Opinion
Civil No. 02-4065 ADM/AJB.
February 23, 2005
Sonja D. Kerr, Esq., Kerr Law Office, Anchorage, AK, and Judith A. Gran, Esq., Public Interest Law Center of Philadelphia, Philadelphia, PA, on behalf of Plaintiff.
Nancy E. Blumstein, Esq., Ratwik, Roszak Maloney, P.A., Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to multiple dispositive motions filed by both parties. In her Complaint [Docket No. 1], Sarah Pachl, a minor, by her parents, Kevin and Suzanne Pachl ("Plaintiff" or "Sarah") seeks review and reversal of a decision issued by a second-tier Hearing Review Officer ("HRO"), pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487 (2000). The Complaint alleges the extended school year ("ESY") services provided by the School Board of Independent School District No. 11 ("Defendant" or "District") were substantively and procedurally inadequate and that the Independent Hearing Officer committed several procedural errors in finding the District's ESY complied with the IDEA. Both parties waived oral argument.
II. BACKGROUND
A. The IDEAThe IDEA requires a school district that accepts federal funds to provide disabled children within its jurisdiction a "free appropriate public education" ("FAPE"). 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). To provide a FAPE, a school must formulate an individualized education plan ("IEP") tailored to the disabled child's unique needs. See id. § 1400(d)(1)(A). The school district must also provide extended school year ("ESY") services if the child's IEP team determines, on an individual basis, the services are necessary to provide a FAPE to the child. Id. § 300.309(a)(2). The purpose of ESY is to maintain performance on the student's IEP goals and to prevent the significant regression students with disabilities often experience in the absence of continuous educational programming. See Minn. R. 3525.2900, subp. 1(G).
Parents who are dissatisfied with the substance or implementation of their child's IEP may request a state administrative due process hearing before an independent hearing officer ("IHO"). See 20 U.S.C. § 1415(f); Minn. Stat. § 125A.09 (2002). During the time period relevant to this matter, Minnesota employed a two-tier administrative process wherein the IHO's decision was first appealed to an HRO. See Minn. Stat. § 125A.09, subd. 6-7 (repealed May 2003). The HRO's decision could then be appealed to either federal district court or the state court of appeals. See id., subd. 9 (repealed May 2003).
As of 2003, a party's appeal from an IHO's decision is directly reviewed by either federal district court or the state court of appeals.See Minn. Stat. § 125A.091, subd. 24 (Supp. 2004).
B. Factual Background
Sarah Pachl is a 13 year-old, disabled student who suffers from intractable epilepsy, Aicardi Syndrome, Dandy Walker Syndrome and autism. Defendant does not contest Sarah Pachl is entitled to receive special education services, including ESY, pursuant to the IDEA and corresponding state law.
On November 20, 2000, a properly noticed meeting was held to determine Sarah's 2001 IEP. Exs. 48, 51, 54; Tr. at 40, 95-98, 136-37, 435. Mr. Pachl was present and actively participated at the meeting. Tr. at 1102-05, 1107-12. At this meeting, the IEP team determined that Sarah required ESY services but did not specify the ESY plan, services, location, goals or objectives. Tr. at 40, 198, 303-04, 615. Given Sarah's constantly changing medical condition and educational progress, the team delayed discussion of the specifics of the ESY until spring. Tr. at 140-41, 195-98, 436-38, 498. Pachl provided information at the meeting and was aware he could request changes to the IEP. Tr. at 95-98, 38-39. Although he knew the IEP did not contain a final ESY program, Pachl subsequently reviewed and signed the IEP developed for Sarah at the November 20, 2000 meeting. Tr. at 50-53
Mr. Pachl testified that, prior to the November 20, 2000 meeting, he solicited information regarding Children's Care Hospital and School's ("CCHS") residential ESY program. Ex. P; Tr. at 54, 55-62, 1008-09, 1124. He also requested letters from Sarah's physicians in December 2000 and January 2001 to support her placement at CCHS. Ex. T; Tr. at 66-68. Prior to February 22, 2001, Pachl also sought insurance coverage for the CCHS program. Tr. at 1123-24, 1152-53.
On January 24, 2001, Mr. Pachl requested an IEP meeting to discuss Sarah's ESY program. Ex. 58; Tr. at 104. As was the parties' custom, Pachl provided two dates on which he was available to meet. Tr. at 58, 62-64, 232-33, 978-79. The IEP team agreed to meet on February 22, 2001. In preparation for the meeting, Pachl spoke with Sarah's teacher and case manager, Teresa Kelderman ("Kelderman"). Tr. at 1154-55. Pachl specifically designated team members he wanted to attend the meeting, but did not specifically exclude anyone from the meeting. Ex. L; Tr. at 105-06, 306, 360, 1153-58. Because past IEP meetings had been very lengthy and involved objections to certain District staff, Cherie Peterson ("Peterson"), the Assistant Director of Education, agreed it was unnecessary for the team members not named by Pachl to attend. Ex. L; Tr. at 754-55; 1157-58. As a result, the paraprofessional and motor team members were consulted, but did not attend, the February 22, 2001 meeting. Tr. at 143-44, 441, 615, 753.
Mr. Pachl did not receive a copy of his procedural rights and safeguards at the February 22, 2001 meeting; he is unsure if he received them with the Notice of Team Meeting. Tr. at 1153, 1274. Kelderman did provide him with a set of the ESY Directions at the beginning of the meeting. Tr. at 762, 952-53. Pachl testified that he did not expect to receive something specific to ESY "because there was nothing to do with ESY in the procedural safeguards." Tr. at 1274. He also testified that he was generally aware of his procedural rights under the IDEA, having previously requested and participated in conciliation, mediation and due process hearings. Tr. at 1119, 1122.
At the February 22, 2001 meeting, the District acknowledged the purpose of the meeting was to preliminarily discuss Sarah's ESY needs and program options. Ex. L, 441, 720. Kelderman announced the District would need to hold another meeting with the entire IEP team to finalize any ESY proposal. Ex. L. This need was reiterated throughout the meeting. Id. Mr. Pachl attended the meeting but only occasionally participated in discussions regarding Sarah's current education needs, IEP goals and objectives, and ESY options within the District. Id. Instead, Pachl presented, and articulated his desire for Sarah to attend, the CCHS ESY program. Id.; Tr. at 1227-28. He stated that CCHS's program mirrored the goals and services in Sarah's current IEP. Ex. L; Tr. at 1288-89. He did not offer any other ideas or components for Sarah's ESY program. Ex. L; Tr. at 270-71, 1159-64, 1187. The transcript of the meeting reflects that Pachl directed the meeting and repeatedly asked for the IEP team to put some form of ESY proposal in writing. Ex. L. He also proposed price figures "for the sake of trying to reach a deal" that sought a commitment from the District to pay for Sarah's placement at CCHS. Id.
In the face of Mr. Pachl's repeated demands to create a written ESY proposal, the team drafted a handwritten, 18-line ESY program on a copy of the goal pages from Sarah's 2001 IEP. Exs. 62, L; Tr. at 115-16, 490-94, 720. The 2001 ESY program was based on Sarah's 2000 ESY program. Ex. L; Tr. at 108-10, 214. Kelderman used Sarah's 2001 IEP to formulate goals and objectives discussed by the team and identified as appropriate for Sarah. Ex. L; Tr. at 108-10. Goals and objectives for physical therapy, occupational therapy and adaptive physical education were not addressed because team members responsible for those areas were not present at the meeting. Ex. L; Tr. at 371-72, 412. The team agreed that the proposal represented a preliminary draft and could not be considered a final proposal. Tr. at 110-119, 286, 371-72, 490-92.
