United States District Court, D. Alaska
CHAD & SHARRY GRASMICK, on their own and on behalf of A.G., a minor, Plaintiffs,
MATANUSKA SUSITNA BOROUGH SCHOOL DISTRICT, STATE OF ALASKA DEPARTMENT OF EDUCATION, LUCY HOPE, DALE SWEESTER, DON ENOCH, SCOTT DAUGHARTY, Defendants.
TIMOTHY M. BURGESS, District Judge.
Plaintiffs Chad and Sharry Grasmick ("the Grasmicks"), on their own and on behalf of A.G., their minor son, move for summary judgment in this action consolidating their four administrative appeals under the Individuals with Disabilities Education Act ("IDEA"). The Matanuska School District ("the District") opposes this motion. For the reasons stated below, Plaintiff's motion for summary judgment at Docket 93 is DENIED.
The District has been providing special education and related services to AG since he was a small child. AG suffers from dystonia, a progressive neuromuscular disease that makes his muscles spasm painfully; his disabilities are "involved and complex" and affect his ability to communicate. Until the 2008-2009 school year, AG's services were provided in school. The following school year, the Grasmicks went to Pittsburg for AG to receive medical treatment.
When AG returned from Pittsburg, he received homebound placement and Extended School Year ("ESY") services from the District throughout the summer of 2010. During that period, the team tasked with formulating AG's Individualized Educational Program ("IEP") evaluated his changed needs given the time that had passed since they last worked with him; this included observation and evaluation by AG's service providers and formal occupation and physical therapy assessments.
On August 13, 2010, the District held a meeting to learn about AG's needs and "get an update from the people that knew him best, his parents...." The Grasmicks were invited to this meeting but did not attend. On August 31, 2010, the IEP team held a meeting to discuss AG's IEP. The Grasmicks objected to this meeting because they had only recently received the draft IEP; the District agreed to set another meeting date.
On October 14, 2010, the District held another meeting to discuss the implementation of AG's IEP. The Grasmicks were given Prior Written Notice of this meeting on September 23, 2010 and participated in the meeting by phone. During the meeting, Dr. Brandy, one of AG's physicians, told the IEP team that shorter sessions were more appropriate for AG due to fatigue concerns. The Grasmicks then insisted that the District give them Prior Written Notice that the District would hire Maxim Nursing Services to work with AG. When the District did not immediately respond to the Grasmicks' demand, the Grasmicks refused to participate further and ended the phone call.
On October 15, 2010, the IEP team provided the Grasmicks with written notice that they would be implementing the prepared IEP. For language arts or social studies special education, the IEP arranged for 90 minutes of services at home by a special education aide five times per week, 45 minutes at home with supervision by a special education teacher once per week, and additional supervision by, and collaboration with, a teacher outside the home. For math/science special education, the IEP provided for the same services, with the exception that the in-home services by a special education aide five times per week were to last 60 minutes.
The IEP also provided the following services: 90 minutes with a speech pathologist once per week; 120 minutes with a Physical Therapist once per week; 120 minutes with an Occupational Therapist once per week; 90 minutes with an Assistive Technology Specialist twice per month; 90 minutes with a Visually Impaired Teacher twice per month; and 6 hours of nursing services five days per week. In total, AG's IEP provided 750 minutes of special education per week, 420 minutes of related services per week, and 630 minutes of nursing services per week. The implemented IEP differed from the draft IEP because it incorporated the Grasmicks' concerns.
Numerous special education staff members assigned to AG pursuant to the IEP testified about their experiences working with the Grasmicks. For example, Larry Burton ("Burton") was assigned as a homebound special education teacher who testified that working with AG was the most difficult placement in his "30-some-odd years" of teaching. On occasion, the Grasmicks would meet Burton at the door to inform him not to provide services that day because they had a dispute with the District. Burton stated that he would no longer be a part of AG's IEP team because "it's just too unpredictable."
Brenda Kuchenbacher ("Kuchenbacher") served as AG's assistive technology specialist. Kuchenbacher testified that her relationship with AG was damaged by Ms. Grasmick's angry and "emotional response[s]" to her in AG's presence. She also testified that she was considering leaving AG's IEP team because of the unpredictability and difficulty in dealing with Ms. Grasmick.
Naomi Gravdal ("Gravdal") was the physical therapist assigned to provide services under AG's IEP. Gravdal testified that her sessions with AG were often disrupted by Ms. Grasmick expressing her frustrations in a very agitated manner and that it had become a hostile work environment. Gravdal further testified that she had been turned away from the home on multiple occasions, including one time where she was kept standing on the porch for 45 minutes. During one physical therapy session, Ms. Grasmick was expressing her frustrations to Gravdal and ended the session after only 15 minutes. Gravdal testified that the work environment at the Grasmicks' home made her extremely anxious, gave her a "kind of fist feeling in my gut, " and that she was not sure if she would be able to remain on AG's IEP team "if the environment is not able to change." Gravdal explained that her ability to help AG was diminished by Ms. Grasmick, who "seemed to want to absorb our attention with her needs, her agenda, her concerns, during our treatment time."
