Opinion
Civil No. 03-6452 ADM/AJB.
January 18, 2005
Sonja D. Kerr, Esq., Disability Law Center of Alaska, Anchorage, AK, appeared for and on behalf of Plaintiff.
Nancy E. Blumstein, Esq., Ratwik, Roszak Maloney, P.A., Minneapolis, MN, appeared for and on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On November 29, 2004, oral argument before the undersigned United States District Judge was heard on Independent School District No. 11, Anoka-Hennepin's ("District" or "Defendant") Motion for Summary Judgment on the Administrative Record [Docket No. 32]. In his Complaint [Docket No. 1], Joshua Renollett, a minor, by and through his parents Dan and Patti Renollett ("Josh" or "Plaintiff") brought an action seeking 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). For the reasons set forth below, Defendant's Motion for Summary Judgment on the Administrative Record is granted.
II. BACKGROUND
The 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). 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 § 125A.09, subd. 6-7 (repealed May 2003).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 See id., subd. 9 (repealed May 2003).Josh Renollett is a 17 year-old disabled student who suffers from developmental disabilities, severe oral apraxia/dyspraxia, a mild to moderate mental impairment, mild motor paraxial, hydrocephaly, and an unspecified behavior disorder. Josh's apraxia impairs his speech, fine and gross motor skills, and causes anxiety. Josh uses a device known as the DynaMyte to aid his ability to communicate. He is entitled to receive special education services pursuant to the IDEA. Josh attended tenth grade and resided within the geographic bounds of Independent School District 11 during the 2002-2003 school year.
Josh has since relocated to a group home and open-enrolled in another school district. Because of Josh's relocation, there is some question as to what remedial relief this Court could grant were it found Josh was denied a FAPE by the Defendant District. However, both parties agree the matter is not moot because of the allegation of a pattern and practice of denying disabled students a FAPE under the IDEA, as noted inReinholdson, et al. v. School Bd. of Independent Sch. Dist. No. 11, Anoka-Hennepin, et al., 346 F.3d 847 (8th Cir. 2003). As a result, this Court will reach the merits of the HRO's decision.
Developing an IEP that provides Josh with a FAPE has long been a matter of dispute. Among other proceedings that predate this litigation, the District and the Renolletts were party to two first-level due process hearings. The result of the second due process hearing was appealed to an IHO and was recently resolved by Order of the United States District Court of Minnesota. See Sch. Bd. of Indep. Dist. No. 11, Anoka-Hennepin, Minnesota v. Josh Renollett, 2004 U.S. Dist. LEXIS 22213 (D. Minn. Nov. 1, 2004) (JNE/JGL). As a result of unresolved issues stemming from these disputes, Josh was provided services during the 2002-2003 school year based on an IEP that was developed and agreed on by the District and the Renolletts in June 2001.
At Mrs. Renollett's request, the District's IEP team and Mrs. Renollett held a series of meetings to develop a new IEP that included a Behavioral Intervention Plan ("BIP") and a transition plan. Meetings occurred on September 24, 2002, September 26, 2002, October 2, 2002, October 4, 2002, December 10, 2002 and January 29, 2003. Notice of Proposed Special Educ. Serv. ("Proposed IEP") (Wilson Aff. [Docket No. 35] Ex. 1). Mrs. Renollett attended all but the October 4, 2002 and January 29, 2003 meetings. Id. Also present (or participating by conference call) at these meetings were counsel for both the Renolletts and the District. In addition, Mrs. Renollett and the school communicated several times by e-mail, telephone or traditional mail. On February 3, 2004, the District proposed a new IEP, which contains a BIP. See Proposed IEP. When the Renolletts did not consent to the proposed IEP, the District sought a due process hearing to determine whether the proposed IEP, including the BIP, should be implemented.
Other IEP meetings were held prior to the September 24, 2002 meeting but the record is unclear as to their specific dates. See Tr. at 216; Proposed IEP at 3.
The IHO held five prehearing conferences, reviewed several prehearing briefs and issued three prehearing orders in order to define and focus the issues that would be discussed at the due process hearing. A 14-day due process hearing was held between May 13, 2003 and July 14, 2003 to determine whether the proposed IEP should be implemented. During the hearing, twelve witnesses were called, including four by Plaintiff. Based on the hearing, the IHO issued 364 Findings of Fact and 108 Conclusions of Law determining that the proposed IEP met the procedural and substantive requirements set forth by the IDEA and should be implemented. Findings of Fact, Conclusions of Law and Order ("IHO Order") (Wilson Aff. Exs. 4-6). On appeal, the IHO's Decision was subsequently affirmed in all respects by the HRO. Findings of Fact, Conclusions, and Decision ("HRO Decision") (Wilson Aff. Ex. 7).
