Opposition Brief — Winkelman v. Parma City City School School District (No. 08-1089)

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No. 08-1089 | Sus SA" GLnK

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Supreme Court of the Anited States

JEFFERY WINKELMAN, et al.,

Petitioners,

Vs

PARMA CITY SCHOOL DISTRICT,

Respondent.

On Petition for Writ of Certiorart to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

CHRISTINA HENAGEN PEER

Counsel of Record

SQUIRE, SANDERS & DEMPSEY LLP

4900 Key TOWER

127 PuBLic SQUARE

CLEVELAND, OHIO 44114

PHONE: (216) 479-8500

Fax: (216) 479-8780

Counsei for Respondent

May 29, 2009

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED

Whether administrative and judicial officers

presiding over impartial due process hearings and

subsequent court proceedings conducted pursuant to

20 U.S.C. § 1415(f)(1)(A) of the Individuals with

Disabilities Education Act can consider testimony from

members of a child’s individualized education program

team when determining whether the individualized

education program provides the child with a free

appropriate public education as required by 20 U.S.C.

§ 1412(a)(1).

i

TABLE OF CONTENTS

QUESTION PRESENTED .................... 1

TABLE OF (Gir ee eo oo ess sss... ll

TABLE OF AUEiiGmresamee .................. lv

TING T RROILUr; oe ee. 1

CONSTITUTIONAL PROVISIONS AND

STATURE ee see ee ek esse... 3

STATEMENT OF THE CASE ................ 3

A. IDEA Statutory Scheme .................. 3

B. Factwal RG ee ees sss... D

1. Jacob’s Progress In Preschool At The

Achievement Center ................... 6

2. Jacob’s Multifactored Evaluation Reveals His

Continued Eligibility Under The IDEA .... 8

3. Parma Prepares For Jacob’s Transition To

Kindergarten By Observing Jacob And

Meeting With His Preschool Teachers .... 11

4. Parma Proposes An IEP For The 2003-04

Schoul Wages ee... 11

C. Summary of Proceedings Below ........... 13

REASONS FOR DENYING THE PETITION ... 15

ill

I. The Issue Raised By Petitioners Was Not

SU SRE 5 3 on > ee ee 15

II. The Sixth Circuit’s Decision Does Not Create A

R7ROOEE TE nik Gs ae eee ee 18

A. The Cases Cited By Petitioners Are

Factually Distinguishabie ............. 18

B. Petitioners Cannot Bring This Case In Line

With Smith, Z.P., and Sytsema By Relying

On The District Court’s “Implied”

III, 5 ok wk soa ea ee 23

C. Petitioners’ Representation Of Current Sixth

Circuit Law Is Incorrect ............... 24

If. The Position Advocated By Petitioners Does

Not Comport With The IDEA’s Statutory

OE eo eens ee eee 25

IV. The Inclusion Of An Occupational Therapy

Assessment Instead Of Goals And Objectives

Did Not Deny Jacob A FAPE.............. 26

RAMONE 6k e osc s Ce ore ee ee ae oe oo

iv

TABLE OF AUTHORITIES

CASES

Adickes v. S. H. Kress & Co.,

ere A, SOS CIID) on eae bake 15

Berger v. Medina City Sch. Dist.,

OSG Fe Dis (Gi Cir. ZOE) 2 ww cw ees 27

Board of Educ. of the Hendrick Hudson Central

Sch. Dist. v. Rowley,

Be RD ye: Se a 4

Cleveland Heights-University Heights City School

District v. Boss,

M4 PF .30 SS) (6th Cir. 1998) .............: 24

County School Board of Henrico County v. Z.P.,

399 F. 3d 298 (4th Cir. 2005)........... passim

Doe v. Defendant I,

898 F.2d 1186 (6th Cir. 1990) .......... 24, 25

Duignan v. United States,

EG Rr BPR NED 6 ih be iw ceils 15

Irving Indep. Sch. Sys. v. Tatro,

MS E72 Be CRO) oo ee i ees 28

Monrosa v. Carbon Black Export, Inc.,

Or Ace BO CR) ne Si be si ewe ces 26

N.L. v. Knox City Schs.,

315 F.3d 688 (6th Cir. 2003) .............. 27

Vv

Neely v. Rutherford Ctv. Sen.,

Gee ee Rar. BO? wn. ee veiw es 28

Pennsylvania Dep’t of Corrections v. Yeskey,

me TPS) occ eee habewns 15

Schaffer v. Weast,

ee ree, en ne wpe eeeneen 27

Sytsema v. Academy School District No. 20,

538 F. 3d 1306 (10th Cir. 2008)......... passim

Union School District v. Smith,

15 F. 3d 1519 (9th Cir. 1994) .......... passim

Winkelman v. Parma City Sch. Dist.,

166 Fed. Appx. 807 (6th Cir. 2006) ......... 14

Winkelman v. Parma City School District,

Te 5 OR) oe ee hie 15

STATUTES

ee as veg Aes pe ae 3

Sr ee. © ARMGMIMA) 2.66. ee eee 3

DA Ween SR EMARD 2. oe ccc ec eee ee 25

20 U.S.C. § 1415(bM6) ............... 3, 4, 13, 26

Oe ae es Sc ee ee ce wae dauens 4

Me Re LE ROEAAMAD . ow ce aes 2,3

Be es © BORO) 28 5 ee ee eee 4

ou U0. & TATA) 2... ww we ee eee + by O, 4, 20

PSs SAS ws ie ae ee en dw eee 4

vi

REGULATIONS

ee a ED «ove ccc ec essere rsecace OF

OHIO ADM. CODE 3301-51-05(K)\(8)(d) ... 2.0.2.0... 4

OHIO ADM. CODE 3301-51-05(K)(10) ............ 4

OHIO ADM. CODE 3301-51-05(K)\(11)(a).. 2.2.02... 4

OHIO ADM. CODE 3301-51-05(K)(14)(b) .. 22 2... 5

1

RESPONDENT’S BRIEF IN OPPOSITION

INTRODUCTION

This case is a textbook example of a matter that

does not warrant this Court’s review for numerous

reasons. First, despite almost six years of litigation,

the question presented by Petitioners was not raised

below. Petitioners have never alleged the impartial

hearing officer, state level review officer or lower

courts erred in considering the testimony of the

occupational therapist on Jacob Winkelman’s

individualized education program (“IEP”) team. As

such, this issue is not properly before this Court.

