Bentonville School District v. Smith

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

BENTONVILLE SCHOOL DISTRICT PLAINTIFF

v. No. 5:17-CV-05134

LISA SMITH, as parent of M.S., a minor DEFENDANT

OPINION AND ORDER

Before the Court is Plaintiff Bentonville School District’s (“BSD”) complaint (Doc. 1)

seeking review of the findings and decision of the administrative hearing officer in a due process

hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1400, et seq. Defendant Lisa Smith filed an answer (Doc. 7). The parties filed an administrative

record (Docs. 26, 27), and BSD filed a supplemental record (Doc. 31) with leave of Court. BSD

then filed a posthearing brief (Doc. 34). Smith filed a response (Doc. 35). BSD filed a reply

(Doc. 36) to Smith’s response. For the following reasons, the Court finds that the administrative

hearing officer erred in finding that BSD violated the substantive provisions of IDEA, reverses the

hearing officer’s decision, and enters judgment on the pleadings in favor of BSD.

I. Standard of Review

The IDEA requires every local educational agency (“LEA”) receiving federal funds to

implement policies “to ensure that children with disabilities and their parents are guaranteed

procedural safeguards with respect to the provision of a free appropriate public education by such

agenc[y].” B.S. ex rel. K.S. v. Anoka Hennepin Pub. Schs., 799 F.3d 1217, 1219 (8th Cir. 2015)

(quoting 20 U.S.C. § 1415(a)). A party challenging whether an LEA provided a free appropriate

public education (“FAPE”) has the right to file an administrative complaint and receive an

impartial due process hearing before a local or state agency. 20 U.S.C. § 1415(b)(6). The IDEA

also allows a party to seek review of the local or state due process hearing in a federal district

court. 20 U.S.C. § 1415(i)(2)(A) & (3)(A). In reviewing a hearing officer’s decision, a district

court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional

evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence,

shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415.

In these actions, a district court serves a quasi-appellate function while remaining a court

of original jurisdiction. See Kirkpatrick v. Lenoir Cnty Bd. of Educ., 216 F.3d 380, 387 (4th Cir.

2000) (“[W]hile a federal district court may review a state review officer’s decision and even defer

to that decision, the federal district court does not sit as an appellate court. Federal district courts

are courts of limited, original jurisdiction with no power to sit as appellate tribunals over state

court or administrative proceedings.”); Spiegler v. D.C., 866 F.2d 461, 465-66 (D.C. Cir. 1989)

(holding that the quasi-appellate role of the district court in an action brought under the [IDEA]

does not differ in important ways from an administrative appeal for purposes of borrowing an

appropriate statute of limitations); Adler by Adler v. Educ. Dep’t of State of N.Y., 760 F.2d 454,

458-59 (2d Cir. 1985). The Eighth Circuit has explained a district court’s duty in handling an

IDEA claim:

The district court must . . . review the administrative record, hear additional

evidence if requested, and “basing its decision on the preponderance of the

evidence, . . . grant such relief as [it] determines is appropriate.” Id. at

§ 1415(i)(2)(C). In deciding whether the IDEA has been violated, the district court

must “independently determine whether the child [in question] has received a

FAPE.” CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 636 (8th Cir. 2003), cert.

denied, 540 U.S. 984, 124 S. Ct. 478, 157 L. Ed. 2d 375 (2003). In doing so, the

court must also give “‘due weight’ to agency decision-making.” Id. (quoting Indep.

Sch. Dist. No. 283 v. S.D. ex rel. J.D., 88 F.3d 556, 561 (8th Cir. 1996)). This

somewhat “unusual” standard of review is less deferential than the substantial

evidence standard commonly applied in federal administrative law. Indep. Sch.

Dist. No. 283, 88 F.3d at 561. But we have recognized that this limited grant of

deference—“due weight”—is appropriate in IDEA cases because the ALJ “had an

opportunity to observe the demeanor of the witnesses and because a [district] court

should not substitute its own notions of sound educational policy for those of the

school authorities that [it] review[s].” CJN, 323 F.3d at 636 (internal quotation

marks and citation omitted).

K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011).

II. Facts

Lisa Smith, mother of M.S., brought an action under IDEA against BSD, alleging that M.S.

was denied due process by BSD from the time he enrolled in the district’s Early Childhood Center

in January of 2008 until she filed her due process complaint on October 24, 2016.

(Doc. 10-1, p. 6; Doc. 1, p. 3).

M.S. resides with his mother, father, and sisters. (Doc. 27-9, p. 199). In 2007, M.S.’s

primary care physician referred him for a developmental evaluation from the Schmieding

Developmental Center. (Doc. 27-9, p. 280). The Center determined M.S. met the criteria for

anxiety disorder, mixed developmental disorder, and mixed receptive/expressive language

disorder. (Doc. 27-9, p. 289). That same year, as a four-year-old, M.S. began preschool at BSD’s

Early Childhood Center (“ECC”). (Doc. 27-9, p. 183). On February 29, 2008, BSD evaluated

M.S. to determine his eligibility for special education. (Doc. 27-9, p. 268). Examiner Tracy Ervin

found that M.S. attained developmental milestones within age-appropriate expectations. (Doc. 27-

9, p. 269). However, Ervin noted that M.S. was noncompliant and aggressive when he did not get

his way. (Id.). Ultimately, Ervin determined that M.S. qualified for special education services and

recommended M.S. receive developmental therapy for 45-60 minutes, once a week. (Doc. 27-9,

p. 277).

