Appendix — Houston Independent School District v. V. P. ex rel. Juan P.

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20817

[Filed September 9, 2009]

HOUSTON INDEPENDENT SCHOOL DISTRICT

Plaintiff - Appellee-Cross-Appellant

v.

VP by next friend, Juan and Sylvia P

Defendant - Appellant-Cross-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CV-1686

ON PETITION FOR REHEARING

(Opinion 4/23/09, 5th Cir., 566 F.3d 459)

Before BENAVIDES, SOUTHWICK, and HAYNES,

Circuit Judges. LESLIE H. SOUTHWICK, Circuit

Judge:

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No member of the panel nor judge in regular active

service of the court having requested that the court be

polled on Rehearing En Banc (Fed. R. App. P. and 5th

Cir. R. 35), the Petition for Rehearing En Banc is

DENIED. We also deny Panel Rehearing but withdraw

our prior opinion, issued on April 23, 2009, and

substitute the following.

The Houston Independent School District (HISD)

initiated the present action in the district court as an

appeal of an administrative decision that HISD had

denied a child a free appropriate public education. The

relevant statute is the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. § 1400 et seq.

Reimbursement for a year of private school placement

was awarded. The district court affirmed the decision.

The court denied reimbursement for the private school

placement during a second school year that occurred

during the pendency of the proceedings. Both parties

were aggrieved and appeal. We AFFIRM as to the

reimbursement for the first school year, REVERSE

and RENDER as to the second year, and REMAND for

further proceedings as to attorney’s fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

The child whose needs are at the center of this

dispute is referred to as V.P. to protect her privacy. At

the time of the administrative hearing, V.P. was an

eight-year-old student within the jurisdictional

boundaries of HISD. V.P. qualified as a child with a

disability entitled to receive special education services

under the IDEA due to her auditory and speech

impairments. HISD first identified V.P. as a child

eligible for special education when she was four years

old. Accordingly, HISD placed V.P. in the Preschool

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Program for Children with Disabilities at Garden Oaks

Elementary. It developed an individualized education

plan (IEP) to address her language delays. After three

weeks at Garden Oaks, V.P.’s mother obtained a

transfer for her daughter to Wainwright Elementary

School, where V.P.’s mother was employed. V.P.

remained in a regular education, pre-kindergarten

classroom at Wainwright Elementary for the

remainder of the 2001-2002 school year.

A. 2002-2003 School Year

In 2002, V.P. began kindergarten in a regular

education classroom at Wainwright. In October 2002,

an Admission, Review, and Dismissal Committee (“IEP

Committee” or “Committee”)’ met to develop an IEP

for V.P.’s kindergarten year. The [EP Committee

continued the identification of V.P. as a child with a

speech impairment and approved two hours per week

of speech therapy, along with classroom modifications.

In the spring of 2003, V.P.’s parents obtained hearing

aids for V.P., including a pair of loaner hearing aids in

February 2003 and her own custom aids in May 2003.

‘ In Texas, those who prepare an IEP are known as an

Admissions, Review, and Dismissal Committee.

Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245,

247 (5th Cir. 1997). The IEP Committee includes the parents of

the child with a disability, at least one of the child’s regular

education teachers, at least one special education teacher, a

qualified representative of the school district (the local

educational agency), an individual who can interpret “the

instructional implications of evaluation results,” other individuals

who have knowledge or special expertise regarding the child

(included at the discretion of the parent or agency), and, when

appropriate, the child with a disability. 20 U.S.C. § 1414(dX1XB);

see also Michael F., 118 F.3d at 247.

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In May 2003, V.P.’s LEP Committee met to evaluate

V.P.’s progress under her current IEP and to prepare

for the next school year. The Committee considered

whether V.P. had a hearing impairment that would

qualify her for special education services as a student

with an auditory inipairment. Finding that she did, it

developed an IEP for audiological management for the

2003-2004 school year recommending that V.P. remain

in a regular education classroom with modifications

and teaching strategies designed to accommodate her

hearing impairment. The Committee continued V.P.’s

identification as a child with a speech impairment and

continued two hours of speech therapy per week.

Additionally, in May 2003, V.P. was provided with an

FM loop system in her classroom for the last week of

her kindergarten year.

B. 2003-2004 School Year

In October 2003, which was six weeks into V.P.’s

first-grade year, her IEP Committee was convened to

review her IEP in light of concerns expressed by V.P.’s

mother and also by her classroom teacher, Ms.

Williams, regarding V.P.’s academic performance and

progress and whether a more restrictive educational

placement was needed. The Committee continued

V.P.’s identification as a child with auditory and

speech impairments. The Committee further

determined that V.P. should remain in a regular

education classroom, but it approved the

implementation of additional special education

services and modifications within the regular

education setting, including in-class support, frequent

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breaks, content mastery,’ and speech therapy. In

addition to other recommendations, it requested

additional testing, including a new audiological

evaluation, new achievement testing, and an

observation by an auditory impairment specialist.

The [IEP Committee met again in January 2004 to

discuss V.P.’s progress and the results of the

additional testing. The-Committee continued V.P.’s

classification as a child with auditory and speech

impairments. She would remain in the regular

education classroom. The Committee continued V.P.’s

placement in two hours of speech therapy per week

and approved additional classroom modifications,

including amplification, visual cues, having the

teacher try to face V.P., preferential classroom seating,

and questioning to check understanding. The

Committee also developed an IEP to address V.P.’s

language and listening skills. Under this IEP, an

itinerant teacher for the auditory-impaired was to

work with V.P. for one hour per week. Additionally,

the Committee incorporated Earobics computer

software as a special education service to address

V.P.’s auditory-processing weakness.* The Committee

requested a new speech and language assessment.

In May 2004, V.P.’s IEP Committee met to evaluate

V.P.’s progress and consider her placement for V.P.’s

? Content mastery is a special education service in which students

obtain additional assistance or modifications from a special

education teacher outside of the general education classroom.

* Earobics is a computer software program that helps children

develop phonological awareness and auditory processing tools,

which serve as foundational skills for learning to read.

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second-grade year, starting that fall. The Committee

continued V.P.’s identification as a child with auditory

and speech impairments. It then developed an [EP for

the remainder of the 2003-2004 school year and the

full 2004-2005 school year. For 2004-2005, which was

V.P.’s second-grade year, the Committee recommended

that V.P. remain in a regular education classroom with

special education and related services similar to those

provided during the prior school year, including two

hours per week of speech therapy, one hour per week

with the itinerant teacher for the auditory-impaired,

amplification, visual cues, teacher facing student,

preferential classroom seating, and questioning to test

understanding. V.P.’s mother disagreed with the

proposed IEP for 2004-2005 and indicated that she

wished to withdraw V.P. from HISD and place her in

a private institution. The Committee held a “recess

meeting” in an effort to resolve the situation, but V.P.’s

parents ultimately decided to withdraw V.P. one week

before the end of the 2003-2004 school year.

C. 2004-2005 School Year

In September 2004, V.P.’s parents enrolled V.P. in

a kindergarten/first-grade class at the Parish School,

a private school fur children with language-learning

disabilities. At the Parish School, V.P. was in a small

classroom with ten students, a teacher, and an

assistant teacher. Through the Parish School, V.P. also

worked with the Carruth Center, which provided

language services to Parish School students. V.P.

received ten hours of group speech/language therapy

per week. Speech pathologists provided therapy

addressing V.P.’s receptive and expressive language

skills. V.P. also received phonemic awareness training,

auditory memory training, and gap-detection training

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through the Fast ForWord computer program.

Additionally, the Parish School attempted to minimize

V.P.’s exposure to ambient noise whenever possible in

an effort to promote noise desensitization. V.P.’s

Parish School curriculum also included sequencing

exercises to improve her auditory-processing skills.

In addition to the 2004-2005 school year, V.P.

remained at the Parish School for the 2005-2006 school

year during the district court’s review of the hearing

officer’s decision. No issues regarding later years are

raised.

