OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, grounded in the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2)(A),1 appealing Texas Education Agency ("TEA") Special Education Hearing Officer Tomas Ramirez, III's decision2 that Klein Independent School District ("KISD") failed to provide student Per Hovem with a free appropriate public education3 and ordering Plaintiff/Counter-Defendant KISD to reimburse the Hovems for past and future educational expenses incurred by them at a private residential facility located in Massachusetts, are (1) KISD's motion for summary judgment (# 17) and (2) the Hovems' motion for judgment upon the administrative record (# 39).

After careful review of the administrative record, the parties' briefs, and the applicable law, and after considerable thought, the Court finds from a preponderance of the evidence in the administrative record, for reasons explained below, that the Hearing Officer's Decision should be affirmed in part and reversed in part and the Hovems' motion for judgment should be granted with regard to KISD's failure to provide Per with a FAPE and to reimbursement for educational expenses, but not for residential expenses, incurred by Per at Landmark School.

Standard of Review

Summary Judgment Under the IDEA: Review of Hearing Officer's Decision

When addressing a summary judgment under the IDEA appealing a hearing officer's decision, the court reviews the administrative record of the due process hearing and examines new evidence at the request of any party. HISD v. V.P. ex rel. Juan P., 582 F.3d 576 (5th Cir.2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1892, 176 L.Ed.2d 365 (2010); Cypress-Fairbanks ISD v. Michael F., 118 F.3d 245, 252 (5th Cir.1997) (citing Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)), cert. denied, 522 U.S. 1047, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998). When no new evidence is presented to the district court in an IDEA suit, ... "the motion for summary judgment is simply the procedural vehicle for asking [the judge] to decide the case on the basis of the administrative record." El Paso ISD v. Richard R., 567 F.Supp.2d 918, 927 (W.D.Tex.2008), citing Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir.1997). See also D.C. v. Klein ISD, 711 F.Supp.2d 739, 743-44 (S.D.Tex. 2010), citing Loch v. Edwardsville School Dist. No. 7, 327 Fed.App'x 647, 650 (7th Cir.2009); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995) ("Though the parties [in an IDEA action] may call the procedure `a motion for summary judgment' ... the procedure is in substance an appeal from an administrative determination, not a summary judgment."). "Thus even though it is termed `summary judgment,' the district court's decision is based on the preponderance of the evidence." Loch, 327 Fed.App'x at 650. Therefore the existence of a disputed issue of material fact will not defeat such a motion for summary judgment. 20 U.S.C. § 1415(i)(2)(C). The parties here have not submitted any new evidence, so this Court's review of the Hearing Officer's decision will therefore be based on the administrative record below.4

While the court must give the hearing officer's findings "due weight," it must make an independent, "virtually de novo" decision based on preponderance of the evidence before it. 20 U.S.C. § 1415(i)(2)(C); Michael F., 118 F.3d at 252. In applying the "due weight" standard, "the hearing officer's findings are not conclusive and the court may take additional evidence and reach an independent conclusion based on the preponderance of evidence." Teague ISD v. Todd L., 999 F.2d 127, 131 (5th Cir.1993). Furthermore the district court does not have to defer to the hearing officer's findings "when its own review of the evidence indicates that the hearing officer erroneously assessed the facts or erroneously applied the law to the facts." Id. The Teague appellate panel quoted Rowley:

999 F.2d at 131, quoting Rowley, 458 U.S. at 205, 102 S.Ct. 3034 (quoting S. Cong. Rec. 37416 (1975) (remarks of Sen. Williams)). Nevertheless this preponderance-of-the-evidence standard is not "an invitation to the courts to substitute their own notion of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206, 102 S.Ct. 3034. "The primary responsibility for formulating the education to be accorded to a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child." Id. at 207, 102 S.Ct. 3034.

While the court reviews a mixed question of fact and law de novo, "the underlying fact-findings, `such as finding that a disabled student obtained educational benefits under an [individualized education program ("IEP")],5 are reviewed for clear error.'" HISD v. Bobby R., 200 F.3d 341, 347 (5th Cir.2000) (quoting Cypress-Fairbanks, 118 F.3d at 252), cert. denied, 531 U.S. 817, 121 S.Ct. 55, 148 L.Ed.2d 23 (2000). "A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court based on all the evidence is left with the definitive and firm conviction that a mistake has been committed." Houston Exploration Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir. 2004).

The IDEA

The Fifth Circuit has held that the IDEA creates a presumption in favor of the school district's IEP. White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir.2003). Therefore the party challenging the appropriateness of an IEP during the due process hearing bears the burden of showing why the IEP and resulting placement were inappropriate under the statute. Id.; Schaffer v. Weast, 546 U.S. 49, 57-58, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (In an administrative hearing under the IDEA, the burden of persuasion is properly placed on the party seeking relief, the plaintiff); Bobby R., 200 F.3d at 347. See also White, 343 F.3d at 377, citing Teague ISD v. Todd L., 999 F.2d 127, 132 (5th Cir.1993); Michael F., 118 F.3d at 252. The Fifth Circuit has further held that "at the district court level, as at the administrative level, the party challenging the IEP bears the burden of showing that the IEP and the resulting placement are inappropriate under the IDEA." Richardson ISD v. Michael Z., 580 F.3d 286, 292 n. 4 (5th Cir.2009). Thus the Hovems still bear the burden of persuasion here.

A central goal of the IDEA is to make sure that children with disabilities "receive a `free appropriate public education ["FAPE"]6 that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.'" Houston ISD v. V.P. ex rel. Juan P., 582 F.3d at 583. KISD, as "`a local educational agency responsible for complying with the IDEA as a condition of the State of Texas' receipt of federal education funding' ... must `(1) provide each disabled child within its jurisdictional boundaries with a `free appropriate public education' tailored to his unique needs, and (2) assure that such education is offered... in the least restrictive environment consistent with the disabled student's needs.'" Id., citing Michael F., 118 F.3d at 247. The school district does not have to "provide its disabled students with the best possible education, nor one that will maximize the student's educational potential." Id., citing Michael F., 118 F.3d at 247 (citing Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034). "`Nevertheless, the educational benefit to which the Act refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be likely to produce progress, not regression or trivial educational advancement'"; in other words, KISD must provide its disabled students with "`meaningful' educational benefit." Id., citing Michael F., 118 F.3d at 248. The decision whether a local district's IEP was appropriate under the IDEA is a mixed question of law and fact. Michael F., 118 F.3d at 252.

The IEP is the centerpiece of and the primary vehicle for effecting Congressional goals under the IDEA. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IEP "sets out the disabled child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Id., citing § 1401(9). It must be reviewed at least annually and revised where necessary to ensure that the school district tailors the statutorily mandated FAPE to the child's unique needs. Id., citing § 1414(a)(5). Parental participation is essential in the development and subsequent assessments of the IEP's effectiveness. Id. Therefore the Act establishes procedural safeguards to guarantee parents the opportunity for meaningful input into all decisions about their child's education and the right to request review of any decisions they consider inappropriate. Id. Examples include the right to examine all relevant records relating to the identification, evaluation and educational placement of the child; participation in meetings concerning the child's educational placement; right to obtain an independent educational evaluation of the child; prior written notice of any agency proposal to change the child's placement or program; an opportunity to make any complaints about the agency's actions; and the right to an impartial due process hearing for any such complaints.7 20 U.S.C. § 1415(b); Id. at 311-12, 108 S.Ct. 592. If issues still have not been resolved, the educational agency and the parents each have the right to seek further administrative review, and subsequently if still necessary, file a civil action in state or federal court. Id. at 312, 108 S.Ct. 592, citing §§ 1415(c) and (e)(2).

When a parent contests the appropriateness of an IEP, or whether the school district provided the student with disabilities a FAPE, the district court should follow a two-step review, the first procedural, the second substantive: (1) it must determine whether the state complied with the IDEA's procedural requirements, and (2) decide whether the IEP was "`reasonably calculated to enable the child to receive educational benefits.'" Juan P., 582 F.3d at 583-84, citing Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034.

For the substantive prong of the Rowley test, the Fifth Circuit considers four factors as "indicators of whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA": whether "(1) the program is individualized on the basis of the student's assessment and performance; (2) the program is administered in the least restrictive environment8; (3) the services are provided in a coordinated and collaborative manner by the key `stakeholders'; and (4) positive academic and non-academic benefits are demonstrated."9 Juan P., 582 F.3d at 584, citing Michael F., 118 F.3d at 253. "[T]hese factors are ... intended to guide a district court in the fact-intensive inquiry of evaluating whether an IEP provided an educational benefit," and the court does not err in affording more or less weight to one than the other. Michael Z., 580 F.3d at 294.

A party challenging implementation of the IEP must show that the "school board or other authorities failed to implement substantial or significant provisions of the IEP"; the failure of the local education agency "to provide all the services and modifications in an IEP does not constitute a per se violation" of the statute. Bobby R., 200 F.3d at 349. Nor is it necessary for the handicapped student to improve in every area to obtain educational benefit from his IEP. Id. at 350. School districts are not required to cure or erase the differences between disabled and non-disabled children, but only to develop an individualized program capable of providing an educational benefit to the child. D.B. ex rel. C.B. v. Houston ISD, No. Civ. A. H-06-354, 2007 WL 2947443, *11 (S.D.Tex. Sept. 29, 2007), citing Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1047 (5th Cir.1989); Rowley, 458 U.S. at 200-01, 102 S.Ct. 3034 ("the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside."). Moreover while the school district and experts may disagree over the diagnosis of a student's disability, "[t]he IDEA charges the school with developing an appropriate education, not with coming up with a proper label with which to describe [the child's] multiple disabilities." Heather S. v. Wisconsin, 125 F.3d 1045, 1055 (7th Cir.1997).

Eligibility under the IDEA terminates with the earlier of high school graduation or the student's twenty-first birthday. 20 U.S.C. § 1412(1)(a) (2005).

The statute of limitations for a parent or school district to file for a due process hearing under the IDEA is found in 20 U.S.C. § 1415(f)(3)(C) [emphasis added by the Court]:

There are two exceptions under 20 U.S.C. § 1415(f)(3)(D):

The IDEA limitations period, with its express exceptions, is not subject to equitable tolling. D.C. and A.C. v. Klein ISD, 711 F.Supp.2d 739, 746-47 (S.D.Tex.2010) (and cases cited therein).

Nevertheless, the State of Texas has expressly established a shorter limitations period than that in the IDEA. Under Texas law, 19 Tex. Admin. Code § 89.1151, there is an explicit one-year time period for requesting a due process hearing:

If the court determines that a school district met procedural requirements and implemented an appropriate IEP reasonably calculated to enable the child to receive educational benefits, the District has no further responsibility. Rowley, 458 U.S. at 207, 102 S.Ct. 3034; Michael Z., 561 F.Supp.2d at 598. If not, where a "suitable or `appropriate' public educational placement is not available for a disabled child within a state or local school district, the district must pay the costs of sending the child to an appropriate private institution." Michael Z., 561 F.Supp.2d at 598-99, citing Michael F., 118 F.3d at 248, and School Committee of the Town of Burlington v. Dep't of Educ. of Massachusetts, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (concluding that the IDEA authorizes courts to "reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act").

Then IDEA does not expressly provide parents with a private right of action for reimbursement of tuition, but in Burlington, the Supreme Court held that the broad grant of authority and discretion to a federal court under the statute to "grant such relief as the court determines is appropriate" includes "the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act." 471 U.S. at 369-70, 105 S.Ct. 1996.10 It further held that parents who think that their child's IEP fails to meet IDEA requirements may, at their own financial risk, unilaterally remove the child from public school and place the child in private school and then seek retroactive reimbursement of tuition from the state. 471 U.S. at 370, 105 S.Ct. 1996.

Moreover, where the public school fails to design an IEP that would provide a FAPE for a disabled student, parents in selecting a private school are exempt from the statutory requirement imposed on public schools to "provide[ ] at public expense under public supervision and direction" or that the IEP be designated by a representative of the local educational agency and reviewed by that agency because it would effectively eliminate the parents' unilateral right to withdraw their child, established in Burlington, and defeat the IDEA's goal of ensuring disabled students would receive a FAPE. Florence County School District Four v. Carter by and through Carter, 510 U.S. 7, 13-15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). That the school chosen by the parents is not approved by the state does not by itself preclude reimbursement. Id. at 14, 114 S.Ct. 361. As explained in Carter, because parents who unilaterally withdraw their child and place him in a private facility bear a risk that a hearing officer or court might later decide that the child's IEP was appropriate or the private facility is not appropriate, and because the state education agency and school district is unlikely to cooperate where it disagrees with a private placement, the Supreme Court requires only that the parental placement be "otherwise proper" and not subject to strict IDEA standards for parents to receive reimbursement. Id. at 9, 12-15, 114 S.Ct. 361; Michael Z., 580 F.3d at 295-96.

In amendments to the IDEA in 1997, if the local education agency has failed to make a FAPE available to the disabled child and the parents choose to place the child in a private school, reimbursement is available under certain conditions:

20 U.S.C. § 1412(a)(10)(C)(ii).11 Despite the provision, "who previously received special education and related services under the authority of a public agency," the United States Supreme Court recently held that when the student is unilaterally placed by the parents in a private institution, even if the student has never received special education services at the public institution such services were entitled to be reimbursed under the IDEA if the public institution did not provide the student with a FAPE. Forest Grove School Dist. v. T.A., ___ U.S. ___, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009).

In the wake of Forest Grove, the Fifth Circuit has adopted its own two-prong test,12 which is binding on this Court, to determine whether the cost of a unilateral private residential placement is reimbursable under the IDEA: the placement "must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education." Michael Z, 580 F.3d at 299. Under the first prong, "if a child is able to receive an educational benefit without the residential placement, even if the placement is helpful to a child's education, the school is not required to pay for it under IDEA." Id. at 300. The test is in accord with the statute's goal to enable a child with a disability to receive a meaningful educational benefit. Id. It also meets the implementing regulation, 34 C.F.R. § 300.302, which states that "[i]f placement in a public or private residential program is necessary to provide special education and related services13 to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child."

