United States District Court, D. Alaska
DECISION AND ORDER
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
This
case is an administrative appeal under the Individuals with
Disabilities Education Act
(“IDEA”).[1] Appellant Anchorage School District
(“ASD”) appeals from a Hearing Officer's
decision to require ASD to pay for disabled student
M.G.'s residential placement at Perkins School for the
Blind. ASD's corrected opening brief was filed at Docket
82-1. Appellees filed their brief in opposition at Docket 68;
ASD filed its reply brief at Docket 81. Oral argument was
held on January 31, 2018.[2] For the following reasons, the Hearing
Officer's decision will be affirmed.
STANDARD
OF REVIEW
A
court's review of an IDEA determination “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.”[3] Judicial review is less deferential in
IDEA cases. However, “due weight” must be given
to the administrative decision below and courts must not
“substitute their own notions of sound educational
policy for those of the school authorities which they
review.”[4] A court should base its decision on the
preponderance of the evidence found in the record of the
administrative proceedings and any additional evidence that
supplemented the record.[5]
“In
determining the degree of deference owed to the
administrative findings, this court, in recognition of the
expertise of the administrative agency, must consider the
findings carefully and endeavor to respond to the hearing
officer's resolution of each material
issue.”[6] “After such consideration, the court
is free to accept or reject the findings in part or in
whole.”[7] “The amount of deference accorded
the hearing officer's findings increases where they are
thorough and careful.”[8] “The determinations of a
state agency are entitled to greater deference where . . .
the agency finds that one of its school systems has not
complied with the state's implementation of the
IDEA.”[9]
Judicial
review of a Hearing Officer's decision involves two
steps. “First, the court must determine whether the
rigorous procedural requirements of IDEA have been met.
Second, the court must determine whether the state has met
the substantive component of IDEA-the requirement that the
state provide an ‘appropriate'
education.”[10]
This
Court has jurisdiction under 28 U.S.C. §§ 1331 and
1441 because this is a civil action in which the causes of
action arise under the laws of the United States, primarily
the IDEA.
BACKGROUND
Under
the IDEA, all children with disabilities must have available
to them a free appropriate public education
(“FAPE”) “that emphasizes special education
and related services designed to meet their unique needs and
prepare them for further education, employment, and
independent living.”[11] To achieve this goal, an
individualized education program (“IEP”) is
developed, which addresses the specific and particular needs
of each disabled child.[12]
1.
Factual Background
M.G.
was born in 1999. He was first diagnosed with autism when he
was two-and- a-half years old.[13] M.G. has a severe, nonverbal
intellectual disability.[14] He also has severe gastrointestinal
problems and food allergies.[15]
In
elementary school, it became apparent that M.G. would not be
speaking and needed an alternative way to
communicate.[16] M.G. was introduced to the Dynovox, a
speech communication device that generates speech based on
various photos selected by the user.[17] Throughout M.G.'s
primary education, he successfully used such visual methods
to assist with his learning.[18]
In the
fall of 2014, M.G. began high school at West High School in
Anchorage, Alaska.[19] M.G. had a difficult time with the
transition.[20] In March 2015, M.G. began to poke his
eye with his finger.[21] His mother testified that he was
“screeching, screaming, kind of banging on walls . . .
poking his eye, banging on his head.”[22] On March 24,
2015, ASD conducted a routine distance vision test on M.G.,
which M.G. failed in both eyes.[23] ASD did not inform
M.G.'s parents (“Parents”) of these test
results at that time.[24] M.G.'s mother testified that it
wasn't until the winter of 2016 when she first saw that
vision report.[25]
On
April 16, 2015, M.G.'s IEP team met to update his
IEP.[26] M.G.'s recent failed distance vision
test was not mentioned. M.G.'s April 2015 IEP included
M.G.'s need for visual supports. Parents' comments on
that IEP noted that “[s]upport of [M.G.]'s visual
learning needs through structure and visual supports
(including visual schedules, pictures and his Dynovox) are
necessary and critical for [M.G.] to
learn.”[27]
In
April 2015, M.G. was seen by a pediatric ophthalmologist,
Robert Arnold, M.D. Dr. Arnold did not find anything
apparently wrong with M.G.'s eyes at that
time.[28] But M.G.'s mother testified that
“the eye poking, the head banging, the agitation . . .