D. Procedural History

In August 2004, V.P.’s parents requested a special

education due process hearing before the Texas

Education Agency to address whether HISD failed to

provide V.P. with a free appropriate public education,

failed to develop or implement IEPs reasonably

calculated to provide V.P. with educational benefit,

and failed to consider an appropriate placement for

V.P. The Texas Education Agency hearing officer held

a due process hearing in December 2004 and issued a

decision in February 2005. The hearing officer

concluded that V.P. has extensive language

development and auditory-processing problems

stemming from sensory hearing loss and an

auditory-processing disorder. The hearing officer found

that V.P. requires auditory training, memory training,

phonemic awareness training, noise desensitization,

sequencing ability training, gap-detection training,

onset-time training, visual instruction, and an FM loop

system to meet her educational needs. The hearing

officer conciuded that HISD failed to include many of

these necessary services in V.P.’s IEPs, including noise

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desensitization training, gap-detection training, and

sequencing training. Ultimately, the hearing officer

determined that HISD did not provide V.P. with a free

appropriate public education and that the Parish

School was an appropriate placement for V.P.

Accordingly, the hearing officer awarded V.P.’s parents

reimbursement for V.P.’s 2004-2005 placement at the

Parish School.

In May 2005, HISD appealed the hearing officer’s

decision to the district court. V.P. filed an answer and

counterclaim in June 2005, appealing the hearing

officer’s decisions on the issues for which she did not

prevail at the due process hearing. V.P.’s answer and

counterclaim did not specifically seek payment for

V.P.’s 2005-2006 placement at the Parish School. In

September 2005, during a Rule 16 scheduling hearing,

V.P. informed the court that she intended to introduce

evidence in addition to the administrative record for

the district court’s consideration on appeal.* Months

later, in June 2006, V.P. filed a motion to submit

additional evidence in which she indicated that she

intended to introduce reimbursement evidence

regarding the costs of V.P.’s placement at the Parish

School for the 2005-2006 school year.

In March 2007, the district court granted partial

summary judgment in V.P.’s favor. The court affirmed

the hearing officer’s determination that HISD failed to

* The IDEA provides that a court reviewing a state hearing

officer’s decision “(i) shall receive the records of the administrative

proceedings; (ii) shall hear additional evidence at the request of a

party; and (iii) basing its decision on the preponderance of the

evidence, shall grant such relief as the court determines is

appropriate.” 20 U.S.C. § 141&(iX2Xc).

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provide V.P. with a free appropriate public education,

failed to develop educationally beneficial IEPs, and

failed to consider an appropriate placement for V.P. It

further affirmed the hearing officer’s decision that V.P.

is entitled to reimbursement for the 2004-2005 Parish

School placement. With respect to the 2005-2006

Parish School costs, the court refrained from

addressing that issue because: V.P. had not moved for

summary judgment on it.

The court then requested additional record

development regarding the appropriate amount of

reimbursement to be awarded. The parties stipulated

that $16,125.30 was the proper reimbursement for the

2004-2005 school year and the amount would also be

appropriate should reimbursement for the 2005-2006

placement be awarded. After the filing of cross motions

for summary judgment, the Court denied

reimbursement for the 2005-2006 school year.

V.P. now appeals, arguing that the district court

erred in failing to award reimbursement for V.P.’s

2005-2006 Parish School placement and the attorney’s

fees and costs expended in _ seeking’ such

reimbursement. HISD has filed a cross-appeal alleging

that the district court erred in concluding that it failed

to provide V.P. with a free appropriate public

education.

II. DISCUSSION

A. Free Appropriate Public Education

When a district court reviews a hearing officer’s

decision under the [DEA program, it receives the

records of the administrative proceedings and also

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takes additional evidence at the request of any party.

“Although the district court must accord ‘due weight’

to the hearing officer’s findings, the court must

ultimately reach an independent decision based on a

preponderance of the evidence.” Cypress-Fairbanks

Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th

Cir. 1997) (citations omitted); see also 20 U.S.C.

1415(iX2\(c); Bd. of Educ. of the Hendrick Hudson

Cent. Sch. Dist., Westchester County v. Rowley, 458

U.S. 176, 205-07 (1982). Thus, the district court’s

review is “virtually de novo.” Michael F., 118 F.3d at

252.

We, in turn, review a district court’s decision

concerning the propriety of a local school district’s IEP

and the need for an alternative placement de novo as

a mixed question of law and fact. Jd. “The district

court’s findings of underlying fact, such as findings

that a disabled student obtained educational benefits

under an IEP, are reviewed for clear error.” Id.

(citation omitted). The clear error standard of review

“precludes reversal of a district court’s findings unless

[the court is} left with a definite and firm conviction

that a mistake has been committed.” Jauch v. Nautical

Serovs., Inc. , 470 F.3d 207, 213 (5th Cir. 2006) (internal

quotation marks and citation omitted). The party

challenging the appropriateness of an IEP bears the

burden of demonstrating that the TEP and resulting

placement were inappropriate under the requirements

of the IDEA. Id. (citation omitted).

One of the primary purposes of the IDEA is to

ensure that children with disabilities receive a “free

appropriate public education that emphasizes special

education and related services designed to meet their

unique needs and prepare them for further education,

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employment, and independent living.” 20 U.S.C.

§ 1400(dX1XA). As “a local educational agency

responsible for complying with the IDEA as a condition

of the State of Texas’[s] receipt of federal education

funding,” HISD must “(1) provide each disabled child

within its jurisdictional boundaries with a ‘free

appropriate public education’ tailored to his unique

needs, and (2) assure that such education is offered . . .

in the least restrictive environment consistent with the

disabled student’s needs.” Michael F., 118 F.3d at 247

(citations omitted). These requirements are

implemented through HISD’s development of IEPs for

its disabled students. Id. Through a child’s IEP, HISD

must provide a “basic floor of opportunity” that

“consists of access to specialized instruction and

related services which are individually designed to

provide educational benefit to the [disabled] child.”

Rowley, 458 U.S. at 201. HISD need not provide its

disabled students with the best possible education, nor

one that will maximize the student’s educational

potential. Michael F., 118 F.3d at 247 (citing Rowley,

458 U.S. at 188-89). “Nevertheless, the educational

benefit to which the Act refers and to which an IEP

must be geared cannot be a mere modicum or de

minimis; rather, an IEP must be likely to produce

progress, not regression or trivial educational

advancement.” Jd. at 248 (internal quotation marks

and citation omitted). In short, HISD must provide its

students with “meaningful” educational benefit. Zd.

When a parent challenges the appropriateness of

an IEP, a reviewing court’s inquiry is twofold. The

court must first ask whether the state has complied

with the procedural requirements of the IDEA, and

then determine whether the IEP developed through

such procedures was “reasonably calculated to enable

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the child to receive educational benefits.” Rowley, 458

U.S. at 206-07. If the court finds that the state has not

provided an appropriate educational placement, the

court may require the school district to reimburse the

child’s parents for the costs of sending the child to an

appropriate private school or institution. Town of

Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S.

359, 369-70 (1985); Michael F., 118 F.3d at 248.

Reimbursement may be ordered only if it is shown

“that (1) an IEP calling for placement in a public

school was inappropriate under the IDEA, and (2) the

private school placement . . . was proper under the

Act.” Michael F., 118 F.3d at 248 (citations omitted).

HISD argues that the district court erred in

concluding that it failed to provide V.P. with a free

appropriate public education. Despite V.P.’s

disabilities, HISD asserts she was receiving a

meaningful educational benefit, including earning a

promotion from first to second grade under the same

standards that apply to non-disabled first graders.

HISD further contends that the IDEA does not require

it to provide V.P. with an education designed to

remediate her disability or to ensure optimal

performance, and it maintains that the district court

erred in concluding that it should have implemented

every aspect of the program recommended by V.P.’s

expert witness.

We have set out four factors that serve as

“indicators of whether an IEP is reasonably calculated

to provide a meaningful educational benefit under the

IDEA,” and these factors are whether “(1) the program

is individualized on the basis of the student’s

assessment and performance; (2) the program is

administered in the least restrictive environment; (3)

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the services are provided in a coordinated and

collaborative manner by the key ‘stakeholders’; and (4)

positive academic and non-academic benefits are

demonstrated.” Id. at 253; see also Adam J. ex rel.

Robert J. v. Keller Indep. Sch. Dist. , 328 F.3d 804, 810

(5th Cir. 2003). Both the hearing officer and the

district court found that all of these considerations

militated in favor of finding that HISD failed to

provide V.P. with a free appropriate public education.

