United States District Court, W.D. Texas, Austin Division
MELANIE B., as Parent/Guardian/Next Friend of W.B., a Minor Individual with a Disability
GEORGETOWN INDEPENDENT SCHOOL DISTRICT
REPORT AND RECOMMENDATION OF THE UNITED STATES
LEE YEAKEL, UNITED STATES DISTRICT JUDGE
this Court are Plaintiff's Motion for Judgment on the
Administrative Record and for Partial Summary Judgment (Dkt.
No. 38), Defendant's Response (Dkt. No. 49), and
Plaintiff's Reply (Dkt. No. 54); and Defendant's
Motion for Summary Judgment (Dkt. No. 39), Plaintiff's
Response (Dkt. No. 47), and Defendant's Reply (Dkt. No.
55). The District Court referred the above motions to the
undersigned Magistrate Judge for report and recommendation
pursuant to 28 U.S.C. §636(b)(1)(A), Fed.R.Civ.P. 72,
and Rule 1(c) of Appendix C of the Local Rules.
B. (M.B.), as Parent/Guardian/Next Friend of minor W.B.,
brings this suit against Georgetown Independent School
District (GISD) to request attorney's fees following the
decision of a Special Education Hearing Officer (SEHO). GISD
counterclaimed seeking to overturn the SEHO's decision.
at the time of the administrative hearing, was a seventh
grade student at Fusion Academy. AR 8. W.B. attended
elementary school in the Jarrell Independent School District
from kindergarten until the first half of fifth grade.
Id. Throughout his education, W.B. has exhibited
behavioral difficulties. Id. W.B. began receiving
special education services in Jarrell ISD, as a and was
identified as having an Emotional Disturbance (ED) and
Attention Deficit-Hyperactivity Disorder (ADHD), as well as
dyslexia. Id. W.B. moved to GISD halfway through his
fifth grade year, after attending two charter schools for
several weeks. AR 9. After he transferred in February 2015,
GISD convened an Admission, Review, and Dismissal
(ARD) meeting, which produced an Individualized
Education Program for a mix of general education classes with
accommodations and special education services, such as a
Behavior Intervention Plan, social skills training, and
dyslexia services. AR 10. He was also given behavioral
support through the Positive Approach to Student Success
program. Id. The PASS program monitors students in
general education classes, and removes students to the PASS
classroom when appropriate. Id. At subsequent ARDs,
W.B.'s IEP was reviewed, and GISD and W.B.'s parents
agreed to continue with the current plan. AR
10-11. Additionally, a Functional Behavior
Assessment was ordered. AR 10-11.
in sixth grade, W.B. had difficulty adjusting, so GISD
convened a new ARD meeting on October 14, 2015, to address
the concerns. AR 12. W.B. was unable to complete his work,
was off-task frequently, and used inappropriate language.
Id. Additionally, as the year wore on,
“elopement” (leaving, or attempting to leave, the
classroom), screaming at the staff, and inappropriate
language escalated. AR 12-13. The ARD convened again in March
2016 to discuss changes to the IEP. AR 14. M.B. had expressed
concerns over W.B.'s placement in the PASS room, so GISD
proposed using an “Individual Intensive Redirection
Room” (Redirection Room). Id. The ARD then set
up two schedules: one in which W.B. would attend all general
education classes, and one with special education classes.
Id. W.B. began each day in the Redirection Room, and
could earn time in general education classes through the
accumulation of points for appropriate behavior. Id.
On March 28, 2016, GISD held the annual ARD meeting, and
adopted an IEP with accommodations to address W.B.'s
reading, writing, and attention deficits. AR 14-15.
parents then filed a due process hearing request based on
concerns from the program implemented at the prior meetings.
AR 16. On April 7, 2016, the parties reached a settlement
agreement resolving these claims. Id. The settlement
agreement also provided a number of educational services for
the remainder of the 2015-2016 school year, including Applied
Behavioral Analysis services. Id. The IEP
established at the March 28, 2016 ARD meeting was continued
for the remainder of the school year. Id. M.B.
attended an ARD meeting on May 26, 2016, but did not agree
with the IEP at that time, and the ARD convened again on June
13. AR 16, 20-21. Finally, W.B.'s parents notified GISD
on August 12, 2016, that they disagreed with the June 13 ARD
decisions. AR 21.
beginning seventh grade, W.B. remained in the same program.