continued.”[29] In the summer of 2015, Parents received
reports from M.G.'s summer camp that M.G. was running
into things.[30]
In
August 2015, Parents took M.G. back to Dr. Arnold, who then
determined that M.G. had significant vision field loss. He
diagnosed M.G. with a slow degenerative disease that would
progressively tunnel his vision and eventually lead to near
total blindness.[31] M.G.'s mother promptly informed ASD
staff and requested additional support for M.G. On August 25,
2015, the Blind and Visually Impaired (“BVI”)
teacher at West High School, Victoria Ackerman, recognized
“the importance of getting tactile communication
system/supports in place ASAP while [M.G.] . . . can take
advantage of whatever vision [he] has while he still has
it.”[32] Between September 2015 and January 2016,
Ms. Ackerman provided M.G. a total of 12.5 hours of cane
training and a functional visual assessment.[33]
Meanwhile,
promptly after receiving Dr. Arnold's diagnosis in
August, 2015, M.G.'s mother was concerned that ASD could
not meet M.G's educational needs given his autism and
newly diagnosed, rapidly developing vision loss. M.G.'s
mother began looking for education alternatives for her
son.[34] M.G.'s mother contacted local
service agencies and schools across the country that work
with students with multiple disabilities and vision
loss.[35] She learned Perkins School for the Blind
(“Perkins”) was the only school that served
children with blindness and multiple disabilities, including
severe autism, that had a weekend residential
program.[36]
In
early September 2015, M.G.'s mother contacted Perkins and
placed M.G. on the waitlist for an independent educational
evaluation (“IEE”).[37] In September and October
2015, M.G.'s mother completed the application packet to
enroll M.G. as a student at Perkins.[38] She did not inform ASD
that she had sought to enroll M.G. at Perkins until nearly
one year later in the summer of 2016.[39]
Meanwhile,
in December 2015, M.G. had an eye evaluation under anesthesia
in Denver, Colorado by Robert Enzehauer, M.D., a pediatric
ophthalmologist. Dr. Enzehauer determined that:
retinal function was not the problem, but rather rapidly
progressive optic nerve atrophy. . . . There is no question
that extensive vision rehabilitation services will be most
effective for [M.G.] in the next 1-2 years, before his visual
function is markedly deteriorated even more. The services
that the family are seeking for [M.G.] will require an urgent
combination and sequence of special, interdisciplinary, or
generic assistance, supports or other services that are
individually planned and coordinated. Without such aggressive
and coordinated behavior and vision rehabilitation services,
[M.G.]'s risk of being institutionalized is greatly
increased.[40]
Upon
the request of Parents, ASD agreed to pay for the IEE at
Perkins on January 29, 2016.[41] In March 2016, M.G. and
Parents travelled to Perkins for M.G.'s
IEE.[42] The visit also included an admission
tour apparently unbeknownst to ASD at that
time.[43] Perkins' evaluation was finalized
and sent to ASD on May 18, 2016.[44] It totaled 71 pages and
included reports from a school psychologist, a teacher of
students with visual impairments, a speech-language
pathologist, an occupational therapist, an orientation and
mobility specialist, a work activities teacher, a board
certified behavioral analyst, and a home and personal
management teacher.[45] The reports are silent on residential
placement; rather, the IEE appears aimed at providing ASD
with recommendations for educational programming for M.G. at
home and at an in-district school.[46]
On
April 28, 2016, M.G.'s IEP team met to update M.G.'s
IEP.[47] The IEP team meetings included Parents,
M.G.'s special education teacher, the general education
teacher, an ASD representative, the speech/language
pathologist, the occupational therapist, the adaptive
physical education teacher, the BVI teacher, the department
chair, the assistive technologist, counsel for Parents, and
counsel for ASD.[48] The IEP team did not finalize an IEP at
the April 28th meeting but met again on May 11, 2016 and on
May 18, 2016.[49] At the May 18th meeting, the IEP team
had not yet received the Perkins' evaluation. However, at
the end of the two hour meeting, the IEP was signed by all
participants.[50] The May 2016 IEP provides that
“[t]he nature and severity of [M.G.]'s disability
justifies residential placement as the least restrictive