Under 20 U.S.C. § 1415(i)(3)(A)-(B)(i)(I), "In any action or proceeding brought under this section [§ 1415], the court, in its discretion, may award reasonable attorneys' fees as part of the costs—to a prevailing party who is the parent of a child with a disability."14 Thus the threshold question in an action for attorney's fees is whether the party seeking fees is a prevailing party. El Paso ISD v. Richard R., 591 F.3d 417, 421 (5th Cir.2009) (citing Jason D.W. ex rel. Douglas W. v. Houston ISD, 158 F.3d 205, 209 (5th Cir.1998)), cert. denied, ___ U.S. ___, 130 S.Ct. 3467, 177 L.Ed.2d 1055 (2010). The Fifth Circuit defines a "prevailing party" as one "that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA." Richard R., 591 F.3d at 421-22 (holding that under the IDEA "a litigant must attain some judicial imprimatur on a material alteration of the legal relationship in order to be a prevailing party"), citing Jason D.W., 158 F.3d at 208; Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("[P]laintiffs may be considered `prevailing parties' ... if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."); and Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 603-04, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (a prevailing party is one that has obtained a judgment on the merits, a consent decree, or some form of judicially sanctioned relief). In the administrative proceeding, the Hearing Officer's decision provides the necessary "judicial imprimatur" for a party to be a "prevailing party" for purposes of a subsequent attorney's fee award by a court. Richard R., 591 F.3d at 422 n. 4. A prevailing party may seek attorneys' fees under the IDEA for both the administrative due process proceedings and for subsequent litigation in court. Id.; Ruben A. v. El Paso ISD, 657 F.Supp.2d 778, 789 (W.D.Tex.2009). Nevertheless, "`[a] finding that a party is a prevailing party only makes him eligible to receive attorneys' fees under the IDEA; it does not automatically entitle him to recover the full amount that he spent on legal representation.'" Richard R., 591 F.3d at 421, quoting Jason D.W., 158 F.3d at 209.

If the Court finds that a party is a prevailing party, the fees can be calculated by identifying a lodestar (reasonable fee multiplied by hours expended by the attorney on the case) and then considering if the figure should be adjusted in light of the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1994). Ruben A., 657 F.Supp.2d at 789-90.

Factual Background

Per Hovem, born on November 28, 1989 and now twenty years old, moved from Norway to Texas with his father and mother, Knut Hovem and Signe Hovem, in the summer of 2000, when Per was to enter fifth grade in KISD. Per was bilingual, speaking Norwegian and English. His parents requested special education services from KISD for Per because of his poor language skills. After a comprehensive evaluation, Per was diagnosed with mild to moderate Attention Deficit Disorder ("ADD"), for which Ritalin was prescribed, but he did not qualify as a student with a disability. Admin. Rec., Vol. I, Petitioners' Ex. 2 at p. 53415 (Comprehensive Individual Assessment Report). Thus his ARD Committee recommended an English as a Second Language ("ESL") program for one year, rather than implementing special education services. Id. at 536.

Per transferred to intermediate school at the beginning of the 2001-02 school year. A highly intelligent boy with an IQ of 142, Per did well in social studies and math, but in language arts he had severe problems with writing and copying from the board. Admin. Rec., Vol. I, p. 1105. When Per was in sixth grade, KISD's educational diagnostician Carolyn Bartemeyer found that Per qualified for special education services as Otherwise Health Impaired ("OHI") due to ADD and to a Learning Disability. Id., Petitioners' Ex. 4 at pp. 586-95. On October 29, 2001, after determining that Per's writing skills were extremely limited, that his spelling and handwriting skills were very poor, and that he had difficulty in transferring information to paper, his ARD Committee concluded that Per was eligible for special education services, effective December 3, 2001. Id., Petitioners' Ex. 3 at pp. 567-68. The ARD Committee recommended and provided him with a resource English Language Arts class for two periods each day and co-teaching support in his social studies and science classes. Id. at 587.

On October 30, 2003 KISD Occupational Therapist Dawn McDonald issued an Assistive Technology Assessment Report (Admin. Rec. Vol. I, Petitioners' Ex. 5, at pp. 615-17) (also Respondent's Ex. 13), which counseled modification of Per's special education services to address his spelling errors, illegible handwriting, and difficulty in using a dictionary to correct spelling: it recommended providing Per with study guides and hard copies of notes, access to a class computer for compositions, in particular essay questions, use of a portable speller, and allowing Per to correct spelling errors to improve scores. Reports came back in the following years from a number of Per's teachers that he was not using the portable speller or the computer in class. See, e.g., Admin. Rec., Vol. I, p. 1096; Vol. II, Transcript of Due Process Hearing, pp. 281 and 288-8916 (testimony of English teacher Lauri Marek); p. 396 (KISD Occupational Therapist McDonald testified that she became aware that he was not using the speller in 10th or 11th grade)17. McDonald further stated during the Due Process Hearing (Id., Transcript at 394-97) that the portable speller she recommended in 2003 was the same device provided to Per for the next five years, that the choice whether to use it was up to Per, that there was nothing she could do if he chose not to use it, and that although she thought about trying other devices, the one given to him in 2003 was the best one for his disability.

In ninth grade, Per entered Klein Collins High School for the 2004-05 school year. Following extensive testing, id., Educational Diagnostician Hilda Castagnos found that a significant discrepancy existed between Per's potential and current achievement in the areas of written expression and basic reading skills and that he had a learning disorder in reading and written language, requiring special education and related services. Id., Petitioners' Ex. 7 at pp. 632-39, KISD's Ex. 9 at p. 117. In a re-evaluation letter dated October 13, 2005, Dr. Stephanie Wong stated that the diagnosis of ADD no longer fit Per and the OHI label was removed as the basis of his eligibility for special services. Id., Petitioners' Ex. 7, at p. 641 and 642. However, Per continued to be eligible for special education services under the Learning Disability category. Admin. Rec. Vol. 1, KISD's Ex. 9, p. 111.

At the ARD Committee meeting held on September 13, 2006 to plan for the 2006-07 school year, when Per would be in eleventh grade (Petitioners' Ex. 8 at 651-66; KISD's Ex. 4), the ARD Committee decided to mainstream Per completely in general education classes, and it specified Per's annual goal and objective,18 which remained the same for each IEP through the 2007-08 school year. The recurring annual goal was that "Per will advance one grade level in all classes with 70% mastery as measured by grades. (With or without use of technology, portable spelling device, OT [Occupational Therapy] supported goal).... Continue to use current speller in all classes." Admin. Rec., Vol. 1, KISD Ex. pp. 162-66. The Objective/Benchmark is also described as "Per will advance one grade level in all classes with 70% mastery as measured by grades. (With or without use of technology, portable spelling device, OT supported goal).... Continue to use current speller in all classes." Id.19 Listed modifications included extra time to complete assignments, opportunity to respond orally, copy of class notes, and use of the portable spelling device.

Per passed the written portion of the TAKS test in tenth grade in 2007, but that was the last time; he failed it in three more attempts during the next two years. Per did not pass the written portion of the English Language/Arts TAKS test in the eleventh grade. Therefore in his senior year he was placed in Greer's Practical Writing class for all students who have failed the written TAKS exam to teach them how to pass the test.20 For the rest of his time at KISD, Per passed all of his mainstream general education classes and all TAKS tests except the English Language/Arts. KISD offered Per tutorial sessions with writing instructor Thomas Greer, but after a few sessions Per stopped coming.

During the 2006-07 school year, the ARD Committee discussed dismissing Per from special education services, but his parents disagreed and asked that the special education services be provided until Per took the exit TAKS test. In the ARD Committee Meeting held on September 14, 2007 (Petitioners' Ex. 9 at 679; Respondent's Ex. 3 at p. 100) for the 2007-08 school year, Per's senior year, McDonald recommended dismissal of the Occupational Therapy services, and the Committee agreed.21

Per was eighteen years old on November 28, 2007, at which point all rights accorded to his parents under the IDEA were transferred to him. Tex. Admin. Code § 89.1049(a); 34 C.F.R. § 300.520(a).

That same fall the parents began to explore other options to KISD, which they concluded was not improving Per's deficiencies, to help him reach his goal to go to college and live independently. They learned of the Landmark School, which specializes in remediating language problems in bright students through use of the Lindamood-Bell method.22 Per interviewed with a Landmark School representative, and the family met with the school's Director of Admissions and Diagnostician. Furthermore, because Landmark School does not accept students who have graduated from another high school, in the middle of his twelfth grade year Per chose to drop a required economics class so that he could not graduate.

Moreover, the Hovems learned that Landmark required a student to function at a sixth grade reading and writing level in order to graduate. As part of the application process for admission to Landmark, the Hovems requested and Per participated in a battery of educational tests paid for by the Hovems, for a new evaluation of Per's skills and recommendations for addressing his weaknesses. Admin. Rec., Vol. I, Ex. 9 at pp. 198-201 (Letter from Speech specialist Pamela M. Bass). Bass referred him to Joan Weltzien for a psychological evaluation, with his resulting testing scores on the WAIS-III varying from the 99th percentile (very superior) to the 25th percentile. Id. at Petitioners' Ex. 10 at pp. 713-17, with scores on p. 717. KISD's February 19, 2008 Reevaluation Review of Per (Id. at 722-33) incorporated the results of the evaluation performed for the Landmark School. Moreover the ARD Committee Meeting Brief (Id. at 734-35) for its meeting on February 26, 2008 reflects that KISD was informed that Per would attend Landmark School next year if he was accepted.

In addition that spring, the Hovems received from Landmark School its Admission Screening—Test Results from examiner John Hicks, dated March 28, 2008, which provided not only scores and percentiles, but also the equivalent grade levels at which Per was functioning in each area. According to these results, while Per's comprehension score was high, 142,23 Per performed at a 5.1 grade equivalent in word identification, 2.0 grade in word attack, 5th grade and four months in reading, second grade fourth month in accuracy of reading, and third grade seventh month in the fluency of reading, while his score for word attack (dealing with phonetic decoding) was in the 1% level. Admin. Rec., Vol. I, Petitioners' Ex. 11 at p. 737.

In a letter dated April 1, 2008 Per was informed that he was admitted as a boarding student to Landmark's 2008 summer and fall programs. Id. at p. 739.

Landmark School's screening summary for its summer program, dated March 28, 2008, diagnosed Per with "ADD, disorder understanding language—written/spoken & graphomotor/dysgraphia, and [Language Disorder] written lang/reading." Id. at 718. The summary contained numerous test scores and an assessment of Per's strengths and weaknesses. Id. at pp. 718-21.

On his SATS, Per scored 650 in reading, 640 in math, and 320 on the writing test. Admin. Rec. Vol. I, Petitioners' Ex. 15, p. 431.

At the May 7, 2008 ARD Committee meeting, held at Per's request, Per asserted that he was not ready to leave high school and go to college or to get a job because of his poor spelling and writing skills. The Hovems requested that KISD participate in providing the program at the Landmark School for Per, but other members of the Committee stated that Per had received a FAPE and was ready to graduate. Admin. Rec., Vol. I., Petitioners' Ex. 11, at p. 746. The ARD Committee meeting ended in non-consensus. Id.

Meanwhile Mrs. Hovem sent an email to Jean Tucker and Susan Antel, assistant director of special education, pointing out that well intentioned staff members at KISD praise Per's intelligence and ability to do things, but miss the side of him that needs help. She stated that Per hides his writing and reading problems from people who respect him for his wit and intelligence. Id. at p. 754.24

Because the last meeting ended in non-consensus, the ARD Committee meeting reconvened on May 21, 2008. Admin. Rec., Vol. I., Petitioners' Ex. 11, at p. 757. Per continued to discuss his difficulties in French and English. He expressed his frustration that he was not able to use a computer or portable speller on his college applications, claimed that he had only gotten through high school because the tests were multiple choice or short answer, and maintained that he was unable to meet college demands for essays. School officials responded that various colleges and universities offer programs to help disabled students, but they did not offer any other solutions. After the meeting, the Hovems again informed the school that they intended to seek placement in a private school for the coming school year and would seek reimbursement because KISD was unable to provide Per with a FAPE. Admin. Rec., Vol. I. pp. 764-65.

Per then attended the summer program at Landmark School and decided to remain there for the school year.

The Hovems concluded that KISD had failed to provide Per with a FAPE and that Per needed intensive remediation to prepare him for college or to function in a job after graduation. On June 27, 2008, they filed a request for a special education due process hearing after KISD refused to pay for private placement at Landmark School. The due process hearing was held December 3-5, 2008. Admin. Rec., Vol. I, p. 5.

Lauri Marek, Per's regular-education English teacher during the spring of 2008, testified at the hearing that she only became aware of Per's severe problems in writing when Per came to make up an in-class paper. Admin. Rec., Vol. II, Transcript at 281-82.25 When Marek asked KISD case manager Jean Tucker for help for Per, Tucker recommended the Kurzweil Program,26 and McDonald arranged for Marek to be trained on it to use with Per. Id. at 284-86.27 Marek also shared Kurzweil with Greer, who used it with Per in his writing skills program. Id. at 288. She reported that Per wrote a two-to-three paragraph essay in about forty minutes, but on the computer with Kurzweil he could only write six sentences at most in the same time. Id. 289. Marek reported that Per tried Kurzweil in class for his senior memory book project, but became reluctant to use it, and that Per expressed a preference for handwriting. Id. at 286, 291.

Marek also testified that she had called Per's family and voiced her concerns that he get help with typing and working on the computer at home. Id. at 287. She stated that she may have suggested that his mother or brother might help Per get his ideas typed on paper. Id. at 287, 300-01. She further testified that at the May 7, 2008 ARD Committee meeting, Per stated that he could use his portable speller, but that it took him up to twenty tries before he could find the word he needed and thus using it was very time consuming. Id. at 288. Marek indicated that Per did not use the portable speller in her class. Id. When Marek asked Per where his speller was, he responded that he did not need it or felt more comfortable without it. Id. at 289.

