Opinion
Civ. No. 02-3698 (JNE/JGL).
November 1, 2004
Nancy Blumstein, Esq., Ratwick, Roszak Maloney, P.A., appeared for Plaintiff School Board of Independent School District No. 11, Anoka-Hennepin, Minnesota.
Sonja Kerr, Esq., Kerr Law Office, appeared for Defendant Josh Renollett, by and through his parents and legal guardians, Daniel and Patti Renollett.
ORDER
Independent School District No. 11, Anoka-Hennepin, Minnesota (District) brought this action seeking review of a decision of the second-tier administrative law judge (HRO) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1487 (2000). The case is before the Court on the District's motion for judgment on the record. For the reasons set forth below, the Court grants the motion.
I. INTRODUCTION
A school district that accepts federal funds under the IDEA must provide disabled children within its jurisdiction with a free appropriate public education (FAPE). 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). To provide a FAPE, a school must formulate an individualized education plan (IEP) tailored to the child's needs. See id. § 1400(d)(1)(A). Parents wishing to contest the substance or implementation of their child's IEP may obtain a state administrative due process hearing in front of an independent hearing officer (IHO). See 20 U.S.C. § 1415(f); Minn. Stat. § 125A.09 (2002). During the time period relevant to this case, Minnesota employed a two-tier administrative process wherein a party's due process hearing in front of an IHO was first appealed to an HRO and later to either a federal district court or the state court of appeals. See Minn. Stat. § 125A.09 subd. 6-7 and 9 (repealed May 2003).
As of 2003, a party's appeal from an IHO's decision is directly reviewed by either a federal district court or the state court of appeals. See Minn. Stat. § 125A.091, subd. 24 (Supp. 2004).
II. BACKGROUND
Josh Renollett is a 16-year-old disabled student who suffers from severe oral apraxia/dyspraxia, a mild to moderate mental impairment, and a behavior disorder not otherwise specified. To aid his ability to communicate, Josh uses a device known as the DynaMyte. He lives with his parents within the geographic boundaries of the District. Josh attends school in the District and receives special education services pursuant to the IDEA.In spring 2001, the Renolletts asked the District for a due process hearing to contest Josh's education. As a result, the District and the Renolletts met in May 2001. The parties developed an IEP for Josh at a subsequent meeting on June 18, 2001. This IEP addressed Josh's needs for his upcoming transfer from the District's middle school to the District's high school. Throughout July and August 2001, the parties worked to implement the requirements of the June 18 IEP before Josh began high school on September 4, 2001.
On August 6, 2001, the Renolletts requested that the District reopen the spring 2001 due process hearing. An IHO met with the parties several times before the hearing commenced on October 26, 2001 and concluded on February 14, 2002. The hearing addressed Josh's education from June 18, 2001 through November 7, 2001, which included Josh's first quarter of high school. The IHO issued her report on May 17, 2002, concluding inter alia that the District had provided a FAPE to Josh in all areas except speech and occupational therapy and awarding Josh compensatory education of 150 minutes per week of direct speech services and 30 minutes per week of direct occupational therapy services.
Josh appealed parts of the IHO's decision to an HRO. In reviewing Josh's 14-issue appeal, the HRO adopted all of the IHO's 594 findings of fact, affirmed the IHO as to the District's failure to provide speech and occupational therapy services, reversed 3 of the IHO's conclusions of law, and ultimately concluded that Josh had been denied a FAPE because of procedural as well as substantive violations. As a result, the HRO awarded Josh an additional 700 minutes of compensatory education. The District brought this action seeking review of the HRO's procedural and substantive determinations.
III. DISCUSSION
In a motion for judgment on the record brought pursuant to the IDEA, a district court must review the state administrative record, hear additional evidence if requested, and grant such relief as it deems appropriate based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(B); CJN ex rel. SKN v. Minneapolis Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003). "Although a district court should independently determine whether the child has received a FAPE, it must give `due weight' to agency decision-making." CJN, 323 F.3d at 636. The IDEA requires neither the provision of the best possible education at public expense nor the maximization of the child's potential. Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997). Rather, a school satisfies its obligations under the IDEA if it complies with the statute's procedural requirements and if the IEP is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); CJN, 323 F.3d at 634. The District asserts that the HRO erred in reversing the IHO's rulings relating to both procedural requirements and substantive requirements.