Plaintiff brought this action seeking review of the determination that Josh's IEP is appropriate and should be implemented. Plaintiff's claims can be divided into three general areas. First, Plaintiff claims the IHO committed several procedural errors in structuring the due process hearing that denied his right to a full and fair evidentiary hearing on the merits. Second, Plaintiff argues the creation and approval of the IEP and BIP did not comply with IDEA's procedural safeguards. Finally, Plaintiff asserts the IEP and BIP do not meet the substantive requirements set forth by the IDEA. Plaintiff makes the additional claim that Josh was repeatedly and inappropriately restrained by school personnel throughout the course of the hearing process.
III. DISCUSSION
A. 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).
B. Due Process Hearing
Plaintiff claims the IHO committed several procedural errors in structuring the due process hearing. Specifically, Plaintiff alleges the IHO: (1) did not issue a timely decision; (2) acted outside the scope of her authority and in an arbitrary and capricious manner by limiting the issues for hearing and excluding relevant evidence; (3) impermissibly shifted the burden of proof to the Plaintiff; (4) wrongly denied Plaintiff's request to have their expert observe Josh at school; and (5) relied upon the representations and findings of the District, rather than reaching her own independent conclusions. Each of these issues will be discussed in turn.
1. Failure to Issue a Timely Decision
Plaintiff argues the District denied Josh a timely and fair due process hearing because the IHO did not issue a timely decision. While the Minnesota Department of Education did find that the IHO's decision was untimely, the District is not responsible for how quickly the IHO issues a decision. See Letter from Asst. Comm'r Chas Anderson (Wilson Aff. Ex. 3). Furthermore, Plaintiff offered no legal basis for his claim that a hearing officer's tardiness provides grounds for annulling the decision. In fact, in a similar case, the court rejected the argument that an IHO's decision should be annulled due to tardiness. See Bd. of Educ. of the Maronek Union Free Sch. Dist., 34 IDELR 107 (N.Y. SEA 2000).
2. Limiting the Issues for Hearing and the Burden of Proof
Plaintiff claims the IHO acted in an arbitrary and capricious manner by limiting the issues and testimony prior to the hearing. Plaintiff also argues the IHO treated issues of fact as issues of law. Plaintiff argues that these actions had the impermissible effect of shifting the burden of proof to the Plaintiff and prohibited Josh from receiving a full and fair due process hearing.
After the District requested the hearing, Plaintiff responded, pursuant to Minn. Stat. § 125A.09, Subd. 6, with reasons why the IEP was rejected. Subsequently, the IHO conducted several prehearing conferences and issued multiple prehearing orders to define and limit the issues for trial. See IHO Order Findings ¶¶ 15-89. After receiving the parties' briefs, the IHO ruled on several issues as a matter of law and excluded issues she believed were outside the scope of the hearing. See Letter to Counsel from Cindy Lavarato ("Lavarato Letter") (Wilson Aff. Ex. 2). In both a prehearing conference and a prehearing order, the IHO stated "any issue not raised in these briefs will be considered waived, absent a showing of good cause." See Tr. of Prehr'g Conf. dated April 17 at 30; IHO Ex. 12. Plaintiff argues the IHO used the process to limit the defenses Plaintiff could bring to the claims asserted by the District and the evidence they could present. Plaintiff argues that Minn. Stat. § 125A.09 does not require the non-requesting party to state "issues" with specificity. Furthermore, Plaintiff claims Indep. Sch. Dist. No. 623 v. Digre, 893 F.2d 987 (8th Cir. 1990) is authority for precluding the IHO from limiting the issues parents may raise in due process hearings.
Minn. Stat. § 125A.09, Subd. 6 was repealed during the 2003 legislative session but was in force at the time the due process hearing in question occurred.