Per testified extensively during the Due Process Hearing (Transcript at 474-542). Asked to identify his learning problems, he named spelling, "true reading" (and not just guessing), inability independently to come up with ideas of his own and being able to write them down, mispronouncing words when he reads aloud, leaving out words or injecting words into his reading, inability to pronounce a word that he recognizes, inability to identify a word just by looking at it, having to use context clues to figure out what a word means, and proofreading his own work. Id. at 475-77. Relying heavily on his mother, father, and brother to fill in his gaps, he stated that without his mother, he would have failed English long ago, and he was most concerned that he could not bring his parents with him when he goes to college or to a job. Id. at 484, 489. He explained for a long time he thought that to be prepared for college, all he had to do was graduate from high school. Id. at 489. When in the summer and fall of 2007 he saw the college applications, he realized that he could not fill them out without heavy reliance on his family and that he had to do something to prepare himself for college. Id. at 489, 513. When he asked at the May 2008 ARD Committee meeting why his deficiencies were not addressed earlier, he said the Committee was surprised—"why would they be surprised if they truly understood [my] writing and reading capabilities?" Id. at 491. He stated that he never got an answer. Id. at 492. He told the Committee how time consuming trying to write was for him, about his reliance on others, and that he was not ready to do college level work or even to graduate from high school. Id. at 492, 495. He further stated that the school never gave him any kind of written proposal on goals and objectives to help him pass the TAKS ELA. Id. at 494. He had a presentation ready for the ARD meeting, but when he asked why his IEP never addressed the need to remediate his weaknesses, the Committee members responded that he had been doing fine and was ready to graduate, so why change. Id. at 495, 497. Per noted that every time he was behind on an assignment, daily or major, his teachers asked him to finish it at home, and he would have his parents or brother type it for him: "that's one of the main— main reasons why I even passed through— got through high school at all." Id. at 500-01. He also stated that he had never met with any KISD counselors about post school transition planning. Id. at 504-05. Per explained that it took him five hours spread over a week to fill in his one-page application for Landmark School because it took a lot of time to come up with what to say and then he had to struggle with spelling and re-reading (Respondent's Ex. 9). Id. at 505-06. He testified that he realized "if this is just the application, imagine the course work," and that his reliance on his parents was the main reason he sought outside assistance and discovered Landmark School. Id. at 512. Regarding Marek's senior writing project, Per explained that he tried to do it in class, but failed, so he began taking it home and having his mother type it out, so his progress grades improved. Id. at 511. He estimated that he did about ten per cent of the writing in school and ninety per cent at home. Id. at 512.

On June 26, 2008 the Hovems filed an original complaint and a request for a due process hearing. At the Due Process Hearing, held from December 3-5, 2008, Mrs. Hovem testified that the Hovems participated in many ADR meetings, with many people telling them that Per was wonderful, bright, handsome, and respectful, and achieved good grades and TAKS test scores. They received reassurances that Per was on track for graduation, as well as praise for their involvement. Only after outside testing during his senior year provided grade equivalents to his scores, did they realize Per's actual status. Transcript at 556-57. Nor, Mrs. Hovem testified, did she know until the spring of 2008 what the IDEA required in an IEP and how deficient Per's IEPs were. Id. at 605-06, 624.

Hearing Officer's Decision

On January 9, 2009, the Hearing Officer issued his opinion (Admin. Rec., Vol. I at pp. 5-27), in which he determined that KISD had failed to provide a FAPE to Per, that Landmark School did provide an appropriate educational program for his needs, and that the costs of Per's placement at Landmark School for the school years of 2008-09 and 2009-10 should be reimbursed to the Hovems.

In addition to some of the undisputed facts this Court has summarized above, among the Hearing Officer's findings of fact are the following. KISD has known about Per's writing problems since at least 2002. Id. at p. 7. Per's "IEP goals and objectives [to pass his classes and use his speller] have been virtually identical since at least 2006." Id. at p. 8. It is undisputed that Per "is highly intelligent and has passed all of his classes while at Klein Collins High School and at Landmark School." Id. The district was aware that Per was not using his portable speller. Id. In the fall of 2007, Per deliberately dropped his economics class so that he could not graduate in May 2008 in order to be eligible to attend the Landmark School, which does not admit any student who has already graduated from high school. Id. Landmark specializes in teaching highly intelligent children with language disabilities. Id. Landmark's peer-reviewed, scientifically based teaching method, Lindamood-Bell, uses a multi-sensory approach to problems with auditory processing of language, such as those which afflict Per. Id. at 8-9. While Per was in high school in KISD, he "did the vast majority of his writing work at home" by using the services of his mother or brother. Id. at 9. In eleventh and twelfth grade, Per failed the writing portion of the TAKS test, passage of which was required for graduation. Id. at 9. According to his writing teacher, Per required several hours to write a few sentences and several days to write a few paragraphs. Id. Per has lived at Landmark School, in Massachusetts, since he enrolled in the summer of 2008 and is part of the school's residency program. Per's ARD Committee, when notified of the placement, disagreed with it even though no evidence was presented that anyone from KISD investigated Landmark and its appropriateness for Per. Id. The only evidence on that matter was the testimony of Dr. Mary Rosenburg, KISD's representative, that she did not know if any investigation was conducted. Id. at 10. Landmark employs a daily one-on-one tutorial session using the Lindamood-Bell method for a student with a disability. Id. Its classes are structured to use language skills during the course materials. Id. The Landmark School educational program "is appropriate to address the Learning Disability of the child in this case." Id.

The Hearing Officer rejected a number of Per's allegations of violations of the procedural requirements of IDEA04 that denied him a FAPE.28 He concluded that there was no evidence that KISD failed to provide Per with highly qualified teachers or that it did not hire, train or supervise staff capable of meeting Per's unique needs. Id. at 11. There was also no credible evidence that Per needed non-academic services, such as counseling and social work services. Id. All Per's teachers who were asked testified that he interacted well with other students, participated in class discussions, and was socially functional. Id. at 11-12. During the three-day Due Process Hearing, Per's demeanor was pleasant, and he appeared to have no social issues. Id. at 12. The Hearing Officer also found that there was "no evidence that any of the ARD Committee members had collaborated prior to the ARD Committee meetings to predetermine the child's educational plan." Id. In addition he determined that the district had provided the Hovems with timely and objectively verifiable and understandable reports on Per's IEP goals through report cards and progress reports sent home throughout the year. Id.

Nevertheless the Hearing Officer concluded that the district failed to create a transition plan29 for Per commensurate with his needs. IDEA04 requires an IEP to include, beginning when he is 16 and updated annually afterward, "(1) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills, (2) the transition services (including courses of study) needed to assist the child in reaching those goals, and (3) beginning not later than one year before the child reaches the age of majority under state law, a statement that the child has been informed of the child's rights under this title, if any, that will transfer to the child on reaching the age of majority." 20 U.S.C. § 1414(d)(1)(A)(VIII). Id. at 12-13. He found it undisputed that Per's IEP did not contain postsecondary goals based upon transition assessments testified to by Dr. Rosenburg, even though a transition plan must be based upon the child's needs in view of his strengths, preferences, and interests, pursuant to 34 C.F.R. § 300.43(a)(2). Id. at 13. It must also contain measurable goals that are results-oriented. The Transition Services Supplement and Individual Transition Plan that were made part of Per's IEP contained only general information that did not meet these requirements. Id. at 13. It also failed to specify coordinated activities or goals for improving his academic and functional achievement to facilitate Per's move from high school to postsecondary activities. Id.

Finally the Hearing Officer focused on Per's learning disability in the area of written expression, which causes him problems with spelling, phonetics, legible handwriting, omitting entire words when writing, and the difficulty in transferring ideas from his mind to paper. Id. at 14. He noted that Per's writing teacher, Thomas Greer, testified it could take Per two to four days to write one paragraph and a week and a half to write one handwritten page. Id. Mrs. Hovem testified that Per cannot take down a simple telephone message. Id. at 15. Laurie Marek also testified about Per's severe writing problems, which concerned her so much that she called his parents, and that he did almost all of his writing at home, where he received help from his family. He noted that there is no dispute that Per is highly intelligent, reads well, and has no trouble comprehending what he reads. Id. The Hearing Officer then stated,

Id. at 15-16.

In summary, the Hearing Officer concluded that these failures to implement a transition plan and to develop an IEP tailored to Per's unique needs amount to procedural violations of IDEA04.30 Id. at 16. Therefore he examined whether the failure impeded the child's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE for Per, or caused a deprivation of educational benefits to the child. 20 U.S.C. § 1415(f)(3)(E)(ii). Id. Because of the procedural violations, he addressed the question whether Per's IEP was reasonably calculated to enable Per to receive educational benefits. Id. at 16-17.

The Hearing Officer observed, as reflected in the exhibits, Per's handwriting is barely legible and that KISD suspected he suffered from dysgraphia as far back as February 6, 2002, when the KISD Re-evaluation Report (Petitioner's Ex. 4) stated that Per "exhibits symptoms consistent with a diagnosis of dysgraphia or a significant writing disorder." Id. at 17. This Court has summarized testimony from Marek supra that shows that "[i]nstead of dealing with the problem and its causes, the district encouraged the child to do his writing at home hoping the family would help the child." Id., citing Hearing Transcript at 286-87. He also found that KISD knew Per wanted to go to college after high school, a goal which the Hearing Officer determined would be extremely difficult without adequate writing skills and an ability to take notes and answer essay exams. Id., citing Respondent's Ex. # 4 at 28, Hearing Transcript at 530-31. He also concluded that there were no goals developed or implemented for Per to attain that ambition in a transition plan, nor in Per's IEP to assist him with his numerous language problems to help him go to college. Id.

In sum, the Hearing Officer concluded that Per did not receive an educational benefit from his IEP, including its lack of a proper transition plan, because it failed to address Per's unique disabilities. Id. Per did pass and receive an educational benefit from his general education classes because of his high intelligence and family support, not because of his IEPs. Per failed the writing portion of the TAKS test three times, and under his IEP he could not have graduated high school without passing it. Id. By 2002 the ARD Committee should have modified Per's IEP to provide services, goals and objectives to meet his needs, though no relief can be granted to remedy this failure that far back because of the two-year statute of limitations. Id. at 19. In January 2004 the ARD Committee recognized the need for "a significant modification in curriculum and methods." Id.; Petitioner's Ex. 6 at 122. In 2005, Per's teachers reported that he was not making adequate progress in writing (Petitioner's Ex. 7 at 131). In 2006 his teachers continued to report that Per was not using his speller, which was his second IEP goal. Petitioner's Ex. 8 at 164; Hearing Transcript at 59, 395-98. The ARD Committee should have met to attempt to find another solution to Per's spelling problems. As noted in the December 6, 2006 Occupational Therapy Re-Evaluation, some of his teachers pointed out that his handwriting was not legible. Petitioner's Ex. 8. Again the IEP should have been modified to address the continuing problem. Then in Spring 2007, Per failed the writing portion of the TAKS exam, and did so twice more, yet throughout this period the ARD Committee did not modify his curriculum, the teaching methods, or his goals or objectives. At the February 26, 2008 ARD Committee Re-evaluation, KISD stated that Per "is doing very well in school." Petitioner's Ex. # 10 at 229. While passing from grade to grade is an important factor in determining if a child's IEP is providing him with a FAPE, the IEP must be examined in light of his individual disabilities. Here Per continued with essentially the same IEP, which did not address Per's unique Learning Disability, from the Fall of 2006 through May 2008. Thus Per did not receive an educational benefit that was meaningful and likely to produce progress. Cf. the continuing and substantial efforts and modifications made by the ARD Committees to address a student's disabilities in Michael F., 118 F.3d 245; Bobby R., 200 F.3d 341; Adam J. ex rel. Robert J. v. Keller ISD, 328 F.3d 804 (5th Cir.2003).

Having determined that Per succeeded in overcoming the presumption that the IEP developed by KISD was appropriate, the Hearing Officer examined whether placement at Landmark School, a private institution, is appropriate for Per. Dr. Rosenburg, KISD's representative, admitted that she was unaware of any investigation of Landmark School made by KISD after it was notified by Per that he wanted to enroll; thus KISD offered virtually no evidence on the issue. Per presented evidence in the testimony of his expert, Dr. Shumsky. The Hearing officer questioned the credibility of portions of Shumsky's testimony because of speculation, conclusory statements, exaggeration, and a lack of knowledge about the latest regulations concerning the identification of Learning Disabilities under IDEA04; nevertheless the Hearing Officer did find Shumsky's testimony about the Lindamood-Bell methodology of teaching believable. Hearing Officer's Decision at 23. Also testifying about the appropriateness of the Landmark School program for Per were its case manager Brett Hall (Hearing transcript at 314-16) and special-education-certified teacher and Per's one-on-one tutor at Landmark, Marie Mirandi (Hearing transcript at 367-69, 311-12, 347-48, 333, 342-44, 339-40.)31 Per's 2008 summer session consisted of two forty-five minute one-on-one tutorials on a daily basis and small classes. The Hearing Officer determined from the testimony of Hall and Mirandi and from Landmark documentation that Per made good progress and continues to do well. Hearing Officer's Decision at 24, citing Hearing Transcript at 328-30, 367-68, 370, and Petitioner's Ex. # 12 at 26-68, 351. As part of Landmark's residential program, Per lives on campus in the dormitories, participates in a daily evening study hall (with staff available to assist the student in any way), a once-a-month, mandatory Saturday school program, structured activities in the afternoons, and community service. Id., citing Due Process Hearing Transcript at 260-68, 351-53. The Hearing Officer decided that evidence about Per's social skills did not indicate a need for social skills training. Id. The Hearing Officer also stated that because Landmark is in Massachusetts, Per had to reside there to attend the school. Id. at 25. He further found no evidence that the residential program was excessive. In sum, he found the program and placement at Landmark School were appropriate for Per. Id.

As testified to by Dr. Shumsky, in the only evidence on the issue, only two Houston area schools offered the Lindamood-Bell methodology and placement at either was inappropriate for a child with a high IQ. Id., citing Hearing Transcript at 214-15.

In sum, the Hearing Officer granted the relief requested by Per, ordered reimbursement for tuition, books, fees and the residential component of Per's placement at Landmark School from June 2008 through the time the child completes the program,32 although KISD will not be liable for any costs for the program beyond May 2010.33 Id. at 27.

KISD's Motion for Summary Judgment (# 17)

KISD's motion for summary judgment challenges the "correctness of the hearing officer's decision at the time it was issued," which KISD characterizes as "a radical departure from the legal standards adopted by the Fifth Circuit in cases arising under the IDEA." # 17 at 1-2.