Mr. Pachl concluded the meeting by stating "we may proceed with [CCHS] on our own if the school cannot come up with a better proposal than the one made" and "am I right to assume the answer is no for [CCHS]? . . . cause if we could not get an answer today, we will assume the answer is no." Id. Peterson responded that the District "strongly believed that the proposal that we are offering does indeed provide for an appropriate ESY program" and "given the fact that we can provide [appropriate ESY] within the District we would not enter into an agreement right now to send her elsewhere." Id. The rest of the IEP team present agreed that, absent additional information, they believed Sarah's ESY needs could be met within the District. Id.; Tr. at 119-20, 132, 457, 464, 544, 768-71, 823-24.
Following the February 22, 2001 meeting, Kelderman informally discussed ESY services with Mrs. Pachl once. Tr. at 122-23. Mrs. Pachl indicated she was unhappy with the ESY services Sarah received the previous summer. Id. Kelderman told her she thought the CCHS program would be beneficial but believed the District could also provide suitable services. Id.
On February 28, 2001, Peterson sent the Pachls a letter summarizing the discussion at the February 22, 2001 meeting and reiterating that the District could provide Sarah with the necessary ESY services. Ex. 64; Tr. at 773-75. The letter stated the District's offer to hold another meeting with the Pachls and the complete IEP team to create a formal ESY proposal for Sarah. Ex. 64; Tr. at 773-75. On the same day, the Pachls faxed a letter requesting a conciliation conference regarding Sarah's 2001 ESY program. Ex. Y. On March 2, 2001, the District requested identification of the issues for conciliation and Plaintiff responded on March 6, 2001. Exs. 33, 66, DD, EE; Tr. at 776-77, 829, 1014-15. Due to the illness of Plaintiff's counsel, the conciliation conference was not held until March 15, 2001. Ex. EE; Tr. at 778, 830-31. On March 21, 2001, the Plaintiff requested the due process hearing that led to this suit. Ex. 73; Tr. at 777-78, 1190.
Mr. Pachl testified that, on March 23, 2001, he decided Sarah should be enrolled in CCHS for the summer of 2001. Tr. at 1009-1011, 1190, 1275. Pachl perceived the February 22, 2001 draft ESY as the District's final proposal. Tr. at 1010-11. On June 18, 2001, Pachl unilaterally placed Sarah at CCHS. Ex. NN, Tr. at 1040. Pachl also stated he believed the District could meet Sarah's needs during the school year and intended to have her return for the 2001-2002 school year. Tr. at 75, 79, 1133, 1188.
A five-day due process hearing was held on June 4 and 5 and July 26, 27 and 30, 2001 to determine whether the proposed ESY provided Sarah with a FAPE and whether Plaintiff was entitled to reimbursement for the Pachl's decision to enroll Sarah in CCHS's ESY program. Based on the hearing, the IHO issued a 26-page Order, which included 76 Findings of Fact and approximately eight pages of Conclusions of Law. IHO Order (Compl.). The Order found the proposed ESY met IDEA's substantive and procedural requirements and did not deny Sarah a FAPE. Id. at 20-25. As a result, the Order denied Plaintiff's request that the District reimburse the Pachls for Sarah's unilateral placement at CCHS. Id. at 25-26. On appeal, the HRO adopted all of the IHO's Findings of Fact and made four additional Findings of Fact. HRO Decision at 3 (Compl.). The HRO's sixteen-page Decision also affirmed the IHO's Conclusions of Law in all respects. Id. at 16
Plaintiff brought this action seeking review of the HRO's determinations. In her Complaint, Plaintiff requests that this Court: (1) vacate or reverse the IHO and HRO's Findings of Fact, Conclusions of Law and Decision; (2) order a comprehensive independent educational evaluation of Sarah; (3) find that Sarah was denied a FAPE in whole or in part for every school year from 1997-98 to present; (4) order Sarah receive twelve weeks of uninterrupted ESY each summer; and (5) award attorneys' fees and costs to Plaintiff. Compl. at 9-10.
C. Procedural Background
Complying with the IDEA and developing an IEP that provides Sarah with a FAPE has long been a matter of dispute between the Pachls and the District. Prior to requesting the due process hearing that led to the instant matter, Defendant submitted two complaints to the Minnesota Department of Children, Families and Learning ("MDCFL") (now the Minnesota Department of Education) and requested two due process hearings. Def.'s Mem. of Law in Supp. of its Mot. to Dismiss Pl.'s Claims or in the Alternative to Stay Proceedings at 2-4. Since this suit was filed, the parties have been involved in at least one other due process hearing requested by the District. Id. at 4. Several conciliation conferences occurred and the parties also entered into multiple settlement agreements along the way.Id. at 2-4.
Plaintiff initially brought the claims alleged in the present Complaint as part of Reinholdson, et al. v. State of Minnesota, et al., Civil Case No. 02-795, which asserted various class-wide allegations under IDEA against the District. This Court denied the Reinholdson's plaintiffs' motion to certify a class and ruled that each plaintiff's individual case should be severed and refiled as separate actions. See 2002 U.S. Dist LEXIS 17169 (D. Minn. Sept. 9, 2002). Plaintiffs appealed this decision to the Eighth Circuit.
While Reinholdson was on appeal, Plaintiff filed the instant Complaint. Subsequently, the District filed its Motion to Dismiss Plaintiff's Claims, or in the Alternative to Stay Proceedings [Docket No. 49]. On September 26, 2003, in the interest of judicial economy and avoiding conflicting decisions, this Court issued an Order staying proceedings in this action. Sept. 26, 2003 Order [Docket No. 64]. As a result, the Court stayed Defendant's Motion to Dismiss, the parties' cross motions for judgment on the record [Docket Nos. 35, 55], and Plaintiff's Motion to Strike Affidavit #2 of Cherie Peterson [Docket No. 42]. Id. The Eighth Circuit has since issued its Opinion in Reinholdson allowing the individual lawsuits against the District to proceed. Reinholdson v. State, 346 F.3d 847 (8th Cir. 2003).
III. DISCUSSION
A. Motion to Dismiss
1. Standard of Review
In considering a motion to dismiss for lack of subject matter jurisdiction under Rules 12(b)(1), courts must construe the pleadings in the light most favorable to the nonmoving party and view the facts alleged in the complaint as true. Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994); Moubry v. Independent Sch. Dist. No. 696, 9 F. Supp. 2d 1086 (8th Cir. 200); Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Any ambiguities concerning the sufficiency of the claims must be resolved in favor of the nonmoving party. Ossman, 825 F. Supp. at 880. "A motion to dismiss should be granted as a practical matter . . . only in the unusual case in which the plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).
2. Plaintiff's Claim that Sarah was Denied a Comprehensive Independent Educational Evaluation and a FAPE from 1997-1998 to Present
Defendant argues that Plaintiff's claims should be dismissed for a variety of reasons, including failure to exhaust administrative remedies, res judicata, and failure to state a claim upon which relief can be granted. Since Defendant filed this motion, many of its arguments have been rendered moot by the Eighth Circuit's decision in Reinholdson and by Plaintiff's subsequent clarification of its claims. Plaintiff's Complaint articulates three claims: (1) the IHO and HRO erred in determining Sarah's ESY was procedurally and substantively adequate and made several procedural errors that vitiated Plaintiff's right to a due process hearing; (2) Sarah is entitled to a comprehensive independent educational evaluation; and (3) Sarah was denied a FAPE for every school year from 1997-1998 to the present.
The IDEA contains a mandatory requirement that Plaintiff exhaust the administrative process before seeking judicial review. See 20 U.S.C. § 1415(i)(2) (stating that a party aggrieved by the due process hearing panel's decision has the right to bring a civil action "with respect to the complaint presented"). See also Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648 (8th Cir. 1999); Moubry, 9 F. Supp. 2d at 1099. The exhaustion requirement allows agencies to "exercise discretion and apply their expertise, . . . allows complete development of the record before judicial review, . . . prevents parties from circumventing the procedures established by Congress, and . . . avoids unnecessary judicial decisions by giving [the district] the opportunity to correct its errors." Blackmon, 198 F.3d at 656 (citation omitted). At the time this suit was brought, the IDEA and corresponding state law required a parent seeking educational services for a child to participate in the IEP process, request conciliation or mediation, and complete a two-tier administrative hearing process before requesting judicial review. See 20 U.S.C. § 1415; Minn. Stat. § 125A.09. As a result, any claims not presented at the administrative hearing level are not properly before this Court and must be dismissed.