Second, the circuit split relied upon by Petitioners

is illusory. Although Petitioners attempt to massage

the facts of this case to create the perception of a split,

this case is factually distinguishable from the Fourth,

Ninth and Tenth Circuit cases upon which they rely.

In those cases, the courts were asked to consider

services that were not included in the IEP when

deciding if the IEP offered by the school district

provided a free appropriate public education (“FAPE”).

Here, the lower courts were not asked to consider

services that were not included in the IEP. Rather,

they were asked to determine whether the

occupational therapy services included in the IEP were

reasonably calculated to provide Jacob a FAPE. In

doing so, they considered testimony from the

occupational therapist who drafted the section of the

IEP in question. This testimony explained the

rationale for the inclusion of an occupational therapy

assessment in the IEP instead of occupational therapy

goals due to the unique circumstances and Jacob’s

2

needs. Given this key factual distinction, there is no

circuit split.

Third, Petitioners’ argument that the therapist’s

testimony constitutes extrinsic evidence that should

not have been considered when reviewing the

appropriateness of the IEP undermines the IDEA’s

statutory scheme. Under the IDEA, parents and

school districts are afforded procedural safeguards

which include the right to a due process hearing before

an impartial hearing officer. 20 U.S.C. § 1415(f)(1)(A).

Parties to these hearing are afforded additional rights,

such as the right to present evidence and compel the

attendance of witnesses. 20 U.S.C. § 1415(h).

Petitioners’ position that testimony regarding the

content of the IEP is “extrinsic evidence”, undermines

this statutory scheme and would result in hearing

officers and courts making critical decisions about the

appropriateness of an IEP without the benefit of

testimony from members of the IEP team. This is

clearly not what Congress intended when it provided

the right to a due process hearing.

Finally, this case presents a poor vehicle for

certiorari as this Court’s decision on the “four corners”

issue will not alter the ultimate outcome. Petitioners

have not carried their burden of proving Parma did not

offer Jacob a FAPE. There is no evidence Jacob

suffered substantive harm because his IEP contained

an occupational therapy assessment as opposed to

occupational therapy goals and objectives. Thus, even

if this Court were to hold that the testimony of the

occupational therapist constituted impermissible

extrinsic evidence, Petitioners would not prevail on the

merits making this case a poor vehicle for certiorari.

3

CONSTITUTIONAL

PROVISIONS AND STATUTES

In addition to Section 1414(d)(1)(A)(i) of the

Individuals with Disabilities Education Act (“IDEA”),

20 U.S.C. § 1400 et. seq., cited by Petitioners, Section

1415(b\(6), Section 1415(f)(1)(A) and Section 1415(h)

are relevant to the Petition. Section 1415(b)(6)

provides: “[aJn opportunity for any party to present a

complaint - - 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”, while

Section 1415(f)(1)(A) provides that whenever a

complaint has been received pursuant to Subsection

(b)(6), the parents or local educational agency involved

in the complaint “shall have an opportunity for an

impartial due process hearing, which shall be

conducted by the State Educational Agency or by the

local educational agency, as determined by State law

or by the State educational agency.” Section 1415(h)

accords numerous rights to parties in due process

hearings including “the right to present evidence and

confront, cross-examine, and compel the attendances

of witnesses.”

STATEMENT OF THE CASE

A. IDEA Statutory Scheme

Congress enacted the IDEA “to ensure that all

children with disabilities have available to them a free

appropriate public education that emphasizes special

education and related services designed to mect their

unique needs.” 20 U.S.C. § 1400(d)(1)(A). A school

district provides a FAPE to a child with a disability by

4

offering an individualized program of special

education, designed to meet the student’s unique

needs, that is provided in accordance with a properly

developed IEP. Board of Educ. of the Hendrick

Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206

(1982). A school district meets this obligation if it has

(1) complied with the procedural requirements of the

IDEA, and (2) developed an IEP which is reasonably

calculated to provide an educational benefit. Jd. at

206-207.

The IDEA provides procedural safeguards to

parents that allow them to challenge decisions by a

school district related to their child’s identification,

evaluation, placement or the school district’s provision

of a FAPE. A parent may challenge whether the IEP

offered by the school district provides a FAPE by filing

a due process complaint pursuant to 20 U.S.C.

§ 1415(b)(6). This entitles the parent to an “impartial

due process hearing” conducted pursuant to 20 U.S.C.

§ 1415(f). These hearings are conducted by hearing

officers who meet the qualifications set forth in 20

U.S.C. § 1415(f)(34A) and who are appointed in

accordance with procedures adopted by the State

Education Agency. Oi!IO ADM. CODE 3301-51-

05(K)(8)(d); 3301-51-05(K)(10).

Parents and school districts who are parties to a

due process hearing are entitled to numerous

procedural safeguards including the right to present

evidence and confront, cross-examine, and compel the

attendance of witnesses. 20 U.S.C. § 1415(h); OHIO

ADM. CODE 3301-51-05(K)(11)(a). Any “party

aggrieved” by a hearing officer's decision may

ultimately appeal the decision to a United States

District Court. 20 U.S.C. § 14150:)(3); OHLO ADM. CODE

5

3301-51-05(K)(14)(b) (establishing a two tier system

requiring appeal to Ohio Department of Education

prior to appeal to court). In keeping with this

statutory scheme, this case has been heard by an

Impartial Hearing Officer, a State Level Review

Officer, the United States District Court for the

Northern District of Ohio and the Sixth Circuit Court

of Appeals.

