B.H. v. West Clermont Bd. of Educ.

788 F.Supp.2d 682

272 Ed. Law Rep. 445

43 NDLR P 27

B.H., Guardian of B.B., Plaintiff,

v.WEST CLERMONT BOARD OF EDUCATION, Defendant.

Case No. 1:10–cv–520.

United States District Court,S.D. Ohio,Western Division.

April 26, 2011.

Alphonse Adam Gerhardstein, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, Aimee E. Gilman, Lyndhurst, OH, for Plaintiff.Bernard W. Wharton, Ralph Gary Winters, McCaslin Imbus & McCaslin, Cincinnati, OH, for Defendant.

ORDER: (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 21); DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 20); AND (3) TERMINATING THIS CASE FROM THE COURT'S DOCKET

TIMOTHY S. BLACK, District Judge.

This civil action is before the Court on the parties' cross motions for summary judgment (Docs. 20, 21) ¹ and the responsive memoranda (Docs. 22, 23, 24, 25).

I. PROCEDURAL HISTORY

This is an appeal from a special education administrative proceeding, and the parties to the appeal have filed cross motions for summary judgment. Plaintiff seeks a reversal of the Ohio Department of Education's State Level Review Officer's (“SLRO”) decision and reinstatement of the Impartial Hearing Officer's (“IHO”) initial decision. Additionally, Plaintiff seeks attorney fees and costs.

Plaintiff initially filed a due process complaint on May 5, 2009. The due process hearing was held over seven days on July 28–30, August 10–12 and 28, 2009. (IHO decision at 2). The IHO's final decision was issued on October 26, 2009. ( Id. at 15–16). The IHO found that West Clermont procedurally violated the Individuals with Disabilities Education Act (“IDEA”) ² by failing to consider outside evaluations and thereby predetermining the speech services needed for B. ( Id. at 22). The IHO concluded that these procedural violations resulted in substantive denial of free appropriate public education (“FAPE”). ( Id. at 22, 41). Additionally, the IHO concluded that B did not receive any educational benefit from her behavioral goals and that her behavior had regressed as a result of the use of physical restraints and inconsistent use of her behavior plan. ( Id. at 27–28, 34–36, 41). Thus, the IHO concluded that B was denied FAPE. ( Id. at 42). With respect to therapy services, the IHO found that B had been denied FAPE because of West Clermont's failure to provide direct rather than consultive speech and occupational therapy during the 2007–2008 and 2008–2009 school years. ( Id. at 41). Further, as a result of the denial of FAPE in this area, the IHO ordered that B be placed at Applied Behavioral Services (“ABS”) ³ at District expense for the 2009–10 and 2010–11 school years, with transportation, a functional behavior assessment, and two years of remedial speech and occupational therapy services. (IHO Opinion at 41–43). After the hearing, the school district agreed to change B's stay put placement to ABS. (Add'l Evid. submitted by District to SLRO, Oct. 25, 2009, IEP).

West Clermont timely appealed the October 26, 2009 IHO decision with respect to the 2010–11 school year, ABS placement, and remedial therapy awards to State Level Review Officer (“SLRO”) Teresa L. Hagan, Esq. In a decision dated June 28, 2010, the SLRO reversed the IHO's decision and order in its entirety. The SLRO found that the IHO incorrectly concluded that West Clermont had denied B FAPE in the 2007–2008 and 2008–2009 school years. (SLRO Decision at 2–4). The SLRO found that Plaintiff failed to show by a preponderance of the evidence that any procedural violations caused adverse or substantive effects on B's educational performance. Furthermore, the SLRO determined that there was no serious denial of the Plaintiffs participation rights in the IEP process and that B did not suffer any denial of educational benefits as a result. ( Id. at 3). The SLRO also determined that B was not prevented from benefitting from her IEP due to the use of physical restraints or from the failure of West Clermont to provide a more effective behavior management plan. (SLRO Decision at 3–4). Finally, the SLRO also determined that because B had not been denied FAPE, the IHO erred in awarding any compensatory education. ( Id. at 4).

As a result of the SLRO's decision, Plaintiff brought the instant action seeking a review and appeal of the SLRO decision.

