Opinion
Case No. 1:03-cv-00939-DFH-VSS.
February 4, 2005
MEMORANDUM OPINION
The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1491, requires that states, as a condition on receipt of certain federal funds, provide to all children with disabilities a "free appropriate public education." 20 U.S.C. § 1412(a)(1). The education must be tailored to the individual needs of the child, as reflected in an individualized education program ("IEP") for each child. 20 U.S.C. § 1414(d). An IEP is a written statement developed for each school year by an "IEP Team" consisting of the child's parents, teachers, and other special education advisors. The IEP sets forth the child's present educational abilities, annual and short-term goals for improvement, and the individualized instructional methods and services necessary to achieve those goals. 20 U.S.C. § 1414(d)(1)(A). Courts evaluate the "appropriateness" of the education a state proposes for a particular child, and thus its compliance with the IDEA, primarily by focusing on the IEP and its implementation.
The IDEA was amended recently by the Individuals with Disabilities Education Improvement Act of 2004, Pub.L. No. 108-446, § 302. The amendment takes effect on July 1, 2005, and does not affect this case. Citations in this entry are to the statute prior to the amendment.
This case involves a dispute between the parents of a child with autism spectrum disorder and a public school district over whether the education the district proposed to provide for the child would have been "appropriate" under the IDEA. At a state administrative hearing, a hearing officer ruled in favor of the school district, finding that the proposed IEP complied with the IDEA. The ruling was upheld on administrative appeal by the State Board of Educational Appeals ("BSEA"). As explained below, the court affirms the administrative ruling. The school district did not violate the procedural requirements of the IDEA, and its proposed IEP for the child was reasonably calculated to provide substantial educational benefit to the child. The school district was not required to adopt the different educational methodology preferred by the family and their experts and consultants.
Factual Background
Plaintiffs are Bobby Brown and his parents, Dennis and Ginger Brown. Bobby is now eight years old. In 1998 at age two, he was diagnosed with autism spectrum disorder after evaluation by the Riley Child Development Center. Features of his condition included severely delayed language, limited gestural abilities, poor eye contact, lack of play skills, lack of interest in other people, and stereotypic rocking. Defendant Bartholomew Consolidated School Corporation is a public school district subject to the IDEA. The Browns live within the area served by the school district.
In 1999 at age three, Bobby was evaluated by defendant school district at the Browns' request. He was found eligible for its Early Childhood Special Education program based on a primary disability of Autism and a secondary disability of Communication Disorder. Bobby's first IEP provided for early childhood classes three days each week and various speech, language and occupational therapy sessions throughout the week, all to take place at Smith Elementary School. Pursuant to the IDEA, the school district paid for all aspects of the program.
In February 2000, the Browns privately hired Janet Rumple to work with Bobby at home using the techniques of Applied Behavioral Analysis ("ABA"). In September 2000 when Bobby was four years old, members of his IEP Team, including school district personnel and Mrs. Brown, applied to the Indiana Department of Education to have the state pay for Bobby's at-home ABA instruction. The application noted that difficulties including fecal smearing, aggression, tantrums, and self-injury were impeding Bobby's ability to learn. The State denied the request because the difficulties apparently were not occurring at school, and because the school district had not "utilized its available resources, such as longer school hours [and] one-to-one assistance, prior to requesting additional funding from DOE." Def. App. IV at 2775.
ABA is a method for educating autistic children. It involves intensive one-to-one interaction between the child and a trained ABA instructor. ABA focuses on separating complex skills into their simplest discrete components, and teaching these components to the child through repetition and positive reinforcement. When the child demonstrates mastery of the components, the goal becomes to "reassemble" the components back into the more complex skill. Rumple received training in ABA at the Princeton Child Development Institute in New Jersey.
In November 2000, the school district proposed a new IEP recommending increased one-to-one assistance and a full-time aide who would be trained in "methodologies commensurate with Bobby's needs to meet the established goals and objectives." Def. App. IV at 2779. The Browns rejected this proposed IEP in part because it did not provide for one-to-one ABA instruction by trained ABA instructors "8 hours a day, five days a week". Def. App. IV at 2798.
On January 16, 2001, Bobby was reevaluated by the Riley Child Development Center. The Center's report noted that Bobby had made progress since his last evaluation and that an ABA approach should be considered "as a component of his treatment." On January 24, 2001, the school district held a case conference with the Browns to discuss Bobby's program, but the parties could not reach agreement on an IEP. The Browns then requested a due process hearing pursuant to 20 U.S.C. § 1415(f) to contest the proposed IEP.
On February 20, 2001, while the hearing request was pending, the parties reached a settlement agreement that was reflected in Bobby's new 2001 IEP. Bobby continued to attend early childhood classes at Smith Elementary until May 2001 and in August 2001 began regular half-day kindergarten at Richards Elementary. In addition, the school district provided three hours of at-home ABA instruction in the mornings, three hours of ABA instruction at school, including speech therapy, and two hours of one-to-one ABA instruction at home after school. Six hours of at-home ABA instruction were provided on Fridays. All ABA instruction continued throughout the summer at the Browns' home. The school district agreed to hire Janet Rumple to train aides who would be responsible for Bobby's in-school ABA instruction and to provide ABA training for Bobby's parents and for his early childhood teachers at Smith Elementary. Bobby was approaching his fifth birthday when this agreement was reached, and this was essentially the placement and program for Bobby as of May 2002.
