“IDEA relies heavily upon the expertise of school districts to meet its goals.”
How later courts described this case
- “IDEA relies heavily upon the expertise of school districts to meet its goals.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THE HOOVER CITY BOARD OF }
EDUCATION, }
}
Plaintiff/Counter Defendant, }
}
v. } Case No.: 2:16-cv-01822-MHH
}
RICHARD LEVENTRY, }
individually, and as guardian, }
custodian, and legal representative of }
K.M., a minor, }
}
Defendant/Counter Claimant. }
MEMORANDUM OPINION AND ORDER
The Hoover City Board of Education challenges the decision of an
administrative hearing officer who determined that the Board may have denied K.M.
a free appropriate public education because of procedural flaws in the Board’s
assessment of K.M.’s eligibility for special education and related services under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The
hearing officer ordered the Board to reconsider whether K.M. is eligible for special
education and related services because the Board did not have sufficient information
to make a determination at the eligibility hearing. The Board seeks a judgment in
its favor on the administrative record. So does defendant Richard Leventry on behalf
of K.M. For the reasons set forth below, the Court enters judgment in favor of Mr.
Leventry.
I. STATUTORY BACKGROUND
The IDEA ensures that “children with disabilities have available to them a
free appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education,
employment, and independent living . . . .” 20 U.S.C. § 1400(d)(1)(A). Under the
IDEA, a “child with a disability” may be a child with an intellectual or learning
disability or a child with a serious emotional disturbance or a health impairment
who, by virtue of the disability, “needs special education and related services.” 20
U.S.C. § 1401(3)(A).1 Under the IDEA, a “free appropriate public education”
(FAPE) is:
special education and related services that--
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of this title.
1 The IDEA covers other physical disabilities too, but those categories of disability are not
relevant here.
20 U.S.C. § 1401(9)(A)-(D).
“Special education” means “specially designed instruction, at no cost to the
parents, to meet the unique needs of a child with a disability.” 34 C.F.R. §
300.39(a)(1). “Specially designed instruction” means:
(3) . . . adapting, as appropriate to the needs of an eligible child under
this part, the content, methodology, or delivery of instruction—
(i) To address the unique needs of the child that result from the
child’s disability; and
(ii) To ensure access of the child to the general curriculum, so
that the child can meet the educational standards within the
jurisdiction of the public agency that apply to all children.
34 C.F.R. § 300.39(b)(3). “Related services” are:
transportation and such developmental, corrective, and other supportive
services as are required to assist a child with a disability to benefit from
special education, and includes speech-language pathology and
audiology services, interpreting services, psychological services,
physical and occupational therapy, recreation, including therapeutic
recreation, early identification and assessment of disabilities in
children, counseling services, including rehabilitation counseling,
orientation and mobility services, and medical services for diagnostic
or evaluation purposes. Related services also include school health
services and school nurse services, social work services in schools, and
parent counseling and training.
34 C.F.R. § 300.34.
States that receive federal funds through the IDEA must engage in “child
find,” a process designed to ensure that “[a]ll children with disabilities residing in
the State, . . . regardless of the severity of their disabilities, and who are in need of
special education and related services, are identified, located, and evaluated . . . .”
20 U.S.C. § 1412(a)(3)(A). The “child find” process “must include . . . [c]hildren
who are suspected of being a child with a disability . . . and in need of special
education ....” 34 C.F.R. § 300.111(c)(1). When the state suspects that a child may
be a child with a disability, the state must evaluate the child to determine whether
the child is eligible to receive an individualized education plan, commonly called an
IEP. 20 U.S.C. §§ 1414(a)(1)(A), (d)(1)(A)(i).
To determine whether a child is eligible for special education and related
services under the IDEA, a state educational agency first must “conduct a full and
individual initial evaluation” of a student who may have a disability. 20 U.S.C. §
1414(a)(1)(A). Then “a team of qualified professionals and the parent of the child”
must determine whether the child is a “child with a disability” as defined by the
IDEA and thus eligible “for special education and related services.” 20 U.S.C. §
1414(b)(4)(A). If the team determines that the child is a “child with a disability”
who is eligible for special education and related services, then the team must develop
and the state agency must implement an IEP for the child. 20 U.S.C. §§
1414(d)(1)(A)(i), (2)(A). Consistent with the least restrictive environment (LRE)
requirements applicable to IEPs, the state educational agency “must ensure that . . .
[t]o the maximum extent appropriate, children with disabilities, including children
in public or private institutions or other care facilities, are educated with children
who are nondisabled[.]” 34 C.F.R. § 300.114(a)(2)(i); see also 20 U.S.C. §
1412(a)(5)(A)-(B) (IDEA’s LRE provisions); https://sites.ed.gov/idea/acronyms/#L
(last visited Apr. 8, 2019).
This litigation concerns the team meeting phase of K.M.’s FAPE evaluation.
During the team meeting, the team members discussed not only the resources
available to K.M. under the IDEA but also the resources available under the
Rehabilitation Act. Under section 504 of the Rehabilitation Act, a public school
district that receives federal funds must provide reasonable accommodations to a
student with a disability to ensure that the student is not “excluded from the
participation in,” “denied the benefits of,” or “subjected to discrimination” in public
education “solely by reason of her or his disability.” 29 U.S.C. § 794(a). A disabled
student under the Rehabilitation Act has “physical or mental impairments [which]
substantially limit his ability to learn and participate in a classroom environment.”
