Opinion
CIVIL ACTION NO. SA-01-CA-0804 NN
September 30, 2002
ORDER ON PENDING DISPOSITIVE MOTIONS
A. Introduction
Plaintiff, Eric. H, a minor, through his next friends Gary and Frances H., filed this lawsuit against defendant, Judson Independent School District ("JISD"), seeking relief under the Individuals with Disabilities Education Act ("IDEA"), from the unfavorable decision rendered by a Special Education Hearing Officer on July 17, 2001. Pending before me are the following dispositive motions: defendant's motion for judgment on the record (Docket Entry 20); plaintiff's three motions for partial summary judgment on the issues of triennal review (Docket Entry 28), the defendant's reliance on academic performance alone in determining eligibility for special education services (Docket Entry 35), and on the diagnoses rendered by the Licenced Specialist in School Psychology ("LSSP") (Docket Entry 36). The defendant has also filed a motion to strike plaintiff's summary judgment evidence (Docket Entry 41). Responses and Reply briefs have also been filed with respect to these motions. On November 30, 2001, upon the parties' consent and consistent with 28 U.S.C. § 636 (c), the case was reassigned to me for all purposes, including trial and entry of judgment.
20 U.S.C. § 1400 et seq., as amended.
Docket Entry 1.
Regarding plaintiff's last two motions for partial summary judgment, both filed on May 29, 2002, I am at a loss as to what equitable remedy plaintiff would be entitled to in this proceeding, considering that he no longer attends JISD. For instance, plaintiff states in the "Conclusion" section of his motions:
Because he has transferred to another District, Eric will ask an ARD committee to re-review his records and make an eligibility determination, so he does not seek orders from this Court to JISD addressing same. He does, however, ask the Court to find that he is the `prevailing party' entitled to attorney's fees and all costs associated with these proceedings, and for such other relief as this court deems appropriate. Docket Entry 36, at 24.
Because Eric's parents transferred him to another school district, which is not a party to this action, he is not asking this Court to order his JISD ARD committee to meet and, if it determines that Eric has an Autism-spectrum disorder, determine how his disability impacts his ability to receive an education and revise his Individual Education Plan accordingly, with reference to his unique needs. Docket Entry 35, at 21 fn.12.
Nevertheless, because I find that defendant committed no procedural due process violations which resulted in a cognizable harm to plaintiff, as found by the Hearing Officer during the administrative phase of the case, I need not address what remedy, if any, plaintiff is now entitled to receive in light of his present circumstances.
Docket Entry 19.
Having reviewed the parties' legal arguments and evidentiary support, the administrative proceedings in this case and the record as a whole, and consistent with the applicable case authority and the relevant legal standards, it is my opinion that defendant's motion for judgment on the record should be GRANTED and plaintiff's three motions for partial summary judgment should be DENIED AS MOOT. The reasons for my rulings are set forth in detail below.
B. Factual Background and Summary of this Court's Findings
The IDEA gives disabled children an enforceable right to a "free appropriate public education which emphasizes special education and related services designed to meet their unique needs." Through the filing of this lawsuit, plaintiff appeals the unfavorable decision reached by a Special Education Hearing Officer on July 17, 2001, concerning plaintiff's allegations that defendant denied him the procedural protections afforded him under the IDEA. Specifically, plaintiff claims that defendant failed to classify and serve Eric H. as a student with Asperger's Syndrome, failed to conduct proper Admission, Review, and Dismissal ("ARD") committee meetings by ignoring parental input, and failed to perform a proper triennial evaluation of plaintiff, among others. After conducting a three-day administrative hearing, the Hearing Officer found in favor of defendant on all the issues raised by plaintiff, and consequently, denied plaintiff the relief sought. This appeal ensued.
A copy of the Hearing Officer's decision In the matter of Eric H. b/n/f Gary and Frances H. v. Judson Independent School District, Texas Education Agency ("TEA") Docket No. 267-SE-0501, can be found in the certified record filed with this court, at Volume 1, pages 5-9.
Asperger's Syndrome is an autism spectrum disorder and results in developmental delays in children. The main characteristics of Asperger's syndrome include the inability to interact socially in an appropriate manner and communication problems. In order to receive a diagnosis of Asperger's Syndrome, under the DIAGNOSTIC-STATISTICAL MANUAL (DSM-IV-TR), a student must demonstrate (1) a qualitative impairment in social interaction, (2) restricted, repetitive and stereotyped patterns of behavior, interests and activities, and (3) clinically significant impairment in social, occupational, or other important areas of functioning. Presently, there is no standard measure to evaluate whether an individual has Asperger's Syndrome. Docket Entry 40, at 7 fn. 4 (citing to Administrative Record, Vol. III, at 427, 462-63; Vol. IV, at 837, 847, 852, 856-57).