Based on the pleadings, Plaintiff has exhausted her administrative remedies with regard to the claims of whether Sarah's ESY services were procedurally and substantively appropriate and whether the District should reimburse the Pachls for Sarah's unilateral placement at CCHS. Furthermore, in her appeal to the HRO, Plaintiff timely alleged the IHO made several procedural errors, thereby preserving these claims for judicial review. See HRO Decision, IHO Procedural Errors ¶¶ 20-31.
Plaintiff further claims that the District violated the IDEA's requirement that every child with a disability receive a comprehensive reevaluation at least every three years. See 20 U.S.C. § 1414(a)(2). On the date this lawsuit was filed, October 11, 2002, Sarah had not been comprehensively reevaluated since March of 1996. Pl.'s Mem. in Supp. of J. on the Pleadings and R. at 10. This claim was not raised in a due process hearing and consequently must be dismissed for failure to exhaust administrative remedies. Plaintiff did request a due process hearing in April 2000 to determine, inter alia, whether the District had inappropriately delayed an assistive technology assessment resulting in denial of a FAPE. September 25, 2000 Findings of Fact, Conclusions and Decision of Independent Hearing Officer Karim El Ghassaway, MDCFL Case No. 372, Blumstein Aff. [Docket No. 51] Ex. 3. Magistrate Judge Susan Nelson ultimately held that the District "unduly delayed in evaluating Sarah Pachl for assistive technology." ISD 11 v. Pachl, 36 IDELR 263, 1140, 41, 43 (D. Minn 2002). However, only the assistive technology component of Sarah's reevaluation, rather than the entire evaluation, was at issue in this earlier due process hearing. Plaintiff made clear in her Complaint that she is seeking relief "not duplicative of the award made through [sic] Court's prior order." Compl. at 10.
Plaintiff argues her claim for an independent, comprehensive reassessment is not barred because exhaustion is not required when it would be futile or when a claim involves a purely legal question. See Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184, 190 (1st Cir. 1993). However, the parties' subsequent dealings indicate this is not a case where exhaustion would be futile. In May 2002, one year after the due process at issue in the instant matter took place, the parties reached an agreement that Sarah would be comprehensively reevaluated. Compl. ¶ 26. As a result of this agreement, the District withdrew without prejudice its request for a due process hearing. Id. In addition to raising concerns that the relief requested is moot, such an agreement suggests that relaxing the exhaustion requirement would undermine reliance on the administrative process set forth by Congress and the State of Minnesota.
Plaintiff also claims Sarah has been denied a full or partial FAPE for each school year from 1997-1998 through present. These claims were also not raised in the due process hearing that spurred this lawsuit. Furthermore, Plaintiff seeks relief for events that had not even occurred at the time the due process hearing was requested. In addition, Defendant has requested at least one due process hearing to determine whether Sarah's IEP provided her with a FAPE in the school years following the due process hearing at issue in this judicial review. Apr. 5, 2002 Letter to Kevin Pachl from Cherie Peterson (Blumstein Aff. [Docket No. 51] Ex. 9). Plaintiff argues the exhaustion requirement is futile given the allegedly systemic nature of the District's perceived violations. However, the parties have resolved at least some issues in their repeated and appropriate use of the IDEA's administrative remedies and it would be inappropriate to undermine that process by disregarding the exhaustion requirement. As a result, this claim is also dismissed for failure to exhaust administrative remedies.
3. Plaintiff's Motion to Strike Affidavit #2 of Cherie Peterson and Defendant's Motion for Summary Judgment
In the event this Court denied Defendant's Motion to Dismiss, Defendant submitted a second affidavit from Cherie Peterson [Docket No. 39] in support of its Motion for Summary Judgment. Plaintiff moved to strike this affidavit on the grounds that Defendant's failure to move to supplement the record prohibited its admission. In light of the Court's ruling that Plaintiff's claim for an independent, comprehensive reassessment of Sarah is barred for failure to exhaust administrative remedies, Plaintiff's Motion to Strike Affidavit #2 of Cherie Peterson is moot. Defendant also moved for summary judgment on the comprehensive reevaluation claim in its Motion for Judgment on the Record/Summary Judgment. For the same reasons, the portion of the motion requesting summary judgment need not be reached.
B. Cross-Motions for Judgment on the Administrative Record
1. Standard of Review
In a motion for judgment on the record brought pursuant to the IDEA, a district court must review the state administrative record, hear additional evidence if requested, and grant such relief as it deems appropriate based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(B); CJN ex rel. SKN v. Minneapolis Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003). "Although a district court should independently determine whether the child has received a FAPE, it must give `due weight' to agency decision-making." CJN, 323 F.3d at 636. The "IDEA does not require that a school either maximize a student's potential or provide the best possible education at public expense." Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997). Rather, a school district satisfies its obligations under the IDEA if: (1) it complies with the Act's procedural requirements and (2) the IEP is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
2. Compliance with IDEA's Procedural Requirements
Plaintiff claims that the HRO erred in upholding the IHO's findings that the District did not violate the procedural requirements of the IDEA when: (1) the IEP team failed to determine ESY services at Sarah's annual IEP meeting; (2) the District convened the February 22, 2001 meeting without the staff required to create a legally constituted IEP team; (3) the District did not provide the parent with notice of his procedural safeguards at the February 22, 2001 meeting; (4) the District gave the parent a partial proposal for Sarah's 2001 ESY program; and (5) the District did not hold a subsequent IEP meeting to complete the program. Each of these objections will be addressed in turn.
Ensuring an IEP complies with the IDEA's procedural requirements is as essential to a student's FAPE as meeting the substantive requirements.See Rowley, 458 U.S. at 205-06. As a result, courts must evaluate an IEP's procedural integrity. See Indep. Sch. Dist. No. 283 v. S.D., 948 F. Supp. 860, 881-82 (D. Minn. 1995) aff'd, 88 F.3d 556 (8th Cir. 1996). However, an IEP will not be found deficient if merely de minimis procedural irregularities exist. See id. at 882. An IEP should be set aside only if "procedural inadequacies compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process, or caused a deprivation of educational benefits." Indep. Sch. Dist. No. 283, 88 F.3d at 562.
a. Timeliness of Sarah's ESY program
Plaintiff argues the District violated the IDEA's procedural requirements by failing to draft an ESY program during the November 20, 2000 meeting when the rest of her IEP was designed. Plaintiff asserts that the District's practice of creating students' ESY programs in the spring places an illegal limitation on the IEP process, results in an incomplete IEP and eliminates the students' ability to challenge the program in a timely due process hearing.
Under 34 C.F.R. § 300.309(3), the District may not limit ESY to particular categories of disability or unilaterally limit the type, amount or duration of those services. § 300.309(3)(i), (ii). Plaintiff argues the District's policy of creating a student's ESY program in the spring is a facially illegal limitation in violation. See Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022, 1029 (10th Cir. 1990). Plaintiff's argument is unpersuasive for two reasons. However, the Record at bar only contains information pertaining to Sarah Pachl and there is no evidentiary basis that the District's decision to determine Sarah's ESY program in the spring rises to the level of a District "policy." Further, the plain meaning of 34 C.F.R. § 300.309(3) makes it clear that the regulation bars limitations on the substance of students' ESY programs, rather than the time period when they must be completed.