The principal issues in this case focus on the May 16, 2002, case conference to discuss Bobby's placement and program for the 2002-03 school year. Bobby was then six years old. The school district officials expressed the view that Bobby's program required substantial modification. The school district's proposed IEP ("Proposed IEP"), which is at the heart of this dispute, would have provided for continuation of an all-day one-to-one assistant for Bobby, as well as speech and occupational therapy, but only at the elementary school. The Proposed IEP contained no provision for at-home or in-school ABA instruction. Instead, the Proposed IEP recommended full-day kindergarten at Richards Elementary, 8:10 a.m. to 2:30 p.m., Monday through Friday. The Browns objected to the school district's recommendation of full-day kindergarten and to ending the ABA instruction. The parties reached an impasse and the May 16th case conference ended prematurely.
The Browns again requested a due process hearing to contest the school district's proposal. An independent hearing officer ("IHO") ruled in favor of the school district, finding the Proposed IEP appropriate under the IDEA. The Browns appealed, and the BSEA upheld the IHO decision. The Browns now seek judicial review of that decision pursuant to 20 U.S.C. § 1415(i). The parties have submitted to this court the administrative record, including transcripts, testimony and documentary exhibits from the IHO and BSEA proceedings. The parties have also submitted additional evidence not included in the administrative proceedings. The court has subject matter jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3)(A).
Discussion
I. The Standard of Judicial Review
The IDEA requires the school district to provide Bobby Brown a "free appropriate public education." 20 U.S.C. § 1412(a)(1). For an education to be "appropriate" under the IDEA, the program set forth in the IEP (1) must be developed in compliance with the procedural safeguards set forth in the Act, and (2) in its substance must be "reasonably calculated to enable the child to receive educational benefits." Board of Education v. Rowley, 458 U.S. 176, 206-07 (1982). The Browns claim the school district's Proposed IEP suffered from both procedural and substantive defects.
Pursuant to the IDEA, the Browns were required to pursue their challenge before the IHO and then the BSEA. The BSEA's decision is technically the target of the Browns' action in this court. A party challenging an administrative decision under the IDEA bears the burden of proof. Alex R. by Beth R. v. Forrestville Valley Community Unit School Dist. No. 221, 375 F.3d 603, 611 (7th Cir. 2004); Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). In determining whether a party has met that burden, the reviewing court "shall receive the records of the administrative proceedings; shall hear additional evidence at the request of a party; and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B). This statutory directive to consider additional evidence and to rule based on the preponderance of evidence places the court beyond the familiar boundaries for judicial review of administrative decisions. It is not, however, a directive to hear the case de novo, disregarding the administrative results and considering the evidence as if for the first time. The statute is not, as the Supreme Court has made clear, "an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. In Rowley, the Court construed § 1415(i)(2)(B) to require that courts give "due weight" to the administrative decision. Id.
Under the "due weight" standard of review, the degree of deference owed to the administrative officer's findings varies according to whether the reviewing court has taken additional evidence not before the hearing officer, and also according to the significance of any evidence taken. "At one end of the continuum, where the district court does not take new evidence and relies solely on the administrative record, it owes considerable deference to the hearing officer, and may set aside the administrative record only if it is `strongly convinced that the order is erroneous.'" Alex R., 375 F.3d at 612, quoting School District v. Z.S., 295 F.3d 671, 675 (7th Cir. 2002). On the other hand, the more the reviewing court relies on additional evidence, the less it is obliged to defer to the hearing officer. "[J]udicial review is more searching the greater the amount (weighted by significance) of the evidence that the court has but the agency did not have." Id., quoting Z.S., 295 F.3d at 675. In this case, the parties have submitted additional evidence relevant to some of the IHO's findings but not to others, so the court's obligation of deference to the IHO will vary accordingly. See M.M. v. School Dist. of Greenville County, 303 F.3d 523, 531 n. 12 (4th Cir. 2002) (noting that standard of review varies from issue to issue, depending on whether additional evidence is heard). The ultimate issue, however, is whether the Browns have shown that the IHO and BSEA erred when they found that the school district's Proposed IEP for Bobby complied with the IDEA.
II. Procedural Challenges
Before enactment of the IDEA, children with disabilities attending public schools were too often being educated inadequately because schools were failing to consult with parents as to their children's individual needs. Honig v. Doe, 484 U.S. 305, 311-12 (1988). The IDEA requires compliance with elaborate procedural safeguards to ensure meaningful parental involvement in developing and reassessing a child's IEP so that the IEP addresses the child's individual needs. See, e.g., 20 U.S.C. §§ 1415 (a)-(d). The Seventh Circuit has explained that procedural flaws "do not automatically require a finding of a denial of a [free appropriate public education]. However, procedural inadequacies that result in the loss of educational opportunity . . . clearly result in the denial of a [free appropriate public education]." Heather S., 125 F.3d at 1059, quoting W.G. v. Board of Trustees, 960 F.2d 1479, 1484 (9th Cir. 1992). The Browns have submitted no additional evidence relevant to their procedural challenges beyond what was in the administrative record. The court therefore reviews the administrative decision for clear error.
