The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BROOKE HILYER, Individually and as )
Parent and Next Friend of L.H., )
)
Plaintiffs, )
)
v. ) CIVIL ACT. NO. 2:22-cv-705-ECM
) [WO]
ELMORE COUNTY BOARD OF )
EDUCATION, )
)
Defendant. )
MEMORANDUM OPINION and ORDER
I. INTRODUCTION
This cause is before the Court on a motion to dismiss, filed by the Defendant Elmore
County Board of Education (“the Board”). (Doc. 16).
Plaintiffs, Brook Hilyer in her individual capacity and as Next Friend of L.H., filed
a complaint in this Court on December 18, 2022. The complaint asks the Court to set aside
the findings by a Hearing Officer, find that the Board did not provide a free appropriate
public education to L.H., and provide L.H. with compensatory education services.
Upon consideration of the record and law, for reasons to be discussed, the motion is
due to be DENIED in part, but claims conceded by the Plaintiffs are due to be DISMISSED.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the
legal standard set forth in Rule 8: “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] ... a context-
specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility
standard requires “more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678. Conclusory allegations that are merely “conceivable” and fail to
rise “above the speculative level” are insufficient to meet the plausibility standard.
Twombly, 550 U.S. at 555, 570. This pleading standard “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id.
III. FACTS AND PROCEDURAL HISTORY
The facts and procedural history as alleged in the complaint are as follows:
This case arises out of a due process proceeding initiated by the Plaintiffs in April,
2022. L.H. is a student in the Board’s district and receives educational services through
the Board’s special education program. The Plaintiffs sought a due process hearing
because they contended that L.H. was denied a free appropriate public education (“FAPE”)
for reasons which included following: the district failed to develop and implement an
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individualized education program (“IEP”) that addresses all of L.H.’s disabilities and that
are based on peer-reviewed research, the district did not implement an IEP that
acknowledged that L.H. had not mastered his goals, and the district also failed to provide
extended school year services. (Doc. 24-2 at 22). The Plaintiffs also claimed during the
administrative process that the parent was left out of education decision-making, that L.H.
should not be required to transfer to a school that is not his home-school, and that L.H. was
not provided occupational therapy. Id.
An administrative hearing was held August 16, 2022 and September 16, 2022. The
Final Decision of the Hearing Officer was rendered on October 19, 2022. The Hearing
Officer concluded that the school district provided a free appropriate public education to
L.H. in his least restrictive environment. (Doc. 24-2 at 36).
On appeal, the Plaintiffs claim that a free appropriate education was denied L.H.
because L.H.’s IEPs did not address all of his disabilities and were not based on peer-
reviewed research, the IEPs lacked measurable goals, the IEPs failed to acknowledge that
L.H. has not mastered any measurable goals, no extended school year services were
provided, and the IEPs lacked inclusion with L.H.’s peers who are not disabled. (Doc. 1 at
12). The Plaintiffs further claim that the parent was not included in decision-making, the
student was required to transfer to a school that was not his home-school, and that L.H.
was not provided occupational therapy. (Id.). Within the complaint, however, the Plaintiffs
concede the claims regarding school site selection and occupational therapy. (Id. para. 66
& 67).
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IV. DISCUSSION
The Board moves to dismiss some of the Plaintiffs’ claims in this case on the ground
that they are untimely. In response, the Plaintiffs concede that any claims based on events
occurring more than two years before the filing of the complaint for due process are due to
be dismissed. (Doc. 25 at 5). In addition, as noted above, the Plaintiffs concede any claim
that requiring a student to transfer to a school that is not his home-school is a violation of
FAPE (id.) and based on the actions of the occupational therapist.
As to the remaining claims, the Board moves to dismiss for failure to exhaust
administrative remedies the Plaintiffs’ claim for extended year services and the claim that
L.H. was not provided scientifically based instructional practices. The Board contends in
its motion that no testimony was presented at the due process hearing regarding extended
year services or scientifically based practices, and that the Hearing Officer did not mention
extended school services or scientifically based practices in the Final Decision.
The Plaintiffs dispute the Board’s position, pointing out that in the Hearing Decision
incorporated by reference into their complaint, extended year services was one of the four
issues the Plaintiffs pointed to in the complaint before the Hearing Officer as being a failure
to provide FAPE. In their brief in this case, the Plaintiffs also clarify that peer-reviewed
research is an example of the denial of a scientifically based instructional practice they
claim in the instant appeal. (Doc. 25 at 4).
Upon review of the decision of the Hearing Officer, it is clear that the Hearing
Officer considered the lack of extended school year services to have been identified by the
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Plaintiffs as example of failure to implement an appropriate IEP. (Doc. 24-2 at 22). The
Hearing Officer’s decision also identifies as an “issue presented” in the due process hearing
that the Plaintiffs contended that L.H. was denied FAPE because his IEP was not based on
peer-reviewed research. (Id.). These statements demonstrate that extended year services
and peer-reviewed research were raised in the administrative process. Therefore, the
motion to dismiss is not due to be granted for failure to exhaust.
The Board has raised an additional argument with regard to the claim based on a
failure to provide scientifically based instructional practices. The Board contends that
scientifically based practices requirements were removed from IDEA in 2017. In response,
the Plaintiffs argue that under current law an IEP is to be based to the extent practicable on
peer-reviewed research. As noted above, the Plaintiffs have clarified that their claim of a
lack of scientifically based practices is a claim based on a lack of practices based on peer-
reviewed research. The Plaintiffs point to a federal regulation which requires that an IEP
include “[a] statement of the special education and related services and supplementary aids
and services, based on peer-reviewed research to the extent practicable, to be provided to
the child . . . .” 34 C.F.R. § 300.320(a)(4).
Given the Plaintiffs’ clarification of the nature of the claim they assert on appeal,
namely, that it is a claim based on a lack of peer-reviewed research as a basis for the
educational services L.H. received, the Court cannot conclude at this point in the
proceedings that the Plaintiffs’ claim is due to be dismissed as improperly asserting a lack
of scientifically based practices.
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V. CONCLUSION
For the reasons discussed it is hereby ORDERED as follows:
1. The Plaintiffs’ claim based on requiring L.H. to transfer to a school which is not
his home-school, his claim that the occupational therapist violated his IEP, and
any claim arising from actions taken more than two years before the complaint
for due process was filed are DISMISSED, and the motion to dismiss (doc. 16)
is GRANTED to that extent.
2. The motion to dismiss is DENIED in all other respects.
Done the 2nd day of May, 2023.
/s/Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE
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