Elizabeth Srader, M.S.’s preschool teacher at ECC, believed M.S. to be “a little behind.”

(Doc. 27-1, p. 40). She described M.S. as withdrawn and angry. (Id.). M.S. was placed on an

Individualized Education Plan (“IEP”) during the 2008-09 school year. (Doc. 27-1, p. 40). M.S.

received occupational and physical therapy for his developmental delays. (Doc. 27-1, p. 41). In

February of 2009, Srader described M.S. as average for his age in meeting expected educational

benchmarks. (Doc. 27-1, p. 44). However, ECC faculty and staff were concerned that M.S.

presented hallmarks of autism. (Doc. 27-6, pp. 224-25).

On March 9, 2009, M.S.’s IEP team met for M.S.’s annual review. (Doc. 27-9, p. 183).

The IEP team reviewed existing evaluation data, teacher reports, M.S.’s current IEP, and

classroom-based assessment results. (Id. at 183-87). The team opted to extend M.S.’s existing

IEP to June 4, 2009. (Id. at 183). During the existing data review, the team decided M.S. should

undergo additional testing. (Doc. 27-9, p. 185).

On May 6, 2009, M.S.’s IEP team met again for an evaluation/programming conference.

(Doc. 27-9, p. 189). The IEP team identified M.S.’s disability as “Non-Categorical Developmental

Delay.” (Id. at 189). The IEP team determined that occupational, physical, and developmental

therapies were appropriate. (Id. at 190). At this meeting, the team also determined that Extended

School Year Services were unnecessary for M.S. at that time. (Id. at 194).

On May 14, 2009, M.S.’s IEP team met for a transition conference at Apple Glen

Elementary School. (Doc. 27-1, p. 50). The team determined M.S.’s evaluation data did not

substantiate the existence of a disability consistent with state and federal regulations implementing

IDEA. (Doc. 27-9, p. 199). The team also determined that M.S. qualified for occupational and

physical therapy under a Section 504 plan. (Doc. 27-9, p. 200; Doc. 27-6, p. 237).

Before M.S. began his kindergarten year at Apple Glen Elementary, Smith reached out to

Lisa St. John, principal at the school, to notify her that M.S. had been placed at Vista Health

Therapeutic Day Treatment (“TDT”) program. (Doc. 27-1, p. 96). Smith told St. John that “[M.S.]

can’t come to school. He will hurt someone. He is in a bad place and I need you to help me make

sure that he can stay there.” (Id.; Doc. 27-1, p. 186). Apple Glen Elementary worked to honor

Smith’s wishes. Brad Reed, Director of Student Services for BSD, assisted Smith in placing M.S.

at the TDT for his elementary school tenure. (Doc. 27-1, p. 97). M.S. stayed on Apple Glen’s

classroom roll and Apple Glen was responsible for completing an annual review of TDT services

for M.S. (Id. at 98).

There are no academic records for M.S. at the TDT for kindergarten or first grade.

(Doc. 27-1, p. 118). Second grade TDT academic records reflect that M.S. received failing grades

in all academic courses for the Fall semester. (Id.). On May 2 and May 9, 2012, Carrie Cousins,

special education lead and speech/language pathologist at Apple Glen, conducted an evaluation of

M.S. while he was at the TDT. (Doc. 27-1, p. 147). Cousins’s evaluation did not find the extreme

or severe expressive/receptive language disorder diagnosed by the Schmieding Developmental

Center in 2007. (Doc. 27-1, p. 152).

In second grade, Smith began asking BSD to place M.S. back at Apple Glen. (Doc. 27-1,

p. 217). Cousins observed M.S. at the TDT and witnessed many of the behavioral issues previously

noted about M.S., including withdrawal from the other students, work refusal, and aggressive

behavior. (Doc. 27-1, p. 218). On September 29, 2011, a referral conference was held. (Doc. 27-

9, p. 121). The IEP team opted to wait on an evaluation report from Lisa Fitzgibbons, a

psychologist BSD used for special education evaluations, before deciding whether to place M.S.

back in the public-school setting. (Id.). The Fitzgibbons report found that M.S.’s performance on

a series of tasks was suggestive of Autism Spectrum Disorder. (Doc. 27-9, p. 233). Fitzgibbons

diagnosed M.S. with Pervasive Developmental Disorder, not otherwise specified.1 (Id.). On

1 The Court takes judicial notice that the DSM-V, released in May of 2013, includes the

condition “Autism Spectrum Disorder,” which now encompasses the DSM-IV-TR’s separate

condition of “Pervasive Developmental Disorder.” See American Psychology Association,

March 29, 2012, BSD received an official referral by Karrie Bradshaw, Assistant Principal and

Special Education designee at Apple Glen Elementary School, to move M.S. from the TDT to

public school. (Doc. 27-9, p. 123). Although Smith initially wanted M.S. to return to public school

when the referral was made, she opted to leave M.S. at TDT. (Doc. 27-1, p. 234).