B. Factual Background’

Jacob is a now twelve year-old boy who has been

identified as a child with a disability under the IDEA

due to a diagnosis of autism. JA 375.’ This litigation

began on June 2, 2003 when Jacob’s parents, Jeff and

Sandee Winkelman, filed a request for due process

alleging the IEP offered by the Parma City School

District (“Parma” or “District”) for the 2003-2004

school year did not offer Jacob a FAPE. JA 353.

Specifically, they challenged Parma’s proposed public

school placement at Pleasant Valley Elementary

School (“Pleasant Valley”). To date, each

administrative and judicial officer to consider this case

has concluded Parma’s IEP offered Jacob a FAPE.

' Petitioners’ Statement. of the Case fails to utilize the factual

findings of the Impartial Hearing Officer, State Level Review

Officer or the District Court. Instead, it construes the facts

heavily in their favor by quoting extensively from the hearing

testimony of Petitioner Sandee Winkelman. Moreover, the

majority of these “facts” are wholly irrelevant to the Petition.

They are addressed here simply to correct various misstatements

* Citations to “JA” refer to the Joint Appendix filed in the Sixth

Circuit Court of Appeals

6

1. Jacob’s Progress In Preschool At The

Achievement Center.

Jacob was first evaluated by Parma to determine

his eligibility for special education preschool services

under the IDEA on September 1, 2000. JA 355. Upon

completion of a multifactored evaluation (“MFE”), the

team, including Mr. Winkelman, agreed Jacob was a

Preschooler with a Disability. JA 374. The District

developed an IEP for Jacob for the 2000-2001 school

year. JA 445. The IEP contained goals in the areas of

communication, language development and fine motor

skills. Id. Under this IEP, Jacob attended Parma’s

First Step Preschool (“First Step”).°

Although Jacob’s progress reports from First Step

indicated he was making progress, Mrs. Winkelman

was not happy with the program. JA 295; 494-500.

Mrs. Winkelman suggested placing Jacob at the

Achievement Center — a public preschool specializing

in educating children with autism. JA 295-96. Jacob’s

IEP team agreed the Achievement Center was an

appropriate placement. JA 264-65.

Jacob began attending the Achievement Center at

the start of the 2001-02 school year. JA 266-69; 458.

Jacob’s classroom teacher, Jacquelyn Gerber, observed

that Jacob was a very verbal child who “had a lot of

words.” JA 179. To determine Jacob’s strengths and

weaknesses, Ms. Gerber assessed him using the

* The appropriateness of the First Step Preschoot was not before

the Impartial Hearing Officer and is likewise not before this

Court. Pet App. 98-100a. This background information is

included solely to balance Petitioners’ representations regarding

Jacob’s attendance at First Step.

7

TEACCH Preschool Checklist which lists preschool

skills. JA 188-89. The results indicated Jacob had

already mastered many of the skills on the checklist.

JA501-12. Jacob had needs in the areas of: transition

skills; expressive and receptive communication;

pragmatic language; fine motor skills; and classroom

independence which were addressed in his 2001-02

IEP. JA 459.

Jacob did well at the Achievement Center and his

IEP team developed an IEP for the 2002-03 school year

that continued his placement there. JA 469. The

present levels of performance in Jacob’s 2002-2003 IEP

noted he had mastered 80% of the TEACCH Checklist.

Id. Jacob still needed to work on pre-reading skills,

time concepts, number concepts, engaging

spontaneously in pretend play, fine motor skills, and

peer interaction. /d. Based on these needs, the team

developed Jacob’s 2002-03 IEP. Id.

On May 6, 2003, Jacob’s IEP team met to discuss

his progress during the 2002-2003 school year. JA

469. Once again, Jacob had made excellent progress.

Id. Ms. Gerber indicated Jacob had made the greatest

gains in the area of pre-academic skills and was

beginning to independently engage in interactive plav

with a peer. JA 178; 184. The team, including Mr.

Winkelman, signed the front page of the IEP under the

heading “IEP Review 5/6/03” indicating the IEP was

reviewed on that date. JA 469.

During the May) 6" meeting, the team also

addressed whether Jacob was eligible for extended

school year (“ESY”) services during the summer of

2003. The team agreed Jacob was eligible for ESY and

noted on the JEP that he would attend a summer

8

program offered at the Achievement Center. JA 473.

The IEP stated Jacob’s ESY program would be three

days per week, from 9:00 am until 2:00 pm, from July

1, 2003 through July 31, 2003. Jd. The IEP did not

indicate whether occupational, speech or music

therapy to be provided during the summer program or

any specific levels of service.* Jd.

2. Jacob’s Multifactored Evaluation Reveals

His Continued Eligibility Under The IDEA.

Jacob was transitioning from preschool to school-

age programming at the end of the 2002-2003 school

year. As a result, Parma completed an MFE to

determine his eligibility for services as a school-age

child. JA 146-47; 376. Jacob’s MFE demonstrated he

had made impressive gains during preschool in

academics, communication and motor skills. JA 376-

440. In addition to Jacob’s progress, his MFE also

noted his diagnosis of autism and identified continued

areas of need. JA 437-38. Based on this information,

_the team members from Parma and the Achievement

Center concluded Jacob was eligible for school-age

services under the IDEA. JA 440. Mrs. Winkelman

signed the MFE indicating her agreement with this

decision. JA 440.

Notably, Jacob’s MFE did not find that motor skills

were a significant need or even that he had deficits in

* This is contrary to Petitioners’ contention that“... the School

District agreed that Jacob needed occupational therapy during the

summer of 2003.” Pet. at 12. Because ESY was not an issue

before the IHO, the record is devoid of details about the program.

