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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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No. 08-1089 | Sus SA" GLnK

Jn Whe
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0233%3A2. Public record. Not legal advice.