A. Pre-Determination
The Browns' first procedural claim is that the District unlawfully "pre-determined" the proposed change in Bobby's placement from the half-day to the all-day kindergarten program without consulting with the Browns and their advisors. Specifically, they claim that school district personnel had decided Bobby's new placement in advance of the May 16, 2002, meeting at which the Proposed IEP was to be discussed. This pre-determination, the Browns argue, violated the IDEA mandate that an IEP be individualized and take account of the parents' preferences. In developing each child's IEP, the IEP Team "shall consider . . . the concerns of the parents for enhancing the education of their child." 20 U.S.C. § 1414(d)(3)(A). Also, the IDEA's implementing regulations require the school district to "ensure that the placement decision is made by a group of persons, including the parents. . . ." 34 C.F.R. § 300.552(a)(1); see generally Deal v. Hamilton County Bd. of Education, 392 F.3d 840, 855-59 (6th Cir. 2004) (finding pre-determination violation where school district refused to consider providing Lovaas ABA instruction to any child with autism spectrum disorder).
The Browns essentially contend that the school district pre-determined that Bobby should be placed in the all-day kindergarten, which precluded meaningful involvement by Bobby's parents and their advisors, rendering compliance with the parental-involvement mandates of the IDEA impossible. The IHO ruled to the contrary, finding "no evidence of sufficient probative value" that the school district impermissibly pre-determined Bobby's placement. IHO Conclusion of Law 9.
To support their contention that the school pre-determined Bobby's placement, the Browns point to several notes, memoranda and e-mails indicating that in the months prior to the May 16, 2002, case conference, school district personnel actively discussed Bobby's program for the 2002-03 school year, and often without including the Browns or their expert advisors. They also rely on evidence of a visit to the Browns' home in January 2002 by Dr. John Umbreit, a consultant (and subsequent expert witness) for the school district. Dr. Umbreit visited the Browns' home as part of an evaluation of Bobby's needs for the upcoming school year. Mrs. Brown testified that at the visit Dr. Umbreit had in his possession a finalized IEP containing the all-day kindergarten placement. The Browns also produced a December 2001 document entitled "Individual Education Program (IEP) and Summary Report" for Bobby that also contained the all-day kindergarten placement recommendation. The IHO cited conflicting testimony at the hearing regarding whether the document Dr. Umbreit had at the January 2002 home visit was a finalized IEP. Dr. Umbreit denied that he had a finalized IEP. George Van Horn, Director of Special Education for the school district, stated that a written recommendation for Bobby's placement had been prepared before the May 16, 2002, meeting, but he characterized it as a draft.
The IHO carefully examined the notes, memoranda and e-mails, as has the court. The IHO found no improper pre-determination, and the court does not disagree with that finding. The documents show that District personnel actively discussed Bobby's program in the months prior to the May 16, 2002, case conference. While none of these indicate involvement of the Browns, they indicate involvement of the Browns' advisor (and subsequent expert witness), Dr. Sundberg. See, e.g., IHO Finding of Fact 34. Even if these discussions had not shown involvement of Dr. Sundberg, though, they would not prove impermissible pre-determination as opposed to permissible preparation. As the IHO pointed out, the State of Indiana's implementing regulations for the IDEA authorize such preparation: "Public agency personnel may engage in preparatory activities to develop a proposal or response to a parent proposal that will be discussed at a later case conference committee meeting." 511 I.A.C. § 7-27-4(e). Such activity is both responsible and consistent with the IDEA. See 34 C.F.R. Part 300, Appendix A, No. 32 (2002) (school district staff may come to an IEP meeting prepared with findings and proposed recommendations for IEP content if staff make clear to parents that the proposals are only recommendations for review and discussion with parents).
The IDEA requires school district personnel to devote meaningful individualized consideration to a child's needs. A lack of adequate preparation for a case conference could violate this requirement, just as a final decision without meaningful input from parents could violate the statute in a different way. School district personnel should not and need not enter the case conference with their minds as blank slates. The IHO wrote that school personnel's preparation, including written drafts, "is acceptable as long as parties are willing to review, discuss and compromise considering input from all participants." IHO Conclusion of Law 8. This statement is consistent with both the letter and spirit of the IDEA.
The IHO was not persuaded that the school district personnel had become unwilling to review, discuss, and compromise, and the Browns have not shown that his finding was wrong. The record before the IHO makes clear that at the May 16, 2002, meeting, although the parties reached impasse regarding placement, other important components of Bobby's program were developed with input from all participants. The Browns' advisor, Dr. Sundberg, noted: "We came off with a good package of goals that we all agreed upon." IHO Finding of Fact 36. The school district's unwillingness to yield on the particular issue of placement does not by itself establish pre-determination or any other denial of the parental right of involvement. School districts are required to recommend what they believe is appropriate for the child, as long as they can listen to parents' views with open minds.
Sections 1415(b)(3)(B) and 1415(c) of the IDEA show the obvious: Congress anticipated that schools would at times refuse to make particular placement decisions that parents would seek. Nothing in the statute suggests that such refusal, in itself, contravenes the statute's purpose or terms, as long as school officials are willing to consider different views of parents and their experts. To be sure, the procedural provisions for mediation, due process hearing, and administrative and civil appeal in §§ 1415(e)-(i) exist to protect parents and children from violations of the statute's terms. But these provisions also indicate that Congress expected there would be good faith disagreements and impasses between schools and parents. See School Committee of Town of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 368 (1985) ("Apparently recognizing that this cooperative approach would not always produce a consensus between the school officials and the parents . . . Congress incorporated an elaborate set of what it labeled `procedural safeguards'").