See J.S.R. by Childs v. Dale Cty. Bd. of Educ., No. 1:13–CV–582–WKW2015, WL
5692804, at *4 (M.D. Ala. Sept. 28, 2015) (citing 34 C.F.R. § 104.35(a)). “All
children with disabilities under the IDEA, as well as some children who are
ineligible for special education under the IDEA, are [] protected by § 504 of the
Rehabilitation Act.” J.S.R., 2015 WL 5692804, at *3. An IEP created under the
IDEA satisfies § 504’s requirements. J.S.R., 2015 WL 5692804, at *4 (citing K.D.
v. Starr, 55 F. Supp. 3d 782, 785 n.3 (D. Md. 2014)). But an education plan created
for a student under the Rehabilitation Act may not meet the IDEA’s FAPE
requirements. See J.S.R., 2015 WL 5692804, at *4. The distinction is significant
for purposes of this case.
II. FACTUAL BACKGROUND
A. K.M.’s Impairments
When the FAPE process in this case began, K.M. was a student in the tenth
grade at Hoover High School, a public school that the Board operates. In mid-2015,
K.M. experienced significant trauma. Her half-brother sexually abused her. (Doc.
15-1, pp. 34-35, 179). K.M.’s mother, who worked at Hoover High School, was
physically aggressive towards K.M. at school. (Doc. 15-1, pp. 34-35, 182-85). As
a result, K.M. began spending 15 to 17 hours a day with Mr. Leventry and his family.
K.M. moved into the Leventry home on December 3, 2015. (Doc. 15-1, p. 29). Mr.
Leventry is K.M.’s court-appointed guardian. (Doc. 15-33, pp. 2-4).
K.M. struggled with the transition to a new household and with the memories
of her experiences with her mother and her half-brother. Throughout the 2015-16
school year, she suffered from extreme anxiety and frequently had severe panic
attacks at school. (Doc. 15-1, pp. 48-53). She had convulsions, hallucinations, and
memory loss. (Doc. 15-1, pp. 39-40, 81-82, 92-96). She fainted frequently and was
often transported by ambulance from school to a hospital. (Doc. 15-1, pp. 53-54,
80-81). K.M. was absent from school for many days because of these emergencies.
(Doc. 15-1, p. 48). As a result, her grades faltered. (Doc. 15-1, pp. 209-10).
The school’s guidance counselor, Zach Butler, met regularly with K.M. (Doc.
15-1, pp. 179-81, 187-89, 200). In January 2016, Mr. Butler asked teachers to give
K.M. extra time to complete assignments and to allow her to freely visit him. (Doc.
15-1, pp. 198-200). Mr. Butler also referred K.M. to a problem solving team (PST),
a group of teachers and administrators at the school who collaborate to develop
interventions for struggling students. (Doc. 15-1, pp. 201, 210-13). On February
24, 2016, to accommodate K.M.’s absences, the PST implemented extended time
for K.M. to finish her assignments following absences. (Doc. 15-1, p. 212; Doc. 15-
15, pp. 1-2). Despite the accommodation, KM. failed her history class. (Doc. 15-1,
pp. 211-12).
Katie Vines, a licensed professional counselor, was K.M.’s treating therapist.
(Doc. 15-2, pp. 14, 18). Ms. Vines began treating K.M. on March 2, 2016. (Doc.
15-2, p. 18). K.M. explained to Ms. Vines that she had endured extensive abuse and
neglect in her parents’ home; that her mother physically abused her, and her father
emotionally neglected her; that her mother assaulted her at school, and her half-
brother sexually abused her. K.M. described panic attacks, feelings of
worthlessness, hopelessness, sleep disturbances, emotional difficulties, attachment
difficulties, social difficulties, and pseudo seizures. (Doc. 15-2, pp. 18-19).
Ms. Vines specializes in working with patients who suffer from these kinds
of abusive conditions. (Doc. 15-2, pp. 10-11). Ms. Vines met with K.M. at least bi-
weekly for 55 minutes at a time. (Doc. 15-2, p. 20). Ms. Vines diagnosed K.M.
with post-traumatic stress disorder (PTSD) and conversion disorder. (Doc. 15-2, p.
21). Ms. Vines was licensed to diagnose these disorders and had many years of
experience working with patients who suffer from PTSD. (Doc. 15-2, pp. 8-14).
K.M. was Ms. Vines’s first patient with conversion disorder. (Doc. 15-2, p. 12).
Conversion disorder “is a mental condition in which a person has blindness,
paralysis, or other nervous system (neurologic) symptoms that cannot be explained
by medical evaluation.”2 Ms. Vines testified that conversion disorder is
“physiological or neurological in nature, but there is no medical explanation for it.”
(Doc. 15-2, p. 12). Ms. Vines diagnosed K.M. with conversion disorder because
K.M. experienced pseudo seizures, which Ms. Vines testified are real seizures
without the EEG activity of a seizure in the brain. (Doc. 15-2, pp. 12-13).
On March 21, 2016, Ms. Vines sent Mr. Butler a letter in which she stated that
she had been treating K.M. for PTSD and conversion disorder; that K.M. attended
regular therapy sessions; that K.M. was “coping with many complex stressors in a
small amount of time”; that K.M.’s anxiety and panic attacks had “stabilized greatly
over the past few weeks”; that K.M. could return to school; that K.M. occasionally
exhibited pseudo seizures and fainting spells “during moments of distress or when
2 https://medlineplus.gov/ency/article/000954.htm (last visited Apr. 12, 2019).
recalling unpleasant memories,” but that those incidents had “greatly decreased”;
that K.M. might still faint or have a pseudo seizure at school; that K.M. would utilize
coping strategies; that “normalcy and routine are best during times of stress thus
returning to school and [K.M.’s] normal routine is vital to helping her recover”; and
that K.M.’s absences should be excused. (Doc. 15-36).