AR 21. However, after twelve days at school, nine of which
W.B. remained exclusively in the Redirection Room, M.B.
withdrew W.B. from GISD. AR 769-70. The District held two ARD
meetings, one on September 7 (in which GISD continued its
recommendation), and one on September 27. AR 22-23. At the
second ARD, GISD recommended placement in a residential
treatment facility (RTF) or a therapeutic day treatment
center. Id. M.B. refused to consider these options,
and suggested Fusion as an alternative. Id. GISD
rejected M.B.'s proposal. Id. M.B. then enrolled
W.B. at Fusion, and filed the due process hearing request,
seeking tuition reimbursement. Id. The parties once
again met on November 3, 2016, for an ARD meeting, but were
unable to come to an agreement. AR 23-24.
process hearing was held on January 24-26, 2017, and the SEHO
issued her opinion on April 10, 2017. The SEHO found that (1)
GISD had failed to provide a free appropriate public
education to W.B., (2) Fusion was an appropriate private
placement, and (3) W.B. was entitled to tuition reimbursement
for the 2016-2017 school year. AR 43-44. The SEHO
additionally ordered reimbursement for (1) the private
psychological assessment obtained by W.B.'s parents, (2)
outside P.E. costs, and (3) individual counseling for the
remainder of the 2016-2017 school year. AR 44-45. Following
the favorable decision from the SEHO, M.B. filed suit seeking
attorney's fees under 20 U.S.C. § 1415(i)(3)(B).
GISD counterclaimed challenging the SEHO decision, and M.B.
filed additional counterclaims seeking transportation costs
and continued placement for W.B. at Fusion.
now seeks summary judgment on its claims seeking to reversal
of the SEHO's decision. M.B. also seeks a judgment, but
she asks the Court to affirm the decision, except to the
extent it denied transportation costs, on which she seeks
reversal. She also seeks summary judgment on her
attorney's fees request.
IDEA was enacted to ensure that “[a] free appropriate
public education is available to all children with
disabilities.” 20 U.S.C. § 1412(a)(1)(A). A
child's free appropriate public education “must be
tailored to his particular needs by means of an
‘individual educational program'” and
“assure that such education is offered, to the greatest
extent possible, in the educational ‘mainstream, '
that is, side by side with non-disabled children, in the
least restrictive environment consistent with the disabled
student's needs.” Cypress-Fairbanks Indep. Sch.
Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997).
The FAPE “need not be the best possible one, nor one
that will maximize the child's educational potential;
rather, it need only be an education that is specifically
designed to meet the child's unique needs, supported by
services that will permit him ‘to benefit' from the
instruction.” Id. It “guarantees only a
‘basic floor of opportunity.'” Id.
However, “the educational benefit ‘cannot be a
mere modicum or de minimus; rather, an IEP must be
likely to produce progress, not regression or trivial
educational placement.'” Richardson Indep. Sch.
Dist. v. Michael Z., 580 F.3d 286, 292 (5th Cir. 2009)
(quoting id. at 248). In Texas, an Admission,
Review, and Dismissal committee prepares a student's IEP.
S.H. ex rel. A.H. v. Plano Indep. Sch. Dist., 487
Fed.Appx. 850 (5th Cir. 2012).
the Individuals with Disabilities Education Act, any party
aggrieved by a decision of a Special Education Hearing
Officer has the right to appeal the decision to the district
court. 20 U.S.C. § 1415(i)(1)(A). On appeal, “the
Court shall: (1) receive the records of the administrative
proceedings; (2) hear additional evidence at the request of
the party; and (3) grant such relief as it determines
appropriate based upon the preponderance of the
evidence.” Z.C. v. Killeen Indep. Sch. Dist.,
2015 WL 11123347, at *5 (W.D. Tex. Feb. 17, 2015) (citing 20
U.S.C. § 1415(i)(2)(C)). Though nominally a motion for
summary judgment, an IDEA appeal “essentially asks the
Court to decide the case based on the administrative
record.” Caldwell Indep. Sch. Dist. v. L.P.,
994 F.Supp.2d 811, 817 (W.D. Tex. 2012). The SEHO's
“findings should be accorded ‘due weight, '
but the district court must arrive at an independent
conclusion based on a preponderance of the evidence.”
Id. (quoting Adam J. ex rel. Robert J. v. Keller
Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir. 2003)).
Thus, “a federal district court's review of a state
hearing officer's decision is ‘virtually de
novo.'” Id. On the other hand,
“[t]he IDEA creates a presumption in favor of a school
district's educational plan, placing the burden of proof,
by preponderance of the evidence, on the party challenging
it.” R.H. v. Plano Indep. Sch. Dist., 607 F.3d
1003, 1010-11 (5th Cir. 2010). The court's “task is
not to second guess state and local policy decisions; rather
it is the narrow one of determining whether state and local
officials have complied with the Act.” White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir.