As noted, the e-mails and memoranda cited by the Browns indicate active discussion of Bobby's program before the May 16, 2002, meeting. But many of them, in addition to confirming the involvement of Dr. Sundberg, reveal a conspicuous lack of finality regarding Bobby's program. For example, the school district's Autism Coordinator, Nancy Connor, wrote in a memorandum to other school district personnel:
Our next move is to generate functional goals and objectives from Bobby's present level of performance. Please review goals and objectives written for December — many of these are still appropriate, but all of you need to be comfortable with the presented goals/objectives. . . . I met with Dr. Sundberg and he will be recommending goals and objectives. . . . I have asked to have those before the conference, BUT there is no guarantee that this request will occur. THUS — we need to proceed by coming up with goals and objectives that we feel will be appropriate for Bobby.
Since we are almost into March — we need to consider what we think would be good programming for Bobby next year. Full day Kindergarten. Two half day kindergartens. At this point I don't think anyone is thinking first grade???? . . . Within a couple weeks we should meet as a team to see what we have come up with.
IHO Finding of Fact 32. While the memorandum is undated, the statement that "we are almost into March" and the Browns' inclusion of it in "February/March 2002" evidentiary materials, satisfy the court that the memorandum was written after both the December 2001 IEP document and Dr. Umbreit's January 2002 visit to the Browns' home. This language clearly indicates unresolved issues and weighs in favor of the IHO's finding that the school district had not committed itself to a particular IEP by that time.
On the other hand, the memorandum refers only to at-school placement options: "Full day Kindergarten. . . . Two half day kindergartens. . . . first grade?" It is possible that even if school district personnel had not pre-determined the IEP in whole, they had pre-determined that Bobby's program would contain no at-home component. However, the Browns' burden on this point is to show that the school district actually pre-determined Bobby's placement in a way that violates the IDEA, not merely that the school district could have done so. And since the primary force of the Browns' argument on this point derives from the appearance of the school district's placement recommendations on the allegedly "finalized" IEP, the argument loses force to the extent the finality of that IEP has been undercut. In this case, that extent is significant. After reviewing the administrative record and according due weight to the administrative findings, the court is not persuaded that the IHO or BSEA erred on the issue of pre-determination.
On the issue of pre-determination, the parties have discussed in considerable detail the case of Deal v. Hamilton County Board of Education, another case involving a child with autism spectrum disorder, parents who wanted one-on-one ABA instruction for their child, and the same attorney who represents the Browns. In the Deal case, the IHO initially found that the local school district had violated IDEA by pre-determining that it would not provide the ABA program of instruction to any child at all. The district court reversed the finding of a violation. 259 F. Supp. 2d 687, 695 (E.D. Tenn. 2003). The Sixth Circuit in turn reversed the district court on that issue. 392 F.3d 840, 855-59 (6th Cir. 2004). Deal provides a useful overview of the law applicable to issues of pre-determination under the IDEA. The facts, however, are so different from this case as to offer little support to the Browns. First, the IHO in Deal made factual findings that the school district had indeed made a final decision before the case conference that the particular form of instruction would not be offered. The district court had reversed the legal conclusion without finding any of the factual findings clearly erroneous. Here the IHO found that no final decision had been made, and that finding is not clearly erroneous. Second, the evidence showed in Deal that the school district had made an informal but broad policy decision that it would not offer the ABA instruction to any student, period, regardless of individual needs. See 392 F.3d at 859. In this case, the school district had been providing the ABA instruction to Bobby, and school personnel were evaluating his individual progress and his individual prospects under alternative instructional programs. Third, in Deal cost to the school district was a major issue. The child's family had been paying for the ABA instruction, which apparently had been quite successful and drew some admiration from school personnel; the problem arose when the family then asked the school district to pay for this expensive form of instruction. Id. at 858. In this case, by contrast, there is no issue of cost. The school district has been paying for the ABA instruction for years. There is no claim that the Proposed IEP (with full-time one-on-one assistance to Bobby at school) would have been any cheaper. Accordingly, Deal does not show that the IHO or BSEA erred in finding that there was no predetermination violation of IDEA in this case.
B. Lack of a Transition Plan
The Browns' second procedural argument is that the school district violated the IDEA by failing to provide a transition plan for its proposed changes in Bobby's IEP. The IDEA regulatory definition of autism states that "characteristics often associated with autism [include] resistance to environmental change or change in daily routines." 34 C.F.R. § 300.7(c)(1)(i). The Browns claim that the school district, by failing to include a transition plan in the Proposed IEP, "failed to take account of Bobby's autism," and therefore failed to provide him with an IEP tailored to his disability. The IHO found that the Proposed IEP did not contain a transition plan. IHO Finding of Fact 39. But the IHO stated that at the May 16th case conference, "parties and their counsel declared an impasse wherein all further negotiation or consideration . . . of a transition plan was not available. Parent cannot . . . challenge [the IEP's] sufficiency when the parties were at impasse to proceed further." IHO Conclusion of Law 14.
The IHO's emphasis on the impasse and early end of the May 16th meeting was justified. The impasse was not over transition, it was over placement: the change to all-day kindergarten. Sundberg Tr. 384; Van Horn Tr. 293. After the school district proposed the full-day kindergarten program, the Browns' attorney said "I think we have a difference of opinion and this conference probably is ended." Van Horn Tr. at 293. The discussion simply never got far enough to work out a transition plan to a new program that the Browns adamantly opposed, and which they have succeeded in blocking for the past two and a half years, relying on the "stay-put" provision of the IDEA, 20 U.S.C. § 1415(j). The record does not show that school district personnel were opposed to providing transition measures in a final IEP, or that the school district's Proposed IEP precluded appropriate transition measures. In fact, the school district had included transition plans in prior IEPs for Bobby, and there is ample evidence that the school district was prepared to develop an appropriate transition plan if agreement had been reached on a new IEP. See Conner Tr. 1325-28, 1443-47.