Near the end of March 2016, K.M. transitioned from Hoover High School to
New Beginnings, a program in a separate facility that the Board operates for students
who are not able to succeed in their assigned school due to emotional, social, or
physical limitations. (Doc. 15-2, pp. 118, 161). K.M. transferred to New Beginnings
because she needed to catch up on her school work, Mr. Leventry could not afford
K.M.’s frequent ambulance transports, and K.M. could not cope with attending
school in the same building as her mother. (Doc. 15-1, p. 82). New Beginnings
offered K.M. her academic courses from Hoover High School in a smaller
environment and provided K.M. regular guidance and intervention counseling.
(Doc. 15-2, pp. 118, 162-64, 175).
Between March 23 and May 20, 2016, while she studied at New Beginnings,
K.M. had at least 12 pseudo seizures. (Doc. 15-168, pp. 1-2; see Doc. 15-2, pp. 150-
53). While at school in early May 2016, K.M. fainted, fell to the ground, hit her
head on concrete, dislocated her shoulder, and suffered a concussion. (Doc. 15-1, p.
80). She spent four days in the hospital following the incident and had nine panic
attacks during the first day in the hospital. (Doc. 15-1, p. 81). On May 20, 2016,
she had a particularly severe pseudo seizure and talked out loud about hallucinations
she was experiencing for two hours and 20 minutes. (Doc. 15-2, pp. 142-43, 153;
see Doc. 15-168, p. 2). She did not return to New Beginnings after this episode.
(Doc. 15-1, p. 94; Doc. 15-2, p. 153). Through a summer recovery program, she
earned the credit for the class she had failed. (Doc. 15-1, pp. 218, 237-39).
B. Mr. Leventry’s Due Process Complaint
On March 3, 2016, on behalf of K.M., Mr. Leventry filed a complaint for due
process in the Alabama Department of Education, Special Education Division.
(Doc. 15-21, pp. 1-7). A party may bring a complaint for due process “with respect
to any matter relating to the identification, evaluation, or educational placement of
the child, or the provision of a free appropriate public education to such child . . . .”
20 U.S.C. § 1415(b)(6)(A). In his complaint, Mr. Leventry alleged that the Board
failed to provide K.M. a FAPE by failing to identify and evaluate K.M. as a
suspected child with a disability pursuant to the Board’s IDEA “child find”
obligations, and that the Board failed to develop and implement an adequate IEP.
(Doc. 15-21, pp. 2-3). Among other prayers for relief, Mr. Leventry asked for an
order directing the Board to identify and evaluate K.M. in all areas of suspected
disability “within 30 days of reaching an agreement.” (Doc. 15-21, p. 5).
C. The Eligibility Determination
The Board treated Mr. Leventry’s due process complaint as a parental referral
for an initial evaluation pursuant to the first step of the FAPE process. (Doc. 15-3,
pp. 48-50). Near the end of March 2016, the Board agreed to evaluate K.M. (Doc.
15-170, p. 4; Doc. 15-171, pp. 4-5). From March 2016 to May 2016, the Board
evaluated K.M. in several areas: achievement; behavior rating scales;
documentation of accommodations, interventions implemented, appropriate
instruction, prolonged emotional impairment, and adverse effect of educational
performance; environmental, cultural, language, and economic concerns; hearing;
intelligence; structured and unstructured observation; motor skills; structured
interviews with K.M., her family, and teachers; and vision. (Doc. 15-85, pp. 1-7).
On June 22, 2016, pursuant to the second step of the FAPE process, the IDEA
eligibility team met to analyze the evaluation data and determine whether K.M. was
eligible for special education. (See Docs. 15-85, 15-172). The IDEA eligibility team
consisted of two Hoover High School teachers, Gail Flynn and Patricia Gwynn; Mr.
Butler; the Board’s director of instructional support, Dr. Barbara Mayer; the Board’s
consulting clinical psychologist, Dr. Teashia Goodwin; the Board’s attorney, Carl
Johnson; the Hoover High School assistant principal, Brad Hayn; K.M.’s attorneys,
Shane Sears and Jim Sears; Mr. Leventry and his wife, Tracy Leventry; and Anna
Whitney, the principal of Crossroads, the school that operated New Beginnings.
(Doc. 15-3, pp. 50-52, 222-23; Doc. 15-172, p. 1).
For K.M. to be eligible for special education under Alabama law, her
disability must have: (1) met the criteria for one of 13 disabilities listed in the
Alabama Administrative Code; (2) had an adverse effect on her educational
performance; and (3) required her to have specially designed instruction in order to
access and participate in the general education curriculum. Ala. Admin. Code § 290-
8-9-.03; 34 C.F.R. § 300.39(b)(3). All members of the eligibility team agreed that
K.M.’s disability met the first two requirements, but disagreed as to the third. (Doc.
15-3, p. 350; Doc. 15-85, p. 9; Doc. 15-172, p. 4).
Mr. Hayn took notes during the eligibility team meeting. (Doc. 15-3, p. 348;
Doc. 15-172). Mr. Hayn’s notes state that when the team considered whether K.M.’s
disability satisfied the third requirement, “[t]he discussion centered on what [] main
special education service she would require” versus a plan under the Rehabilitation
Act. (Doc. 15-172, p. 3).