M.S. remained at the TDT until his third-grade year. On March 6, 2013, Kathy Herndon,

BSD’s elementary school special education coordinator, met with the TDT staff and Lisa Smith to

discuss M.S.’s increased behavioral issues at the TDT and recent safety concerns TDT had with

M.S. remaining at their facility. (Doc. 27-2, p. 167). At the meeting, all parties agreed that moving

M.S. from the TDT to homebound education for 90 days was the best option for M.S. (Doc. 27-

9, p. 112).

On November 13, 2013, M.S.’s IEP team met to discuss M.S.’s progress on homebound

school work and determine the appropriate placement for M.S. when he returned to public school.

(Doc. 27-9, p. 17). The team determined that M.S. would return to school at Old High Middle

School in a behavior classroom for 360 minutes per week. (Id.). On December 2, 2013, M.S.

returned to the public school system at Old High Middle School as a fourth grader in Natalie

Young’s fifth and sixth grade behavior classroom. (Doc. 27-4, pp. 178-82). In Young’s class,

M.S. took off his shoes and climbed the cabinets when he became frustrated. (Doc. 27-4, p. 186).

Young frequently sent M.S. home because of his inappropriate behavior. (Doc. 27-7, p. 192).

During M.S.’s time at Old High, he never attended a full day. (Doc. 27-1, p. 211). On January

13, 2014, Janice Christy, a certified psychological examiner, completed an existing data review of

M.S. (Doc. 27-1, p. 208; Doc. 27-9, p. 212). Christy concluded that M.S. had autism. (Doc. 27-

Highlights of Changes from DSM-IV-TR to DSM-V, pp. 1–2, available for download at

https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_DSM_Changes_

from_DSM-IV-TR_-to_DSM-5.pdf (last accessed Jan. 16, 2019).

1, p. 208). On January 14, 2014, Maureen Bradshaw, a special education staff member at BSD,

completed an Autism Diagnostic Observation Schedule-2 exam and determined that the results

showed that M.S. met the classification for Autism Spectrum Disorder. (Doc. 27-9, p. 222).

On February 11, 2014, M.S.’s IEP team met to review M.S.’s educational placement.

Because of M.S.’s poor transition from the TDT, the IEP team opted to reduce M.S.’s minutes at

Old High to 240 minutes per week. (Doc. 27-9, p. 32). This adjustment to M.S.’s IEP

programming did not prove successful. On March 17, 2014, the IEP team opted to move M.S. to

Bright Field Middle School’s autism classroom for 240 minutes per week. (Doc. 27-9, p. 37).

M.S. started at Bright Field Middle on March 18, 2014 in Maeghan Cavener’s autism classroom.

(Doc. 27-2, p. 67; Doc. 27-9, p. 47). The IEP team met for M.S.’s annual review on May 1, 2014.

Smith was pleased with M.S.’s progress. The IEP team found that M.S. was progressing socially,

academically, and behaviorally. (Doc. 27-9, p. 49). The team determined that M.S. was not in

need of Extended Year Services. (Id.). However, over the summer between M.S.’s fourth and

fifth grade year, Smith reported to the school that she was concerned M.S.’s aggressive and

inappropriate behaviors were increasing. (Doc. 27-8, p. 201).

In fifth grade, Melanie Monjure was M.S.’s core special education teacher. (Doc. 27-

4, p. 8). Monjure has a bachelor’s degree in severe/profound emotionally disturbed and autism for

preschool through twelfth grade. (Id. at 7). Monjure taught M.S. and five to six other students in

a self-contained academic classroom, with assistance from a paraprofessional. (Doc. 27-4, p. 8).

On September 18, 2014, M.S.’s IEP team completed an existing data review and

determined that additional data was needed regarding M.S.’s social-developmental history,

speech/language testing, and occupational therapy testing. The team also wanted an updated

functional behavior assessment. (Doc. 27-8, p. 195). M.S.’s hearing and vision was tested on

September 18, 2014. (Doc. 27-12, p. 164). An occupational therapy reevaluation for M.S. was

completed on October 6, 2014. (Doc. 31-3). M.S.’s pragmatic skills were assessed October 8,

2014 (Doc. 27-10, pp. 22-23) and M.S.’s functional behavior assessment was completed by

Monjure based on observations, parent-teacher interviews, and various assessments occurring

between September 10, 2014 and October 20, 2014. (Doc. 27-8, pp. 204-11).

On October 28, 2014, the IEP team met to review and discuss the results of M.S.’s

functional behavior assessment and reevaluations. As a result of the additional data, although his

diagnosis of Autism Spectrum Disorder remained in place, the IEP team changed M.S.’s primary

handicapping condition from autism to emotional disturbance on the recommendation of school

psychologist and licensed psychological examiner Keleigh Bradley. (Doc. 27-4, p. 9). Although

the two conditions are very similar, Bradley believed that M.S. demonstrated more characteristics

of emotional disturbance than autism in the classroom, and that directing his IEP toward addressing

emotional disturbance would improve M.S.’s classroom success. (Id.; Doc. 27-4, p. 222).