Plaintiff raised nine issues at the due process hearing: (1) that JISD denied Eric H. a free appropriate public education ("FAPE"); (2) that JISD failed to classify and serve Eric H. as a student with a learning disability ("LD") and autism based on Asperger's Syndrome, based solely on his grades and the fact that he was in honors classes, and in contradiction to teacher reports; (3) that JISD failed to provide an appropriate individualized educational program ("IEP"), functional behavioral assessment ("FBA"), and behavior intervention plan ("BIP"); (4) that JISD failed to give prior written notice of intent to dismiss from special education; (5) that JISD failed to allow full parental participation in admission, review and dismissal ("ARD") committee meetings, did not give due weight to parental opinion and outside medical opinions, and demonstrated hostility toward the parents; (6)that JISD failed to schedule ARD committee meetings at a mutually convenient time; (7) that JISD violated IDEA by allowing a school consultant to observe Eric H. in class without prior parental consent; (8) that JISD failed to perform a triennal review of existing evaluation data, prior to the December 2000 comprehensive evaluation, to determine whether additional evaluation was necessary; and (9) that JISD failed to provide an appropriate individual evaluation in December 2000 and failed to rule out the need for occupational therapy ("OT") services. The Hearing Officer found for the JISD on all issues.
First and foremost, while there was a substantial dispute among the parties at the inception of this suit as to whether the court should consider "additional evidence" in the case in addition to the administrative record, plaintiff failed to properly move for the introduction of any additional evidence in the instant proceeding. To the extent plaintiff intended to include additional evidence as part of his summary judgment proof, I have reviewed that proposed evidence and find that such evidence does not constitute "additional evidence" for purposes of broadening the scope of this court's review. Plaintiff's summary judgment evidence includes evidence that cannot be construed as "additional" because it was already part of the administrative proceedings. Further, to the extent plaintiff now attempts to bring evidence that was available earlier in the case and could have been brought before the Hearing Officer for consideration, that evidence cannot be considered "additional" at this stage of the suit. Accordingly, in duly exercising my discretion in this judicial proceeding, I will limit the scope of my review to the administrative record of proceedings held in the case.
Docket Entry 36, at 25 (List of plaintiff's summary judgment attachments).
See Town of Burlington v. Department of Education for the Commonwealth of Massachusetts, 736 F.2d 773, 791 (1st Cir. 1984). The certified administrative record includes copies of all of the documents admitted into evidence at the administrative hearing (Vol. V-VI), the transcript of the testimony and arguments presented at that hearing (Vol. II-IV), and the Texas Education Agency's decision and parties' pleadings (Vol. I).
Second, with respect to the substantive merits of the case, I find that plaintiff has failed to properly controvert or bring forth any competent summary judgment proof that defendant's assessment conducted in December of 2000 and its conclusion that he no longer should be classified as a child in need of special education services due to Asperger's Syndrome, was erroneous or contrary to Eric H.'s current performance at school. The only evidence the parents provided is their own personal disagreement with the defendant's assessment. I do not question the parents' commitment to ensure that Eric H.'s current special educational needs are being met. However the parents cannot expect the defendant, the administrative hearing officer or me, to ignore Eric H.'s noted improvements in his academic performance and social interactions at age thirteen, and find that he must be classified, for purposes of receiving special education services, as a child who suffers from Asperger's Syndrome. Further, to the extent that Eric H.'s parents are fearful that he may experience developing problems in the future that could detrimentally affect his learning and behavior abilities if he is not classified as a child with Asperger's Syndrome, that fear alone, with no supporting medical data, cannot form the basis for insisting that the district provide any sort of "preventative" special education services. The IDEA not only requires that a disability be shown, but also that the child demonstrate a present need for special education services and related services because of the disability. Such showing has not been made in this case.
This diagnosis was first given in 1996 when Eric H. was eight years old. See Hearing Officer's July 17, 1001 Decision.
20 U.S.C. § 1401 (3)(A); and Austin Independent School District v. Robert M., 168 F. Supp.2d 635, 639-40 (W.D. Tex. 2001).
Third, there is no dispute that the last comprehensive assessment of Eric H. was conducted in December of 1997. Because three years had passed and considering Eric H.'s notable progress at school, the ARD committee correctly determined in March of 2000 that a re-evaluation was needed. It is undisputed that the parents, as members of the ARD committee, consented to such reassessment and agreed that it be performed by December of 2000. The parents' arguments that they were somehow coerced into giving their consent, or that they were excluded from the decision-making process during Eric H.'s ARD committee meetings, are not supported by the evidence of record.
Finally, I note that in spite of the defendant not "checking" the specific learning category of autism (for Asperger's Syndrome), Eric H.'s individualized education plan ("IEP") based on his other health impairment of attention deficit hyperactivity disorder (or "ADHD") developed in May of 2001, with full parental input, was essentially the same as his previous one. This was done by the District in order to accommodate the parents' concerns and disagreements with its assessment rendered in December of 2000. In other words, the District never removed Eric H. from receiving special education services, but rather offered him those services under a different impairment or disability category.
For these reasons, I hereby AFFIRM the Hearing Officer's July 17, 2001 decision in favor of the defendant on the basis that the Hearing Officer properly weighed the evidence in rendering her findings of facts and conclusions of law in the case. Further, because plaintiff has failed to show, by a preponderance of the evidence, how he was denied a free appropriate public education ("FEPA"), his complaint must be DISMISSED WITH PREJUDICE.