A transition plan could have been developed only with the Browns' participation and consent to a new IEP, and the discussion simply never got that far. (In light of the Browns' argument about predetermination, it is worth noting that the school district would have been required to consult with them to develop an appropriate transition plan. It is difficult to plan together for a transition to a new program when one side to the discussions exercises its legal right to block the new program entirely. It is absurd for the family who blocked the new program to complain that the other side did not develop a detailed plan for the new program that would not be implemented without the family's consent.) The record does not show that the school district intended the Proposed IEP to be a final statement of its position on all issues, or any issues. Nor does the record suggest that transition would not have been addressed at the May 16th meeting if it had not ended prematurely. In fact, the parties discussed and reached compromise on other important issues, though not placement, before the impasse. The Browns have not shown that the lack of a transition plan in the Proposed IEP violated the IDEA.
C. Objectively Measurable Criteria
The Browns' final procedural claim is that the Proposed IEP failed to ensure that progress toward the agreed goals and objectives would be objectively measurable. The Browns quote Rowley for the proposition that "[t]he IEP must contain `appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.'" Pl. Br. at 26, quoting 458 U.S. at 182 (alteration in original). The Court in Rowley was quoting statutory language that has been amended. See 20 U.S.C. § 1401(19) (1975). The version applicable to this case can be found in 20 U.S.C. § 1414(d) (1997). The IDEA presently requires that an IEP contain simply "a statement of measurable annual goals, including benchmarks or short-term objectives." 20 U.S.C. § 1414(d)(1)(A)(ii). The school district's Proposed IEP satisfies the applicable requirements. It contains a clear statement of measurable annual goals and objectives, including some benchmarks and short-term objectives. Def. App. IV at 3382-85.
Indiana's implementing regulations for the IDEA similarly require the IEP to contain "A statement of measurable annual goals that describe what the student can be expected to accomplish within a twelve (12) month period, including benchmarks or short term objectives." 511 I.A.C. § 7-27-6(2).
The IDEA also requires an IEP to contain a statement of "how the child's parents will be regularly informed (by such means as periodic report cards) . . . of their child's progress toward the annual goals." 20 U.S.C. § 1414(d)(1)(A)(viii)(II). The Proposed IEP contains the statement: "Parents . . . will receive information regarding the progress the student is making toward achievement of annual goals . . . each grading period." Def. App. IV at 3381.
Finally, the IDEA requires the IEP to contain "a statement of how the child's progress toward the annual goals . . . will be measured." 20 U.S.C. § 1414(d)(1)(A)(viii)(I). The Proposed IEP contains the statement: "Measurement criterion for all goals and objectives will be that Bobby will achieve 90% accuracy or better on the targeted skill across 4 consecutive data collection points." Def. App. IV at 3382. An earlier IEP from October 26, 2001, contained a more detailed and informative statement. It is not clear why the school district chose a less detailed statement for the Proposed IEP, but the relevant question is whether the statement that the school district chose satisfies the statute.
"Bobby will achieve 90% accuracy or better on a generalization probe with new materials, person, and setting before a skill is considered mastered. A response will only be considered correct if no prompts (e.g. gestures, verbal prompts, physical assistance) are given to evoke the response. Following mastery, maintenance of skill will be assessed by data collected on skill once a month." Pl. App. at 2949.
The evaluation and reporting requirements of § 1414(d)(1)(A) reflect a fundamental purpose of the IDEA: to ensure accountability so that the "education" of a disabled child is more than a mere illusion created by the physical presence of the child in a public school room. As Chief Judge McKinney has observed, though, the IDEA does not require scientific objectivity, "it merely requires honest and thorough reports of progress." Popson v. West Clark Community Schools, 230 F. Supp. 2d 910, 947 (S.D. Ind. 2002). The statement in the Proposed IEP is listed at the beginning of the Goals and Objectives section and by its terms applies to all of them. Nearly all of the 28 speech and language objectives listed refer to a method of reporting or measuring progress:
. . . as measured by 4 consecutive data collection points.
. . . as measured by the SLP.
. . . as observed by teacher/assistant and reported in daily notes.
. . . as measured by a port-folio kept by the classroom teacher.
. . . as measured by weekly probes and daily activities.
Def. App. IV at 3382-85. Each Occupational Therapy objective contains an entry entitled "Criteria of success" with a stated percentage correct ( e.g., "71-80% accuracy") as a standard. Each objective also contains an entry entitled "Evaluation procedure to measure progress" with stated methods ( e.g., "observation," "work samples," "testing"). Def. App. IV at 3386-89. This section of the IEP also contains an entry entitled "Progress Codes":
Mastery: 76-100% goal achieved.
Moderate Progress: goal/objective not met, 50-75% achieved.
Minimal Progress: goal/objective not met, 25-49% achieved.
Limited Progress: goal/objective not met, 0-24% achieved.
Def. App. IV at 3386.
The Browns' reliance on statutory language no longer in force perhaps rendered their argument on this point less precise than it might otherwise have been. But it appears that their objections stem from the fact that the school district's proposed approach to measuring Bobby's progress is not adapted to the discrete trials, repetition, data collection, and reinforcement associated with ABA instructional techniques. The IDEA prescribes no particular educational approach. The question is whether the Browns have shown that the Proposed IEP fails to state "how the child's progress toward the annual goals . . . will be measured" in a manner consistent with the purpose of the IDEA. After reviewing the Proposed IEP and according due weight to the IHO, the court finds that the Browns have not carried that burden.