Dr. Mayer said that whether K.M. needed specially designed instruction was
a “hard question to answer.” (Doc. 15-172, p. 3). Dr. Goodwin talked about “several
things” that all members of the team agreed K.M. would need to be successful. (Doc.
15-172, p. 3). Dr. Goodwin and Ms. Whitney agreed that they were stuck on whether
K.M. needed “specialized instruction.” (Doc. 15-172, p. 3). Mr. Butler discussed
how the school could offer “Academic Success as a class that is not special
education” if the team went “the PST/504 route.” (Doc. 15-172, p. 3). Mr. S. Sears
asked about a “resource room.” (Doc. 15-172, p. 3). Ms. Gwynn explained the
differences between “Study Strategies and Academic Success” at the school. (Doc.
15-172, p. 3). Ms. Whitney agreed with all the points made and continued to ask
about “what specifically designed instruction was needed in order to access the
curriculum.” (Doc. 15-172, p. 3). Mr. J. Sears said K.M. needed a place to go “when
things are not going well.” (Doc. 15-172, p. 3). In response, Dr. Goodwin said K.M.
could go to a counselor, not a special education teacher. (Doc. 15-172, p. 3). Mr.
Butler explained that it was normal for K.M. to talk to him and that the school had a
social worker on staff. (Doc. 15-172, p. 3). Mr. Butler said that the school could
also provide a virtual classroom to afford K.M. more time to finish school work.
(Doc. 15-172, p. 3).
Mr. Butler then “talked about what a 504 plan would look like at the school.”
(Doc. 15-172, p. 3). He said that the 504 plan could include “Academic Success” as
a class rather than as special education, counseling with a counselor and social
worker for anxiety and depression, extending time on assignments and tests, using
the “Learning Lab” to take tests, affording K.M. extra time through virtual classes
and then “staging her back into the classroom,” and accommodating “seizure like
episodes.” (Doc. 15-172, p. 3).
K.M.’s attorneys continued to ask about specially designed instruction rather
than a 504 plan. (Doc. 15-172, pp. 3-4). Mr. S. Sears said that K.M. “needed
specially designed instruction,” but “people from the school are stating that we can
do it through a 504.” (Doc. 15-172, p. 4). Ms. Whitney said that she was not sure
what goals and benchmarks would come with an IEP. (Doc. 15-172, p. 3). Ms.
Whitney talked about how she “witnessed the issues with K.M. and Mr. Leventry
agreed with all of her support.” (Doc. 15-172, p. 4). Mr. S. Sears asked what the
school would do about K.M.’s biological mother, and Mr. Hayn said that was
irrelevant to the eligibility team’s discussion and the team “needed to focus on the
specialized instruction.” (Doc. 15-172, p. 3). Mr. Hayn said that special education
does not guarantee that a student will pass her classes, and K.M.’s attorneys said that
they were not trying to say that. (Doc. 15-172, p. 4).
The school representatives then asked K.M.’s attorneys what the specially
designed instruction would like, and Mr. J. Sears “talked about some ideas in
reference to transition and behavior.” (Doc. 15-172, p. 4). Ms. Whitney asked if
those ideas were instructional, and Mr. J. Sears “talked about the social/emotional
pieces.” (Doc. 15-172, p. 4). Dr. Mayer said the school could “handle that through
a 504.” (Doc. 15-172, p. 4).
Mr. Johnson then “asked that if the majority of the team agreed that the student
does not meet the needs for an IEP, then what would happen.” (Doc. 15-172, p. 4).
Dr. Mayer said that the school could reconsider K.M. for special education within a
year “if other measures are unsuccessful.” (Doc. 15-172, p. 4). Dr. Goodwin stated
that the Leventrys’ concerns “seem[ed] to be academic,” so she “wanted to know
what a 504 could do to assist.” (Doc. 15-172, p. 4). Mr. Butler responded that the
school could extend the academic year if K.M. needed extra time to finish her classes
“in addition to other 504 accommodations that are provided to students.” (Doc. 15-
172, p. 4).
Ultimately, the school representatives stated that they did not see the need for
specially designed instruction. (Doc. 15-172, p. 4). Dr. Goodwin said that K.M.
“definitely needs support but not necessarily special education.” (Doc. 15-172, p.
4). On the eligibility decision form, the team marked “No” for the question, “does
the student need specially designed instruction in order to access and participate in
the general education curriculum,” and therefore found that K.M. was not eligible
for an IEP. (Doc. 15-85, p. 9). The form states: “The team considered emotional
disability but school personnel feels that [K.M.’s] needs can be met through a 504
plan.” (Doc. 15-85, p. 9). The Leventrys and K.M.’s attorneys signed the eligibility
decision form indicating that they disagreed with the team’s decision. (Doc. 15-85,
p. 9).
D. The Due Process Hearing and Decision
The due process hearing on Mr. Leventry’s complaint took place on July 18,
19, 20 and August 3, 2016. (See Docs. 15-1, -2, -3, and -4). Mr. Leventry did not
amend his due process complaint to add a challenge to the eligibility team’s decision,
but the Board consented to Mr. Leventry bringing the challenge at the hearing, and
the hearing proceeded on that claim in addition to Mr. Leventry’s allegation that the
Board violated “child find.” (Doc. 15-1, pp. 16-20).
Ten witnesses testified at the hearing, and the parties submitted 91 exhibits.