KISD represents that the Hearing Officer found that KISD denied Per Hovem a FAPE because KISD failed to develop Per's writing skills to a level that would guarantee him success in college. KISD points out that Per's severe qualifying learning disability is in the area of written expression and causes him to have problems transferring his thoughts and ideas to the printed page. Admin. Rec., Vol. 1, at p. 7, ¶ 1. KISD insists that the IDEA does not require a school district to provide an optimal education designed to remediate Per's disability, nor does it require KISD to provide an education designed to make sure that a student excels in college.34 The school district emphasizes that Per passed the state-mandated assessments of adequate educational achievement for non-disabled students and passed all of his regular education classes35 with minimal special education support. In the spring of 2008, as an 18-year-old student at Klein Forest High School, Per was on track to receive a high school diploma until he dropped a required economics course during his senior year so that he could participate in a private school program designed to remediate his disability. KISD describes Per as a highly intelligent person, who received significant educational benefits in regular education classes in KISD, as the Hearing Officer acknowledged.36 KISD seeks reversal and vacating of the Hearing Officer's decision in all things against KISD, and affirmance of his decision in all aspects in KISD's favor.37 KISD also asks the Court to enter a judgment that KISD provided Per with a FAPE at all times and is not liable to the Hovems for reimbursement of private educational expenses or any others costs.

KISD identifies four issues for its appeal: Did the Hearing Officer wrongly conclude that (1) Per was denied a FAPE because KISD failed to remediate his disability to the extent that college would not be difficult for him; (2) the procedural violations of the IDEA allegedly committed by KISD denied Per a FAPE; (3) Per, an adult student, was entitled to reimbursement of private school expenses incurred by his parents; and (4) the one-year statute of limitations applicable to due process hearing requests in Texas did not apply to adult students?38

According to KISD, Per's parents agreed with the educational decisions made by KISD over eight years,39 but in Per's senior year they decided that his writing skills needed intensive remediation in an exclusive private school for intelligent children with learning disabilities, the Landmark School in Massachusetts. Admin. Rec., Vol. 1, p. 926. Per's parents also contend that Per's deficient written expression and his unreadiness to be successful in a college of his choice were attributable to KISD's failure to educate him properly. Admin. Rec., Vol. II, at p. 588, ll. 5-10 and p. 564, ll. 17-24. The parents filed a request for a special education due process hearing after KISD refused to pay for private placement of Per at Landmark School, insisting that KISD had provided a FAPE to Per. Only if the school district is unable to provide a student with an "appropriate" education within the school district, must the school district pay to send the child to a private school that can. Michael F., 118 F.3d at 248.

According to KISD, the Hearing Officer erroneously concluded that KISD deprived Per of a FAPE because it failed to address his writing deficiency in his IEPs. Admin. Rec., Vol. 1, p. 16. The Hearing Officer further decided that because the District aimed for Per to master the same goals and objectives as non-disabled students, Per's success was "in spite of his IEP, not because of it." Id. at p. 16. The Hearing Officer also erred in concluding that the Transition Plan, developed and reviewed each year since Per was fourteen, was flawed because it did not equip Per for success in college by preparing him to take class notes or pass essay exams. Id. at pp. 17-18. The Hearing Officer, while noting the obvious educational benefit Per received in KISD, gave the credit for that benefit not to the teachers or to the efforts of the ARD Committee over the years, but to Per's "high intelligence and family support." Id. at p. 18.

KISD argues that the Hearing Officer wrongly determined that KISD denied Per a FAPE based on the Hearing Officer's conclusion that KISD committed "procedural" violations of the statute by (1) failing to develop an appropriate IEP designed to give meaningful educational benefit to Per and (2) failing to develop an appropriate transition plan with specific goals designed to ensure success in College. Admin. Rec., Vol. I, at pp. 12-14. KISD maintains that the Hearing Officer's analysis erroneously conflates the two-part test in Rowley.40 Although he asserts a procedural violation, his ultimate conclusion rests on his substantive finding that Per was "deprived of a benefit from his IEP." Id. at p. 22. Nor did the Hearing Officer apply the four factors established in Michael F.41 to the evidence to determine if the IEP was reasonably calculated to enable the child to receive an educational benefit.

Regardless, argues KISD, the Hearing Officer's conclusions are erroneous in two respects. First, the Hearing Officer thought that KISD had a duty to do more than address Per's writing problems because "to attend college without adequate writing skills would be extremely difficult." Admin. Rec., Vol. I, at p. 13. In Rowley, 458 U.S. at 192, 102 S.Ct. 3034, the Supreme Court opined that "the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Congress required a school district only to provide a "basic floor of opportunity." Id. at 200, 102 S.Ct. 3034. If the school district provides the disabled student with a meaningful educational benefit, it does not violate the IDEA even if the student's potential to be successful is not maximized. Michael F., 931 F.Supp. at 481 n. 5. The Hearing Officer also ignored the fact that federal law permits students with disabilities to receive instructional accommodations in public colleges. Admin. Rec. Vol. I at p. 880; Zukle v. Regents of the Univ. of Calif., 166 F.3d 1041, 1046-47 (9th Cir. 1999) (Section 504 and the ADA require universities to make reasonable accommodations for students with disabilities). Second, in concluding that Per was deprived of an educational benefit from his IEP, the Hearing Officer erroneously focused on Per's area of weakness, his disability in written expression; measuring the appropriateness of an IEP based only on the student's area of weakness to the exclusion of his strengths is contrary to Fifth Circuit law. Bobby R., 200 F.3d at 349-50 (student need not show progress in every area to obtain an educational benefit, as long as he receives an overall educational benefit from implementation of his IEP). None of Per's doctors or teachers or KISD's staff can cure his disability. Admin. Rec., Vol. II at p. 273, ll. 11-14 (testimony of Per's expert, Dr. Rebecca Johnson). KISD emphasizes that there is no disagreement that Per achieved a high level of academic success compared to his non-disabled schoolmates except in the area of writing.

KISD argues that the appropriateness of Per's IEP goals and objectives is a substantive issue, not a procedural issue, and it involves the determination of whether the IEP as a whole was reasonably calculated to provide Per with an educational benefit. An analysis using the Fifth Circuit's four factors under Michael F. is appropriate for such a substantive issue. Moreover, KISD contends that it did not commit procedural violations of the IDEA by failing to develop an appropriate IEP and/or failing to develop an appropriate transition plan. Furthermore it notes that a school district's failure to satisfy the statutory procedural requirements will not constitute a violation of its obligation to make a FAPE available to the student unless the inadequacy (1) obstructed the student's right to a FAPE, (2) significantly impeded the parent's opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (3) caused the deprivation of educational benefit. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Adam J. ex rel. Robert J. v. Keller ISD, 328 F.3d 804, 811-12 (5th Cir.2003) (procedural defects by themselves do not constitute a violation of the right to a FAPE unless they result in the loss of an educational opportunity).

A child's IEP must contain appropriate transitioning services. The Hearing Officer found that the transition plan developed by KISD was procedurally inadequate because it contained only general information, insufficient to meet IDEA04 mandates. Admin. Rec., Vol. I at p. 13. KISD points out that the Hearing Officer erred in citing the testimony of Dr. Mary Rosenburg, its Executive Director of Student Support Services, for the proposition that "it is without dispute that the child's IEP contained no post-secondary goals which were based upon transition assessments." Admin. Rec., Vol. II at p. 31, ll. 19-20. In actuality Dr. Rosenburg merely stated that the student had no specific transition goals "other than within his ITP." Id., Vol. II at p. 487. As long as the transition goals were in the IEP somewhere, it does not matter where. 20 U.S.C. § 1414(d)(1)(A)(ii)(II) (IDEA does not require the ARD Committee to include information under one component of a child's IEP that is already contained under another).

Because KISD understood that Per's post-secondary goal was to attend college, the ARD Committee's transition plan for Per, beginning in his freshman year in high school, was that he would graduate "Outcome 1" under the State's Recommended High School Program and pass the TAKS test. Admin. Rec. Vol. I, at pp. 974, 1071. The ARD Committee identified the needed transition services and access to the same general education curriculum ("course of study") as his non-disabled peers. It also considered Per's expectation that he would participate in competitive employment post-secondary and concluded that the only supports he needed for that goal were natural supports through family and friends. As for Per's goal to live independently right out of high school, the Committee decided that he did not need any support from school to achieve that goal or his goal to access and participate independently in recreational and leisure activities.

Regarding instructional transition services needed to prepare Per to reach his post-secondary goals, the Committee provided access to general education curriculum and career technology education courses up to his graduation. Admin. Rec., Vol. I, at p. 1045. The ARD Committee and Per's parents thought he could be successful in the same curriculum, including writing courses, as his non-disabled peers. KISD maintains nothing more is needed for a student to be able to attend college. As noted, Per successfully passed all courses required for the Recommended High School Program, all portions of the TAKS test his sophomore year, and all but one portion of the EXIT level TAKS test his Junior year. Adm. Rec., Vol. I, at pp. 1115-18. He did not have to achieve 100% of the goals that the ARD Committee set for him to establish the sufficiency of the IEP. Since 95% of Klein Oak High School's graduating class goes to college, it was not unreasonable for the ARD Committee to believe that a diploma earned under Texas' Recommended High School Graduation Plan would allow Per to reach his college goal.

KISD charges that the Hearing Officer wrongly incorporated a nonexistent substantive standard into IDEA's transition requirements. The statute does not impose a separate FAPE requirement for transition plans. Even a complete failure to develop an ITP does not deny a child a FAPE if the remaining portions of the IEP provide the requisite level of educational benefit, especially where there is no material difference between the child's transition needs and his current educational needs, as KISD urges is the case here. Bd. of Educ. v. Ross, 486 F.3d 267, 276 (7th Cir.2007) (where school district deferred in making an ITP because student had not progressed to the point where she needed one, the court found that the failure of the plan to discuss transition was a procedural flaw, not a substantive one; only procedural inadequacies that result in the loss of educational opportunity clearly result in a denial of a FAPE).42

The substantive prong of the Rowley test asks whether the IEP proposed for a student was based on the student's assessment and performance. Bobby R., 200 F.3d at 347-48; Michael F., 118 F.3d at 253. KISD argues that it developed an individualized program based on Per's assessment and performance with input and agreement from Per and his parents.43 Insisting that Per's IEP was reasonably calculated to enable him to benefit educationally and that he received a FAPE, KISD charges that the Hearing Officer failed to analyze all four of factors in Michael F. in examining the IEP under the substantive prong of Rowley, i.e., whether Per received a FAPE.

The Hearing Officer found that Per's IEP was not appropriately individualized because (1) it did not contain goals and objectives to meet Per's unique needs; (2) it was not modified often enough; (3) it did not address issues with the portable speller provided to Per, which he refused to use during class where other students could see him; (4) it did not address issues with Per's handwriting; (5) it relied on Per's parents and family to help him at home; and (6) the transition plan was inadequate. Admin. Rec., Vol. I, at pp. 13-22. KISD disagrees. It details what it characterizes as a specifically individualized program developed year by year, ARD meeting by ARD meeting, by the school district, based on Per's assessment and performance, with the input and agreement of Pers and his parents. # 17 at 5-19. It explains in detail how Per was given specific strategies and modifications to address his individual needs with an impairment in written expression from the time he moved from Norway and enrolled in KISD in the fifth grade until he withdrew in his senior year. KISD argues that even if the program failed to develop Per's skills to the level desired by him or his parents, that fact does not mean the IEP was not sufficiently individualized to meet his needs. O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 708 (10th Cir.1998). While the Hearing Officer criticized Per's IEP because it was essentially the same from the fall of 2006 through May 2008 and the district failed to modify Per's curriculum, the district's teaching methods, or Per's goals or objectives, the Hearing Officer must have meant that modifications were in Per's only area of weakness, writing, and must have ignored all the areas in which Per exhibited strengths. Bobby R., 200 F.3d at 350 (It is not necessary that the disabled student improve in every area to obtain an educational benefit from his IEP; educational benefits may be demonstrated by objective evidence of increased scores and grade levels). The undisputed evidence demonstrates that Per functioned at or above the level of his same-age peers in every academic area except writing. His achievement test scores and SAT scores44 indicate that he is achieving at a very high level in the areas of mathematics, social studies, reading and science. Admin. Rec., Vol. I, at pp. 1118, 1120. Moreover, argues KISD, by requiring Per to master the same goals and objectives through regular mainstream education with non-disabled students, the ARD Committee was modifying Per's goals and objectives each year. Writing is taught in high school English classes, with curriculum changes each year, which would assist Per with his writing problems. When Per failed the writing portion of the EXIT level ELA TAKS test,45 he immediately received additional specialized writing instruction and remained in the Practical Writing course throughout his senior year with individualized instruction for skills needed to pass the test. Admin. Rec., Vol. II, at pp. 100, 114-16. That Per did not finally pass the test does not mean that the District failed to respond to his needs; FAPE does not guarantee a particular outcome. Clear Creek ISD v. J.K., 400 F.Supp.2d 991, 995 (S.D.Tex.2005). Nor is there any magic number of ARD meetings or modifications required, but only that the ARD Committee "review the child's IEP periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved." 20 U.S.C. § 1414(d)(4)(A)(i). Per's ARD Committee met seven times during his four years of high school. Admin. Rec., Vol. I, at p. 916. Insisting that the Hearing Officer's real concern was the failure to give Per additional remedial instruction in the area of writing, KISD argues that removing Per from his general education classes in order to do so would have compromised his education in other areas and his right to be mainstreamed. KISD further maintains that the Hearing Officer's reasoning is flawed because it presumes successful remediation could be achieved within the regular school year, even though Per's expert, Brett Hall of Landmark, testified that it could take years. Admin. Rec., Vol. II, at p. 350, ll. 6-20.