environment. The location will be administratively
determined.”[51]
Based
on the May 18, 2016 IEP meeting, on May 24, 2016, ASD issued
a Notice of Requirements and Procedural Safeguards. The
notice referenced the “attached IEP” and states
that “[t]he district will implement [M.G.]'s IEP,
which includes a change of placement to residential
treatment.”[52] The notice states that the change to
residential treatment was based on “parental
request” and “an annual review.” It further
provides “[t]he team considered not changing placement
to residential treatment, however, this was rejected due to
the nature and severity of [M.G.]'s disability. . . . The
team reached full consensus on residential placement. The
location of residential treatment will be administratively
determined.”[53]
On June
8, 2016, the parties met again in an effort to determine the
appropriate residential placement. M.G.'s mother provided
information on various schools, including Washington State
School for the Blind, Maryland School for the Blind, Perkins
School for the Blind, Texas School for the Blind and Visually
Impaired, and Florida School for the Deaf and
Blind.[54] M.G.'s mother testified that ASD did
not bring information to the meeting regarding any
residential placement options; nor did ASD provide any
proposals for residential placement at the June 2016
meeting.[55] Of the schools considered, M.G.'s
mother stated Washington State School for the Blind did
“not have services available to meet the needs of a BVI
student with classic autism.”[56] Florida School for the
Deaf and Blind and Texas School for the Blind served only
in-state residents. Maryland School for the Blind did not
provide any services on the weekends, meaning M.G. would need
to leave the school and live at a group home on the weekends.
At the meeting, team members discussed how it would be very
difficult for M.G. to transition every weekend to a group
home.[57] Perkins was identified as the only
school with a weekend program and the ability to serve
severely autistic/visually-impaired students with appropriate
full-time related services.[58] M.G.'s mother testified
that by the end of the meeting, she believed the team had
reached a consensus on M.G.'s residential placement at
Perkins.[59] On July 29, 2016, Perkins sent a letter
to ASD “confirm[ing] that Perkins is able to offer a
program to [M.G.]”[60]
On
August 11, 2016, ASD issued a PWN that informed Parents that
it had “considered and has rejected parents'
immediate request of Perkins School for the Blind without
further mediated discussion.” ASD listed the following
concerns with Perkins: Perkins rarely transitions students
back to their home school districts; Perkins is not a
Medicaid enrolled facility; it is the farthest placement from
M.G.'s home; and Perkins' tuition
“substantially exceeds any other residential placement
cost for district students.”[61]The PWN did not propose an
alternative residential placement for M.G. Rather, it
proposed mediation during the week of August 15th “to
collaboratively select a setting for [M.G.]'s residential
placement.”[62] Parents declined the proposal to
mediate.[63]
On
August 18, 2016, shortly before the start of the fall
semester, ASD issued a second PWN, requesting that Parents
reconsider mediation “before [M.G.] is admitted to the
mutually selected residential setting[.]”[64] The PWN also
proposed providing 10 hours weekly of homebound services in
the weeks before admission. Parents declined the
proposal.[65] M.G. did not return to West High
School.[66]
On
September 2, 2016, ASD issued another PWN that proposed three
actions: (1) complete an application to Arizona School for
the Deaf and Blind to determine if M.G. was eligible to
attend that school; (2) collaborate with Parents and the ARC
program to provide applied behavioral analysis services; and
(3) hire special education consultant Jennifer White to
assist the parties in completing M.G.'s Evaluation and
Summary and Eligibility Report (“ESER”) and IEP
based on the Perkins Evaluation.[67] Parents testified that
they completed an application to Arizona School for the
Blind, but the school “formally declined to offer
admission to [M.G.]”[68]
The
parties met to discuss residential settings for M.G. on
October 12, 2016. The meeting was unsuccessful.[69] On October
18, 2016, Parents wrote a lengthy letter to ASD, informing
the district of their intent to unilaterally withdraw M.G.
