Opinion
6:20-CV-00195-ADA-JCM
04-19-2022
K.R. AND J.R., AS NEXT FRIENDS OF H.R., A MINOR, Plaintiffs, v. KILLEEN INDEPENDENT SCHOOL DISTRICT, Defendant.
THE HONORABLE ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGE
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), FED. R. CIV. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the United States Magistrate Judge are Defendant Killeen Independent School District's Motion for Judgment on the Administrative Record or Alternative Motion for Summary Judgment (“Defendant's Motion for Judgment,” ECF No. 22), Defendant's Motion to Re-Urge (ECF No. 27), Defendant's Second Motion to Re-Urge (ECF No. 32), Defendant's Third Motion to Re-Urge (ECF No. 40), Plaintiffs' Motion for Judgment on the Record (“Plaintiffs' Motion for Judgment,” ECF No. 41), Defendant's Motion to Strike Plaintiffs' Motion for Summary Judgment (ECF No. 42), Plaintiffs' Motion to Strike Defendant's Reply (ECF No. 48), and all responses and replies thereto. For the following reasons, the Court RECOMMENDS the following: that Defendant's Motion for Judgment be GRANTED; that Plaintiffs' Motion for Judgment be DENIED; that Defendant's Motion to Re-Urge be GRATED IN PART and DENIED IN PART; that Defendant's Second Motion to Re-Urge be DENIED AS MOOT; and that Defendant's Third Motion to Re-Urge be DENIED AS MOOT. The Court ORDERS that Defendant's Motion to Strike Plaintiffs' Motion be DENIED; and that Plaintiffs' Motion to Strike Defendant's Reply be DENIED.
I. BACKGROUND
Plaintiff H.R. is a minor who previously attended school within the jurisdictional bounds of Defendant Killeen Independent School District. Administrative Record at 0358. After moving to the United States from Puerto Rico, H.R. enrolled with Defendant at Trimmier Elementary School at the beginning of the 2014-2015 school year for pre-kindergarten. Id. During this school year, H.R. exhibited aggressive behavior, hyperactivity, difficulty focusing, and difficulty socializing. A.R. at 0373. H.R. was completing grade-level work, turned in most of his homework, and did not have an absenteeism issue at this time. A.R. at 0367.
In November 2014, Defendant completed a Full and Individual Evaluation (“FIE”) as well as a Psycho-educational Evaluation of H.R. See A.R. at 0358-74; 1277-94. The evaluations revealed that H.R. did not meet Texas Education Agency (“TEA”) guidelines for a child with a Specific Learning Disability, autism, speech impairment, or cognitive disability. A.R. at 0372-74. Defendant then referred H.R. to be assessed further under Section 504 of the Individuals with Disabilities Education Act (“IDEA”) to determine his qualification for accommodations and modifications under the statute. A.R. at 0374.
In a psychological evaluation dated April 3, 2015, H.R. was diagnosed with Attention Deficit/Hyperactivity Disorder (“ADHD”), Combined Presentation, and Oppositional Defiant Disorder (“ODD”). A.R. at 1301-03. The report noted that H.R. displayed some characteristics of autism, but this was insufficient evidence to support a formal diagnosis. Id.
For the 2015-2016 school year, H.R. was enrolled in kindergarten at Peebles Elementary. A.R. at 0376. In August 2015, Defendant conducted a new FIE at the request of H.R.'s parents after the parents submitted two Other Health Impairment (“OHI”) Physician's Reports indicating H.R. had ADHD. Id. In September 2015, H.R.'s Admission Review Dismissal Committee (“ARDC”) completed the FIE and found H.R. eligible under the TEA guidelines as a student with OHI based upon ADHD. A.R. at 0382.
Upon further psychological evaluation and the submission of medical records from the previous summer, a November 2015 FIE reported that H.R. was eligible as a student with Emotional Disturbance (“ED”) and OHI based upon ADHD. A.R. at 0395-97. The medical records revealed that during the summer of 2015, H.R. was admitted to the Metroplex Behavioral Health Center with a diagnosis of Axis I: Psychotic Disorder/Not Otherwise Specified, autism, ODD, and ADHD. A.R. at 0386.
In October 2015, Defendant completed a Functional Behavior Assessment (“FBA”) and found three challenging behaviors to be improved. A.R. at 1344-48. Throughout this time, H.R. displayed aggressive outbursts where he hit teachers and students, destroyed things, and became so out of control that other students had to be removed from the classroom. Id. While H.R. appeared to be able to perform the academic work assigned to him, he often refused, acted out, and became distracted to the point of not finishing his assignments. Id.
In January 2016, H.R. transferred to a Positive Behavior Support (“PBS”) classroom at Ira Cross Elementary. See A.R. at 1349. H.R.'s aggressive and self-harming behavior continued during this time. A.R. at 1349-1437 (restraint records). Defendant completed a Review of Existing Evaluation Data (“REED”) of H.R. in May 2016, which revealed that H.R. did not need further evaluation of his cognitive abilities, speech and language communication, health, vision, hearing, and motor skills. A.R. at 1438-43. During this school year, the ARDC updated H.R.'s Behavior Intervention Plan (“BIP”) to address his challenging behaviors and requested a new autism evaluation. A.R. at 1451-53.
