Opinion
CIVIL ACTION NO. 4:19-CV-00823-RWS
2021-03-26
HEATHER H., Individually and on Behalf of Minor Child, P.H., an Individual With a Disability, et al., Plaintiffs, v. NORTHWEST INDEPENDENT SCHOOL DISTRICT, Defendant.
Elizabeth Ann Angelone, Devin Alan Fletcher, Cuddy Law Firm, Austin, TX, for Plaintiffs. Meredith Prykryl Walker, Nona C. Matthews, Walsh Gallegos Trevino Russo & Kyle PC, Irving, TX, for Defendant.
Elizabeth Ann Angelone, Devin Alan Fletcher, Cuddy Law Firm, Austin, TX, for Plaintiffs.
Meredith Prykryl Walker, Nona C. Matthews, Walsh Gallegos Trevino Russo & Kyle PC, Irving, TX, for Defendant.
ORDER
ROBERT W. SCHROEDER III, UNITED STATES DISTRICT JUDGE
Plaintiffs Heather H. and John H., both individually and on behalf of minor child, P.H., an individual with a disability, filed this lawsuit asserting a claim against Northwest Independent School District under the Individuals with Disabilities Education Act ("IDEA"). Docket No. 1. Plaintiffs and Northwest ISD each moved for judgment on the administrative record regarding the IDEA claim. Docket Nos. 28, 29. Plaintiffs also filed an Opposed Motion to Supplement the Administrative Record. Docket No. 20. The Magistrate Judge recommends (1) denying without prejudice Plaintiffs’ Opposed Motion to Supplement the Administrative Record; (2) denying Plaintiffs’ Motion for Judgment on the Administrative Record; (3) granting Northwest ISD's Motion for Judgment on the Administrative Record; and (4) dismissing with prejudice Plaintiffs’ claims. Docket No. 42 ("Report and Recommendation"). Plaintiffs filed objections to the Report and Recommendation. Docket No. 43. Northwest ISD filed a response. Docket No. 44. The Court conducted a de novo review of the Magistrate Judge's findings and conclusions.
BACKGROUND
Plaintiffs filed their Complaint in the Eastern District of Texas on November 13, 2019. Docket No. 1. Plaintiffs are challenging the Special Education Hearing Officer's ("SEHO") determination that Northwest ISD complied with the IDEA while P.H. was enrolled at Northwest ISD. Id. at 12–13. Plaintiffs’ Motion for Judgment on the Administrative Record asks the Court to reverse the SEHO's decision and reimburse them for the cost of a privately obtained Independent Educational Evaluation ("IEE"). Docket No. 28 at 28. They also seek an award of attorneys’ fees and costs. Docket No. 1 at 13. Northwest ISD filed a competing Motion for Judgment on the Administrative Record, asking the Court to affirm the SEHO's decision and dismiss with prejudice Plaintiffs’ suit. Docket No. 29 at 22–23. Plaintiffs also filed an Opposed Motion to Supplement the Administrative Record, requesting admission of certain documentation for the purpose of attorneys’ fees and costs if Plaintiffs prevail. Docket No. 20.
REPORT AND RECOMMENDATION
On February 25, 2021, the Magistrate Judge recommended the Court deny Plaintiffs’ Motion for Judgment on the Administrative Record and Opposed Motion to Supplement the Administrative Record but grant Northwest ISD's Motion for Judgment on the Administrative Record. Docket No. 42. Therein, the Magistrate Judge details how Plaintiffs failed to meet their burden of establishing the SEHO erred. Id. at 22–35.
OBJECTIONS
After entry of the report, Plaintiffs timely filed objections. Docket No. 43. Broadly, Plaintiffs raise four grounds: (1) the Magistrate Judge improperly applied the IDEA standard, excessively deferring to both the SEHO and teachers’ "blind assertions"; (2) the Magistrate Judge misuses a statement of law regarding a "better system"; (3) the Magistrate Judge erred by reading "suspected disability" as not including the "child with a disability" eligibility categories; and (4) the Magistrate Judge incorrectly concluded there was no reason to suspect P.H. might be a student with an emotional disturbance ("ED"). Id. at 4–15.
DE NOVO REVIEW
12 A district court reviews the SEHO's determination "virtually de novo." Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 213 (5th Cir. 2019) (quoting Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993) ). This means that "although the district court is to ‘give due weight to the hearing officer's findings, the court must ultimately reach an independent decision based on a preponderance of the evidence.’ " Id. (quoting Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 309 (5th Cir. 2017) ) (alteration omitted); see also 20 U.S.C. § 1415(i)(2)(c)(iii). But this "provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982) ; see also E.M. v. Lewisville Indep. Sch. Dist., No. 4:15-CV-00564, 2018 WL 1510668, at *5 (E.D. Tex. Mar. 27, 2018), aff'd sub nom. E.M. by S.M. v. Lewisville Indep. Sch. Dist., 763 F. App'x 361 (5th Cir. 2019).
I. First Objection
Plaintiffs first object that the Magistrate Judge improperly applied the IDEA standard of review. Docket No. 43 at 4–8. Specifically, Plaintiffs argue the Magistrate Judge fails to hold Northwest ISD to the correct "modified de novo review" standard, affording excessive deference to the SEHO decision, because (1) the Magistrate Judge deferred to "teachers’ bare and blind assertions ... despite documentary evidence to the contrary"; and (2) the Magistrate Judge failed to hold Northwest ISD to its burden to prove the Full Individual and Initial Evaluation ("FIE") "was appropriate and that the IEE was not appropriate." Id. Northwest ISD responds that the Magistrate Judge applied the correct "virtually de novo" standard, as (1) Plaintiffs point to out-of-context portions of the Report and Recommendation, including the section discussing a professional disagreement; and (2) Plaintiffs "blatantly misrepresent the IDEA's implementing regulations" regarding the appropriateness of the FIE and IEE. Docket No. 44 at 2–5.
In advancing the Magistrate Judge's purported reliance on "teachers’ bare and blind assertions, despite documentary evidence to the contrary," Plaintiffs argue the Magistrate Judge dismissed the "issue of the FIE's deficiencies as ‘nothing more than a professional disagreement.’ " Docket No. 42 at 28–29. But such assertion takes the statement out-of-context. The Magistrate Judge's reference is narrow: in addressing each of the Plaintiffs’ arguments that the FIE lacked sufficient data, the Magistrate Judge noted that the record reflects a professional disagreement as to whether administering the CARS-2 over the ADOS-2 was most appropriate for P.H. at that time. AR 237–38, 959–60, 962, 979. And reexamining that point, the Court agrees that although Plaintiffs argue Northwest ISD should have administered the ADOS-2 again, the manual states that the ADOS-2 should not be administered within one year of the original administration date. AR 706–07. The evaluation Plaintiffs point to was conducted approximately eight months after the original ADOS-2 was administered. AR 198–99, 207, 209, 448. The Magistrate Judge appropriately found this specific argument unavailing.
In further support of their argument that the Magistrate Judge provided excessive deference, Plaintiffs argue Northwest ISD, "as the petitioning party first had the burden to prove that it's [sic] FIE was appropriate and that the [privately funded] IEE was not appropriate"—a standard the Report failed to hold Northwest ISD to. Docket No. 43 at 7 (emphasis added). Specifically, Plaintiffs complain about the Magistrate Judge's conclusion that "the SEHO did not err by failing to address the appropriateness of the IEE because there is no such requirement under the IDEA." Docket No. 42 at 34.
The applicable regulation states in relevant part:
If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either
(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.
34 C.F.R. § 300.502(b)(2) (emphasis added). Here, Northwest ISD requested a hearing to show that its evaluation was appropriate. As the Magistrate Judge noted, the regulation includes "or" (making the regulation disjunctive) rather than "and." Thus, the plain language does not require Northwest ISD to prove the FIE was appropriate and that the IEE was not appropriate. The case Plaintiffs cite only further supports this conclusion. See Cobb Cty. Sch. Dist. v. D.B. ex rel. G.S.B., No. 1:14-CV-02794-RWS, 2015 WL 5691136, at *6 (N.D. Ga. Sept. 28, 2015) ("At such a due process hearing [under 34 C.F.R. § 300.502(b)(2)(i) ], the school district has the burden of proof to show that its assessment is adequate.").
Incorporating by reference their Motion for Judgment on the Administrative Record, Plaintiffs next urge the Magistrate Judge "relied upon broad, sweeping, unsupported opinions of NWISD teachers" rather than consider the "numerous extrinsic documentary examples of P.H.’s behaviors which indicted abnormal responses[.]" Docket No. 43 at 7–8. Northwest ISD, in response, asserts the Magistrate Judge appropriately addressed Plaintiffs’ arguments, including by noting certain of the evidence upon which Plaintiffs relies postdates completion of the FIE. Docket No. 44 at 5–6.
To this point, Plaintiffs’ briefing before the Magistrate Judge points to P.H.’s "tardy log" and the Section 504 team's findings. Docket No. 28 at 18–19. But P.H. was only late on two occasions that were, at best, related to anxiety and before Northwest ISD completed the November 2018 FIE. AR 607–19. The Section 504 team's findings from December 2018 were one month after the November 2018 FIE. AR 511, 931–33. And the referenced IEE occurred six months after the FIE. As the Fifth Circuit has instructed, a court cannot "judge a school district's determination [regarding eligibility for special education services] in hindsight." Lisa M., 924 F.3d at 214 (quoting D. L. by & through J.L. v. Clear Creek Indep. Sch. Dist., 695 F. App'x 733, 738 (5th Cir. 2017) (per curiam)). Moreover, it is clear that the Magistrate Judge, at length, examined more than just the teachers’ opinions. For example, the Magistrate Judge substantively examined multiple systems employed by Northwest ISD, observations of P.H. in various school settings and P.H.’s classroom performance. Docket No. 42 at 25–34. As Northwest ISD points out, "Plaintiffs do not actually articulate for the Court how the Magistrate Judge erred in this regard[.]" Docket No. 44 at 6. Thus, Plaintiffs’ objection is overruled.
II. Second Objection
Plaintiffs’ second objection concerns the purported misuse of a statement of law; specifically, Plaintiffs advance that the Magistrate Judge erroneously references the phrase "better system" from the Amanda P. case out of the Western District of Texas in analyzing Plaintiffs’ arguments. Docket No. 43 at 8–11. Plaintiffs advance that Amanda P. is not analogous to the instant cause. Id. Northwest ISD responds by stating the Magistrate Judge's "better system" reference merely followed and complimented the discussion of professional disagreement between Northwest ISD's licensed specialist in school psychology ("LSSP") and Plaintiffs’ LSSP. Docket No. 44 at 7–8.