We will deferentially review the district court’s fact

findings with respect to each of these factors. We will

also give de novo consideration to any legal issues that

arise under each.

1. Individualized program on the basis of V.P.’s

assessment and performance

The district court found that V.P.’s IEPs were not

sufficiently individualized to her needs. The court

pointed to these deficiencies: as of May 2004, more

than a year after V.P.’s IEP Committee recommended

an audiological evaluation, the evaluation still had not

been completed; V.P.’s IEPs were not specific enough

with regard to V.P.’s ‘auditory-processing or

audiological deficiencies because they lacked strategies

to assist with sequencing, gap detection, and noise

desensitization; although the Committee recognized

that V.P.’s most significant problems were speech and

language deficiencies due to hearing loss, it did not

integrate special education sessions with a teacher for

hearing-impaired students until January 2004; and

the Committee did not address problems that

developed with V.P.’s FM loop system in September

2003.

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HISD argues that each of the bases for the district

court’s finding are erroneous. Initially, it asserts that

a school district is not required to furnish every special

service necessary to maximize a child’s potential.

Consequently, HISD’s failure to provide V.P. with

sequencing training, gap detection, and noise

desensitization did not render V.P.’s IEP inadequate.

Instead, HISD maintains that these services were

programs suggested by V.P.’s expert witness to

remediate V.P.’s speech and auditory-processing

disorder, and the fact that HISD failed to provide

these services does not mean that V.P.’s needs were

not being addressed. HISD further maintains that it

should not be penalized for failing to include an

explanation concerning the problems with V.P.’s FM

loop system in the IEP Committee minutes. HISD

points out that the problem was caught and corrected,

and there is no requirement that the Committee’s

notes include all issues that arise on a day-to-day

basis.

V.P.’s TEP included several accommodations and

modifications to address her general speech and

auditory impairments, such as limited speech therapy

(two hours per week), visual cues, preferential

classroom seating, questioning to check

understanding, an FM loop system, content mastery

classes, and limited instruction by an itinerant teacher

for the auditory impaired (one hour per week).

However, these services failed adequately to address

V.P.’s distinct auditory-processing disorder.

V.P.’s expert witness, Dr. Ray Battin, a

neuropsychologist and audiologist, testified that he

performed an advanced audiological evaluation on V.P.

in October 2004. Battin’s evaluation revealed that V.P.

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has moderate to severe sensory hearing loss and

severe auditory-processing problems. To address these

problems, Battin explained that V.P. requires noise

desensitization, sequencing training, and gap-detection

work and that V.P.’s May 2004 IEP did not address

those needs. Battin noted that although the May 2004

IEP was good for V.P.’s expressive language delay

problems, it was inappropriate to address her

auditory-processing disorder. In fact, Battin testified

that V.P. needed a _ separate IEP for her

auditory-processing disorder.

In light of Battin’s testimony, we find no clear error

with the district court’s finding that noise

desensitization, sequencing training, and gap-detection

work were necessary to address V.P.’s_ specific

auditory-processing problems. Further, there was

evidence to support that they were not offered merely

as a means of maximizing her potential or making her

more competitive with the other members of her class.

Based on the valid fact-finding concerning what was

necessary to address her auditory needs, and applying

our de novo review, we accept that her IEP was

insufficiently individualized.

2. Program administered in the least restrictive

environment

The IDEA requires that children with a disability

be provided a free appropriate public education in the

least restrictive environment:

To the maximum extent appropriate, children

with disabilities . . . [should be] educated with

children who are not disabled, and speciai

classes, separate schooling, or other removal of

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children with disabilities from the regular

educational environment [should occur] only

when the nature or severity of the disability of

a child is such that education in regular classes

with the use of supplementary aids and services

cannot be achieved satisfactorily.

20 U.S.C. § 1412(aX{5XA).

The district court concluded that V.P.’s IEP did not

provide her with sufficient supplementary services to

be successful in the general education classroom. In

reaching this conclusion, the court explained that it

was not concerned with whether V.P. was

mainstreamed to the maximum extent possible;

instead, it was addressing whether V.P. was

mainstreamed beyond her capabilities. The court noted

several deficiencies in V.P.’s ability to benefit

satisfactorily from her education in the regular

classroom, including her failure to attend content

mastery training after the fall of 2003. There was

evidence that although V.P. paid attention to the

teacher’s portion of a lesson, she was unable to

participate in the group portion of a lesson. Further,

she could remain focused on her assignment only for

short periods of time without redirection. The court

also explained that V.P.’s FM system did not allow her

the benefit of class discussion. There is no record

evidence that the proposed solution to this problem

(having the teacher pass the microphone around the

class during discussion) was ever implemented. The

court also noted that when the loop component of the

system was unavailable, V.P.’s use of headphones

further limited her ability to hear her classmates and

participate in class discussions. Finally, the court

pointed out that after V.P. lost her hearing aids on the

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playground, she regularly took them off before going

out for recess. Nothing in the record suggests that the

IEP Committee attempted to address this problem

with V.P. or her parents. Thus, V.P. was restricted in

her ability to communicate and socialize with other

students during recess.

Without conceding the point, HISD maintains that

even if the district court was correct in finding V.P.’s

placement improper, the appropriate remedy would be

to require the school to provide additional

supplementary aids and services in the general

education environment or to allow V.P. to attend a

combination of regular and special education classes.

Additionally, HISD contends that because of the

nature of V.P.’s disability, exposure to the language

models of non-disabled peers is important to V.P.’s

progress.

V.P.’s regular education placement was certainly a

less restrictive environment than her Parish School

placement. However, the IDEA mandates that a child

be placed in the least restrictive environment in which

the child can achieve an appropriate education. See 20

U.S.C. § 1412(aX5XA). The IDEA’s strong preference

in favor of mainstreaming must “be weighed in tandem

with the Act’s principal goal of ensuring that the

public schools provide [disabled] children with a free

appropriate public education.” Daniel R.R. v. State Bd.

of Educ. , 874 F.2d 1036, 1044—45, 1048 (5th Cir. 1989)

(internal quotation marks and citation omitted).

Though HISD tried to accommodate V.P. in a

regular education classroom, the district court

concluded that V.P. was not receiving a meaningful

educational benefit from such placement. Although

SS

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exposure to the language models of V.P.’s non-disabled

peers is important, V.P.’s interaction with her peers

within the regular education classroom was

significantly limited. Under the FM loop system, only

V.P.’s teacher wore a microphone. Accordingly, V.P.

was not receiving amplification of her peers during

class and group discussions. Additionally, because V.P.

removed her hearing aids during recess, she was not

able to interact effectively with her peers during a

significant portion of her time outside of class. The

district court’s fact-finding regarding the difficulties

that arose due to her placement in the general

classroom, including that there were insufficient

supplemental services, is not clearly erroneous.

Applying a de novo review, we agree that V.P.’s IEP

failed to provide her with the least restrictive

environment appropriate to her condition.

3. Coordinated and collaborative services provided

by key stakeholders

The district court concluded that the services HISD

provided V.P. were not coordinated and collaborative.

The court explained that although V.P.’s IEP

Committee meetings were well attended and generally

included the key stakeholders, the participants failed

to communicate and collaborate outside of the

meetings. For example, the special education chair

never discussed V.P.’s progress with her classroom

teacher outside of the meetings, and V.P.’s classroom

teacher never discussed V.P.’s progress with V.P.’s

writing teacher or other school staff outside of the

Committee meetings. Furthermore, when V.P.’s

classroom teacher missed a meeting in January 2004,

the record does not reflect that anyone informed her of

the modifications made in that meeting, even though

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their implementation required the _ teacher's

involvement. Additionally, the special education chair

instructed V.P.’s classroom teacher to modify V.P.’s

regular tests and assignments, but no _ such

modifications were adopted by the Committee.