Plaintiff argues the IDEA requires districts to create an IEP for each student with a disability "not less than annually" and that an IEP is incomplete if it does not contain a formal ESY program for eligible students. See 20 U.S.C. § 1414(d); 34 C.F.R. §§ 300.343(c), 347(a)(2), (3). It is well established, however, that neither federal nor state law require a student's IEP to determine a student's ESY services by a particular date. The Office of Specific Education Programs spoke to this specific issue when it explained:
There is no need to specify a timeline for determining whether a child should receive ESY services. Public agencies are expected to ensure that these determinations are made in a timely manner so that children with disabilities who require ESY services in order to receive FAPE can receive the necessary services.64 Fed. Reg. 12575, 12577 (March 12, 1999).
This Court finds that the District fully complied in a timely manner with its procedural requirements regarding ESY services. The IEP team agreed at the November 20, 2000 meeting that Sarah required ESY services but decided it would be advantageous to wait until the spring to define specific services to be included in her program. Tr. at 140-41, 155-58, 436-38, 498-99, 809-10. The Record indicates that Sarah's medical condition continued to change between fall 2000 and spring 2001 as she experienced frequent seizures. Exs. H, MM. Sarah had a Vagal Nerve Stimulator (VNS) implanted on May 10, 2001 to help control these seizures. Ex. J; Tr. at 131. Mr. Pachl discussed this surgery and his hope that it would improve Sarah's medical condition at the February 22, 2001 meeting. Ex. L; Tr. at 576-77. Furthermore, the Record shows the parents closely circumscribed access to Sarah's physicians, limiting the District's ability to access information on Sarah's medical condition. Tr. at 68-74, 256-58, 472, 523-24, 1173-75. The purpose of ESY services is to prevent regression and recoupment problems, rather than advance the educational goals outlined in the student's IEP. Letter to Myers, 16 EHLR 290 (OSEP Dec. 18, 1989); Tr. at 499. As a result, the services in the ESY may differ from those provided during the school year. The IEP team's decision to defer until spring the specifics of the ESY services necessary to help Sarah maintain the skills she had learned during the school year was reasonable under the circumstances. Tr. at 140-41, 195-98, 436-38, 498-99; see also Tr. at 1192-93.
Plaintiff relies on Reusch v. Fountain for the proposition that it is "unacceptable . . . to make decisions so late in the school year that the disabled child cannot exercise right of review and/or be given the ESY to which that child was entitled." 872 F. Supp. 1421, 1433 (D. Md. 1994). However, Reusch concerned a school district that made almost 75% of all decisions on ESY eligibility, including all denials of ESY eligibility, after May 1st. Here, the District determined Sarah was eligible for ESY on November 20, 2000. Tr. at 40, 198, 303-04, 615, 809-10. On February 22, 2001, representatives met to discuss Sarah's ESY needs and describe what services might be available to her. Exs. L, 58; Tr. at 441, 720. The parent then requested conciliation on March 6, 2001. Ex. 33; Tr. at 1014. The process was timely begun so that Plaintiff, but for the scheduling problems of Plaintiff's counsel, had sufficient time to complete the IDEA's dispute resolution process prior to summer. The District abided by IDEA's procedural requirements in creating Sarah's ESY.
While, given the facts here presented, the Court finds the District determined ESY services for Sarah in a timely manner, it urges the District to complete ESY proposals as early as possible in the school year to provide students and their families some certainty, and to allow time for the IDEA's administrative process to run its course, if necessary.
b. Incomplete IEP team at February 22, 2001 meeting
Plaintiff argues that the District denied Sarah a FAPE because it convened the February 22, 2001 meeting without the paraprofessional and motor team members in attendance. As a result, the persons present at the meeting did not make up a legally constituted IEP team. See Minn. R. 325.2810, subp. 1 (B).
The Court finds Mr. Pachl played a pivotal role in determining who attended the February 22, 2001 meeting and the absence of the paraprofessional and motor team members was largely due to the District's attempts to accommodate his wishes. Even assuming a procedural irregularity did occur, it did not rise to the level necessary to deny Sarah a FAPE. See Indep. Sch. Dist. No. 283, 88 F.3d at 562. Pachl requested the meeting, provided possible dates, and told Kelderman which IEP team members should attend. Ex. 58; Tr. at 104, 58, 62-64, 232-33, 978-99. Although Pachl did not ask that any team members be excluded, Kelderman and Peterson agreed, due to the length of past meetings, that the paraprofessional and motor team members need not attend. Ex. L; Tr. at 105-06, 306, 360, 754-55, 1153-58. In addition Pachl had previously objected to the attendance of certain district staff to IEP meetings. Tr. at 1157-58. The absent team members were consulted prior to the meeting. Tr. at 307, 410-11. Regardless of whether Pachl intended to dictate who should attend, the District's decision to exclude certain IEP members from the February 22, 2001 meeting was undertaken in a good faith effort to comply with Pachl's wishes. Ex. L; Tr. at 105-06, 306, 360, 754-55, 1153-58. The District acknowledged at the meeting that these two IEP team members were missing but noted that they would attend a subsequent meeting where Sarah's ESY would be finalized. Ex. L; Tr. at 759-60. Peterson did attempt to schedule another meeting with the full IEP team to finalize Sarah's ESY proposal. Ex. 64; Tr. at 773-75. The Court finds Sarah was not denied a FAPE by the absence of the paraprofessional and motor team members from the February 22, 2001 meeting.
c. Notice of Procedural Safeguards at February 22, 2004 Meeting
Plaintiff claims the District violated the IDEA by not providing Mr. Pachl with notice of procedural safeguards at the February 22, 2001 meeting. Plaintiff's parent was entitled to a copy of his procedural rights at or in advance of the February 22, 2001 meeting. Although Pachl denied he received a copy of his procedural rights and safeguards at the meeting, he could not remember whether he received a copy with the Notice of Team Meeting. Tr. at 1153, 1274. Pachl previosuly received a copy of these rights at a similar meeting on November 20, 2000. See Ex. 48. Furthermore, Plaintiff's parents had previously participated in Sarah's IEP meetings and requested conciliation conferences and due process hearings. Although Pachl claims he was unclear as to his procedural rights pertaining to ESY services, he concedes he was familiar with IDEA's requirements and procedural safeguards and knew he had the right to disagree with IEP team decisions. Tr. at 38-39, 95-98, 1119, 1122. Furthermore, Pachl requested conciliation over Sarah's ESY proposal on February 28, 2001, less than one week after the February 22, 2001 meeting. Ex. Y. As a result, this "procedural inadequacy did not compromise the pupil's right to an appropriate education, seriously hamper the parents' opportunity to participate in the formulation process, or cause a deprivation of educational benefits." Indep. Sch. Dist. No. 283, 88 F.3d at 562.
d. The Completeness of the District's ESY Proposal and the Failure of the District to Hold Subsequent Meetings
Plaintiff contends the District denied Sarah a FAPE by developing an incomplete ESY proposal at the February 22, 2001 meeting and failing to hold subsequent meetings to finalize Sarah's ESY program. As these alleged procedural inadequacies are intertwined, they will be considered together.
The members of the IEP team who attended the February 22, 2001 meeting clearly understood the purpose of the meeting was to discuss Sarah's ESY needs and program options. Ex. L; Tr. at 441, 720. Kelderman used the District's directions for preparing 2001 ESY services as an outline to facilitate the discussion. Ex. L; Tr. at 489-91. The District staff and Mr. Pachl all agreed it was appropriate to continue the goals and objectives outlined in Sarah's IEP and used these goals as the foundation for Sarah's ESY proposal. Ex. L; Tr. at 108-10, 489-95, 617-18. District staff explained a range of ESY services were available for Sarah in the District, including home-based services, occupational and physical therapy and a traditional, in-school ESY component. Ex. L; Tr. at 115-19, 451-52, 617-18. Because Sarah frequently experiences seizures, particularly in the morning, which prevent her from receiving educational programming, Peterson acknowledged that Sarah's health must be considered in developing her ESY program. Ex. L. Although the District typically provides ESY services in the morning, Peterson stated additional time or programming alternatives should be included to account for Sarah's morning health complications. Ex. L. District staff was aware that Sarah's medical condition for the approaching summer might change depending on the success of the VNS implant. Ex. L.