C. Jurisdiction
Plaintiff premises jurisdiction of this court on the IDEA, 20 U.S.C. § 1415 (i)(3)(A). Plaintiff has demonstrated that he properly exhausted his administrative remedies and that the July 17, 2001 decision of the Hearing Officer pursuant to the IDEA, 20 U.S.C. § 1415 (f), is final and appealable under § 1415(i) of the Act as well as under 19 TEX. ADMIN. CODE § 89.1185(p). Plaintiff also claims he is an "aggrieved party" within the meaning of 20 U.S.C. § 1415 (i)(2)(A).D. Judicial Review
Judicial review of a final administrative decision is ordinarily conducted on the basis of the record compiled in the administrative proceeding. The court usually does not take new evidence, deciding instead whether the evidence in the administrative record supports the findings of the administrative hearing officer. Under the IDEA, however, judicial review of an administrative decision is quite different.
See Town of Burlington, 736 F.2d at 790-91.
The IDEA provides that when an "aggrieved party" appeals a final due process decision, as in this case, "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on a preponderance of the evidence, shall grant such relief as the court determines appropriate." The court, thus, is authorized to supplement the administrative record and base its decision on the composite administrative-judicial record.
34 C.F.R. § 300.512. Because plaintiff is challenging the Hearing Officer's administrative decision, he has the burden of proving his claims by a preponderance of the evidence. According to the Fifth Circuit's Civil Pattern Jury Instruction 2.20, "A preponderance of the evidence simply means evidence that persuades you that the plaintiff's claim is more likely true than not true." Id.
See Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994), cert. denied, 513 U.S. 839 (1994).
In Board of Education v. Rowley, the United States Supreme Court provided further guidance concerning the role of the courts in actions arising under the IDEA. The Court described this inquiry as two-fold: (1) to determine whether the school district complied with the procedural requirements of the IDEA; and (2) to determine whether the IEP for the student is reasonably calculated to enable him to receive education benefits. The Act creates a "presumption in favor of the education placement established by [a child's] IEP," and "the party attacking its terms should bear the burden of showing why the educational setting established by the IEP is not appropriate." In that regard, the Rowley Court, further cautioned that while a district court is thus empowered to review the substance of a disputed educational program, this grant of authority is:
458 U.S. 176, 207 (1982).
A district court's decision regarding challenges under the IDEA to a student's IEP or its components is a mixed question of fact and law. See Salley v. St. Tammany Parish School Board, 57 F.3d 458, 462 (5th Cir. 1995).
Tatro v. State of Texas, 703 F.2d 830 (5th Cir. 1983), aff'd in part and rev'd in part, 468 U.S. 883 (1984); Alamo Heights Independent School District v. State Board of Education et al., 790 F.2d 1153, 1158 (5th Cir. 1986).
not an invitation to the courts to substitute their own notions of sound education policy for those of the school authorities which they review. [. . .]. The fact that § 1415(e) requires that the reviewing court `receive the records of the [state] administrative proceedings' carries with it the implied requirement that due weight shall be given to those proceedings.
Rowley, 458 U.S. at 207.
According to case authority from the Fifth Circuit, while the hearing officer's findings are to be given "due weight," they are not conclusive and the district court's review of them is "virtually de novo." In applying a de novo review, "Congress left the choice of educational policies and methods in the hands of state and local school officials; the role of the courts is not to second-guess state and local school policy decisions, but to determine whether state and local school officials have complied with the IDEA"
Teague Independent School District v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993); and Austin I.S.D., 168 F. Supp.2d at 638.
Flour Bluff Independent School District v. Katherine M., 91 F.3d 689, 693 (5th Cir. 1996), cert. denied, 519 U.S. 1111 (1997).
1. Evidentiary Matters
In reviewing the evidence adduced during the administrative proceedings, I note that the Hearing Officer conducted a three-day hearing at which plaintiff provided the testimony of several witnesses and proffered over four hundred pages of exhibits. As discussed earlier, plaintiff has not properly requested that additional evidence be introduced in the case, and I find that the exhibits to the motions for partial summary judgment were either part of the administrative record, were readily available to plaintiff before the due process hearing but not introduced in a timely manner, or were otherwise cumulative or redundant of the evidence presented at the administrative proceedings and already made part of the record. It is prudent, however, to discuss one particular piece of evidence — plaintiff's summary judgment exhibit four.
See Vol. V of the Certified Administrative Record.
This exhibit is an affidavit provided by the physician who originally diagnosed plaintiff as suffering from Asperger's Syndrome in 1996. This diagnosis has been at the center of this controversy since the 2000 ARD committee meetings. Curiously, plaintiff failed to provide any explanation or good cause as to why he failed to provide it to the District earlier, before the due process administrative hearing. Because the plaintiff failed to show good cause why he did not present the physician's affidavit earlier in this case, the court, in exercising its discretion, will strike it from the record. Nevertheless, even if it were admitted as "additional" evidence, I find that the physician's testimony only establishes that she treated Eric H. in 1996 and during her treatment she observed characteristics of a child suffering from Asperger's Syndrome. There is no discussion or objective medical data included as to how she reached her findings, or whether she observed him in the school setting. Most importantly, this testimony is not conclusive of plaintiff's condition as of 2000, when the psychological reassessment of Eric H. took place.
Town of Burlington, 736 F.2d at 790.