2003) (quoting Flour Bluff Indep. Sch. Dist. v. Katherine
M., 91 F.3d 689, 693 (5th Cir. 1996)).
general, summary judgment shall be rendered when the
pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine dispute as
to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986);
Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is
“genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential
to its case and on which it will bear the burden of proof at
trial, summary judgment must be granted. Celotex,
477 U.S. at 322-23.
Court will first address the SEHO's decision and
M.B.'s counterclaims before moving to the final question
of attorney's fees.
school district fails to provide a FAPE to a child, parents
may unilaterally place the child in a private school and then
seek tuition reimbursement. R.H. v. Plano, 607 F.3d
at 1011. To receive reimbursement, the plaintiff must show
that “(1) an IEP calling for placement in a public
school was inappropriate under IDEA, and (2) the private
placement was appropriate under the Act.”
Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d
286, 293 (5th Cir. 2009). The SEHO found in this case that
GISD failed to provide a FAPE to W.B., and that Fusion was an
appropriate unilateral private placement, entitling M.B. to
tuition reimbursement for the 2016-2017 school year. GISD
challenges these findings, arguing that the IEP was
reasonably calculated, or, in the alternative, that Fusion is
initial matter, GISD contends that the SEHO improperly
considered the Spring 2016 IEP. On April 7, 2016, GISD and
M.B. signed a settlement agreement, in which M.B. agreed to
the IEP and released any claims against GISD under IDEA. The
agreement related to any events that occurred prior to that
date, and required GISD to provide certain services. GISD
argues that the SEHO improperly considered the Spring 2016
IEP when determining that GISD failed to provide a FAPE to
W.B., and that the decision should therefore be reversed.
While M.B. clearly released claims against GISD that, prior
to the date of the settlement agreement it had failed to
provide a FAPE to W.B., that release did not address the
instant claim: whether GISD provided a FAPE to W.B. after
that date, and whether M.B. is entitled to reimbursement for
the tuition costs for Fusion. To determine whether GISD was
providing a FAPE to W.B. for the 2016-2017 school year, the
SEHO was required to consider the IEP applied at the time.
This was the IEP developed prior to the settlement agreement,
and then reurged at the multiple ARD meetings following this
agreement. Therefore, GISD's argument that the SEHO
improperly considered the Spring 2016 IEP fails.
determine whether the IEP was appropriate, the court looks to
whether (1) “the state complied with the procedural
requirements of IDEA, ” and (2) the IEP was
“reasonably calculated to enable the child to receive
educational benefits.” Id. Here, M.B. does not
assert (nor did the SEHO find) any deficiencies in the
process. Accordingly, the Court moves to the second step of
the analysis. A court looks to four factors to determine
whether the IEP was reasonably calculated:
(1) Is the program individualized on the basis of the
student's assessment and performance; (2) is the program
administered in the least restrictive environment; (3) are
the services provided in a coordinated and collaborative
manner by the key ‘stakeholders'; and (4) are
positive academic and non-academic benefits demonstrated?
R.H. v. Plano, 607 F.3d at 1012. “[T]hese
factors are ‘indicators' of an IEP's
appropriateness” and are only “intended to guide
a district court in the fact-intensive inquiry of evaluating
whether an IEP provided an educational benefit.”
Michael Z., 580 F.3d at 294. The SEHO found that the
second and fourth factors both weighed against the IEP. GISD
challenges these findings, and M.B. moves to affirm the
decision. The Court agrees with the SEHO that GISD failed to
provide with a FAPE, as required under IDEA.
SEHO found that the first and third factors supported
acceptance of the IEP. Neither party challenges this finding.
The record clearly supports these findings. The plan was
individualized on the basis of W.B.'s performance and
assessments. When W.B. enrolled in GISD in February 2015, he
was given special education support services, including a
BIP, social skills training, and dyslexia services. AR 10.
Then, in the spring of 2016, GISD arranged for a FBA and FIE
to assess W.B.'s needs. AR 3110-12, 1720. Additionally,
the services were provided in a coordinated and collaborative
manner. The parents were involved at each step, with numerous
ARD meetings to assess W.B.'s progress and make
recommendations for changes. See, e.g., AR 1854-60,
1995-2007, 2008-13, 2023-24, 2038-44. The Court will
therefore focus of the second and fourth elements.
