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Lisa M. v. Leander Independent School District

United States Court of Appeals, Fifth Circuit

May 15, 2019

LISA M., as parents/guardians/next friends of J.M., a minor individual with a disability; KENNETH M., as parents/guardians/next friends of J.M., a minor individual with a disability, Plaintiffs - Appellees
v.
LEANDER INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant

          Appeal from the United States District Court for the Western District of Texas

          Before KING, HIGGINSON, and COSTA, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE

         When J.M. started fourth grade, his parents asked Leander Independent School District to evaluate him for special education. The District spent weeks analyzing J.M.'s educational profile and determined that he needed special education. Shortly afterwards, following a private staff meeting, the District changed its position. J.M.'s parents pursued administrative relief. A Special Education Hearing Officer found that the school district was right the first time. On appeal, in a comprehensive opinion, the district court also concluded that J.M. was eligible for special education. We affirm.

         BACKGROUND[1]

         Kindergarten Through Beginning of Fourth Grade

         When J.M. was in second grade at Ronald Reagan Elementary School in the Leander Independent School District (the "District"), he experienced challenges with writing and classroom behavior. The District provided accommodations through Section 504 of the Rehabilitation Act ("Section 504"). By April of second grade, J.M. had been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Developmental Coordination Disorder ("DCD"). For the following year and a half, J.M.'s parents did not request services beyond Section 504.

         Shortly before the start of J.M.'s fourth grade year, in August 2015, J.M.'s parents requested that J.M. be evaluated for special education and related services under the Individuals with Disabilities Education Act ("IDEA"). The District refused on the basis that J.M.'s Section 504 accommodations were sufficiently addressing his needs.[2]

         One month later, a private neuropsychologist recommended that J.M. be considered for special education and diagnosed him with a Specific Learning Disability ("SLD") with impairment in written expression. After that, the District agreed to evaluate him.

         IDEA Evaluation Procedures, Generally

         Under the IDEA, a school district "shall conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability." 20 U.S.C. § 1414(a)(1)(A). This evaluation is called the "Full and Individual Evaluation," or "FIE." The FIE must consist of procedures "to determine whether a child is a child with a disability [as defined by the IDEA]" and "to determine the educational needs of such child." 20 U.S.C. § 1414(a)(1)(C). Each of those determinations is crucial because eligibility for IDEA services is a two-pronged inquiry: (1) whether the child has a qualifying disability, and (2) whether, by reason of that disability, that child needs IDEA services. 20 U.S.C. §§ 1401(3), 1414(d)(2)(A).[3]

         When "appropriate," as part of the FIE, the school district is required to perform a "[r]eview of existing evaluation data" ("REED"). 20 U.S.C. § 1414(c)(1). The REED must include "evaluations and information provided by the parents," "current classroom-based, local, or State assessments, and classroom-based observations," and "observations by teachers and related services providers." Id.

         "Upon completion of the administration of assessments and other evaluation measures[, ] the determination of whether the child is a child with a disability . . . and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child." 20 U.S.C. § 1414(b)(4). Texas, by statute, has named that team the "admission, review, and dismissal," or "ARD" committee. 19 Tex. Admin. Code § 89.1040(b). In making its eligibility determination, the ARD committee must "[d]raw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the child's physical condition, social or cultural background, and adaptive behavior." 34 C.F.R. § 300.306(c)(1)(i).

         "If a determination is made that a child has a disability and needs special education and related services, an [individualized education program] must be developed for the child." Id. § 300.306(c)(2); see also 20 U.S.C. § 1414(d)(2)(A). The "individualized education program" ("IEP") is a "written statement" that outlines how special education and related services will be delivered to the child. 20 U.S.C. § 1414(d)(1)(A). The school district's mandate to design and deliver an IEP falls under its broader statutory obligation to furnish a "free appropriate public education" ("FAPE") to all IDEA-eligible students. 20 U.S.C. § 1412(a)(1); see also Honig v. Doe, 484 U.S. 305, 311 (1988) (describing an IEP as the "primary vehicle" for implementing a FAPE).

         If a parent is dissatisfied with a school district's "evaluation or educational placement" of a child, the parent "may file a due process complaint." 34 C.F.R. § 300.507(a). An informal resolution meeting must follow. 34 C.F.R. § 300.510-512. If disagreement persists, complainants may pursue relief in an administrative due process hearing before an impartial Special Education Hearing Officer ("SEHO"). 34 C.F.R. § 300.510-512. Appeals may be taken to federal district court. 34 C.F.R. § 300.516.

         J.M.'s Initial Evaluation

         Those basic steps were followed in this case. In October 2015, the District scheduled a REED meeting and advised J.M.'s parents that the District was considering an FIE. At the same time, the District implemented a "response to intervention process" ("RTI"), which is a general-not special-education methodology that offers tiers of progressively intensified support depending on a student's response to instruction. See Genna Steinberg, Amending § 1415 of the IDEA: Extending Procedural Safeguards to Response-to-Intervention Students, 46 Colum. J.L. & Soc. Probs. 393, 395 (2013).[4]

         The District formally issued a REED for J.M. on the same day the REED meeting was held: October 9, 2015. In the REED report, one of J.M.'s teachers commented that he was a "rock star," "very bright," and "fun to watch and teach." But the REED also documented a teacher's observation that J.M.'s "fine motor skills" were at the "lower end of average" and that even when J.M. took his ADHD medication, his ability to "[maintain] an organized notebook" was "significantly below his peers." Teachers also expressed concern that J.M. had: "difficulty producing written work, poor attention and concentration, excessively high/low activity level, difficulty following directions, [and] difficulty staying on task." Furthermore, the REED reported parental observations that J.M. was "flipping numbers and letters" and that he was having "melt downs" when feeling overwhelmed. The REED concluded that J.M. "appear[ed] to have one or more conditions which directly affect[ed] [his] ability to benefit from the educational process." It advised that "[a]dditional data [were] needed to determine whether the student [needed] special education and related services."