Jacinda Danner ("Danner") provided vision services for AG and had worked with him since elementary school. Danner testified that she never went to the Grasmicks' home alone because she did not feel comfortable doing so; she said going to the home was so stressful that she considered quitting the team, and that she had been turned away from the home and interrupted by Ms. Grasmick while providing services.
Additional service providers testified in a consistent manner. Lynn Nordlund ("Nordlund"), a special education assistant, testified that the Grasmicks told her not to provide services to AG because they said she was not certified. Nordlund said that although she was willing to again provide services to AG, she was not willing to do so alone at the Grasmicks' home because "it was just verbally abusive." Amy Ippolita ("Ippolita"), a substitute teacher with training in special education, also testified that being in the Grasmicks' home was a "highly charged situation." Dale Sweester ("Sweester"), AG's case manager, testified that multiple staff members left AG's IEP team because of the Grasmicks' behavior and at least one person left the profession entirely.
On February 1, 2011, the District held a training session for AG's IEP team; the meeting was held at the Grasmicks' home per their request. Because of the Grasmicks' behavior and objections to certain members of the staff attending the meeting, it had to be rescheduled for another location with neither the Grasmicks nor AG participating.
On February 25, 2011, Burton and a special education aide visited the Grasmicks' home. Without Burton's consent, the Grasmicks made a recording of the visit and later sought admission of the recording at a hearing. Nevertheless, the Hearing Officer admitted the recording and reviewed it, finding that Ms. Grasmick's testimony regarding the visit was "dramatically different than the recording of the visit itself." Ms. Grasmick testified that she avoided discussing legal issues with Burton, but that he was attempting to entrap her into arguing with him in front of AG. In contrast, the recording depicted Ms. Grasmick giving "lengthy diatribes" about legal issues involving the District and having "numerous emotional outbursts." The Hearing Officer found that any stress AG felt as a result of this visit "was entirely the result of [the Grasmicks'] conduct."
On February 15, 2011, the District emailed the Grasmicks to inform them that a teaching assistant would not be sent to the Grasmicks' home "[d]ue to their refusal to have a non-certified special education staff member provide services to AG." The District noted that other special education staff members would continue to provide related services and that the Grasmicks could inform the District if they wished to resume the teaching assistant services. The Grasmicks replied, stating they did not intend to refuse teaching services by all aides but gave no clear indication that they wanted those services resumed. The District explained that when the Grasmicks told the teaching assistant to leave their home, their actions constituted a refusal of teaching assistant services. On February 25, 2011, the District sent the Grasmicks a services calendar for March and reminded them that the teaching assistant services could resume at their request; the Grasmicks did not respond.
On February 25, 2011, the District brought a due process complaint against the Grasmicks in what became Case 11-04. In its complaint, the District alleged that the Grasmicks "effectively revoked their consent" for the services provided to AG by "exhibit[ing] conduct threatening and inhibiting providers from working with the student within the home, " among other things. The Grasmicks subsequently filed three separate administrative requests for hearings in what became Cases 12-01,  12-02, and 12-05. The consolidated cases before the Court have a lengthy procedural history that will not be recounted here.
II. LEGAL STANDARD
"Children with disabilities are entitled to a free public education, and they are entitled to education designed and tailored to be appropriate to their disabilities...Congress enacted IDEA to ensure that children with disabilities receive a [Free Appropriate Public Education ("FAPE")]." "A child is denied a FAPE only when the procedural violation result[s] in the loss of educational opportunity or seriously infringe[s] the parents' opportunity to participate in the IEP formation process.'" Procedurally, a state educational agency must evaluate a student, determine their eligibility, create an IEP, and determine the appropriate educational placement for the student. A FAPE is satisfied by "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction, " but school districts are required only to provide a "basic floor of opportunity."
When reviewing IDEA administrative decisions, the district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." "Thus, judicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review."
Despite the lower standard of deference, "courts should not substitute their own notions of sound educational policy for those of the school authorities which they review." "When exercising its discretion to determine what weight to give the hearing officer's findings, one criterion we have found useful is to examine the thoroughness of those findings. The amount of deference accorded the hearing officer's findings increases where they are thorough and careful.'" A hearing officer's findings are considered "thorough and careful" when "the officer participates in the questioning of witnesses and writes a decision contain[ing] a complete factual background as well as a discrete ...