from ASD and enroll him at Perkins.[70] On October 24, 2016, ASD
made a settlement proposal to Parents to pay for M.G.'s
attendance at Perkins from approximately November 1, 2016
through May 14, 2017.[71] ASD's proposal provided
“[f]or the first four weeks of M.G.'s attendance at
Perkins, Perkins will implement M.G.'s May 2016
IEP.”[72] Parents did not accept this proposal
because there was no spot for M.G. at Perkins at that time,
among other concerns.[73] On October 25, 2016, ASD issued a PWN
seeking an immediate evaluation of M.G. prior to his
withdrawal from the district.[74] ASD indicated that it rejected
“placement of [M.G.] without completion of the
evaluation to determine his current baseline prior to his
admission to Perkins.”[75] The only evaluation sought by
ASD at that time was a Functional Behavioral Assessment
(“FBA”).[76] ASD brought special education consultant
Jennifer White to Anchorage to perform the evaluation, which
took place with Parents' consent for five hours over two
days in late October.[77] Ms. White concluded that
“[M.G.] would benefit from intensive programming”
but that the “enormous adjustments [required for an out
of state residential placement] is
worrisome.”[78] Instead, contrary to the May 2016 IEP,
she opined that “it would be markedly more beneficial
to bring services to [M.G.]'s hometown” and
“Perkins could provide ongoing consultation to this
team as needed.”[79]
On
November 6, 2017, ASD requested additional
evaluations.[80] The request included a proposed schedule
of evaluations to begin on November 17, 2016 and invitations
to an ESER meeting on December 14, 2016 and an IEP
Development/Review meeting on December 16,
2016.[81] Parents responded by requesting that ASD
provide a PWN that explained why the additional evaluations
were necessary and for what purpose.[82] ASD did not file a PWN in
response to that request; no additional evaluations were
performed; and no ESER or IEP meetings were held in December
2016.
M.G.
began attending Perkins on May 1, 2017, which is when a spot
became available for him there.[83]
2.
Procedural Background
On
January 17, 2017, Parents filed a due process hearing request
with the Alaska Department of Education and Early
Development. They asserted two claims: (1) ASD failed to
timely implement M.G.'s IEP by not selecting an
appropriate residential placement for him; and (2) ASD failed
to provide a FAPE to M.G. in a timely manner. Parents
requested that ASD be required to pay for M.G.'s tuition
at Perkins as well as any additional costs associated with
his admission.[84]
Hearing
Officer Sheila Gallagher issued two pre-hearing orders that
are at issue in this appeal. First, on March 3, 2017, ASD
filed a Motion for Order to Continue
Evaluations.[85] Officer Gallagher denied ASD's
motion, finding that “[t]he delay and necessity of
these additional evaluations has not been sufficiently
explained. The[re] appears to have been ample opportunity for
the district to request and perform the evaluations prior to
this latest request.”[86]
Second,
Officer Gallagher granted Parents' motion in
limine to exclude Jennifer White's opinion that an
out-of-state residential placement was not appropriate for
M.G.[87]The Hearing Officer struck the summary
and recommendations portion of Ms. White's report and did
not permit testimony on that topic by Ms.
White.[88]
After a
ten-day due process hearing, Officer Gallagher issued a
written order on May 30, 2017. She held that Parents had
“met the burden that the ASD failed to implement
student's IEP in a timely manner by not selecting a
‘safe and appropriate residential
placement.'”[89] The Hearing Officer ordered ASD to
pay for M.G.'s education at Perkins from the period from
May 1, 2017 through February 17, 2018.[90] She also
directed the parties to determine by February 17, 2018
whether M.G. would be ready to return to ASD or would benefit
from additional time at Perkins.[91]
On June
30, 2017, ASD appealed to the Alaska Superior
Court.[92] Parents removed the appeal to this Court
on July 12, 2017.[93] On appeal, ASD asserts that the Hearing
Officer committed the following four errors: (1) concluding
that ASD failed to implement M.G.'s May 2016 IEP in a
timely manner, which ASD characterizes as a draft IEP only;
(2) denying ASD's Motion to Continue Evaluations; (3)
excluding portions of the expert report and testimony of
Jennifer White; and (4) failing to apply the applicable law
to Parents' unilateral placement of M.G. at
Perkins.[94]
DISCUSSION
1.
Implementation of May 2016 IEP
ASD
first asserts that “[t]he Hearing Officer erred when
she concluded that ASD failed to implement M.G.'s May
2016 Draft IEP in a timely manner.”[95] ASD maintains
that the Hearing Officer “erroneously treated
M.G.'s May 2016 Draft IEP and its accompanying PWN as a
completed IEP over ASD's objection.”[96] Parents
respond that any argument that the May 2016 IEP is not valid
has been waived, and that “[b]oth parties have
consistently treated the May 2016 IEP as a valid, binding
IEP[.]”[97]
Generally,
a court “will not review challenges to agency action
raised for the first time on appeal.”[98] Parents
assert that “[a]t no time before ASD filed its appeal
with the state superior court did ASD take the position that
M.G.'s May 2016 IEP was not valid and binding on ASD
because it was not ‘final.'”[99] Because, as
discussed below, the Court finds that the May 2016 IEP was
legally enforceable as to a residential placement for M.G.,
the Court need not address whether this argument was waived.