As for the portable speller, which the Hovems state was the only special education service provided by KISD for Per's special needs in spelling and writing, the Hearing Officer found that KISD ignored teachers' reports that Per continued to struggle with writing and that he refused to use his portable speller in class. The IEP did not require Per to use it in class, but only to pass all his courses "with or without the use of technology, portable spelling device." Adm. Rec., Vol. I, at p. 979 (11th grade), at p. 948 (12th grade). When questioned by the District's Occupational Therapist, Per always indicated it was successful for him, and his good grades suggest it was. Admin. Rec., Vol. II, at pp. 487-88. During the due process hearing Per testified that he chose not to use the device. That Per chose not to use it in class is not relevant; the District cannot force students to take advantage of the education it offers. Austin ISD v. Robert M., 168 F.Supp.2d 635, 640 (W.D.Tex.2001) ("Schools are not required to force or motivate students to take advantage of the education they offer—that is the parents' job."), aff'd, 54 Fed.Appx. 413 (5th Cir.2002).46

Although the Hearing Officer criticized KISD for not modifying the IEP after some teachers in 2006 stated that Per's handwriting was not legible, KISD contends that other teachers, including those in History and French, thought it was legible and that Per did not need the speller to progress in those classes. Admin. Rec., Vol. I, at pp. 1095-96. His disability just meant it took him longer to put his ideas on paper. See KISD's discussion of Per's spelling, # 17 at 39-40. KISD maintains that its Occupational Therapist evaluated and documented similarities in the strategies used by Per's writing teachers in KISD and Landmark. She also conducted numerous trials with different methods, devices and software to determine the most efficient method to help Per get his thoughts down on paper and concluded that he benefitted most from the use of classroom computers for production of written work, a detailed outline for the prewriting, and a phonetic spelling device with auditory feedback,47 all of which were accommodations provided to him by KISD. Admin. Rec., Vol. I, at pp. 1153-55, 1161-62.

The Hearing Officer complained that KISD encouraged Per to do his writing at home to get help from his family rather than from his teachers. KISD said that while his teacher, Ms. Marek, did ask his parents to encourage Per to use the computer at home, as for a lengthy assignment for his senior memory book project, there is no evidence that any of Per's other teachers knew he was relying on his family to complete other work. Per's mother testified that she spent little time helping Per with homework, and Per, himself, testified that he was never asked by a KISD teacher to get his family to help him with assignments. Admin. Rec., Vol. II, at pp. 286-87, 554, 552, 501.

The Hearing Officer's stated that Per completed his last two years of high school "with essentially no goals and objectives different from a non-special education child." Admin. Rec., Vol. I, at p. 16. KISD counters that mainstreaming is specifically mandated by the IDEA, as evidenced in the second prong, the least restrictive environment ("LRE"), of Michael F.'s four-factor test to determine if the IEP is reasonably calculated to provide a meaningful educational benefit. The Hearing Officer failed to discuss this second prong. The IDEA prohibits removal of a child with disabilities from the general education classroom unless "the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5). KISD maintains that Per performed satisfactorily, as indicated by the grades he received in English: English 1-87/92; English 2-91/79; English 3-77/78; and English 4-81/83. See Corpus Christi ISD v. Christopher N., No. C.A. C-04-318, 2006 WL 870739, *8 (S.D.Tex. Mar. 31, 2006) (requiring placement in regular education even if academic benefits are not "ideal"). As the Supreme Court stated in Rowley, 458 U.S. at 202-03, 102 S.Ct. 3034,

Under the third factor of the Michael F. test, that the services are provided in a coordinated and collaborative manner by the key "stakeholders," KISD states that it has two duties: (1) the ARD Committee must develop Per's IEP based on the input of knowledgeable individuals and (2) it must "implement substantial or significant provisions of the IEP." Pace v. Bogalusa City Sch. Bd., 325 F.3d 609, 620 (5th Cir. 2003), vacated, 339 F.3d 348 (5th Cir.2003), rehearing en banc, 403 F.3d 272 (5th Cir. 2005), cert, denied sub nom. Louisiana State Board of Elementary and Secondary Educ. v. Pace, 546 U.S. 933, 126 S.Ct. 416, 163 L.Ed.2d 317 (2005); Bobby R., 200 F.3d at 349. The Hearing Officer found there was no evidence that Per's IEPs were developed without collaboration from his parents or that his teachers were not highly qualified and capable of meeting his unique needs. Admin. Rec., Vol. I, at pp. 11-12. Nor has Per objected that any provisions, much less substantial or significant provisions of the IEP, were not implemented. Admin. Rec., Vol. 1, at pp. 6, 11-12.

KISD points out that the Hearing Officer even acknowledged that Per "pass[ed] all of his classes and receive[d] an educational benefit from those classes." Admin. Rec., Vol. I, at p. 18. This finding contradicts his conclusion that KISD denied Per a FAPE. Instead the Hearing Officer concluded erroneously that because of Per's high IQ, Per was entitled to something more. In Adam J. ex rel. Robert J. v. Keller ISD, 328 F.3d 804, 809-10 (5th Cir.2003), the Fifth Circuit rejected the argument that an educational program denies a FAPE because it is not challenging to an academically gifted student: "[C]ourts have repeatedly held that a FAPE need not be the best one possible, or the one calculated to maximize the child's educational potential; it only has to provide an educational opportunity designed to meet the student's specialized needs, with sufficient support services to allow him to benefit from the instruction." See also Lewisville ISD v. Charles W., 81 Fed.Appx. 843, 847 (5th Cir. Dec.4, 2003), in which the student's family argued that their child received no academic benefit because as a gifted child, he should have more than passing grades. The panel in Lewisville rejects such an argument and pointed out that the Fifth Circuit had held "that a curriculum withstands a challenge under the IDEA by arguing that it is merely `beneath [the child's] abilities."). Id., citing Adam J. KISD contends that Per's IEP was individualized to meet his needs and not those of a less intelligent student. Furthermore, it argues, if a school district cannot avoid its duty to the student by claiming a lack of support in the home, why should the school's efforts be discounted because the child's overall development is enhanced by strong family support?

With respect to the issue of reimbursement for the Hovems' unilateral private school placement, KISD asserts that reimbursement is only proper if it is proven that Per's IEPs were inappropriate and that private school placement was proper. Michael F., 118 F.3d at 252. Furthermore, before any expenses were incurred by the Hovems at Landmark, when Per became eighteen years old in November 2007, his parents' rights immediately transferred to him and he became the only party in the proceeding, as recognized by the Hearing Officer. Admin. Rec., Vol. I, at p. 50. KISD contends that there is no provision in the IDEA that allows a party to sue for expenses incurred by non-parties; when Per became an adult, the parents became non-parties. Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir.2005) (denying reimbursement to adult student for expenses incurred by his father because the student suffered no out-of-pocket expenses himself).48

Regarding the statute of limitations applicable to requests for a due process hearing, KISD argues that the Hearing Officer erroneously determined that Per was entitled to a two-year period as an adult student since he was eighteen49 at the time of his hearing. KISD notes that Per executed and filed a power of attorney to transfer to his parents his right to prosecute the due process hearing. Admin. Rec. Vol. I, at pp. 40-42. The Hearing Officer determined that Per's parents' rights under the IDEA were not revived by the power of attorney. Admin. Rec., Vol. I at p. 32 (finding the power of attorney merely gave parents the authority to act on behalf of their child). KISD insists that the IDEA mandates that all of a parent's authority transfers to the student when he reaches the age of majority under State law unless the child with the disability has been declared incompetent under State law. 20 U.S.C. § 1415(m). See also 19 Tex. Admin. Code § 89.1049(a) (single exception to the transfer of rights is when "the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship"). KISD points out that there is no evidence that Per is not a competent adult or that his parents had been granted guardianship, so the parents' rights transferred to Per by operation of law when he turned eighteen (19 Tex. Admin. Code § 89.1049(a)). KISD reiterates that because Per, himself, suffered no out-of-pocket expense, he was not entitled to reimbursement, and the Hearing Officer had no authority to order KISD to reimburse his parents, who were not parties to the proceedings.

Even if the Court decides the educational expenses are reimbursable, KISD also contends that the Hearing Officer erred in deciding that the residential portion of the expenses of the Landmark School placement were reimbursable because they were not "necessary to provide special education and related services" in accordance with 34 C.F.R. § 300.104.50

KISD also insists that Landmark School is not an appropriate placement because (1) the evidence shows that the IEP developed by KISD provided Per with the requisite educational benefit and (2) Per failed to establish that Landmark met the requirements set forth by his expert. KISD argues that even though the Hearing Officer rejected significant amounts of Dr. Marshall Shumsky's testimony as lacking credibility, the Hearing Officer adopted Dr. Shumsky's conclusion that Landmark was the only school in the United States that could meet Per's needs even though it did not offer the kind of 7-day a week program that Dr. Shumsky also testified was necessary to remediate Per's disability. Admin. Rec., Vol. I, at p. 23; Vol. II, at pp. 192, 360-61.51

Finally, even if the Court determines that Per is entitled to reimbursement, KISD argues that the Hearing Officer erred in determining the Per was entitled to two years of relief based on the mistaken conclusion that Per was entitled to a two-year statute of limitations period. Admin. Rec., Vol. I at pp. 50-51, 19, 27. KISD contends that the Hearing Officer erred in concluding that the one-year limitations period under 19 Tex. Admin. Code § 89.1151, applicable to due process hearings filed by parents in Texas, did not apply to Per as an adult student. Per's right to file a due process hearing derives from the transfer of that right from his parents. 19 Tex. Admin. Code § 89.1049; Tex. Educ.Code § 29.017. KISD insists that the adult student has only the same right that his parents previously possessed, and the same one-year limitations period applies to Per.

Hovems' Response and Motion for Judgment (# 39, modified by # 41)

The Hovems identify as the single issue on appeal whether the Hearing Officer's decision should be affirmed or reversed.52

As a threshold matter, the Hovems raise a legal argument about the appropriate current standard to measure "academic benefit" under the IDEA. They describe the origin and development of the IDEA out of what was first titled The Education of the Handicapped Act of 1975 ("EHA"), Public Law 94-142, which focused on ensuring that children with disabilities had access to an education and to due process of law. The EHA had no significant discussion of transition services or transition planning. In 1982, the Supreme Court in Rowley established the "basic floor of opportunity" standard for what determines "academic benefit," which emphasized access to educational services, not outcome. In 1990 amendments, the EHA was renamed the IDEA, Public Law 101-475, and it added the requirement for transition services to promote movement from school to post-graduation activities. Its Findings and Purpose sections continued to emphasize access to education.

The Hovems contend that substantial changes were made in the amendments in 1997 and 2004. In 1997 Congress declared the goal of access to education had been met and shifted its focus to "improving educational results . . . . [and] ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities." Congress observed that "implementation of the Act had been impeded by `low expectations'" and wanted to insure that the focus for the first time would now be on "opportunities to achieve standards and goals." 64 Fed. Reg. 12405, 12470-71 (March 12, 1999). The amendments also contain provisions that increased the involvement of the disabled students in decisions regarding their futures to facilitate movement from school to post-school activities. 20 U.S.C. § 1414(d)(3)(A); 34 C.F.R. § 300.346. In 2004 the Purpose section reflected evolving policy concerns about preparing children with disabilities for "further education, employment and independent living." These changes made the outcome important, and mere access to an educational program insufficient, argue the Hovems, thereby requiring modification of the "basic floor of opportunity" standard established in Rowley:

20 U.S.C. § 1400(d)(1).

The Hovems further argue that the definition of "Transition Services" (see footnote 29 of this opinion and order) now emphasizes that the Transition Plan must be a "results-oriented process" involving "post-secondary education" "based on the individual child's needs" to "facilitate [his] movement from school to post-school activities," and include "instruction"; in other words, Per's Transition Plan was deficient because it was not individualized and did not deal with his problems in handwriting, written expression, spelling, phonetics, omitting entire words when writing, and ability to effectively transfer his ideas from his mind to paper and to provide services to effectuate the desired outcome. Because the ARD Committee knew that Per's impairment was so severe that he could take days to write a paragraph and over a week to complete one page, a viable Transition Plan for Per would have to address practical, day-to-day, and community living problems, such as taking a simple phone message, writing a shopping list, taking notes for school or writing directions. It must also address his failure to pass the written expression portion of the TAKS and meet his IEP and transition plan goals to graduate high school. Because the Transition Services Plan did nothing to address these matters, they insist that it was both procedurally and substantively deficient, as the Hearing Officer determined. The Hovems complain that the Transition Services Plans completed in September 2006 and 2007 consist of a two-page check-the-box document with no discussion about Per. It is a document used for all students, with the only thing on it relating to Per, individually, being his name, and that it was full of boilerplate language.

The Hovems argue simply that Per is unable to write and unable to spell, two disabilities that KISD failed to address with an individualized IEP or an individualized Transition Plan. As a result, Per failed the written part of the TAKS test three times over a three-year period. While KISD asserts that Per failed by only one point each year (# 17 at 14 n. 19), the Hovems maintain that everyone who fails this section fails by one point, regardless of the actual raw score he received on the test. # 39 at p. 18, ¶ 60, citing Admin. Rec., Vol. II, p. 111, ll. 15-24 through p. 112, 11. 1-11 (Thomas Greer's testimony). Plaintiffs note that all public school students in Texas are required to pass the exit exam in order to move on to the next level, from one grade to the next, and in Per's case, to graduate from high school. They accuse the district of taking the easy route of not changing his original IEP to address the problem despite the Hovems' protests and instead by granting Per, as a recipient of special education services, a waiver from having to pass the TAKS test.53 Moreover, after he failed the English Language Arts portion of the TAKS test, he was put in a class that was provided to all students who failed, and his teacher testified that the class met once a week and could not solve Per's individual problems in spelling, grammar, and phonics. Admin. Rec., Vol. II, p. 100.

The Hovems argue that application of the four-part test under Michael F.54 shows that KISD did not satisfy the Rowley requirements of (1) compliance with procedures set forth in the IDEA and (2) an Individualized Education Plan reasonably calculated to enable the child to receive educational benefits.

The Hovems address the Hearing Officer's finding of procedural violations that caused the loss of an educational opportunity for Per and thus failed to provide Per with a FAPE.