Mr. Pachl also participated in the February 22, 2001 meeting. The record of the meeting indicates that Pachl infrequently offered suggestions concerning the ESY goals, objectives or programming alternatives. Ex. L; Tr. at 761. Several District staff testified Pachl attended the February 22, 2001 meeting having already decided Sarah would attend CCHS and would not have accepted any other ESY placement. Tr. at 144-45, 147, 270-71, 289, 457, 537, 619, 841, 846. The transcript of the meeting supports this interpretation of Pachl's objective. Unlike the November 20, 2000 IEP meeting, Pachl controlled the agenda of the meeting. Ex. L; Tr. at 772, 816. The transcript is replete with his statements demanding the District present a written proposal. During the team's discussions of ESY options for Sarah, Pachl asked "What would the District's proposal be?" and "could you write up the proposal on a piece of . . . an ESY form . . . and hand it to us." Ex. L. When Kelderman stated "we usually don't propose something unless . . ." Pachl interjected "the only reason I was asking for something in writing is you know what was exchanged so the administration doesn't play any games . . . you know . . . saying we didn't propose that. . . ." Id. Kelderman asked Pachl "where are you coming from" at which point Pachl introduced CCHS and explained its 8-week, residential ESY program was "the best and longest" program he could find. Id.; Tr. at 1227-28. Although Pachl explained the program took place in a hospital setting where both school and medical services were provided, he indicated CCHS's proposed ESY program mirrored Sarah's current IEP with all of its related services. Ex. L ("What we are proposing is basically her IEP as it stands now, agreed upon IEP with all of the services"). Staff listened and proposed questions about the CCHS program to Pachl. Id.; Tr. at 619-20. He offered no other suggestions or alternatives for Sarah's ESY program. Ex. L; Tr. at 270-71, 1159-64, 1187. After he finished discussing the program, he stated "we've given you our program in writing and we're curious what yours would be? . . . what would it look like on . . . paper?" Ex. L.
District staff were surprised and "flabbergasted" by the CCHS proposal. Tr. at 115-19, 767-68. Although Mr. Pachl thinks he or his wife may have casually mentioned the program to District staff sometime before the February 22, 2001 meeting, the members of the IEP team testified this was the first time Pachl had introduced the program. Tr. at 54-60, 62, 115-19, 767-68, 1124.
Based on Mr. Pachl's repeated requests, the District representatives drafted a preliminary ESY proposal. Ex. L; Tr. at 115-19, 720. The proposal was premised on Sarah's 2000 ESY program and used the goals and objectives from Sarah's 2001 IEP. Ex. L; Tr. at 108-10, 214, 489-95, 617-18, 761-66. The proposal was handwritten on goal pages from Sarah's 2001 IEP that Kelderman had copied for the meeting. Exs. L, 62. The transcript supports the testimony of Peterson, Kelderman, Melanie O'Hara, the Educational Speech-Language Pathologist, and Lois Cranston, Sarah's Homebound Instructor, that the team discussed several proposals for ESY services at the meeting. Ex. L; Tr. at 115-19, 451-52, 617-18. Due to the absence of the paraprofessional and motor team members, the proposal did not contain goals in the motor areas. Ex. L; Tr. at 371-72, 412, 759. At Pachl's repeated urging, the plan also attempted to define the time period when ESY services would begin, break, resume and conclude. Ex. L. Kelderman testified she believed the District's proposed IEP would provide Sarah with educational benefit. Tr. at 119-20, 132.
District staff repeatedly testified that the written proposal could not be viewed as a final proposal. Tr. at 110-19, 286, 371-72, 490. Mr. Pachl also made several statements indicating the proposal was preliminary in nature. In requesting a written proposal, he made the comments: "if its handwritten that's fine, doesn't have to be perfect", "Just your, like the outline of your summer program . . ." and "if you just get a rough draft here, I don't want to be picky over your draft . . ." Ex. L.
The transcript of the meeting supports that Mr. Pachl's objective was to secure a commitment from the District to provide some funding for Sarah's placement at CCHS. At the beginning of the meeting, Pachl asked Peterson if she "could give financial approval as a special ed administrator to commit District funds to what the IEP team decides."Id. At one point, Pachl proposed figures "for the sake of trying to reach a deal." Id. At the conclusion of the meeting, Pachl indicated he may unilaterally place Sarah at CCHS when he stated, "we may proceed with Sioux Falls [CCHS's location] on our own if the school cannot come up with a better proposal than the one that was just made" and "we're assuming, am I right to assume that the answer is no for Sioux Falls? . . . Cause if we could not get an answer today, we will assume the answer is no." Id. Peterson responded that the District:
. . . strongly believed that the proposal we are offering does indeed provide for an appropriate ESY program and we'd be willing to look at any other combinations. I think there are a number of ways we can provide services in the [District] to maintain Sarah's skill level. Given that we would not be, given the fact that we can provide within the District we would not enter into an agreement right now to send her elsewhere.Id. Peterson testified all of the IEP team members present at the February 22, 2001 meeting concluded the District could provide Sarah with appropriate ESY services and rejected the idea that it was necessary to send her to CCHS. Tr. at 132, 457, 466, 544, 779-80, 822.
On February 28, 2001, Peterson sent Plaintiff a letter summarizing the results of the February 22, 2001 meeting and reiterating the District's position that it could provide Sarah with appropriate ESY services. Ex. 64; Tr. at 773-75. Peterson indicated the District's willingness to convene another meeting with Sarah's entire IEP team to finalize the proposal. Ex. 64; Tr. at 773-75. Plaintiff responded that same day through a facsimile requesting a conciliation hearing on Sarah's proposed 2001 ESY program. Ex. Y.
Although the 2001 ESY proposal that emerged from the February 22, 2001 meeting was incomplete, the Court finds the District did not violate the IDEA's procedural requirements. Mr. Pachl attended the meeting with the purpose of garnering District approval for the residential CCHS program in Sioux Falls, SD. Prior to the meeting, Plaintiff had solicited letters from Sarah's physicians supporting her placement at CCHS and inquired as to whether his insurance company would cover its cost. Ex. T; Tr. at 66-68, 1123-24, 1152-53. At the meeting, Pachl did not consider alternative proposals that involved ESY services provided by the District. He surprised District staff by introducing CCHS and then directed the District to commit to writing a preliminary proposal. The proposal itself continues the objectives and goals set forth in Sarah's 2001 IEP and is based on the services provided in her 2000 ESY program. Plaintiff did not challenge the substantive or procedural appropriateness of this program. The proposal contains speech language direct services, homebound services and unspecified community education classes. Pachl's comments indicated he understood the proposal to be a "rough draft." Ex. L. When the District expressed its intent to convene a more formal IEP meeting to finalize the ESY proposal, Plaintiff demanded a conciliation conference. Although the District's proposed ESY program is not complete, this Court can not find the proposal violates the IDEA's procedural requirements in these circumstances where Plaintiff insisted the District draft the rough proposal and then withdrew from the process of finalizing it.
Plaintiff also argues the District violated IDEA's procedural requirements by failing to convene another IEP meeting to finalize Sarah's ESY proposal, despite Plaintiff's request for a conciliation hearing.
Defendant argues Plaintiff has waived any right to challenge the procedural appropriateness of the District's ESY or the manner in which it is proposed. See Cordrey v. Eukert, 917 F.2d 1460 (6th Cir. 1990). InCordrey, the District convened a meeting where all the members of a legally constituted IEP team were not present. Id. at 1463. When the District was notified the IEP team was deficient, it immediately declared the meeting preliminary and stated its intention to convene another meeting that complied with the IDEA's requirements. Id. at 1463-64. However, before the subsequent meeting could be held, the parents initiated a due process hearing. Id. at 1464. The parents listed, inter alia, the District's failure to convene a properly constituted IEP meeting and failure to propose a timely ESY among the issues for the hearing. Id.