Under Minnesota law, a hearing officer may take any action authorized under Rule 16 of the Minnesota Rules of Civil Procedure. Minn. Stat. § 125A.09, subd. 16. Among other powers, Rule 16.03 of the Minnesota Rules of Civil Procedure permits the hearing officer to formulate and simplify the issues, exclude unnecessary proof and cumulative evidence, and take such other actions as may "facilitate the just, speedy, and inexpensive disposition of the action." In addition, Minn. Rule 3525.4300 states that the hearing officer shall preside and conduct the hearing and rule on procedural and evidentiary matters. It also requires the hearing officer to "ensure that issues for hearing are appropriately identified and that evidence is limited to that which is relevant to the issue" and not incompetent, immaterial, cumulative or irrelevant. Minn. R. 3525.4300.
After reviewing the record, this Court finds the IHO acted appropriately in limiting the issues for hearing. The IHO is required by law to oversee and facilitate a speedy hearing. Minn. R. Civ. P. 16. The IHO has the authority to focus the issues for hearing to allow the hearing to proceed expeditiously. Id.; Minn R. 3525.4300. The IHO worked closely with both parties in an attempt to identify and narrow the issues. The due process hearing was sought by the District for the sole purpose of determining whether Josh's IEP was appropriate. IHO Ex. 2. This purpose limited the scope of the hearing. Plaintiff was free to request another due process hearing on any of the issues the IHO excluded, yet did not do so. Significantly, the IHO issued the Third Prehearing Order, in which she limited the issues and evidence for hearing on May 2, 2003. IHO Ex. 12. Neither party objected to the findings or legal conclusions at that time despite language in the Second Prehearing Order stating: "any issues not raised in the parties submissions are now deemed waived." Id. It was not until the first day of the hearing, May 13, 2003, that Plaintiff's counsel first objected to any of the IHO's actions. Tr. at 7-8; 21-24.
Plaintiff clearly was aware of his right to request a separate due process hearing on the excluded issues. In the first prehearing conference, Plaintiff's Counsel stated: "Now, it's fine with me if you want to have this hearing on those issues. I guess I can ask for a separate hearing on the prior time." See Tr. of March 24, 2003 prehr'g conf. at 30.
Furthermore, Plaintiff's reliance on Digre is misplaced. In Digre, the school district refused to hold a due process hearing as requested by theparent. 893 F.2d at 990-91. When a due process hearing was finally held, the school district was successful in convincing the hearing officer to limit the issues requested by the parent, thus denying the student a full and fair hearing. Id. Digre thus stands for the proposition that parents should be free to request a due process hearing on any issue they desire regarding the provision of a FAPE to a disabled student. See id. at 991. In the present matter, the District requested the hearing on a specific issue. Defendant has not sought to prevent Plaintiff from requesting a due process hearing on issues of Plaintiff's choice.
Plaintiff also argues the IHO acted arbitrarily and capriciously by forcing the parents to plead issues with specificity, even though there is no such requirement under § 125A.09, Subd. 6. Although § 125A.09 Subd. 6 does not require specificity in pleading, the provision only governs the parties' initial responses at the commencement of a due process hearing. The IHO is free to subsequently limit issues and exclude evidence as the hearing proceeds under the aforementioned authority.
Neither did the IHO treat issues of fact as issues of law. A review of the record indicates the IHO's prehearing orders appropriately addressed issues of law and required issues of fact for trial. For example, Plaintiff argued Josh's Functional Behavioral Analysis ("FBA") was deficient because the majority of the observations used to formulate the assessment were conducted in the morning, the length of the observations was not noted, the report did not state whether assistive technology was available during the observations and there was some ambiguity surrounding the extent of the baseline data. See IHO Ex. 17. Even assuming all of these concerns are true, Plaintiff could present no authority to indicate the alleged errors rendered the FBA legally deficient. This Court concurs with the HRO's findings that the IHO's decisions to limit issues and testimony for trial are amply supported by the law cited in the orders. See HRO Decision at 6; see also IHO Decision, Findings ¶¶ 15-89.
Plaintiff's contention that the IHO impermissibly shifted the burden of proof from the District to Plaintiff is unsupported by the record. For the aforementioned reasons, the IHO did not act arbitrarily and capriciously in limiting the issues for trial. Neither did she err by treating issues of fact as issues of law. At all times, the District bore the burden of demonstrating, by a preponderance of the evidence, that the IEP was appropriate for Josh.