Following the Magistrate Judge's discussion of the LSSP's decision to administer the CARS-2 over the ADOS-2, the Magistrate Judge cited Amanda P. for the concept that the Court must determine whether Northwest ISD "ultimately violated the IDEA, not to assess whether a better system exists." Amanda P. v. Copperas Cove Indep. Sch. Dist., No. 6:19-CV-00197-ADA, 2020 WL 1866876, at *6 (W.D. Tex. Apr. 14, 2020) (citing Rowley, 458 U.S. at 206, 102 S.Ct. 3034 ). The Magistrate Judge went on to "decline to substitute its own notion of educational policy and procedures in light of this professional agreement" between the two LSSPs. Docket No. 42 at 29. Notably, Amanda P., in turn, cited to Rowley, in which the Supreme Court clarified that the "preponderance of the evidence" standard "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206, 102 S.Ct. 3034. The Magistrate Judge with this reference did not reframe the parties’ arguments. While Plaintiffs attempt to distinguish Amanda P. on factual grounds, the general principle expounded by the Supreme Court for cases under the IDEA still stands. Accordingly, Plaintiffs’ objection is overruled.
III. Third Objection
Plaintiffs further object because the Magistrate Judge improperly reads "suspected disability" as not including "child with a disability" eligibility categories. Docket No. 43 at 11–13. Plaintiffs argue the Report "gut[s] the IDEA" and this "Court cannot adopt a rule that would exempt school districts from assessing suspected disabilities that are included in the IDEA's list of qualifying disabilities." Id. at 13. Northwest ISD disagrees, noting "the Magistrate Judge correctly determined the IDEA requires school districts to assess students in all areas of suspected disabilities—not eligibility categories." Docket No. 44 at 8–10.
The Magistrate Judge, addressing Plaintiffs’ invitation to read "suspected disability" as synonymous with "a child with a disability" under the IDEA, concluded "such an interpretation is unreasonable for at least three reasons." Docket No. 42 at 23–24. This includes the absence of any cross reference between the provisions in the IDEA, the examples of "suspected disability" under the federal regulations and the reality that "not every disability necessarily falls within the scope of the IDEA." Id. The Magistrate Judge then noted "Plaintiffs provide no authority or applicable canons of construction warranting a different reading of the IDEA." Id. at 24. Thus, Northwest ISD "did not have a duty under the IDEA to specifically assess P.H. for ED or [other health impairments ("OHI")]." Instead, Northwest ISD "had a duty to evaluate P.H. for any ‘suspected disability’ " under 20 U.S.C. § 1414(b)(3)(B). Id.
Plaintiffs, in opposition, now argue "the IDEA creates a relatively low threshold for suspicion of a disability—essentially any disability—which aids the potential future inquiry of whether a disability is eligible under the IDEA." Docket No. 43 at 11. But this does not address the core conclusion of the Magistrate Judge's recommendation: "suspected disability" is distinct from "child with a disability." The IDEA requires a school district to assess a child "in all areas of suspected disability." 20 U.S.C. § 1414(b)(3)(B). The IDEA does not define "suspected disability." It does, by contrast, define "child with a disability" as including a child with a "serious emotional disturbance" or "other health impairments." 20 U.S.C. § 1401(3)(A) ; see also 34 C.F.R. § 300.8 (defining "child with a disability" as including ED and OHI). These examples—ED and OHI—are "qualifying disabilities," or eligibility categories. See Lisa M., 924 F.3d at 215. So while Northwest ISD is tasked with assessing a child "in all areas of suspected disability," 20 U.S.C. § 1414(b)(3)(B), it is the Admission, Review, and Dismissal committee that ultimately "determines whether the child is a child with a disability"—that is, whether the "suspected disability" falls within a statutorily delineated "qualifying disability." See 34 C.F.R. § 300.306 ; 19 Tex. Admin. Code § 89.1050 (defining the committee who conducts a FIE under Texas law as the "admission, review, and dismissal (ARD) committee").
Plaintiffs further cite Jones-Herrion v. District of Columbia, arguing the Magistrate Judge withheld or omitted from a parenthetical in the Report and Recommendation a sentence from the relevant finding of such case. Docket No. 43 at 12. The Magistrate Judge cites Jones-Herrion when concluding "suspected disability" and a "child with a disability" are properly read as distinct. Docket No. 42 at 24. More specifically, Plaintiffs urge the Magistrate Judge unreasonably omitted the final sentence from the below excerpt of Jones-Herrion :
The process [under IDEA] kicks off when the "local education agency," in this case DCPS, performs an "initial evaluation" to determine if a child has a qualifying disability. Id. § 1414(a)(1). In conducting the evaluation, DCPS must use "a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information," and the child must be assessed "in all areas of suspected disability." Id. § 1414(b). No "single measure or assessment" may be used "as the sole criterion for determining whether a child is a child with a disability." Id.
Jones-Herrion v. District of Columbia, No. 18-2828 (RMC), 2019 WL 5086693, at *1 (D.D.C. Oct. 10, 2019) (emphasis added). This omission does not change the analysis. As part of the FIE, a child must be assessed in all areas of "suspected disability," which helps determine if a child has a qualifying disability under the IDEA. The Admission, Review, and Dismissal committee, as explained, is still tasked with separately "determin[ing] whether the child is a child with a disability[.]" See 34 C.F.R. § 300.306. Plaintiffs’ objection is overruled.
IV. Fourth Objection
Finally, Plaintiffs argue the Magistrate Judge improperly concluded there was little reason to suspect P.H. might be a student with an ED. Docket No. 43 at 6, 13–15. Plaintiffs point to P.H.’s attendance records, staff's observations, parent's self-report and lack of psychological or counseling evaluations, as well as evaluations from Dr. Laura Sanders and Dr. Jennifer Morrison. Id. at 8, 13–14. Plaintiffs relatedly argue the Magistrate Judge improperly concluded P.H.’s absences do "not rise to the level of showing a genuine emotional disturbance" and do "not demonstrate a causal relationship between P.H.’s emotional functioning and his attendance." Id. at 14–15. Northwest ISD views it differently. It advances that Plaintiffs’ argument is "based on the erroneous position that [Northwest ISD] had to assess P.H. for the ED eligibility category." Docket No. 44 at 10. Nonetheless, Northwest ISD addresses Plaintiffs’ citations to the record, noting (1) only two of P.H.’s "tardies allegedly related to P.H.’s anxiety"; (2) it assessed P.H. for anxiety; (3) P.H. did not exhibit behavioral problems or any signs of anxiety in the school setting; and (4) Plaintiffs overstate the content of the evaluation by Dr. Sanders. Id. at 7, 10–12.
As the Court previously detailed, Northwest ISD was not obligated to evaluate P.H. for an ED, and only two of P.H.’s absences in the "tardy log" were, at best, related to anxiety and before Northwest ISD completed the November 2018 FIE. AR 607–19. While Plaintiffs take issue with the Magistrate Judge's conclusion that these absences do "not rise to the level of showing a genuine emotional disturbance," the Magistrate Judge was merely explaining based upon a review of the record that the absences have no connection to the alleged ED. Docket No. 42 at 32 n.16. Next, as Northwest ISD explains, Plaintiffs conceded during the due process hearing that Northwest ISD evaluated P.H. for anxiety. AR 676. This is consistent with the FIE, which assessed P.H. for anxiety and concluded there was no additional assessment required. AR 212, 215, 784–85, 789–90, 792, 804. Indeed, the Magistrate Judge detailed at length P.H.’s lack of behavior problems of anxiety in the school setting. Docket No. 42 at 29–33. The administrative record includes numerous examples of P.H. displaying normal behavior comparable to other children around his age in the academic setting, including functioning well in the classroom. AR 230, 511, 697, 717–18, 721, 731–32, 757–61, 764–65, 767, 772, 787, 820, 931–33.
Plaintiffs, by contrast, point to P.H.’s fear of unexpected noises, struggles with change, fidgeting and "near-constant redirection," as well as Dr. Sanders and Dr. Morrison's findings. Docket No. 43 at 8, 14. Dr. Laura Sanders and Dr. Jennifer Morrison both diagnosed P.H. with anxiety-related disorders. AR 462; Docket No. 21-1 at 20. But once again, as the Magistrate Judge explained in detail, P.H. was not observed in the school setting with these same behaviors, Docket No. 42 at 27–31, and the record indisputably reflects Northwest ISD did evaluate P.H. for anxiety. AR 212, 215, 676, 784–85, 789–90, 792, 804. Lastly, while Plaintiffs argue that Northwest ISD failed "to conduct any psychological or counseling evaluation" to find the root of P.H.’s anxiety, Plaintiffs fail to articulate how the Magistrate Judge erred in this regard. Accordingly, Plaintiffs’ final objection is overruled.
In sum, Plaintiffs fail to carry their burden to establish the SEHO erred. See Seth B. ex rel. Donald B. v. Orleans Parish Sch. Bd., 810 F.3d 961, 972 (5th Cir. 2016).
CONCLUSION
Having conducted a de novo review, the Court is of the opinion that Northwest ISD's Motion for Judgment on the Administrative Record is meritorious whereas Plaintiffs’ Motion for Judgment on the Administrative Record is without merit. The Court further finds Plaintiffs’ objections are without merit and OVERRULES each one. The Court is also of the opinion that the findings and conclusions of the Magistrate Judge are correct. The Court hereby ADOPTS the Report and Recommendation of the United States Magistrate Judge as the findings and conclusions of this Court. Accordingly, it is
ORDERED that Plaintiffs’ Opposed Motion to Supplement the Administrative Record (Docket No. 20) is DENIED WITHOUT PREJUDICE. It is further
ORDERED that Plaintiffs’ Motion for Judgment on the Administrative Record (Docket No. 28) is DENIED. It is further
ORDERED that Northwest ISD's Motion for Judgment on the Administrative Record (Docket No. 29) is GRANTED. The decision of the SEHO is AFFIRMED, and Plaintiffs’ suit is DISMISSED WITH PREJUDICE.
So ORDERED and SIGNED this 26th day of March, 2021.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiffs Heather H. and John H., individually and on behalf of P.H., a Minor Individual with a Disability's ("Plaintiffs") Motion for Judgment on the Administrative Record [Dkt. 28] and Defendant Northwest Independent School District's ("Defendant") Motion for Judgment on the Administrative Record [Dkt. 29]. Also pending before the Court is Plaintiffs’ Opposed Motion to Supplement the Administrative Record [Dkt. 20]. After reviewing the Motions [Dkts. 20; 28; 29], responses [Dkts. 26; 30; 32], replies [Dkts. 33; 34], sur-replies [Dkts. 35; 36], and all other relevant filings, the Court recommends Plaintiffs’ Opposed Motion to Supplement the Administrative Record [Dkt. 20] be DENIED without prejudice, Plaintiffs’ Motion for Judgment on the Administrative Record [Dkt. 28] be DENIED , Defendant's Motion for Judgment on the Administrative Record [Dkt. 29] be GRANTED , and Plaintiffs’ claims be DISMISSED WITH PREJUDICE , as set forth herein.