The
Hearing Officer found that the May 2016 IEP was binding on
the parties with respect to the residential placement
determination for M.G.[100] Prior to the hearing, the Hearing
Officer issued an order, stating that “the issue of a
residential placement was determined by the IEP team. . . .
[T]he issues of which of these schools, including Perkins. .
. . is on the table for decision at the
hearing.”[101]
M.G.'s
May 2016 IEP provides “[t]he nature and severity of
[M.G.]'s disability justifies residential placement as
the least restrictive environment. The location will be
administratively determined.”[102] The May 2016 IEP was
signed by the entire IEP team.[103] The notice issued on
May 24, 2016, shortly after the May 2016 IEP meeting,
describes the document as “the attached IEP.” The
notice also informs Parents that “the written notice
includes the IEP, ” and that “[t]he district will
implement [M.G.]'s IEP, which includes a change of
placement to residential treatment.” The notice further
provides:
The team considered not changing placement to residential
treatment, however, this was rejected due to the nature and
severity of [M.G.]'s disability. . . . The team reached
full consensus on residential placement. The location of
residential treatment will be administratively
determined.”[104]
It is
clear from the record that the May 2016 IEP was a binding
determination of residential placement for M.G. as determined
by the IEP team. At the due process hearing, ASD's Senior
Director of Special Education, Cindy Anderson, acknowledged
the binding nature of the May 2016 IEP.[105]
ASD
asserts that the May 2016 IEP did not “include a
statement of present level functioning” and therefore
“cannot serve as a final IEP.”[106] However,
upon review of the May 2016 IEP, it is apparent from the
lengthy discussion regarding M.G.'s visual impairment
found under the “Present Levels of Academic Achievement
and Functional Performance” that the IEP team
considered M.G.'s visual impairment and updated his IEP
to include present level functioning regarding his visual
impairment.[107] Although the IEP team did not have the
benefit of the Perkins evaluation in updating M.G.'s IEP,
it appears that it was not necessary for the team to
determine that M.G. needed residential placement. The IEP
team addressed M.G.'s present levels for his vision based
on recent medical reports given by Dr. Enzehauer dated
December 2, 2015 and Dr. Arnold dated August 19,
2015.[108] The May 2016 IEP adequately addressed
M.G.'s present level functioning.
ASD
also maintains that the May 2016 IEP is not valid because it
does not specify the location for residential
placement.[109] 20 U.S.C. § 1414(d)(1)(A)(i)(VII)
provides that an IEP must include “the projected date
for the beginning of the services and modifications . . . and
the anticipated frequency, location, and duration of those
services and modifications[.]”
ASD
cites to a Fourth Circuit case, A.K. ex rel. J.K. v.
Alexandria City School Board in support.[110] In
A.K., the parents enrolled their child in a
residential school in Massachusetts and the public school
district agreed at that time to fund the portion of tuition
equivalent to private day school placement. The IEP team met
to update the student's IEP for the following year and
the district proposed that the student attend a private day
school; the parents objected. The IEP listed the child's
placement as “Private Day School.” The parents
refused to sign the IEP. The school district then proposed
two specific private day schools, but the parents determined
that neither school would serve the student's particular
needs. The parents elected to keep the child at the
residential school. They requested a due process hearing,
seeking reimbursement for the tuition at the residential
school on the ground that the district had failed to provide
a FAPE and the residential school was an appropriate
placement. The trial court granted summary judgment to the
school district.