A. Procedural requirements
An IEP's compliance with the procedural requirements of the IDEA is as fundamental to a child's FAPE as meeting the substantive requirements. See Rowley, 458 U.S. at 205-06. Accordingly, a court must scrutinize an IEP to ensure its procedural integrity. See Indep. Sch. Dist. No. 283 v. S.D., 948 F. Supp. 860, 881-82 (D. Minn. 1995) aff'd 88 F.3d 556 (8th Cir. 1996). A student's IEP will not be found to provide an inappropriate education when only de minimus procedural irregularities exist. See id. at 882. The Eighth Circuit Court of Appeals has held that an IEP should be set aside only if "procedural inadequacies compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process, or caused a deprivation of educational benefits." Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th Cir. 1996).
In this case, the District does not dispute the IHO's findings regarding procedural irregularities, her award of compensatory education of 150 minutes for speech and language and 30 minutes for occupational therapy, or her conclusion that Josh was not denied a FAPE. Instead, the District argues that the HRO erred in his additional findings of procedural violations, namely that the District (1) failed to comply with state behavioral emergency intervention rules, (2) failed to provide a transition evaluation and transition services, and (3) failed to provide a written behavioral intervention plan (BIP) as part of Josh's IEP. In addition, the District contests the HRO's ultimate conclusion that Josh was denied a FAPE based on these additional procedural irregularities. For the reasons discussed below, the Court reinstates the IHO's conclusion that Josh was not denied a FAPE.
1. Behavioral intervention rules
Between September 7 and October 31, 2001, Josh had ten significant behavioral incidents. To calm Josh down, his paraprofessionals responded to these incidents with a variety of techniques such as taking Josh to a special room that had been created for him and the use of a weighted blanket. The HRO agreed with the IHO that conditional procedures were not used on Josh during any of these incidents. The HRO, however, ruled that the District violated Minnesota Rule 3525.2900 by failing to meet within five days after the use of emergency interventions. Minnesota Rule 3525.2900 provides in relevant part:
Minnesota Rule 3525.0200, subp. (1)(g) defines conditional procedures as "interventions that meet the definitions of aversive and deprivation procedures which are not prohibited." These procedures include, "(A) the use of manual restraint; (B) the use of mechanical or locked restraints; (C) time out procedures for seclusion; and (D) temporary delay or withdrawal of regularly scheduled meals or water not to exceed 30 minutes expect as provided in subpart 2(a)." Id.
Districts may use conditional procedures in emergencies until the IEP team meets, provided the emergency measures are deemed necessary by the district to protect the individual pupil or others from harm. The IEP team shall meet as soon as possible, but no later than five school days after emergency procedures have commenced.
The District contends that the HRO misconstrued this rule when he concluded that the District failed to comply with its five-day meeting requirement. According to the District, "if the behavioral intervention is not a conditional procedure as defined by statute, it is not a regulated intervention and the . . . procedural requirements (IEP meeting 5 days after conditional procedure is used twice in one month) are not applicable."
The Court agrees with the District. The behavior interventions employed by the District did not rise to the level of conditional procedures. Moreover, the IHO and HRO both found that no conditional procedures had been used: therefore, the emergency-intervention meeting requirement was never invoked. Accordingly, the Court reverses the HRO as to this issue.
2. Transition services/evaluation
Beginning at age 14, the IDEA requires that a disabled student's IEP include a statement of transition services. 20 U.S.C. § 1414(d)(1)(A)(vii)(I); see also Minn. R. 3525.2900, subp. 4 (2004). Transition services are defined as follows:
The term `transition services' means a coordinated set of activities for a student with a disability that —
(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(B) is based upon the individual student's needs, taking into account the student's preferences and interests; and
(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.20 U.S.C. § 1401(30).
The IHO concluded that the District "ensured that a statement of the Student's transition needs was included in the IEP and addressed certain of those needs during the first quarter." The HRO reversed and made an additional finding that Josh had been denied a transition evaluation. In particular, the HRO stated:
[T]he record reflects no documentary evidence to establish that the Student was ever provided with a transition evaluation. Without an evaluation of secondary transition needs the District had no basis for planning appropriate services to meet the Student's transition needs.
Transition services are critical component to the Student's IEP. The District failed to follow the procedures of the IDEA and Minnesota law by not evaluating the Student's transition needs and by not including an appropriate plan for transition services in the Student's IEP.