Least Restrictive Environment
Court agrees with the SEHO that the IEP was not applied in
the least restrictive environment. This factor uses a
two-part test. The court first asks “whether education
in the regular classroom, with the use of supplemental aids
and services can be achieved satisfactorily for a given
child.” R.H., 607 F.3d at 1013 (citing
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036,
1048 (5th Cir. 1989)). If the child cannot be educated in the
regular classroom, the second question is “whether the
school has mainstreamed the child to the maximum extent
appropriate.” Id. W.B. was originally
scheduled to be served in a combination of general and
special education classes. See, e.g., AR 1115
(setting a schedule for W.B. in general education, with a
secondary setting in special education when he exhibits
disruptive behaviors). However, beginning in March 2016, the
IEP indicated that W.B. would begin the school day in the
Redirection Room. AR 1072; Tr. 279 (noting that W.B. had two
schedules, one in the Redirection Room, but the option to
enter general education); cf. AR 801-02 (noting that
W.B.'s needs cannot be met in general education
classroom). The Redirection Room provided for a 2:1 special
education instructional setting, with a special education
teacher and an aide. AR 2540; Tr. 278. Once W.B. was able to
meet sufficient behavioral criteria, he would have the
opportunity to move to core general education classes on a
class-by-class basis. AR 1074; Tr. 263; see also AR
1116-17 (recommending this arrangement at the March 3, 2016
remainder of the spring semester found W.B. increasingly
remaining in the Redirection Room due to his maladaptive
behaviors. When he began in the Fall 2016, W.B.
remained in the Redirection Room for nearly the entire time
he was enrolled at GISD. He was not permitted to attend general
education classes or lunch with his classmates, but remained
in the Redirection Room. The IEP provided a series of incentives
for W.B., including the ability to leave the Redirection
Room, but during the time he remained at GISD in the fall,
W.B. rarely attended a general education class. Moreover, during
the period he remained in the Redirection Room, the teacher
and aide were forced to remove various pieces of furniture
for W.B.'s safety. These behaviors only increased for the
period in which he remained in the Redirection Room, to the
point that he was not attending any mainstream classes or
SEHO found, and this Court concurs, that this approach did
not provide W.B. an education in the least restrictive
environment. GISD argues that W.B. was given the opportunity
to leave the Redirection Room if he chose, pointing out that
the IEP provided for incentives to return to general
education classes once he reached certain behavioral
benchmarks. However, it is clear from the evidence
that W.B.'s behavior deteriorated while he was kept in
the Redirection Room, and that he demonstrated the ability to
behave appropriately in a more mainstreamed
environment.Thus, the IEP providing placement in the
Redirection Room was not the least restrictive environment.
further evidence, during W.B.'s time at Fusion he has
shown the ability to adequately interact with his
peers. There, though the classes are 1:1, after
each class, he attends the “Homework Café”
where he interacts with other students, both socially and for
specific projects for class. Tr. 207-08. W.B. had a few
incidents when he first began at Fusion, but staff reports
that his behaviors have not regressed to the extent they did
when he was in the Redirection Room. Tr. 205-06; Tr. 153-55.
Instead, W.B. has maintained the ability to interact with his
classmates in the Homework Café, and has continued to
progress. Tr. 152-56.
Academic and Non-Academic Benefits
SEHO also found that the IEP was not reasonably calculated to
offer academic and non-academic benefits. The evidence
supports this conclusion. First, during his time in the
Redirection Room, W.B. was unable to complete most of his
work, due mainly to his maladaptive behaviors.In particular,
the logs for the short period in which W.B. was enrolled at
GISD in Fall 2016 show that the teacher and aide were unable
to get W.B. to focus on any work. In Spring 2016, W.B. was
able to complete some work, focusing in short increments with
the incentives planned by his IEP, but this deteriorated the
longer he remained. Moreover, W.B. did not meet his
benchmarks for that semester and was failing his standardized
assessments, though he had passed in previous
years.Thus, this placement was not reasonably
calculated to confer any academic benefits.
W.B. receive any non-academic benefits while in the
Redirection Room. As evidenced above, W.B.'s behavior
escalated while he was isolated, and he was not permitted to
be around his peers. He did not attend lunch or any field
trips. He received therapy during his time in
the Redirection Room, but his behaviors continued to
escalate. Tr. 462. Indeed, GISD appeared to recognize this,
as during the September 27, 2016 ARD meeting, the
administrators recommended a residential treatment facility
or therapeutic day treatment center, as opposed to returning
to the Redirection Room. Taken together, the IEP calling for
placement in the Redirection Room was not reasonably
calculated to offer academic or non-academic benefits on W.B.