Pet. App. 98-100a.

9

this area.” Indeed, the assessments of Jacob’s motor

skills included in the MFE found them to be on par

with those of his same-age peers. Ms. Gerber’s

responses to the “Visual and Fine-Motor Skills” portion

of the Kindergarten Checklist indicated Jacob had

mastered the vast majority of the fine motor skills

necessary for kindergarten. JA 392. The only two

skills Jacob had not mastered were writing his last

name and assembling puzzles. Jd. On the Vineland

Adaptive Behavior Scales completed by Ms. Gerber,

Jacob’s motor skills were rated as “adequate” and

found to be “age appropriate.” JA 382-83.

Contrary to Petitioners’ assertions, Jacob’s MFE

did not “notle] that Jacob continued to need

occupational therapy services ....” Pet. at 4.° Indeed,

nowhere in the MFE did it state that Jacob should

continue with direct occupational therapy service. JA

437-38. Rather, the MFE stated Jacob would “benefit

from additional opportunities to practice fine-motor

skills and visua! perceptual tasks needed for school

and self-care.” JA 438 (emphasis added). The MFE

did not state whether this “practice” should occur via

direct occupational therapy services or as part of

Jacob’s activities in a kindergarten classroom.

The Petition also misrepresents the “Occupational

Therapy Final Summary” completed by Maria Llerena.

° Although the Petition would lead this Court to believe Jacob had

extensive needs in the area of motor skills, according to his MFE,

this simply was not the case.

© The Petition is rife with misstatements regarding the findings

and content of the MFE, only the most significant of which are

addressed here.

10

JA 350-51. Contrary to Petitioners’ statements, this

document was not a final summary of the fine motor,

sensory and self-care assessments conducted as part of

Jacob’s MFE. Pet. at 11-12. Indeed, it was not even

included in the MFE. JA 376-440. Rather, it is a

summary of Jacob’s gains in the areas of fine motor

skills, self-care skills and sensory processing skills

during his two years at the Achievement Center. JA

350.

Likewise, the Petition mischaracterizes testimony

from Jacob’s teacher, Ms. Gerber. Contrary to

Petitioners’ assertions, Ms. Gerber did not testify that

Jacob “. . . was only at the beginning stages of

developing those skills, and he needed additional

occupational therapy to develop them fully.” Pet. at 4

(citing JA 186). Rather, she testified:

He was definitely making progress. As for as

my goals, he made great progress, and I even

note, looking on here, a lot of his OT ones, there

was progress.

JA 186. Notably, this testimony was not in response

to a question about Jacob’s motor skills or the need for

occupational therapy. Rather, it was in response toa

general question about Jacob’s overa!l progress. Id.

Moreover, Ms. Gerber was not Jacob’s occupational

therapist and, contrary to Petitioners’ assertions, did

not make any recommendations’ regarding

occupational therapy.

1]

3. Parma Prepares For Jacob’s Transition To

Kindergarten By Observing Jacob And

Meeting With His Preschool Teachers.

In preparation for Jacob’s transition from preschool

to kindergarten, on May 21, 2003, Kim Tomco, a

Parma special education teacher, and Michelle Munici,

a Parma. speech/language pathologist (“SLP”),

observed Jacob at the Achievement Center. Ms. Tomco

and Ms. Munici spent a morning watching Jacob

interact with adults and peers and talking to his

teacher, classroom assistants and SLP. JA 249-50;

324-29. Ms. Tomco and Ms. Munici also observed

Jacob work through various centers both one-on-one

and in small groups. JA 252; 324-29. In speaking to

Ms. Gerber, Ms. Tomco and Ms. Munici learned that

Jacob behaved more appropriately when he was paired

with more appropriate peers; that he had a tendency

to pick on lower functioning students; that he was

verbal and enjoyed being around people; that he

needed high motivators to stay on task; that he was

able to generalize skills; and that his academic skills

were at grade level. JA 520-22.

4. Parma Proposes An IEP For The 2003-04

School Year.

Armed with information from the Achievement

Center, Ms. Toamco, Ms. Munici, and Ms. d’Aliberti,

another Parma special education teacher, developed a

draft IEP.’ JA 161; 253; 330-31. The draft was

’ The Petition characterizes the 2003-04 IEP as “predetermined”

and contends Petitioners’ input was not considered. Pet. at 6.

However, as Petitioners failed to raise the predetermination issue

12

developed based on observations of Jacob, discussions

with his teacher and SLP, and review of data relating

to Jacob’s progress. Jd. It was also based on Jacob’s

most recent IEP from the Achievement Center and

incorporated suggestions provided by the Achievement

Center staff.2 JA 330-31.

This proposed IEP was_ shared with

Mrs. Winkelman and the other members of Jacob’s

IEP team ata June 2, 2003 IEP meeting. JA 322. The

proposed IEP included six hours/day of instruction in

a special education classroom; 60 minutes/week of

speech therapy; an occupational therapy assessment;

and accommodations such as a picture schedule and a

reinforcement system. JA 254-56; 330; 477-87.

Notably, the IEP specifically stated the purpose of the

occupational therapy assessment was “to determine

school setting Occupational Therapy goals and

treatment plan.” JA 478. Further, the “summary of

special education services” section of the IEP includes

“occupational therapy”? JA 487.

before the 1HO, the District Court held it lacked jurisdiction to

address the issue. Pet. App. 13-14a. The District Court went on

to note that although Parma had not had an opportunity to defend

against this allegation “.. . the administrative record does not

support an allegation of predetermination.” Pet. App. 14a.

* All of this uncontroverted testimony is contrary to Petitioners’

accusation that the educators who developed Jacob’s draft IEP

were “oblivious to Jacob’s actual needs.” Pet. at 6.