The district court also noted that the HISD staff

“struggled with training and followup.” The court

concluded that the one-page flyer provided to train

school staff on working with hearing-impaired

students was inadequate. Furthermore, the school

nurse who was assigned to maintain V.P.’s FM system

received little training and provided little training to

the other staff members. The nurse did not attend the

IEP Committee meetings and did not adequately

communicate with others to repair V.P.’s FM loop

system in a timely fashion. Finally, school staff did not

follow up on V.P.’s failure to attend content mastery

for more than two months or on an October 2003

Committee plan to try proposed modifications at

Wainwright for thirty days before revisiting the

possibility of placing V.P. in Sutton Elementary’s oral

deaf program.

HISD maintains that these isolated occurrences are

insufficient to show that it failed to implement

substantial or significant provisions of V.P.’s IEP, that

the services it provided were sufficient to confer an

educational benefit upon V.P, and that the district

court’s determination that it failed to implement the

content mastery provision of V.P.’s IEP is not

supported by the record evidence. According to HISD,

V.P.’s mother made the decision to prohibit V.P. from

attending content mastery, and it could not force her

to attend over her mother’s instructions to the

contrary. HISD further responds that the IEP

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Committee met multiple times during the school year

to discuss V.P.’s progress and adjust her program

accordingly, and that there was testimony from other

teachers indicating that they communicated frequently

about V.P., including testimony from V.P.’s classroom

teacher that she often talked with V.P.’s mother and

testimony from V.P.’s speech teacher that she worked

closely with all of V.P.’s teachers.

“[A] party challenging the implementation of an

IEP must show more than a de minimis failure to

implement all elements of that IEP, and, instead, must

demonstrate that the school board or other authorities

failed to implement substantial or significant

provisions of the IEP.” Houston Indep. Sch. Dist. v.

Bobby R., 200 F.3d 341, 349 (5th Cir. 2000). What

provisions are significant in an IEP should be

determined in part based on “whether the IEP services

that were provided actually conferred an educational

benefit.” Jd. at 349 n.2.

The fact-findings by the district court that are

fundamental to the conclusions on this factor are

sound. First, we find no clear error that poor

communication and collaboration between the

Wainwright school nurse and others assigned to

monitor the system led to the problems with the FM

loop system being out of service for approximately two

months. Furthermore, while the FM loop was broken,

school personnel allowed V.P. to wear the alternative

headphone system over her hearing aids. There was no

error in finding that to be improper and potentially

harmful. Further, there is evidence that the special

education chair instructed V.P.’s classroom teacher to

provide testing and assignment modifications without

such modifications being included in V.P.’s IEP. The

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special education chair’s unilateral decision to change

the IEP suggests a lack of coordination and

collaboration with V.P.’s other key stakeholders. Next,

it was not clearly erroneous for the court to find that

the IEP Committee did not communicate effectively

and collaborate to address V.P.’s failure to attend

content mastery. Although there is evidence that V.P.’s

mother made the decision to remove V.P. temporarily

from the service, the school staff failed to follow up on

V.P.’s extended absence. Finally, V.P.’s classroom

teacher testified that in November 2003, V.P.’s

one-on-one aide stopped coming to work with V.P. for

approximately three to four weeks at the direction of

the school principal, despite the fact that V.P.’s IEP

called for one-on-one assistance.

In addition to problems with the implementation of

V.P.’s LEP, the district court did not clearly err in

finding that V.P.’s_ key stakeholders received

inadequate training. Although the school provided its

personnel with a one-page tip sheet for working with

an auditory or speech impaired child, such minimal

training was insufficient. Moreover, despite such

training, V.P.’s classroom teacher, one of the most

important stakeholders, explained that she was unable

to communicate effectively with V.P. and evaluate her

progress.

4. Demonstration of positive academic and

non-academic benefits

Perhaps one of the most critical factors in this

analysis is the final one. This factor seeks to determine

whether the student was obtaining benefits from the

IEP. Michael F., 118 F.3d at 252. There are

subordinate components of the fact-finding, perhaps

22a

best thought of as evaluating the validity of the

various measures of the progress that were offered. It

is difficult analytically to compartmentalize all the

determinations as ones of fact and ones of law, but we

will proceed to make that effort.

The district court concluded that V.P. made only

minimal progress, and the benefits she received were

not meaningful. The court noted that there was

conflicting testimony regarding V.P.’s progress at

Wainwright — V.P.’s mother and classroom teacher

were not encouraged by V.P.’s progress; V.P.’s speech

therapist included both positive and negative

impressions of V.P.’s advancement; and V.P.’s

standardized speech and language test scores did not

improve over time. The court explained that V.P. failed

language arts and reading during the first two

nine-weeks of the fall semester. Her grades then

improved when her teacher implemented test and

assignment modifications; however, her teacher

testified that she would not have achieved passing

grades without the modifications. Furthermore,

although V.P. met the promotion standards for second

grade, based on her grades with the modifications and

the district standards for standardized testing with

modifications, her classroom teacher testified that V.P.

had not mastered the curriculum necessary to be

successful in second grade.

HISD contends that V.P. demonstrated academic

advancement because she achieved passing grades in

her regular education program sufficient to advance to

the next grade, her standardized scores show that she

achieved the level of educational benefit required by

the IDEA, and she mastered the high frequency words

required for promotion. HISD maintains that the

23a

district court improperly considered V.P.’s

standardized speech and language test scores. HISD

notes that such scores are percentile scores that

merely compare V.P.’s scores to those of other children

who took the test, and V.P.’s development should be

measured with respect to her individual progress, not

her abilities in relation to the rest of the class. HISD

also points to objective evidence indicating that V.P.

was receiving an educational benefit from her HISD

placement, arguing that V.P.’s speech and language

skills suggested three years of progress in the three

years she was in HISD, and achievement testing in

November 2003 indicated that V.P. was performing at

or near the first-grade level in most areas.

HISD further alleges that the IDEA does not

require a school district to ensure that a disabled child

is able to advance at a rate faster than non-disabled

peers. Even when a disabled child falls further behind

her peers, she may still be receiving some educational

benefit from the placement. HISD attributes V.P.’s

speech therapist’s equivocal responses regarding her

progress to the requirement that the therapist assess

both V.P.’s strengths and weaknesses in the classroom.

HISD asserts that V.P.’s weaknesses show that V.P.

continues to have a disability and do not indicate that

she has not received a free appropriate public

education. Finally, HISD argues that the testimony of

V.P.’s teacher that V.P. would need modifications to

perform well in second grade does not support the

district court’s conclusion that V.P.’s progress was

Urged strongly upon us as a controlling precedent,

particularly in light of the point about test scores, is a

2000 decision of this court also involving HISD. See

24a

Bobby R., 200 F.3d 341. In that case, we considered

whether HISD provided a free appropriate public

education to a student with speech disabilities. Only

the third and fourth factors that we have discussed

here were at issue in Bobby R.: were the services

required in the child’s IEP provided in a coordinated

and collaborative manner, and had the child

demonstrated academic and nonacademic benefits

from his IEP? Id. at 348. What is most relevant here is

the discussion of this last factor. We will review our

prior analysis.

We start with context. In applying Bobby R., it is of

some relevance that the court was considering whether

the district court clearly erred in finding that a child

was receiving a meaningful educational benefit. Here,

the issue is whether the district court clearly erred in

finding that V.P. was not receiving a meaningful

educational benefit.

The student, Bobby R., argued that where he stood

in relation to his nondisabled peers was the best

measure of his academic performance, whereas HISD

maintained that passing scores and advancement from

grade to grade was the proper indicia of academic

progress. Jd. We sided with HISD:

a disabled child’s development should be

measured not by his relation to the rest of the

class, but rather with respect to the individual

student, as declining percentile scores do not

necessarily represent a lack of educational

benefit, but only a child’s inability to maintain

the same level of academic progress achieved by

his non-disabled peers.

25a

Id. The court pointed out that the test scores and

grade levels in a number of subjects had improved

during the child’s years in HISD. Id. It concluded that

the improvements were not trivial and that no clear

error existed in the district court’s factual

determination that the child was receiving educational

benefits from his IEP. 200 F.3d at 350. It was not

necessary for the child “to improve in every area to

obtain an educational benefit,” as maximization of a

disabled student’s educational potential is not

required. Id.