3. Denying Expert Observation of Josh in School
Plaintiff claims that the IHO erred by denying his motion to have an expert, Mr. Paul Thinesen, observe Josh at school. Plaintiff did not request to have his own independent expert evaluation ("IEE") until after the IEP was proposed by the ISD 11 on February 3, 2003. See IHO Ex. 16. Plaintiff's counsel initially stated the purposes of the observation were "assisting Josh" and "for litigation purposes." Id. Later, Plaintiff's counsel claimed the IEE was necessary to "refute the adequacy" of the District's FBA. IHO Ex. 21. Previously, Magistrate Judge Jonathan G. Lebedoff had recommended rejecting the Renolletts' request to supplement the federal court proceedings in a similar challenge to a prior IEP.Order, Joshua Renollett, a minor, by and through his parents Dan and Patti Renollett v. Independent School District No. 11, Anoka-Hennepin, April 17, 2003, Civil Case No. 02-3698 [Docket No. 54].
This Court finds the IHO correctly concluded that Thinesen's observations would not be relevant to the issue of whether Josh's IEP was appropriate based on the information available when it was proposed in February 2003. When determining whether an IEP is reasonably calculated to afford some educational benefit, courts must evaluate the evidence that was available at the time the IEP was proposed. See Rowley, 458 U.S. at 206-07. Otherwise, "[t]he dangers inherent in this process of second-guessing the decisions of a school district with information to which it could not possibly have had access at the time it made those decisions are great." Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 762 (3rd Cir. 1995). The IHO balanced the student's interests by allowing Thinesen to testify at the hearing against the need to prevent second-guessing based on after-the-fact information. Furthermore, there is no right to discovery in preparation for a local due process hearing.See 34 C.F.R. § 300.502. As a result, the IHO appropriately refused Plaintiff's request for an IEE, pursuant to Minn. Stat. § 125A.09, subd. 19.
4. The Independence of the IHO's Findings of Fact and Conclusions of Law
Finally, Plaintiff alleges the IHO impermissibly relied on the District's representations rather than coming to her own independent findings of fact and conclusions of law. This claim is not supported by the record. The District proposed 177 factual findings and 4 conclusions of law. Based on the testimony of 12 witnesses over 14 days of hearings, the IHO issued a decision that contains 364 factual findings and 108 conclusions of law. See IHO Order. The IHO's decision was upheld in its entirety by the HRO's own nine-page decision. HRO Decision at 9. There is no indication that the IHO failed to undertake an independent review of the record.
C. Procedural Violations
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 minimus 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 v. S.D., 88 F.3d 556, 562 (8th Cir. 1996).
Although Plaintiff's Complaint makes vague references to alleged procedural violations that vitiate the IEP's adequacy, Plaintiff only briefed the issue of whether the process used to create Josh's BIP was deficient. See Complaint ¶ 15. Since Plaintiff addressed this issue in the context of his proposed, self-styled three-prong test for determining whether a BIP was substantively valid, this procedural concern will be considered in conjunction with the alleged substantive violations. See Pl's. Resp. to Def.'s Mot. for J. on the Admin. R. at 12-13.
D. Substantive Violations
Plaintiff also argues Josh's IEP is substantively deficient and is not reasonably calculated to provide Josh with some educational benefit. Plaintiff asserts the following substantive violations: (1) the BIP is deficient and was not created by the District in good faith; (2) the IEP does not provide Josh with appropriate transition services; and (3) the IEP denies Josh educational services in the least restrictive environment appropriate. Again, each of these claims will be addressed in turn.
1. Sufficiency of the BIP
Plaintiff proposes a unique, three-prong test for evaluating the sufficiency of a BIP based on factors purportedly found in the Eighth Circuit's opinions in Neosha R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir. 2003) and CJN v. Minneapolis Public Sch. Special No. 1, 323 F.3d 630 (8th Cir. 2003). Based on these factors, Plaintiff proposes that a BIP is deficient if 1) it is not developed in a timely manner through an IEP team process involving the parents and attached to the IEP; 2) it does not include goals, objectives, reduction of negative behaviors, teaching of positive interventions, a plan for ongoing behavioral analysis, and appropriate planned restraint and timeout; and 3) it does not comply with all state laws. Plaintiff argues the BIP is deficient under each of the prongs in his proposed test.
After careful review of Neosha and CJN, the Court declines to adopt Plaintiff's proposed test. In neither case did the Eighth Circuit explicitly set out a list of factors that must be used to determine whether a BIP is appropriate. Rather, Plaintiff's test is cobbled together by cherrypicking phrases and issues the Eighth Circuit addressed as a result of arguments and facts raised during the course of those specific cases.
