The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
A.F., by and through his 3:19-cv-01827-BR
father, Scott Fournier,
OPINION AND ORDER
Plaintiff,
v.
PORTLAND PUBLIC SCHOOL
DISTRICT, an Oregon public
school district,
Defendant.
BRENNA K. LEGAARD
JEFFRY EDEN
Schwabe, Williamson & Wyatt, P.C.
1211 S.W. Fifth Ave., Suite 1900
Portland, OR 97204
(503) 222-9981
Attorneys for Plaintiff
CODY J. ELLIOTT
TAYLOR D. RICHMAN
Miller Nash Graham & Dunn LLP
111 S.W. Fifth Ave., Suite 3400
Portland, OR 97204
(503) 224-5858
Attorneys for Defendant
1 – OPINION AND ORDER
BROWN, Senior Judge.
This matter comes before the Court on Defendant Portland
Public School District's Motion (#7) to Dismiss Plaintiff A.F.'s
Complaint for failure to exhaust administrative remedies. The
Court concludes the record is sufficiently developed such that
oral argument would not be helpful to resolve this Motion.
For the reasons that follow, the Court DENIES Defendant's
Motion.
BACKGROUND
The following facts are taken from Plaintiff's Complaint
(#1,) and the Court accepts them as true for purposes of this
Motion. See Lazy Y Ranch, Ltd. v. Behrens, 546 F.3d 580, 588
(9th Cir. 2008).
Plaintiff is a twelve-year-old child with a disability. He
has been diagnosed with autism spectrum disorder and anxiety
disorder and receives special education from Defendant.
Plaintiff's neurodevelopmental pediatrician has prescribed
Applied Behavior Analysis (ABA) therapy as a medically necessary
treatment for Plaintiff's autism. This therapy is necessary to
help Plaintiff to cope with stress and anxiety, to manage his
emotions, to process language, to communicate with others, to
2 – OPINION AND ORDER
interact with peers, and to focus on tasks. Thus, Plaintiff
receives this therapy to address his developmental and
behavioral deficits in multiple settings including school.
Plaintiff alleges he has realized significant developmental
gains from this therapy, including decreased incidence and
severity of maladaptive behaviors; improved social skills; and
an improved ability to communicate, to focus, and to engage with
other people.
In August 2019 Plaintiff began attending sixth grade at
Jackson Middle School. Plaintiff alleges he "immediately
experienced a significant increase in the symptoms of his autism
as well as in his anxiety disorder, including a regression in
his communication and social skills and a marked increase in the
incidence and severity of maladaptive behaviors." Compl. (#1)
at 15.
In November 2019 Plaintiff's pediatrician stated it was
"imperative" that Plaintiff receive ABA therapy while at school
"where [Plaintiff] is struggling the most." When Plaintiff
informed Defendant of his need to receive this therapy at
school, Defendant refused.
On November 13, 2019, Plaintiff filed a Complaint in this
court and alleged Defendant's refusal to accommodate his medical
3 – OPINION AND ORDER
needs for therapy violated the requirements of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and
§ 504 of the Rehabilitation Act (RA), 29 U.S.C. § 701, et seq.
On January 17, 2020, Defendant filed a Motion (#7) to
Dismiss Plaintiff's Complaint for failure to exhaust
administrative remedies pursuant to the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq.
STANDARDS
The IDEA ensures children with disabilities receive needed
special-education services. The IDEA offers federal funds to
states in exchange for a commitment to furnish a "free
appropriate public education" (FAPE) to all children with
certain physical or intellectual disabilities. § 1412(a)(1)(A).
A FAPE comprises "special education and related services,"
including both "instruction" tailored to meet a child's "unique
needs" and sufficient "supportive services" to permit the child
to benefit from that instruction. § 1401(9), (26), (29). See
Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748-49 (2017).
Under the IDEA an "individualized education program" (IEP)
is the "primary vehicle" to provide each child with the promised
FAPE. § 1414(d). An IEP sets out a personalized plan developed
4 – OPINION AND ORDER
by school officials, teachers, and parents to meet all of the
child's "educational needs." § 1414(d)(1)(A)(i)(II)(bb),
(d)(1)(B). Among other things, the IEP lists the "special
education and related services" to be provided so that the child
can "advance appropriately toward attaining [educational]
goals." § 1414(d)(1)(A)(i)(IV)(aa).