III. Substantive Challenges
The IDEA imposes two broad substantive requirements. First, to qualify as "appropriate," an IEP must be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 206-07; Evanston Community Consolidated School Dist. v. Michael M., 356 F.3d 798, 802 (7th Cir. 2004). This evaluation is limited to the IEP's reasonableness at the time it was drafted, not with the benefit of hindsight. Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999); accord, Popson, 230 F. Supp. 2d at 919. Second, the IDEA requires that "to the maximum extent appropriate" children with disabilities be educated in the "least restrictive environment" — that is, in mainstream classrooms with children who are not disabled. 20 U.S.C. § 1412(a)(5)(A). The Browns assert violations of both of these requirements.
A. Reasonably Calculated to Provide Educational Benefits
An IEP must be "reasonably calculated" to confer more than illusory or trivial educational benefits. See Rowley, 458 U.S. at 192 (stating that access to public education must be at least "meaningful"); Alex R. by Beth R. v. Forrestville Valley Community Unit School Dist. No. 221, 375 F.3d 603, 615 (7th Cir. 2004) (IEP must be "likely to produce progress, not regression or trivial educational advancement"); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988) ("`benefit' conferred by the [IDEA] and interpreted by Rowley must be more than de minimis"); Popson, 230 F. Supp. 2d at 919 ("reasonably calculated to confer educational benefit is not a de minimis standard"). At the same time, the IDEA does not require public schools to educate a child "to her highest potential." Board of Education of Murphysboro v. Illinois State Board of Education, 41 F.3d 1162, 1166 (7th Cir. 1994); see also D.F. v. Western School Corporation, 921 F.Supp. 559, 565 (S.D. Ind. 1996) ("`free appropriate public education' is not necessarily the best possible education, or one that maximizes the potential of each child with disabilities"). The IDEA guarantees a "basic floor of opportunity." Rowley, 458 U.S. at 201.
The Browns must show that the Proposed IEP was not reasonably calculated at the time of its drafting to provide Bobby with such opportunity. The Browns cannot meet this burden by showing that the program they preferred would have been superior to the school district's proposed program. A comparison of the two programs is irrelevant except to the extent it sheds light on the adequacy or inadequacy of the school district's program. The inquiry is whether the school district's program in substance complied with the IDEA.
The Browns argue essentially that a program with a substantial at-home ABA component (like Bobby's prior program that has continued under the stay-put provision) was the only way to ensure meaningful educational benefits, so that the Proposed IEP without that component was inadequate:
[C]ontinuation of Bobby's interventions at current levels [ i.e., with ABA] is absolutely essential to reasonably ensuring Bobby's continued meaningful progress, i.e., a level of progress that would satisfy the longstanding commandment of Rowley. Pl. Br. at 3.
Bobby's presentment of autism requires a full court press. Bobby does not learn incidentally from his environment, like typically developed children do. Even today, new skills have to be broken down and taught to Bobby one-on-one in a very systematic way that involves quite a bit of repetition. . . . [W]ithout the support of intensive and consistent 1:1 ABA teaching . . . Bobby will practice, rehearse and "groove in" inappropriate behaviors that impede the educational process. Pl. Br. at 4-5.
[Mainstream kindergarten is] certainly very "costly" for Bobby. Every hour that Bobby spent in the mainstream kindergarten . . . was an hour that Bobby missed being able to learn and practice new skills. Pl. Br. at 7-8.
The Browns' evidence shows that Bobby was progressing through his at-home ABA instruction. Even the school district's experts credited ABA with some of Bobby's progress. But this evidence does not establish that ABA was the only way for Bobby to be educated, or that it was unreasonable at the time to suppose that Bobby could receive meaningful educational benefits from a program that did not include ABA. The Browns' burden remains to show that in May 2002 it was not reasonable for the school district to suppose that Bobby could benefit from such a program and to propose an IEP that would have steered Bobby more toward a mainstream setting.
Here the Browns have shown instead only an honest disagreement among professionals who have devoted their careers to educating children with autism spectrum disorders and related disabilities. The fact that one side is especially fervent about its views does not transform this case into anything other than a methodological dispute. The courts have repeatedly recognized that they should generally defer to the decisions of the state and local educational agencies in such disputes. See generally Rowley, 458 U.S. at 208-10 (reversing lower court decisions that substituted courts' views on issues of educational policy); Popson, 230 F. Supp. 2d at 939 (affirming administrative decisions on similar choice between different methods for addressing autism spectrum disorder).
The Proposed IEP explained the school district's rationale for moving Bobby to an all-day kindergarten and discontinuing his at-home ABA instruction:
Reason for making this selection: Bobby would benefit from being with typical peers throughout his day, but will also need one on one instruction and special education support. . . . He will have more opportunities to meet his goals and objectives in a full day program.
Reason for not selecting other options: Bobby needs opportunities throughout his day to work on his goals and objectives across settings and people. His home programming prevents generalization of learned skills across settings and people and fewer opportunities to interact with his peers and other adults.
Def. App. IV at 3390-91. The court cannot say whether these conclusions were correct in any ultimate or objective sense, but they were certainly reasonable. The administrative record shows that they reflect reasonable calculation aimed at producing meaningful educational benefits for Bobby.