The change in primary handicapping condition did not make a difference in terms of

placement or programming for M.S. (Doc. 27-4, p. 19). During M.S.’s fifth-grade year, M.S.

worked up to going to school half-a-day. (Doc. 27-4, p. 26). Monjure developed a behavior plan

to deal with M.S.’s noncompliant behavior. (Doc. 27-10, pp. 131-39). Monjure’s plan included

giving M.S. one-on-one attention, providing rewards for completing work, creating a question

“parking lot” to reduce off-task questions, and implementing a highly structured environment.

(Doc. 27-4, pp. 27-31). Monjure taught M.S. to quietly ask for breaks when needed. (Doc. 27-4,

p. 36). Monjure utilized project-based learning in her classroom, which allowed M.S. to have

greater control over his learning. (Doc. 27-4, p. 59). Further behavioral intervention strategies

Monjure applied included phrasing directions positively and refraining from redirecting M.S. once

he reached a crisis stage. (Doc. 27-4, pp. 67-71; Doc. 27-10, p. 132). Monjure took care of

disciplining M.S. while he was in her class. (Doc. 27-4, p. 86). Monjure’s plan was to ignore

“any/all occurrences of the problem behavior and attend to the appropriate behavior of other

students.” (Doc. 27-10, p. 137). For crisis situations, BSD staff were to “take control of the

situation by setting positive and negative limits to his behavior.” (Id.). Once M.S. acted out and

demonstrated a total loss of control, BSD staff were to “get assistance, block and move, [and]

assess environment for safety.” (Id.). Monjure also required M.S. to stay after school and

complete the number of hours he was out of the classroom during breaks. (Doc. 27-6, p. 103).

The summer after M.S.’s fifth-grade year, Monjure taught summer school and M.S.

attended her class. (Doc. 27-4, p. 99). Monjure wanted to ensure M.S. received a consistent

schedule over the summer because another change in summer school would have been hard for

him. (Doc. 27-4, p. 99). In sixth grade, M.S.’s school attendance was increased to 840 minutes

of general education and 1,260 minutes of special education each week. (Doc. 27-8, p. 87). M.S.

remained in Monjure’s classroom. The IEP team opted to carry over the same behavior support

plan for 2015-16 school year, when M.S. was in sixth grade. (Doc. 27-10, p. 140). M.S.’s

inappropriate behaviors increased as his minutes in school increased. (Doc. 27-10, p. 151).

However, all parties agreed that M.S. progressed behaviorally, academically, and socially during

his two years at Bright Field Middle School. (Doc. 27-4, p. 165).

At the end of M.S.’s sixth-grade year, Debbie Etheridge, M.S.’s core special education

teacher for the following year at Fulbright Junior High, came to M.S.’s annual review. (Doc. 27-

4, p. 141). The IEP team agreed that Etheridge and Fulbright Junior High staff would implement

the behavior plan Monjure employed for M.S. in fifth and sixth grade. (Doc. 27-4, p. 143).

Monjure arranged for M.S. to visit Etheridge and Justin Johns, M.S.’s assigned paraprofessional

at Fulbright, during the school day to lessen the impact of transitioning to a new school in seventh

grade. (Doc. 27-4, p. 142). Monjure took M.S. over to Etheridge’s classroom for a week and a

half at the end of his sixth-grade year. (Doc. 27-4, p. 143). Monjure expected M.S. to have some

difficulty moving to a new place with a new group of people. (Doc. 27-4, p. 145). Monjure was

also aware that implementing her behavior plan would be difficult in larger classrooms, even with

a paraprofessional. (Doc. 27-4, pp.168-69). Smith decided that M.S. would not attend summer

school between his sixth and seventh grade year because he had worked so hard to return to school

full time and Monjure would not be teaching summer school that year. (Doc. 27-4, p. 146).

At Fulbright Junior High, Etheridge’s classroom was a self-contained academic classroom,

just as Monjure’s had been. (Doc. 27-4, p. 141). Etheridge was a special education teacher with

24 years of experience. (Doc. 27-6, p. 78). Johns was assigned to M.S. to travel with him from

class to class. (Doc. 27-6, p. 12). M.S. could take breaks when necessary, as he had been allowed

at Bright Field Middle. (Doc. 27-6, pp. 21-22). Johns would set a timer to give M.S. a guideline

for how long he should be out of the classroom. (Doc. 27-4, pp. 109-10; Doc. 27-6, p. 109). M.S.

was originally instructed to use the quiet room across the hall from Etheridge’s classroom that

housed glider rockers, therapy balls, and an exercise machine. (Doc. 27-4, p. 105). M.S. rarely

used this room though because he preferred to walk down to the office during his breaks. (Id.).

M.S. was provided with a separate desk in classes. (Doc. 27-6, p. 13). BSD employees used

positive encouragement and reinforcement when M.S. engaged in appropriate behaviors. (Doc.

27-6, p. 10; Doc. 27-6, p. 23; Doc. 27-6, p. 205).