Further, to the extent that plaintiff has intended to introduce this evidence as testimony rendered by a "disability expert witness," that testimony is inadmissible for the reasons articulated by the defendant in its objections to plaintiff's summary judgment evidence. Docket Entry 41, at 2-3.
2. Summary Judgment Proceeding
Accordingly, finding that no additional evidence has been properly presented in this proceeding, I will limit the scope of my review to the administrative record. On that basis, I have construed defendant's motion "for judgment on the record" as one seeking summary judgment, that is, judgment as a matter of law, based on the administrative record.
It should be noted that when a party moves for summary judgment in such a judicial-review proceeding, he does not implicitly reserve a right to a trial if the motion is denied; there is no right to a trial in a review proceeding, as contrasted with an original proceeding where summary judgment is usually utilized. "The motion for summary judgment is simply the procedural vehicle for asking the [court] to decide the case on the basis of the administrative record. [. . .]. It informs the [court] that [it] should resolve the case as a matter of law; that there are no triable issues of fact."
Hunger, 15 F.3d at 669. See also Austin I.S.D., 168 F. Supp.2d at 638 ("As no party to this proceeding has requested the Court to hear additional evidence, a motion for summary judgment is simply a procedural device for asking the Court to decide the case on the basis of the administrative record.") (citing Heather S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997)).
In this regard, I hereby incorporate as part of this Order the well-supported and uncontroverted "Evidentiary Summary of Material Facts," provided by the defendant in support of its motion for judgment on record and in response to plaintiff's motions for partial summary judgment, discussing below only those that are relevant to my rulings on each of the issues presented in this case.
Docket Entries 20 and 40, Appendix 1: Evidentiary Summary of Material Facts, attached as Exhibit "1," at ¶¶ 1-53; and also the "Findings of Facts" rendered by the Hearing Officer in her July 17, 2001 decision, at ¶¶ 1-34. While plaintiff refers to defendant's Evidentiary Summary as "self-serving," he has failed to properly controvert it.
E. Analysis
In conducting a "virtually de novo" review of the facts in the record and in applying the law to those facts, I hereby find that plaintiff has not and cannot meet his burden to show by a preponderance of the evidence that the defendant in any way violated the IDEA. Indeed, plaintiff's counsel conceded in her opening argument in the administrative proceeding below that the appropriateness of Eric's IEP and his behavior intervention plan are not an issue, and that plaintiff does not contest the fact that Eric H. has been provided a free appropriate public education. Perhaps plaintiff made these concessions in a futile attempt to shift the burden of proof to the defendant. Nevertheless, plaintiff is required to prove that the procedural requirements the district allegedly violated resulted in some cognizable harm to him, e.g., an inappropriately tailored IEP, and consequently, the District's failure in affording him a free appropriate public education. To the extent that plaintiff is appealing the hearing officer's decision, the burden of proof rests upon him at all times.The defendant's alleged procedural violations of the IDEA, according to plaintiff, relate to its decision to remove Eric H.'s autism classification of Asperger's Syndrome as the basis for eligibility to receive special education services. Plaintiff further contends the District's December 2000 evaluation, in which it was determined that Eric H. did not have Asperger's Syndrome, was flawed. In addition, plaintiff argues that the District did not allow full parental participation at the ARD committee meetings. I now proceed to address each of these arguments.
1. Whether the defendant complied with the IDEA procedural requirements in properly determining Eric H.'s eligibility for special education.
The IDEA requires that school districts which receive federal funds provide special education to "children with disabilities" and follow the procedural safeguards set out in the statute. A "child with a disability" means a child who not only has a disability but also "who, by reason thereof needs special education and related services." Thus, to qualify for special education, a student (1) must have one or more of the disabilities recognized by the IDEA and (2) need special education services. School districts have the obligation to maintain accurate, up-to-date evaluation data on special education students. One of the reasons for re-evaluating a student is to determine "present levels of performance and educational needs of the child."
20 U.S.C. § 1400 and 1412.
§ 1401(3)(A) (Emphasis added); and 29 C.F.R. § 300.7 (a)(1). See also J.D. Pawlett School District, 224 F.3d 60, 65-66 (2d Cir. 2000).
One of the disabilities recognized by IDEA is autism. 20 U.S.C. § 1401 (3)(A).
See authorities cited in note 27, supra .
The federal regulations implementing IDEA require that as part of any re-evaluation of a student with disability, a group of persons knowledgeable about the child (including those individuals who would otherwise comprise membership of a student's ARD committee), and other qualified professionals, as appropriate:
(1) Review existing evaluation data on the child, including
(i) Evaluations and information provided by the parents of the child;
(ii) Current classroom-based assessments and observations; and
(iii) Observations by teachers and related services providers; and
(2) On the bases of that review, and input from the child's parents, identify what additional data, if any, are needed to determine —
(i) Whether the child has a particular category of disability . . . or, in the case of a reevaluation of a child, whether the child continues to have such a disability;
(ii) The present levels of performance and educational needs of the child;
(iii) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
(iv) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum.
C.F.R. § 300.533(a). See also 20 U.S.C. § 1414 (c).