The District argues that the HRO's findings are not based on the administrative record because the issue of whether Josh received a transition evaluation was never raised before the IHO. As such, the District asserts that it had no opportunity to demonstrate its compliance. Therefore, the District contends that the HRO's determination should be reversed.
After reviewing the record, the Court agrees with the District. "[T]he failure to raise, and to preserve, an issue in the administrative process — absent a demonstration that circumstances warrant a relaxation of the exhaustion requirement . . . constitutes a waiver of such an issue in a subsequent civil action." Moubry v. Indep. Sch. Dist. No. 696, 9 F. Supp. 2d 1086, 1100 (D. Minn. 1998). Here, the record reflects that the IHO neither implicitly nor explicitly addresses whether Josh received a transition evaluation. Moreover, the Renolletts have not demonstrated circumstances that warrant a relaxation of the exhaustion requirement, and the HRO failed to establish that such circumstances existed when he overruled the IHO. Accordingly, the Court will not consider the issue of Josh's transition evaluation because it has been waived.
Furthermore, because the HRO relied significantly on the District's failure to provide a transition evaluation in his determination that the District failed to provide transition services, the Court reverses the HRO on this issue. Accordingly, the Court affords the IHO's conclusions, which were based upon the text of Josh's IEP and the testimony of the paraprofessionals implementing his IEP, their due weight. See Fort Zumwalt Sch. Dist., 119 F.3d 607, 610; Moubry, 9 F. Supp. 2d at 1105 ("A Court may afford greater weight to the fact findings of the [IHO] as opposed to the HRO in view of his opportunity to observe the demeanor of the witnesses and to render believability determinations.") (internal quotations omitted). Therefore, based on a preponderance of the evidence, the Court concludes that the District has demonstrated that Josh's transition needs were appropriately addressed both in his IEP and during the classroom instruction. 3. BIP
With regard to whether Josh's BIP needed to be a written part of his IEP in order to comply with IDEA, the IHO ruled that "[t]he IDEA specifies that an IEP should consider positive behavioral interventions, strategies and supports to address behaviors, but does not expressly require that a behavior intervention plan be made part of a student's IEP." The HRO reversed, holding that "[t]he provision of a behavior plan is a related service just as much as any other related service." In so holding, the HRO relied on several IDEA provisions and supporting regulations. Specifically, the HRO's determination stated:
IEP[s] are to describe both special education and related services. 20 U.S.C. [§] 1401(8). The term "related services" is defined as `transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.' 20 U.S.C. [§] 1410(22)
In the case of a child whose behavior impedes his or her learning or that of others, the IEP team must consider, if appropriate, strategies, including positive behavioral interventions, strategies and supports to address that behavior; and include a statement regarding the particular device or service (including and intervention, accommodation, or other program modification) to be provided. 34 C.F.R. [§] 300.346(a)(2)(i) and (c).
. . . .
Nothing exempts behavior plans from the requirement of being written if it is part of a child's program of education. The Student's behavior plan must be written and attached to the IEP.
The District asserts that there is no requirement either in the IDEA or the Minnesota Statutes that a student's BIP be in writing; instead, it asserts that an IEP team need only consider behavior interventions and other strategies for children with behavioral learning impediments.
The Court agrees with the District and the IHO that, in general, the law does not mandate that a BIP be provided in writing and attached to an IEP. The inherent flexibility of the IDEA requires individualized assessments for each child. 20 U.S.C. § 1400(d)(1)(A). An IEP should reflect those individualized needs in order to provide each covered child with a FAPE. See Fort Zumwalt, 119 F.3d at 612 (noting that the court's analysis of a child's educational program must consider the nature of the student's disability). Here, the parties agreed that a BIP was necessary, they formulated a settlement to create a written BIP by the start of the school year, and Josh's IEP references the BIP. Accordingly, the HRO correctly concluded that a written BIP should have been attached to Josh's IEP. See Larson ex rel. Larson v. Indep. Sch. Dist. No. 361 et al, Civ No. 02-3611 2004 WL 432218, at *10 (D. Minn. March 2, 2004) (holding in part that where a student's behaviors are the sole focus of the IEP, a written BIP should be integrated into the IEP).