During the 2016-2017 school year, H.R. was enrolled in first grade at Ira Cross Elementary. His aggressive and self-injuring behaviors continued during this time to the extent that school staff physically restrained H.R. multiple times. A.R. at 1454-56. In January 2017, a new FBA was completed to target H.R.'s behaviors and included a new BIP. Id.
In March 2017, an outside physician conducted an Independent Educational Evaluation (“IEE”) and recommended that H.R. be found eligible for autism, emotional disturbance, and OHI based upon ADHD. A.R. at 0401-46. While the ARDC met in May 2017 to review the IEE, the ARDC did not adopt the recommendation and continued H.R.'s primary disability as ED and secondary disability as OHI. A.R. at 0447-50.
During the 2017-2018 school year, H.R. was enrolled in second grade at Ira Cross Elementary. A.R. at 1464. Again, H.R.'s disruptive and aggressive behaviors continued. A.R. at 1510-12.
During the 2018-2019 school year, H.R. was enrolled in third grade at Sugar Loaf Elementary. H.R.'s ARDC met in August 2018, completed a REED, and continued his eligibility as a student with ED and OHI. A.R. at 0713, 0718. The ARDC developed his IEP for the school year, as well as a Behavior Support and Intervention Plan (“BSIP”). A.R. at 0719-33. While H.R.'s aggressive and destructive behaviors continued during this year, both the ARDC and H.R.'s father reported improvement in H.R.'s countenance and behavior. A.R. at 1737-39.
As the result of a mediation between the ARDC and H.R.'s parents, the ARDC adopted the IEE recommendation of eligibility for autism in its November 2018 meeting. A.R. at 1884. Autism became H.R.'s primary disability, followed by ED as his secondary disability and OHI as his tertiary disability. A.R. at 0891. H.R.'s IEP for this time period included the addition of an autism supplement as well as an updated BIP addressing H.R.'s disruptive behaviors, aggression, and authority defiance. A.R. at 0892-0901, 0908-14. The ARDC reached consensus at the November 2018 meeting. A.R. at 0926.
On January 11, 2019, an incident occurred where H.R. punched his teacher in the genitals and kicked her. A.R. at 0240. H.R. then scratched and punched another staff member and attempted to attack her with a pencil. Id. Following this incident, Defendant charged H.R. with physical assault on staff with serious bodily injury. A.R. at 1169. Defendant later found that this incident met the criteria for Disciplinary Alternative Education Placement (“DAEP”) at a campus-level conference. A.R. at 1147. Following the conference, the ARDC conducted a Manifestation Determination Review (“MDR”) to determine whether the incident was a manifestation of H.R.'s disabilities. A.R. at 1169. The MDR committee ultimately found that the incident was not a manifestation of H.R.'s disabilities, that the incident was not caused by or substantially related to H.R.'s disabilities, and that the incident was not a result of Defendant's failure to implement H.R.'s IEP. Id. Following the MDR's decision, H.R.'s parents unilaterally placed H.R. in private school at Oak Creek Academy. See A.R. at 1543.
H.R.'s parents K.R. and J.R. requested a due process hearing under the IDEA, arguing: (1) Defendant failed to provide H.R. a free appropriate public education (“FAPE”) in the 2018-2019 school year; (2) Defendant failed to conduct proper evaluations including an appropriate FBA; (3) Defendant failed to provide H.R. an appropriate BIP; (4) Defendant failed to provide school staff proper training for H.R.'s IEP and BIP; (5) Defendant violated K.R. and J.R.'s procedural rights by failing to provide ARDC documents in their native language of Spanish; (6) Defendant discriminated against H.R. and K.R. in the process of the MDR ARDC; (7) Defendant failed to conduct a proper MDR and the MDR decision was erroneous; (8) Defendant failed to use the proper definition of “serious bodily injury” in the MDR and DAEP decisions; (9) Defendant improperly decided that H.R.'s DAEP placement was proper; (10) Defendant violated 34 C.F.R. § 300.530 in removing H.R. from his current placement to DAEP; and (11) Defendant violated the IDEA by changing H.R.'s placement to the DAEP. A.R. at 0004-05. Plaintiffs' requested relief included (1) reversal of the placement at DAEP; (2) reimbursement of private school tuition for the 2018-2019 and 2019-2020 school years; (3) reimbursement of attorneys' fees; and (4) that Plaintiffs be found as a “prevailing party” entitled to attorneys' fees. A.R. at 0005-06.