BSD employees ignored M.S.’s disruptive behavior when it occurred in front of other

students. (Doc. 27-6, p. 27; Doc. 27-6, p. 205). M.S. originally carried a behavior tracking chart

to each class, but when M.S. refused to carry the chart, Etheridge permitted that refusal so they

could attempt other methods to address M.S.’s disruptive behaviors. (Doc. 27-6, p. 30; Doc. 27-

6, pp. 113-15). M.S.’s teachers provided alternative work options for M.S. to allow him to take

control of his learning. (Doc. 27-6, p. 19). On September 16, 2017, the IEP team updated the

behavior support plan to allow a two-minute phone call with Smith when M.S. was acting

inappropriately. (Doc. 27-6, p. 124).

M.S. had some notable successes during the first semester at Fulbright. M.S. was able to

complete a cardboard animal project in his art class. (Doc. 27-6, p. 20). In Cynova’s English

class, M.S was “on task, appropriate with his answer, [and] did not become intimidated or

defensive,” when observed. (Doc. 27-6, p. 187).

M.S.’s violent behavior at Fulbright began on September 9, 2016, when M.S. yelled “what

the hell, fuck,” called classmates “retards” and “autistic” and told Palmer, the art teacher, that his

mother was going to beat her up. (Doc. 27-10, p. 67). On September 12, 2016, M.S. threw a fit

in class and began cussing at the teachers and students. M.S. announced that he was going to

destroy the classroom. (Doc. 27-10, p. 65). This episode led to a meeting between Smith and

Fulbright Principal Bradley Webber, Assistant Principal Bryan Appleton, Assistant Principal Ruth

Canard, and School Resource Officer Corporal Carlson. Smith told the attendees at that meeting

that any violent threat made by M.S. should be taken seriously. (Doc. 27-5, p. 31; Doc. 27-10, p.

65). Smith told the group that if M.S. threatens to hurt a person, he will do it. (Doc. 25-5, p. 31).

Smith further instructed the school that school employees need to leave him alone and let him do

what he wants. (Doc. 27-5, p. 31).

On September 13, 2016, M.S. was removed from class after becoming upset and throwing

chairs while screaming “fuck this class.” (Doc. 27-10, p. 64). On September 14, 2016, when M.S.

was informed that he would have a day of in-school suspension for his outburst, M.S. became irate

and walked outside. Appleton followed him to prevent M.S. from leaving campus. (Doc. 27-10,

p. 64). When Appleton attempted to speak with M.S. to calm him down, M.S. told Appleton,

“don’t talk to me or I will cut your throat.” (Id.). As a result of this incident, Appleton called

Smith and suggested that she take M.S. to Vantage Point for an assessment. Appleton also

explained to Smith that M.S. was to be suspended for 10 days, pending an expulsion hearing. (Id.).

After M.S.’s threat, a manifestation determination review2 was scheduled for September

16, 2016. (Doc. 27-5, p. 197). The IEP team did not believe the threats were manifestations of

M.S.’s disability. (Doc. 27-6, p. 186). However, rather than proceeding with the manifestation

determination review, BSD special education staff determined that expulsion would be improper

before the team received additional testing and evaluation of M.S. (Doc. 27-5, p. 220; Doc. 27-6,

p. 121). Appleton wanted a reevaluation and a rewriting of the behavior plan. (Doc. 27-5, p.

243). On October 19, 2016, the IEP team met and decided to place M.S. on half days. (Doc. 27-

5, p. 251). This option was suggested based on data collected by Etheridge and the special

education staff demonstrating that M.S.’s inappropriate behaviors occurred most frequently in the

afternoons. (Doc. 27-5, p. 252). Specifically, M.S. would exit the classroom more often in the

afternoons. (Doc. 27-6, p. 92). The plan was to move M.S. to half days for a two-week trial period

to allow M.S. to have a positive experience at school for a few days before building his minutes

back up. (Doc. 27-6, p. 140). This technique had been utilized by Monjure to successfully work

M.S. up to attending full days at Bright Field. The two-week period was not specifically stated in

2 A manifestation determination review is required by IDEA when a school district

recommends change of placement for a student on an IEP because of a code of conduct violation.

34 C.F.R. § 300.530(e)(1). The review’s purpose is to determine if the behavior necessitating the

change in placement is a manifestation of the student’s disability. (Id.). If the behavior is

determined to be a manifestation of the student’s disability, the student’s behavioral intervention

plan is modified, and the child is returned to their previous placement unless the school district

and parent agree otherwise. (Id.).

M.S.’s IEP paperwork. M.S.’s suspension was subsequently reduced from ten days to three days.

(Doc. 27-5, p. 232).

Smith was offered the plan to reduce M.S.’s time at school to half days for two weeks at

an IEP meeting. (Doc. 27-5, p. 234). However, Smith refused to sign the plan and stated that she

was going to contact her lawyer. (Doc. 27-5, p. 273). Appleton attempted to coordinate a meeting

with Jocelyn Davis, BSD’s Junior High Special Needs Coordinator, and Smith on October 20,

2016. Smith agreed to meet, but did not show up for the meeting. (Doc. 27-5, p. 276). Turnage,

BSD’s transportation coordinator contacted Smith to discuss M.S.’s half-day transportation and

Smith told him that M.S. would be there all day. (Doc. 27-5, p. 276). Appleton attempted to

contact Smith about the problem, but Smith refused to speak with Appleton. (Doc. 27-5, p. 277).

On October 26, 2016, Smith filed her due process action effectively staying M.S.’s placement.