The test for determining whether a BIP is sufficient, like all IDEA issues, is ultimately whether or not it provides the student with a FAPE. Legislative and case law have, however, provided benchmarks for assessing whether a BIP provides a FAPE. Behavioral plans must focus on skill acquisition rather than merely behavior reduction or elimination. Minn. R. 3525.0850. Furthermore, a BIP should be based on assessment data, should be individualized to a pupil's needs, should include positive behavioral strategies, should be consistently implemented and should have its effect monitored. Mason City Comm. Sch. Dist., 36 IDELP 50 (IA SEA 2001). A school district must make a good faith effort to develop a BIP that assists the student in achieving his or her educational goals. CJN, 323 F.3d at 639. Based on this guidance, the Court will address Plaintiff's concerns that the BIP was not developed in a timely manner with the help of the parents, is substantively deficient and does not comply with state procedures, to ensure the BIP provides a FAPE.
a. Procedural Objections to the BIP's Development
Plaintiff claims the BIP is deficient because it was not completed in a timely manner, was created without parental involvement and was developed without consideration of Josh's most recent behavioral assessment data.
After reviewing the record, the Court finds these arguments are not supported by a preponderance of the evidence. Plaintiff claims the BIP was developed only at meetings on October 4, 2002 and January 29, 2003, which Mrs. Renollett was unable to attend. At the hearing, witnesses testified that the IEP team discussed the BIP at meetings on September 24, September 26 and October 2, 2002. Tr. at 214-18, 223-24, 528-32, 661, 795, 1248-49. Mrs. Renollett was present at each of these meetings. Tr. at 215, 532, 794, 879-80, 1059-61, 1249-52. At the October 2, 2002 meeting, Mrs. Renollett requested Jan Ostrum, the District's behavioral consultant, be removed from the IEP team because she did not share Mrs. Renollett's views on the best education plan for Josh. Tr. at 656, 2206. It is well established, however, that the school district, and not the parent, is entitled to choose and assign the individuals that comprise the IEP team. See Rowley, 458 U.S. at 206-07;Slama v. Indep. Sch. Dist. No. 2580, 259 F.Supp. 2d 880, 885-86 (D. Minn. 2003). Mrs. Renollett chose not to attend the October 4, 2002 meeting. Tr. at 227, 796. In addition, the record shows the District had frequent contact with Mrs. Renollett between September 2002 and February 2003 to discuss Josh's behavioral needs. See, e.g., IHO Ex. 65; S.D. Exs. 137, 141, 143.
Plaintiff's claims that the BIP was not developed in a timely manner and was not based on recent behavioral assessment data are also not supported by the record. The BIP was developed based on a review of behavioral data maintained on Josh during the preceding school year. Tr. at 346-52. In addition, a reassessment of Josh's emotional, social and behavioral status as well as the potential causes of his targeted behaviors was conducted in November 2002. Tr. at 242, 250-54, 271-77. The results of the reassessment were presented to the IEP team, including Mrs. Renollett, at a December 10, 2002 meeting. Tr. at 273-74, 800, 889-890, 1019-21, 2079-80, 1270-72. Mrs. Renollett did not object to the behavioral reassessment's findings. Tr. at 279, 1019-24. Between December 10, 2002 and January 29, 2003, the District repeatedly tried to meet with Mrs. Renollett, first to finalize the behavioral assessment and then to revise the IEP and BIP to reflect the behavioral assessment's findings. See Tr. at 1273-76; S.D. Exs. 84; 132; 134; 137. Mrs. Renollett responded twice, first through her counsel to ask why another meeting was necessary, and then to express a desire to hire her own behavioral expert to evaluate Josh. S.D. Ex. 133; Tr. at 1279-80, 1385-86. She did not provide dates when she would be available to meet. Tr. 283-84. Ultimately, on January 16, 2003, the District sent Mrs. Renollett a letter providing three possible dates to meet and finalize the proposed IEP and BIP. Tr. at 1405-1408; S.D. Ex. 137. The letter noted that the IEP team would hold the meeting on January 29, 2003, the last of the three proposed dates, if Mrs. Renollett did not respond. On January 28, 2003, Mrs. Renollett e-mailed the District saying she could not attend the January 29, 2003 meeting because Josh had an appointment and she would like to have her behavioral expert attend the IEP meeting. Tr. at 284; S.D. Ex. 141. Despite Mrs. Renollett's request that the meeting be rescheduled the following week, Mrs. Renollett testified that it was unlikely the expert would have been able to attend an IEP meeting for some time. Tr. at 2973-74. The District determined it was necessary to proceed immediately with the IEP process, the District notified Mrs. Renollett the meeting would occur on January 29, 2003, as planned. Tr. at 1281-82; S.D. Ex. 139. At the meeting, the team revised the IEP and BIP to reflect the behavioral assessment and, when deemed appropriate, Mrs. Renollett's concerns. Tr. at 282, 286-87, 896-97, 1082-85, 1285-89; S.D. Ex. 144. The finalized IEP and BIP were proposed on February 3, 2003. See Proposed IEP.