First, the Transition Services "must be based upon the child's individualized needs, including measurable goals, and be results-oriented." 20 U.S.C. § 1414(d)(1)(A)(VIII); 34 C.R.R. § 300.43. Per's Transition Plan contains only general information and a check-box format that does not satisfy the requirement. There was no "coordinated set of activities designed within a results oriented process that is focused on improving the student's academic and functional achievement to facilitate the student's movement from school to post-school activities." Admin. Rec., Vol. I, at pp. 697-98.

Furthermore Per's IEP was also procedurally flawed, argue the Hovems. It did not change over the years to reflect Per's ongoing problems and his repeated failure on the TAKS test, as required by 34 C.F.R. § 300.324. Moreover his IEP required that Per pass his classes with a 70% grade, which was non-individualized, had nothing to do with Per's Learning Disability in the area of written expression, and was a goal for all non-special education students who sought to graduate. 34 C.F.R. § 300.320. The IEP also required that Per use a portable speller, but the goal of helping him with spelling was not met because all of his teachers reported in an Occupational Re-Evaluation as early as 2006 that he did not use it. Admin. Rec., Vol. I, P. 669; Vol. II, pp. 59, 395-96. The Hovems further complain that the speller is not "measurable," in violation of IDEA04 34 C.F.R. 300.320(a)(2) and (3)(i), nor does it address the core problems associated with Per's Learning Disability. They maintain that the school district was also procedurally deficient and violated 34 C.F.R. § 300.320(a)(6) because it did not have any statement in Per's IEP about his failing the TAKS test, nor any description as to why he did not need to take the test, nor any alternative suggestions. They complain that KISD also failed to have an IEP in place for Per at the beginning of the 2007-08 school year. 20 U.S.C. § 1414(d)(2)(A-C). 34 C.F.R. § 300.323.

Still another procedural violation was KISD's failure to satisfy the "prior written notice" requirements of the IDEA when it refused to make changes that Per and his family requested during the relevant time period in this case. 34 C.F.R. § 300.503. When KISD refused to place him or provide the services requested, there is nothing in the record to demonstrate that the district met the requirement to provide the Hovems with the following, all factors that went into the Hearing Officer's determination that Per's IEP was procedurally inadequate (# 41 at 22):

They maintain that the record reflects that the school failed to give Per a copy of the "Procedural Safeguards" (Admin. Rec., Vol. II, p. 37), another violation. 20 U.S.C. § 1415(m); 34 C.F.R. § 300.520, § 300.504.

As for Rowley's and Michael F.'s second prong, an IEP and Transition Plan reasonably calculated to enable the child to receive educational benefits, both academic and non-academic, the Hearing Officer found that the IEP and Transition Services Plan failed to confer academic benefit on Per. The Hovems argue that there is no evidence that Per received any non-academic benefits from his IEP, either. A FAPE is defined as "special education and related services [emphasis added]." 20 U.S.C. §§ 1401(8), 1412(a)(1); 34 C.F.R. §§ 300.13 and 300.300.

The Hearing Officer found that Per's Transition Plan was deficient procedurally and substantively because its goal was merely to have Per pass his classes and graduate high school like other students. The Hovems insist the Transition Plan was necessarily deficient because it failed to address Per's individualized needs, i.e., to learn how to write well enough to actually pass the handwriting and written expression portion of the TAKS test.

Regarding reimbursement for Landmark School expenses, the Hovems insist they have standing and that the statute speaks plainly that parents can seek and receive reimbursement for such costs.55 See Winkelman v. Parma City School Dist., 550 U.S. 516, 517-18, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007)56 (The "IDEA grants parents independent enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters encompass the entitlement to a free appropriate public education for the parents' child.").57 The Court agrees with the Hovems that the parents have the right to seek reimbursement of their expenses if Per was denied a FAPE and the placement at the Landmark School is appropriate. Pursuant to Section 1415(e)(2) of the IDEA,58 a TEA Hearing officer has equitable authority to order reimbursement for private placement or other compensatory services or any issue "that justice may require." 19 T.A.C. § 89.11.70(b). Moreover, Texas law requires a parent to support a child with a disability past its eighteenth birthday and thus supports reading the statute to provide parents with the right to seek and receive reimbursement for such costs. The Hovems, or any person who provides out-of-pocket costs for Per's education, could seek a third party claim or ask that their claim be subrogated in an effort to be made whole. They insist there is no case law that states that a parent does not have standing to be reimbursed for out-of-pocket expenses incurred on behalf of their children, regardless of age, and "[o]ne would be hard-pressed to find any eighteen (18) year old who would be able to pay their own costs of a compensatory education." They assert that KISD's argument makes no practical sense and has no legal basis. Furthermore, they point out that in earlier proceedings in this case, the school district paid the Hovems for the costs of Per's education at the Landmark School and insist that the school district cannot now argue that the Hovems do not have standing. Thus the Hearing Officer's determination that the parents do not have standing should be reversed. Even if the court concludes that the Hovems lack standing, they should still be reimbursed for reasons stated. Alternatively, Per should be allowed to assert the claim.

At the administrative level, Per Hovem argued that the two-year statute of limitations under 20 U.S.C. § 1415(f)(3)(C) applies to him because the state statute, 19 T.A.C. § 89.1151, does not specifically address what should happen when a student turns eighteen regarding filing a request for a due process hearing; therefore the two-year period contemplated by federal law is the default standard for Per's claims.59 The Hearing Officer agreed. The school district argues that the one-year period in the Texas statute controls. A student receiving special education services may remain in public school until he is past twenty-two years old. 19 T.A.C. § 89.1023. The Hovems argue that it would be rare for and eighteen-year-old, after living a lifetime of dependence, to know to file a complaint against his school. Furthermore, the statute of limitations for IDEA (then the EHA) claims in Texas was previously two years, based on state law when construing civil rights actions under § 1983 and when the federal statute had no statute of limitations. McDowell v. Ft. Bend ISD, 737 F.Supp. 386, 389 (S.D.Tex. 1990). On August 1, 2002, the TEA promulgated a new rule at 19 T.A.C. § 89.1151(c) changing the two-year limitations period to one year. Subsequently in Texas Advocates Supporting Kids with Disabilities v. TEA, 112 S.W.3d 234, 236 (Tex.App.—Austin 2003, no pet.) (explaining that the one-year limitations was passed because the TEA "determined that the longer it takes to resolve differences through a due process hearing and subsequent suit for judicial review, the greater the potential damage to the child's education"), the appellate court held that the one-year limitations period was legally promulgated by the TEA. In June of 2004, Congress passed the 2004 amendments to the IDEA and discussed the two-year limitations period for a parent or school district to file for a due process hearing. The Texas rule has remained the same since 2002 and Texas has failed to adopt the language of the federal statute. The Hovems argue that while the one-year limitations period was legally sufficient before 2004, TEA would have to re-authorize the rule with new language regarding the exceptions noted in 20 U.S.C. § 1415(f)(3)(D), but it did not. Therefore the two-year limitations period should control.60

Alternatively they assert that the one-year limitations period for special educations cases is fundamentally unfair because it does not apply to any other of the various methods available to resolve disputes between parents and the school districts. The Hovems make various other arguments which the Court finds unsupported by legal authority and unpersuasive, so it will not repeat them here. In sum, they argue that the one-year period discriminates against disabled students and leads to absurd results. They want the two-year statute of limitations applied and the Hearing Officer's decision on limitations to be affirmed. They contend that the Hearing Officer has the authority to seek a remedy pursuant to the specific needs of the student, regardless of the limitations question, for multiple years of educational deficiencies. Alexandra N. v. Desoto ISD, Civil No. 3:04-CV-2513-H, 2005 U.S. Dist. LEXIS 15122, *9 (N.D.Tex, July 25, 2005) (finding a court "ought to be able to fashion an appropriate remedy to compensate a student for an education agency's failure to provide a free appropriate education") (citing 20 U.S.C. § 1415(i)(2) and 34 C.F.R. § 300.512), citing Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 521-26 (D.C.Cir.2005) (finding that trial judges in IDEA cases have broad discretion to hear additional evidence and fashion "appropriate relief" for equitable reasons; awarding compensation for an educational deficit of four years) (citing Carter, 510 U.S. at 15-16, 114 S.Ct. 361); Mewborn ex rel. N.V. v. Gov't of Dist. of Columbia, 360 F.Supp.2d 138, 143 (D.D.C.2005) ("The right to compensatory education accrues when the school district knew or should have known that a disabled child was not receiving a free and appropriate education"). See also Ridgewood Bd. of Education v. N.E. ex rel. M.E., 172 F.3d 238, 250 (3d Cir.1999).

The Hovems observe that the Hearing Officer found Landmark School to be an appropriate placement for several reasons. First, it specializes in dealing with highly intelligent students who have language disabilities. (Admin. Rec., Vol. II, pp. 179, 335). It use a specific teaching method, called Lindamood-Bell, specifically the Lindamood Phoneme Sequencing Program ("LiPS"), which uses a multi-sensory approach to problems with auditory processing of language such as those afflicting Per. Id. at pp. 138, 311, 366-67. See also Vol. I, Petitioners' Ex. 12, at pp. 793-99. This teaching method is peer reviewed and scientifically based. Id. at pp. 138-40, 355, 366-67. At Landmark School Per receives a daily one-on-one tutorial session specifically directed to his disability. Id. at pp. 311-12. Unlike at Klein ISD, all of Per's classes are structured so that language skills are exercised during the entire course materials and are highly individualized as to Per. Admin. Rec., Vol. I, p. 745; Vol. II, pp. 347-48, 333. Although Per's ARD Committee disagreed with Per's placement there, no one from Klein ISD ever investigated the Landmark School to determine whether it was appropriate for Per. The Hearing Officer noted that KISD basically did not challenge the evidence presented by Per's expert, Dr. Marshall Shumsky, and found that the Landmark School was appropriate for Per, while Klein School District was not.

In sum, the Hovems ask the Court to deny KISD's motion for summary judgment and to grant their motion for judgment based upon the administrative record. In particular they ask the Court to affirm the Hearing Officer's decision regarding the following matter: KISD's failure to satisfy the procedural requirements of IDEA 2004 by, among other things, failure to have a transition plan with appropriate goals crafted around Per's unique and individualized needs, failure to develop an appropriate IEP for Per, and failure of the IEP to confer an educational benefit on Per, and the placement of Per at the Landmark School was appropriate. They further request the Court to affirm the Hearing Officer's decision requiring reimbursement of the Hovems for all costs incurred in Per's placement at the Landmark School, past, present, and future. They also ask that their request for reasonable attorneys' fees and costs as "prevailing parties" in the underlying administrative action and through proceedings in this Court.

KISD's Reply (#43)

Because the Court has set out its interpretation of controlling law in this Circuit, it does not repeat KISD's disagreement with the Hovems' legal authority.

The one exception is KISD's challenge to the Hovems' argument that the 1997 and 2004 IDEA amendments require modification of the Rowley standard for a FAPE of a "basic floor of opportunity with access to specialized instructions and related services which are individually designed to provide educational benefit." 458 U.S. at 201, 102 S.Ct. 3034. This Court fully concurs with KISD that the Fifth Circuit has continued to apply Rowley. K.C. b/n/f M.C. v. Mansfield ISD, 618 F.Supp.2d 568, 574-76 (N.D.Tex.2009) (and cases cited therein); see also discussion in J.L. v. Mercer School Dist., 592 F.3d 938, 947-51 (9th Cir.2010) (agreeing with First Circuit that "there is no plausible way to read the definition of transition services as changing the free appropriate education standard" and continuing to apply Rowley), citing Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83 (1st Cir.2004).

According to KISD, although the Hovems argue that KISD is required to develop a transition plan that cured Per's writing disability and ensure the he passed the TAKS test, KISD insists that under the Rowley standard Per received extensive educational benefits in the KISD program: even the Hearing Officer acknowledged that Per "pass[ed] his classes and receive[d] an educational benefit from those classes." Admin. Rec., Vol. I, at p. 18. See also Bobby R., 200 F.3d at 349-50 (finding the student does not have to show progress in every area to obtain an educational benefit); J.K., 400 F.Supp.2d at 996 ("The standard for an IEP is whether the instruction and services provide some benefit to the student. . . . An IEP and its implementation cannot be judged based on a student's progress or regression on a single objective, even an important one.").

KISD addresses the four-prong test for a FAPE, established in Michael F., 118 F.3d at 247, which it claims the Hovems ignored. First, KISD insists that Per's educational program was individualized on the basis of his assessment and performance. While the Hovems argue that § 29.003(a) of the Texas Education Code mandates that "special education instruction shall be supplemented by provision of related services," KISD points out that the statute requires those services only "when appropriate." Tex. Educ.Code § 29.003(a). Similarly the IDEA and its implementing regulations require provision of related services "as may be required" to assist the child to benefit from his education. 20 U.S.C. § 1401(26)(A). Thus whether to provide such related services is an individualized decision based on the educational needs of the child. While Per did not receive direct related services, his use of assistive technology was monitored by the occupational therapist up to his senior year, when those services were discontinued by unanimous consent of his parents and the school-based members of the ARD Committee. The ARD Committee did not deem any other related services to be necessary, and the suggestion that some unspecified additional related service would have eliminated his writing disability is speculative at best. While the Hovems argue that Per's IEP was not adequately individualized because it was so "very (very) simple" in requiring him to pass all his classes and use a portable speller and because he failed the EXIT level Writing TAKS test, KISD responds that requiring a special education student to master the same curriculum as a non-disabled student, especially that in the area of his disability, is not a simple goal, and that the severity of his disability did not warrant removing him from general education classes. The requirement that an IEP be individualized is not the same as requiring the child's education to be focused on the areas most impacted by his disability—all the other subject areas are equally important to a well rounded education for attending college as the ability to write. That Per's educational experience in KISD is marked by numerous successes and a single failure does not equate to the denial of a FAPE.

The second prong of the Michael F. test, the least restrictive environment, was also applied to Per individually. In his freshman year he attended a special education class for writing instruction with specific goals and objectives selected from the State's writing curriculum. Admin. Rec., Vol. I, at pp. 613-14, 572. During the ARD Committee meeting at the beginning of that year his parents requested that Per receive his writing instruction in a regular education classroom. The ARD Committee agreed to a provisional enrollment for the spring semesters, and Per received a grade of 92. Admin. Rec., Vol. I, at p. 1116. The next year the ARD Committee, without objection from the Hovems, agreed to continue the regular education placement, in which Per continued to perform "satisfactorily" by passing all his classes and TAKS testing with one exception, the written portion of the exit level ELA TAKS, which KISD urges should not render his entire educational experience in the school district meaningless. The Court should find this prong weighs in favor of KISD.