The school district relied on the advice of experienced teachers and trained consultants in drawing these conclusions, and also in recommending the level of one-on-one instruction, special education measures, and other therapeutic provisions of the Proposed IEP. Those experts expressed legitimate concerns about the at-home ABA program, in which a child is relatively isolated in intense one-on-one instruction with a familiar instructor and without peers being present. In such a setting, the child has limited opportunities to generalize the skills learned, i.e., to use them with other people and in other contexts. The school district's experts believed in 2002 that Bobby's educational program should be modified to expose him to more people and to broaden the contexts in which he would be called upon to exercise the skills and knowledge he had been learning in one-on-one instruction.
Claire Thorsen, an expert on autism, observed Bobby at home and at school in February 2002. Thorsen prepared a report for the school district based on her observations, stating in part that "Bobby needs to be actively participating in the kindergarten environment so he learns the purpose for the information he has learned." Def. App. IV at 3295. She later testified before the IHO that she had no major concerns with the Proposed IEP, including the placement recommendation, and that the Proposed IEP showed that school district personnel
[were] indeed looking at some of the kinds of skills that Bobby has, and are looking for ways to plug them into the appropriate context in the classroom. . . . I believe speech and language training for children with autism cannot and should not occur on a totally isolated basis. You need to take those skills and use those skills in the classroom so he gets exposure to the information that's being taught in the natural context.
Thorsen Tr. at 1718:24-1719:3 and 1753:21-1754:3.
The school district also relied on the opinions of Dr. Umbreit, a Professor of Special Education with a specialty in ABA at the University of Arizona, who evaluated Bobby in January 2002. Dr. Umbreit observed Bobby at school and at home, and he examined Bobby's school records. He talked with Bobby's mother, one of his instructional aides, his teacher, the school's speech/language pathologist, the school's occupational therapist, the special education teacher and the school district's autism coordinator. Dr. Umbreit's report recommended, among other measures, full-day kindergarten ( i.e., discontinuing Bobby's at-home component) with one-to-one assistance throughout the day. At the administrative hearing he stated that his recommendations were based on the belief that what Bobby needed most was emphasis on "functional skills" — communication, self-care, fine motor skills — to promote his independence, and that he could best learn these in a classroom environment. "He already has all the skills he needs to learn those things in that environment. He can attend. He can follow directions. He responds. . . . There's no reason in the world he can't learn these things in the [class room]." Umbreit Tr. at 1518:24-1519:1-2 and 9-11.
The Browns and their experts disagree with Thorsen and Dr. Umbreit and argue that their experts have better credentials and spent substantially more time with Bobby than the school district's experts. Again, the question for this court under the IDEA is not whose expert opinions are more reasonable, or whose program was better in some ultimate sense. The question is whether the school district's Proposed IEP was reasonably calculated to provide meaningful educational benefits to Bobby. The specific question before the court on judicial review is whether the IHO and BSEA erred in finding that it was. The Browns have shown that knowledgeable and caring professionals can and do disagree about the best educational program for Bobby, but they have not shown that the IHO and BSEA erred in finding that the Proposed IEP was reasonably calculated to benefit Bobby.
As part of their substantive challenge to the Proposed IEP, the Browns have also noted again the lack of a transition plan, echoing their procedural claim on this point. In essence, they argue that Bobby's autism made it unreasonable to propose such a fundamental change in his program without a transition plan. The Browns face the same obstacle as with their procedural argument. Because the parties reached an impasse over whether to implement the Proposed IEP at all, and because the Browns could use the stay-put provision to block implementation of the new IEP, the school district and the Browns never got far enough to develop a transition plan toward a destination that the Browns never wanted to reach. Parents are surely not required to wait until an IEP is implemented before contesting it, but it is not consistent with the purposes of the IDEA to hold a school district accountable for the absence of a transition plan for reaching a Proposed IEP that would never be implemented.
The requirement that the reasonableness of an IEP be evaluated "at the time it was drafted" necessarily means that it must be drafted before it can be challenged. The IDEA provides for a process involving parents and schools to develop an IEP. An IEP was being developed at the May 16th meeting. The parties talked and reached agreement on issues other than placement. The record reflects that termination of the May 16th meeting was at least mutual and that the impasse centered on placement. The Browns have provided no evidence that they were willing to proceed further, or that if the meeting had proceeded further, the school district would have been unwilling to discuss and provide for an adequate transition.
B. Least Restrictive Environment
The Browns' final substantive argument is that the school district violated the Least Restrictive Environment requirement of IDEA. The IDEA requires in relevant part: "To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A). The Browns contend that the Proposed IEP violated this requirement because placement in the all-day kindergarten — albeit with a full-time aide and plenty of additional support programs — would have exceeded the limit that mainstreaming be done to the "maximum extent appropriate."
The mainstreaming requirement was developed "in response to school districts which were reluctant to integrate mentally impaired children and their non-disabled peers." Murphysboro, 41 F.3d at 1168. Where parents allege that an IEP fails to mainstream a child enough, the question whether the IEP mainstreams the child to the "maximum extent appropriate" is distinct from the question whether the program is reasonably calculated to provide significant educational benefits. See, e.g., D.F., 921 F. Supp. 559 (parents challenged school's denial of regular classroom placement).
