v. Sch. Bd. of Broward Cnty.

L.M.P. on behalf of E.P., D.P., and K.P., minors, Plaintiff, v. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Defendant.

CASE NO. 05-60845-CIV-MARRA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

September 23, 2014

OPINION AND ORDER

This cause comes before the Court upon Defendant, School Board of Broward County's, Motion for Judgment on the Record on Counts I and III and Motion for Summary Judgment on Count II (DE 236); Defendant, School Board of Broward County's, Motion to Strike the Additional Evidence (DE 470); and Plaintiff's Motion for Partial Summary Judgment (DE 458). The Motions are ripe for review. On May 8, 2014, this Court held a hearing. For the reasons stated below, Defendant's Motion for Judgment on the Record and for Summary Judgment (DE 236) is DENIED IN PART and GRANTED IN PART; Plaintiff's Motion for Partial Summary Judgment (DE 458) is DENIED; and Defendant's Motion to Strike (DE 470) is DENIED WITHOUT PREJUDICE.

I. Background¹

E.P., D.P., and K.P. (the "Triplets") were born on January 4, 2001. From a very early age, they exhibited signs of developmental delay. Before the age of two, the Triplets began receiving early intervention services under Part C of the Individuals with Disabilities Education Act("IDEA").² In 2003, the Triplets were diagnosed with autism. In May 2003, the parents hired David Garcia and Behavioral Analysis, Inc. ("BAI") to provide each of the children with 30 hours per week of one-on-one applied behavioral therapy ("ABA"). There was a dispute between the parents and the Children's Diagnostic & Treatment Center of South Florida, Inc. ("CDTC"), the coordinator of early intervention services for children in Broward County, regarding payment for the ABA services. Approximately in June 2003, the parents consented to the evaluation of the children by the CDTC for the purpose of resolving that dispute. The parents did not consent to the concurrent evaluation of the Triplets by the Defendant School Board of Broward County ("School Board").³

The dispute with CDTC was settled in November 2003. On November 6, 2003, the father executed a consent form for the School Board's evaluation. The School District received the pre-referral for transition to Part B on November 12, 2003. Pet.'s Ex. 3 (DE 488-27). On November 18, 2003, the School Board's team conducted a child study meeting to review and discuss the data about the Triplets available to the School Board at that time. The parents were not present. Plaintiff, the Triplets' mother, asserts that the parents were improperly excluded from this meeting.

On December 8, 2003, a meeting to discuss transition of the Triplets from the services coordinated by the CDTC to the services provided by the School Board took place. The parents tookpart in that meeting and expressed their desire that the children continue to receive 30 hours per week of one-on-one ABA therapy. Carol Bianco, one of the School Board employees present at the meeting, advised the parents that ABA therapy was not provided by the School Board as a Part B intervention service. Tr. Admin. Hrg. (Bianco), p. 71.⁴ Carol Bianco, who has worked for the School Board for approximately 30 years, later testified that to her knowledge the policy of the School Board was to never approve ABA therapy. Id., p. 63-64.

After the meeting on December 8, 2003, the School Board evaluated the Triplets. The evaluation of all three children lasted one hour and fifteen minutes. Tr. Admin. Hrg. (Father), p. 887. Plaintiff contends that the evaluations conducted so quickly were deficient.

On November 12, 2003, the parents requested copies of the evaluation reports for the children and an Individualized Education Program (" IEP") meeting was set for December 18, 2003. However, the Triplets' father⁵ requested that the IEP meeting be postponed. The meeting was rescheduled for January 5, 2004, the day following the winter break and one day after the Triplets' third birthday. The father attended this IEP meeting accompanied by a court reporter and David Garcia. The father requested that the Triplets continue to receive the same level of ABA therapy. The father later testified at one time that the only option he would have accepted was 30 hours of at home one-on-one ABA therapy per week. Tr. Admin. Hrg. (Father), p. 841. At another time, the father testified that the issue of the location and the provider was not brought up, but that he would have accepted 25 hours at a school location and provided by a school therapist. Id., pp. 896-97.

The Triplets' placement within the School Board's schools was also discussed at the January 5, 2004 meeting. The Triplets had an option of attending Baudhuin Preschool, a private facility located on the campus of Nova Southeastern University, or their neighborhood public school with a "Complex PLACE" program for autistic children. The January 5, 2004 meeting ended without a resolution of the issues presented.

