K.I. ex rel. Jennie I. v. Montgomery Pub. Sch.

275 Ed. Law Rep. 702

805 F.Supp.2d 1283

K.I., by and through her mother and next friend, JENNIE I., and Jennie I., individually, Plaintiffs,

v.MONTGOMERY PUBLIC SCHOOLS, Defendant.

Case No. 2:06–CV–905–MEF.

United States District Court, M.D. Alabama, Northern Division.

Aug. 24, 2011.

Curtis Leverne (Buddy) Scott, Scott Attorneys LLC, Montgomery, AL, Deborah Ann Mattison, Rachel Lee McGinley, Wiggins, Childs, Quinn & Pantazis LLC, Birmingham, AL, for Plaintiffs.

Erika Perrone Tatum, James Robert Seale, Hill Hill Carter Franco Cole & Black, PC, Montgomery, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, District Judge.

K.I., a child afflicted with arthrogryposis, and Jennie I., K.I.'s mother, (collectively “the Plaintiffs”) seek review of an unfavorable administrative decision under the Individuals with Disabilities Education Act (“IDEA”) and bring claims pursuant to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 for education in the least restrictive environment. This cause is before the Court on dispositive motions from the Plaintiffs (Docs. # 81, 83) and the Defendant Montgomery Public Schools (“MPS”) (Doc. # 79). The Court has carefully considered all submissions from the parties and the applicable law. For the reasons that follow, the Court finds that the Defendant's motion (Doc. # 79) is due to be GRANTED in part and DENIED in part. The Plaintiffs' motion for partial summary judgment on their § 504 claims (Doc. # 83) are due to be DENIED. The Plaintiffs' motion for reversal of administrative decision (Doc. # 81) is due to be GRANTED in part and DENIED in part.

FACTUAL SUMMARY

A. K.I.'s disability

K.I. suffers from a rare congenital condition called arthrogryposis. Arthrogryposis is characterized by multiple joint contractures, muscle weakness, and fibrosis. Typically, arthrogryposis is a non-progressive disease but cannot be reversed. Vigorous physical therapy and in some cases surgical intervention have been shown to improve quality of life. K.I. also suffers from a rare form of Muscular Dystrophy and Restricted Lung Disorder.

In K.I.'s case, arthrogryposis causes extensive joint stiffness and significantly limits her range of motion. The condition prevents K.I. from speaking,¹ raising her arms, or eating by mouth.² K.I. is able to move her head, can move her arms if they are low, and can use her hands while wearing custom splints. K.I. is wheel-chair bound, and must wear a diaper or comparable undergarment. Arthrogryposis is treated with extensive physical and occupational therapy. Because K.I. is unable to cough, she is prone to developing respiratory infections and pneumonia. K.I.'s airways must be periodically suctioned to prevent these respiratory problems from occurring.

B. K.I.'s attendance at the Children's Center

From the time she was in pre-school until November 15, 2004, K.I. was educated at the Children's Center, a self-contained school for children who require specialized medical care. Approximately one hundred students attend the Children's Center. In addition to specially trained teachers, the Children's Center employs five nurses. The presence of these nurses is important for K.I.'s care, because pursuant to regulations of the Alabama Board of Nursing, invasive procedures cannot be delegated to unlicensed personnel in the school setting. K.I. requires feeding through a gastronomy tube and suctioning, both of which are classified as invasive procedures. Accordingly, K.I. requires almost constant nursing care.

There are approximately 175 days in each school year. Each year that she attended school at the Children's Center, K.I. missed a significant number of school days due to illness or surgery. Each year between 2000 and 2004, K.I. missed one hundred or more school days. Between August 2004 and her last day at the Children's Center in mid-November 2004, K.I. only attended twenty days of school. At that time, Jennie I. became concerned that poor hygiene practices at the Children's Center were causing K.I. to become sick, so she removed K.I. from school.

MPS offered to provide K.I. with homebound services in 2000 and in 2001, but her parents refused to accept these services until 2005.³ At the time this lawsuit was filed, K.I. was homebound and receiving weekly in-home services from a special education teacher, a speech therapist, and a physical therapist. K.I.'s parents request that she be “mainstreamed” so that she can attend school with children who are not disabled. K.I. attended four days at a three-week summer program at a mainstream, neighborhood school during the summer of 2005 without incident.