* These statements are contrary to Petitioners’ assertion that the

IEP contained “no commitment to provide any occupational

therapy.” Pet. at 6.

13

Based on a review of Jacob’s records and

information shared by Ms. Gerber, Ms. Tomco and Ms.

Munici, Jacob’s IEP team, with the exception of Mrs.

Winkelman, believed Jacob’s least restrictive

environment (“LRE”) was a= special education

classroom at Pleasant Valley Elementary School. JA

487. Mrs. Winkelman signed the IEP, giving consent

for the initiation of the special education services in

the IEP, but noting her disagreement with the LRE.”®

Id. Notably, this was the only area of the IEP with

which Mrs. Winkelman expressed disagreement.

Id. Mrs. Winkelman did not disagree with the

occupational therapy assessment or any other element

of the IEP. Jd. In accordance with IDEA, Parma

provided Mr. and Mrs. Winkelman with prior written

notice regarding the sole area of disagreement — LRE.

JA 514-15.

C. Summary of Proceedings Below

On June 2, 2003, Petitioners filed a request for due

process pursuant to 20 U.S.C. § 1415(b)(6) alleging the

IEP offered by Parma for the 2003-04 school year did

not offer Jacob a FAPE. JA 353. Specifically,

Petitioners challenged Parma’s proposed public school

placement at Pleasant Valley Elementary School

(“Pleasant Valley”). Petitioners unilaterally placed

Jacob at Monarch School, a private school for children

with autism, and sought reimbursement from Parma

for Jacob’s tuition. Pev. App. 36a; 85a.

'° Contrary to Petitioners’ assertion, no one “demanded” that

Mrs. Winkelman sign the document, nor do Petitioners offer

citation to the record in support of this statement.

14

Impartial Hearing Officer (IHO) Joy Freda was

appointed by the Ohio Department of Education to

preside over the hearing. After a four-day due process

hearing, on February 20, 2004, IHO Freda issued a 56

page opinion finding in favor of Parma. Pet. App. 966.

IHO Freda concluded that (1) Pleasant Valley was an

appropriate placement for Jacob and (2) the

Winkelmans were not entitled to reimbursement for

Jacob’s tuition at Monarch. Pet. App. 217-219a.

Petitioners appealed and, on June 2, 2004, in a 44 page

decision, State Level Review Officer (“SLRO”) Theresa

Hagan affirmed IHO Freda’s decision in its entirety.

Pet. App. 89a-92a.

On July 15, 2004, the Winkelmans appealed this

administrative decision to the United States District

Court for the Northern District of Ohio."’ On March

2, 2005, the Winkelmans filed a “Brief in Support of

Plaintiffs’ Complaint, Motion for Summary Judgment,

Motion to Supplement Record.” Parma filed a Motion

for Judgment on the Administrative Record on March

17, 2005. On June 2, 2005, the District Court granted

Parma’s Motion and upheld the decisions of the IHO

and SLRO. Pet. App. 4a.

On July 1, 2005, Petitioners appealed this decision

to the United States Court of Appeals for the Sixth

Circuit. Petitioners took an interlocutory appeal to

4

+

" Petitioners originally sought an injunction designating Monarch

School as Jacob’s stay-put placement at Parma’s expense. The

District Court denied this request and Petitioners filed an

interlocutory appeal. On January 25, 2006, the Sixth Circuit

affirmed the District Court’s denial of Petitioners’ request for

injunctive relief. Winkelman v. Parma City Sch. Dist., 166 Fed.

Appx. 807 (6th Cir. 2006).

15

this Court on the issue of whether they could proceed

pro se in federal court under the IDEA on Jacob’s

behalf. This Court held Petitioners could proceed pro

se in the Sixth Circuit on their own behalf and on

behalf of their son. Winkelman v. Parma City School

District, 550 U.S. 516 (2007). However, when the case

was remanded to the Sixth Circuit for adjudication on

the merits, Petitioners proceeded through counsel.

After briefing and oral argument, on October 2, 2008,

the Sixth Circuit held Parma offered Jacob a FAPE.

Pet. App. 1-3a. Petitioners remain represented by

counsel with respect to this Petition.

REASONS FOR DENYING THE PETITION

I. The Issue Raised By Petitioners Was Not

Raised Below.

The Petition must fail as the issue Petitioners urge

this Court to review was not raised below. It is well

settled that this Court does not review issues that

were not raised below save for extraordinary

circumstances. “It is only in exceptional cases coming

here from the federal courts that questions not pressed

or passed upon below are reviewed.” Duignan uv.

United States, 274 U.S. 195, 200 (1927) (citations

omitted). See also Pennsylvania Dep't of Corrections v.

Yeskey, 524 U.S. 206, 221 (1998) (“Where issues are

neither raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider

them.”); Adickes v. S. H. Kress & Co., 398 U.S. 144,

147, n. 2 (1970).

After nearly six years of litigation, Petitioners

allege, for the first time, that the testimony of

occupational therapist Julie Peacock constituted

16

extrinsic evidence that should not have been

considered. Pet. at 14-15. Petitioners’ failure to raise

this issue below is inexplicable as the IHO’s reliance

on Ms. Peacock’s testimony was clearly set forth in her

opinion. Specifically, the IHO relied on Ms. Peacock’s

reasons for choosing to assess Jacob’s occupational

therapy needs at the start of the 2003-04 school year

instead of “recycling” his previous goals. Pet. App.

204-209a. The THO concluded the inclusion of an

occupational therapy assessment instead of goals did

not deny Jacob a FAPE. 7d.

Petitioners appealed this decision to a State Level

Review Officer but did not argue the IHO erred by

looking outside the “four corners” of the IEP or by

relying on Ms. Peacock’s testimony.’* Pet. App. 50a.