BACKGROUND
Plaintiffs filed their Complaint on November 13, 2019, asserting claims against Defendant under the Individuals with Disabilities Education Act ("IDEA"), the IDEA's implementing regulations, and Section 504 of the Rehabilitation Act of 1973 [Dkt. 1 at 1]. Plaintiffs are the parents of a child hereinafter referred to as "P.H." who, at the time of the filing of the Complaint, was a six-year old child [Dkt. 1 at 1-2]. Plaintiffs state P.H. has been diagnosed with ADHD, generalized anxiety disorder ("GAD"), separation anxiety disorder, and Autism Spectrum Disorder ("ASD") [Dkt. 1 at 1-2]. The administrative record details P.H.’s history of diagnoses; the Full Individual and Initial Evaluation ("FIE"); the first and second Section 504 meeting; the Admission, Review, and Dismissal Committee ("ARDC") meeting; the Independent Educational Evaluation ("IEE"); the due process hearing; and the decision by the Special Education Hearing Officer ("SEHO") [Dkt. 1 at 4-12]. Plaintiffs seek reversal of the SEHO's decision, reimbursement for the cost of the privately obtained IEE, an order directing Defendant to review its FIE and IEE policies, a declaration that Plaintiffs are the prevailing party, and attorneys’ fees and costs [Dkt. 1 at 13].
Plaintiffs’ Child: P.H.
The administrative record is extensive, and the Court strives to include only the relevant facts herein. P.H. enrolled in kindergarten at the beginning of the 2018-2019 school year [AR 198, 201, 206]. P.H. did not attend any kind of pre-kindergarten program before enrolling in kindergarten [AR 266]. Before the school year started, P.H.’s mother shared concerns P.H. would experience separation anxiety and requested P.H. receive services in a general education classroom. In connection with this request, P.H.’s mother informed Defendant about a private evaluation of P.H. that had been performed [AR 686]. More specifically, on February 27, 2018, Plaintiffs obtained a private evaluation of P.H. by Dr. Laura Sanders, Ph.D., LP, a licensed psychologist [AR 448-63]. After the evaluation, Dr. Sanders provided three diagnoses for P.H.: "separation anxiety disorder," "generalized anxiety disorder," and "other specified neurodevelopmental disorder (Autism Spectrum presentation-Provisional)" [AR 462]. P.H.’s mother was instructed that Defendant could not provide special education services until an evaluation was completed by the school district [AR 686].
The Court has considered the entirety of the administrative record in reaching the instant decision; failure to include a fact in the recitation of the factual background should not be interpreted as a finding that the Court found the fact irrelevant and/or did not consider same, merely that the Court made efforts to succinctly state the background herein.
Plaintiffs refer to "separation anxiety disorder" [Dkt. 29 at 8 n.18] in one area but "separation anxiety" in others [Dkt. 29 at 8-9, 11, 29]. Defendant refers to "separation anxiety" [Dkt. 28 at 7].
Multiple professionals employed by Defendant, including a diagnostician and school counselor, observed P.H. at the outset of his kindergarten year performing well at school, describing him as exhibiting no signs of anxiety, "very happy," "social," "very engaged," and "very eager to be at school and very excited to be there" [AR 688-90, 922-27].
The FIE
Plaintiffs requested Defendant conduct a FIE to determine P.H.’s special-education eligibility [AR 686, 690-91]. P.H.’s mother requested an assessment "to determine eligibility for special education and related services under Autism" [AR 472, 690]. Defendant proceeded to conduct the pre-placement FIE for special-education eligibility [AR 198-244, 464-520]. The FIE details how its purpose "is to determine the presence or absence of a disability condition, identify and describe [P.H.’s] strengths and weaknesses, identify [P.H.’s] needs within the educational environment, and provide data that will assist the [ARDC] in its decisions regarding educational programming" [AR 198, 464]. The FIE was conducted by a seven-member multi-disciplinary team: a licensed specialist in school psychology ("LSSP") [AR 779-834], two diagnosticians [AR 198, 238-41, 690-61], a speech language pathologist ("SLP") [AR 727-38], an occupational therapist ("OT") [AR 838-74], a nurse, and P.H.’s kindergarten teacher [AR 742-74]; see also [AR 198-244, 464-520, 691]. The FIE also considered information presented by P.H.’s parent [AR 201-02, 208-09].
The completed FIE report was issued on November 11, 2018 [AR 198]. First, the speech and language component of the FIE concluded P.H. was compliant and followed directions [AR 200, 729-32]. This conclusion was based on the observations of a SLP with nine years of experience who administered a standard assessment for a child of P.H.’s age and observed P.H. "over the course of several testing sessions and ... in the classroom" [AR 200, 727-32]. This same component concluded P.H.’s language skills were developmentally appropriate and there were no observable language deficits [AR 200, 730-732]. Thus, the SLP notes that P.H. "demonstrated appropriate eye contact and social language skills" and concluded P.H. "does not present a Speech Impairment or any deficits that warrant speech therapy at this time" [AR 200, 731-32].
Second, the occupational therapy component of the FIE relied upon an occupational-therapy assessment of P.H. that included multiple observations and several instruments and was conducted by an OT with over twenty years of experience [AR 199, 201-05, 838-39, 841-42]. The OT observed P.H. "across several days and different activities throughout his school day" and noted P.H. "responded appropriately during class instruction and followed directions," "demonstrated an appropriate grip on writing tools," and "did not demonstrate behavioral over reactions, nor wore his headphones during the assembl[y]" [AR 202]. The OT concluded P.H. was a social, well-liked student who communicated effectively [AR 202, 841-42] without signs of anxiety or other behavioral concerns [AR 842-43]. Thus, the occupational-therapy component concluded P.H. did not meet the eligibility criteria for OT or autism-related services [AR 205, 843]. Indeed, this component concluded P.H. "has achieved adequate motor development to control and coordinate movements" [AR 205].
Third, the emotional/behavioral component of the FIE relied upon behavioral assessment systems, completed by an LSSP with over five years of experience in school districts, as well as information from P.H.’s mother and kindergarten teacher [AR 198-99, 209-32, 779-80, 784-85]. The systems completed by the LSSP included (1) Behavior Assessment System for Children (Third Edition)—Structured Developmental History; (2) the Social Responsive Scale (Second Edition); and (3) the Childhood Autism Rating Scale (Second Edition) (CARS) [AR 198-99, 209-32, 784-85]. The LSSP chose these systems "because they give a very good picture of a broad range of behaviors as well as that narrow band" [AR 784-85]. The LSSP also observed P.H. in multiple school settings [AR 209-10, 786]. The LSSP observed P.H. paying attention in class, participating, coloring, smiling, sharing his picture, playing with his pencil, initiating and joining conversation, stapling paper before being redirected, and waiving [AR 209-10]. These observations showed the LSSP that P.H. "was typical among his peers," "was able to participate," "wanted to participate," and "asked questions" [AR 787]. The LSSP addressed anxiety as part of her assessment [AR 206-37, 785, 789-90, 792, 804, 823-24 ("Through the BASC and through your observations, did you address any concern with the parents’ concern that he may have anxiety? Yes")].
The LSSP did not administer the Autism Diagnostic Observation Schedule (Second Edition) ("ADOS-2") [AR 706-07]. The ADOS-2 manual indicates that a school district should not administer the ADOS-2 "within one year and preferably two of the original administration date" [AR 706-07]. Dr. Sanders administered the ADOS-2 in February 2018 [AR 207, 448] within one year of Defendant's evaluations in October of 2018 [AR 198-99, 209]. Moreover, Defendant reviewed Dr. Sanders's evaluation, including specifically the ADOS-2 [AR 207-08]. The LSSP also did not administer the student self-report in connection with the Behavior Assessment System for Children. At the time of the assessment P.H. was five; the self-report requires a minimum age of six or seven [AR 807]. P.H.’s mother, by contrast to the aforementioned, opined P.H. was aggressive, lacked social behavior, displayed tantrums, had trouble separating from parents, displayed difficulty with relating to or playing with other children, and preferred to play alone [AR 208-09].
The emotional/behavioral component of the FIE concluded P.H. did not display significant deficits in social communication and other behaviors in the school setting that would be common in students with autism [AR 237-38, 788-89]. More specifically, the FIE reported:
[P.H.] demonstrates appropriate eye contact, uses joint attention/eye-to-eye gaze to communicate his needs or interact with another individual, and did in engage in jargon, overly formal speech, or echolalia when observed. His teacher additionally reported no concern with his speech in the classroom and noted he has friends, makes friends easily, and almost always communicates effectively in the classroom .... [P.H.] appeared to have typical skills appropriate to his developmental level compared to others in the kindergarten classroom .... Ms. Cole reported [P.H.] has adjusted well to the school environment, transitions easily, and while he likes to know about changes to his routine, she has observed him [to] be able to handle changes without observable anxiety when necessary.
[AR 237]. Thus, the third component concluded, "[P.H.] does not appear to display significant deficits in the areas of social communication and restricted/repetitive behaviors and interests in the school environment" [AR 237].
Fourth, the two diagnosticians conducted the cognitive and adaptive behavior component of the FIE [AR 198, 238-41, 690-91]. This component included the Kaufman Test of Educational Achievement (Third Edition), the Kaufman Assessment Battery for Children (Second Edition) [AR 198, 238-39], and informal observations [AR 239, 694-97]. The diagnosticians concluded that P.H. did not have a learning disability [AR 242, 692]. Specifically, the diagnosticians concluded, "[P.H.] does not appear to display significant deficits in the areas of social-communication and restricted/repetitive behaviors and interests in the school environment" [AR 241].
In sum, the FIE team administered numerous comprehensive tests in accordance with their corresponding instruction manuals [AR 692, 729, 785, 841]. The report ultimately concluded:
At this time, [P.H.] does not appear to meet the eligibility criteria as a student with an autism spectrum disorder. [P.H.’s] teacher reports he demonstrates typical development in social and behavioral skills compared to his same-age peers when observed in the kindergarten classroom and this was evident during observation.
***
Speech therapy services are not indicated at this time. [P.H.] demonstrates age-appropriate expressive language, receptive language, pragmatic language, and articulation. He is able to communicate effectively with adults and peers without direct intervention.
***
Occupational therapy services are not indicated at this time. Services are not recommended because current level of achievement is consistent with other areas of development and deficits do not interfere with the student's ability to function adequately within the school environment.