A similar behavioral assessment was completed in 2001 and served as the basis for the 2002 FBA. Tr. at 625-44.
The record shows that the IEP team conducted a behavioral assessment of Josh, considered the behavioral data maintained on Josh throughout the school year, and repeatedly discussed his behavioral needs while developing his BIP. Mrs. Renollett was a participant in this process, attending several meetings at which the BIP and behavioral assessment were discussed. Although Mrs. Renollett was not present at the October 4, 2002 or January 29, 2003 meetings, an IEP meeting "may be conducted without a parent in attendance if the [school district] is unable to convince the parents they should attend." 34 C.F.R. § 300.345(d). Furthermore, the Eighth Circuit has stated in a related context that:
The School District cannot be faulted for failing to engage in an open discussion with [the student's] parents about alternative options for her placement, when the parents themselves refused to participate in the discussion with the School District at the first hint of disagreement with the plan they advocated.Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 657 (6th Cir. 1999). As a result, the Court finds that the proposed BIP incorporated current behavioral assessments and was created in a timely manner through a process that provided the parent with meaningful opportunity to participate in its development.
b. Substantive Objections to the BIP
Plaintiff also contends the BIP is deficient because it is not a comprehensive plan, which includes goals, objectives, reduction of negative behaviors, teaching of positive interventions, and a plan for ongoing behavioral analysis. Plaintiff also contests the BIP's use of restraint and timeout is inappropriate.
Again, Plaintiff's contentions are not supported by the record. A preponderance of the evidence indicates the proposed BIP is substantively sufficient. Witnesses for the District testified that the BIP is specifically tailored for Josh's individual needs and will work in concert with the student's IEP, not independently of it. Tr. at 287-88, 353-54, 696-99, 715-16, 896-900, 1082-85, 1285-89, 1303. Plaintiff's expert, Thinesen, admitted that the proposed BIP includes positive behavior strategies, such as breaking up the student's tasks into smaller and easier pieces to a level he can understand, interspersing breaks into the student's tasks, teaching the student relaxation and self-calming techniques, providing the student high-interest or preferred tasks, and providing the student with reinforcers for desired behavior. Tr. at 1841-51. He also agreed that the BIP included behavior strategies to teach the student new skills. Tr. at 1747. The plan does permit the use of restraint and timeout but offers a spectrum of interventions to redirect or de-escalate Josh's behavior. Tr. at 700-26. These responses, including reinforcement, redirection and communication strategies, escalate from less to more restrictive depending on Josh's response. Tr. at 725-26, 1733-34, 1841-51; Proposed IEP at 28-29. The BIP also contemplates how staff should respond to Josh's behavior in noneducational environments, such as the bus and the community. Tr. at 741-45; Proposed IEP at 32-34.
The majority of Plaintiff's concerns over the BIP's substantive validity mirror the opinions and testimony of their expert witness, Thinesen. Thinesen had the opportunity to review Josh's condition and behavioral incident reports from September 24, 2002 to November 27, 2002, but never observed him in a school setting. Tr. at 1831-33, 1859-61, 1914-22; Student Ex. 4. As a result, the IHO determined that his testimony was not entitled to as much weight as the District witnesses who worked closely with Josh in school on a regular basis. IHO Order at Finding ¶ 210. The record supports this credibility determination and the IHO's assessment is entitled to "due weight." Based on their educational expertise and experience working regularly with Josh in a school setting, the District's witnesses agreed the BIP is appropriate for Josh and will provide him with educational benefit. Tr. at 369-71, 1315. While Plaintiff may disagree with the BIP, the school district is ultimately responsible for implementing the IEP and BIP and parental approval is not necessary. See Slama, 259 F.Supp. 2d at 885-86; Blackmon, 198 F.3d at 657. The preponderance of the evidence supports the IHO's finding that the BIP is substantively appropriate for the student.