Nor did Petitioners raise this issue when they

appealed the SLRO’s decision to the District Court. As

the District Court stated:

The issue is whether or not a guarantee to

assess Jacob for occupational therapy as

opposed to setting forth specific goals and

objectives constitutes a substantive violation

and denies Jacob a FAPE.

Pet. App. 16a. Nowhere in its opinion does the District

Court address the extrinsic evidence/four corners issue

Petitioners now assert. Rather, the District Court

looked to what was actually contained in the IEP — not

what could have been included as Petitioners contend

'? Notably, none of the five assignments of error raised by

Petitioners to the SLRO addressed occupational therapy. Pet.

App. 50a.

17

— and concluded the absence of occupational therapy

goals did not deny Jacob a FAPE. Pet. App. 22a.

When Petitioners appealed this decision to the

Sixth Circuit, they once again did not raise the

extrinsic evidence/four corners issue. Petitioners’

assignment of error with respect to the District Court’s

occupational therapy finding states:

Whether the district court erred in finding that

the related services provided in_ the

Individualized Education Plan offered by the

Parma City School District for the 2003-04

school year offered Jacob Winkelman a free

appropriate public education in accordance

with the Individuals with Disabilities Education

Act.

Appellants’ Final Brief (Filed February 22, 2008). Nor

is the extrinsic evidence/four corners issue recognized

by the Sixth Circuit in the portion ofits opinion setting

forth the issues on appeal. Pet. App. 2a.

As the record demonstrates, the _ extrinsic

evidence/four corners issue Petitioners ask this Court

to review was not raised below. Nor do Petitioners

point to any extraordinary circumstances that would

justify this Court departing from its usual practice of

refusing to consider issues raised for the first time.

Thus, the extrinsic evidence/four corners issue is not

properly before this Court.

18

II. The Sixth Circuit’s Decision Does Not Create

A Circuit Split.

A. The Cases Cited By Petitioners Are

Factually Distinguishable.

Even if the extrinsic evidence/four corners issue

was properly before this Court, Petitioners’ attempt to

create a circuit split on this issue fails. None of the

cases relied upon by Petitioners are factually

analogous to the instant case. Specifically, in each of

the cases cited by Petitioners, the courts determined

they could not consider services not offered in the

IEP but testified to at hearing when determining

whether the IEP offered a FAPE. This is a very

different issue than the one presented in this case —

whether Ms. Peacock’s testimony setting forth the

reasons for providing the occupational therapy

assessment, which was offered in the IEP, could be

considered in determining whether the IEP offered

Jacob a FAPE.

In Union School District v. Smith, 15 F. 3d 1519,

1525 (9th Cir. 1994), the hearing officer and district

court concluded the program offered to an autistic

student via a written offer did not meet his needs and

ordered reimbursement for the program selected by

the parents. The school district argued it had another

program available which was not formally cffered

because the parents expressed unwillingness to

consider it as a placement. Jd. The issue before the

appellate court was “whether the District was required

to make a formal offer under the IDEA.” Jd. The court

held the school district was required to make a

“formal, written offer” to the parents to give them the

19

opportunity to consider the program being proposed.

Id. at 1526.

Similarly, in County School Board of Henrico

County v. Z.P., 399 F. 3d 298, 302 (4th Cir. 2005), the

parents requested that the school district provide their

son with a full time aide. This request was not

accepted or rejected; rather, the IEP noted the “team

did not refuse/reject this [request] however was unable

to determine time frame for training.” Jd. The

parents rejected the IEP and decided to leave their son

ata private school. Jd. After the parents rejected the

IEP, they were informally told an aide had been hired.

However, the Board never formally provided this

information, nor was the IEP amended to reflect the

services of a full time aide. Jd. On appeal, the school

district argued the hearing officer erred by failing to

consider the fact that an aide had been hired. /d. at

306, n. 5. The court concluded the hearing officer

“properly focused on what was actually contained in

the written [EP when determining the appropriateness

of that IEP.” Id.

This issue was also addressed in Sytsema uv.

Acaazgmy School District No. 20, 538 F. 3d 1306 (10th

Cir. 2008). In Sytsema, the schoo] district made a

verbal offer to increase services to a student at an

informal meeting and did not amend the IEP to

include this offer. Jd. at 1310. The school district

argued the court sheuld consider both the written IEP

and the verbal offer. 7d. at 1315. The court rejected

this argument, holding that courts should only

consider the services offered in the written IEP. 7d.

None of the cases cited by Petitioners are analogous

to the instant case. Here, unlike Smith, Z.P., and

20

Sytsema, Parma made a “formal offer”, via a written

IEP, and did not ask the lower courts to consider

services that were not included on the IEP. Rather,

Parma asked the lower courts to conclude that, given

Jacob’s specific circumstances, the provision of an

occupational therapy assessment in the IEP, as

opposed to specific occupational therapy goals, was

appropriate and provided a FAPE.

To support its argument, Parma offered the written

IEP, bolstered by testimony from Julie Peacock, the

occupational therapist who authored the occupational

therapy component of the IEP. JA 273. In her

testimony, Ms. Peacock explained why she had

included the occupational therapy assessment in the

IEP instead of occupational therapy goals.

I said I would evaluate him at the beginning of

the school year, and that if the parents wanted,

we would do — one of the parents’ concerns was

that there were not sensory things put into the

current [Achievement Center] IEP. It was

stated that we couldn’t determine what should

go into his IEP for sensory until we figured out

what his sensory needs were. This [Pleasant

Valley] was a new environment, and we weren’t

sure how he was going to transition. So, there

was no point in putting that in until we knew

how he did in the beginning and figured out how

to modify the environment for him.