In making her decision, the Special Education Hearing Officer (“SEHO”) reviewed 90 exhibits, 31 joint stipulations of fact, and the testimony of twelve witnesses, which included H.R.'s parents K.R. and J.R., H.R.'s PBS teacher, and members of H.R.'s ARDC. See generally A.R. The SEHO made the following conclusions of law: (1) that H.R. is eligible for a FAPE under the IDEA; (2) that Defendant is responsible for properly identifying, evaluating, and serving H.R. under the IDEA; (3) that H.R. failed to carry the burden of proof to establish Defendant violated the IDEA or denied him a FAPE; (4) that tuition reimbursement is not appropriate because Defendant did not deny H.R. a FAPE; and (5) that the MDR finding was inappropriate and that H.R.'s conduct was caused by, or had a substantial relationship to, his disabilities. A.R. at 0021. The SEHO further ordered that, should H.R. return to enrollment with Defendant: (1) his ARDC must meet and either modify his existing BIP or conduct a new FBA and develop a new BIP; and (2) his ARDC must return H.R. to his prior placement unless a different placement is agreed upon by H.R.'s parents and Defendant. A.R. at 0022.
On March 17, 2020, H.R.'s parents K.R. and J.R. filed suit in this Court, appealing the SEHO's decision made in the due process hearing. See Pls.' Orig. Compl., ECF No. 1. On July 4, 2021, Defendant moved for judgment on the administrative record, or in the alternative, summary judgment. See Def.'s Mot. J. Plaintiffs failed to file a response to Defendant's Motion for Judgment. On three separate occasions after the time for Plaintiffs to file a response had past, Defendant moved to re-urge its Motion for Judgment, arguing that the Court should take judicial notice of Plaintiffs' failure to respond and grant Defendant's Motion for Judgment as unopposed. See Def.'s Mot. Re-Urge; Def.'s Second Mot. Re-Urge; Def.'s Third Mot. Re-Urge.
After an extended dispute on extending deadlines, attempting alternative dispute resolution, and filing continuances, the Court granted a continuance of all deadlines and responses to pending motions to January 17, 2022. Plaintiffs filed their Motion for Judgment on the Record on February 7, 2022. See Pls.' Mot. J. Defendant then moved to strike Plaintiffs' Motion for Judgment as untimely. Def.'s Mot. Strike at 1. Finally, Plaintiffs moved to strike Defendant's Reply in support of Defendant's Motion to Strike Plaintiffs' Motion for Judgment, arguing the Reply operates as a sur-reply to Plaintiffs' Motion for Judgment that Defendant filed without leave of court. Pls.' Mot. Strike at 2.
II. LEGAL STANDARD
The purpose of the IDEA is to ensure children with disabilities receive 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.” 20 U.S.C. § 1400(d)(1)(A). All school districts within Texas must comply with the IDEA. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997). The IDEA requires states to educate children with disabilities “in the least restrictive environment consistent with [the child's] needs ....” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 128 (5th Cir. 1993). The IDEA does not require the school district to provide the best possible FAPE, “nor one that will maximize the child's educational potential.” Michael F., 118 F.3d at 247. Instead, the “FAPE must be tailored to each disabled child's needs through an ‘individualized education program,' which is a written statement prepared [by a committee consisting of] a ‘qualified' and ‘knowledgeable' school district representative, a teacher, the child's parents or guardians, and, when appropriate, the child himself.” El Paso Indep. Sch. Dist. v. Richard R., 567 F.Supp.2d 918, 925 (W.D. Tex. 2008) (citing 20 U.S.C. § 1414(d)(1)(B)). In Texas, the committee responsible for preparing a student's IEP is the ARD committee.
Under the IDEA, any party aggrieved by the SEHO's findings and decision may bring suit in district court. 20 U.S.C. § 1415(i)(2)(A). “Under the IDEA, a federal district court's review of a [SEHO's] decision is ‘virtually de novo.'” Adam F. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir. 2003). The court should afford the SEHO's findings “‘due weight,' but the district court must arrive at an independent conclusion based on a preponderance of the evidence.” Id. As a result, even though the court is ruling on summary judgment, the existence of a disputed material fact will not defeat a summary judgment motion. Reyes v. Manor Indep. Sch. Dist., No. A-14-CA-00469, 2016 WL 439148, at *4 (W.D. Tex. Feb. 2, 2016).
The IDEA presumes a school district's IEP is appropriate. White ex rel. White v. Acension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003). The party challenging the IEP bears the burden of showing the IEP was inappropriate under the IDEA. Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 292 n.4 (5th Cir. 2009). A district court should not substitute its “own notions of sound educational policy for those of the school authorities which [it] review[s].” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982). To that end, a district court's task is to determine whether a school district complied with the IDEA and not to second guess their educational decision making. R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1010 (5th Cir. 2010).
III. DISCUSSION
A. The Court denies Defendant's Motion to Strike Plaintiffs' Motion for Summary Judgment.
As an initial matter, the Court considers Defendant's Motion to Strike Plaintiffs' Motion for Summary Judgment. In a Text Order entered December 15, 2021, the Court granted Plaintiffs' Motion to Extend Pending Deadlines and extended pending deadlines, including the deadline to file dispositive motions and the deadline to respond to any pending motions, to January 17, 2022. Plaintiffs, however, filed their Motion for Judgment on the Record twenty-one days later on February 7, 2022. See Pls.' Mot. J. Defendant moves to strike Plaintiffs' Motion for Summary Judgment as untimely. Def.'s Mot. Strike at 1.