On January 8, 2004, the father submitted a written request for an Independent Educational Evaluation ("IEE"). The continuation of the IEP meeting was scheduled for February 3, 2004. The parents were notified of this IEP meeting, but did not attend. The father felt that it was not appropriate to proceed at that time because his concerns raised in the January 5, 2004 meeting were not addressed and because the School Board had not acted on the IEE request. Id., pp. 777-79. On February 12, 2004, the School Board granted the Triplets' request for the IEE. However, the parents did not follow through with the evaluation. The father later testified that he felt that because the School Board had already predetermined the placement for the children, it was going to be futile to proceed. Id., p. 779.

The School Board developed temporary IEPs for the Triplets, and proposed placing them at Baudhuin Preschool or at their neighborhood public school with a "Complex PLACE" program. On February 5, 2004, the father notified the School Board in writing that the parents did not consent to the placement of the Triplets at the Baudhuin Preschool. Thus, the Triplets were not enrolled in any of the Broward County public schools for the 2004-2005 school year. The Triplets received ABA therapy from BAI until July 2004, and the services were paid for by the parents.

In March 2004, the parents had the Triplets evaluated by Dr. David Lubin, a principal and the primary clinician at the Children's Psychological Services ("CPS"). Dr. Lubin developed atreatment plan for the Triplets that differed from the one that BAI had been implementing. In July 2004, the parents terminated BAI, and hired CPS to provide 10 hours per week of one-on-one ABA therapy to the children using a new model. Additionally, the Triplets were to receive speech therapy and occupational therapy.

On August 17, 2004, the parents requested a due process hearing. On January 24, 25, 27, and 28, 2005, a hearing was held before an ALJ. The Triplets requested reimbursement for the ABA therapy. The father, David Garcia, Dr. Lubin, as well as Carol Bianco and several other School Board's employees testified at the hearing.

On April 25, 2005, the ALJ issued his Final Order. The ALJ defined the issue before him as follows: "whether [the School Board], in consequence of its alleged failure to offer [the Triplets] . . . a free appropriate public education, should be required to reimburse [the Triplets'] parents for the cost of placing the triplets under the care of private therapists, which later treated the triplets using intensive, one-on-one behavioral therapy." Final Order (DE 239-1). The ALJ never reached the issue whether the Triplets were offered a FAPE. However, the ALJ found that reimbursement was not appropriate under section 1412(a)(10)(C)(ii) of the IDEA and the Florida Administrative Rule 6A-6.03311(9)(c) because (a) the ABA therapy was a "treatment" rather than "education" or "instructional services;" (b) BAI and CPS, the providers of the ABA therapy to the Triplets, were not "private schools," but rather "clinics" providing treatment to "patients;" and (c) the Triplets had not received specially designed instruction and related services under the authority of a public agency prior to their enrollment in a private school. Additionally, the ALJ found that (a) the School Board's employees engaged only in preparatory activities at the November 18, 2003 meeting, and that, therefore, no procedural violation occurred when the parents were not invited to attend this meeting;(b) the School Board acted diligently and with reasonable promptness in evaluating the Triplets and in preparing their IEPs; (c) the School Board's evaluations of the Triplets in conjunction with the other information available to the IEP team were sufficient for the purposes of determining the children's eligibility for Part B services and developing their IEPs.

Subsequently, Plaintiff brought this action. The operative Third Amended Complaint (DE 320) alleges four causes of action: (I) violation of the Triplets' rights to a free and appropriate public education ("FAPE") under the IDEA, 20 U.S.C. § 1400, et seq.; (II) violation of the Triplets' rights to be free from discrimination because of their disability under Section 504 of the Rehabilitation Act, 29 U.S.C § 794; (III) violation of the Triplets' rights under Fla. Stat. § 1003.57; and (IV) violation of 42 U.S.C. § 1983 due to the denial of a FAPE. In each of the claims Plaintiff asks for (a) a declaration that the Triplets were denied a FAPE since their third birthday on January 5, 2004; (b) an injunction barring the School Board from continuing its policies of refusing to approve or even consider ABA therapy for children with autism and of segregating autistic students in private placements; and (c) an order reimbursing Plaintiff for the costs of continuing services, compensatory education, attorney's fees and costs, and pre- and post-judgment interest.

The School Board moved for a judgment on the...