The Sixth Circuit found the District did not violate the IDEA by failing to convene another IEP meeting or formally propose an ESY program and affirmed the district court's holding that the parents had waived their rights to make procedural challenges. Id. at 1466. The Sixth Circuit explained that the IDEA's procedural protections were designed to insure parent participation but cautioned that parents could not use these rights to subvert the IEP process:
We emphasize today that the parents likewise are obligated to operate within the Act's procedural framework . . . [W]e are unwilling to hold the school district's initial failure to comply with its procedural obligations, followed promptly by an offer to remedy its default, was sufficient to entitle the parents to abort the IEP process.Id. The Court of Appeals found the parents acted knowingly and voluntarily in refusing to attend the subsequent IEP meeting. Id. Although the parents alleged they were prevented from participating in the IEP process, the Sixth Circuit believed they were attempting to use the administrative review process as an alternative route for obtaining the ESY programming they thought appropriate for their child. Id.
Similarly, in the instant matter, the District acknowledged that a legally constituted IEP team did not attend the February 22, 2001 meeting but declared its intent to convene a proper IEP meeting to formalize Sarah's 2001 ESY program. The IEP representatives stated the ESY program they drafted at the February 22, 2001 meeting was a preliminary proposal. In the February 28, 2001 letter to the Pachls, the District subsequently confirmed its intent to convene a fully compliant IEP meeting. Rather than participate in a formal meeting with the entire IEP team, the Pachls responded by requesting a conciliation conference. That conference led directly to the due process hearing that preceded this judicial review.
Plaintiff argues Cordrey is distinguishable from the present case. Under 34 C.F.R. § 300.345(d), a school district may conduct an IEP meeting even if, after repeated attempts by the district to ensure their participation, neither parent chooses to attend. Norton Pub. Sch., 16 EHLR 832 (SEA MA 1990). Because the District did not actually schedule a date for another meeting to complete the ESY proposal, Plaintiff claims theCordrey analysis should not apply. Plaintiff also argues the District could not have known whether the Pachls would have chosen to attend such a meeting.
Again, Plaintiff's manipulation of the administrative process is at the heart of the procedural irregularities. In its February 28, 2001 letter to Sarah's parents, the District relayed its intent to convene a properly noticed and legally constituted IEP meeting to finalize Sarah's 2001 ESY proposal. That same day, the parent responded by requesting a conciliation hearing regarding ESY services for Sarah. Conciliation hearings are requested when parents object to a District proposal. See Minn. R. 3525.3700. In addition, at the February 22, 2001 meeting, Mr. Pachl made clear that he would accept only the CCHS program as the ESY component of the IEP. Finally, Pachl testified that he took the District's February 22, 2001 ESY proposal as its final proposal. Tr. at 1009-11. As a result, the District was justified in its belief that the Pachls had aborted the IEP process with regard to Sarah's 2001 ESY and that convening an additional IEP meeting to finalize her ESY would be futile.
For the preceding reasons, the Court finds the District's failure to submit a formal ESY proposal or failure to convene a subsequent IEP meeting to create a formal ESY program did not violate the IDEA's procedural requirements.
3. Compliance with IDEA's Substantive Requirements
Plaintiff repeatedly claims that Sarah's proposed ESY was substantively inappropriate but fails to specify why. Nonetheless, the Court will consider whether the proposed ESY meets IDEA's substantive requirements.
A student's ESY is substantively appropriate if it is individually tailored and consistent with the student's needs and "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 206-07. A student's IEP does not need to maximize a student's potential or provide the best possible education. Fort Zumwalt Sch. Dist., 119 F.3d at 612. It need only ensure the student receives "meaningful benefit" from her education. Ridgewood Bd. of Educ. v. NE, 30 IDELR 41 (3d Cir. 1999). It does require that a student's IEP team use their best efforts to create an individualized plan for the student. 34 §§ C.F.R. 300.344, 300.346, 300.347. A student's ESY is an individualized extension of specific services beyond the school year that is designed to make the level of regression and recoupment comparable to nondisabled peers, rather than facilitate educational progress. Howard County Pub. Schs., 24 IDELR 719 (SEA MD 1996).
The Record contains credible testimony that Sarah was making educational progress under her 2000-2001 IEP and that the program provided her with a FAPE. Ex. 47; Tr. at 130, 348-52, 361-63, 468. Mr. Pachl never indicated, either at the November 20, 2000 meeting or subsequently, that the District was unable to appropriately serve Sarah's educational needs. Tr. at 1125-30. Pachl also expressed the District could meet Sarah's educational needs during the 2001-2002 school year and intended to return Sarah to the school district following her summer at CCHS. Tr. at 75, 1133, 1188. Sarah's ESY incorporated all the goals, objectives and services set forth in her IEP for the 2001-2002 school year. Exs. L, 55, 62; Tr. at 371-72, 489-94. The 2001 ESY was also based on the services provided in Sarah's 2000 ESY program. Exs. L, 62; Tr. 108-10, 214. Plaintiff has not challenged the substantive appropriateness of the 2000 ESY program. Tr. at 108-10. Although the setting and duration of special education and related services was never finalized, this failure was the consequence of Plaintiff's decision to request conciliation. At the end of the February 22, 2001 meeting and during testimony at the due process hearing, each of the IEP team members present at the February 22, 2001 meeting stated they believed the District's ESY program would provide Sarah with a FAPE. Ex. L; Tr. at 119-20, 132, 457, 466, 544, 768-71, 822.
Furthermore, the parent stated the proposed services at CCHS mirrored those offered in Sarah's 2000-2001 IEP. Ex. L; Tr. at 1288-89. Mr. Pachl testified that Sarah would receive the same amount of physical therapy, occupational therapy and speech services at CCHS as she would have received under the District's program. Tr. at 1288-89. He went on to state that CCHS was able to provide Sarah with medical services, such as a full time nurse, not available through the District. Tr. at 1290-93. As a result, the Court agrees with the IHO and HRO's conclusion that "the difference between the CCHS and District educational program was not the Student's IEP goals and objectives, but only the place of service and the residential component." HRO Decision ¶ 54.
The Plaintiff presented no evidence that Sarah's medical conditions required she attend a residential education program in order to receive a FAPE. Although Sarah's physicians authored letters supporting her placement at CCHS, the letters did not state a residential program was necessary to provide Sarah with a FAPE. Sarah's physician, Dr. Frost, testified that Sarah does not require hospitalization on a full-time basis to receive educational benefit, nor had he ever informed the District that she required such placement. Tr. at 1141, 1257-62. He further noted that she does not require a nurse at school. Tr. at 1261-62. While Dr. Frost opined it is not possible to identify which syndrome or disorder causes or impacts Sarah's learning disabilities, he stated it was possible to distinguish between the different types of services needed as a result of Sarah's medical and educational needs. Tr. at 1270-71. There is no basis to conclude that Sarah required residential hospitalization to receive a FAPE.
For the aforementioned reasons, the Court finds the District's proposed 2001 ESY would have provided Sarah with a FAPE.
4. Reimbursement for Sarah's Placement at CCHS
Plaintiff contends the District is obligated to reimburse the Pachls for the cost of placing Sarah at CCHS during the summer of 2001.
Under the IDEA, a district who cannot provide a FAPE to a student with a disability may place or refer the student to a private school at public expense. 34 § C.F.R. 300.302. However, the district is not required to pay the cost of education, including special education and related services, of a student with a disability if the District made FAPE available and the parents unilaterally placed the student in a private school. 34 § C.F.R. 300.403.