[P.H.] does not have any cognitive weaknesses and therefore he does not meet criteria as a student with a learning disability.
[AR 241-42]. The FIE recommended to the ARDC that P.H. "does not meet criteria for a specific disability condition" (more specifically, that P.H. did not meet the IDEA criteria as a student with autism, speech impairment, or a specific learning disability) and provided a list of behavioral recommendations [AR 242-43].
The ARDC and Section 504 Meetings
At the ARDC meeting on November 30, 2018, the ARDC reviewed the FIE and determined P.H. did not meet IDEA eligibility for ASD, speech and language, or specific learning disability [AR 245-61]. The ARDC consisted of a diagnostician, OT, LSSP, SPED teacher, general education teacher, SLP, P.H.’s parent, and an administrator [AR 245, 257]. P.H.’s mother "expressed concerned regarding [P.H.]’s anxiety" but also "expressed she is glad we are not seeing any of the things she sees at home in relation to anger, anxiety and defiance" [AR 247, 257]. The ARDC report states, "[t]he diagnostician, SLP, LSSP, and OT explained the [FIE]. Ability and achievement score: shared. [P.H.] does not meet the Texas Education Agency (TEA) definition as a student with Specific Learning Disability, Autism [,] Speech Impairment" [AR 257]. Additionally, P.H.’s "classroom teacher stated that [P.H.] is on grade level. He plays and socializes with his peers. He has not been using headphones to go to the restroom any longer" [AR 257]. The ARDC, including P.H.’s mother, was in consensus that P.H. was not eligible for services under the IDEA, and the attending parties, including P.H.’s parent, signed the ARDC report reflecting their agreement with the result [AR 257-58, 260]. The ARDC report further noted, "[t]he committee explained to mom that she [could] request a 504 meeting to address any further concerns in regards to his outside diagnosis" [AR 259].
In mid-December 2018, Defendant held the first Section 504 meeting attended by P.H.’s mother, the general education teacher, assistant principal, and counselor [AR 510-12]. In the initial Section 504 report, the team reiterated P.H. did not qualify for special education services but otherwise has a physical or mental impairment, as reported by mom, that substantially limits one or more of P.H.’s major life activities [AR 510-12]. The initial Section 504 report further noted P.H.’s mother "reported that he is under the autism spectrum" but noted P.H. "is on target," "is able to function well in the classroom," and "plays with others" [AR 511]. The initial Section 504 report concluded, "[n]o accommodations are needed since he is functioning in the classroom" [AR 511].
Approximately four months later in April 2019, Defendant held a second Section 504 meeting, a "re-evaluation," attended by the general education teacher, central office and student services representative, principal, and counselor [AR 513-17]. This second Section 504 meeting considered Dr. Sanders's report, the FIE, P.H.’s attendance, teacher input, progress monitoring, and parent input [AR 513]. The report noted, "[J.B. recently], did not qualify for sp[ecial] ed[ucation] services—committee determined he did not have an eligibility or an education need at this time" and further that "Mom said she understood [P.H.] did not qualify for Special Education, which was fine" [AR 514]. Upon re-evaluation, the Section 504 committee concluded P.H. will be placed "in regular education with Section 504 accommodations" and "[w]ill continue Section 504 accommodations" [AR 514]. During the second Section 504 meeting, P.H.’s parents refused to complete the meeting and "said it was ridiculous that the committee was saying that [P.H.] did not have a disability and that [P.H.] would not be back at school until they felt it was a safe environment. Parents informed the school they are retaining an attorney" [AR 515]. The committee placed "the meeting on hold to see if the parents [would] return to meet" [AR 515]. Initially, the parents agreed to attend but later canceled [AR 515]. The committee "agreed to meet and send meeting results to parents" [AR 515]. The committee:
[R]eviewed minutes from the last meeting. Committee discussed if [P.H.] qualifies as a student with autism. Both the outside evaluation and our FIE indicated he had a few tendencies of autism, but no diagnosis at this time. Committee agreed he is not a student with autism. Committee also agreed he does not have a specified neurological disorder .... The Committee agreed the student at this time is eligible for 504.
[AR 515].
Plaintiffs later requested an IEE to be paid at public expense [AR 519-20]. See 34 C.F.R. § 300.502(b)(i) (describing the circumstances in which a parent is entitled to an evaluation at public expense). Specifically, P.H.’s mother notified Defendant that she was seeking a reevaluation from an outside source because P.H.’s autism diagnosis was not included [AR 362, 519-20]. In response, Defendant filed on April 24, 2019, a request for a due process hearing against Plaintiffs to establish the FIE was appropriate [AR 3, 29-32, 374-75, 519-20].
The Privately Funded IEE
In May and June 2019—approximately five to six months after completion of the FIE—Plaintiffs personally funded an IEE for P.H., wherein Dr. Jennifer Morrison, Ph.D., LSSP conducted a comprehensive neuropsychological assessment [Dkt. 23-1]. Therein, Dr. Morrison reviewed the initial psychological evaluation completed by Dr. Sanders and the FIE, conducted parental and clinical interviews, and utilized at least the following techniques: (1) Wechsler Preschool and Primary Scale of Intelligence—Fourth Edition (WPPSI-IV)—selected subtests; (2) Weschler Individual Achievement Test—Second Edition (WIAT-III)—kindergarten version; (3) Expressive One Word Vocabulary Test—Fourth Edition (EOWPVT-4); and (4) Receptive One Word Vocabulary Test—Fourth Edition (ROWPVT-4) [Dkt. 23-1 at 3-4]. Dr. Morrison determined "an overall estimate of [P.H.’s] intellectual capabilities was in the average range," P.H.’s "ability to utilize oral expression skills was average," P.H.’s "ability to complete pre-reading tasks ... was in the average range for his age," P.H.’s "math skills were in the average range when completing calculations," and P.H.’s "[a]uditory comprehension and short-term memory were in the high average range" [Dkt. 23-1 at 5-6]. Dr. Morrison noted Defendant's assessments did not include "direct social perceptual assessment using the ADOS-2 or a similar measure ... and did not speak to whether [P.H.] may require individualized educational supports as a student with an Emotional Disturbance" [Dkt. 23-1 at 18]. Dr. Morrison further noted:
Findings from the current evaluation suggested that [P.H.] is a bright young man, but that struggles are present in several academic areas including mastery of letter formation, spelling, and math reasoning.
***
[P.H.] does not appear to exhibit the profile of a child with a specific learning disability currently, but deficits in visual motor and visual tracking portions of his profile will need to be targeted for intervention in order to fully develop more advanced academic processes. He does appear to demonstrate an educational need for individualized educational supports. Regarding social, emotional, and behavioral concerns, this examiner does not believe that [P.H.] presents with an autism spectrum disorder under the clinical DSM-5 criteria and does not believe that he should be classified as having Autism under the Texas Education Agency (TEA) handicapping code criteria.
[Dkt. 23-1 at 18].
Dr. Morrison concluded P.H. should be eligible for special education because he presented with an emotional disturbance ("ED") due to his anxiety [Dkt. 23-1]. Dr. Morrison listed primary clinical diagnoses for separation anxiety disorder of childhood and generalized anxiety disorder, secondary clinical diagnosis for other disorders of psychological development (sensory processing disorder), and tertiary clinical diagnoses for "SUSPECTED—disorder of binocular vision and developmental coordination disorder (visual tracking, visual motor integration)" [Dkt. 21-1 at 20]. Under "educational eligibility," Dr. Morrison concluded "Emotional Disturbance (inappropriate feelings, fears associated with school and personal problems)" including "need for counseling as a related service," "need for occupational therapy as a related service," and "educational deficits in letter formation, handwriting, and math reasoning" [Dkt. 23-1 at 20].
The Due Process Hearing and the SEHO's Decision
Approximately three months after the completion of this IEE, on September 12, 2019, the SEHO held the due process hearing. The witnesses included, among others, the principal, assistant principal, multiple teachers, a special education coach, PE aide, behavioral interventionist, LSSP, diagnosticians, director of SPED, 504 coordinator, occupational therapist, and speech-language pathologist [AR 192-97, 445-47]. The transcript of the hearing spans over four-hundred pages [AR 659-1066].
"[T]he plain language of the IDEA provides that any party aggrieved by the findings and decision of a due process hearing brought pursuant to IDEA ‘shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.’ " E.M. v. Lewisville Indep. Sch. Dist. , No. 4:15-CV-00564, 2018 WL 1510668, at *8 (E.D. Tex. Mar. 27, 2018) (quoting 20 U.S.C. § 1415(i)(2)(A) ); see also 34 C.F.R. § 300.516.
On October 28, 2019, the SEHO issued a decision whereby it determined Defendant's FIE was technically appropriate [AR 1-22]. Therein, the SEHO stated, "[t]he sole issue in this case is whether [Defendant's] Full Individual Evaluation (FIE) was appropriate within the meaning of the IDEA and therefore whether [Plaintiffs] are entitled to an Independent Educational Evaluation (IEE) at school district expense" [AR 1]. More specifically, the SEHO outlined that Plaintiffs raised two issues in the hearing: (1) Defendant "failed to evaluate [P.H.] in all areas of suspected disability, specifically for an emotional disturbance"; and (2) Defendant's "FIE reached an erroneous conclusion that [P.H.] did not meet any IDEA criteria as a student with a disability or exhibit a need for special education" [AR 3].
After outlining the findings of fact [AR 3-12], evaluation criteria [AR 13-15], parental right to IEE [AR 15], and relevant criteria applied to the FIE [AR 15-21], the SEHO concluded "the school district had no reason to suspect [P.H.] was a student with an emotional disturbance and thus no duty under the IDEA to conduct an evaluation to determine his eligibility for services under that classification" [AR 21]. Thus, the SEHO determined Defendant conducted an appropriate FIE "that met all requirements under the IDEA" [AR 21]. Under the category of "assessed in all areas of suspected disability," the SEHO stated, "[t]he record supports the conclusion [P.H.] was assessed in all areas of suspected disability, including health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities" [AR 18]. The SEHO then noted three arguments advanced by Plaintiffs: (1) Defendant "should have conducted another evaluation to determine whether [P.H.] was eligible for special education and related services as a student with an [ED]"; (2) "the OT evaluation was not appropriate because it failed to take into account numerous deficiencies"; and (3) "the school district could and should have chosen other assessment instruments to determine autism eligibility" [AR 18-19]. In response, the SEHO first noted the OT clearly outlined P.H. did not need OT services at school because his motor skills were typical for a kindergarten student or did not interfere with P.H.’s ability to learn [AR 19]. The SEHO second noted the "OT component of the FIE issued a number of activities that could be implemented within the regular kindergarten classroom without the need for OT services" [AR 19]. The SEHO third noted Plaintiffs’ suggestion of other possible autism instruments "is simply a disagreement between professionals" [AR 19]. Specifically, the SEHO stated, "a mere difference of opinion between qualified, knowledgeable professionals as to the choice of instruments used to assess a student for autism does not prove the choices [Defendant] made, in this case, were inappropriate" [AR 18-19]. The SEHO noted Defendant did not evaluate P.H. as a child with an ED [AR 20-21]. But, the SEHO reasoned in relevant part:
The credible evidence demonstrates [Defendant], at the time the FIE was conducted,
had very little reason to suspect [P.H.] might be a student with an [ED]. Despite parental reports and concerns over [P.H.’s] "separation anxiety," the credible evidence showed [P.H.’s] behavior at school during his kindergarten year gave school district staff little reason to suspect [P.H.] was anything other than a typical kindergarten student. The evidence showed that even on the first day of kindergarten there were virtually no signs of "separation anxiety." Student required no special intervention or support from campus staff to exit his mother's car, enter the building, make his way without incident to his kindergarten class, and begin to settle in.