II. BACKGROUND FACTS ⁴

At the time of the hearing in this matter, B was a 10 year-old child residing in the West Clermont Local School District. When B was four months old, Plaintiff B.H. (“Mrs. H”), took her in and subsequently became her legal guardian. (Tr. at 738). B has a variety of diagnoses including mental retardation, poorly controlled epilepsy, asthma, selective mutism, ⁵ ADHD, explosive behavior disorder, Cushing's Disease,⁶ pervasive developmental disorder (a form of autism), and post traumatic stress disorder. (Pet. Ex. GGG, Tr. 28–31; IHO Opinion at 2). B was qualified by West Clermont as a student with multiple disabilities in a 2006 Evaluation Team Report (“ETR”). (Pet. Ex. D). Among other things, the 2006 ETR identified B as having significant adaptive behavior deficits and a language disorder which qualified her for speech therapy. (IHO Opinion at 3; Pet. Ex. D at 46, and last page of Pet. Ex. D).⁷

B had significant behavior issues which included aggression, noncompliance, and leaving the classroom and building without permission. (IHO Opinion at 4; Pet. Exs. U, W, VV, JJ, EEE). Plaintiff had B evaluated at Cincinnati Children's Hospital for both speech and occupational therapy issues in 2006–2007, and those evaluations were provided to West Clermont (Pet. Exs. OO, QQ), including to Nancy Parks, the principal of Holly Hill Elementary, where B was a student. (Tr. 745–7, 1026; IHO Opinion at 3, 5). The speech evaluation recommended that B receive direct speech therapy, and the occupational therapy evaluation recommended that she receive direct occupational therapy. (Pet. Exs. OO, QQ). The communication evaluations found that B has expressive-receptive language deficits. (IHO Opinion at 5; Pet. Ex. OO). The occupational therapy evaluation identified B as having significant deficits in the areas of hygiene, toileting, self-care, reciprocal communication, and attention to task, among other things. (IHO Opinion at 6; Pet. Ex. QQ).

B was also treated by a behavior specialist, Dr. Jessica McClure, who wrote letters in the fall of 2007, which were provided to Principal Parks, stating that B required speech services, and a positive reward program to help address her behavior. (IHO Opinion at 6, 7; Pet. Ex. RR, SS and Tr. 1026). B also had several neuropsychological evaluations from Cincinnati Children's Hospital in 2005, 2007, and 2008, recommending direct speech and occupational therapy for a severe expressive-receptive language deficit, and a positive behavior reinforcement system to help her control her behavior. (IHO Opinion at 3, 5; Pet. Ex. F, NN and PP). All of the neuropsychological evaluations state that B's I.Q. is in the high 50's or low 60's ⁸ and that she presents with a cognitive deficit in the moderately impaired range. (Pet. Ex. F at 2, NN at 1 and P at 2).

B attended Holly Hill Elementary School from August 2007 through January 2009. (IHO Decision at 2–3). She attended the third and fourth grade in the 2007–2008 and 2008–2009 school years. ( Id.) Her Individualized Education Program (“IEP”) period ran from November to November so that in August of 2007, B was still following the 2006–07 IEP.⁹ (Pet. Ex. L). None of B's IEPs (2006, 2007, 2008), contained any goals designed to address the significant adaptive behavior deficits she possessed including ongoing toileting issues (Tr. 753), hygiene issues (Tr. 753), self care skills (Tr. 747), and reciprocal social and communication needs. (Tr. 758; Pet. Ex. B, J, K, L, and AAAA; Tr. 145–46).

In the fall of 2007, Plaintiff sent letters to both Mrs. Parks, the principal of Holly Hill, and Mr. Nacke, B's special education teacher, detailing concerns she had about B's behavior, adaptive behavior deficits, and need for direct speech and occupational therapy. (Pet. Ex. TT, UU; IHO Opinion at 7). While both Parks and Nacke acknowledged receiving these documents, no changes to B's IEP were made at that or any other time. (Tr. 376–378, 1003–04; 1032–34). At no time did anyone in the District send a prior written notice to Plaintiff explaining the District's refusal to provide speech or occupational therapy, or its refusal to address B's functional needs in her IEP, or advising her of her rights. (Tr. 749, 1097, 1032–34). B's IEP for the 2007–08 school year provided her with 30 minutes of speech consult per quarter, which was reduced in the 2008–09 school year to 15 minutes of speech consult per quarter, for a total of 45 minutes per year. (Pet. Ex. J, K; Tr. at 638). The speech therapist, Meg Stansbury, never worked with B, was not aware that she had a cognitive deficit, was not aware that she had a language disorder, or that the 2006 ETR recommended that she receive speech therapy. (Tr. 629, 631). B was receiving 30 minutes of OT consult per month on both the 2007–08 IEP and 2008–09 IEPs for handwriting and sensory issues only. (Pet. Ex. J, K).

B's behaviors, while challenging, were still manageable at the beginning of the 2007–08 school year, and she was spending most of her time in the regular education classroom. (IHO Opinion at 8; Tr. 43–45, Pet. Ex. K). By December of 2007, B's practice of running out of the classroom had become enough of an issue to warrant the District completing a functional behavior assessment. (IHO Opinion at 8; Pet. Ex. VV). The assessment, completed by an untrained aide, revealed that B was being restrained in her chair by the aide. ¹⁰ (Tr. 426, 436, 1025–26; IHO Opinion at 8). No changes were made to the IEP as a result of this assessment. (IHO Decision at 30).

Over the course of the spring of 2008, B's behavior became more difficult, resulting in episodes documented by the...