(See Docs. 15-1, -2, -3, and -4). Dr. Goodwin testified for the Board. (Doc. 15-3,
pp. 254-323).3 On September 14, 2016, the hearing officer entered his decision on
Mr. Leventry’s due process complaint. (Doc. 15-243, p. 12). The hearing officer
found that the Board did not violate “child find.” (Doc. 15-245, pp. 5-11). But he
found that the eligibility team’s evaluation of K.M. eligibility for specially designed
instruction was flawed. The hearing officer stated:
Simply put, if the answer by the team was that since we do not know
what services could be put in place, or we could not imagine any
services that would help, and therefore we do not think the child is a
person who needs specially designed services, does not properly
address the question and conceivably would deny the child a FAPE. It
is this particular question that gives the undersigned pause and which
requires attention in order to determine if a FAPE may have been
denied the child during the Eligibility process.
(Doc. 15-246, p. 4). The hearing officer commended the Board’s professional and
serious efforts regarding K.M., but found that “there appears to be a glitch in the
3 Dr. James Alan Siders testified as an expert in special education for Mr. Leventry. (Doc. 15-4,
pp. 98-142). Dr. Siders was not part of the eligibility team. The parties give some attention to his
testimony in their briefs, but Dr. Siders’s testimony is mostly immaterial to the issues in this
appeal, so the Court has not presented the details of his testimony in the factual background.
thinking process where the team appears to back into the decision that since they do
not see any services that might help, they think that [K.M.] would not therefore
benefit from specialized instruction.” (Doc. 15-246, p. 5).
The hearing officer relied heavily on the eligibility team meeting minutes
prepared by Mr. Hayn. (See Doc. 15-246, pp. 6-9). The hearing officer found that,
according to the meeting minutes, “the eligibility team appears to determine that
what really is needed are modifications by the general education teacher, along the
lines of a formal 504 plan, since they could not imagine what specially designed
instruction might be provided . . .” (Doc. 15-246, p. 6). The hearing officer
explained that K.M.’s attorneys asked about specially designed instruction
accommodations, but “[a]ll answers seem to move back to a 504 plan as opposed to
a true or vigorous discussion about what specially designed instructions could be
available and if they were, were they needed.” (Doc. 15-246, p. 6). The hearing
officer stated that “the minutes of the meeting appear to support the contention . . .
that the team never fully evaluated any specific specially designed instructions as a
remedy and consequently, never ruled any such instructions out as unnecessary for
the child.” (Doc. 15-246, p. 6).
The hearing officer also found that members of the eligibility team were not
adequately prepared and that the team did not develop sufficient information to
permit a sound evaluation of K.M.’s eligibility for special education. The hearing
officer pointed out that Dr. Goodwin had “reviewed records of K.M., but had not
obtained any personal knowledge of K nor her guardians as to her history.” The
hearing officer stated that Dr. Goodwin did not “truly examine[] the child” or seek
“a full history of the events occurring before the June eligibility meeting.” (Doc.
15-246, p. 7). Going into the team meeting, Dr. Goodwin was not aware “of many
details of K’s experience like the pseudo seizures and the apparent debilitating effect
that they had upon K.” (Doc. 15-246, p. 7). The hearing officer noted that after Dr.
Goodwin saw the video of K.M.’s altercation with her mother and learned about
K.M.’s pseudo seizures, Dr. Goodwin “stated that [K.M.] would indeed need
academic support.” (Doc. 15-246, p. 7; see Doc. 15-3, pp. 301-302).4
The hearing officer faulted the eligibility team for failing to consider Ms.
Vines’s opinions and emphasized the significance of Ms. Vines’s opinions: “Ms.
Vines, . . . who had earlier diagnosed [K.M.] with PTSD and conversion disorder,
has significant experience with trauma and abused adolescents so would possibly
been [sic] a significant voice for the team to consider.” (Doc. 15-246, p. 8). The
hearing officer noted that the Board had a letter from Ms. Vines in which she offered
to provide additional information, but the Board did not seek input from Ms. Vines,
4 Dr. Goodwin stated that K.M. “needs support in the academic setting”. (Doc. 15-3, p. 302). Dr.
Goodwin added that she still would not opine that K.M. needed specially designed instruction
because she was “not sure what that specially designed instruction would be. That’s where I get
stuck. She certainly needs support. She certainly has mental health issues that are involved . . .
There is no question about that. That are very intense.” (Doc. 5-3, p. 303).
and the hearing officer noted the sarcastic tone of the Board’s counsel with respect
to Ms. Vines. (Doc. 15-36; Doc. 15-246, p. 8).
Summing up his opinion, the hearing officer stated:
Instead of having a discussion on what types of specialized instruction
might be needed to address [K.M.’s] unique needs, there appears to be
lining up of the members along the belief that this question was moot
since the district had good regular classroom resources and could likely
meet her needs there. While this theory is plausible . . . it does appear
that the eligibility team fails to rigorously examine this part of the
eligibility question. For example, there was no independent
educational evaluation nor any apparent effort to ascertain the opinions
of Ms. Vines about her diagnosis of [K.M.]. While Dr. Goodwin
appears reliable and her integrity is not in question, it does not appear
she was afforded enough information leading up to the eligibility
meeting to have had her opinion carry the weight afforded it by the
team. In short, the record leads the undersigned to question whether or
not the team appropriately addressed the question of whether or not
specially designed instructions were needed by [K.M.]