         On the same day the REED was issued, the District sought consent from J.M.'s parents to undertake an FIE. The consent form explained, "We want to do a Full and Individual Evaluation of your [child] for the following [reason]: [T]he [RTI] team noted that while [J.M.] has made some progress with these interventions in place, he had not progressed at an expected rate." The form noted that the District rejected the option of continuing general education interventions because J.M. "continu[ed] to struggle." J.M.'s parents consented to the FIE.

         On November 18, 2015, the District convened another REED meeting. The notes from that meeting reflect "[t]eacher and parent concerns" with respect to "written expression." The notes also state that J.M.'s "work habits" had "change[d]" insofar as he was "not completing work" and making "errors he typically did not make." J.M.'s mother described how J.M. was "distressed about the writing demands at school" and that he "beg[ged] to stay home" from school due to stomach pain. This REED updated the October REED by adding that J.M. should undergo an emotional and behavioral evaluation.

         The District completed its FIE on January 4, 2016. The report outlined J.M.'s talents and difficulties, which the District has characterized as a "varied academic profile." J.M. was reported to have "average or near average abilities in the areas of Basic Reading, Reading Fluency, Reading Comprehension, Math Calculation, Math Reasoning, Oral Expression, and Listening Comprehension" but "apparent deficits in Written Expression." The FIE also explained that J.M. "display[ed] a tendency toward inattentiveness to a significant degree across all settings." The FIE concluded with a section called "Recommendations to the ARD Committee." That section included a finding that J.M. met eligibility criteria for IDEA services as a student with an SLD in the area of written expression and with the "Other Health Impairment" ("OHI") of ADHD. Finally, the FIE included a few specific recommendations for the IEP.

         On January 16, 2016, J.M.'s parents received an email introduction from Amy Stringer, who explained, "I will be [J.M.]'s tracking teacher in special education." She referenced "paperwork coming home with [J.M.]" that included a draft IEP. The draft IEP proposed "20 minutes per day per 5 day week" of special education instruction in writing as well as the related service of occupational therapy.

         ARD Committee Meetings and Eligibility Determinations

         Nine days later, the District held J.M.'s first ARD committee meeting. The team discussed concerns with J.M.'s academics. By that point, he had failed all his December 2015 benchmark tests, scoring 57% on math, 45% on reading, and 30% on writing. His teachers described these scores as "extreme" and "shock[ing]." One of J.M.'s teachers later testified that she was "very surprised" by his benchmark performance because the results were "much, much lower than . . . what we see as his ability in the class." The team also discussed J.M.'s strengths, noting that even some of his writing scores were "not uncommon" for fourth graders and that his disruptive and unfocused behaviors were often "re-directable."

         After approximately three and a half hours of discussion, the ARD committee formalized its determination that J.M. was eligible for special education. The committee memorialized its agreement in a document titled "Individualized Education Program (IEP)," which certified that J.M. met the criteria for OHI and SLD and, "by reason of those disabilities," had a "need for special education and related services." The document stated, "No [a]dditional evaluation is needed."

         The "IEP" document also delineated a "Schedule of Services" for J.M., which were proposed to take effect the following day and continue for one calendar year. The "Schedule of Services" increased the amount of specialized assistance from the draft IEP's twenty minutes per day to thirty minutes per day. It added assistive technology as a related service additional to occupational therapy. At the end of the ARD committee meeting, J.M.'s mother, Lisa M., declined to sign the "Schedule of Services" because she wanted to discuss its details with her husband, who had been unable to attend.

         J.M.'s parents and the District offer conflicting interpretations of what happened next, but the following facts are undisputed.

         The District's minutes of the January 25 meeting ended with the following notes: "Assurances given. Parents/district agree with IEP," "Another meeting was scheduled for Feb. 5 . . . if needed," "Parents/district adjourned in agreement."

On February 3, 2016, Lisa M. sent an email to the District stating:
After reviewing the FIE and the IEP for [J.M.], we have decided to disagree with both. We do agree to the initiation of Special Education services and the eligibility of OHI and SLD ([just not] to the quality/quantity of all the individual evaluations). Please let us know what our next steps will be, and note that Jana Palcer [a parent advocate] will be attending the 2.5.16 ARD for our support.

         Shortly after sending that email, Lisa M. received a call from someone in the District rescheduling the February 5 meeting to February 23.

         On February 11, the District produced an "Addendum" to the January 4 FIE confirming that J.M. was eligible for special education. The Addendum reflected that an "Other Health Impairment Form" had been received from one of J.M.'s doctors, which "[n]oted functional implications of limited ...


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