Furthermore, there was also no reason to suspect a reason to evaluate [P.H.] for an [ED] because even if [P.H.] had an emotional issue, the credible evidence showed there was no adverse impact on [P.H.’s] educational performance – by all accounts he progressed through the kindergarten curriculum as expected, meeting all benchmarks, and performing as an average kindergarten student would be expected to be perform.
While it is certainly reasonable to infer from the evidence there were some behavioral challenges at home, the credible evidence also showed that at school, he was happy, sociable, followed directions, participated in learning activities, and interfaced appropriately with both peers and adult staff. None of the campus staff, including his kindergarten teacher or the other professionals assigned to the camps, ever had any behavioral concerns about [P.H.] that suggested an [ED].
[AR 20-21].
The Instant Suit
Less than one month after the SEHO's decision, Plaintiffs filed the instant suit [Dkt. 1]. The Parties thereafter filed competing motions for judgment on the administrative record. Plaintiffs submitted their Motion for Judgment on the Administrative Record on May 5, 2020 [Dkt. 28]. Therein, Plaintiffs request reimbursement in the amount of $4,500.00 for the private IEE they purchased at their own expense [Dkt. 28 at 6]. Defendant submitted a response [Dkt. 32], Plaintiffs submitted a reply [Dkt. 34], and Defendant submitted a sur-reply [Dkt. 36]. Defendant filed its own Motion for Judgment on the Administrative Record on May 5, 2020 [Dkt. 29]. Plaintiffs submitted a response [Dkt. 30], Defendant submitted a reply [Dkt. 33], and Plaintiffs submitted a sur-reply [Dkt. 35]. The Court held a hearing via videoconference on the instant motions to clarify certain positions taken by the Parties in their respective briefing [Dkt. 40]. Because the issues presented by the Motions are overlapping, the Court addresses the Motions for Judgment on the Administrative Record [Dkts. 28; 29] together and deems them ripe for consideration. Boiled down to its essence, the issue before the Court is whether the SEHO correctly determined that Defendant conducted an appropriate FIE and, based upon such finding, whether Plaintiffs are entitled to an IEE at Defendant's expense.
EVIDENCE PRESENTED
Opposed Motion to Supplement the Administrative Record
On March 25, 2020, Plaintiffs filed an Opposed Motion to Supplement the Administrative Record [Dkt. 20] wherein they request to admit P.H.’s Individual Educational Program ("IEP") [Dkt. 20-1] "for the limited purpose of consideration of attorneys’ fees and costs" in the event that Plaintiffs prevail in this matter [Dkt. 20 at 4]. In support, Plaintiffs argue the Court should consider the additional evidence as relevant "should Plaintiffs prevail in this matter" [Dkt. 20 at 4, 6]. Plaintiffs also assert they filed such request to comply with the Court's deadline to submit motions for additional evidence [Dkt. 27 at 2]. Defendant, on the other hand, argues "P.H.’s IEP has no bearing on Plaintiffs’ appeal" and thus is "irrelevant," "premature[,] and not ripe for consideration" [Dkt. 26 at 1]. Thus, Defendant requests the Court deny Plaintiffs’ Opposed Motion to Supplement the Administrative Record [Dkt. 20] without prejudice to refiling in the event Plaintiffs prevail [Dkt. 26 at 3].
Under the IDEA, a court "shall hear additional evidence at the request of a party." 20 U.S.C. § 1415(i)(2)(C)(ii). "The determination of what is ‘additional’ evidence must be left to the discretion of the trial court." E.R. by E.R. v. Spring Branch , 909 F.3d 754, 764 (5th Cir. 2018) (per curiam) (quoting Town of Burlington v. Dep't of Educ. for Mass. , 736 F.2d 773, 790 (1st Cir. 1984) ). In this context, "courts should avoid turning the administrative hearing into a mere dress rehearsal followed by an unrestricted trial de novo. " E.R. by E.R. , 909 F.3d at 764 (quoting Schaffer v Weast , 554 F.3d 470, 476 (4th Cir. 2009) ) (internal quotation marks omitted). The Court agrees with Defendant—at this juncture, P.H.’s IEP is immaterial to the Court's consideration of the Parties’ instant Motions for Judgment on the Administrative Record. Thus, the Court recommends Plaintiffs’ Opposed Motion to Supplement the Administrative Record [Dkt. 20] be DENIED without prejudice.
Administrative Record
The Administrative Record, totaling over one thousand pages, includes:
The Hearing Officer's Decision [AR 1-24];
Pleadings, Orders, and Disclosure Correspondence [AR 25-189];
Petitioner's Exhibits [AR 190-441];
Respondent's Exhibits [AR 442-620];
Transcript of Prehearing Telephone Conference (May 9, 2019) [AR 621-58];
Confidential Neuropsychological Evaluation conducted by Jennifer Morrison, Ph.D., L.S.S.P. (May 22, 2019, and June 5, 2019) [Dkt. 23-1]; and
Transcript of Due Process Hearing (September 12, 2019) [AR 659-1066].
The Court granted Plaintiffs’ Unopposed Motion to Supplement the Administrative Record, which admitted Dkt. 23-1 as a supplement in this proceeding [Dkt. 24].
LEGAL STANDARD
Rather than "second guess the decisions of school officials or to substitute their plans for the education of disabled students with the court's," the judiciary's role in an appeal of the SEHO's determination is "limited to determine whether those officials complied with IDEA." R.H. v. Plano Indep. Sch. Dist. , 607 F.3d 1003, 1011 (5th Cir. 2010) (citing Flour Bluff Indep. Sch. Dist. v. Katherine M. , 91 F.3d 689, 693 (5th Cir. 1996) ). A district court reviews the SEHO's determination "virtually de novo. " Lisa M. v. Leander Indep. Sch. Dist. , 924 F.3d 205, 213 (5th Cir. 2019) (quoting Teague Indep. Sch. Dist. v. Todd L. , 999 F.2d 127, 131 (5th Cir. 1993) ). More specifically, "although the district court is to give due weight to the hearing officer's findings, the court must ultimately reach an independent decision based on a preponderance of the evidence." Id. (quoting Dallas Indep. Sch. Dist. v. Woody , 865 F.3d 303, 309 (5th Cir. 2017) ) (internal quotation marks and alterations omitted). "However, this requirement is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." E.M. , 2018 WL 1510668, at *5 (citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley , 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ) (internal quotation marks omitted).
To reach this independent decision, a court must "receive the records of the administrative proceedings and, basing its decision on the preponderance of the evidence, ... grant such relief as the court determines is appropriate." Lisa M. , 924 F.3d at 213 (quoting 20 U.S.C. § 1415(i)(2)(C) ) (internal quotation marks omitted). And on appeal, a court must consider whether the "student had a present need for special education services, such that the reviewing court should not judge a school district's determination in hindsight." Id. (quoting D. L. by & through J.L. v. Clear Creek Indep. Sch. Dist. , 695 F. App'x 733, 738 (5th Cir. 2017) (per curiam)) (internal quotation marks omitted).
The burden of persuasion is on the party challenging the SEHO's decision. Seth B. ex rel. Donald B. v. Orleans Parish Sch. Bd. , 810 F.3d 961, 972 (5th Cir. 2016) ; see also E.M. , 2018 WL 1510668, at *5. Importantly, because "Congress left the choice of educational policies and methods ... in the hands of state and local school officials, the role of the judiciary under the IDEA is purposefully limited." Seth B. , 810 F.3d at 972 (quoting White ex rel. White v. Ascension Parish Sch. Board , 343 F.3d 373, 377 (5th Cir. 2003) ) (internal quotation marks omitted); see also E.M. , 2018 WL 1510668, at *5.
Overview of the Applicable Law
I. The IDEA
The IDEA seeks "to ensure that all children with disabilities have available to them a free appropriate public education." Seth B. , 810 F.3d at 965 (quoting 20 U.S.C. § 1400(d)(1)(A) ). "The IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education." Lauren C. by and through Tracey K. v. Lewisville Indep. Sch. Dist. , 904 F.3d 363, 377 (5th Cir. 2018) (citing Heather S. v. State of Wisconsin , 125 F.3d 1045, 1055 (7th Cir. 1997) ). "Under the IDEA, a school district ‘shall conduct a [FIE] ... before the initial provision of special education and related services to a child with a disability.’ " Lisa M. , 924 F.3d at 208 (quoting 20 U.S.C. § 1414(a)(1)(A) ). "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.’ " Id. (quoting 20 U.S.C. § 1414(a)(1)(C) ) (alteration in original). In conducting the FIE, a school district must use "a variety of tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining ... whether the child is a child with a disability[.]" 20 U.S.C. § 1414(b)(2)(A)(i). The FIE can also take in consideration "existing evaluation data on the child, including—(i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers[.]" Id. § 1414(c)(1)(A). Moreover, a school district, as part of conducting a FIE, must "ensure that ... the child is assessed in all areas of suspected disability." Id. § 1414(b)(3)(B) ; see also 34 C.F.R. § 300.304(c)(4) ("Each public agency must ensure that ... [t]he child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities[.]").
When a school district completes these "assessments and other evaluation measures," "a team of qualified professionals and the parent of the child" then determines "whether the child is a child with a disability ... and the educational needs of the child[.]" Lisa M. , 924 F.3d at 208-09 (quoting 20 U.S.C. § 1414(b)(4) ). Texas, by statute, has named this team the ARDC. Id. at 209 (citing 19 TEX. ADMIN. CODE § 89.1040(b) ). First, a "child with a disability"—as part of the ARDC's first analysis—is defined under the IDEA as a child: "(i) with [a qualifying disability including] other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services." Lisa M. , 924 F.3d at 215 (quoting 20 U.S.C. § 1401(3)(A) ) (alteration in original). A child must meet both requirements in order to be eligible for IDEA-related services. Id. at 208 (citing 20 U.S.C. §§ 1401(3), 1414(d)(2)(A) ). And making this eligibility determination under the IDEA, the ARDC 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." Id. at 209 (quoting 34 C.F.R. § 300.306(c)(1)(i) ) (alteration in original).