A parent who seeks reimbursement for a unilateral placement must show: (1) the regular school placement did not provide the student with a FAPE and (2) the alternative placement was appropriate. Burlington Sch. Committee v. Dept. of Educ., 471 U.S. 359, 370 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) ("parents who . . . `unilaterally challenge their placement during the pendency of review proceedings' . . . are entitled to reimbursement only if a federal court concludes both that the public placement violated the IDEA and the private school placement was proper under the Act." (emphasis in original) (citation omitted)).
Plaintiff argues that the Court should use the standard promulgated inAlamo Heights Independent Sch. Dist. v. State Brd. of Educ., 790 F.2d 1153, 1161(5th Cir. 1986), rather than the Burlington test. Plaintiff claimsAlamo Heights is closely apposite because it considered reimbursement for ESY services instead of the school year services at issue in Burlington. Id. at 1156-58. As in the instant case, the parents in Alamo Heights intended to return the student to the District when the school year resumed.
Plaintiff's argument is misguided. The Alamo Heights court used the standard promulgated in Burlington in holding that Plaintiffs were entitled to reimbursement for expenses resulting from the student's private ESY services. Id. at 1160-61. The court held Plaintiff did not need to satisfy the second prong of the Burlington test because the District had failed to make any ESY services available to the student.Id. at 1157-58, 1161. As a result, any alternative ESY program was more appropriate then the total absence of a District program. Id. at 1161.
As this Court has held that the District's proposed ESY is substantively and procedurally appropriate, Plaintiff is unable to meet the first prong of the Burlington standard. Furthermore, even if Plaintiff could show the District's proposed ESY does not provide Sarah with a FAPE, Plaintiff presented no evidence in the Record to demonstrate CCHS's program was appropriate for Sarah. Plaintiff's own physician testified that Sarah did not require residential hospitalization, or even a nurse, to receive educational benefit. Tr. at 1141, 1257-62. Mr. Pachl's testimony that he intended to return Sarah to the District for the 2001-2002 school year further strengthens this conclusion. Tr. at 75. Although CCHS may provide a better program than the ESY within the District, the IDEA does not require the District offer Sarah the "best" program available. Fort Zumwalt Sch. Dist., 119 F.3d at 612. The Act only requires the District provide Sarah with a program that provides meaningful educational benefit. Rowley, 458 U.S. at 195. The District's proposed ESY would have done so.
The District also argues Plaintiff is not entitled to reimbursement for Sarah's placement at CCHS because the program violated the least restrictive environment ("LRE") requirement of the IDEA. Both the IDEA and state law mandate that students with disabilities be educated with children who do not have disabilities "to the maximum extent appropriate." 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.550; Minn. R. 3525.0400. The District claims residential placement violated the LRE requirement because Plaintiff has presented no evidence that Sarah could not receive a FAPE in public school. See Sylvie M. v. Bd. of Educ. of Dripping Springs Indep. Sch. Dist., 48 F.Supp.2d 681, 697 (W.D. Tex. 1999). Because Plaintiff has failed to satisfy either prong of theBurlington standard, this defense will not be further analyzed here.
5. Due Process Hearing
Plaintiff claims the IHO committed several procedural and evidentiary errors that vitiated Plaintiff's right to a due process hearing. Specifically, Plaintiff alleges the IHO erred by: (1) failing to rule promptly on Sarah's ESY "stay put" program; (2) accepting or refusing evidence in an arbitrary fashion; (3) correcting the transcript without notice to the parties; and (4) impermissibly shifting the burden of proof to the Plaintiff. Compl. ¶ 22.
a. "Stay Put" Decision
Plaintiff argues the IHO erred by ruling on June 4, 2001, the first day of the hearing, on Sarah's stay put placement. See Ex. 29. Plaintiff contends all of the information necessary for the stay put determination was submitted by April 25, 2001 and claims the intervening 40 day period "adversely affected the family's ability to plan for Sarah and for the hearing." Pl.'s Resp. Mem. to Def.'s Mot. for J. on the R. at 30. Plaintiff advocated that the appropriate stay put program for Sarah was CCHS.
As Plaintiff concedes in her response memorandum, "[n]either the IDEA nor Minnesota law state how quickly a parent can expect a decision on `stay put' from a hearing officer." Id. at 29-30. Furthermore, Plaintiff and her family were not prejudiced by the timing of the IHO's stay put decision. First, the regular school year was still in session at the time the IHO issued her ruling, so it was unnecessary to render a stay put decision before the advent of the hearing. Second, 34 C.F.R. § 300.514(a) requires that a student involved in a pending due process hearing remain in her current educational placement unless the school and the parents agree otherwise. Because no agreement existed between the Pachls and the District to send Sarah to CCHS, the appropriate stay put placement was controlled by the January 3, 2001 IEP. For these reasons, the IHO did not err in issuing the stay put placement on June 4, 2001.
b. Accepting or Refusing Evidence
Plaintiff claims the IHO erred by accepting or refusing evidence in an arbitrary fashion. Specifically, Plaintiff argues the IHO erred by: (1) refusing to permit evidence concerning CCHS's residential ESY program, and (2) accepting some evidence created prior to 2000-2001 while rejecting other evidence created during the same period. Each of these objections will be addressed in turn.
i. Exclusion of CCHS Evidence
The first two days of the due process hearing occurred on June 4 and 5, 2001. Due to issues surrounding Plaintiff's counsel's availability, the hearing was continued to July 26, 27 and 30, 2001. Ex. 30; Tr. 579-87, 778. During the intervening period, on June 18, 2001, Sarah began attending CCHS in South Dakota. Ex. NN; Tr. at 1040. On July 17 and 18, 2001, Plaintiff noticed the IHO and the District that she wished to introduce evidence and call several witnesses from CCHS. Exs. 34, 36. Citing 34 C.F.R. § 3000.509(a)(3) and Minn. R. 3525.4200, the IHO refused to permit any of the CCHS witnesses to testify and excluded nearly all of the proffered evidence. Ex. 38. Plaintiff argues that the IHO erred in excluding these witnesses and evidence.
Under 34 C.F.R. § 300.509(a)(3), any party has a right to "[p]rohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing." Likewise, Minn. R. 3525.4200 requires the parties provide a witness list five days before the hearing but allows for subsequent modification of the list. Plaintiff argues that the "five day rule" begins anew during the continuance of a due process hearing and allows the parties to introduce additional evidence provided it is disclosed at least five days before the hearing resumes. She notes that, in a due process hearing held at the same time and in the same district, the IHO permitted introduction of similar evidence after a continuance. Erdman v. ISD 11, MDCFL Case No. 431-2 (SEA MN 2001) Plaintiff also argues that Minn. R. 3525.4200 allows for the modification of the witness list at any time.
Plaintiff's arguments are unpersuasive. The plain language of 34 C.F.R. § 300.509(a)(3) provides a party the right to exclude evidence not disclosed to a party at least five business days before the hearing.Letter to Steinke, 18 IDELR 739 (OSEP 1992). This right is not curtailed in the event of a continuance. Plaintiff's attempt to cite Erdman is inapposite. In that due process hearing, the IHO found that the documentary evidence, disclosed by the District later than five days before the hearing, was previously disclosed to the student's parents more than a week earlier. Erdman, MDCFL Case No. 431-2. No such prior disclosure occurred in the instant matter.
Furthermore, the IHO has discretion to admit or reject evidence. See Minn. R. 3525.4200; Minn. Stat. § 125A.09, subd. 16. As the IHO noted, the intent of § 300.509 is to avoid surprise by either party. See Order,In the Matter of Sarah Pachl v. Anoka Hennepin I.S.D. 0011, (Ex. 38) at 3. The IHO determined that allowing the CCHS witnesses to testify at such a late date would unduly prejudice the District. Id. It would be difficult for the District to locate teachers on summer vacation and the expert witnesses that might be necessary to rebut the testimony of CCHS witnesses on short notice. Id. This determination, as well as the decision to exclude evidence under the five day rule, was within the IHO's discretion.