With regard to how the review or re-evaluation is conducted, no formal procedure is required. Indeed, the federal regulations note that the review may be conducted without the need for a meeting of all parties. Although the school district must ensure that the review of existing data and the determination of any needed additional data must be made by a group, including the parents, neither the statute nor the regulations require that the school district conduct a meeting for that purpose.
34 C.F.R. § 300.533 (as revised in 1999), attached to Docket Entry 20 as Appendix 2.
Additionally, the IDEA requires that in evaluating students, school districts "use a variety of assessment tools and strategies to gather relevant functional and developmental information." The school district cannot "use any single procedure as the sole criterion for determining whether a child is a child with a disability." Regarding the persons conducting an evaluation of a child, the IDEA only requires that the standardized tests given to a child be administered by "trained and knowledgeable personnel."
20 U.S.C. § 1414 (b)(2)(B) and 1412(a)(6)(B); and 34 C.F.R. § 300.532 (f).
20 U.S.C. § 1414 (b)(3)(B)(ii); and 34 C.F.R. § 300.532 (c)(1)(ii). The statute does not specifically define "trained and knowledgeable personnel."
In the instant case, plaintiff claims that the district inappropriately evaluated Eric H. and inappropriately removed the autism classification of Asperger's Syndrome as the basis for his special education eligibility. Plaintiff further contends that the evaluation was improper because Dr. Anne Smith was allegedly not qualified to conduct the evaluation. Plaintiff's contentions, however, are undermined by the undisputed fact that the District did not remove Eric H. from special education. Although the district concluded that he was no longer eligible under the category of autism (as having Asperger's Syndrome), Eric H. continued to be enrolled in special education, eligible as Other Health Impaired ("OHI") under the diagnosis of ADHD, a diagnosis properly corroborated by ongoing medical treatment and evaluation.
Docket Entry 20, Appendix 1, at ¶ 46.
As described in the Evidentiary Summary of Material Facts provided by the defendant and in the Findings of Facts rendered by the Hearing Officer, on March 27, 2000, the defendant convened a meeting of Eric H.'s ARD committee, and at that meeting, the ADR committee, including both of Eric H.'s parents, reviewed existing assessment data and other information regarding Eric H.'s special education program. Specifically, the information that the ARD committee reviewed included: (1) existing evaluation information, including a 1997 psycho-educational evaluation report, a 1998 psychological assessment report which summarized Eric H.'s medical and educational history, a 2000 speech/language assessment report, a 1999 occupational therapy assessment report and a 2000 health services report, (2) information from Eric H.'s teachers, including information relating to his present performance levels, (3) comments by Eric's teachers regarding their observations of Eric, and (4) information from Eric H.'s parents including information related to Eric H.'s medical diagnosis of Asperger's Syndrome. Eric H.'s parents were present for the entire meeting and actively participated in the ARD committee discussions.
Id. at Appendix 1, ¶¶ 4-5.
Upon review of the existing evaluation data, the March 2000 ARD committee members unanimously agreed that further assessment of Eric H. was warranted. Specifically, the ARD committee requested that a full psycho-educational assessment and a psychological assessment be completed by December 18, 2000 (considering that the last one had been done in December of 1997). It is undisputed that a current assessment was critical in determining Eric H.'s continued eligibility for special education and in developing an appropriate special education program for him. Eric H.'s parents received written notice of the evaluation requested by the ARD committee, and they gave written consent for the District to conduct the re-evaluation.
Id. at ¶ 6.
Id. at ¶ 7.
In September of 2000, the District requested that Eric H.'s parents complete a parent information form, outlining Eric H.'s social and medical history, as well as the Parent Rating Scales of the Behavior Assessment Scale for Children ("BASC") for use by the District in completing Eric H.'s re-evaluation. The parents did not return this information to the District until January of 2001, after the date by which the ARD committee agreed that the re-evaluation of Eric H. had to be completed. In accordance with the time-line imposed by the March 27, 2000 ARD committee, the District completed its re-evaluation of Eric H. in December of 2000. In her report dated December 18, 2000, the District's evaluator, school psychologist Dr. Anne Smith, summarized the results of the evaluation. While noting that the parents had failed to return the requested information, Dr. Smith nevertheless reviewed all parent information previously submitted to the District. In the report, Dr. Smith found that, based on the battery of standardized tests performed and data collected from those tests, her own personal observations of Eric H., and the teachers' input, Eric H. no longer qualified for special education as a child having Asperger's Syndrome, or autism.
Id. at ¶ 8.
Id. at ¶ 9.
Plaintiff argues that the District inappropriately removed Eric H.'s autism classification of Asperger's Syndrome and ignored Eric H.'s treating physician's alleged "report" that referred to a medical diagnosis of Asperger's Syndrome. Contrary to plaintiff's assertions, however, as of the date of the December 2000 re-evaluation report, Eric H.'s parents had not furnished the District with copies of any evaluation reports from his alleged treating physicians, Dr. Charles Morton or Dr. Lydia Lopez, supporting such diagnosis. The District did receive brief letters from Eric H.'s private physicians, but these only required that Eric H. be exempted from physical education. These letters made no reference to a private psycho-educational and/or private psychological/psychiatric evaluation; they simply related the Asperger's Syndrome as one previously given.