Under certain circumstances, the "IDEA and its implementing regulations also afford the parents of a child with a disability the right to an [IEE] at public expense." Seth B. , 810 F.3d at 965 (citing 20 U.S.C. § 1415(b)(1) ; 34 C.F.R. § 300.502 ). The federal regulation outlining the procedures for obtaining reimbursement states in relevant part:
(b) Parent right to evaluation at public expense.
...
(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either—
(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.
34 C.F.R. § 300.502 ; see also Seth B. , 810 F.3d at 967-68.
II. "Child with a Disability"
Generally, a child must qualify as a "child with a disability" under the IDEA in order to be eligible for IDEA-related services. 20 U.S.C. § 1414(a), (b)(4) ("Determination of eligibility and educational need. Upon completion of the administration of assessments and other evaluation measures—(A) the determination of whether the child is a child with a disability as defined in section 1401(3) of this title and the educational needs of the child shall be made by a team of qualified professionals and the parent of the child in accordance with paragraph (5); and (B) a copy of the evaluation report and the documentation of determination of eligibility shall be given to the parent."). As stated herein, a "child with a disability" is defined under the IDEA as:
[A] child—(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance [ED] (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury
, other health impairments [OHI], or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.
20 U.S.C. § 1401(3)(A) ; see also id. § 1401(3)(B) ("Child aged 3 through 9"); 34 C.F.R. § 300.8(a) (defining a "child with a disability"). The regulations further define the term "emotional disturbance" as follows:
Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
ED is a condition exhibiting certain characteristics over a long period of time and to a marked degree; the Court notes at the time of the instant dispute between Plaintiffs and Defendant, P.H. was a kindergarten student and thus had only recently begun attendance at the district.
34 C.F.R. § 300.8(c)(4)(i). But the fact that a child has a "qualifying disability" does not necessarily render that child eligible for IDEA services. Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F. , 503 F.3d 378, 383 (5th Cir. 2007). The child must also "need[ ] special education and related services" because of the qualifying disability. Lisa M. , 924 F.3d at 215 (quoting 20 U.S.C. § 1401(3)(A) ).
III. Reimbursement for a Privately Funded IEE
Whether P.H. was eligible for IDEA services is not the issue before the Court. Rather, as set forth previously, the principal issue before the Court is whether Plaintiffs are entitled to public reimbursement of their privately funded IEE because Defendant purportedly failed to conduct an appropriate FIE by failing to assess P.H. "in all areas of suspected disability." See 20 U.S.C. § 1414(b)(3)(B) ; 34 C.F.R. § 300.304(c)(4). At the July 30, 2020 hearing, Plaintiffs reaffirmed this is the central issue before the Court [Dkt. 40]. Indeed, as the SEHO stated, "[t]he sole issue in this case is whether [Defendant's] Full Individual Evaluation (FIE) was appropriate within the meaning of the IDEA and therefore whether [Plaintiffs] are entitled to an Independent Educational Evaluation (IEE) at school district expense" [AR 1]. Here, it is undisputed that Defendant filed "a due process complaint to request a hearing to show that its evaluation is appropriate" after Plaintiffs requested an IEE at public expense. See 34 C.F.R. § 300.502(b)(2)(i).
As discussed more fully infra , despite Plaintiffs’ assertion to the contrary, nowhere in the statute is there a requirement that a local education agency assess a child in all eligibility categories. Rather, the statute requires a local education agency to assess a child "in all areas of suspected disability." 20 U.S.C. § 1414(b)(3)(B) (emphasis added). Thus, as the Court has tried to make clear, the relevant inquiry is whether the FIE assessed P.H. in all areas of suspected disability rather than all eligibility categories.
A "local educational agency shall conduct a full and individual initial evaluation [FIE] in accordance with this paragraph and subsection (b), before the initial provision of special education and related services to a child with a disability under this subchapter." 20 U.S.C. § 1414(a)(1)(A). Defendant, as a local education agency who receives federal funding, is thus required to assess P.H., as part of its FIE, "in all areas of suspected disability." See 20 U.S.C. § 1414(b)(3)(B). It is with this framework in mind that the Court analyzes the Parties’ arguments.
During the due process hearing, Plaintiffs specifically mention ED but do not otherwise address a purported OHI [AR 3, 183-85]. At the July 30, 2020 hearing, Plaintiffs concede that OHI was not raised in the due-process hearing. "Before a plaintiff can bring a claim based on the IDEA, he or she must first exhaust their state administrative remedies." J.V. v. Brownsville Indep. Sch. Dist. , No. 1:18-CV-008, 2020 WL 3415747, at *7 (S.D. Tex. June 22, 2020) (citing 20 U.S.C. § 1415(l) ). By failing to raise OHI in the due-process hearing, the argument is not exhausted and thus the Court focuses on Plaintiffs’ assertions related to ED. See C.P. v. Krum Indep. Sch. Dist. , No. 4:13CV63, 2014 WL 4651534, at *12 (E.D. Tex. Sept. 17, 2014) (concluding an issue that was not raised before the SEHO was not exhausted); Novak v. Ennis Indep. Sch. Dist. , No. 3:10-CV-2123-N, 2012 WL 13026966, at *3 n.6 (N.D. Tex. Sept. 11, 2012) (declining to consider arguments not exhausted before the SEHO). Even were the issue exhausted and had the Court considered OHI, the result recommended herein would remain unchanged.
ANALYSIS
Overview of Plaintiffs’ Position
Plaintiffs confirmed at the hearing on the instant motions that they primarily advance three arguments in support of their request for reimbursement in the amount of $4,500.00 for the private IEE purchased at their own expense [Dkt. 40]. First, Plaintiffs contend the SEHO erred in concluding that P.H. did not have a "suspected disability" that necessitated an evaluation for ED and OHI [Dkt. 28 at 22]. Second, Plaintiffs contend the SEHO erred in determining the FIE was comprehensive in scope [Dkts. 28 at 13-14, 17-20, 22-24; 34 at 5-6, 9-12]. Third, Plaintiffs contend the SEHO erred in failing to address the appropriateness of the IEE [Dkts. 28 at 26-28; 34 at 4].
Overview of Defendant's Position
Defendant argues it conducted an appropriate FIE, in compliance with IDEA requirements, by (1) using a variety of assessment tools and strategies; (2) avoiding the use of a single measure or assessment; and (3) using technically sound instruments [Dkt. 29 at 14-16]. Defendant further argues its FIE complied with IDEA additional requirements for conducting evaluations by evaluating P.H. in all areas of suspected disability and identifying P.H.’s educational and special education needs [Dkt. 29 at 16-22].
The SEHO Did Not Err
I. "Suspected Disability"
Plaintiffs argue the SEHO erred in concluding Defendant's FIE was sufficient because it did not assess P.H. for an ED and OHI [Dkt. 28 at 22]. Defendant rejoins that "suspected disability," by its own terms, does not include eligibility categories such as ED and OHI [Dkt. 32 at 9-10]. Thus, Defendant avers it is not required to evaluate for ED and OHI. Rather, Defendant argues it is required to evaluate P.H. for any "suspected disability" [Dkts. 32 at 12-15, 25; 36 at 6].
Defendant also argues it did evaluate P.H.’s anxiety [Dkt. 32 at 16-17, 19-23, 31].
The IDEA does not specifically define "suspected disability." See 20 U.S.C. §§ 1401, 1414(b)(3)(B). Rather, the only reference to "suspected disability" is the statutory mandate that a "local educational agency shall ensure that ... the child is assessed in all areas of suspected disability. " 20 U.S.C. § 1414(b)(3)(B) (emphasis added). By contrast, the statute defines "child with a disability." 20 U.S.C. §§ 1401(3)(A). A "child with a disability" includes a child with a "serious emotional disturbance" or "other health impairments"—i.e. , ED or OHI. Id. Plaintiffs seemingly invite the Court to read "suspected disability" as synonymous with "a child with a disability," thereby imparting a statutory requirement that a local education agency assess every child for an ED or OHI. But such an interpretation is unreasonable for at least three reasons. First, "the absence of any cross reference between the two provisions suggests independence." Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W. , 961 F.3d 781, 792 (5th Cir. 2020). Regulations promulgated under the IDEA further support this reading of the text. For example, every public agency must ensure a "child is assessed in all areas related to the suspected disability , including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities[.]" 34 C.F.R. § 300.304(c)(4) (emphasis added). Crucially, none of these examples of "suspected disability" include ED and OHI, which both fall under the statutory definition of "a child with a suspected disability." Finally, as Defendant aptly points out, a child may have a medically diagnosed disability, but not every disability necessarily falls within the scope of the IDEA as a "qualified [or eligible] disability." Only certain disabilities are eligible for services under the IDEA. See generally 20 U.S.C. § 1401(3)(A) (listing "qualifying disabilities"); Lisa M. , 924 F.3d at 215 (characterizing § 1401(3)(A) as examples of a "qualifying disability"). Thus, "suspected disability" and a "child with a disability" are properly read as distinct. See generally Jones-Herrion v. District of Columbia , No. 18-2828 (RMC), 2019 WL 5086693, at *1 (D.D.C. Oct. 10, 2019) (citing 20 U.S.C. § 1414(a)(1) ) ("The process kicks off when the ‘local education agency’ ... performs an ‘initial evaluation’ to determine if a child has a qualifying disability. ") (emphasis added). Plaintiffs provide no authority or applicable canons of construction warranting a different reading of the IDEA.
As a result, the Court must disregard eligibility categories and instead determine whether the challenged FIE assessed P.H. in all areas of suspected disability. Stated differently, Defendant did not have a duty under the IDEA to specifically assess P.H. for ED or OHI. Rather, Defendant had a duty to evaluate P.H. for any "suspected disability." 20 U.S.C. § 1414(b)(3)(B) ; see also Jaccari J. v. Bd. of Educ. of City of Chicago, Dist. No. 299 , 690 F. Supp. 2d 687, 706 (N.D. Ill. 2010) (concluding the IDEA "does not require testing in every conceivable area of disability" but, instead, requires "assessments in all areas of suspected disability"). "The salient question [therefore] is whether [Defendant] was on notice that the circumstances warranted evaluation." Rosaria M. v. Madison City Bd. of Educ. , 325 F.R.D. 429, 438 (N.D. Ala. 2018) (quoting Phyllene W. v. Huntsville City Bd. of Educ. , 630 F. App'x 917, 924 (11th Cir. 2015) ) (alteration omitted). II. FIE Was Appropriate
Plaintiffs’ arguments seemingly nudge the Court toward deciding whether the ARDC appropriately found P.H. ineligible under the IDEA, as opposed to the appropriateness of the FIE, which is not the issue presented.