When parents and school representatives cannot agree on the
adequacy of a child's IEP, the IDEA establishes formal
procedures for resolving disputes. A parent may file a
complaint with the local or state educational agency that
triggers a preliminary hearing between the parties
(§ 1415(b)(6)) or may proceed with mediation (§ 1415(e)). If a
resolution cannot be achieved, the matter proceeds to a "due-
process hearing" before an impartial hearing officer.
§ 1415(f)(1)(A), (3)(A)(i). Any decision by the hearing officer
that grants substantive relief must be "based on a determination
of whether the child received a [FAPE]." § 1415(f)(3)(E)(i). A
parent who is unhappy with the outcome of the administrative
process may then seek judicial review by filing a civil action
in state or federal court. § 1415(i)(2)(A).
The IDEA is not the only federal statute that protects the
interests of children with disabilities. The ADA and RA
5 – OPINION AND ORDER
also protect children and adults with disabilities in both
public schools and other settings. A plaintiff who seeks relief
that is also available under the IDEA, however, must first
exhaust the IDEA's administrative procedures. 20 U.S.C.
§ 1415(l).
Whether the IDEA's exhaustion requirement applies "hinges
on whether a lawsuit seeks relief for the denial of a [FAPE]."
Fry, 137 S. Ct. at 754. If the remedy sought is not for the
denial of a FAPE, then exhaustion of IDEA's procedures is not
required. Id. The court determines whether a plaintiff's claim
is because of denial of a FAPE by looking to the "substance" of
the plaintiff's complaint rather than the labels used in the
plaintiff's complaint. "What matters is the crux - or, in
legal-speak, the gravamen – of the plaintiff's complaint,
setting aside any attempts at artful pleading." Id. at 755. "A
court deciding whether § 1415(l) applies must therefore examine
whether a plaintiff's complaint – the principal instrument by
which [he] describes [his] case - seeks relief for the denial of
an appropriate education." Id.
One clue to whether the gravamen of a complaint
against a school concerns the denial of a FAPE, or
instead addresses disability-based discrimination, can
come from asking a pair of hypothetical questions.
First, could the plaintiff have brought essentially
the same claim if the alleged conduct had occurred at
6 – OPINION AND ORDER
a public facility that was not a school — say, a
public theater or library? And second, could an adult
at the school — say, an employee or visitor — have
pressed essentially the same grievance? When the
answer to those questions is yes, a complaint that
does not expressly allege the denial of a FAPE is also
unlikely to be truly about that subject; after all, in
those other situations there is no FAPE obligation and
yet the same basic suit could go forward. But when
the answer is no, then the complaint probably does
concern a FAPE, even if it does not explicitly say so;
for the FAPE requirement is all that explains why only
a child in the school setting (not an adult in that
setting or a child in some other) has a viable claim.
Fry, 137 S. Ct. at 756 (emphasis in original).
DISCUSSION
Defendant contends Plaintiff alleges the denial of a FAPE
pursuant to the IDEA, and, therefore, Plaintiff must first
exhaust his administrative procedures before he may pursue his
claims in this court.
I. Plaintiff's claims are not subject to the administrative-
exhaustion requirements of the IDEA.
Plaintiff alleges, and Defendant does not contest,
Plaintiff has a disability based on his autism. Plaintiff
alleges he "experiences a mental-health crisis" at school and
requires the services of an ABA therapist at school. Thus,
Plaintiff alleges Defendant has failed to accommodate him by
denying him access to medically necessary mental-health care
7 – OPINION AND ORDER
while at school.
Defendant, however, contends Plaintiff specifically alleges
in his Complaint that Defendant's actions "prevented [Plaintiff]
from accessing [his] education services at Jackson [Middle
School]." Defendant, therefore, asserts Plaintiff must exhaust
his administrative remedies as required by the IDEA before
pursuing his claims in this court.
The court in K.M. by and through Markham v. Tehachapi
Unified School District, No. 1:17-cv-01431, 2018 WL 2096326
(E.D. Cal., May 7, 2018), addressed the identical circumstances
and applied the factors set out in Fry. In that case the
plaintiff-child also required the services of an ABA therapist.