In this case, however, where the parents argue that the school district wants to put their child too far into the mainstream, the Browns' argument is essentially a reprise of their methodological challenge to the Proposed IEP. Here, the question of appropriateness under § 1412(a)(5)(A) merges with the broader question of appropriateness under § 1412(a)(1). If a school's proposed IEP involving some degree of mainstream placement with aids and services is reasonably calculated to enable the child to receive educational benefits, then one could not also find that "education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." The former determination precludes the latter. The Fifth Circuit has articulated a test for § 1412(a)(5)(A) that reflects this idea:
First, we ask whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child. If it cannot, and the school intends to . . . remove the child from regular education, we ask, second, whether the school has mainstreamed the child to the maximum extent appropriate.Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989) (emphasis added). As this test implies, the second question is necessary only if the first is answered no. If the first question is answered yes and the school is seeking to place the child in the regular classroom, the second question — in light of Congress' strong preference for mainstreaming — is unnecessary because it has been answered by the first.
To be sure, "maximum extent appropriate" does not mean maximum extent feasible. The mainstreaming requirement "was not developed to promote integration with non-disabled peers at the expense of other IDEA requirements." Murphysboro, 41 F.3d at 1168. In Murphysboro, as here, a school district was alleged to have mainstreamed a child beyond the maximum extent appropriate. However, unlike here, the school district in Murphysboro was found to have failed to provide the child with an appropriate education under what is now § 1412(a)(1). The school district had mainstreamed the child "at the expense of other IDEA requirements." Here, the school district's Proposed IEP complied with § 1412(a)(1). Where the school is alleged to have mainstreamed too much and has been found in compliance with § 1412(a)(1), then the degree of mainstream placement could not be deemed excessive. The IHO's conclusion on this point was correct.
IV. Additional Evidence
Where the court accepts additional evidence not available to the hearing officer, the court's obligation of deference is lessened in proportion to the significance of the new evidence. Alex R., 375 F.3d at 612. The Browns have submitted reports and testimony of Dr. Sundberg, and testimony from Claire Thorsen that were not available to the hearing officer. That additional evidence deserves independent attention.
Dr. Sundberg's reports and testimony concentrate primarily on the progress Bobby has made under his ABA instruction up to and including 2004. Pl. Add. Evid. Ex. 1-4. The quality and effectiveness of Bobby's ABA program have only limited probative value as to whether the Proposed IEP was appropriate back in 2002. The additional evidence on this point does not alter appreciably the level of deference accorded the IHO and BSEA.
The Browns' other additional evidence centers on Claire Thorsen's 2004 testimony that Bobby in 2004 was no longer a candidate for all-day mainstream placement with the aide and additional support. Thorsen Dep. at 90. Her opinion of his prospects in 2004 was very different from her opinion about his prospects in 2002. She cited his limited communication abilities, limited knowledge of classroom routines, and his lack of grade-appropriate academic skills. Id.
The Browns have argued all along that these factors were present in 2002, and they seek to use Thorsen's 2004 testimony to show that her 2002 opinion should be discredited. Pl. Supp. Br. at 4-5 and n. 5. Thorsen's 2004 testimony, however, does not alter the court's decision about whether the Proposed IEP in 2002 complied with IDEA. First, Thorsen's relevant opinion has not changed. She remains of the opinion that she expressed at the 2002 hearing that Bobby was a candidate for kindergarten in 2002:
My recommendation offered during the due process hearing of 2002 has not changed. Bobby should have been educated with his peers in the kindergarten environment. He should have been transitioned to full-day educational programming offered by the school. He is now nine years old and has not made the gains in classroom interaction, participation and independence necessary for him to make appropriate use of his educational opportunities.
Def. App. V at Tab 2, p. 12. What Thorsen was saying in 2004 is that by 2004, Bobby had fallen so far behind his peers that the prospect of mainstreaming was no longer viable. He was too old to go to kindergarten, and he could not benefit from attending classes with children his own age.
"The IDEA recognizes children develop quickly and once correct placement decisions can soon become outdated." Cory D. v. Burke County School Dist., 285 F.3d 1294, 1299 (11th Cir. 2002); see 20 U.S.C. § 1414(d)(4) (requiring at least annual reassessments of child's placement). Thorsen's credibility as a witness is not affected by the Browns' additional evidence, nor is the IHO/BSEA decision affected by that evidence.
The court does not mean to suggest that the Browns made the wrong decision by insisting on their stay-put rights. Such a choice could not be easy for parents who love their child and want only the best for him, in the face of daunting obstacles. The problem is that we will never know whether that decision was right or wrong for Bobby's long term development. Perhaps the Proposed IEP would have produced better results. Perhaps not. That uncertainty does not undermine the fact, however, that the Proposed IEP was reasonably calculated by the school officials and their consultants to provide meaningful educational benefit to Bobby.
The principal effect of the new evidence about Thorsen's opinion in 2004 has been, frankly, to slow the court's decision because it became relatively less urgent than it seemed before the September 2004 hearing. Thorsen's new opinion meant that the school district no longer intended to implement the Proposed IEP (or a variant of it suitable for an eight-year-old). The results of this case thus became less urgent in terms of Bobby's education. The most tangible stakes were likely to be any possible claim for attorney fees.
Conclusion
For the foregoing reasons, defendant Bartholomew Consolidated School Corporation is entitled to judgment on plaintiffs' IDEA claims. Plaintiffs have failed to show that the IHO erred in finding defendant's Proposed IEP both procedurally and substantively compliant with the IDEA. The decisions of the IHO and the BSEA are AFFIRMED. Final judgment will be entered accordingly.