To reiterate, a child should be "assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities[.]" 34 C.F.R. § 300.304(c)(4).
Plaintiffs further argue Defendant was required to determine whether P.H. exhibits the symptoms outlined in 34 C.F.R. § 300.8(c)(4)(i) [Dkt. 28 at 14-15]. But here, too, the plain language of the applicable statute and regulation do not support such a contention. See 20 U.S.C. § 1414(b) ; 34 C.F.R. § 300.304. Rather, again, the relevant inquiry is whether Defendant properly evaluated P.H. in all areas of suspected disability. See id. Section 300.8(c)(4)(i) merely defines an ED and lists characteristics indicating an ED. Moreover, the characteristics Plaintiffs point to relate to the definitions the ARDC is required to consider when determining eligibility under the IDEA. See 34 C.F.R. §§ 300.8(c)(1), (4) ; 300.306(a)(1) ("Upon completion of the administration of assessments and other evaluation measures—(1) A group of qualified professionals and the parent of the child determines whether the child is a child with a disability, as defined in § 300.8, in accordance with paragraph (c) of this section and the educational needs of the child[.]"); 300.309(a) ("The group described in § 300.306 may determine that a child has a specific learning disability, as defined in § 300.8(c)(10), if ...."). Questions about the ARDC's determination as to P.H.’s eligibility—a stage that occurs after the initial evaluation—are immaterial to whether Defendant properly evaluated P.H. in all areas of "suspected disability" under the IDEA. Evaluation for "suspected disability" occurs well before the ARDC's determination as to eligibility under the IDEA. Again, the salient question is whether Defendant was on notice that the circumstances warranted evaluation.
Plaintiffs advance the circumstances did warrant evaluation and that the SEHO improperly concluded P.H.’s FIE was comprehensive in scope and complied with the IDEA requirements [Dkt. 28 at 13-14]. More specifically, Plaintiffs articulate four overlapping bases for their contention that the SEHO erred in determining the FIE was appropriate: (1) Defendant failed to assess P.H. for an ED/OHI related to his anxiety; (2) Defendant incorrectly evaluated P.H. in failing to interview him and follow the appropriate evaluation guidelines [Dkts. 28 at 22-24; 34 at 9-10]; (3) Defendant did not conclude P.H. has an ED or OHI even though Defendant had "actual knowledge" of P.H.’s anxiety based on P.H.’s documented behavior [Dkt. 28 at 14, 17] and Dr. Sanders's initial evaluation [Dkt. 34 at 11-12]; and (4) the results of the 504 Meeting (which was held two weeks after the FIE was issued and demonstrated a need for assessment for an ED) [Dkt. 34 at 5-6]. Finally, Plaintiffs argue "the SEHO improperly analyzed the appropriateness of the FIE based on the second prong of the eligibility analysis—educational need" [Dkt. 28 at 20]. Defendant rejoins once more that "suspected disability," by its own terms, does not include eligibility categories such as ED and OHI [Dkt. 32 at 9-10]. Defendant further responds it properly assessed P.H.’s "suspected disability" of anxiety, pointing to its observations in P.H.’s behavior [Dkts. 32 at 16-17, 19-23; 36 at 4, 7] and the shortcomings in Plaintiffs’ supporting documentation [Dkt. 32 at 11-12, 27]. Finally, Defendant responds any evidence after the FIE is irrelevant to whether Defendant was on notice at the time of the FIE [Dkt. 36 at 3-5].
Again, under the IDEA's regulations, a child must be assessed in all areas related to the suspected disability. A district's evaluation is held to a standard of "reasonableness." J.S. v. Shoreline Dist. , 220 F. Supp. 2d 1175 (W.D. Wash. 2002) (quoting Rowley , 458 U.S. at 205-07, 102 S.Ct. 3034 ). "The IDEA does not prescribe substantive goals for an evaluation but provides only that it be ‘reasonably calculated to enable the child to receive educational benefits.’ " Id. "As with all evaluations, the component testing mechanisms must be determined on a case-by-case basis depending on the suspected disability and the student's needs." D.K. v. Abington Sch. Dist. , 696 F.3d 233, 251 n.7 (3d Cir. 2012) (citing 20 U.S.C. § 1414(b)(2)(A)-(C) ; 34 C.F.R. § 300.304(b)(1)-(3) ). Here, Defendant assessed P.H. using a variety of assessment tools and strategies in all areas of suspected disability, including health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. Stated differently, in assessing P.H., Defendant obtained information from multiple sources and included formal and informal observations, rating scales, and assessments; the preponderance of the evidence thus reflects use of a variety of assessment tools and strategies, as well as technically sound instruments. Encompassed therein, the record reflects Defendant evaluated P.H. for anxiety—the diagnosis which largely underlies Plaintiffs’ assertions related to ED and OHI. Plaintiffs’ counsel conceded as much during the due process hearing [AR 676].
P.H.’s mother requested an assessment in order to determine eligibility for services tailored to Autism and sensory disorders [AR 200, 472, 690, 728]. Defendant responded with the pre-placement FIE [AR 198-244, 464-520]. A speech language pathologist then evaluated P.H. for Autism [AR 727-28]. The occupational therapist evaluated P.H. for sensory components of Autism [AR 838-40]. And the LSSP completed the CARS-2 [AR 784-88] as well as reviewed the private evaluation obtained by P.H.’s parents.
Notably, the IEE for which Plaintiffs seek reimbursement, although concluding P.H. has anxiety, stated "the scores in the assessment environment showed that there were low levels of anxiety" [AR 782]. Instead of diagnosing P.H. with anxiety based on the evaluator's observation of anxiety, the evaluator diagnosed P.H. based on Plaintiffs’ own self reporting about P.H.’s purported anxiety [AR 783-784]. The administrative record indicates multiple other professionals did not observe P.H. exhibiting anxiety [AR 206-38, 789, 804]. Similarly, the evaluation team did not note concerns about anxiety [AR 788-89, 792].
P.H.’s FIE had a section dedicated to his emotional and behavioral functioning. The systems employed included Behavior Assessment System for Children (Third Edition)—Structured Developmental History; the Social Responsive Scale (Second Edition); and the Childhood Autism Rating Scale (Second Edition) [AR 198-99, 209-32, 784-85]. The observations of P.H. in various school settings by multiple persons, including the LSSP, showed P.H. paying attention in class, participating, coloring, smiling, sharing his picture, playing with his pencil, initiating and joining conversation, stapling paper before being redirected, and waiving [AR 209-10, 786]. And ultimately, the FIE concluded P.H. had "typical skills appropriate to his developmental level compared to others in the kindergarten classroom" and the ability "to handle changes without observable anxiety when necessary" [AR 237]. In sum, the evaluation in compliance with the requirements of the IDEA contained multiple tests specific to each of the areas identified by Plaintiffs as suspected areas of concern; and, the tests Defendant employed covered discrepant skill sets and probed for indicia of varying disabilities. The multidisciplinary assessment team did not see any signs of anxiety in P.H. giving rise to a need for special education services under the IDEA. See D.K. , 696 F.3d at 251 n.7.
To the extent Plaintiffs assert Defendant's failure to administer additional or other tests renders the FIE lacking, such argument is unavailing. For example, Plaintiffs argue Defendant failed to obtain input or interview P.H. as part of its assessments [Dkt. 28 at 23]. The record indicates the LSSP, for example, did not personally interview P.H. in connection with the Behavior Assessment System for Children; however, the LSSP did not administer the student self-report in connection with this assessment because the self-report requires a minimum age of six or seven, and P.H. was only five at the time the FIE was performed [AR 807-08, 993-94]. Moreover, no authority has been proffered by Plaintiffs that a failure to interview a child, particularly of the age of P.H., renders an FIE inappropriate.
And although Plaintiffs argue Defendant failed to conduct a compliant CARS and/or SRS assessment [Dkt. 28 at 23], their arguments are conclusory and unsupported by the portions of the record they cite. More specifically, Plaintiffs argue Defendant "failed to conduct a compliant CARS assessment following publisher's guidelines as mandated by the IDEA" [Dkt. 28 at 23]. In support, they point to testimony during the underlying due process hearing. But as Defendant aptly points out, the testimony cited does not state Defendant failed to comply with the CARS guidelines [Dkt. 36 at 5-6]. Rather, the testimony expresses concerns about the benefits of CARS as compared to ADOS-2 [AR 959-66]. For example, there are certain aspects of the CARS that do not "directly relate to specific test protocols or elements that would allow you to capture those specific behaviors directly as readily as something like the ADOS-II" [AR 959-60]. There is no evidence of record identified by Plaintiffs reflecting Defendant failed to conduct a compliant CARS and/or SRS assessment.
Plaintiffs more generally contend the FIE lacked sufficient data, and in connection therewith seemingly contend Defendant should have performed again the ADOS-2 assessment. Plaintiffs, thus, take issue with the LSSP's decision to administer the CARS-2 over the ADOS-2. However, as to this point the record reflects nothing more than a professional disagreement about which evaluations are most appropriate [AR 237-38, 959-60, 962, 979]. Moreover, as Defendant points out, the manual indicates that a school district should not administer the ADOS-2 "within one year and preferably two of the original administration date" [AR 706-07]. Dr. Sanders administered the ADOS-2 in February 2018 [AR 207, 448], and the LSSP administered the evaluations approximately eight months later [AR 198-99, 209]—well before the dates prescribed by the manual. And Defendant reviewed Dr. Sander's evaluation, including the ADOS-2 [AR 207-08].
Defendant did not administer a particular assessment because it "cannot be conducted that close together according to the manual," which "indicates that it cannot be administered within one year and preferably two of the original administration date" [AR 706-07]. LSSP Morrison, by contrast, was not aware "that the ADOS itself says that it should not be administered within a year" [AR 979].