KISD further maintains that, in accord with the third prong of Michael F. for an FAPE, Per's IEP was developed and implemented in a coordinated and collaborative manner with parents and qualified teachers. The Hearing Officer stated there was no evidence that it was not. Defendants do not argue that any of the provisions, no less substantial or significant provisions, of the IEP were not implemented. KISD should prevail on this prong, too.

Finally regarding the last prong, that the student receive both academic and non-academic benefits from his educational program, a school district may not remove a child from the mainstream solely to increase a child's level of academic achievement; the benefits of mainstreaming go beyond the academic realm and include language and behavior models. Daniel R.R. v. State Board of Educ., 874 F.2d 1036, 1047 (5th Cir.1989). While KISD offered Per tutoring to supplement his writing instruction during twelfth grade, he chose not to attend a single session. Admin. Rec., Vol. II, at p. 299 (testimony of Ms. Marek, ELA teacher), p. 108 (testimony of Mr. Greer,61 practical writing teacher). The focus of the Rowley requirement that the IEP be reasonably calculated to enable the child to receive educational benefits is on academic achievement. White ex rel. White, 343 F.3d at 378. KISD maintains that passing classes is a strong indication of academic benefit that militates a finding in favor of the school district that the student's IEPs were appropriate under the IDEA. Adam J. ex rel. Robert J., 328 F.3d at 810. The Hearing Officer believed that the grades Per received were genuine. Contrary to Defendants' charge that the record is devoid of evidence of non-academic benefits, KISD insists it was Defendants' burden to establish a lack of benefits. Regardless, the Hearing Officer considered and rejected Defendants' argument that Per had any non-academic needs that needed to be addressed by the ARD Committee. Admin. Rec., Vol. I, at p. 11. Per did receive the benefits of mainstreaming discussed in Daniel RR. and he clearly received a FAPE under the Michael F. test.

As for alleged procedural violations, KISD argues that they only constitute a violation of the school's duty to provide a FAPE if they (1) impede the child's right to a FAPE, (2) significantly impede the parent's opportunity to participate in the development of the IEP, or (3) cause a deprivation of educational benefit. 34 C.F.R. § 300.513(2). KISD argues that the Hearing Officer erred in determining that KISD committed procedural violations, and that even if it did, Per cannot establish that any procedural violation rose to the level of a denial of a FAPE.

Defendants allege numerous procedural violations that KISD maintains are not supported by the administrative record or not supported by law. For example Defendants argue that the check-box format in the transition plan is inadequate under the IDEA,62 when the IDEA does not prescribe or prohibit any particular form and despite the fact that Per's transition plan addressed every area of need, as required by the statute. 34 C.F.R. § 300.320(b). The transition plan also provided the ARD Committee with multiple ideas and options as well as sufficient opportunity for the Committee to formulate and describe other choices as needed. Admin. Rec., Vol. I, at pp. 962, 970-72. The Hovems participated in the annual meetings and discussions about Per's transition and agreed every year except the last with the recommendations.63 Admin. Rec., Vol. I, at pp. 959, 963. While KISD admits that it is true that KISD uses a transition plan for all special education students because it helps to ensure that all required components are consistently addressed. The Plan does have Per's name on it and it was developed by a group of individuals with unique knowledge of Per's needs, for a student graduating under the State's rigorous "Recommended" graduation plan, who was expected to achieve competitive full time employment with natural supports from family and friends, who was planning to attend a four-year university, and who would not need any support to live independently after graduation. Admin. Rec., Vol. I, at pp. 970-72, 962. In addition, the three-page transition plan is only one part of the thirty-page IEP. Many additional recommendations, details and supports specific to Per are included in other parts of the IEP. Id. at pp. 943-69. Nothing in one part of the IEP need be repeated in another. 20 U.S.C. § 1414(d)(1)(A)(ii)(II). See also Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 25, 30 (1st Cir.2008).

The Hovems' argument that requiring Per to participate in all general education classes and achieve the same level of mastery on all State curriculum goals as any non-disabled person is not an individualized decision compliant with the IDEA is also wrong. The ARD Committee's decision to do so is an individualized decision fully compliant with the statute. 34 C.F.R. § 300.39(b)(3) (defining "specially designed instruction" to require modifications to the content, methodology or delivery of instruction only as appropriate to address the needs of the child and to "ensure access of the child to the general curriculum so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children").

In addition, contrary to the Hovems' complaint that the IEP did not address Per failure on the TAKS test, KISD points out that at the first ARD Committee meeting after Per failed the written portion of the English/Language Arts TAKS test the Committee addressed the question. Given the facts that he had met the State's expectations at the 10th grade level ELA TAKS the year before, that he was receiving instruction and passing his grade-level English/Language Arts curriculum, he was receiving daily remedial writing instruction specifically geared to the TAKS writing test in a Practical Writing course, and he would retake the test with the accommodation of a word processor, the ARD Committee remained optimistic. That Per did not achieve every goal set by the ARD Committee does not equate to an inappropriate educational plan. J.K., 400 F.Supp.2d at 995 (citing Rowley to explain that a "FAPE does not guarantee a particular outcome").

KISD responds to the Per's charge that it did not have an IEP in place at the beginning of the 2007-08 school year by noting that this allegation is barred because it was not raised at the administrative hearing; even if it had been, it is contradicted by the record (Admin. Rec., Vol. I at p. 979) (the IEP developed on September 13, 2006 is in effect until September 12, 2007; p. 943) (ARD Committee met again in Sept. 2007); see also 20 U.S.C. § 1414(d)(4)(A) (requiring IEPs to be reviewed at least annually).

Finally, the record shows that Per did receive a copy of his Procedural Safeguards. Admin. Rec., Vol. I at p. 973. Moreover Per and his parents agreed with the recommendations of the ARD Committee. Id. at 994.

Even if KISD had violated procedure, the Hovems offer no evidence that such violation impeded his right to a FAPE, significantly impeded his parents' ability to participate in the development of the IEPs or deprived him of an educational benefit. 34 C.F.R. § 300.513(a)(2). It was very reasonable for the ARD Committee to believe that Per's many successes indicated that he was on track and capable of meeting the goals it set.

Regarding the reimbursement ordered by the Hearing Officer, KISD rejects the Hovems' argument that they are entitled to the award because the Hearing officer is authorized to award reimbursement and equitable relief and because they have standing. KISD contends that any right they have arises exclusively under the IDEA; because Per reached the age of majority, his parents no longer have any rights under the IDEA, and therefore they have no right to reimbursement. 19 Admin. Code § 89.1049(a) (transferring IDEA rights to adult student). Even if KISD failed to provide Per with a FAPE, his parents are not entitled to the ordered reimbursement.

Even if the parents did have standing, there is no legal basis for ordering reimbursement of the residential portion of the private school costs, contends KISD.

Last of all KISD argues that the applicable limitations period is one year for all requests for due process hearings filed in Texas. 19 Tex. Admin. Code § 89.1049 and Tex. Educ.Code § 29.017. The specific rights granted to students with disabilities and their parents under the IDEA, to which they do not have to consent, come with express limitations periods. Statutes of limitations are commonly applied to all causes of action, and there is nothing unfair or absurd about applying one here. Nor, as the Hovems argue, can the Hearing Officer ignore the express limitations period. Though the Hearing Officer awarded two years of reimbursement in the erroneous determination that a two-year limitations applied, so the award must be overturned. Admin. Rec., Vol. I, at pp. 19 and 27.

Hovems' Surreply (#44)

Agreeing with the Hearing Officer that the transitional services plan developed for Per was procedurally and substantively deficient and his IEP failed to provide him with a FAPE and "academic benefit," the Hovems try to distinguish the extensive and substantial efforts made by the school district for a student with a disability in J.L., 592 F.3d 938, who also had a writing disability and was sent to Landmark School, with what they see as the inadequate effort to address Per's unique and individualized needs here. The Fifth Circuit has refined the "some educational benefit" standard to require students to achieve "meaningful benefit" or "meaningful progress" in the areas where their disability affects their education. Bobby R., 200 F.3d at 347. Other courts of appeals look at a student's potential and ability to determine whether he has progressed and received educational benefit. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999) (adding that when a student displays considerable intellectual potential, like Per, "a great deal more than a negligible benefit" is required). They argue that if a school modifies a grade, as KISD proposed to do with the failed TAKS test, it loses its validity as a true measure of benefit or progress. The Hovems reiterate their contention that Per's IEPs were never changed since 2006, KISD never addressed his problems after any of the three times he failed the TAKS test, and his program was the same one given to non-disabled students.

The Hovems further complain that KISD has failed to address the alternative legal theories they put forth upon which reimbursement could be made. They reiterate that the Hearing Officer correctly ordered reimbursement pursuant to the equitable authority granted to him in the IDEA. Moreover under KISD's position, no student close to age eighteen would ever complain that a school's IEP was deficient and could not go to a private educational environment unless he or his parents were wealthy, which would be inconsistent with the statute's mandate that his education be provided at public expense. As for its opposition to reimbursement of Per's residential expenses at Landmark, KISD provides no legal authority. Moreover the argument is erroneous because the Hearing Officer has the authority to order reimbursement of a residential portion of private placement. 20 U.S.C. §§ 1412(a)(1) and (10)(B). See also Michael Z., 561 F.Supp.2d at 606-07 (where placement in a residential program is necessary to provide special education and related services to a child with a disability, the program, including room and board, must be at no cost to the parents). Finally, the Hovems maintain that the Hearing Officer's decision regarding the two-year limitations period was correct.

KISD's Supplement (#47)

As noted, the Fifth Circuit rejected the "inextricably intertwined test for reimbursement of residential expenses incurred in the private placement of a disabled student not receiving a FAPE and instead applied a new test: for a residential placement to be appropriate under IDEA, the placement must be 1) essential in order for the disabled child to receive a meaningful educational benefit and 2) primarily oriented toward enabling the child to obtain an education. Michael Z., 580 F.3d at 299." See also 34 C.F.R. § 300.104 ("If placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child."). KISD still argues that there is no evidence that any aspect of the residential program at Landmark was necessary to enable Per to receive an educational benefit. Per's mother testified that she paid for the residential portion of the private school because she wanted Per to experience the dormitory life like other graduating students who were going off to college. Admin. Rec. Vol. II at p. 624, ll. 17-23. Per's expert, Dr. Shumsky, testified that the residential portion of Landmark was not necessary to ensure that he received an educational benefit from the Landmark placement and that two high schools in Houston implemented the same methodology that he thought Per needed. Id. at p. 214. Therefore, even if the Court finds that KISD denied Per a FAPE, Per is not entitled to reimbursement of the residential program expenses because not offered by Landmark's residential program is essential to Per's educational progress.

Hovems' Response to KISD's Supplement (#52)

The Hovems maintain that the educational services provided by the Landmark School are essential for Per. The Hearing Officer determined that Landmark School specifically provided educational services for highly intelligent children, such as Per, who have language disabilities. Admin. Rec. Vol. II, pp. 179, 335. It uses a particular, teaching method (LindaMood-Bell), which employs a multi-sensory approach to problems of auditory processing of language which is helpful to Per. Admin. Rec. Vol. II, pp. 138, 311, 366-67. It also provides daily, one-on-one tutorial sessions to work on Per's disability. Admin. Rec., Vol. II, pp. 311-12. The classes at Landmark are highly structured so that language skills are exercised during the entire course materials. Admin. Rec., Vol. I, p. 745; id., Vol. II, pp. 347-48. The program is highly individualized to Per's needs. Admin. Rec., Vol. II, pp. 333, 343-44.

As for Landmark School's residential program, they argue that that KISD took remarks made by Dr. Shumsky out of context, and insist that Dr. Shumsky repeatedly explained that Per could not obtain the skills he needed at a local school (Admin. Rec., Vol. I, p. 162), and that although two schools in the Houston area provided the LindaMood-Bell program, neither was appropriate because neither could provide the level of services Per required. Admin. Rec., Vol. I, pp. 162, 215, 182, 183. Dr. Shumsky testified that there were no public schools that could provide Per the individualized educational services that he received at the Landmark School. Admin. Rec., Vol. I, p. 217. KISD did not contest any of these comments or present any evidence or witnesses to testify about the appropriateness of any private or public schools in the Houston area. Nor did anyone from KISD investigate the Landmark School to determine whether it was appropriate for Per. KISD also has not presented any evidence challenging the appropriateness of Per's 2008 summer program at the Landmark School, where he made good progress. Admin. Rec., Vol. II, pp. 328-30, 368-70; id., Vol. I, pp. 766-74, 830.

Court's Decision

As a threshold matter, the Court finds that KISD materially misrepresents the Hearing Officer's decision and the Hovems' arguments. For example the Hearing Officer did not find, nor did the Hovems argue, that KISD denied Per a FAPE because KISD failed to develop Peer's writing skills to a level that would guarantee him success in college or to the extent that college would not be difficult for him. Nor did the Hearing Officer conclude, nor did the Hovems argue, that the Transition Plan, purportedly developed each year since Per was fourteen, was flawed because it did not equip Per for success in college by preparing him to take class notes or pass essay exams. Nor did the Hovems argue that KISD was required to develop a transition plan that would cure Per's writing disabilities or ensure that he passed the TAKS test.

With regard to the Texas one-year statute of limitations, the Hovems filed their Original Complain and Request for Special Education Due Process Hearing on June 26, 2008, so the Court must determine that they knew or should have known of the basis of their complaint within the previous year. The Court finds that Per and the Hovems became aware that after years of assurance by the ARD Committee that Per was progressing because he was passing classes and TAKS tests, that Per could not fill out college applications, that extensive testing was sought by his family and revealed Per's actual low level of written expression and that he was functioning significantly below his expected age or grade norms in basic skills relating to written expression, that research into alternative schools, especially Landmark School, revealed methods and opportunities previously unknown to him and precluded by his unchanging IEPs, that his English teacher awakened his family to the severity of his disability, and that Per, himself, called an ARD Committee meeting to assert his belief that he could not function in college or at a job with his current skills.