Plaintiffs' counsel's explanation for failing to timely file is as follows:
Plaintiffs' counsel requested a January 17, 2022 continuance expecting the timeline for all motions, responses, and discovery would be rescheduled after January 17, 2022. It would be impossible to expect an attorney who returned from sick leave and on the same day file all motions, responses, and discovery on all their federal cases. In another federal case involving Plaintiffs' attorney, a new the Scheduling Order was issued and provided new deadlines for all matters.Pls.' Resp. Def.'s Mot. Strike at 4. Yet Plaintiffs' Motion for a Continuance only requested the Court “extend all deadlines and responses to pending motions until January 17, 2022”-which is exactly what the Court granted via Text Order. Plaintiffs' counsel did not file a proposed amended scheduling order or request one be entered by the Court. Plaintiffs' counsel did not request an extension of the dispositive motions deadline beyond the requested date of January 17, 2022.
It is within the Court's discretion to consider an untimely motion for summary judgment and is in keeping with the spirit of Rule 56 to consider Plaintiffs' Motion for Judgment considering counsel's alleged confusion. Fed.R.Civ.P. 56 advisory committee notes (“The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”). Thus, the undersigned denies Defendant's Motion to Strike Plaintiffs' Motion for Summary Judgment, and the undersigned will consider Plaintiffs' Motion for Summary Judgment below.
B. The Court recommends that Defendant's Motion for Judgment be granted, and that Plaintiffs' Motion for Judgment on the Record be denied.
First, the Court addresses Defendant's Motion for Judgment. Plaintiffs raise the following issues on appeal to this Court: (1) whether the SEHO's findings should be given deference; (2) whether the SEHO erred in finding Defendant provided H.R. a FAPE; (3) whether the SEHO erred in finding H.R.'s IEP was individualized according to his assessments and performance; (4) whether the SEHO erred in finding H.R. demonstrated positive academic and/or nonacademic benefits; and (5) whether K.R. and J.R. are entitled to tuition reimbursement for placing H.R. in a private school. See Pls.' Second Am. Compl., ECF No. 16. Defendant argues it is entitled to summary judgment on the administrative record because: (1) the SEHO's decision is entitled to deference because her analysis was thorough and careful; (2) the SEHO's finding that Defendant provided H.R. with a FAPE is supported by the administrative record for all Michael F. factors; (3) the SEHO correctly determined tuition reimbursement for private placement was not appropriate because Defendant provided H.R. a FAPE; and (4) Plaintiffs' requests for attorneys' fees and costs should be denied. See Def.'s Mot. J. Plaintiffs move for judgment on the record arguing: (1) H.R.'s IEP was not individualized because it failed to address his autism; (2) Defendant did not coordinate and collaborate with H.R.'s parents on the IEP because information on H.R.'s academic levels was not explained to his parents; (3) H.R.'s IEP did not provide any meaningful academic or non-academic benefits; and (4) H.R.'s parents are entitled to tuition reimbursement.
1. The Court gives deference to the SEHO's factual findings because H.R. has not shown the findings are not thorough or careful.
Initially, Plaintiffs argue that the SEHO's findings should not be given deference because the SEHO considered Defendant's closing brief in the underlying due process hearing, which Plaintiffs contended was untimely. Pls.' Second Am. Compl. at 22-24. Generally, a court may accord deference to a hearing officer's findings unless the court is presented with evidence justifying a contrary conclusion. Candi M. v. Riesel Independent School Dist., 379 F.Supp.3d 570, 594 (W.D. Tex. 2019). Other circuits give less deference to the hearing officer's findings where the officer's review is not thorough or careful or where the officer disregards evidence. See, e.g., Capistrano Unified Sch. Distr. v. Wartenberg by and Through Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995).
Here, Plaintiffs' argument revolves around a misunderstanding of the due date for the parties' closing briefs. See Pls.' Second Am. Compl. at 23. Plaintiffs believed the brief was due by 5:00 p.m., while Defendant believed the brief was due by midnight, as per the SEHO stating briefs were due “by the end of the day.” Id.; Def.'s Mot. J. at 6-7. Because Defendant filed its brief after 5:00 p.m., Plaintiffs argue the SEHO should not have based her decision on Defendant's closing brief and is therefore not entitled to deference for her findings.
Plaintiffs point to no specific instance of the SEHO disregarding evidence or not giving a thorough and careful review of the evidence before her. The SEHO considered the evidence and all arguments before her in making her decision instead of excluding Defendant's brief on a procedural technicality. Therefore, Plaintiffs have not shown that the SEHO's findings are generally not worthy of deference by this Court.
The SEHO's consideration of Defendant's closing brief, coupled with her statement that she wanted to give the parties until the end of the day to give them as much time as possible likely means that Plaintiff incorrectly understood the deadline to be earlier than it was.
2. Defendant provided H.R. a FAPE in accordance with the IDEA.
To provide a student a FAPE, school districts must comply with the IDEA's procedural requirements and create an IEP reasonably calculated to provide the student an educational benefit. Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 201 (1982). A child's IEP is the “centerpiece of the [IDEA's] education delivery system for disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988).