HISD argues that just as in Bobby R., V.P. had

improved test scores and advanced to a new grade

level. Therefore, the district court is said to have erred

in determining that she did not receive more than a

minimal educational benefit from her IEP. Even

though her test scores improved and she was advanced

only after her teacher implemented modifications in

her assignments and tests, HISD argues that such

modifications are permitted under the IDEA. HISD

also submits that a failure to master curriculum

cannot be determined by comparing V.P.’s success to

that of her non-disabled peers.

We find the district court’s rulings on this fourth

factor to be consistent with Bobby R. In the present

case, passing grades and yearly advancement were not

found to be adequate measures because V.P.’s teacher

testified that the improved grades and advancement

resulted from modifications the special education

director unilaterally imposed. The IEP Committee

itself never evaluated the changes and determined

whether they were consistent with the requirements of

the IDEA. V.P.’s teacher testified that V.P. would noi

26a

have made passing grades and advanced to a new

grade-level without these unauthorized modifications.

Modifications to an IEP legally can and likely often

must be made in response to the experiences of a child

in the classroom. However, before acceptable test

scores and advancement in class grade can be seen as

supporting that educational benefits are being

received, those indicia must arise from compliance and

not deviation from the IEP.

In evaluating this evidence, we are guided by the

requirement that HISD is to provide V.P. with a “basic

floor of opportunity” that “consists of access to

specialized instruction and _ related _ services”

individually designed to provide V.P. with educational

benefit. Rowley, 458 U_S. at 201. HISD did not need to

provide V.P. with the best possible education or one

that will maximize her potential; however, the

education benefits it provides cannot be de minimis.

Michael F., 118 F.3d at 247 (citing Rowley, 458 U.S. at

188-89). This distinction may well be the key to the

dispute before us. HISD clearly was taking steps to

provide educational benefits to V.P. The question is not

whether there was more that could be done, bui only

whether there was more that had to be done under the

governing statute.

Passing grades and advancement from year to year

are factors that indicate a child is_ receiving

meaningful educational benefit. As a legal matter, we

find that such evidence should be rejected when it is

found to be the product of unapproved deviations from

the IEP. V.P.’s classroom teacher, the stakeholder

most familiar with V.P.’s performance, testified that

although V.P. did not do well the first or second

27a

semester of her first-grade year, her grades improved

near the end of the year only because the teacher

started modifying more work product for her, including

giving her fewer test items. Without’ these

modifications, the teacher stated, V.P. could not have

done work on the curriculum level with the

non-disabled students in her class and could not have

made passing grades. The teacher explained that she

made these modifications because the _ special

education chair told her that they were part of V.P.’s

IEP. However, V.P.’s IEP did not provide for modified

curriculum or tests, and her teacher stated that she

would have been concerned about making the

modifications if she knew they were not in V.P.’s LEP.

Finally, the teacher testified that despite V.P.’s

passing grades, she did not believe V.P. mastered the

curriculum necessary to move on to second grade.

Considering the testimony of V.P.’s teacher, the

district court did not clearly err in concluding that the

test scores were not reliable evidence of progress. The

district court’s factual determination that the child

was not receiving educational benefits from her IEP

was not clear error. As we said in Bobby R., it is not

necessary for the child “to improve in every area to

obtain an educational benefit,” 200 F.3d at 350, but

there was no evidence here that had to be accepted

that V.P. was improving in many areas at all.

The ultimate legal issue under this factor is

whether V.P. was receiving a meaningful educational

benefit from the services provided for her under her

IEP. We find that she was not.

Therefore, we sustain the district court’s findin

that under the four factors, HISD was not providing a

28a

free appropriate public education. Consequently, V.P.’s

move to the Parish School was justified.

B. Reimbursement for Pendency Placement

Our previous discussion leads to our affirming the

award of $16,125.30 to reimburse V.P. for the

payments to the Parish School for the 2004-2005

school year. Our last issue is whether HISD must

make the same payment for the 2005-2006 school year.

In ruling on the cross motions for summary

judgment on the 2005-2006 reimbursement issue, the

district court again fully adopted the magistrate

judge’s findings. We will refer to the findings as those

of the district court.

The components of this last issue are these: (1)

what relevance to the second year’s reimbursement is

the Texas Education Agency’s decision that the Parish

School was the appropriate placement, (2) how was the

issue of the second year’s reimbursement raised,

opposed, and resolved, and (3) was the issue properly

resolved? We will discuss them in that order.

1. Hearing officer’s decision that Parish School was

proper placement

The IDEA provides that “during the pendency of

any proceedings conducted pursuant to this section,

unless the State or local educational agency and the

parents otherwise agree, the child shall remain in the

then-current educational placement of the child .. . .”

20 U.S.C. § 1415G). The Supreme Court held that an

administrative decision in favor of parents who had

placed their child in a private school after they rejected

29a

a proposed IEP constitutes an agreement by the state

to the change of the child’s placement, making the

new, private school placement the current educational

placement of the child. Burlington, 471 U.S. at 371—72.

Accordingly, by force of Supreme Court opinion and

federal regulation, the decision by the Texas Education

Agency hearing officer on February 10, 2005, was an

agreement between HISD and V.P.’s parents that the

Parish School was the appropriate placement. The

agreement lasts for the pendency of the review of the

administrative decision. The regulation does not state

that a parent needs to file for a court order declaring

the alternative placement to be the correct one.

Instead, unless the parents and school district agree

otherwise, the Parish School by operation of law is the

proper placement. /d.

Our case law is consistent with this interpretation.

We have addressed related issues that arise when

parents seek to have the public school district pay the

costs of the private school pending the final review of

the merits. St. Tammany Parish Sch. Bd. v. Louisiana,

142 F.3d 776, 785 (5th Cir. 1998). There, as here, the

state administrative process resulted in an order that

a private placement was appropriate because the

public school education was inadequate. Id. at 780.

The administrative process ended in April of a school

year, and the administrative ruling was that the entire

school year should be paid for by the public school. Jd.

Also, as here, the school district filed an appeal in

district court in April. Unlike here, in June, the St.

Tammany parents counterclaimed for compensation

for the next school year. Jd. at 781. Such a

counterclaim is what HISD argued and the district

judge accepted had to be made here, but it never was.

30a

The St. Tammany parents sought an order declaring

the private school placement to be the correct one, and

requiring payments for the next school year to be made

by the public school district. In August, as the new

school year was beginning, the district court granted

the parents their requested relief. Id.

The district court’s ruling was immediately

appealed. Jd. We concluded that a stay-put order

qualifies as a collateral order for purposes of

interlocutory appeal because it conclusively

determines a student’s pendency placement and the

tuition reimbursement rights associated with such

placement. Jd. at 781-82. In support of this holding,

we cited a case from another circuit that found

resolution of pendency-placement issues to be

“completely separate from the merits issues which

focus on adequacy of the proposed IEP; and the

propriety of the pendent placement and _ the

concomitant financial responsibility are not effectively

reviewable on appeal of a decision on the merits.” Jd.

at 782 (citing Susquenita Sch. Dist. v. Raelee S., 96

F.3d 78, 81 n.4 (3d Cir. 1996)); see also Mackey ex rel.

Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch.

Dist., 386 F.3d 158, 160 (2d Cir. 2004) (“A claim for

tuition reimbursement pursuant to the stay-put

provision is evaluated independently from _ the

evaluation of a claim for tuition reimbursement

pursuant to the inadequacy of an IEP.”).

In St. Tammany, the district court ordered

payment for tuition and other costs for the school year

that was about to begin. We affirmed. The Third

Circuit case on which we relied also reviewed such a

district court order. Susquenita Sch. Dist., 96 F.3d at

85. In that case, the school district appealed the

3la

administrative decision to the district court and filed

for a stay of the requirement that it reimburse the

parents for the private school placement. The district

court denied the motion. On interlocutory appeal, the

Third Circuit concluded that the school district was

required to pay for the child’s private school placement

from the point of the administrative decision forward;

it also held that the school district “may be required to

pay for tuition and expenses associated with a pendent

placement prior to the conclusion of the litigation.” /d.

at 84. The court explained that “[t]he purpose of the

Act .. . is not advanced by requiring parents, who have

succeeded in obtaining a ruling that a proposed IEP is

inadequate, to front the funds for continued private

education.” Id. at 86-87.