This Court affirms the Hearing Officer's findings from a preponderance of the evidence rejecting the Hovems' contentions that KISD failed to comply with certain IDEA procedural requirements: that KISD failed provide Per with highly qualified teachers or that it did not hire, train or supervise staff capable of meeting Per's unique needs, that Per needed non-academic services such as counseling and social work services, that any of the ARD Committee members had collaborated prior to the ARD Committee meetings to predetermine the child's educational plan, and that the district failed to provide the Hovems with timely and objectively verifiable and understandable reports on Per's IEP goals.

A central goal of the IDEA is to ensure that children with disabilities receive a FAPE that "emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." Juan P., 582 F.3d at 583 [emphasis added by the Court]. The focus is on the special education services' targeting the student's disability and/or weakness, not his normal abilities or strengths. The FAPE must provide educational instruction designed to meet the disabled child's unique needs, supported by services necessary for the child to benefit from the instruction. KISD appears to turn that standard on its head in arguing that because Per did well in all other areas than that in which his disability lies, his IEP was adequate even though it was not designed nor modified when shown to be ineffective to focus on that unique weakness/need. KISD determined that Per was eligible for special education services under the IDEA; it cannot excuse a failure to provided special related services addressing his unique needs merely because he is highly intelligent and ahead of many regular education students in his areas of strength. The Court agrees with the Hearing Officer that Per's later IEPs in 2006-08, unchanged for three years and viewed against his history of continuing and severe deficiencies in written expression and his inability to pass the written TAKS test during his last two years in the district, were not reasonably calculated to enable him to receive educational benefit. Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034. While KISD was clearly not required to cure or remediate Per's learning disability, it was required to address his learning disability. Instead the record supports a finding that KISD ignored Per's area of weakness and even chose to obscure it by highlighting Per's success in areas not impacted by his learning disability. While the Court agrees that KISD did not have to provide Per with the best possible education or one that would maximize his educational potential (id., citing Michael F., 118 F.3d at 247),64 "[n]evertheless, the educational benefit to which the Act refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be likely to produce progress, not regression or trivial educational advancement" and to provide Per with "meaningful" educational benefit. Juan P., 582 F.3d at 583.

Applying the four factors established in Michael F. to determine whether Per's unchanging IEPs were reasonably calculated substantively to provide Per with an educational benefit, this Court finds just one in support of KISD's position, and that only partially, in that KISD did observe the least restrictive environment requirement of the IDEA when Per's ARD Committee mainstreamed Per in all classes beginning in the 2006-07 school year. But

Juan P., 582 F.3d at 586. As the Hearing Officer found and as will be discussed, the preponderance of evidence in the record demonstrates that KISD did not provide Per with a FAPE.

As emphasized by the Hearing Officer and supported by the record, regarding the first factor, Per's IEP was not sufficiently individualized on the basis of his assessment and performance to meet his needs: the ARD Committee determined that he was to receive the same education and meet the same standards as regular education students without any variation. For special services he was given a portable speller and access to a computer in the classroom, which his ARD Committee knew he was not using as early as 2005.65 The ARD Committee made no changes over the next three years to see if it could get him to use them or employ other means to assist him.66 Moreover despite KISD's insistence that Per was successfully mainstreamed and therefore provided with a FAPE, testimony repeatedly showed that he was not actually held to the same standards as his regular-education classmates: his teachers often excused him from requirements they imposed on his classmates in ways that allowed them to circumvent having to continuously seek and try individualized methods that might assist him in dealing with his disability. His teachers admitted he often did not hand in his homework, they permitted him to answer questions orally when they could not read his handwriting, and they told him to finish, polish, and type written assignments at home, where he was helped by his mother and brother. As pointed out by the Hovems, without meeting ARD Committee procedures for such an exception, KISD waived passage of the written TAKS test, which Per failed three times during his last two years in KISD, as a requirement for him to graduate, rather than make an individualized effort to help him pass it. There was testimony indicating that his 2008 evaluation by KISD evidenced no progress over his 2005 evaluation (Petitioner's Exs. 12, 7). Shumsky's testimony at Due Process Hearing, Transcript at 154-55. Moreover, while KISD argues that Per passed all of his classes and would have graduated with his class had he taken the economics course, his test evaluations in the spring of 2008 make KISD's claims that it provided him with an educational benefit are highly suspect. As noted, in Per's Admission Screening—Test Results dated March 28, 2008, while Per's reading comprehension score was high, 142, Per performed at a 5.1 grade equivalent in word identification, 2.0 grade in word attack, 5th grade and four months in reading, second grade fourth month in accuracy of reading, and third grade seventh month in the fluency of reading, while his score for word attack (dealing with phonetic decoding) was in the 1% level. Admin. Rec., Vol. I, Petitioners' Ex. 11 at p. 737. Even when Per, himself, called an ARD meeting in May 2008 to insist that he was not ready to graduate, his ARD Committee simply responded that he had received a FAPE, that he was ready to graduate, and in essence, in a final "passing the buck," told him that colleges and universities receiving federal funds were required to have programs to assist those with learning disabilities. They also denied his request for reimbursement for placement in the Landmark School without investigating it.

Moreover, within his last deficient IEPs, Per's transition plan, if indeed there was one, was not individualized by any objective, measurable goals that are result-oriented nor identification of transition services to meet his needs after high school. This Court agrees with the Hearing Officer that KISD failed to provide an appropriate Transition Plan for Per. Two documents, one dated 9/13/06 (Petitioner's Ex. 8 at 664) and another dated 9/14/07 (Ex. 9 at 697), constitute Per's Transition Services for his last two years. They are identical and indicate broadly and abstractly through a couple of checked boxes that he needs only Occupational Therapy and Assistive technology. During the Due Process Hearing, Transcript at 530-34, Per was asked what he needed to plan for his life post-secondary school; unlike the vague Transition Services documents that offered nothing more than his IEP accommodations for the past few years, he identified specifically that he needed someone to help him find a college with a good assistive program for the learning disabled and to locate private tutoring outside college, and ideally a personal assistant to take notes for him. Per also testified that he had never met with a guidance counselor about post-school transition planning. Due Process Hearing Transcript at 504-05. KISD presented no evidence to the contrary.

The third factor in Michael F., services provided in a coordinated and collaborative manner by key stakeholders, also fails under scrutiny. To participate and collaborate meaningfully, one must understand what is going on. The Hovems were not trained in special education, but relied on those who were. Although for years the ARD Committee and the Hovems worked together on Per's IEPs in a seemingly coordinated and collaborative manner, during which time the family had regularly pointed out their concerns about Per's writing and reading difficulties, Mrs. Hovem stated that the Hovems were not informed, indeed were misled, about Per's actual level of ability until his senior year. Dr. Rosenburg testified that her staff was not trying to mislead the Hovems about Per's scores, but conceded that their evaluation reports do not have grade equivalence or percentile scores.67 Due Process Hearing Transcript at 666-67, 671. In either event, given persistent reassurances of progress by his ARD Committee and KISD's focus on his passing grades, the Hovems were not aware of the low levels at which he was functioning. In his senior year Per and his parents realized that he was unable to complete applications when he looked into colleges. When the Hovems arranged for him to be extensively tested and were given the results, with grade equivalencies, in the Spring of 2008, they discovered how minimal his written expression skills actually were. They also discovered from Marek's call that his English teacher was deeply concerned about his deficiencies. In addition they learned in the few months before the due process hearing in December 2008 what a competent IEP under the IDEA should contain and what is required of a school district to design an educational program for a child with learning disabilities, and they realized that Per's IEPs lacked individualized essential, measurable goals and objectives. Due Process Hearing Transcript at 56-61. Mrs. Hovem testified during the due process hearing, transcript at 556-57:

See id. at 605-06.

The last factor, demonstration of positive academic and non-academic benefits, revives Mrs. Hovem's analogy of KISD's arguments to a smoke screen. The Fifth Circuit demands that the "IEP must be `likely to produce progress, not regression or trivial educational advancement,'" i.e., "the educational benefit that an IEP is designed to achieve must be `meaningful.'" Bobby R., 200 F.3d at 347. It should have provided Per with not just "`a basic floor of opportunity,'" but one that "`consists of access to specialized instruction and related services' individually designed to provide" him with educational benefit that is more than "de minimis." Juan P., 582 F.3d at 590. Per's written work, of which there are numerous examples, does not show any significant improvement while he attended KISD schools. In contrast Per's documented progress within a short time at the Landmark School, where he does not use a portable speller,68 demonstrates that significant educational benefits were possible when an individualized program addressing Per's learning disability was implemented. Documents of his handwriting at Landmark School reflect significant improvement. Moreover some of Landmark School's solutions for addressing Per's disability discovered through its individualized program, such as recognizing that Per was more comfortable and his writing far more legible when he wrote in cursive, were simple and inexpensive. As noted, in its efforts to push Per through the system, KISD circumvented goals, objectives, and standards of measuring progress and left Per's IEPs unchanged despite knowledge that what was originally proposed was not working. While highlighting his passage of classes and TAKS tests, KISD downplayed the crucial impact on an individual's life of an inability to write in order to communicate ideas, receive messages, prepare lists, etc. inevitably plays in a person's ability to function in life. As the Hearing Officer concluded, an examination of Fifth Circuit IDEA cases69 indicates that a school district's obligation to provide a FAPE is ongoing and requires alterations, modifications and regular, careful review by the ARD Committee when an IEP is not effective; by comparison, KISD's effort to provide Per with a FAPE was de minimis. Although several professionals who tested Per or represented Landmark School talked about aiming to achieve optimal results given his abilities, a standard well above that required of school districts by the IDEA, Mrs. Hovem testified convincingly at the Due Process Hearing that such was not her goal: "We are not asking for the most optimal maximized potential that you keep trying to drag out of witnesses. We are asking that he can function at a sixth grade level. We want to—We don't even know if he can do that, but we want to have the chance to try, just the chance to see, to prove to ourselves." Hearing Transcript at 559.

In sum, the Court finds that Peer's IEP at KISD was not reasonably calculated to provide him with some "meaningful" educational benefit, with progress which is neither trivial or de minimis, and ultimately a FAPE "tailored to the child's unique needs by" means of an appropriate IEP. Michael Z., 580 F.3d at 292.

Where parents unilaterally remove their disabled child from the local school system, the parents may obtain reimbursement for their private placement only if they show that the school district's placement was inappropriate and the alternative placement was appropriate. Burlington, 471 U.S. at 373-74, 105 S.Ct. 1996. Because it agrees with the Hearing Officer Per's IEP at KISD was inappropriate, the Court reaches the issue of reimbursement or the appropriateness of Landmark's program. The Court also agrees with the Hearing Officer for the reasons he stated and the evidence in the record that Landmark School was an appropriate academic placement for Per. See, e.g., testimony during the Due Process Hearing of Marie Mirandi (at 367-82), Brett Hall (at 311-40).

Nevertheless, while Per's placement at Landmark School, with its Lindamood-Bell methodology, for its educational instruction was appropriate, the Court must examine whether it satisfies the Fifth Circuit test for reimbursement of the residential expenses, as opposed to educational expenses: the placement "must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education. Michael Z, 580 F.3d at 299." The Fifth Circuit explained about the first prong, "if a child is able to receive an educational benefit without the residential placement, even if the placement is helpful to a child's education, the school is not required to pay for it under the IDEA." Id. at 300.

The evidence presented by the Hovems, which constitutes the only evidence in the record regarding alternative placements, demonstrates that Landmark School is an appropriate placement for learning disabled students with high intelligence quotas, like Per.

However, the Fifth Circuit made clear that to recoup residential expenses under the IDEA, if the child

Michael Z., 580 F.3d at 300. The evidence in the record demonstrates that the residential placement of at Landmark School was helpful, but there is no evidence that it was essential for Per to obtain a meaningful educational benefit. That Mrs. Hovem wanted Per to experience dormitory life like his fellow students at KISD who were going on to college is not an adequate reason to impose that expense on the public school district and ultimately on its taxpayers. Moreover Mrs. Hovem testified that she and her husband had gone to school in the Boston area and had many friends there who could function as family for Per; it is not unreasonable to assume she could arrange for Per to live with one while he attended Landmark School. With regard to the second prong of the Fifth Circuit's test, reimbursement for services depends upon whether the residential placement was primarily oriented toward enabling the child to obtain an education, the Fifth Circuit agreed with the Seventh Circuit, focusing "on whether the private residential placement is `primarily educational,'" because services oriented primarily toward enabling a student to obtain an education are "related services" within the meaning of the IDEA,70 while services enabling the child to engage in non-educational activities are not. Michael Z, 580 F.3d at 298-99, citing Dale M v. Bd. of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307, 237 F.3d 813, 817 (7th Cir. 2001). The Landmark Program for resident students, Per in particular, as evidenced by the testimony and documentary evidence admitted at the hearing, was oriented primarily toward educational activities. Educational instruction beyond daily one-on-one tutoring and small classes continued in evening study halls, staffed with teachers to provide individual help, and on weekends. Nevertheless, because the Hovems have not shown that the residential placement was essential for providing Per with an educational benefit, the Court concludes that KISD should not have to pay for that aspect. Nor does the Court find any evidence to substantiate the Hovems' argument that KISD waived its right to contest the residential expense because it did not challenge the Hovems' decision to send Per, and their expense, to the 2008 summer program at Landmark School. The ARD Committee had objected earlier to the Hovems' request that it reimburse them for placement at Landmark during the regular school term.

Accordingly the Court hereby AFFIRMS the decision of the Hearing Officer to the extent indicated above and ORDERS that KISD's motion for summary judgment (#17) is DENIED and Per Hovem's motion for judgment upon the administrative record (#39) is GRANTED with respect (1) to KISD's failure to provide Per with a FAPE and (2) to reimbursement for educational expenses, but not for residential expenses, incurred by Per at Landmark School.

Counsel for Per Hovem shall file within twenty days an appropriate motion for attorney's fees and an amended, updated request for reimbursement due for Per's educational expenses only at Landmark School for 2008-09 and 2009-10 school years. KISD shall file a response within twenty days of receiving the new motions.