c. BIP Compliance with State Law
Plaintiff argues the proposed BIP's emphasis on restraint and timeout violates Minnesota Rule 3525.0850, which requires, inter alia, "behavioral intervention programs focus on skills acquisition rather than merely behavior reduction or elimination." Plaintiff also contends the BIP fails to identify at least two positive interventions and the effectiveness of each as required by Minn. R. 3525.2900, Subp. 5(A)(b). Furthermore, Plaintiff claims the District's regular use of restraint and timeout as conditional procedures did not meet the stringent standards set forth in Minn. R. 3525.2900, Subp. 5(c). As a result, Plaintiff argues the District did not make a good faith effort, as required byCJN, to implement IDEA and parental rejection of the proposed IEP and BIP was justified. See CJN, 323 F.3d at 639.
Minn. R. 3525.2900, Subp. 5(c) provides that: "Districts may use conditional procedures in emergencies until the IEP team meets, provided the emergency measures are deemed necessary by the district to protect the individual pupil or others from harm."
Both the District's witnesses, including Jan Ostrum and Kathy Holseth, and Plaintiff's expert witness, Paul Thinesen, agreed the BIP included behavior strategies to teach Josh new skills. Tr. at 704-09, 822-30, 1747. Thinesen also conceded the proposed BIP included several positive behavior strategies. Tr. at 1841-51. Ostrum explained Josh's BIP included a number of interventions to redirect or de-escalate Josh's behavior that ran the spectrum from less to more restrictive. Tr. at 696-730. Thinesen also testified that the BIP contained proactive strategies to reduce the use of restraint and timeout. Tr. at 1733-34, 1841-51. Witnesses for the District testified that, based on their educational expertise and personal knowledge of Josh, they believe implementation of the proposed IEP and BIP would provide Josh with meaningful educational benefit. Tr. at 369-71, 1315.
Plaintiff argues that the District's use of conditional procedures does not meet the "emergency measures" standard set forth in Minn. R. 3525.2900, Subp. 5(c). However, Subp. 5(A)(1) of the same rule states conditional procedures may be used in emergency situations or when included as part of the pupil's IEP. Minn. R. 3525.2900, Subp. 5(A)(1). To utilize a conditional procedure, the IEP team must: (1) identify the frequency or severity of target behaviors for which the conditional procedure is being considered; (2) identify at least two positive interventions implemented and the effectiveness of each; and (3) design and implement the regulated interventions based on present levels of performance, needs, goals and objectives. Id., Subp. 5A(1)(a)-(c). The record contains evidence that District staff completed a "Behavior Data Report Chart" form every time an incident occurred and "Critical Incident Reports" when injuries or serious property damage occurred as a result of Josh's behavior. Tr. at 174-83. As previously noted, the BIP contains more than two positive interventions and was designed to meet Josh's present levels of performance, needs, goals and objectives. Proposed IEP at 28-29; Tr. at 700-26, 1841-51. As a result, the Court finds the BIP complies with all state regulations and represents a good faith effort by the District to comply with IDEA's provisions. See CJN, 323 F.3d at 639.
In summary, the Court finds the proposed BIP provides Josh with a FAPE.
2. Provision of Appropriate Transition Services
Plaintiff claims the transition services included in Josh's IEP are inappropriate because his outside providers were not included in the development of the transition services, the services do not develop vocational skills and the services fail to address Josh's behavioral problems.
The IDEA requires that a student's IEP contain "a statement of needed transition services for the child." 20 U.S.C. § 1414(d)(1)(A)(vii)(II). Transition services are defined as "a coordinated set of activities for a student with a disability . . . that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment . . . adult services, independent living or community participation." 34 C.F.R. § 300.29(a)(1). The plan must be based on the student's needs, preferences and interests and must include instruction, related services, community experiences, development of employment objectives and, if appropriate, acquisition of daily living skills and a functional vocational evaluation. 34 C.F.R. § 300.29(a)(1), (2).