(Doc. 27-5, p. 288). After Smith filed the due process action, M.S. was suspended once and

received multiple juvenile charges for further inappropriate behaviors at the school during the

remaining fall semester. (Doc. 27-5, p. 288).

M.S.’s behavior improved during the Spring semester of his seventh-grade year.

(Doc. 27-6, p. 91). This change was the result of Smith and Etheridge putting in place a system

that required M.S. to work online at home for the number of hours he is out of the classroom during

school time. (Doc. 26-7, p. 168).

III. Analysis

BSD asks the Court to review findings by the Arkansas Department of Education hearing

officer that BSD violated IDEA procedural and substantive requirements. BSD argues that the

hearing officer incorrectly found for Smith on three of her claims, that BSD: (1) failed to conduct

complete and individualized evaluations of M.S.; (2) failed to include appropriate content in M.S.’s

IEP; and (3) failed to ensure that M.S.’s IEP was implemented as written. In particular, the hearing

officer found that BSD failed to conduct complete and individualized evaluations of M.S. at the

beginning of M.S.’s fifth-grade year in the fall of 2014, when BSD changed M.S.’s primary

handicapping condition from Autism Spectrum Disorder to Emotional Disturbance without

sufficient evaluation data, and as a result, the IEP did not adequately address M.S.’s needs as an

autistic student. The hearing officer also found that BSD failed to implement M.S.’s IEP as written

during his seventh-grade year in the fall of 2016 because the IEP was not written for a student

whose primary handicapping condition was autism.

A. Statute of Limitations

As an initial matter, the Court affirms the administrative hearing officer’s determination

that the two-year statute of limitations allowed the due process hearing to reach only alleged

violations occurring in the two years preceding Smith’s October 24, 2016 request for a due process

hearing. The IDEA has a two-year statute of limitations. C.B. ex rel. B.B. v. Special Sch. Dist. No.

1, Minneapolis, Minn., 636 F.3d 981, 989 (8th Cir. 2011). The statute requires “[a] parent or

agency [to] request an impartial due process hearing within two years of the date the parent or

agency knew or should have known about the alleged action that forms the basis of the complaint

. . . .” 20 U.S.C. § 1415(f)(3)(C). Alleged violations resulting from incidents outside of the two-

year statute of limitations are not actionable, unless the parent was prevented from requesting a

hearing due to: 1) the parent receiving “specific misrepresentations by the local education agency

that it had resolved the problem forming the basis of the complaint;” or 2) “the local educational

agency[] with[eld] . . . information from the parent . . . required . . . to be provided to the parent.”

Id. at § 1415(f)(3)(D)(i-ii).

Smith presented six days of testimony detailing M.S.’s experience in BSD from M.S.’s

entry in BSD in 2007 until M.S.’s seventh-grade year in 2017. Throughout the hundreds of pages

of transcript, there is no evidence to support the assertion that the district interfered with Smith’s

ability to request a due process hearing. Smith was present at all of M.S.’s IEP team meetings,

agreeing with every change until the fall of 2016, and was in constant contact with BSD employees.

The hearing officer’s decision correctly notes that “there was no evidence or testimony that the

District misled or interfered with [Smith’s] due process rights prior to the filing of the current

complaint.” (Doc. 10-1, p. 37). Because Smith requested her IDEA due process hearing on

October 24, 2016, review is limited to the two years prior to that request.

B. Free Appropriate Public Education Framework

In reviewing whether BSD’s actions amounted to a violation of the IDEA, the Court must

employ a two-prong analysis as outlined by the Eighth Circuit. The first inquiry is whether the

school complied with the procedures set forth in the IDEA. K.E. ex rel. K.E, 647 F.3d at 804.

Second, the Court must decide whether the resulting IEP was “reasonably calculated to enable the

child to receive educational benefit.” Id. (citations omitted). “If these requirements are met, the

[school district] has complied with the obligations imposed by Congress and the courts can require

no more.” Id.

1. Conducting Complete and Individualized Evaluations to Change a

Student’s Handicapping Disability

BSD argues that the hearing officer erred in finding that BSD violated IDEA requirements

when it changed M.S.’s primary handicapping condition in the fall of 2014 without complete and

individualized evaluations.

The IDEA required M.S.’s IEP Team to periodically, and at least annually, revise M.S.’s

IEP to address: 1) any lack of expected progress towards annual goals; 2) the results of any

reevaluation conducted; 3) information about the child provided to or by the parents; 4) the child’s

anticipated needs; or 5) other matters. 20 U.S.C. § 1414(d)(4). The IDEA also required BSD to

reevaluate M.S. if BSD determined that his needs, academic improvement, or functional

performance warranted a reevaluation. 20 U.S.C. § 1414(a)(2).