(Doc. 15-246, p. 9). The hearing officer stated that “the question of what services
are to be laid out in an IEP[] only occurs once a child is found eligible.” (Doc. 15-
246, p. 7). Commenting again on the Board’s circular reasoning, the hearing officer
observed that the team “looked around and felt that since they did not conceive of
any specially designed instructions that would apply, they felt [K.M.] was not in
need of ‘specialized instructions.’” (Doc. 15-246, p. 10). It appeared to the hearing
officer that the team “presumed a negative since they could not know what else they
could do, figuring that a 504 type plan would work well . . . .” (Doc. 15-246, pp. 10-
11). The hearing officer noted that K.M. ultimately bore the burden of proof but
directed the Board “to seek further data, presumably in the form of an independent
education evaluation with current data, and reconvene the eligibility team,” with Ms.
Vines’s input, and then “reconsider the question of whether or not the child was one
in need of specially designed instruction.” (Doc. 15-246, p. 12).
The hearing officer repeatedly reiterated that if the Board properly examined
the third issue concerning K.M.’s potential need for specialized education and
related services, the Board ultimately might conclude that a 504 plan would best
serve K.M., but the hearing officer could not accept that conclusion until the Board
took the steps necessary to reach that conclusion. The Board’s failure to follow the
proper process necessarily eliminated a possible finding that K.M. needed
specialized education and related services. The hearing officer concluded:
The Respondent District’s eligibility process was correct with respect to two
of the three questions . . . On the third question, however, the District appears
to have neglected to properly address the possibility that K might be a child
in need of specialized instruction. The undersigned does not purport to find
that the team was wrong in their answer to that question, rather finds that the
process in getting there could have allowed the team to have come to the
incorrect conclusion and consequently deny K a FAPE.
(Doc. 15-246, p. 11).
E. The Board’s Appeal
To appeal the hearing officer’s decision, the Board filed the complaint in this
action. (Doc. 1). In its complaint, the Board has asked the Court to set aside the
hearing officer’s findings and the relief he ordered in the decision. (Doc. 1, p. 12).
Mr. Leventry has asserted a counterclaim, asking the Court to order the Board to
comply with the hearing officer’s order and to find that Mr. Leventry was the
prevailing party and therefore entitled to attorneys’ fees. (Doc. 6, p. 10). The Court
granted the Board’s motion to stay the hearing officer’s order pending the outcome
of this appeal. (Doc. 25). The Board and Mr. Leventry both moved for summary
judgment and judgment on the administrative record. (Docs. 27, 28).
III. STANDARD OF REVIEW
A party aggrieved by a hearing officer’s “findings and decision” on a due
process complaint “shall have the right to bring a civil action” concerning the matter
“in a district court of the United States . . . .” 20 U.S.C. § 1415(i)(2)(A). In that
civil action, the parties may request summary disposition of the complaint. “The
usual [Federal Rule of Civil Procedure 56] summary judgment principles do not
apply in an IDEA case.” Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d
1309, 1313 (11th Cir. 2003). Instead, on a motion for summary disposition, a district
court must review the hearing officer’s specific factual findings for clear error and
the officer’s legal analysis and conclusions de novo. Draper v. Atlanta Indep. Sch.
Sys., 518 F.3d 1275, 1284 (11th Cir. 2008). A district court “may issue a judgment
on the record based ‘on the preponderance of the evidence,’. . . even when facts are
in dispute.” R.L. v. Miami-Dade Cty. Sch. Bd., 757 F.3d 1173, 1178 (11th Cir. 2014)
(quoting 20 U.S.C. § 1415(i)(2)(C)(iii)). And, pursuant to Rule 52 of the Federal
Rules of Civil Procedure, a district court may engage in factfinding, “even on a
record bearing evidence tendered in addition to the IDEA administrative record—
subject to the requirement that [the district court] accord ‘due weight’ to
administrative findings.” Loren F., 349 F.3d at 1314.
When evaluating the administrative findings, a district court “‘must be careful
not to substitute its judgment for that of the state educational authorities.’” R.L., 757
F.3d at 1178 (quoting Walker Cty. Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d
1293, 1297 (11th Cir. 2000)). A district court has “discretion to determine the level
of deference it will give to the ALJ’s findings.” Sch. Bd. of Collier Cty., Fla. v. K.C.,
285 F.3d 977, 983 (11th Cir. 2002).
Courts owe some judicial deference to local administrative agency
judgments, see Deal v. Hamilton County Dept. of Educ., 259 F.Supp.2d
687, 691–92 (E.D.Tenn.2003) (When reviewing IEPs, court keeps in
mind that state and local administrative agencies are deemed to have
expertise in education policy and practice), though that’s typically
limited to matters calling upon educational expertise. Zelazny, 325 F.3d
at 728 (The amount of weight due to administrative findings under the
IDEA depends on whether the finding is based on educational
expertise) (citing McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d
663, 669 (6th Cir.2003)). To that end, administrative factfindings “are
considered to be prima facie correct, and if a reviewing court fails to
adhere to them, it is obliged to explain why.” MM, 303 F.3d at 531; see
also G v. Fort Bragg Dependent Sch., 343 F.3d 295, 302 (4th Cir.
2003).
Loren F., 349 F.3d at 1314 n.5.
Accordingly, a district court has discretion to determine the level of deference
it will give to the hearing officer’s findings, K.C., 283 F.3d at 983, and a district
court may “accept the ALJ’s conclusions that are supported by the record and reject
those that are not,” R.L., 757 F.3d at 1178 (citing Loren F., 349 F.3d at 1314), as
long as the district court explains it reasons for rejecting a conclusion, R.L., 757 F.3d
at 1178.