What is of particular importance for our issue is

that the court considered the right to continuing

payments to be automatic from the district court’s

decision that the private school would be the “current

educational placement.” “This holding also effectively

decided the reimbursement question in favor of

Raelee’s parents.” Id. at 80. That sentence was

followed by a footnote, which concluded that once

reimbursement for the first year was found to be

appropriate, payments for continuing the private

school placement were proper while proceedings under

the statute were pending:

The order encompassed reimbursement for

expenses incurred in the 1994-1995 academic

year. By adopting the appeals panel holding

that the private school was the appropriate

placement pending a contrary judicial order,

Order # 1 also effectively made Susquenita

financially responsible for continuing the

32a

private school placement. Order # 1 thus

decided both reimbursement for and prospective

payment of private school tuition.

Id. at 81 n.3. As the Supreme Court held, public

payment of expenses of the “current education

placement” flows from “the child’s right to a free

appropriate public education” under the IDEA.

Burlington, 471 U.S. at 370. Reimbursement forces a

school district “to belatedly pay expenses that it should

have paid all along and would have borne in the first

instance had it developed a proper IEP.” Id. at 3770-71.

Burlington did not involve paying for costs during the

pendency of the litigation. Neither were we in Si.

Tammany faced with deciding the propriety of such

payments because the state did not contest that legal

issue. St. Tammany, 142 F.3d at 783. Our issue today

is almost the opposite: do parents forfeit the right to

receive reimbursements for the costs of the private

placement, which by operation of law is the “current

educational placement” during the pendency of the

litigation, if they do not ask for funding at the

beginning of a school year?

In answering that question, we examine the

arguments as to why the right to reimbursement for

the education that is supposed to be free has been

forfeited here. The district court denied

reimbursement for V.P.’s second school year almost

exclusively because of the lack of notice to HISD that

anyone was contemplating asking for payment. It is

true that V.P. did not amend her pleadings specifically

to request reimbursement. Soon after the second

school year ended, she did seek to supplement the

record with the new bills. Even without any filings by

V.P., notice existed as a matter of law that the Parish

33a

School was the current educational placement until an

agreement to the contrary or an end to the litigation

was reached.

Relevant here is an issue still unresolved in this

circuit, namely, if an order is entered that requires the

public school district to pay for the private school

during the pendency of the proceedings, will the

parents have to refund the money if the private

placement is later found to have been improper? See

id. at 788 (stating, “we do not reach, nor do we express

an opinion on, whether the State defendants are

entitled under IDEA to reimbursement” if the private

placement is held to have been unnecessary). We still

do not need to resolve that point, but the issue

highlights a choice for a child’s parents. They can

request payment-as-they-go, but they may have to

refund that money if they lose on the merits. Or, they

can continue to pay for the private placement until

such time as there is a final decision on the merits.

Many parents will not have a choice, as the private

school will be beyond their financial means. When

there is a choice, the parents do not need to seek

prospective relief, which under St. Tammany is an

appealable order. They may instead ask for costs of the

pendency placement to be made an award at the end of

the litigation. That does not mean, though, that the

parents can wait until the end of the litigation to make

the request. We address that issue below.

HISD counters that had it known V.P. would seek

reimbursement for the 2005-2006 school year, it could

have proposed an alternative placement. For example,

in an effort to avoid paying for a second year of V.P.’s

Parish School costs, HISD could have attempted to

develop a new IEP that corrected the deficiencies

34a

found by the due process hearing officer. Furthermore,

HISD alleges it could have suggested an alternative

placement at one of its schools, such as at the Sutton

Elementary “oral deaf’ program. HISD alleges V.P.’s

delay kept it from appealing any intermediate order

regarding the child’s proper placement during the

pendency of the district court proceedings.

HISD’s position does not take into consideration

that the Parish School was the proper placement for

2005-2006. We find useful guidance for HISD in Sz.

Tammany. There, soon after the order was entered

that the private school was the “current education

placement,” the school district moved to require a new

IEP conference to determine how the public school

could meet the child’s needs. Jd. The district court

denied the motion. A similar motion by HISD is at

least one way the issue of changing V.P.’s placement

could have proceeded. Perhaps HISD did not know

until the 2005-2006 school year was over that V.P.

would actually request reimbursement, but it

constructively knew that by operation of law, the

Parish School was the continuing proper placement for

the child and that HISD might be requested to pay for

it. The moving party for ending the “current

educational placement” at the Parish School and the

concomitant, but as yet unasserted, financial

reimbursement potential needed to be HISD.

It is also important that after the date of

Burlington, St. Tammany, and the Third Circuit

Susquenita opinion, the U.S. Department of Education

adopted the regulation that expresses the effect of the

final order in the administrative proceedings that a

private placement is proper. Effective on March 12,

1999, a slightly different phrasing of what is now 34

35a

C.F.R. § 300.518(d) was promulgated. It stated that

when the decision of “a State review official in an

administrative appeal agrees with the child’s parents

that a change of placement is appropriate, that

placement must be treated as an agreement between

the State or local agency and the parents for purposes

of paragraph (a) of this section.” 34 C.F.R. § 300.514(c)

(as adopted by 64 Fed. Reg. 12418 (Mar. 12, 1999)).

The referenced “paragraph (a)” is similar to Section

300.518(a), the earlier version stating that the child

“during the pendency of any administrative or judicial

proceeding . . . must remain in his or her current

education placement.” Id. § 300.514(a).

It is true that in St. Tammany, the district court

had ordered that the private school be considered the

“current educational placement.” 142 F.3d at 781.

There was no holding in St. Tammany that such an

order was needed. We conclude that Section 300.518

makes that kind of order superfluous.

A correlation between a private school’s being the

current educational placement and the public school’s

responsibility to fund it, is found in the IDEA:

(B) Children placed in, or referred to, private

schools by public agencies

Gj) In general. Children with disabilities in

private schools and facilities are provided

special education and related services, in

accordance with an individualized education

program, at no cost to their parents, if such

children are placed in, or referred to, such

schools or facilities by the State or appropriate

local educational agency as the means of

36a

carrying out the requirements of this

[subchapter]. . - .

(C) Payment for education of children enrolled

in private schools without consent of or referral

by the public agency

(i) Reimbursement ffor private school

placement. If the parents of a child with a

disability, who previously received special

education and related services under the

authority of a public agency, enroll the child in

a private elementary school or secondary school

without the consent of or referral by the public

agency, a court or a hearing officer may require

the agency to reimburse the parents for the cost

of that enrollment if the court or hearing officer

finds that the agency had not made a free

appropriate public education available to the

child in a timely manner prior to that

enrollment.

20 U.S.C. § 1412 (aX(10); see also 34 C.F.R.

§ 300.148(b).

These provisions allow a hearing officer to require

reimbursement of private school costs when a free

appropriate public education has not been made

available. Burlington and Section 300.518 transform a

hearing officer’s order adopting a private placement

into an agreement that the private school is necessary

to carry out the requirements of the IDEA. That

placement is at “no cost” to the parents of the child. 20

U.S.C. § 1412 (aX10XBXi).

37a

Pendency-placement issues are separate from the

merits to the extent they can be decided prior to and

without regard to the merits issues. We have noted

that V.P.’s parents had a choice to request payments

during the pendency of the litigation, or to forgo

payment-as-they-go and await the conclusion of the

merits case. Intentionally or otherwise, the request

was not made until the end of the second school year.

V.P. did not seek payments pending the litigation. Not

raising this separate issue at the earliest opportunity

does not by itself prevent receiving reimbursement for

relevant school years at the end of the litigation.

We have examined with some care the case law and

regulations. Two events are crucial in our analysis.

The first is the decision by a hearing officer for the

Texas Education Agency that the Parish School was an

appropriate placement for V.P. The second was the

affirmance of that decision on appeal. Those two

events having occurred, V.P.’s parents were entitled to

have their costs at the Parish School reimbursed —

absent any default in requesting them, an issue we

discuss below. Valid costs for a private school

placement may be reimbursed at the end of litigation

in which the parents prevail without regard to

whether an order for payment during the pendency of

the proceedings is sought. The costs will be the

relevant ones during the time period that begins with

the school year for which the district is ultimately

found not to have proposed a placement reasonably

calculated to provide a free appropriate public

education. The period ends with the conclusion of the

litigation. A school district may be able to seek, as

occurred in St. Tammany, to change the educational

placement during the pendency of the litigation.