JA 274. M«:. Peacock went on to explain that she could

not simply use the information from the Achievement

Center because:

21

It’s a different place, new school; different

environment, and this is very typical; that we

think it’s best to do it when we get to know the

child a little bit and he as been here for a while

and we see how he is actually doing and what

problems he is having.

JA 274. Ms. Peacock also testified she was not

comfortable simply using the occupational therapy

goals from the Achievement Center because:

... they were things like tying his shoes which

at 5 to 6, you should be working on, but he

shouldn't actually quite know how to do it yet.

It would be good if he could. Cutting out

squares and things like that, I really wanted to

see where he was at before I put on goals. He

might need harder goals, and I really wanted to

look at where the problems were accruing

instead of just putting on a goal. If it wasa

sensory problem we needed to attack it from

more of a sensory issue and not jus¢ cutting on

a line.

JA 273. This testimony was credited by IHO Freda

who stated:

Julie Peacock was a vibrant woman who exuded

pride in her profession and in her ability to

perform its duties capably. It was clearly her

intent to establish the current levels of

performance of the child within the scope of his

new environment at Pleasant Valley

Elementary School... She also made salient

points with respect to certain areas addressed

in the occupational therapy objectives of his

22

2002-2003 IEP. Ms. Peacock stated it was not

uncommon for a child of his approximate age or

grade leve] to require assistance with shoe tying

and cutting out shapes. ... While it would be

simple to recycle a goal not yet mastered in the

prior IEP and incorporate that goal into the

proposed IEP, Ms. Peacock’s preference was to

address problems that occurred directly as a

result of his disability, as opposed to age-related

challenges.

Pet. App. 205-206a.

Consideration of this testimony, which explained

Ms. Peacock’s reasons for including the occupational

therapy assessment in the IEP document, did not

violate or implicate the “four corners” rule set forth in

Smith, Z.P., and Sytsema. Asis clear from the record,

Parma did not ask the IHO to consider services that

were not included on the IEP. Indeed, the written IEP

included “occupational therapy” in the summary of

services and an explanation that the occupational

therapy assessment was “to determine school

setting Occupational Therapy goals and

treatment plan.” JA 478; 487. (emphasis added).

The IHO was asked to consider whether the lack of

occupational therapy goals and objectives denied Jacob

a FAPE in light of the statements in the IEP and Ms.

Peacock’s explanation of the team’s decision to include

an occupational therapy assessment. Therefore, the

Sixth Circuit’s decision, affirming the District Court’s

finding that the lack of occupational therapy goals did

not deny Jacob a FAPE, is not in conflict with the

cases cited by Petitioners and does not create a circuit

sphit.

23

B. Petitioners Cannot Bring This Case In

Line With Smith, Z.P., and Sytsema By

Relying On The District Court’s “Implied”

Conclusion.

Petitioners attempt to bring this case into line with

Smith, Z.P., and Sytsema by contending the District

Court relied on extrinsic evidence “in support of its

conclusion that goals and objectives would be written,

and his (implied) conclusion that the school district

was in fact offering OT services as part of Jacob’s

program.” Pet. at 14-15 (emphasis added). There is no

evidence, however, that the District Court reached a

conclusion, implied or otherwise, about whether goals

and objectives would be written.'* Rather, as the

District Court’s opinion makes clear, the court

understood no goals were included in the proposed

IEP.

The parties agree that Jacob’s 2003-04 IEP did

not contain specific goals and objectives for

occupational therapy. Instead, it guaranteed to

assess Jacob for occupational therapy and

mandated that such assessment be completed

within thirty days of the new school year.

Pet. App. 15-16a.

Given this fact, the legal issue set forth by the

District Court was “whether or not a guarantee to

'S If the District Court did reach this (implied) conclusion, it is

fully supported by the statement in the IEP regarding the purpose

of the occupational therapy assessment and inclusion of

occupational therapy in the summary of services. JA 478; 487.

24

assess Jacob for occupational therapy as opposed to

setting forth specific goals and objectives constitutes a

substantive violation and denies Jacob a FAPE.” Pet.

App. 16a. On this issue, the court concluded “the lack

of goals and objectives for occupational therapy only

constitutes a procedural technical violation of the

IDEA and not reversible error.” Pet. App. 22a. Thus,

there is no “implied” finding by the District Court that

would bring this case in line with Smith, Z.P., and

Sytsema. Nor would it be appropriate to grant

certiorart based on a circuit split created by an

“implied” finding by the lower court.

C. Petitioners’ Representation Of Current

Sixth Circuit Law Is Incorrect.

Petitioners’ reliance on Doe v. Defendant I, 898 F.2d

\ 1186 (6th Cir. 1990) and Cleveland Heights-University

Heights City School District v. Boss, 144 F.3d 391 (6th

Cir. 1998) in support of the proposition that in the

Sixth Circuit “whether an IEP should be evaluated

within its four corners or not seems to boil down to a

fact-specific analysis” is misplaced. Pet. at 15

(emphasis in original). Both Defendant I and Boss

dealt with IEPs that were missing information. In

Defendant I, the court held the missing information

did not deny the student a FAPE and constituted a

technical procedural violation. Defendant I, 898 F. 2d

at 1191. In Boss, the court concluded that the missing

information “went to the heart and substance of the

plan” and its absence denied the student a FAPF.

Boss, 144 F. 3d at 399. In both cases, the court looked

to the actual contents of the IEP — not outside offers —

when making a decision. The fact specific aspect of the

inquiry was whether the missing information was

substantial enough to constitute a denial of FAPE.

25

Thus, neither Defendant I nor Boss_ supports

Petitioners’ circuit split argument.

Ill. The Position Advocated By Petitioners

Does Not Comport With The IDEA’s

Statutory Scheme.