That said, the record reflects a plethora of testimony from Josh's educators that the District's failure to provide a BIP did not deny Josh a FAPE. Josh's behavioral incidents are well documented, as are the District's responses to each occurrence. Josh's functional behavioral assessment (FBA) confirmed that the procedures implemented by the District, despite the absence of the BIP, were the appropriate methods of dealing with Josh's behavioral incidents. The record does not reflect that the absence of a BIP in any way compromised Josh's right to an appropriate education or caused him a deprivation of educational benefits. See S.D., 88 F.3d at 562. Thus, giving due weight to agency decision making, the Court concludes that while the absence of a BIP is a procedural error, Josh was not denied a FAPE because of it.
B. Substantive requirements
A state provides a child with a FAPE by affording "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203-04. The instruction and services must meet the state's educational standards, must approximate the grade levels used in the state's regular education, and must comport with the child's IEP. See id. The IDEA, however, does not require that the District either maximize a student's potential or provide the best possible education at public expense. Id. at 203. "As long as a student is benefiting from his education, it is up to the educators to determine the appropriate methodology." Fort Zumwalt, 119 F.3d at 614. Where, as is the case here, there is a conflict between the findings and conclusions of the IHO and the HRO, a court "may choose to credit [IHO's] findings based on observation of the witnesses and reject the [HRO's] analysis if it does not appear to give sufficient weight to the views of the professional educators." Id. at 610.
Turning to whether Josh made progress under his IEP, the IHO found the testimony of the paraprofessionals and District staff to be credible and that Josh made educational progress during the first quarter of school. The HRO, however, found that the testimony of the professionals was not objective enough to be reliable and therefore reversed the IHO. The HRO buttressed his conclusions by pointing to several of Josh's IEP goals, all related to Josh's use of his DynaMyte, as proof that Josh did not make progress. Specifically, the HRO referenced Goal 1 which aspires to have Josh "use his DynaMyte in every class and every situation throughout his entire school day including lunch, recess; electives . . . as well as all mainstream and special ed classes to increase his proficiency from a current inconsistent level to 100% consistency in 70% of all communication opportunities;" Goal 2 which aims to have Josh's "mastery of sight words by at least 100 words;" and Goal 3 which states that Josh "will increase his basic math skills of using the calculator on the DynaMyte from (baseline to be taken first week of school) to an independent level." The HRO concluded that there was an absence of documentation regarding Josh's progress with the DynaMyte in all three goals. In particular, the use of DynaMyte regarding Goal 1 was tracked in the first quarter only from October 30 to November 7, and no baseline reading was ever taken to evaluate Goals 2 and 3. According to the HRO, the District's failure to provide this "objective" evidence with regard to these goals resulted in a denial of a FAPE for Josh. As a result, the IHO awarded 700 minutes of compensatory education.
The Court agrees with the HRO that the absence of a thorough contemporaneous record regarding Josh's baseline and progress is problematic. However, the Court is not persuaded that the HRO gave sufficient weight to the views of Josh's teachers and paraprofessionals. The Court's review of the record reveals that Josh's teachers and paraprofessionals provided detailed testimony as to the progress of Josh, both academically and emotionally. In particular, Josh's progress with regard to his behavioral incidents was dramatic. By the end of the quarter, the behavioral incidents decreased in duration, and Josh's responsiveness to the paraprofessionals improved. With regard to Josh's use of the DynaMyte, the IHO found that the staff respected the parents' requests and did not force or require Josh to use his DynaMyte when he did not wish to use it. Moreover, the record reveals that the District's failure to take baseline readings from Josh's DynaMyte resulted from unforeseen technical difficulties, not from the District's disregard for Josh's needs.
Based on the IHO's first-hand observations and credibility determinations regarding the testimony of the professional educators, the Court credits her findings and conclusions above those of the HRO. See Fort Zumwalt, 119 F.3d at 610. Moreover, given the short time period under review, Josh's newness at the school, and the technical difficulties experienced by the staff in producing data from the DynaMyte, the Court concludes that, based on a preponderance of the evidence, the District has demonstrated that Josh made progress under his IEP. Therefore, giving due weight to agency decision-making, the Court reverses the HRO and the award of 700 additional minutes of compensatory education and reinstates the IHO's conclusion that Josh received a FAPE.
IV. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. The District's motion for judgment on the record [Docket No. 65] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.