Finally, even if the IHO erred in excluding evidence regarding CCHS's ESY program, such an error was harmless. Evidence concerning the CCHS program was only relevant to the second prong of the Burlington test. Under Burlington, a parent who unilaterally removes a student from the local public school system is only eligible for reimbursement for the alternative placement if: (1) the regular school placement was improper, and (2) the alternative placement was appropriate. 471 U.S. at 370. The failure to show the ESY services proposed by the District for Sarah were improper, renders the suitability of the CCHS program irrelevant.
ii. Evidence Offered for Admission that Was Created Prior to 2000-2001
Plaintiff contends the IHO erred in admitting some evidence created before 2000-2001 while excluding other evidence created during that same time frame. Plaintiff and her counsel stated the purpose of the due process hearing was to resolve issues surrounding Sarah's ESY 2001 and determine whether CCHS was the appropriate ESY placement for Sarah. Exs. GG, 4. Plaintiff's counsel did not raise any procedural or substantive issues concerning Sarah's 2000 ESY program in her Statement of Objections. See Ex. 4; see also 312-14, 317-19, 332-42. Under Minn. Stat. § 125A.09, subd. 6, it is well established that "all issues not pleaded with specificity are deemed waived." Therefore, the IHO correctly excluded testimony concerning the procedural or substantive adequacy of Sarah's 2000 ESY programming as irrelevant.
The District's defense of the appropriateness of Sarah's 2001 ESY proposal relied, in part, on the parties' apparent agreement that the ESY services provided during the summer of 2000 were proper. As Sarah's proposed 2001 ESY services were initially premised on the 2000 ESY program, information pertaining to the 2000 ESY program was relevant to issues in the hearing. Ex. 31. Therefore, the IHO did not err in admitting evidence regarding the 2000 ESY for the purpose of showing Sarah's 2001 ESY proposal was appropriate.
Plaintiff argues she sought to litigate only issues concerning the 2000-2001 school year and the IHO erred by admitting exhibits that were created prior to the 2000-2001 school year. As the HRO explains, however, the IHO explicitly stated these exhibits were permitted because "there were parts of the exhibit that did pertain to the 2000-2001 school year" and properly noted on the Record that "information included in the exhibit that was not pertinent to the issues or time period were deemed irrelevant to this hearing." IHO Order ¶ 13; Tr. at 969-70; HRO Decision ¶ 13. Although the IHO could have redacted the extraneous information, it was within her discretion to admit the contested exhibits in this manner.
c. Correcting the Transcript
Plaintiff claims the IHO erred by making "arbitrary and sua sponte corrections to the original transcript" and omitting words from statements that changed the meaning of the responses. Pl.'s Resp. Mem. to Def.'s Mot. for J. on the R. at 32. In Procedural Finding 17, the IHO states:
The hearing transcript contains a number of errors which are not limited to those noted herein: 1) Accumulative should be read as cumulative throughout the transcript, 2) the word "faith" was inserted for the word FAPE . . . (T[r]. 163), 3) [w]ords were omitted from witness statements that changed the meaning of their response (T[r]. 457). The IHO corrected the original transcript when evidentiary errors were noted.
Plaintiff notes that 34 C.F.R. § 300.509(a)(3) provides that parents have the right to "obtain a . . . verbatim transcript of the hearing" and argues the failure of the IHO and the HRO to abide by this provision precludes the Court from giving the hearing decision any deference. See Pl.'s Resp. Mem. to Def.'s Mot. for J. on the R. [Docket No. 58] at 32.
After reviewing the Record, the Court endorses the HRO's assessment that the IHO did not rely on these corrections in rendering her decision. Changing "accumulative" to "cumulative" or "faith" to "FAPE" does not materially effect the witnesses' testimony. The IHO also noted that words were changed on page 457 that altered the meaning of the witness' response. Page 457 is only cited in Findings of Fact 51 and 59. Plaintiff argues that the IHO relied in part on these Findings of Fact to determine whether "the staff believed they could provide the child with an appropriate ESY." Pl.'s Resp. Mem. to Def.'s Mot. for J. on the R. at 32. This Court agrees with the HRO's finding that the Findings of Fact are supported by the witness' statements on page 457 as written. HRO Decision ¶ 31. In addition, Findings 51 and 59 rely on several additional statements in the transcript not on page 457. Furthermore, the witness' testimony contains other statements sufficient to support the conclusion that staff believed the District could provide Sarah with an appropriate FAPE. See Tr. at 465. As a result, any error that may have occurred as a result of the IHO altering the transcript was harmless and does not effect the deference given to the IHO's Order.
d. Burden of Proof
Finally, Plaintiff argues the IHO erroneously assigned the burden of proof to Plaintiff. Plaintiff acknowledges both the IHO and HRO explicitly state that the District had the burden of proof to show by a preponderance of the evidence that its actions and the proposed ESY were appropriate and provided Sarah with a FAPE. IHO Order at 18. HRO Decision ¶ 4; see Minn. R. 3525.3900. However, Plaintiff argues the IHO and HRO's decisions are in error because they effectively placed the burden of proof on Plaintiff.
Plaintiff's argument appears to conflate the separate inquiries of whether the District's proposed ESY provided Sarah with a FAPE and whether the parent is entitled to reimbursement for unilaterally placing Sarah at CCHS. Under the first inquiry, the burden of proof is clearly on the District. See Minn. R. 3525.3900. Both the IHO and HRO found the District sustained its burden of proof by a preponderance of the evidence. As the HRO correctly noted, however, "[a]lthough school districts have the burden of showing that they provided FAPE, parents seeking reimbursement have the burden of showing that private placement (or private services) was proper under the IDEA." HRO Decision ¶ 60.See Brantley v. Independent Sch. Dist. No. 625, 936 F.Supp. 649, 655 (D. Minn. 1996). See also Burlington, 471 U.S. at 370; Florence County Sch. Dist. Four, 510 U.S. at 15. Plaintiff argues that the HRO's citation to Brantley is inappropriate because it is a traditional Burlington case and not an analogous ESY summer situation like Alamo Heights. This Court has rejected the alleged distinction created by the ESY context. Furthermore, even the Alamo Heights court stated that the reliance the IDEA places on the expertise of local education authorities creates "`a presumption in favor of the education placement established by [a child's] IEP' and `the party attacking its terms should bear the burden of showing why the educational setting established by the IEP is not appropriate.'" 790 F.2d at 1158 (quoting Tatro v. Texas, 703 F.2d 823, 830 (5th Cir. 1983) aff'd, 468 U.S. 883 (1984)). Regardless, both the IHO and HRO clearly determined the District met its burden of showing its 2001 ESY proposal was procedurally and substantively appropriate for Sarah before they considered the issue of reimbursement. Therefore, both the IHO and HRO assigned the burdens of proof correctly.
The unmitigated desire of Sarah Pachl's parents to provide her with the absolute best services available is understandable. While this Court is strongly empathetic to their objective, the means to this end of engaging in highly contentious, protracted litigation is troubling. No potential issue or claimed irregularity, however small, is disregarded as grounds for finding error. Whether this misdirected advocacy is counsel's or the Pachl's strategy, this practice ultimately achieves no gain for Sarah and causes scarce public education resources to be stretched even further. The end result is that less and less services are available for the students who desperately need them. This is a case where no one wins and everyone loses.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. Plaintiff's Motion for Judgment on the Pleadings and Administrative Record [Docket No. 35] is DENIED;
2. Defendant's Motion to Dismiss, or in the Alternative to Stay Proceedings [Docket No. 49] is GRANTED IN PART AND DENIED IN PART;
3. Defendant's Motion for Judgment on the Record/Summary Judgment [Docket No. 55] is GRANTED IN PART AND DISMISSED IN PART as moot;
4. Plaintiff's Motion to Strike Affidavit #2 of Cherie Peterson [Docket No. 42] is DISMISSED as moot; and,
5. Plaintiff's Complaint is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.