M.S.’s IEP team completed an existing data review on September 18, 2014, and determined

that the team needed to update M.S.’s social-developmental history, speech/language testing,

occupational therapy testing, and functional behavior assessment. (Doc. 27-8, p. 195). M.S.’s

hearing and vision were tested on September 18, 2014. (Doc. 27-12, p. 164). M.S.’s occupational

therapy reevaluation was completed on October 6, 2014. (Doc. 31-3). M.S.’s pragmatic skills

were assessed on October 8, 2014 (Doc. 27-10, pp. 22-23) and M.S.’s functional behavior

assessment was completed by Monjure, M.S.’s fifth grade core special education teacher, based

on observations, parent teacher interviews, and various assessments occurring between September

10, 2014 and October 20, 2014. (Doc. 27-8, pp. 204-11). After reviewing these assessments,

Bradley, the school psychologist, believed that M.S.’s educational needs would be better met if his

IEP addressed a primary handicapping condition of emotional disturbance, rather than autism.

(Doc. 27-4, p. 222).

On October 28, 2014, the IEP team met to review and discuss the results of M.S.’s

functional behavior assessment and reevaluations. Based on the updated evaluations and data and

Bradley’s recommendation, the IEP team changed M.S.’s primary handicapping condition from

autism to emotional disturbance. (Doc. 27-4, p. 9). Smith signed off on this change. (Doc. 27-

12, pp. 161-165).

The IEP team decided to revise M.S.’s IEP when it believed that the more appropriate

primary handicapping condition for M.S. in the school setting was emotional disturbance rather

than autism. The IEP team determined that an IEP revision would allow BSD to better address

M.S.’s needs when making programming decisions. Notably, the change did not disregard or

override M.S.’s Autism Spectrum Disorder diagnosis, and resulted in little substantive change to

the education he received. Rather, it reflected an attempt to better address M.S.’s behavioral issues.

The evidence shows that BSD satisfied the IDEA’s requirements for reevaluation and revision,

and the administrative hearing officer erred in determining BSD violated the IDEA by failing to

conduct complete and individualized evaluations of M.S.

2. Including Appropriate Content in the IEP

BSD also argues that the hearing officer erred in finding that BSD failed to include

appropriate content in M.S.’s seventh-grade IEP. The hearing officer found that the seventh grade

IEP did not include appropriate content because it was not written under the “guidelines of seeing

the Student as an individual with the primary disability of autism . . . .” (Doc. 10-1, p. 40). Because

the hearing officer erred when he determined that BSD’s change to M.S.’s primary handicapping

condition in his fifth-grade IEP violated the IDEA, and by extension that maintaining that

condition through the seventh-grade IEP was erroneous, this finding—which is dependent upon

that one—was also erroneous.

Ultimately, because BSD continued to provide a FAPE for M.S.’s diagnosis of Autism

Spectrum Disorder, the primary handicapping condition of emotional disturbance did not change

the educational benefits M.S. received, but only allowed BSD to better address instances of M.S.’s

behavior, it was error for the administrative hearing officer to find that the IEP lacked appropriate

content. Accord Fort Osage R-1 Sch. Dist. v. Sims ex rel. B.S., 641 F.3d 996, 1004 (8th Cir. 2011)

(“Given the IDEA’s strong emphasis on identifying a disabled child’s specific needs and

addressing them, . . . the particular disability diagnosis affixed to a child in an IEP will, in many

cases, be substantively immaterial because the IEP will be tailored to the child's specific needs. . . .

[T]he party challenging the IEP must show that the failure to include a proper disability diagnosis

‘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.”); K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 814 (8th Cir. 2011) (“A

school district is not required to identify a student’s issues by name or official diagnosis so long

as the IEP properly identifies and addresses the student’s disability.”). M.S. progressed

behaviorally, academically, and socially following the fifth-grade change to primary handicapping

condition in his IEP, and it was error to find that change violated the IDEA. The evidence from

the administrative record demonstrates that the IEP team decided to change M.S.’s handicapping

condition from autism to emotional disturbance on October 28, 2014. After making this change,

Monjure crafted a behavior support plan for M.S. based upon existing data, observations and a

functional behavioral assessment. Monjure noted that presenting symptoms for autism and

emotional disturbance are very similar and the change in diagnosis did not alter M.S.’s educational

programming. Monjure utilized this plan in her classroom for M.S.’s fifth and sixth grade years.

Monjure’s behavioral supports, employed after the change in handicapping condition, allowed

M.S. to succeed socially, behaviorally and academically during his fifth and sixth grade years. The

IEP team opted to carry forward the programming and behavior plan developed by Monjure for

M.S. during his seventh-grade year. Thus, the handicapping condition change appears to have had

no effect on the unique content set forth in the IEP to accommodate M.S.’s unique needs. The

content set forth in the IEPs over the three-year period was largely the same and was uniquely

tailored to meet M.S.’s needs. Thus, the hearing officer erred in finding that BSD violated the

IDEA by failing to include appropriate content in M.S.’s IEP. Given that M.S.’s behavior

worsened upon his transition to seventh-grade, it was also error to find that BSD violated the IDEA

in attempting to revise the IEP to address M.S.’s misbehavior without changing the primary

handicapping condition back to autism.