"The Court's only proper inquiry is if [Defendant] ultimately violated the IDEA, not to assess whether a better system exists." Amanda P. v. Copperas Cove Indep. Sch. Dist. , No. 6:19-CV-00197-ADA, 2020 WL 1866876, at *6 (W.D. Tex. Apr. 14, 2020) (citing Rowley , 458 U.S. at 206, 102 S.Ct. 3034 ). The Court declines to substitute its own notion of educational policy and procedures in light of this professional disagreement. See E.M. , 2018 WL 1510668, at *5. Moreover, and as already once noted, the FIE did assess P.H. for anxiety and revealed no need for additional assessment [AR 212, 215, 784-85, 789-90, 792, 804]. Further to this point, the record is not, as Plaintiffs contend, replete with behavioral concerns or demonstrations of anxiety at the time of the completion of the FIE; rather, many instances cited by Plaintiffs in support of such contention contain incomplete quotes from the administrative record or data subsequent to completion of the FIE. The preponderance of the evidence in the administrative record indicates that, at the time the FIE was completed, P.H. was a normal student with little to no behavioral concerns in the academic setting; there is no indicia that, at the time of the FIE, P.H. was exhibiting the symptoms and behaviors set forth in the IDEA disability category of ED [AR 697, 717-18, 721, 730-33, 750, 768, 787-88, 881]. Dr. Sanders noted P.H. has sensory sensitivities such as "toilets flushing, loud noises, and smelling items not usually smelled"; exhibits behavior to "control his environment"; "exhibits poor emotional regulation and maladaptive expression of emotions in the home environment"; and "has not had experience in an organized school setting as of yet due to his fear of leaving his mother" [AR 448, 461]. But in the school setting, the school professionals involved in P.H.’s educational advancement did not observe the same behavior. For example, P.H. was observed in the school setting by multiple qualified professionals as "happy and transitioning well," "a typical kindergartner," "very social," and not exhibiting outbursts, meltdowns, or anxiety-related behavior [AR 697, 717-18, 721, 731-32]. Defendant's observations of a need to "provide fidgets for regulation of touch behaviors and increase focus" and "model ways to calm down when angry," for example, do not undermine these numerous and common positive observations in the school setting [AR 508-509]. The SEHO, therefore, did not err when concluding "the credible evidence demonstrates [Defendant], at the time the FIE was conducted, had very little reason to suspect [P.H.] might be a student with an [ED]" [AR 20]. See generally Karrissa G. v. Pocono Mountain Sch. Dist. , No. 3:16-CV-01130, 2017 WL 6311851, at *7 (M.D. Pa. Dec. 11, 2017) (noting, as a general rule, that "courts have failed to construe a student's general anxiety as a disability under the IDEA") (collecting cases).
The Court is unaware of any authority equating anxiety as conclusive evidence of an ED; relatedly, courts have failed to construe a student's general anxiety as a disability under the IDEA. See, e.g., G.D. v. W. Chester Area Sch. Dist. , No. 17-969, 2017 WL 3582230, at *11-12 (E.D. Pa. Aug. 18, 2017) (affirming a hearing officer's decision that an anxiety diagnosis that prevented a student from attending school did not amount to a disability under the IDEA); Maus v. Wappingers Cent. Sch. Dist. , 688 F. Supp. 2d 282, 298 (S.D.N.Y. 2010) (noting that a student who suffered "emotional problems—including difficulties interacting with peers, anxiety, and hyperactivity," did not render the student eligible for services under the IDEA because her conditions did not adversely affect her academic performance).
To the extent Plaintiffs rely on P.H.’s behavior outside of school to support their view of the required scope of evaluation, their arguments fall short of making a persuasive case that the scope of the FIE must be judged with reference to P.H.’s misconduct or behaviors occurring outside of school. See, e.g. , Robert A. Garda, Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Education Act , 69 Mo. L. Rev. 441, 479 (2004) (discussing out-of-school behavior); Escambia Cty. Bd. of Educ. v. Benton , 406 F. Supp. 2d 1248, 1265 (S.D. Ala. 2005) ("[T]he IDEA is focused on provision of a FAPE to disabled children, and is not designed to ameliorate inappropriate behaviors beyond the school environment.").
Plaintiffs also point to P.H.’s Section 504 plan from December 2018 [Dkt. 28 at 18-20] as evidence of Defendant's "notice" of P.H.’s suspected disability of ED. But the Section 504 plan was created one month after the November 2018 FIE. The relevant inquiry, contrary to Plaintiffs’ argument, is whether Defendant was on notice at the time of the FIE. See Lisa M. , 924 F.3d at 214 (quoting D. L. by & through J.L. v. Clear Creek Indep. Sch. Dist. , 695 F. App'x 733, 738 (5th Cir. 2017) (per curiam)) ("[T]he eligibility question on appellate review is whether a student had a ‘present need for special education services,’ such that the reviewing court should not ‘judge a school district's determination in hindsight.’ "). Indeed, a "finding that a student is ineligible" does not "become erroneous because the student later struggles." Id. ("Subsequent events do not determine ex ante reasonableness in the eligibility context."). Further, a student can qualify for services under Section 504 but not under the IDEA. Estate of Lance v. Lewisville Indep. Sch. Dist. , 743 F.3d 982, 991 (5th Cir. 2014) (collecting cases).
Plaintiffs also point to P.H.’s tardiness to support P.H.’s anxiety [Dkts. 28 at 18; 30 at 27]. But P.H. was only late twice for reasons arguably related to anxiety before the FIE was completed on November 11, 2018 [AR 607-19]. Such "truancy" does not rise to the level of showing a genuine emotional disturbance; stated differently, it does not demonstrate a causal relationship between P.H.’s emotional functioning and his attendance. And subsequent absences after completion of the FIE cannot be used to find it unreasonable in hindsight.
Moreover, the Section 504 plan did not recommend accommodations because P.H. was reportedly "functioning in the classroom" [AR 511, 931-33]. P.H.’s kindergarten teacher stated P.H. "can sometimes be overly emotional, but never seems odd, never does strange things, and always shows basic emotions clearly" [AR 486]. At the due process hearing, P.H.’s kindergarten teacher further emphasized that, consistent with her report, P.H "never shows feelings that don't fit the situation" and that "[f]ive year olds are often emotional" but P.H. was not "overly emotional compared to his peers" [AR 764-65]. And although the record indicates P.H. was humming during class, the record also indicates that such behavior was similar to that of other five-year-old children [AR 767, 772]. Similarly, while the record indicates P.H. used "headphones due to the flushing sound" [AR 201], such headphones were utilized sparingly [AR 209, 237, 758, 772-73]. P.H.’s running, drumming, and repeated use of a stapler are comparable to the behavior of other kindergartners [AR 758-61, 820]. Plaintiffs similarly point to information from a parent report [AR 510, 824, 892, 931-33] that is purportedly contrary to what school staff personally observed with P.H. and transitions. Again, P.H.’s behavior was documented as being comparable to other kindergartners [AR 230, 757-58, 787, 818]. There was no concern that P.H. was displaying anger or other abnormal, problematic behavior in the school setting [AR 488-89, 696-97, 717-18, 721, 729-33, 750, 768-69, 781, 786-88, 840, 880-81, 896]. The SEHO considered these arguments and, consistent with this Court's observations, concluded "Student's behavior at school during his kindergarten year gave school district staff little reason to suspect Student was anything other than a typical kindergarten student," his emotions "had no adverse impact on Student's educational performance," and that "at school, he was happy, sociable, followed directions, participated in learning activities, and interfaced appropriately with both peers and adult staff" [AR 20-21]. Plaintiffs’ characterization of the administrative record does not coincide with underlying observations in the record [Dkt. 28 at 18-19].
Next, Plaintiffs argue "the SEHO improperly analyzed the appropriateness of the FIE based on the second prong of the eligibility analysis—educational need" [Dkt. 28 at 20]. The SEHO concluded Defendant had "no reason to suspect a reason to evaluate [P.H.] for an [ED] because even if [P.H.] had an emotional issue, the credible evidence showed there was no adverse impact on [P.H.’s] educational performance" [AR 20]. But the question of whether a child has a qualifying disability is separate from the second prong—whether that child needs IDEA services. See Alvin Indep. Sch. Dist. , 503 F.3d at 383 (explaining that a "qualifying disability" does not necessarily render that child eligible for IDEA services). The SEHO first acknowledged there was no ED but also reasoned that, even if P.H. had an ED, the record reflected such ED had no adverse impact on P.H.’s educational performance [AR 20].
In sum, SEHO did not err when concluding Defendant "had very little reason to suspect P.H. might be a student with an emotional disturbance" at the time of the FIE [AR 20]. The preponderance of the evidence in the administrative record reflects Defendant's FIE complied with the requirements and the additional requirements set forth in the IDEA.
III. SEHO's Failure to Address the Appropriateness of the IEE
Finally, Plaintiffs argue the SEHO erred by failing to address the appropriateness of the IEE [Dkt. 28 at 24-28]. Defendant, in response, contends it must demonstrate its FIE was appropriate—not that the privately funded IEE is appropriate [Dkt. 32 at 29-30].
The SEHO did not err by failing to address the appropriateness of the IEE because there is no such requirement under the IDEA. The relevant regulation regarding the provision of a private IEE at public expense provides that Defendant must either: "(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria." 34 C.F.R. § 300.502(b)(2) (emphasis added); see also Seth B. , 810 F.3d at 967-68. Defendant filed a due process complaint to request a hearing. And at that hearing, the SEHO determined Defendant met its burden of showing the FIE was appropriate. Whether the private evaluation was appropriate, as Plaintiffs contend, is immaterial to whether Plaintiffs are entitled to reimbursement of the private evaluation at public expense under 34 C.F.R. § 300.502(b)(2). The regulation states "or"—not "and." See 34 C.F.R. § 300.502(b)(2). Plaintiffs’ third argument is without merit.
For each of the foregoing reasons, the Court finds that Plaintiffs have not met their burden to establish the SEHO erred.
Plaintiffs argue Defendant "procedurally failed to provide its [IEE] criteria" [Dkt. 28 at 25-27]. But at the time of due process hearing, P.H. was not eligible for services under the IDEA. As such, there is no indication what, if any, provisions of the IDEA or its corresponding regulations would render Defendant with an obligation to provide certain criteria to Plaintiffs. In sum, Plaintiffs have failed to meet their burden to overturn the SEHO's decision. See Z.H. by & through R.H. v. Lewisville Indep. Sch. Dist. , 2015 WL 1384442, at *10 (E.D. Tex. Mar. 24, 2015) ("That Plaintiffs did not agree with the decisions made by the evaluation team ... simply is not enough to sustain their burden in showing [the child] was not assessed in accordance with the IDEA's requirements.").
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the undersigned recommends Plaintiffs’ Opposed Motion to Supplement the Administrative Record [Dkt. 20] be DENIED without prejudice, Plaintiffs’ Motion for Judgment on the Administrative Record [Dkt. 28] be DENIED , Defendant's Motion for Judgment on the Administrative Record [Dkt. 29] be GRANTED , and Plaintiffs’ claims be DISMISSED WITH PREJUDICE .
Within fourteen (14) days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected- to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds , 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).