The “four corners” theory Petitioners urge this

Court to adopt is nonsensical when considered in light

of the IDEA’s statutory scheme. The IDEA provides

both parties in a due process hearing with certain

rights — including the right to present evidence and

confront, cross-examine, and compel the attendance of

witnesses. 20 U.S.C. § 1415(h). In this case, one of the

witnesses called was Ms Peacock — the therapist

responsible for drafting the occupational therapy

component of the [EP. As discussed above, Ms.

Peacock testified about her reasons for including an

occupational therapy assessment in the IEP instead of

goals and objectives given Jacob’s_ specific

circumstances and needs.

Petitioners argue Ms. Peacock’s’ testimony

constitutes extrinsic evidence that should not have

been considered. Under Petitioners’ theory, testimony

from a member of an IEP team regarding the

reasoning behind IFP team decisions is_ not

appropriately before a hearing officer or court. This

testimony, however, is vitally important because the

IEP itself does not set forth the reasoning behind team

decisions regarding the content of the IEP. 20 U.S.C.

§1414(d)(1)(A)() (setting forth required components of

an IP). Decisions regarding the appropriateness of a

child’s IEP are simply too important to be based on

only a portion of the avatlabie information. This is

why the statutory mght to present evidence and

26

confront, cross-examine and compel the attendance of

witnesses exists. A rule that does not permit

consideration of this evidence completely undermines

these rights.

Moreover, application the “four corners” theory in

the manner urged by Petitioners would completely

abrogate the necessity of a due process hearing — one

of the fundamental procedural safeguards provided by

the IDEA. 20 U.S.C. § 1415(b)(6). If Petitioners’

theory had been applied in this case, the IHO would

simply have read the [EP and decided, based on the

face of the document, whether it provided a FAPE. No

hearing or testimony would have been necessary.

Under this approach, however, the IHO would not

have had the benefit of Ms. Peacock’s expertise

regarding the challenges of moving an autistic student

to a new school environment. Nor would the IHO have

heard about the parents’ concerns regarding Jacob’s

sensory issues. There is simply no reason to deprive

hearing officers and courts of vital information such as

this. Moreover, doing so does not comport with IDEA’s

purpose or statutory scheme.

IV. ThelInclusion Of An Occupational Therapy

Assessment Instead Of Goals And

Objectives Did Not Deny Jacob A FAPE.

This case is not an appropriate vehicle for certiorari

because even if this Court concluded the lower courts

erred in looking outside the “four corners” of the JEP,

it would not change the outcome of this case. See The

Monrosa v. Carbon Black Export, Inc., 359 U.S. 180,

184 (1959) (“While this Court decides questions of

public importance, it decides them in the context of

meaningful litigation. Its function in resolving conflicts

27

among the Courts of Appeals is judicial, not simply

administrative or managerial.”). Here, Petitioners

argued the inclusion of an occupational therapy

assessment instead of occupational therapy goals and

objectives denied Jacob a FAPE. As the party

challenging the IEP, Petitioners bore the burden of

proof on this issue. Schaffer v. Weast, 546 U.S. 49

(2005). They have not carried this burden, nor could

they even if this Court adopted the “four corners”

theory they urge.

There is no evidence that the provision of an

occupational therapy assessment, as opposed to the

inclusion of goals and objectives, denied Jacoba FAPE.

Rather, as the District Court concluded, the absence of

goals and objectives in this area constituted a

procedural violation. Pet. App. 22a. “[A] procedural

violation of the IDEA is not a per se denial of FAPE

...3 rather, a school district’s failure to comply with

the procedural requirements of the Act will constitute

a denial of FAPE only if such violation causes

subsiantive harm to the child or his parents.”

N.L. v. Knox City Schs., 315 F.3d 688, 693 (6th Cir.

2003) (citation omitted) (emphasis added).

Substantive harm occurs when the child is deprived of

an IEP, or when the procedural violation causes the

loss of educational opportunity. Berger v. Medina City

Sch. Dist., 348 F.3d 513, 520 (6th Cir. 2003) (citation

omitted).

Here, there is no evidence of substantive harm.

Occupational! therapy is a related service designed to

28

support a student’s special education program. 34

C.F.R. § 300.34(a). The IDEA imposes no obligation to

provide a related service unless it is “required to assist

a child with a disability to benefit from special

education.” Neely v. Rutherford Cty. Sch., 68 F.3d 965,

969 (6th Cir. 1995). See also Irving Indep. Sch. Sys. v.

Tatro, 468 U.S. 883, 894 (1984). Petitioners presented

no evidence that Jacob could not benefit from the

special education services in his IEP without

occupational therapy goals and objectives.

It is well documented that occupational therapy

was not Jacob’s greatest area of need. To the contrary,

as Jacob’s MFE demonstrated and the [HO noted,

“Jacob [was] age appropriate with respect to the

majority of the motor skills required for kindergarten

readiness as defined by various of the witnesses at

hearing and as set forth on the TEACCH checklist.”

Pet. App. 207-208a (emphasis added). Indeed, the

shoe tying and other occupational therapy goals Jacob

worked on at the Achievement Center focused on skills

he was not expected to have mastered given his age.

JA 273. Given these undisputed facts, there is no

evidence that the inclusion of an occupational therapy

assessment, rather than occupational therapy goals,

denied Jacob a FAPE.

As a decision from this Court regarding the “four

corners” theory urged by Petitioners will not impact

the outcome of the case, this case is a poor vehicle for

certiorart.

'* Assessments, such as the occupational therapy assessment

included in the IEP, also constitute related services. 34 C.F.R.

§ 300.34(a).

29

CONCLUSION

For all of the foregoing reasons, the Petition for a

Writ of Certiorari should be denied.

Respectfully submitted,

Christina Henagen Peer

(Counsel of Record)

SQUIRE, SANDERS & DEMPSEY LLP

4900 Key Tower

127 Public Square

Cleveland, Ohio 44114

Phone: (216) 479-8500

Fax: (216) 479-8780

May 29, 2009