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Melanie B. v. Georgetown Independent School District

United States District Court, W.D. Texas, Austin Division

April 27, 2018

MELANIE B., as Parent/Guardian/Next Friend of W.B., a Minor Individual with a Disability
v.
GEORGETOWN INDEPENDENT SCHOOL DISTRICT

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HON. LEE YEAKEL, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. GENERAL BACKGROUND

         Melanie 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.

         W.B., at the time of the administrative hearing, was a seventh grade student at Fusion Academy. AR 8.[1] 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)[2] 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.

         Beginning 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.

         W.B.'s 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.

         Upon 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.

         A due 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.

         GISD 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.

         II. LEGAL STANDARD

         The 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).

         Under 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)).

         In 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.

         Once 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.

         III. ANALYSIS

         The Court will first address the SEHO's decision and M.B.'s counterclaims before moving to the final question of attorney's fees.

         A. SEHO Decision

         Where a 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 not appropriate.

         1. Settlement Agreement

         As an 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.

         2.Appropriateness of IEP

         To 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.

         The 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.

         a. Least Restrictive Environment

         The 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 ARD meeting).

         The remainder of the spring semester found W.B. increasingly remaining in the Redirection Room due to his maladaptive behaviors.[3] When he began in the Fall 2016, W.B. remained in the Redirection Room for nearly the entire time he was enrolled at GISD.[4] He was not permitted to attend general education classes or lunch with his classmates, but remained in the Redirection Room.[5] 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.[6] 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.[7] 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 activities.[8]

         The 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.[9] 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.[10]Thus, the IEP providing placement in the Redirection Room was not the least restrictive environment.

         As further evidence, during W.B.'s time at Fusion he has shown the ability to adequately interact with his peers.[11] 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.

         b. Academic and Non-Academic Benefits

         The 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.[12]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.[13] 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.[14] Moreover, W.B. did not meet his benchmarks for that semester and was failing his standardized assessments, though he had passed in previous years.[15]Thus, this placement was not reasonably calculated to confer any academic benefits.

         Nor did 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.[16] He did not attend lunch or any field trips.[17] 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.[18] 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.

         c. GISD's Proposed Placement

         Similarly, 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.[19]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.[20] Moreover, he has been interacting with his peers, with few incidents.[21] All of this indicates that the more restrictive environment of an RTF is not essential to W.B. to receive an educational benefit.

         Nor is 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.[22] 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.[23] 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 Fusion.[24]

         It is 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.[25] 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 educational benefit.

         3. Private School Placement

         The 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)).

         The 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, ...


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