The Fifth Circuit considers an IEP to be reasonably calculated to provide a student with a meaningful educational benefit if: “(1) the program is individualized on the basis of the student's assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key ‘stakeholders'; and (4) positive academic and non-academic benefits are demonstrated.” Michael F., 118 F.3d at 253. While no single Michael F. factor is dispositive, courts find the demonstration of positive benefits to be one of the most critical factors. Houston Ind. Sch. Dist. v. V.P. ex rel Juan P., 582 F.3d 576, 588 (5th Cir. 2009).
a. Plaintiffs' argument that the SEHO erred in failing to cite to evidence in the record is without merit.
First, Defendant argues that the SEHO properly found that H.R. did not establish a violation of the IDEA or a denial of a FAPE. Def.'s Mot. J. at 8. Defendant begins by addressing Plaintiffs' first contention: that the SEHO “offered no citation to the record or evidentiary support for these conclusions.” Id. at 10 (citing Pls.' Second Am. Compl. at 28-29).
Plaintiffs point to no provision of the IDEA that explicitly requires citation to evidence in the hearing officer's decision. Reviewing the SEHO's decision further reveals multiple citations to evidence supporting the SEHO's findings. For example, Finding of Fact 46 lists five separate citations to evidence, including Joint Stipulation of Fact 22, Joint Exhibits 37.540-45, Joint Exhibit 38, Joint Exhibit 39, and Transcript 1.366:1-372:15. A.R. at 0013; see also A.R. at 0006 n.12 (explaining the naming system for evidence referenced in the decision). To the extent that Plaintiffs make a general argument that the SEHO's decision is completely without evidentiary support simply for lack of a citation, the Court does not find that the SEHO erred.
b. H.R.'s IEP was individualized based on his assessments and performance.
The first Michael F. factor requires the Court to consider whether H.R.'s IEP was individualized based on his assessments and performance. Michael F., 118 F.3d at 253. The IDEA does not allow the Court to “assume that every IEP is invalid until the school district demonstrates that it is not.” Schaffer v. Weast, 546 U.S. 49, 59 (2005). Instead, the “IDEA relies heavily upon the expertise of school districts to meet its goals.” Id.
Plaintiffs argue that H.R.'s IEP was not individualized on the basis of his assessments and performance because: (1) statements of his present levels of academic achievement and functional performance (“PLAAFPs”) lacked detailed explanations; (2) his IEPs for the 2017-2018 school year and the 2018-2019 school year shared many of the same goals and baselines; and (3) his IEPs failed to address his Autism. Pls.' Second Am. Compl. at 32-34, 36-39; Pls.' Mot. J. at 11. Defendant argues that the PLAAFP issue was not raised in the due process hearing and therefore cannot be raised now, and in the alternative, the administrative record is replete with evidence that Defendant performed multiple assessments of H.R. and continuously adapted H.R.'s IEP based off these assessments and his performance. Def.'s Mot. J. at 13-14.
Defendant is correct that Plaintiffs did not raise any issues at the due process hearing regarding the explanation of his PLAAFPs. See A.R. 0004-0006. The administrative record lacks any indication that H.R.'s parents did not understand the PLAAFPs or goals in H.R.'s IEP. Importantly, H.R. does not point to any evidence in the administrative record that shows H.R.'s parents did not understand the goals in his IEP or that they needed additional information. Accordingly, this allegation cannot be reviewed by the Court. See C.H. v. Northwest Indep. Sch. Dist., 815 F.Supp.2d 977, 987 (E.D. Tex. 2011).
Had the Court reached this issue, the Court notes that the SEHO found that H.R.'s PLAAFP comported with 34 C.F.R. § 300.320, as is required by the IDEA. A.R. at 0019. Plaintiffs do not point to any specific provision of Section 300.320 that is lacking in H.R.'s PLAAFP and instead pose rhetorical questions as to the detail and abbreviations involved in his PLAAFP. Pls.' Second Am. Compl. at 30-34. While the Court acknowledges that test scores that are not self-explanatory may show inadequacy of a PLAAFP, the involvement of parents in their child's IEP creation as well as the availability of more detailed information to the parents allow the Court to find a PLAAFP to be adequate, as is the case here. See O'Toole v. Olathe Dist. Sch.s Unified Sch. Dist. No. 233, 144 F.3d 692, 703 (10th Cir. 1998).
In their Motion for Judgment on the Record, Plaintiffs argue that H.R.'s IEPs were not individualized because his IEPs did not address his autism until November 2018. The administrative record reveals that H.R.'s autism diagnosis was an ongoing issue of contention between his parents and Defendant. See A.R. at 1884. In two early FIEs, H.R. met Defendant's eligibility criteria for emotional disturbance and ADHD. A.R. at 0383; A.R. at 0395. In a psychological evaluation dated April 3, 2015, H.R. displayed some characteristics of autism, but the doctor found the evidence insufficient to support a formal diagnosis. A.R. at 1301-03.