Dr. Morton, Eric H.'s pediatrician, testified at length at the due process hearing. According to the record, he made it very clear that he was not testifying as an expert, but merely as Eric H.'s physician. He stated that while he did not diagnose Eric H. as suffering from Asperger's Syndrome, he was nevertheless aware of the diagnosis and never questioned it. Dr. Morton, however, admitted that he had never performed any standardized testing on Eric H. regarding this diagnosis nor had he ever observed him in the educational setting or spoken with any of the District personnel who worked with Eric H. concerning his performance in the school setting. His only contact and/or observation of Eric H. had been approximately four times per year, for approximately 20-45 minutes per session, for the purpose of review and medication management for ADHD. Clearly, Dr. Morton's testimony regarding his medical treatment of Eric H. supports a diagnosis of ADHD, but not one for Asperger's Syndrome.
Id. at ¶ 41-43. Eric H. had been prescribed Ritalin, which he has taken for more than five years. Id. at ¶ 41.
The District's December 2000 evaluation report was reviewed by Eric H.'s ARD committee at his annual ARD meeting on March 27, 2001. The meeting had been rescheduled more than once to accommodate the schedule of Eric H.'s parents. At the meeting, Dr. Smith discussed the results of her evaluation as well as Eric H.'s special education and assessment history, including the results of prior evaluations and information previously received from Eric H.'s parents and physicians. The ARD committee discussed whether Eric H. would continue to remain eligible for special education and related services as a student with a disability, a discussion in which Eric H's parents fully participated. The ARD recessed without reaching consensus. Eric's parents specifically disagreed with the District's conclusion that Eric H. was not a child exhibiting characteristics of Asperger's Syndrome at school. Eric H.'s parents were provided the opportunity to submit a statement of disagreement and to recess the ARD committee meeting until April 10, 2001. Due to the committee's failure to reach a consensus, Eric H. remained eligible for special education services as a student with autism during the interim period. Eric H. was not dismissed from special education at the meeting.
The ARD committee meeting reconvened on April 10, 2001 at which time the committee continued to discuss Eric H.'s eligibility for special education services. Eric H.'s parents presented the ARD committee with a signed Other Health Impaired ("OHI") eligibility form from Dr. Morton. Dr. Morton indicated that Eric H. had been diagnosed medically with ADHD, warranting Eric H.'s continued eligibility for special education. Dr. Morton also stated on the form that Eric H. had been diagnosed medically with Asperger's Syndrome. Although Dr. Morton recommended the continued use of an IEP and Behavior Intervention Plan ("BIP") for Eric H., Dr. Morton failed to indicate whether Eric H. suffered from impulsivity or hyperactivity as a result of the ADHD, and also failed to provide specific recommendations for programming based upon the ADHD diagnosis. On those bases, the school district staff requested that the ARD committee be continued for five days to allow school personnel to directly speak with Dr. Morton. Eric H.'s parents agreed to continue the meeting, but refused to provide the District with consent to speak with Dr. Morton outside their presence. In order to accommodate the parents' condition, the District attempted to schedule a teleconference with all three parties prior to the next ARD committee meeting on May 2, 2001, but to no avail. Between the April 10, 2001 meeting and the time the ARD committee next reconvened on May 2, 2001, Eric H. continued to receive special education and related services as a student eligible under the category of autism.
Although a teleconference was finally scheduled to May 7, 2001, the parents cancelled it and moved for a due process hearing before a Hearing Officer. Despite many requests by the District, Dr. Morton, at the request of Eric H.'s parents, has never provided it with information concerning Eric H.'s medical diagnoses or proposed treatment plans to the District, outside of two brief letters dated January 2000 and February 2001.
At the May 2, 2001 ARD committee meeting, Eric H.'s eligibility for special education services was discussed. At that time, the ARD committee decided Eric H. did not qualify as having Asperger's Syndrome. Instead, the committee adopted Mr. Morton's recommendation that Eric H. qualify for special education and related services as a student with Other Health Impairment on the basis of his ADHD diagnosis and the continuous medical treatment he received for the condition. The ARD committee proceeded to conduct a functional behavioral assessment, develop a behavior intervention plan, review and revise Eric H.'s existing IEPs, discuss and develop structural modifications for Eric H.'s program, and determine Eric H's placement in the least restrictive environment. In so doing, the committee reviewed Eric H's proper programming and developed its present program accordingly. Importantly, Eric H's parents fully participated in this process, and as a result, Eric H.'s programming for the 2001-02 school year was substantially similar to his programming for the 2000-01 school year programming with which his parents previously had agreed to implement. The committee also completed the ARD supplement regarding the transitional service needs related to Eric H.'s course of study. Based on the District's December 2000 evaluation, as well as observations of Eric H. by his own teachers and qualified professionals during the 2000-01 school year, the District determined that Eric H. did not meet the required criteria for a diagnosis of Asperger's Syndrome.