IV. DISCUSSION
A. The “Actionable Procedural Violation”
The Board argues because the hearing officer stated in his opinion that “it
‘appear[ed]’ that the ‘eligibility process went off track,’ such that ‘the process’ used
‘could have allowed the team to have come to [an] incorrect conclusion,” the hearing
officer “did not find a substantive denial of FAPE or an actionable procedural
violation under well-established law.” (Doc. 27, pp. 25-26; Doc. 31, p. 3) (footnotes
omitted) (emphasis in Doc. 31). The argument ignores the clear import of the
hearing officer’s decision; the officer found that the Board did not properly engage
in the FAPE process. (See Doc. 15-245, p. 11) (“Issue 2: Was a FAPE denied the
Petitioner by the Respondent in the eligibility process and the subsequent
determination that [K.M.] was not eligible for special education services?”)
(emphasis omitted). Under the IDEA, when a hearing officer examines a procedural
violation, the officer “may find that a child did not receive a [FAPE] if the procedural
inadequacies . . . impeded the child’s right to a [FAPE].” 20 U.S.C. §
1415(f)(3)(E)(ii)(I). That is precisely what the hearing officer found in this case.
After all, if K.M. was in fact eligible for an IEP, and a procedural defect prevented
the Board from reaching that conclusion, then by definition, K.M. was denied a
FAPE. See 20 U.S.C. § 1415(f)(2)(E)(ii)(I).
B. The “Needs Specially Designed Instruction” Discussion
As discussed above at the second step of the FAPE process, after the eligibility
team determined that K.M. had a disability as defined by Ala. Admin. Code § 290-
8-9-.03, the eligibility team had to determine whether K.M. was eligible for an IEP.
To make that determination, the team had to consider whether her disability
“adversely affect[ed] her academic performance” and whether “‘by reason thereof’”
she “needed special education.” Durbrow v. Cobb Cty. Sch. Dist., 887 F.3d 1182,
1193 (11th Cir. 2018) (quoting 20 U.S.C. § 1401(3)(A) and 34 C.F.R. § 300.8(c)(9)).
The eligibility team properly answered the first question in the affirmative. (Doc.
15-85, p. 9). The eligibility team did not properly evaluate the second question. In
considering K.M.’s need for special education, i.e. her need for specially designed
instruction, the team discussed and ruled out her need for specially designed content
or methodology, but the team did not consider as an aspect of a FAPE (as opposed
to a 504 plan) K.M.’s need for specially designed delivery of instruction and her
related need for psychological and counseling services. 34 C.F.R. § 300.39(b)(3).
The hearing officer explained that the eligibility team’s circular reasoning
regarding “specially designed instruction” resulted in a flawed procedure: “the team
got to [the “specially designed instruction” question] and looked around and felt that
since they did not conceive of any specially designed instructions that would apply,
they felt she was not in need of ‘specialized instructions.’” (Doc. 15-246, p. 10).
Essentially, the Board did not adequately explore whether K.M. “needs special
education” because the school representatives on the eligibility team did not fully
understand K.M.’s impairment and therefore did not have a basis for exploring
whether she needs specialized delivery of instruction.
In this regard, the hearing officer emphasized that Dr. Goodwin, the Board’s
consulting clinical psychologist, only examined paperwork concerning K.M.; Dr.
Goodwin did not meet K.M and was not familiar with K.M.’s pseudo seizures or the
effects of those seizures. In addition, the Board did not consider the opinions of Ms.
Vines, K.M.’s counselor. The IDEA provides that an eligibility determination must
be made by a team of “qualified professionals and the parent of the child.” 20 U.S.C.
§ 1414(b)(4)(A); 34 C.F.R. § 300.306. The eligibility team must “use a variety of
assessment tools and strategies to gather relevant functional, developmental, and
academic information, including information provided by the parent, that may assist
in determining . . . whether the child is a child with a disability.” 20 U.S.C. §
1414(b)(2)(A)(i). The team must ensure that “assessment tools and strategies that
provide relevant information that directly assists persons in determining the
educational needs of the child are provided.” 20 U.S.C. § 1414(b)(3)(C). Moreover:
(1) In interpreting evaluation data for the purpose of determining if a
child is a child with a disability under § 300.8, and the educational
needs of the child, each public agency must—
(i) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child’s
physical condition, social or cultural background, and adaptive
behavior; and
(ii) Ensure that information obtained from all of these sources is
documented and carefully considered.
34 C.F.R. § 300.306(c).
The IDEA does not require particular sources of information. For instance,
an eligibility team does not necessarily have to consult a doctor. Rather, qualified
individuals on an eligibility team must exercise sound judgment to determine what
data is needed to make an eligibility determination. See Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 59 (2005) (“IDEA relies heavily upon the expertise of school
districts to meet its goals.”). The Court accepts the hearing officer’s conclusion that
K.M.’s eligibility team did not properly evaluate whether she needs special
education because the team did not consider all relevant sources of information,
specifically Ms. Vines’s opinions.
In K.M.’s case, given the unique nature and severity of her disability, the
hearing officer properly concluded that Ms. Vines was a significant source of
relevant information. As the hearing officer stated, “[t]hough she is not a doctor,
Ms. Vines . . . had been meeting with and counseling [K.M.] for several months”
before the eligibility team meeting, and, “as the licensed professional counsel who
had earlier diagnosed [K.M.] with the PTSD and conversion disorder, has significant
experience with trauma and abused adolescents . . . .” (Doc. 15-246, p. 8). Again,
conversion disorder is rare, and its implications for a student are not common
knowledge among professional educators.