Whatever steps that involves certainly need not be

38a

addressed now. Without such a change, the obligation

for the proper public entities to pay for the private

school exists.

Our holding does not resolve the issue of whether

parents do not even need to ask for reimbursement.

We now turn to just how the issue of reimbursement

for a second year was injected in the appeal to the

district court.

2. Raising and disposing of the reimbursement

issue in district court

On February 10, 2005, the Texas Education Agency

hearing officer declared the IEP to be inadequate. The

Parish School was found to be an appropriate

placement. V.P.’s parents were awarded payment for

all of their daughter’s 2004-2005 relevant expenses at

the Parish School.

On May 10, 2005, HISD filed an appeal in district

court.

On June 9, 2005, V.P. filed her answer and

counterclaim, appealing the Hearing Officer’s decisions

on the issues for which she did not prevail at the due

process hearing. This pleading did not include a claim

for reimbursement for V.P.’s 2005-2006 placement at

the Parish School.

During a September 8, 2005 Rule 16 scheduling

hearing, V.P. first informed the court that she

intended to introduce evidence in addition to the

administrative record for the district court’s

consideration on appeal. V.P. did not explain what

additional evidence she intended to introduce and did

39a

not explain the’ the additional evidence pertained to

V.P.’s 2005-2006 Parish School placement. HISD

stated that it opposed the entry of additional evidence

and that the case should be decided solely on the

administrative record.

On June 9, 2006, exactly a year after V.P. filed her

answer, V.P. filed a motion to submit additional

evidence in which she indicated that she intended to

introduce reimbursement evidence regarding the costs

of V.P.’s placement at the Parish School for the

2005-2006 school year. In a June 20, 2006 response,

HISD objected to the motion, arguing that the only

issue before the court was the correctness of the

Hearing Officer’s decision regarding the 2004-2005

school year, and the 2005-2006 private school bills

were irrelevant to that issue.

The case was eventually reassigned to a new

district judge who requested a status report from the

parties. In that report, V.P. again indicated that she

needed to submit additional evidence regarding

reimbursement for the 2005-2006 school year. On July

6, 2006, V.P. filed a supplemental motion to submit

additional evidence. In this motion, V.P. alleged that

the Parish School was the proper placement for V.P.

during the pendency of HISD’s appeal, and

accordingly, “V.P. [was] entitled to an automatic

injunction providing her with reimbursement for the

placement during the appeal, and until such time as

HISD offers her an appropriate placement.”

HISD responded that V.P. was belatedly

attempting to “amend her complaint” to assert a new

claim for reiief under the guise of a request to

introduce additional evidence and that pendency

40a

placement had not been made an issue in the case. In

a reply brief, V.P. contended that the right to

reimbursement for ongoing tuition at the Parish

School is automatic and is merely a continuation of the

issues decided by the administrative hearing officer.

V.P. further stated that “reimbursement of the

pendency placement is actually a cost which [she] is

entitled to if she prevails in this matter” and that

HISD has not demonstrated that it was surprised or

prejudiced by the pendency reimbursement claim.

On August 9, 2006, the magistrate judge conducted

a hearing regarding, among other things, V.P.’s motion

to submit additional evidence. There were two items of

evidence. One was a new affidavit from an expert, and

the other were bills for the second school year. At the

hearing, V.P. argued that the 2005-2006 Parish School

bills were just an extension of the hearing officer’s

order and should be considered as a “cost issue” if the

court decides to uphold that decision. The magistrate

judge initially indicated she would deny V.P.’s request

to submit the bills. Later in the hearing, in response to

argument, the magistrate judge delayed decision until

a future date, saying “yes, if this goes your way, yeah,

we'll consider that, but right now to keep amending to

put the school bills in, you know, you haven’t won yet.

And we'll cross that bridge when it comes to it.” The

magistrate judge and counsel for HISD then engaged

in the following exchange:

THE COURT: I mean it seems to me that if you

lose and the hearing officer’s decision is

implemented, HISD is going to have to pay

those bills, right? And we will have to know

what they are.

4la

HISD COUNSEL: Well, irrespective — I don’t

necessarily agree to that, but irrespective of

that, in terms of the [clourt’s time—. . . it makes

more sense for you to rule on the motion for

summary judgment because if you rule for me,

those issues will be moot . . . and we won't have

to touch on them. If you rule on all that stuff

now, you may be making rulings that you won’t

have to make.

THE COURT: Right.

On March 2, 2007, the magistrate judge

recommended granting in part and denying in part

HISD’s motion for summary judgment. With respect to

the 2005-2006 Parish School costs, the memorandum

explained that “[a]lthough [V.P.] requests

reimbursement for the costs of the Parish School

during the pendency of this review, she did not move

for summary judgment on that issue. The court

refrains from addressing that matter at this time.” On

March 22, 2007, the district judge entered an order

adopting the recommendation.

The magistrate judge then ordered HISD and V.P.

to file cross motions for summary judgment on the

2005-2006 reimbursement issue. On September 11,

2007, the magistrate judge recommended the denial of

reimbursement for the 2005-2006 Parish School

placement. The judge concluded that V.P.’s “late

mention of additional and ongoing education costs at

the Parish School does not properly meet the requisite

timing and form necessary to put [HISD] on notice of

the 2005-2006 reimbursement claim.” The judge also

held that the failure to add this claim to the pleadings

meant it could not be awarded as “appropriate” relief

42a

under the IDEA without ignoring the Federal Rules of

Civil Procedure. Finally, the magistrate judge

concluded that reimbursement for the 2005-2006

school year under the IDEA’s “stay put” provision

would be collateral to the court’s review of the hearing

officer’s decision on the merits. The district judge

adopted the magistrate judge’s memorandum and

recommendation on October 4, 2007, over V.P.’s

objections.

3. Resolution of the issue

This review of the procedural history reveals that

V.P. raised the issue of reimbursement for the second

school year by a motion to introduce additional

evidence. The motion was filed one year after her

answer and counterclaim, a month or so after the

second school year ended, and one year before final

judgment. She never moved to amend the answer and

counterclaim.

Despite the intricacies of the federal statutes we

are applying, the usual pleading rules remain

relevant. The appeal by HISD to the district court

started a lawsuit. An answer and counterclaim were

filed, seeking certain relief. The request for prospective

payments for the second school year could easily have

been made in the initial pleadings by V.P. in district

court. Or, a motion for leave to amend could later have

been made when the school year was over, seeking

reimbursement. Amendments to pleadings are to be

° We note an inconsistency in the conclusion that the claim was

not properly in the case, but also that summary judgment should

be granted to HISD on the claim.

43a

allowed when “justice so requires... .” Fed. R. Civ. P.

15(a)(2). Because no amendment was ever requested,

the justice of such a motion is not before us.

V.P. maintains that her request in her

counterclaim that the district court uphold the hearing

officer’s decision was sufficient to raise her right to

reimbursement for the 2005-2006 Parish School

placement. Under the stay-put or pendency-placement

provision of the IDEA, V.P. argues that she became

eligible for reimbursement for the 2005-2006 Parish

School tuition once the placement for 2004-2005 was

upheld. Under her theory, she did not need to file a

specific pleading or bring a separate action asserting

a claim for pendency-placement reimbursement to

obtain such relief.

HISD argues that it would be prejudicial to require

pendency-placement reimbursement without a timely

and explicit claim for such relief. If V.P. had sought an

order from the hearing officer or the district court

regarding the 2005-2006 pendency placement, HISD

alleges it would have had an opportunity to propose an

alternative placement or appeal _ the

pendency-placement order. We have already addressed

the latter points, and have found no merit to them.

As to what was required in V.P.’s pleading, we note

that “the remedies a federal court may bring to bear

are not constrained by a litigant’s prayer for relief;

rather, the Federal Rules of Civil Procedure command

the federal courts to grant relief that complainants do

not demand when such relief is appropriate.” Bauhaus

USA, Inc. v. Copeland, 292 F.3d 439, 448 (5th Cir.