The plaintiff brought a claim for violation of the ADA and RA
when the defendant refused to allow the therapist to accompany
the child during school to provide the prescribed therapy. The
defendant asserted the plaintiff's claim was for denial of a
FAPE and subject to exhaustion of administrative remedies under
the IDEA. The court disagreed and stated:
The clues posed in Fry indicate here the gravamen of
K.M.’s Title II and RA claims do not seek remedies for
the denial of a FAPE. The provision of an ABA
therapist may indeed tangentially involve access to
education in the sense that without the therapy,
K.M. may not be able to access the curriculum
appropriately. Nevertheless, the central tenant (sic)
of Plaintiffs’ claims here is that her medically
8 – OPINION AND ORDER
prescribed treatment for her disability is not being
accommodated and thus K.M. is precluded from access to
the school itself. Without appropriate ABA therapy at
school, Plaintiffs assert K.M. is unsafe because she
does not have guidance on appropriate behaviors with
peers, she has wandered off during school outings, she
has ingested another child’s medication, and has come
home with unexplained bruises and a severe sunburn due
to being left outside for hours. The need for this
therapy centers on K.M.’s development, her ability to
focus on tasks and interact with peers, and to
maintain her safety—not her educational needs. As
such, this claim could be pressed against any place of
public accommodation that refused to allow K.M. to be
accompanied by her ABA therapist. Moreover, because
the essence of the claim does not pertain to K.M.’s
educational needs, the RA and ADA claims could be
brought by a visitor or an employee of the school who
had a similar need for medical accommodation. . . .
Under the Fry clues, the gravamen of K.M’s claims
under the ADA and the RA here do not center on the
denial of a FAPE, but on access to the school
facilities.
2018 WL 2096326, at *5. Although the California court noted the
plaintiff may have exhausted the administrative requirements of
the IDEA when her claims were dismissed by an administrative law
judge for lack of jurisdiction, the court, nonetheless,
concluded the plaintiff's ADA and RA claims were not subject to
the IDEA exhaustion requirements. Id.
On March 25, 2020, Plaintiff submitted the hearing
transcript in S.S.V. v. Gresham-Barlow School District No. 10J
as supplemental authority (#12) to support his argument that an
ADA claim based on the defendant's refusal to allow the minor-
9 – OPINION AND ORDER
plaintiff to receive ABA therapy at school was not subject to
IDEA exhaustion requirements. In S.S.V. the court concluded the
plaintiff "was not asking for resources to be spent by the
school," and "since [plaintiff is] not asking for resources then
the primary implications of the IDEA aren't triggered."
No. 3:19-cv-00314-JR (Simon, J., Feb. 27, 2020)(Dkt. #25).
Accordingly, the court concluded plaintiff sought a reasonable
accommodation rather than educational services. Id. In
response, Defendant argues the court in S.S.V. applied the
incorrect standard. Defendant asserts the IDEA requires
exhaustion whenever the relief sought in the complaint is also
available under the IDEA. 20 U.S.C. § 1415(l). The Supreme
Court in Fry, however, held whether the IDEA's exhaustion
requirement applies "hinges on whether a lawsuit seeks relief
for the denial of a [FAPE]." Fry, 137 S. Ct. at 754. If the
remedy sought is not for the denial of a FAPE, then exhaustion
of IDEA's procedures is not required. Id. In other words, it
is the nature of the relief the plaintiff seeks that is
determinative of whether the IDEA's exhaustion requirement
applies rather than whether the relief is also available under
the IDEA.
10 – OPINION AND ORDER
Here Plaintiff's claims center on his need for medically
necessary services to treat his underlying autism by an ABA
therapist. The lack of treatment dramatically impairs
Plaintiff's ability to function in any setting, including
school. The substance of Plaintiff's claim is the need to
receive mental-health treatment in the educational setting
rather than mere access to educational services. Defendant's
accommodation of Plaintiff's mental-health care and treatment,
therefore, is not subject to the exhaustion requirements of the
IDEA.
CONCLUSION
For these reasons the Court DENIES Defendant's Motion (#7)
to Dismiss Plaintiff's Complaint for failure to exhaust
administrative remedies.
The Court DIRECTS Defendant to file an Answer to
Plaintiff's Complaint no later than April 27, 2020, and DIRECTS
the parties to confer pursuant to Local Rule 26-1 and to file no
later than May 8, 2020, a proposed case-management plan. The
11 – OPINION AND ORDER
Court will then schedule a Rule 16 Conference in due course.
IT IS SO ORDERED.
DATED this 7th day of April, 2020.
/s/ Anna J. Brown
___________________________________
ANNA J. BROWN
United States Senior District Judge
12 – OPINION AND ORDER