Despite the formulation of a substantially similar IEP, the May 2, 2001 ARD committee meeting did not reach a consensus. Eric H.'s parents were offered the opportunity to submit a statement of disagreement, which they provided. In that statement, Eric H.'s parents again stated their belief that Eric should qualify as a student with autism, based on the previous medical diagnosis of Asperger's Syndrome. Eric H.'s parents, however, never pursued the Independent Educational Evaluation offered by the District nor did they provide the District with any other outside assessment data to support Eric H.'s continued diagnosis as a student with Asperger's Syndrome. Instead, they opted to request a special education due process hearing.
The undisputed record shows that subsequent to the May 2001 ARD committee meeting, and in an attempt to address the parents' concerns, Dr. Smith prepared an addendum to the December 2000 assessment report, including the information provided to the District by Eric H.'s parents after the completion of the report. The District subsequently scheduled an ARD committee meeting at which the addendum would be reviewed by the committee. Eric H.'s parents, in referring to their request for a due process hearing, declined to attend any other ARD committee meeting.
Despite plaintiff's unsupported allegations concerning the way the District performed its December 2000 assessment, the record clearly demonstrates that the assessment was appropriate. The evaluation was conducted by a qualified examiner and consisted of a wide variety of assessment tools and strategies used to gather relevant functional and developmental information about Eric H., including information provided by his parents and information related to Eric H.'s participation and progress in the general curriculum. Dr. Smith was qualified to conduct Eric H.'s evaluation, having the necessary credentials to do so, as well as expertise in conducting evaluations of children having or suspected of having Asperger's Syndrome. At the time of the December 2000 assessment, Dr. Smith was a Licensed Specialist in School Psychology ("LSSP") trainee, and conducted her evaluations under the direct supervision of the District's Leading Psychologist, Dr. Pamela Palmer. Dr. Smith possessed the necessary credentials and received the required supervision to conduct the re-evaluation of Eric H. and prepare a credible assessment of his performance.
Moreover, Dr. Smith did not use a single procedure as the sole criterion for determining whether Eric H. continued to have a disability recognized under IDEA. Indeed, she assessed Eric H. in all areas related to the suspected disability of Asperger's Syndrome. Her evaluation was sufficiently comprehensive to identify all of Eric H.'s special education needs — whether or not such were commonly linked to his previous diagnosis of Asperger's Syndrome. She used a wide variety of reliable instruments, such as the BASC, the Children's Depression Inventory, the Revised Children's Manifest Anxiety Scale, the Thematic Apperception Test ("TAT"), the Childhood Autism Rating Scale ("CARS"), the Australian Scale for Asperger's Disorder, the Wechsler Intelligence Scale for Children — Third Edition, the Woodcock Johnson Tests of Achievement — Revised, and the Bender Gestalt Visual Motor Test to conduct her assessment. Dr. Smith also reviewed Eric H.'s progress in school at the time of the evaluation and noted that his progress was excellent. He was receiving A's and B's in his classes, and he was successfully participating in three Honors courses. While he was disciplined on two occasions ( i.e., for participating in a spitball incident and for participating with other classmates in erasing computer work performed by another student) during the relevant time period, those incidents were not determined to be indicative of an inability to follow the school's code of conduct because of disability, but rather as behavior typical of a thirteen year old boy. In sum, none of the assessments relied upon by Dr. Smith were indicative of his having Asperger's Syndrome.
Docket Entry 20, Appendix 1, at ¶¶ 12-23.
Significantly, when Eric H.'s parents stated their disagreement with the District's evaluation, the District suggested the parents obtain an independent educational evaluation at District expense. Eric H.'s parents, however, failed to avail themselves of that remedy. In fact, plaintiff failed to introduce any evidence at the due process hearing, or in this proceeding, to controvert the District's evaluation.
Based on Dr. Smith's evaluation and data presented at the ARD committee meeting, Eric H.'s ARD committee (with the exception of his parents) ultimately and appropriately determined that he did not qualify for special education and related services as a student with autism, that is, as having Asperger's Syndrome. Although Eric H. did carry a previous diagnosis of Asperger's Syndrome, the uncontroverted evaluation data showed that Eric did not demonstrate the characteristics of that disorder at school. The ARD committee determined, nonetheless, that Eric H. would remain eligible for special education and related services as a student with an Other Health Impairment, based on his medical diagnosis of ADHD, and thus developed individual programming, with full parental input, on that basis.
Having reviewed the record and using a virtually de novo review standard, I find, by a preponderance of the evidence, that the District's December 2000 evaluation of Eric H. was proper and that the ARD committee was indeed justified, based on that assessment, in removing Eric H.'s IDEA eligibility classification of autism. The current data gathered and made part of the December 2000 evaluation demonstrated that Eric H. did not exhibit characteristics of Asperger's Syndrome warranting special education services on that basis. The District fully complied with the IDEA's evaluation procedures: the District "use[d] a variety of assessment tools and strategies to gather relevant and current functional and developmental information," the District did not "use any single procedure as the sole criterion" for determining whether Eric H. was a child with a disability, and the District's evaluators were clearly trained and knowledgeable about autism (particularly, Asperger's Syndrome) and in evaluating children with disabilities and suspected disabilities. For these reasons, and finding no violations of the IDEA concerning the eligibility decision made by the District in connection with the December 2000 assessment of Eric H.'s performance, the District is entitled to summary judgment on this claim.
See discussion and authorities cited at 13-14, supra.