While the ARDC continued evaluating H.R. for autism, Defendant did not recognize autism as one of H.R.'s disabilities until November 2018. H.R.'s eligibility for autism was recommended by an outside provider's IEE conducted in May 2017. A.R. at 0401-46. The recommendation was first rejected by the ARDC but later agreed upon between the parties to be added as H.R.'s primary diagnosis. A.R. at 1884.
Plaintiffs cite D.C. v. Klein to show that Defendant denied H.R. a FAPE because H.R.'s IEP did not address his autism until November 2018. Pls.' Mot. J. at 11-13. In D.C., the Fifth Circuit found a student's IEP to be inadequate where the student was diagnosed with a reading comprehension disability, but his IEP treated dyslexia. D.C. v. Klein, 860 Fed.Appx. 894, 903-04 (5th Cir. 2021). D.C. was not diagnosed with dyslexia despite the district's testing for it, and D.C.'s IEP for dyslexia did not adequately address his reading comprehension disability. Id.
D.C. is inapposite to the present case. Defendant's evaluations did not identify H.R. as eligible for autism services. A.R. at 0374 (2014 FIE), 0383 (August 2015 FIE), 0395 (September 2015 FIE). Instead, Defendant's evaluations identified H.R. as eligible for services related to emotional disturbance and ADHD. A.R. at 0383, 0395. Unlike the district in D.C., Defendant did not provide services to H.R. that he did not meet the eligibility criteria for. A recommendation was made in H.R.'s IEE that he be found eligible for autism services. A.R. at 0401-46. The ARDC did not accept this recommendation until November 2018 after further discussion and mediation with H.R.'s parents. A.R. at 1884. After the ARDC accepted the recommendation, H.R. received autism services.
Plaintiffs' real contention appears to be that the school did not treat H.R. early enough for autism. Defendant frequently evaluated H.R. for autism but did not find him eligible. While H.R.'s parents argue that the ARDC erred in not adopting the IEE recommendation earlier, an outside physician's decision in an IEE alone cannot dictate a student's IEP. Though “a physician's diagnosis and input on a child's medical condition is important and bears on the team's informed decision on a student's needs[,] . . . the [IDEA] dictates a full review by an IEP team composed of parents, regular education teachers, special education teachers, and a representative of the local educational agency.” Marshall Joint School Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632, 640-41 (7th Cir. 2010).
The record demonstrates that H.R.'s IEP was individualized on the basis of his assessments and performance. Defendant evaluated H.R. multiple times, included multiple FIEs and REEDs. Defendant's eligibility testing revealed H.R. was eligible for services treating emotional disturbance and ADHD, which were addressed by his IEPs. Defendant continuously tested H.R. for autism eligibility, and after the ARDC accepted the recommendation that he was eligible for autism services, Defendant added autism services to H.R.'s IEP.
c. Defendant provided H.R.'s program in the least restrictive environment.
The second Michael F. factor requires a school district to provide the student's program in the least restrictive environment possible. Michael F., 118 F.3d at 253. In making this determination, the Court “ask[s] whether education in the regular classroom . . . can be achieved satisfactorily for a given child.” Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989). If that cannot be achieved, the Court then inquires “whether the school has mainstreamed the child to the maximum extent appropriate.” Id.
Here, the Court notes that the parties do not contest the SEHO's finding that Defendant educated H.R. in the least restrictive environment. See A.R. at 0005-06; Def.'s Mot. J. at 15; see generally Pls.' Mot. J. For the 2018-2019 school year, H.R. was placed in the PBS classroom at Sugar Loaf Elementary. Both parties acknowledge H.R.'s aggressive behavior towards other students and teachers, making a placement in a general education classroom dangerous and unlikely to give H.R. the support he needed to progress. See A.R. at 1711, 1715-16 (explaining PBS classroom). Thus, the Court finds that Defendant provided H.R.'s program in the least restrictive environment possible.
d. Defendant provided H.R.'s services in a coordinated and collaborative manner.
The third Michael F. factor considers whether the school district provided the student's services in a coordinated and collaborative manner. Michael F., 118 F.3d at 253. An IEP team consists of the child's parents, regular and special education teachers, and a representative of the local educational agency, as well as others with special knowledge of the child and the child himself as appropriate. 20 U.S.C. § 1414(d)(1)(B)(i-vii). Parents of a child eligible under the IDEA must be afforded the opportunity to participate in IEP team meetings. 34 C.F.R. § 300.322(a).
Defendant argues that the record demonstrates extensive involvement of K.R. and J.R. in the creation of H.R.'s IEP and all ARDC meetings. Def.'s Mot. J. at 15-16. Again, H.R. argues that information in the IEPs and PLAAFPs was not detailed enough to allow K.R. and J.R. to meaningfully participate. Pls.' Mot. J. at 14.