On
appeal, the Fourth Circuit reversed and remanded. It noted
that the IDEA requires an IEP to specify the location at
which services will be provided.[111] The Circuit Court held
that the IEP's failure to identify a particular day
school meant “the IEP was not reasonably calculated to
enable [the student] to receive educational
benefits.”[112] The Fourth Circuit discussed how the
parents had agreed that an appropriate private school could
provide a FAPE, but at the IEP meeting no such school had yet
been identified and the parties were unaware whether such a
school even existed. The parents maintained that the two day
schools suggested during the IEP meeting could not provide
for the student's specialized needs. The Fourth Circuit
emphasized “we do not hold today that a school district
could never offer a FAPE without identifying a particular
location at which the special education services are expected
to be provided.”[113] But at least in the Fourth Circuit,
when a district proposes to move a student to a less
restrictive setting-i.e. from a residential to a day
school-A.K. holds that an appropriate location
should be ascertained. Here, in contrast, the IEP team all
agreed that M.G. needed a more restrictive setting-a
residential placement-to meet his specialized needs.
In
Rachel H. v. Department of Education Hawaii, the
Ninth Circuit interpreted the meaning of
“location” under the IDEA.[114] In
Rachel H., the school district offered to implement
the student's IEP “on a public school
campus.”[115] The precise school was not identified;
however, the parties all understood “a public school
campus” to mean a particular high school near the
student's home. The father later informed the school
district that the family was moving and the original high
school was too far away. The district requested the
student's new address in order to determine which public
school would be appropriate, but the father did not provide
this information despite numerous inquiries by the school
district. The father then enrolled his daughter in a private
school and requested a due process hearing, arguing that the
failure to include the specific school in the IEP denied the
student a FAPE. The district court ruled for the school
district, “reasoning that an IEP need not necessarily
identify a specific school where it would be implemented to
comply with the IDEA.”[116]
On
appeal, the Ninth Circuit affirmed. It analyzed the meaning
of “location” and discussed that shortly after
the location requirement was added to the IDEA, the United
States Department of Education had clarified that
“location means the general setting in which [special
education] services will be provided and not a particular
school or facility” and the location of services as it
relates to the IEP “generally refers to the type of
environment that is the appropriate place for provision of
the service.”[117] The Circuit noted that
“knowledge of a particular school, classroom, or
teacher may well be relevant to allowing parents to
participate meaningfully in the IEP process” and that
failing to identify a school could result in a denial of a
FAPE, particularly when the parents need the information to
evaluate “whether a proposed IEP satisfies the IDEA
because of a particular special education need caused by a
child's disability.”[118] However, the Circuit
held “an educational agency does not commit a per se
violation of the IDEA by not specifying the anticipated
school where special education services will be delivered
within a child's IEP.”[119] The Circuit held that
Rachel H.'s IEP was valid even though it did not specify
a particular high school because had the father provided the
school district with the student's new address, the
student would have had a public school to attend, which would
have provided the student with a FAPE.
In this
case, the May 2016 IEP did not specify a particular school
for M.G, but there was unanimous consensus, including
Parents, that “[t]he nature and severity of
[M.G.]'s disability justifies residential placement as
the least restrictive environment.” There was also
unanimous consensus that “the location [would] be
administratively determined.”[120]At the time of the May
2016 IEP meeting, the parties were all aware that M.G. had
been evaluated at Perkins and that Perkins was a potential
residential placement for M.G. Moreover, at the subsequent
June 2016 IEP team meeting, the team discussed several
residential schools as possible placements, including
Perkins.[121] Here, the May 2016 IEP is valid
because it clearly identified the type of environment in
which special education services would be provided to M.G.-a
residential placement.
For the
foregoing reasons, the Court finds that the May 2016 IEP was
enforceable insofar as it specified a residential placement
for M.G.[122] Because a residential placement was
not effectuated until May 2017, the Hearing Officer did not
err in finding that ASD failed to implement M.G.'s May
2016 IEP in a timely manner.
2.
Precluding Further Evaluations of M.G.
ASD
next asserts that “[t]he Hearing Officer erred by
barring ASD from updating M.G.'s ESER and IEP with
present-level baseline data to determine his current adaptive
and behavioral needs.”[123] ASD maintains that the
Hearing Officer failed to consider the “specific right
of a school district to conduct evaluations upon notice of
parents' intent to unilaterally place [the student] in
private school.”[124] Parents respond that
“[f]urther evaluations were not appropriate because the
results of any such evaluation would have no bearing on the
claims Parents raised in their due process
complaint.”[125]
The
Hearing Officer denied ASD's prehearing Motion to
Continue Evaluations, finding the following:
The delay and necessity of these additional evaluations has
not been sufficiently explained. The[re] appears to have been
ample opportunity for the district to request and perform the
evaluations prior to this latest request. The reluctance of
the [] mother to go forward with the additional evaluations
is troubling but the IEP team had agreed on the residential
placement in June 2016. That is what is being considered at
this hearing. Any additional evaluations will undoubtedly
delay the proceeding and it is essential that a decision
either way is issued so that the student's educational
plans can move forward.[126]
The
Hearing Officer's decision that ASD failed to timely
implement M.G.'s IEP also addressed the district's
evaluations:
ASD had had multiple opportunities to evaluate student prior
to the fall of 2016 and immediately prior to the hearing.