2. Whether the District complied with the IDEA by allowing full parental participation in the ARD committee meetings concerning Eric H.
Despite plaintiff's contentions to the contrary, the undisputed evidence of record indicates that Eric H.'s parents were allowed to fully participate in the ARD committee meetings. IDEA imposes extensive procedural requirements designed to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decision they think inappropriate."
See Buser v. Corpus Christi Independent School District, 51 F.3d 490, 493 (5th Cir. 1995); and 20 U.S.C. § 1415 (b).
As previously discussed, Eric H.'s parents agreed in March of 2000 along with the rest of the ARD committee to re-evaluate Eric H. Further, they gave consent for the District to conduct such re-evaluation by December of 2000. To argue now, for the first time, that such consent was somehow coerced, is incredulous. The record shows that Eric H.'s parents were very vocal and always expressed their views at the ARD committee meetings, including their disagreements. Eric H.'s special education services were never compromised as the result of his parents' disagreements. Because the parents' conduct in the ARD committee meetings is contrary to their allegation that they felt coerced to agree to the reevaluation, I reject their attempt to challenge the December 2000 re-evaluation on this basis and find that it is not supported by the evidence of record.
Further, the record indicates that the ARD committee allowed the parents on more than one occasion to attach a written statement of their disagreement with the December 2000 assessment. The plaintiff has simply failed to provide any evidence, at the due process hearing, and now at this proceeding, that the District in any way prevented or prohibited the parents from participating in the ARD committee meetings. Indeed, the evidence demonstrates that the parents actively participated in the ADR committee meetings, from March 2000 through May of 2001, bringing their attorney to at least to one of the meetings. Just because the District disagreed with the parents' unsupported belief that Eric H. continued to exhibit characteristics of Asperger's Syndrome and needed special education services on that basis, does not mean that the parents were excluded from the ARD committee decision-making process. To the contrary, the undisputed record shows that the parents actively participated at each of the ARD committee meetings held in 2000-01 and that they indeed were afforded the opportunity to provide meaningful input on behalf of their son at those meetings. Accordingly, the Hearing Officer's findings for the District on this claim are affirmed.
Indeed, the record indicates that the original ARD committee meeting dates were often rescheduled to accommodate the parents' schedules.
3. Whether the Hearing Officer applied the proper burden of proof and properly considered all the evidence presented.
Plaintiff challenges the Hearing Officer's decision on three main grounds: (1) that she erred in the weight she gave to the hearing testimony of Dr. Morton, plaintiff's treating physician, (2) that she erred in excluding some of plaintiff's evidence on the grounds it was not timely submitted and (3) that she erred in placing the burden on proof on the plaintiff. None of these challenges has merit.
Regarding Dr. Morton's testimony at the administrative hearing, the Hearing Officer summarized it in her decision as follows: "Eric's developmental pediatrician, Dr. Morton, believes that Eric has Asperger's Syndrome, but he did not evaluate Eric or diagnose him with the disorder, or confirm the previous diagnosis. Further, he made it clear that he was testifying as a non-expert." This was a proper characterization of Dr. Morton's testimony and the hearing officer did not err in finding that he was not a disability expert knowledgeable about Asperger's Syndrome. To the extent that plaintiff argues that the Hearing Officer should have found the District's December 2000 assessment improper based on Dr. Morton's testimony alone, that argument has no merit for the reasons already articulated in this Order. The Hearing Officer considered all of the medical evidence of record and the weight given to Dr. Morton's testimony was not erroneous or contrary to law.
Vol. 1, Hearing Officer's July 17, 2001 decision, at 10.
Regarding plaintiff's second challenge, plaintiff cannot impute on the Hearing Officer his own delay in submitting hearing evidence in a timely fashion as required by the IDEA. This challenge has no merit. With respect to the allocation of burden of proof in this case, I find that the Hearing Officer properly allocated the burden of proof on the plaintiff, as the party challenging the educational program proposed by the District. Accordingly, plaintiff's challenges to the Hearing Officer's decision are overruled. Indeed, I find that the Hearing Officer's decision in favor of the District was supported by the evidence of record and was in accordance with applicable legal standards.
20 U.S.C. § 1415 (f)(2); and 34 C.F.R. § 300.509.
See Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir. 2000).
F. Conclusion
Based on the foregoing, the defendant's motion for judgment on record, construed as a motion for summary judgment (Docket Entry 20) is GRANTED and this matter is DISMISSED WITH PREJUDICE. Plaintiff's three motions for partial summary judgment (Docket Entries 28, 35-36) as well as the defendant's motion to strike plaintiff's summary judgment evidence (Docket Entry 41) are DENIED AS MOOT. Further, defendant's request for an award of attorneys' fees (Docket Entry 20, at 16) is DENIED on the grounds that defendant has failed to demonstrate that plaintiff's suit was "frivolous, unreasonable, or groundless." Any other request for relief, if any, not previously ruled upon or addressed in this Order is DENIED.
Christianburg Garment Co., 434 U.S. at 421, Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999); and Myers v. City of West Monroe, 211 F.3d 289, 293 (5th Cir. 2000)). Further, there is no indication and the defendant has failed to brief, whether the IDEA allows for such request.