The record reveals that K.R. and J.R. were involved every step of the way in creating and implementing H.R.'s IEP and were key stakeholders. H.R.'s parents attended and participated in H.R.'s 2018-2019 ARDC meetings. A.R. at 0211-13. Further, K.R. was already familiar with the IDEA prior to H.R.'s enrollment with Defendant because she worked for a school district in Puerto Rico, likely giving her a level of understanding of this process not possessed by other parents. A.R. at 2234. Evidence from the hearing also reveals K.R. and J.R. participated consistently in ARDC meetings, coordinated efforts in H.R.'s homelife, and felt ARDC meetings were generally successful and progressive.
e. H.R.'s IEP was reasonably calculated to provide positive academic and non-academic benefits.
The final Michael F. factor requires a showing that the student demonstrated positive academic and non-academic benefits from the IEP. Michael F., 118 F.3d at 253. The IDEA requires an IEP to be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty Sch. Dist. RE-1, 137 S.Ct. 988, 1001 (2017). A child offered an IEP “providing ‘merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all.” Id. “Passing grades and advancement from year to year are factors that indicate a child is receiving meaningful educational benefit[,]” but “such evidence should be rejected when it is found to be the product of unapproved deviations from the IEP.” V.P., 582 F.3d at 590.
Defendant argues that the record demonstrates that H.R.'s IEP was designed to provide him academic and non-academic benefits and that H.R. did make some progress on his goals in the 2018-2019 school year. Def.'s Mot. J. at 16. Defendant further argues that H.R.'s absenteeism and disenrollment with Defendant in January 2019 explain his minimal progress for the year. Id. at 16-17. Plaintiffs argue H.R. received no benefit from his IEP because he made no academic progress from May 2017 to January 2019 and because his behavior did not improve over multiple BSIPs. Pls.' Mot. J. at 14-20.
Here, the Court finds that H.R.'s programs were reasonably calculated to provide him academic and non-academic benefits. H.R. advanced from grade to grade and made passing grades throughout his time at Defendant's schools, and the record holds no indication of a deviation from his IEPs to accomplish this. While some academic and non-academic goals were repeated in multiple IEPs, H.R. displayed attendance issues at the end of the 2016-2017 school year, explaining his minimal progress and repeated goals from May 2017 through the 2018-2019 school year. A.R. at 1150-51; 1905-06.
Because of his absenteeism, H.R. did not have an opportunity to demonstrate extensive progress. However, H.R.'s move to Sugar Loaf Elementary in Fall 2018 resulted in improved behavior and progress on some of his academic goals. Specifically, H.R. demonstrated progress in two math goals and a behavioral goal in his December 21, 2018 progress report. A.R. at 099496. The ARDC also noted his behavior had improved at the November 2018 meeting. Dr. Janice Peronto, Defendant's Executive Director of Special Education, testified that H.R.'s behavior showed improvement in the 2018-2019 school year and that H.R.'s parents reported that H.R.'s behavior was improving as well. A.R. at 1737-39. Progress in every area of an IEP is not required for a student to demonstrate academic and non-academic benefits. See Houston Ind. Sch. Dist. v. Bobby R., 200 F.3d 341, 350 (5th Cir. 2000).
Further, H.R. left Defendant's district in January 2019 and enrolled in Oak Creek Academy, ending the ability to make any progress on the 2018-2019 IEP. The 2018-2019 IEP that is the basis of the due process hearing below was developed for H.R. to make progress over the entire school year. H.R.'s progress over this period indicates the IEP was reasonably calculated to provide academic and non-academic benefits. See R.H. v. Plano Ind. Sch. Dist., No. 4:06cv352, 2008 WL 906289, at *6 (E.D. Tex. Mar. 31, 2008), aff'd R.H. v. Plano Ind. Sch. Dist., 607 F.3d 1003 (5th Cir. 2010).
3. H.R.'s parents are not entitled to tuition reimbursement for his private placement at Oak Creek Academy.
In the hearing below, the SEHO found that H.R.'s parents were not entitled to tuition reimbursement for H.R.'s private placement at Oak Creek Academy because Defendant did not deny H.R. a FAPE. A.R. at 0021. Defendant argues that H.R.'s parents are not entitled to reimbursement because H.R. was not denied a FAPE and because Defendant did not violate the IDEA. Def.'s Mot. J. at 17-19. Plaintiffs argue reimbursement is required because H.R.'s placement at Oak Creek Academy is appropriate. Pls.' Mot. J. at 20-21.
Tuition reimbursement is proper if the student's parents prove (1) that the school district denied a FAPE to the student, and (2) that the private placement is appropriate under the IDEA. 20 U.S.C. § 1412(a)(10)(C); 34 C.F.R. § 300.148(c). “[P]arents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.” Sch. Committee of Town of Burlington, Mass. V. Department of Edu. Of Mass., 471 U.S. 359, 373-74 (1985). Should the hearing officer or reviewing court find public placement to be inappropriate, “parents are not barred from reimbursement because the private school did not meet the precise IDEA definition of a free appropriate public education.” Richardson Ind. Sch. Dist. v. Michael Z, 580 F.3d 286, 295 (5th Cir. 2009) (citing Florence Cty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 13 (1993)).