They had not evaluated him after their own staff found that
he had failed a vision test in March 2015. They did not even
inform parents so that they could have had him evaluated.
They did not do an evaluation of student after they were
supplied with the report of Dr. Arnold although Ms. Ackerman
did from August of 2016 to April of 2017 a running evaluation
of student although she did not inform parents of what she
found until[] the IEP meeting in the spring of 2016. The IEP
team did not suggest or request additional evaluations prior
to the recommendation of the residential
placement.[127]
The
Seventh Circuit case cited by ASD, Patricia P. v. Board
of Education of Oak Park, does not support
ASD's argument.[128] In Patricia P., the
student's elementary school and school district conducted
a two-day evaluation of the student and concluded that the
student should be placed in a behavior disorder resource
program. The student's mother disagreed and unilaterally
enrolled her son in a residential special education school.
She did not make her son available for an evaluation by the
school district. The mother then sought reimbursement for the
tuition under the IDEA. The Seventh Circuit held that
“parents who, because of their failure to cooperate, do
not allow a school district a reasonable opportunity to
evaluate their disabled child, forfeit their claim for
reimbursement for a unilateral private
placement.”[129] Because the mother had not cooperated
with the school district in making her son available for
evaluation and because she unilaterally placed the student in
a residential school, the Seventh Circuit held she was not
entitled to tuition reimbursement by the school district.
Here,
Parents are not seeking tuition reimbursement from ASD.
Although the October 18, 2016 letter Parents sent to ASD
provides that they intend to withdraw M.G. from school and
unilaterally place him at Perkins, M.G. did not actually
begin attending Perkins until May 1, 2017.[130] Parents
did not seek tuition reimbursement at the due process hearing
and instead sought an order requiring ASD to pay the cost of
M.G.'s tuition beginning May 1, 2017.[131] The
Hearing Officer granted Parents' request on May 30, 2017.
Therefore, whether Parents are entitled to reimbursement is
not at issue because they did not incur tuition expenses for
M.G.'s education at Perkins.[132]
The
Court also agrees with the Hearing Officer's finding that
ASD had ample opportunities to evaluate M.G. ASD first
learned of M.G.'s visual impairment in March 2015 and
learned of the seriousness of the impairment after Dr.
Arnold's diagnosis in August 2015.[133] However,
ASD did not itself conduct evaluations during the entire
2015-2016 school year, apart from the functional vision
assessment by the BVI teacher in the fall of
2015.[134] It was not until after Parents gave
notification of their withdrawal of M.G. from ASD that the
district requested evaluations of M.G in October
2016.[135] Parents promptly consented to the FBA
evaluation in October. But ASD then requested far more
extensive evaluations and did not provide justification or a
PWN explaining why those additional evaluations were
necessary.[136]
ASD
asserts it sought the additional evaluations in order
“to make appropriate recommendations to the Hearing
Officer about an in-district placement.”[137] However,
an in-district placement would have been at odds with the May
2016 IEP, which specified residential placement. An IEP is
“like a contract”; it is “a binding
commitment” that “may not be changed
unilaterally.”[138] If ASD sought to amend the May 2016
IEP to an in-district placement, it needed to seek the
consent from Parents to do so.[139] “Absent such
consent, the District was bound by the IEP as written unless
it sought to re-open the IEP process and proposed a different
IEP.”[140] ASD did not follow these procedural
steps. Therefore, further evaluations to support an
in-district placement were unwarranted in March 2017.
Accordingly, the Hearing Officer did not err in barring ASD
from obtaining further evaluations of M.G.
3.