Ms. Vines was more familiar with K.M.’s disability than any member of the
eligibility team. As she explained in her March 21, 2016 letter, Ms. Vines worked
with K.M. through “regular individual therapy,” was aware of K.M.’s “complex
stressors,” and taught K.M. “many coping strategies.” (Doc. 15-36). Although she
is not an educator, Ms. Vines could have explained how K.M.’s PTSD and
conversion disorder impacted, for example, her ability to retain information and
what that might mean in terms of delivery of instruction. Cf. E.E. v. Tuscaloosa City
Bd. of Educ., No. 7:15-cv-01370-LSC, 2016 WL 3618362, at *5 (N.D. Ala. July 6,
2016) (information missing from an eligibility team meeting did not deprive student
of a FAPE because “such omissions [were] not such as to compel the conclusion that
had that information been shared with the team a different result would have been
reached”).
In addition, the Court accepts the hearing officer’s conclusion that Dr.
Goodwin did not review enough information for her opinion to carry the weight the
Board afforded it. (Doc. 15-246, pp. 7, 9). The IDEA does not require a school
district’s consulting psychologist to personally evaluate a student, and the Court does
not believe that Dr. Goodwin has personally examined the students for each of the
“hundreds, if not thousands” of eligibility teams on which she has served. (Doc. 15-
3, p. 269). But in this case, again because of the unique nature and severity of K.M.’s
disability, it was reasonable for the hearing officer to expect the eligibility team to
consult a psychologist who had personally examined K.M. Because Ms. Vines was
not consulted, Dr. Goodwin was the only expert in mental health impairments on the
eligibility team. Dr. Goodwin testified that she had no personal knowledge of K.M.,
never met K.M., and never witnessed any of K.M.’s seizures or panic attacks. (Doc.
15-3, pp. 280-82). Rather, she based her opinions on a review of written assessments
and conversations with others who had observed K.M. (Doc. 15-3, p. 287). Indeed,
after Dr. Goodwin saw the video of K.M.’s interaction with her (K.M.’s) mother and
learned about K.M.’s pseudo seizures, Dr. Goodwin concluded that K.M.’s mental
health issues were “very intense” and that K.M. “needs support in the academic
setting.” (Doc. 15-3, pp. 302-03).
The Board challenges the significance of Ms. Vines’s opinions because,
according to the Board, Ms. Vines’s March 21, 2016 letter “conveyed an all-but-
upbeat assessment of [K.M.’s] condition at that time, and, notably, did not include a
recommendation for or consideration of an IDEA eligibility referral or an IEP.”
(Doc. 30, p. 10). The argument is not persuasive. Ms. Vines’s letter is not an “all-
but-upbeat assessment.” Although she stated, “[K.M.’s] anxiety and panic have
stabilized greatly over the past few weeks,” and, “[t]here is no need for alarm or
panic as there is no medical emergency,” Ms. Vines still stated that “there is a
possibility that [a pseudo seizure or fainting spell] could occur at school.” (Doc. 15-
36). Even Ms. Vines could be interpreted as positive, K.M. had seizures, panic
attacks, fainting spells, and convulsions after the date of the letter, with the last
seizure leading to physical injuries and hospitalization. (See Doc. 15-1, pp. 80-81;
Doc. 15-2, pp. 142-43, 150-53; Doc. 15-168, pp. 1-2). The letter demonstrates that
Ms. Vines was much more familiar with K.M.’s disability than any member of the
eligibility team. The Board faults Mr. Leventry and his attorneys for not inviting
Ms. Vines to attend the eligibility meeting, (Doc. 30, p. 11), but the IDEA does not
place the burden of due process on the parent.
The Board argues that the hearing officer should not have been concerned
about Dr. Goodwin’s failure to meet K.M. because Dr. Goodwin “was but one
member of the eligibility team—and others who knew the Student quite well reached
the same conclusion that Dr. Goodwin did.” (Doc. 30, p. 11). But Dr. Goodwin was
the only psychologist on the eligibility team, and she would have been in a position
to contribute substantially more to the team’s assessment of K.M. if she had met
K.M. and evaluated her.
The Court commends the Board’s efforts to support K.M. The administrative
record shows that Board employees took K.M.’s disability seriously, documented
K.M.’s struggles and successes, responded promptly to every emergency, provided
accommodations throughout the 2015-16 school year, and referred K.M. for an
IDEA evaluation. Nevertheless, the administrative record supports the hearing
officer’s conclusion that the Board denied K.M. a FAPE by failing to properly assess
whether K.M. needed specially designed instruction.
C. Attorneys’ Fees
Mr. Leventry asks the Court to determine that he is the “prevailing party” and
therefore entitled to attorneys’ fees. (Doc. 28-1, pp. 19-23). The IDEA provides
that “[i]n any action or proceeding brought under [20 U.S.C. § 1415], the court, in
its discretion, may award reasonable attorneys’ fees as part of the costs . . . to a
prevailing party who is the parent of a child with a disability.” 20 U.S.C. §
1415(i)(3)(B)(i)(I). K.M. has not been found to be a “child with a disability” as
defined by the IDEA because the eligibility team has not found that K.M. “needs
special education.” 20 U.S.C. § 1403(3). Therefore, Mr. Leventry is not entitled to
attorneys’ fees at this point.
V. CONCLUSION
Based on the foregoing, the Court denies the Board’s motion for summary
judgment and judgment on the administrative record, grants Mr. Leventry’s motion
for summary judgment and judgment on the administrative record, and affirms the
hearing officer’s due process decision.
The Court orders the Board to comply with the hearing officer’s final order
within 30 days of this order.
DONE and ORDERED this 16th day of September 2019.
Maidan
UNITED STATES DISTRICT JUDGE
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