Here, Plaintiffs point to H.R.'s academic and behavioral improvement since moving to Oak Creek Academy to show private placement is appropriate under the IDEA. Pls.' Mot. J. at 20-21. Plaintiffs, however, have not shown that H.R.'s placement was inappropriate. As discussed above, the undersigned finds that Defendant provided a FAPE to H.R. in accordance with the IDEA. Further, the SEHO's finding that H.R.'s actions were a manifestation of his disability did not amount to finding that H.R.'s public placement with Defendant was inappropriate to meet his needs. See 34 C.F.R.§ 300.532(b)(2)(i). The SEHO ultimately found that Defendant did not conduct an improper MDR and that, should H.R. re-enroll with Defendant, the ARDC must either modify H.R.'s existing BIP or conduct an FBA and develop a BIP. A.R. at 0015, 0016-18. The SEHO further ordered that H.R. will be returned to his placement unless a different placement is agreed upon by H.R.'s parents and Defendant. A.R. at 0022. Therefore, H.R.'s parents are not entitled to past or future tuition reimbursement for his private placement.
4. Entitlement to attorneys' fees should be determined with the District Court's ruling on this Report & Recommendation.
In the interest of judicial economy, the parties' entitlements to attorneys' fees are not determined in this Report & Recommendation and should be determined in accordance with the District Court's ruling on this Report & Recommendation.
C. The Court recommends that Defendant's first Motion to Re-Urge be granted in part and denied in part and that Defendant's second and third Motions to Re-Urge be denied as moot.
After filing its Motion for Judgment on the Administrative Record or Alternative Motion for Summary Judgment, Defendant filed three separate motions to re-urge the Motion. In all three Motions to Re-urge, Defendant first requests the Court take judicial notice of Plaintiffs' failure to file a response to Defendant's Motion at all, let alone in the time required by Local Rule CV-7(d)(2). Def.'s First Mot. Re-urge at 1. Second, Defendant requests the Court grant its Motion for Judgment as unopposed in accordance with Local Rule CV-7(d)(2). Id. at 2.
The Court grants Defendant's request to take judicial notice of Plaintiffs' failure to file a response to Defendant's Motion for Judgment. Under Rule 201, a federal court may judicially notice the existence of court filings. See Taylor v. Charter Medical Corp., 162 F.3d 827, 829-30 (5th Cir. 1998). Plaintiffs' response was due fourteen days after Defendant's Motion for Judgment was filed. To this date, the docket reveals that Plaintiffs never filed a response to the Motion for Judgment. Thus, the Court judicially notices the absence of a response from Plaintiffs on Defendant's Motion for Judgment.
The Court, however, cannot grant Defendant's Motion for Judgment merely because it is unopposed. Defendant points the Court to 12 C.F.R. § 1081.212(h) to establish that this Court should have ruled on the Motion within thirty days after the response due date. Section 1081.212 refers to actions under the Consumer Financial Protection Act, which is obviously not at issue in the present case. The Court, in turn, directs Defendant's counsel to Hibernia National Bank v. Administracion Central Sociedad Anonima, which explicitly addresses Defendant's argument:
A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose violated a local rule. The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion, regardless of whether any response was filed.776 F.2d 1277, 1279 (5th Cir. 1985) (citations omitted). Therefore, the Court recommends that Defendant's request to grant the Motion for Judgment as unopposed be denied. The Court further recommends that Defendant's Second Motion to Re-urge and Defendant's Third Motion to Re-urge be denied as moot because both motions request identical relief.
D. The Court denies Plaintiffs' Motion to Strike Defendant's Reply.
Finally, Plaintiffs move to strike Defendant's Reply in support of Defendant's Motion to Strike Plaintiffs' Motion for Judgment (ECF No. 47). Plaintiffs argue Defendant's Reply is in fact a sur-reply to Plaintiffs' Motion for Judgment that Defendant filed without leave of court. Pls.' Mot. Strike at 2. After reviewing Defendant's Reply and the related arguments of the parties, the Court denies Plaintiffs' Motion to Strike as Defendant's Reply is not an improper sur-reply.
IV. CONCLUSION
For the reasons discussed above, the undersigned RECOMMENDS the following rulings:
• That Defendant's Motion for Judgment on the Administrative Record or Alternative Motion for Summary Judgment (ECF No. 22) be GRANTED;
• That Defendant's Motion to Re-Urge (ECF No. 27) be GRANTED IN PART as to taking judicial notice and DENIED IN PART as to granting Defendant's Motion for Judgment as unopposed;
• That Defendant's Second Motion to Re-Urge (ECF No. 32) be DENIED AS MOOT;
• That Defendant's Third Motion to Re-Urge (ECF No. 40) be DENIED AS MOOT; and
• That Plaintiffs' Motion for Judgment on the Record (ECF No. 41) be DENIED.
IT IS HEREBY ORDERED:
• That Defendant's Motion to Strike Plaintiffs' Motion for Summary Judgment (ECF No. 42) be DENIED; and
• That Plaintiffs' Motion to Strike Defendant's Reply (ECF No. 48) be DENIED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are made. The District Court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).