Excluding Jennifer White's Recommendation
ASD
maintains that “[t]he Hearing Officer erred when she
prevented ASD from presenting expert testimony that it could
provide for M.G.'s educational needs in an
individually-designed in-district
placement.”[141] Parents respond that “Officer
Gallagher correctly ruled that the District should not be
allowed to contradict the IEP's call for residential
placement.”[142]
ASD
retained Jennifer White, a special education consultant, who
conducted an evaluation of M.G. in October 2016 based on five
hours of observation of M.G. Parents moved to exclude
“the District from arguing, or taking testimony from
Ms. White and any other witnesses . . . that M.G. does not
need a residential placement.”[143]
The
Hearing Officer discussed the motion on the record. She noted
that most of Ms. White's report discussed information
that was already introduced into evidence and Parents only
objected to the summary and recommendations
section.[144] She struck that section of the
report.[145] It is somewhat unclear from the record
the Hearing Officer's reasoning for granting the motion.
Nonetheless, the IEP team had all agreed that residential
placement was appropriate for M.G. and Parents had not
questioned that determination in their due process complaint.
As discussed above, the May 2016 IEP residential placement
determination was binding on the parties. Accordingly, the
Hearing Officer did not err in granting the motion in
limine to exclude Ms. White's opinion that
residential placement for M.G. was not
appropriate.[146] Such evidence would not have been
relevant in light of the May 2016 IEP.[147]
4.
Finding Perkins to be an Appropriate Placement
ASD
asserts that “[t]he Hearing Officer erred when she
framed the issue to be decided at the hearing as ‘Is
Perkins an appropriate placement?' as opposed to
reviewing applicable case law when parents make a unilateral
placement.”[148] Parents respond that the Hearing
Officer “correctly determined that ASD failed to timely
implement M.G.'s IEP and that Perkins was the appropriate
placement.”[149]
The
Hearing Officer found that “ASD failed to implement
student's IEP in a timely manner by not selecting a safe
and appropriate residential placement.”[150] The Court
agrees. In May 2016, the IEP team “reached full
consensus on residential placement” because of the
“nature and severity of student's
disability.”[151] M.G.'s mother testified that at
the end of the June 2016 meeting, she believed the IEP team
had agreed that Perkins was the best placement for
M.G.[152] However, ASD appeared to change its
position when it learned of the high cost of Perkins'
tuition and that Perkins was not Medicaid
eligible.[153]By October 2016, when Parents announced
their withdrawal of M.G. from the district, ASD had not
selected a residential placement.[154]
The
Hearing Officer also carefully considered the evidence in
determining that Perkins was the only appropriate residential
placement for M.G.:
Student is entitled to a free, appropriate education not the
best education, not the Cadillac. If any of the other schools
with the good programs, ie [sic] Arizona, Nebraska, Maryland
had weekend residential or were equipped to handle
student's problems (i.e. Arizona), Perkins would be
disqualified because of its cost. But there are no other
schools that provide all of the services that student needs
and no other school where it has been demonstrated that he
can be taught to live as a blind person in a seeing world and
where he will be immersed 24/7 in that world. Perkins by the
preponderance of the evidence presented will help him transit
back to his home environment. All of the other schools
referred to Perkins almost as the holy grail of a school for
the blind who can also handle other disabilities. It is not
only the best choice but in this very particular circumstance
it is the only choice for this student.[155]
Officer
Gallagher considered other schools besides Perkins, including
Arizona School for the Blind, Maryland School for the Blind
and Nebraska School for the Blind. However, the Hearing
Officer ruled out these other residential placements because
she determined each was unable to adequately support
M.G.'s needs.[156] The Court has carefully considered the
Hearing Officer's findings. Based on this Court's
review of the record, the Court agrees with the Hearing
Officer's finding, and finds by a preponderance of the
evidence in the record as supplemented in this Court, that
Perkins was the appropriate residential placement for M.G.
The Hearing Officer did not err in finding that ASD failed to
timely implement M.G.'s IEP and that Perkins was the
appropriate placement for M.G. under the IDEA.[157]
5.
Post-Hearing Communication
ASD
maintains that “Parents and Perkins refuse ASD access
to M.G. and refuse to cooperate with the Hearing
Officer's Order.”[158] Perkins' staff
testified to the Hearing Officer that they are committed to
transitioning their students back to their home environment
and have a process for succeeding in that
regard.[159] With the benefit of the evidence of
this past year, the Court is considerably more skeptical than
the Hearing Officer as to Perkins' willingness and
ability to do so. The Court's Order on Motion for
...