Even had the administrative hearing officer not erred in finding the change to primary

handicapping condition in the fifth grade was an IDEA violation, when the proposed seventh-grade

IEP is reviewed independently, it would be error to find BSD violated the IDEA. To satisfy the

procedural requirements of the IDEA, a student’s IEP should include: 1) a statement of the child’s

present levels of academic achievement and functional performance; 2) a statement of measurable

annual goals designed to meet the child’s needs; 3) a statement of the special education and related

services and supplementary aids and services, as well as program modifications or supports for

school personnel that will be provided; 4) an explanation of the extent to which the child will not

participate with nondisabled children in class and other activities; 5) a statement of individual

appropriate accommodations that are necessary to measure academic achievement and functional

performance of the child on State and districtwide assessments; and 6) the projected date for the

beginning of serves and modifications. 20 U.S.C. § 1414(d). The IDEA also requires the IEP

team to “consider” the use of positive behavioral interventions, supports, and other strategies to

address the student’s behavior, when a student’s behavior impedes their learning. 34 C.F.R. §

300.324 (2017). Each of the six procedural requirements are met in M.S.’s seventh grade IEP.

3. M.S.’s IEP Not Implemented as Written

Finally, BSD argues that the hearing officer erred in determining that Fulbright Junior High

employees did not follow the behavior plan as written, which resulted in a substantive violation of

IDEA. IDEA only requires that the IEP team “consider” the use of positive behavioral

interventions. M.M. v. Dist. 0001 Lancaster Co. Sch., 702 F.3d 479, 487 (8th Cir. 2012). “It is

largely irrelevant if the school district could have employed more positive behavior interventions

as long as it made a good faith effort to help the student achieve the education goals outlined in his

IEP.” Id. The Eighth Circuit has not squarely recognized failure-to-implement claims under

IDEA. See Neosho R-V School Dist. v. Clark, 315 F.3d 1022, 1027 n. 3 (8th Cir. 2003)(citing

Houston Ind. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) as the case setting out the

appropriate analysis for failure to implement claims). However, it has hinted that an appropriate

standard requires the “party challenging the implementation of an IEP [to] show more than a de

minimis failure to implement all elements of the IEP, and, instead must demonstrate that the school

board or other authorities failed to implement substantial or significant portions of the IEP.”

Houston Ind. Sch. Dist., 200 F.3d at 349. This approach is intended to “afford[] local agencies

some flexibility in implementing IEP’s, but still holds those agencies accountable for material

failures and for providing the disabled child a meaningful educational benefit.” Id. One factor to

be considered in this analysis is “whether the IEP services that were provided actually conferred

an educational benefit.” Id. at 349 n. 2.

The hearing officer found that based on M.S.’s repeated inappropriate behaviors for the

first three months of school, Fulbright Junior High elected not to implement or follow M.S.’s

behavior support plan. However, this is not supported by a preponderance of the evidence.

Fulbright Junior High employed much of the behavior plan Monjure utilized during the successful

fifth and sixth grade years. Specifically, Etheridge implemented a system of allowing M.S. to exit

the room when he needed a break. She used Johns, M.S.’s personal behavior paraprofessional, to

monitor the time M.S. spent in the hallway or in one of the areas designated in M.S.’s behavior

support plan. Etheridge ensured M.S. had a separate desk in the class where he requested one.

Etheridge and Palmer both received feedback from Maureen Bradshaw about research-based

strategies that may be effective in improving M.S.’s behavior. The teachers attempted to utilize

positive redirection and cooling off periods to re-engage M.S. in classroom learning. As a result,

M.S. was able to achieve some success in English, Art, and PE at Fulbright.

Smith makes much of the incident that led to M.S.’s suspension and potential expulsion

because Appleton did not allow M.S. appropriate time to cool off. However, Appleton was

attempting to use positive redirection to prevent M.S. from leaving the school grounds, a potential

safety hazard for M.S. This action by Appleton is in line with the crisis plan strategy in M.S.’s

behavior plan. The strategy directs BSD employees to “block and move and assess the

environment for safety” when M.S. is out of control and acts out. IDEA does not require that the

school strictly adhere to behavior plans when adhering to such a plan would result in a danger to

the student or his peers, and M.S.’s IEP did not require BSD to allow M.S. to leave school grounds.

Each strategy in a behavior plan must be flexible and schools must have some leeway in

determining when to apply certain interventions.

The hearing officer’s finding that BSD did not implement M.S.’s IEP as written was

erroneous. M.S.’s inappropriate behaviors did spike during the first few months of his transition

from Bright Field to Fulbright, and BSD did not follow M.S.’s behavior plan exactly as written.

However, Smith has not demonstrated that BSD failed to implement substantial portions of M.S.’s

IEP. To the contrary, the evidence throughout the administrative record reflects that Etheridge,

Palmer, Cynova, and Appleton all made good faith efforts to consider and rely upon behavior plan

support strategies when possible. Although these strategies only yielded minimal success from

August to October of 2017, the record does not support the finding that BSD employees did not

attempt to implement the strategies as written.

IV. CONCLUSION

THE COURT FINDS that the administrative hearing officer erred in finding that BSD

failed to conduct complete and individualized evaluations, failed to include appropriate content in

the IEP, and failed to ensure that M.S.’s IEP was implemented as written.

IT IS THEREFORE ORDERED that the findings of the administrative hearing officer in

Smith’s favor are reversed, and that judgment on the pleadings be entered in BSD’s favor.

Judgment will be entered separately.

IT IS SO ORDERED this 23rd day of January, 2019.

/s/P. K. Holmes,

P.K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE