2007-08 school year provided her with 30 minutes of speech consult per quarter, which was reduced in the 2008-09 school year to 15 minutes of speech consult per quarter, for a total of 45 minutes per year. (Pet. Ex. J, K; Tr. at 638). The speech therapist, Meg Stansbury, never worked with B, was not aware that she had a cognitive deficit, was not aware that she had a language disorder, or that the 2006 ETR recommended that she receive speech therapy. (Tr. 629, 631). B was receiving 30 minutes of OT consult per month on both the 2007-08 IEP and 2008-09 IEPs for handwriting and sensory issues only. (Pet. Ex. J, K).
B's behaviors, while challenging, were still manageable at the beginning of the 2007-08 school year, and she was spending most of her time in the regular education classroom. (IHO Opinion at 8; Tr. 43-45, Pet. Ex. K). By December of 2007, B's practice of running out of the classroom had become enough of an issue to warrant the District completing a functional behavior assessment. (IHO Opinion at 8; Pet. Ex. VV). The assessment, completed by an untrained aide, revealed that B was being restrained in her chair by the aide.
Over the course of the spring of 2008, B's behavior became more difficult, resulting in episodes documented by the aide in daily notes. (Pet. Ex. EEE). B had frequent "fits" and her behavior escalated and included hitting, kicking, spitting, and noncompliance. (Pet. Ex. EEE; IHO Opinion at 9). The behavior plan used in the classroom was a "point" system which allowed B to earn points to move up "levels." (Pet. Ex. EEE). By April 2008, Mrs. H was notified of the aide's concern regarding the escalation in B's behavior (Pet. Ex. EEE 15), but neither the principal nor the teacher took any steps to address the increasing escalation. (Tr. 430). Mr. Nacke had commenced using "CPI"
The point system in the classroom required B to acquire a certain minimum number of points every day, with each point total differing for different activities, and to achieve those numbers for eight consecutive days in order to move to the next level where additional privileges were afforded. (Tr. 466-71, Pet. Ex. JJ; IHO Opinion at 8). B could earn up to 2 points for each of five different behaviors ("following directions," "stay in own space," "on task," "positive peer interaction," and "positive staff interaction") for each of the seven periods of the day. (Tr. 466-71). Those points were subtotaled. B could earn up to seven points for her 3 personal goals (communicate needs, uses sensory items correctly, and completes task in timely manner). (Tr. 366-72). She could obtain up to 5 points for bus behavior, and up to 4 points for recess. (Tr. 466-72). These were totaled at the end of each day out of a total possible number of 100 points per day. (Tr. 466-72). If she "made her day," depending on what her IEP required, she then had to reach that number for 8 consecutive days in order for her to reach the next "level." (Tr. 466-72).
B never made it out of Level One, the lowest level, after the second day of school in August 2008, until the time she left Holly Hill in January of 2009. (Tr. 492). In fact, the teacher often docked B points while sleeping, even though she had a poorly controlled seizure disorder, and took medication that causes sleepiness. (Tr. 83, 171, 176, 610, 780-1, 1125-27). Frequently B had severe behavioral outbursts, where she was physically restrained, but still was rewarded with points, while at other times, she had fewer behaviors, but failed to achieve the necessary
From the first day of the 2008-09 school year, B was repeatedly physically restrained by staff at Holly Hill for her behaviors, sometimes multiple times per day.
On January 21, 2009, B was restrained 8 times in one day by Mr. Nacke.
The due process request was filed by Plaintiff in May 2009. Among other things, the request sought behavior, speech, and occupational therapy evaluations by individuals trained in behavior management techniques. (Pet. Ex. TTT). The District contracted with Applied Behavioral Services ("ABS"), a private day treatment center, to conduct the evaluations, one month after the due process request was made. (Tr. 588; VVV). The evaluations revealed that B requires direct speech and occupational therapy services to address her significant areas of deficit in communication, adaptive and self care skills, among other things.
Finally, B was evaluated by Dr. Vanessa Jensen, a highly credentialed, licensed clinical psychologist in the behavioral pediatric psychology department at the Cleveland Clinic. (Pet. Ex. A). Dr. Jensen has 25 years experience working with and evaluating children with autism and other developmental disorders. (Tr. 19-25; IHO Opinion at 13-14). She has been involved in the creation of programs for children with autism, ADHD, cancer, and GI disorders. She has extensive experience in the development of school programs, behavior plans, and vocational programs for developmentally disabled children, and has substantial experience working with IEP teams. She has also served on the faculty of several universities, and has a vast array of peer reviewed publications. Her clinical practice includes diagnostic evaluation of children with complex developmental, genetic, and autism spectrum disorders. Her services are utilized by both school districts and parents in the determination of appropriate programming and behavior management. (Tr. 19-25; Pet. Ex. A).
Dr. Jensen's report reached the same conclusions as the evaluators retained by the District. Dr. Jensen determined that B suffers from significant adaptive behavior deficits, and the goals in her IEP were not appropriate for her. (Tr. 189). Her skill levels have failed to progress since prior to the time she came to Holly Hill. (Pet. Ex. B). Dr. Jensen further stated that the behavior management program used in Mr. Nacke's class was too complicated for B to understand, that it was inconsistently applied, and had the effect of reinforcing her unwanted behaviors. (IHO Opinion at 14; Tr. 48-59, 77-8, 85-6; Pet. Ex. B). Dr. Jensen found that the use of physical restraint on B over such an extended period was inappropriate, and, in any event, was not working to reduce her behaviors. (Tr. 89-90; Pet. Ex. B). Dr. Jensen opined that B would benefit from discrete trial teaching, and a program that uses Applied Behavior Analysis, which is a research based treatment method for behavior management that uses positive reinforcement. (IHO Opinion at 14; Pet. Ex. B). According to Dr. Jensen, without interrupting the slide evidenced over the past two years, B would be expected to continue a downward spiral which could make it difficult for her to stay at home. (Tr. 200-01). Dr. Jensen stated that 3-4 years of remediation could compensate B for the loss suffered as the result of the inappropriate programming from the District. (Tr. 183-4, Pet. Ex. B).
While the pending motions are styled as ones for summary judgment, the standard of review differs from a typical Rule 56 motion. This Court is required to apply a "modified de novo" review to appeals from administrative proceedings under the IDEA. N.L. v. Knox Cnty. Schools, 315 F.3d 688, 692 (6th Cir.2003). This standard dictates that the Court "make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings, particularly when educational expertise is essential to the findings." Id. Because this case involves both procedural and substantive issues, the Court must distinguish the standard to be applied to each.
As for substantive issues, the preponderance of the evidence language in IDEA indicates "the deference due to the administrative findings is less than that generally accorded to administrative decisions, whereby the court will uphold a decision if
Id.
However, when educational expertise is not relevant to the findings, less weight is afforded to the administrative decision "because a federal court is just as well suited to evaluate the situation." Kings Local School Dist. Bd. of Educ. v. Zelazny, 325 F.3d 724, 728 (6th Cir.2003). According to this "modified" de novo standard of review, a district court is required to make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings. Knable v. Bexley City School Dist., 238 F.3d 755, 764 (6th Cir.2001). While this Court must afford the SLRO deference where educational expertise is applied, it will not "second guess" the credibility determinations made by an IHO who "was in the best position at the due process hearing to assess the credibility of the witnesses who testified." Bd. of Educ. of the City School Dist. of the City of Cincinnati v. Wilhelmy, 689 F.Supp.2d 970 (S.D.Ohio 2010).
Plaintiff makes essentially four arguments in favor of overturning the SLRO's decision: (1) Plaintiff was denied meaningful participation in the IEP process because West Clermont pre-determined services and failed to provide Plaintiff with the necessary prior written notice; (2) Plaintiff was denied a FAPE because of West Clermont's improper behavior program; (3) the SLRO's decision was improper in overturning the IHO's award of compensatory education and remedial occupational speech therapy; and (4) the SLRO's decision was incorrect in denying Plaintiff prevailing party status and thus an entitlement to receive attorney fees.
Plaintiff claims that the District violated the law when they failed to give Mrs. H's outside evaluations any consideration. The Federal Regulations provide that independent evaluations obtained privately by parents must be considered by the school district in any decision made with respect to the provision of FAPE to the child. 34 C.F.R. § 300.502(c); O.A.C. § 3301-51-05(G)(3). Plaintiff claims that these procedural violations amounted to the District's predetermination
In 2007 and 2008, Mrs. H provided Nancy Parks with the speech, neuropsychological, and OT evaluations from Cincinnati Children's Hospital. (Tr. 745-47, 1026). These evaluations established that B needed direct speech-language services and occupational therapy to work on adaptive behavior and self care skills in her educational program, or she would regress. (Pet. Ex. F, NN, PP, QQ, RR, SS). Additionally, Dr. McClure, of Children's Hospital, also sent a letter to Mrs. Parks requesting speech and behavior services for B. (Tr. 1026, and Pet. Ex. RR, SS).
The IHO found that the team did not consider those evaluations or letters as required by law and in violation of IDEA. (IHO Opinion at 17). Mrs. Parks acknowledged and admitted that the letters and evaluations she received were not considered at the IEP meetings for B. (Tr. 1026-28, 1031-1032, 1034). However, the SLRO found that just because the IEP team did not include the recommendations for B's speech and occupational therapy, did not mean that the team did not consider the evaluations. (SLRO Opinion at 15). This finding is not supported by Mrs. Parks' express admission to the contrary.
Despite the SLRO's extensive discussion of the issue, Plaintiff does not argue that excusing the speech therapist from the IEP meeting amounted to predetermination of speech therapy. The dismissal of the speech therapist, by itself, is not the issue. Plaintiff focuses on the notations on the excusal form by which the District predetermined that B would receive minimal consultative, speech services. (IHO Opinion at 18-19). The forms excluding Ms. Standburg, the District's speech pathologist, state that B would continue to receive the 15 minute consult per quarter that she had been getting. (Pet Exs. J15, K14). These documents were created in both the 2007 and 2008 school years, prior to the IEP meetings. (Pet Exs. J15, K14). Accordingly, the evidence clearly shows that speech services had been predetermined before the IEP team ever met.
While districts and parents can agree to excuse team members from attendance where services remain unchanged (34 C.F.R. § 300.321(e)(2)), the agreement in this instance was made without the information that would have informed Ms. Standbury of the new evaluations. Ms. Standbury testified that she had never been sent the neuropsychological evaluations done on B in both 2005 and 2008, which recommended that B receive speech therapy, and did not even know that Mrs. H had requested direct speech therapy. (IHO at 17; Pet. Exs. F and MN, Tr. 632-34, 638). The IHO determined that since Ms. Standbury did not know anything about B, and was not provided with the evaluations, she could not have contributed to the discussion even if she had been present at the meeting. (IHO Opinion at 18-19, 22).
The OT and neuropsychological evaluations done by Cincinnati Children's Hospital related to B's need to learn appropriate hygiene, toileting, and self care skills, which also required direct service. (Pet. Exs. F, NN, PP, QQ). Plaintiff claims that none of those evaluations were ever considered by the District, despite Mrs. H's repeated requests. (Tr. 745-48, 751, 757, 758, 821-22). In October 2007, a meeting was held where the concern was documented by "Mom and the other professionals in this case that no OT services have yet to begin within the school program... There has been some concern expressed by both psychiatry and psychology services at [Children's Hospital] that previously made gains may begin to slip without a unified effort on the part of all providers." (Pet Ex. WW; Tr. 404).
The SLRO opinion found that "Kid Power" evaluations were considered in B's IEPs for the 2007-08 and 2008-09 school years. (SLRO at 16-17). Specifically, the SLRO found that the "Kid Power" evaluations state that B's occupational therapy needs were "reviewed and discussed by the IEP team." However, the Court notes that the only Kid Power evaluation to recommend consultive OT was done in conjunction with the October 2006 ETR, a year before the 2007 IEP and two years before the 2008 IEP. (Pet Ex. D; Sept. SLRO Brief at 24-26).
The IHO found that the District committed additional procedural violations by failing to provide prior written notice for failing to consider outside evaluations. (IHO at 19-20). The prior written notice is required any time a school district proposes or refuses to take action with respect to the provision of a child's FAPE. 34 C.F.R. § 300.503; O.A.C. § 3301-51-05(H). The Court finds that if the District elected not to consider the evaluations, it was required to comply with 34 C.F.R. § 300.503, which would have explained the District's action and notified Mrs. H of her rights. Id. See e.g., Comty. Consol. School Dist. #93 v. John F., Case No. 00-cv-1347 (N.D.Ill. 2000). Without these notices, Plaintiff argues that she was not in a position to know her rights or the reasons for the District's denial. (Doc. 21 at 22-23).
In Deal v. Hamilton Cty. Bd. of Edu., 392 F.3d 840 (6th Cir.2004), the Court held that merely because the parents were present and spoke at the IEP meeting, did not mean that they were "afforded adequate opportunity to participate." Id. at 862. "Where there was no way anything the Deals said, or any data the Deals produced could have changed the School System's determination of appropriate services, their participation was no more than after the fact involvement" Id. at 858. Mrs. H had private evaluations conducted by Children's Hospital, she sent letters, she had her psychologist send letters, and she had more evaluations completed in 2008. (Tr. 745, 748, 756, 773, 786).
In order for the procedural violations to amount to a denial of FAPE, they must have substantively harmed the child. Knable, 238 F.3d 755. Therefore, a procedural violation committed during the formulation of a child's IEP is actual only if that violation: (1) impedes that child's right to FAPE; (2) significantly impedes the parents' opportunity to participate in the decision making process; or (3) causes a substantive deprivation of benefits. 20 U.S.C. § 1415(E)(ii); 34 C.F.R. § 300.513(A)(2).
The SLRO found that there was nothing that supported the finding that B's educational benefits were "compromised or denied." (SLRO Opinion at 23 citing IHO Opinion at 18-which does not say what the SLRO Opinion alleges). The Court disagrees and finds by a preponderance of the evidence that B suffered substantive harm. Both Dr. Jensen and the staff at Applied Behavioral Services found, separately and independently, that B needs direct speech and occupational therapy services, and requires services to assist with significant adaptive skill deficits. (Pet. Exs. B and BBBB). An October 2007 Occupational Therapy Evaluation done at Cincinnati Children's Hospital states "[t]he extent of B's problems currently interferes with the attainment of independence in occupational performance. Without skilled intervention, B may be at
The Court finds that the IHO properly found that the failure to provide B with the necessary related services of speech and occupational therapy from May 2007-May 2009 constituted a denial of FAPE, as well as denial of meaningful participation to Mrs. H. (IHO Opinion at 22). Furthermore, the SLRO opinion is without any evidentiary or legal support and contains virtually no references to the record. Therefore, the Court finds by a preponderance of the evidence, that the District's failure to provide B with speech and occupational therapy constituted a denial of FAPE.
Plaintiff alleges that B was also denied FAPE when the District did not consider the use of positive behavioral interventions and when it failed to address B's escalating behaviors, except through the use of restraint and punishment.
The IDEA requires that students with disabilities must derive "meaningful educational benefit" from their special education programs. Deal, 392 F.3d at, 862. The Sixth Circuit has mandated that this benefit be "gauged in relation to the potential of the child at issue." Id. "Only by considering an individual child's capabilities and potentialities may a court determine whether an educational benefit provided to that child allows for meaningful advancement. In conducting this inquiry courts should heed the congressional admonishment not to set unduly low expectations for disabled children." Id. at 864.
IDEA requires that school districts "consider the use of positive behavioral interventions and supports, and other strategies to address [that] behavior for a child whose behavior impedes the child's learning or that of others." 34 C.F.R. § 300.324(a)(2)(i); O.A.C. § 3301-51-07(L)(1)(b)(i). Additionally, the IEP must contain levels of both academic and functional performance, 34 C.F.R. § 300.320(a)(1), and must contain annual goals with both academic and functional components. Id. at 34 C.F.R. § 300.320(a)(2).
The IEP's behavior goals going back to 2006-07 were premised on the number of points B earned in the "level" system.
The special education and related services in an IEP developed under the IDEA must be "based on peer-reviewed research to the extent practicable." O.A.C. § 3301-51-07(H)(1)(e). There is no evidence in the record that there was any scientific basis for the point system. Moreover, the IHO found and the evidence supports a finding that the point system was incomprehensible to B and was inconsistently applied. (IHO Opinion at 33-34; Tr. 66-68, 74-76, 85-6, 93-4, 497-9, 891; Pet. Ex. GG). Both Mrs. H and Rachel Perlstein, the MRDD consultant working with B, testified that the District was told that B, who has a cognitive deficit, did not understand the point system. (Tr. 514, 783-4, 920-21; Pet. Ex. W 13). The IHO found that where Mr. Nacke, the intervention specialist for the 2007-2009 school years, had to explain the points system to B 4-5 times, per week, it should have become apparent to him that B was not able to understand it. (IHO Opinion at 34). Moreover, Dr. Jensen, Mr. Nacke, Rachel Perlstein, and Mrs. Hook all testified about the inconsistent implementation of the points system. (Tr. 51-52, 67-69, 72-80, 86, 465-72, 783-84, 861-62, 885-86, 920-21).
Additionally, the IHO found that Mr. Nacke was unduly punitive with B, and was punishing her for behavior related to her disability. (IHO Opinion at 35-36; Tr. 60-61, 118-119). The IHO found it "striking" that the restraint was not necessary, especially after B was sent to another program, The Wildey School, where the same behaviors occurred but no physical restraint was necessary. (IHO Opinion at 30, 33-34, 36). In fact, a progress report from B's school states that B has been able to manage her behavior, has had a reduction in the instances of behavioral outbursts, and while selectively mute at Holly Hill, now verbalizes responses. (Doc. 16, Ex. 1 at 2, 4-6).
The SLRO determined that because B "did not regress academically" or "suffer educationally" the District met the standard necessary to the provision of FAPE. (SLRO Opinion at 3, 34-36). To support her position, the SLRO cited a number of cases for the proposition that adverse impact on academic performance is the deciding factor in determining whether FAPE has been denied to a student with behavioral issues. (SLRO Opinion at 28).
Moreover, the SLRO admitted that B had "escalating behaviors" and that the District's behavior "plans and interventions" were unsuccessful (SLRO Opinion at 36), and Defendant concluded that B's behavior was an essential part of her program since it included behavior goals in each of the IEPs at issue. (Pet. Exs. J3, K7, L1). Once these goals were included in B's IEP, the District was required to provide specially designed instruction "to address the unique needs of the child that result from the child's disability." 34 C.F.R. § 300.39(b)(3)(i). The Court finds that Defendant failed to meet B's behavioral needs where it neglected to implement appropriate positive behavioral interventions, set increasingly low behavioral expectations, and employed physical restraint, even where shown to be ineffective.
Accordingly, the Court finds that the IHO properly found that B's behavior regressed from 2007-2009, while she was at Holy Hill, and that the District's failure to properly address her behavior constituted a denial of FAPE, especially where B's behavior goals themselves graphically demonstrated this regression. (IHO at 35-36).
The IHO found that there was a denial of FAPE because of the District's failure to provide appropriate speech and occupational,
Conversely, the SLRO concluded that since B received FAPE, she was not entitled to any compensatory education. Despite having found that B was not entitled to any compensatory education, the SLRO proceeded to find fault in the IHO award because it constituted an "hour for hour" award which the SLRO determined was contrary to the method by which such awards are determined. (SLRO Opinion at 37-38). Defendant maintains that since the IHO's awards were arbitrary, the SLRO was correct in overruling them.
Plaintiff argues, however, that the SLRO had no jurisdiction to rule on the compensatory education award for 2009-2010, since this issue was not raised in the appeal. (Id.) In its brief to the SLRO, the District expressly stated that "B's placement at ABS for the 2009-10 school year is not at issue in this appeal." (Resp.'s SLRO Brief at 2). The SLRO stated in a footnote at the beginning of its decision that "[t]he remaining portions of the IHO Decision that ordered the District to provide B with appropriate transportation and to pay for the cost of a Functional Behavioral Analysis to be conducted by ABS were not raised as appeal issues by the appellant School District in their Notice of Appeal." (SLRO Opinion at 1). Although not stated expressly, the SLRO's statement indicates that if the District failed to raise the issue in their Notice of Appeal, then it was not properly before the SLRO. This Court finds that there is no mention of the compensatory education award for 2009-2010 in the Notice of Appeal.
An award of compensatory education is an equitable remedy granted by the court as it finds appropriate. Bd. of Educ. of Fayette Cty. Ky. v. L.M., 478 F.3d 307 (6th Cir.2007). Courts have broad discretion under the IDEA to fashion appropriate relief to remedy a denial of FAPE. Sch. Comm. of Burlington v. Mass. Dep't of Educ., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
The SLRO faulted the IHO because she believed he used an "hour for hour" analysis in ordering two years compensatory
Additionally, the District argues that ABS is not the least restrictive environment
The IHO awarded B two years of remedial speech and occupational therapies. (IHO Opinion at 43). Subsequently, the SLRO found that the IHO improperly delegated his authority to the IEP team in the calculation of the speech and occupational services, because while two years's worth of services was awarded, the specific
Finally, Plaintiff alleges that the SLRO improperly denied her prevailing party status and an entitlement to receive attorney fees. The IDEA permits parents who prevail on their claims to receive their attorneys' fees. 20 U.S.C. § 1415(i)(3)(B). A parent is a prevailing party when they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Keene v. Zelman, 337 Fed.Appx. 553, 556 (6th Cir. 2009). Plaintiff claims that because her award of compensatory education was not appealed by the District, she has succeeded on that portion of her claim. (See argument supra at ____, reporting the District's failure to contest B's 2009-2010 placement at ABS).
The District, however, alleges that it had already made the placement sought before the hearing, and that because the parties agreed to change the "stay put" placement, the IHO opinion was unnecessary.
Based on the evidence of record, the Court finds that Plaintiff proved her case by the preponderance of the evidence, and has established that B was denied a FAPE. Accordingly, Defendant's motion for summary judgment (Doc. 20) is