GISD's Proposed Placement
GISD's proposed placement in either a Residential
Treatment Facility or a therapeutic day treatment center is
not appropriate. GISD offered three RTF's and two
therapeutic day treatment centers at the September 27, 2016
ARD meeting. AR 739. However, an RTF is the most restrictive
environment to be considered. 19 Tex. Admin. Code §
89.63(c)(10). “In order 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. As noted above, W.B.'s apparent
ability to succeed at Fusion, and his ability to interact
appropriately with his peers, indicates that an RTF or day
treatment center are not essential for W.B. to receive an
educational benefit.W.B. has shown fewer outbursts and no
episodes of eloping. Tr. 153-56. He has proceeded in his
studies, showing an ability to focus and perform the work
assigned. Moreover, he has been interacting with
his peers, with few incidents. All of this indicates that the
more restrictive environment of an RTF is not essential to
W.B. to receive an educational benefit.
there evidence that a therapeutic day treatment center is the
least restrictive environment in which W.B. can receive an
educational benefit. This is especially so in light of the
distance of the RTF from W.B.'s home, which is further
than Fusion is from W.B.'s home. The SEHO also considered
the fact that GISD made the decision to use the Redirection
Room only nine days into the school year, without fully
implementing the revised IEP-which included dyslexia
services, the opportunity to type rather than write, and ABA
therapy. Of course, M.B. pulled W.B. out of
school at this time due to his experiences in the Redirection
Room. AR 769-70. Yet, the proposed placement in an RTF or day
treatment center was significantly more restrictive, and did
not give the additional IEP services the opportunity to work.
It also failed to consider other options, such as
more difficult to assess the academic and non-academic
benefits that an RTF or day treatment center would offer, as
GISD had not fully investigated which of the five options
would be best suited for W.B. GISD is correct in noting that
the parents did not give permission to GISD to share
W.B.'s information with the facilities, and the parents
refused to visit any of the proposed placements. Tr. 567; AR
740. However, even as of the time of the administrative
hearing, GISD still had not formed an opinion on whether any
of the five options would be suited for W.B. or would accept
him. Tr. 71-76, 563-64. Nor had a representative visited the
placement options. Tr. 76. Without this information,
determining whether the specific programs would offer
academic or non-academic benefits is difficult. Moreover, as
noted above, GISD has not shown that a more therapeutic
environment is essential for W.B. to receive a meaningful
Private School Placement
second prong of the analysis related to deciding whether
tuition may be reimbursed requires the Court to assess
whether the unilateral private school placement was
appropriate. “[P]arents are not barred from
reimbursement because the private school did not meet the
precise IDEA definition of a free appropriate public
education, because IDEA requirements ‘cannot be read as
applying to parental placements.'” Michael
Z., 580 F.3d at 295 (quoting Florence Cty. Sch.
Dist. Four v. Carter, 510 U.S. 7, 13 (1993)). Thus,
“reimbursement would be permitted if [W.B.'s]
education there was ‘otherwise proper' under the
IDEA.” Id. In other words, there is no
requirement that the unilateral placement “be the exact
proper placement required under the Act.” Id.
(quoting Alamo Heights Indep. Sch. Dist. v. State Bd. of
Educ., 790 F.2d 1153, 1161 (5th Cir. 1986)).
record supports the conclusion that Fusion is an appropriate
private placement. To begin with, Fusion offers a 1:1
instructional arrangement for each of W.B.'s classes. Tr.
142. Fusion's classes are separated into two schedules, A
days and B days, with Friday being a day to do catch-up work.
Tr. 143. These classes are taught in accordance with
Texas' state-mandated curriculum, the TEKS, and though
the teachers are not certified, each has at least a
Bachelor's degree in the field they teach, with a
preference for a Master's degree. Tr. 182, 186. Fusion is
AdvancED accredited, though it is not accredited by TEA. Tr.
181. The school does not follow a research-based curriculum,
however each class is tailored to the student's needs.
E.g., AR 832; Tr. 199. The teachers employ a
“hands on” method to engage W.B. in classes, and
the lessons are adapted to W.B.'s learning styles and
interests, while still remaining on TEKS teaching curriculum.
Tr. 199, 208-0. In addition, due to the 1:1 structure,
W.B.'s teachers are able to focus on mentoring W.B., such
as with his organizational or life skills. Tr. 212; AR 833
& 843. Under this structure, W.B. has shown that he is
able to focus, and has demonstrated advancement in school
performance. Tr. 158 (showing improvement in writing skills);
Tr. 203-04. GISD maintains that W.B. is not being challenged
at Fusion. See Tr. 557 (“I don't feel that
he was ever asked to really be independent in any of the
tasks he was completing.”). However, ...