After reviewing the record, a preponderance of the evidence supports the IHO's finding that Josh's IEP contains adequate transition services that are integrated into the student's educational programming. The witnesses for the District agreed that the proposed IEP's shift to a more functional curriculum would provide Josh with greater opportunity to develop the skills he would need in his post-high school life. Tr. at 320-25, 828-30, 904-07, 971-74, 1087-90. The plan to shift to a functional curriculum to improve Josh's life skills was discussed at the IEP meetings Mrs. Renollett attended. Tr. at 321, 830. Although the transition plan was finalized at the January 29, 2003 meeting, Mrs. Renollett's voluntary decision not to attend the meeting truncated her right to participate in its final formulation. Tr. at 1174-78; Blackmon, 198 F.3d at 657. His transition services include participation in the STEP vocational program, visiting an apartment setting, attending community outings and participating in life skills activities. Proposed IEP at 17; Tr. at 721-23. These services reflect Josh's responses to survey questions about his community activities, leisure interests and vocational goals. Id. The parent provided no evidence to rebut ISD 11's witnesses' testimony that the transition services were appropriate for the student.
3. Provision of Educational Services in the Least Restrictive Environment
Plaintiff argues that Josh's IEP fails to provide him with educational services in the least restrictive environment, as required by the IDEA. The proposed IEP reduces Josh's time in mainstream classes from two periods to one period each day. Plaintiff claims the District failed to consider and provide a full range of supplementary aids, services and curriculum modifications in mainstream education class before proposing an IEP that places Josh in a more restrictive environment.
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. Students with disabilities should be removed from mainstream classes "only when the nature or severity of the disability 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); Minn. Stat. § 125A.08(a)(1). For a student with a disability to be removed from regular classes, ". . . there must be an indication that the pupil will be better served outside the regular program." Minn. R. 3255.0400; see also Ind. Sch. Dist. No. 283; 88 F.3d at 561.
The preponderance of the evidence supports the IHO's finding that the proposed IEP provides Josh educational services in the least restrictive environment. Under the proposed IEP, Josh retains the opportunity to interact and communicate with both disabled and peers without disabilities during passing times in the hallway at school, in the community, and during his mainstream education class. Tr. at 983-87, 1096-98, 1204-05. The record supports a finding that Josh's aggressive behavior warrants removal from mainstream classes to a separate room or special education setting. Tr. at 700-04, 1104-05. Josh's speech pathologist, Stacy Stroh, witnessed approximately 20 behavioral incidents during which Josh threw objects at the wall, tore things from the wall, spit, kicked and ran into a different room. Tr. at 1044-46, 1142-44; see also Tr. at 173-74. Students, as well as Stroh, expressed fear of Josh during these behavioral incidents. Tr. at 1047-48, 1142-44. Stroh testified she believed removing Josh to a separate room was necessary at times to prevent him from hurting himself or others and to allow him the opportunity to self-calm. Tr. at 1100-02, 1138-39. Ostrum also detailed Josh's aggressive behavior and the need for a separate room in which Josh could self-calm. Tr. at 696-730.
In addition, District witnesses consistently observed that Josh has problems modulating sensory input, particularly in mainstream classes, and can become frustrated when faced with tasks beyond his ability, leading to behavioral incidents. Tr. at 529-33, 718-23, 807-09. Ostrum testified the District often attempts to modify mainstream classes and provide supplemental aids and services to Josh but noted these efforts have met with limited success.
Tr. at 714. Josh also often refuses to attend mainstream classes because of his aversion to a perception that he is different. Tr. at 676-77, 713-15. Witnesses testified Josh responds well to a more functional curriculum, one they believe will lead to less class refusals and behavioral incidents, as well as increased participation in school. Tr. at 222-326, 335-36, 669-72, 718-23, 983-87, 1086-91, 1293-95, 1302-03. Plaintiff's expert witness also testified he would not recommend placing the student in a setting or a classroom where the student felt he could not be successful or felt different from other students. Tr. at 1907-08 For the aforementioned reasons, the Court finds that the IEP and BIP provide educational services in the least restrictive setting.
E. Restraint During Hearing Process
Finally, Plaintiff alleges Josh was repeatedly and inappropriately restrained by school personnel during the hearing process. This claim was not raised during the due process hearing and therefore is not properly before this Court. See 20 U.S.C. § 1415(i)(2)(A) (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 ex rel Blackmon v. Springfield R-XIII School Dist., 198 F.3d 648, 655-56 (8th Cir. 1999).
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. Defendant's Motion for Summary Judgment on the Administrative Record [Docket No. 32] is GRANTED, and
2. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.