C. K.I. is evaluated by Dr. Laura Vogel

In the summer of 2005, K.I.'s parents asked Dr. Laura Vogel, an occupational therapy expert, to evaluate K.I.⁴ This is the first true occupational therapy evaluation ever conducted on K.I. According to the record, an occupational therapy assessment was done at the Children's Center in 2000, but the Plaintiffs assert that the assessor never worked with K.I. one-on-one. Instead, they say the report was based on anecdotal evidence.

Dr. Vogel's report emphasizes the need to utilize switches and other assistive technology to increase K.I.'s communications skills. Dr. Vogel also focused on the importance of exposing K.I. to non-disabled children, either through the use of a peer helper or in an integrated classroom.

D. K.I. requests an administrative hearing

In April of 2005, the Plaintiffs requested an administrative hearing with the Alabama Department of Education. In this request, Jennie I. alleged that MPS had failed to provide K.I. with a free appropriate public education (“FAPE”) in the least restrictive environment as required by the IDEA. Specifically, Jennie I. claimed: (a) that MPS had failed or refused to assure K.I. comprehensive and timely evaluations, including in the areas of her cognitive ability, self-help skills, and assistive technology; (b) that K.I.'s program at the Children's Center is too segregated and restrictive; (c) that MPS failed to offer appropriate assistive technology devices, including an augmentative communication device; (d) that MPS failed to provide K.I. with any academic services, as well as any program to allow the development of self-care skills; and (e) that MPS failed to provide K.I. with a homebound program when she could not attend school.

Jennie I. was dissatisfied with K.I.'s individualized education plan (“IEP”) for several reasons. She was concerned that the plans beginning in 2002 included goals that either K.I. could never accomplish or tasks that K.I. could already accomplish.⁵ Jennie I. was also concerned by the lack of what she called “academic goals” and the fact that the plans were not based on expert evaluations. According to her mother, K.I.'s classroom was not sufficiently outfitted to accommodate her wheelchair. For example, K.I. had to be placed sideways at the table because her wheelchair would not fit underneath the table.

Dr. Joseph Morton, the State Superintendent of Education, appointed Michael P. Cole (“Cole” or “the hearing officer”) to serve as hearing officer for the due process hearing. Cole conducted the due process hearing over a period of eleven days ending in May 8, 2006. On August 31, 2006, Cole issued a decision in which he determined that MPS had provided K.I. with a FAPE in the least restrictive environment, namely the Children's Center. Cole also determined MPS had not committed any procedural violations of the IDEA. Accordingly, K.I. and Jennie I. did not succeed on any of their claims in the due process hearing.

E. Procedural history

On October 6, 2006, the Plaintiffs filed this action, pursuant to 20 U.S.C. § 1415, seeking a reversal of the hearing officer's administrative decision, and bringing claims under § 504 of the Rehabilitation Act. Later, Plaintiffs sought and received leave to amend the complaint. (Doc. # 63). The Amended Complaint seeks the following relief:

(1) Reversal of the hearing officer's decision;

(2) A declaration that the defendant's education and due process practices, polices, procedures, and conditions are violative of plaintiffs' rights as secured under § 504 of the Rehabilitation Act and IDEA;

(3) A permanent injunction enjoining the defendants, their agents, successors, employees, attorneys, and those action in concert with the defendants, from continuing to violate plaintiffs' rights under § 504 of the Rehabilitation Act and the IDEA ⁶;

(4) All relief requested in the due process hearing, including compensatory damages under § 504 of the Rehabilitation Act;

(5) Compensatory education and/or the educational services K.I. would have received absent the defendant's unlawful conduct;

(6) A declaration that the Plaintiffs are the prevailing party; and

(7) An award of attorneys' fees and costs.

The parties have jointly submitted the lengthy record from the administrative hearing. The matter is now before the Court on cross motions. MPS contends that Cole's decision is due to be affirmed and that it is entitled to summary judgment on the § 504 of the Rehabilitation Act. (Doc. # 79). Plaintiffs argue that Cole's decision is erroneous (Doc. # 81) and that they are entitled to summary judgment on their § 504 claim. (Doc. # 83).

Specifically, the Plaintiffs argue (1) that Cole incorrectly determined that MPS had offered K.I. a FAPE as required by the IDEA, (2) that Cole incorrectly determined that MPS had provided K.I. with an education in the least restrictive environment, as required by the IDEA, and (3) that MPS should have offered K.I. homebound services when K.I. was unable to attend school. Plaintiffs also argue that they are entitled to damages under § 504 because MPS failed to educate K.I. in the least restrictive environment.

LEGAL STANDARDS

A. Overview of the IDEA

The purpose of IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education.” 20 U.S.C. § 1400(...