2002); see also Kirckhberg v. Feenstra, 708 F.2d 991,

1000 (5th Cir. 1983) (“Rule 54(c) of the Federal Rules

44a

of Civil Procedure provides that a judgement shall

grant the relief to which a party in whose favor it is

rendered is entitled, even if the party has not

demanded this relief in his pleadings.” (emphasis in

original)). The district court apparently determined

that a request for a second year’s reimbursement did

not concern the nature of relief, but was a claim of a

separate injury. Some decisions under the IDEA have

held that general prayers for relief are insufficient to

raise claims for reimbursement of school expenses that

were not explicitly made. The magistrate judge cited

some of these decisions in denying recovery of the

second school year’s expenses. E.g., Lillbask v. Conn.

Dep’t of Educ., 397 F.3d 77, 90 (2d Cir. 2005).

We do not decide whether reimbursement for a

second year is a new claim or whether it is additional

relief on the existing claim. We turn instead to the

effect of the magistrate judge’s statements at one

hearing, and HISD’s responses.

Regardless of whether a claim for a second year

should have been the subject of amended pleadings,

V.P. argues that the magistrate judge’s ruling on the

motion to supplement the record indicated the

question of reimbursement for a second year was tied

to the not-yet-made decision on whether to affirm the

Texas Education Agency’s decision that the Parish

School was the proper placement. As we have

discussed, the magistrate judge on August 9, 2006,

stated that if the decision as to the Parish School

placement “goes your way, . . . we'll consider” the bills

for the second year. The judge did not see a reason for

the parents to “keep amending to put the school bills”

into the record as they were received. Instead, “we'll

cross that bridge when it comes to it.”

45a

Even more pointedly, the judge then stated that if

the hearing officer’s decision “is implemented, HISD is

going to have to pay those bills, right?” HISD’s

attorney immediately indicated that he did not

“necessarily agree to that,” but that in terms of the

court’s time, “it makes more sense for you to rule on

the motion for summary judgment [and hold that

HISD provided an appropriate education,] because if

you rule for me, those issues will be moot.” The

magistrate judge agreed.

At that point, the magistrate judge was finding that

the only predicate for reimbursement of appropriate

expenses from the second year was that the

administrative decision be affirmed. This ruling in no

manner suggested that another predicate was an

amendment to the answer and counterclaim.

An order was entered on August 9, 2006, reflecting

the rulings made at the hearing. It stated only this:

Arguments heard on the record. Docket Entries

Nos. 16, 21, and 28 are granted. Docket Entry

No. 20, 26, and 34 are granted in part and

denied in part as stated on the record.

Docket Entry 20 was V.P.’s request to submit an

affidavit from a new expert and cost bills for attending

the Parish School during the pendency of the appeal.

To grant and deny that motion “as stated on the

record,” was a decision that the expert’s affidavit

would be admitted, and that the bills for the second

year would not be at that time. We also interpret the

order, though, to mean that the bills would likely be

admissible if the hearing officer’s decision was upheld.

46a

So as of August 9, 2006, V.P. had reason to proceed

on the basis that appropriate expenses for the

2005-2006 school year would be reimbursed if the

hearing officer’s decision was affirmed. There was no

suggestion from the magistrate judge that any

amendment to the pleadings was needed.

Subsequent steps were taken that were consistent

with this understanding. On March 22, 2007, the

district court approved the magistrate judge's

recommendation that the Parish School was the

appropriate placement. In the same set of findings, the

magistrate judge decided that there was not enough

evidence in the record to determine whether all of the

submitted costs for the private school should be

reimbursed. Because V.P. had not moved for summary

judgment on reimbursement during the pendency of

the review, the issue was explicitly left for another

time.

On the same date that the district court sustained

the earlier magistrate judge’s recommendation, the

magistrate judge entered a new order as to

reimbursement. The fact that V.P. had requested

additional compensation for the continued placement

during the appeal was noted. No suggestion of any

pleading defect was indicated, and instead this was

stated:

In order for the court to deterniine the proper

amount of relief, the court must determine

whether other, more _ suitable substitute

placements existed, whether the parents

expended sufficient effort in securing an

alternative placement, whether the school

district cooperated with the parents on the

47a

child’s placement, and whether the parents are

entitled to reimbursement for the period of

appeal. Cf. Alamo Heights Indep. Sch. Dist. v.

State Bd. of Educ. , 790 F.2d 1153, 1161 (5th Cir.

1986) (listing factors to consider in determining

whether parents are entitled to full

reimbursement for the cost of private school

enrollment). The court has determined that the

record must be developed further, as to both

facts and law, before the court can exercise its

discretion in determining the amount to be

awarded.

The Alamo Heights precedent concerned whether

the costs of a program should be reimbursed, even if

the program was not necessitated by the IDEA:

Factors that the court may consider in

determining whether full or partial

reimbursement is in order would include the

existence of other, perhaps more suitable,

substitute placements, the effort expended by

Mrs. G. in securing alternative placements, and

the general cooperative or uncooperative

position of the School District itself.

Alamo Heights, 790 F.2d at 1161. Here, the

appropriateness of the Parish School placement had

been resolved, but specific items of costs could have

been subject to disagreement. The parties were

ordered to attempt reaching an agreement on the

reimbursement amount. Absent agreement, an

evidentiary hearing would be held.

By July 20, 2007, the parties had agreed that

$16,125.30 was the appropriate amount of

48a

reimbursement for 2004-2005, and if reimbursement

were found appropriate, also for 2005-2006. HISD, in

a motion filed on that date, argued that V.P.’s failure

ever to amend her pleadings to request reimbursement

for a second year barred its consideration. In a

response, V.P. argued that HISD’s position was

inconsistent with what had been known at least since

the June 20, 2006 motion to supplement the record,

namely, that reimbursement for the second year was

being sought. V.P. argued that HISD had introduced

a new objection by alleging an absence of pleadings.

The original objection to the motion to supplement

back on June 20, 2006, was that V.P. needed to go

through the administrative process again for the

second year, and that the appeal of the validity of the

hearing officer’s decision in no way affected the

payment of costs for another year. As we have

discussed above, neither of those defenses was valid.

Because of Burlington and the federal regulations, the

hearing officer’s decision made the Parish School the

agreed proper placement during the pendency of the

appeal. The appeal was very much the place in which

these issues could be resolved, not a _ second

administrative proceeding.

The district court found that payment for the

2005-2006 Parish School costs could be awarded under

authority to “grant such relief as the court determines

is appropriate. . . .” 20 U.S.C. § 1415(iX2KC\Xiii). The

court declined to do so, even saying that it could not do

so, because of V.P.’s failure adequately and timely to

raise the pendency placement issue. We disagree with

that ruling. Because HISD was on notice no later than

the August 9, 2006 hearing that V.P.’s request for

reimbursement of the second year might well rise or

fall on whether the hearing officer’s decision was

49a

upheld, a linkage made by the magistrate judge in the

oral ruling, there was no fatal flaw in the pleadings. In

effect, there was a ruling as of August 2006 that

ignored any issue of pleadings and made the

subsequent viability of the claim dependent on other

factors.

We do not overlook that more clarity could have

been given to this point by both the magistrate judge

and by V.P.’s attorney. We have had to piece together

statements from the hearing and in the brief written

order. Yet those shortcomings are far less significant

than the denial of the claim in the face of these facts:

(1) clear indications by the magistrate judge in August

2006 when the issue was first addressed that the only

quesiion was whether the administrative decision was

ultimately affirmed, (2) HISD’s knowledge at least

since August 2006 that reimbursement for a second

year was being sought, and (3) under the regulations

and Burlington, HISD could not avoid responsibility

for the pendency placement if the hearing officer’s

decision was affirmed.

By the time of the magistrate judge’s decision on

September 11, 2007, that same judge no longer saw

the issue as she had thirteen months earlier.

Certainly, any interim order may be altered at any

time before final judgment. Fed. R. Civ. P. 54(b). We

find it to have been an abuse of discretion, though, to

reverse the earlier course on the issue of pleadings.

HISD had for that entire time been fully aware of

V.P.’s pursuit of the second year’s reimbursement,

even if it would not relinquish its disagreement with

the magistrate judge’s earlier indications that costs of

a second year depended strictiy on affirming the

propriety of the first year.

50a

There was no lack of notice to HISD. By operation

of the precedents and federal regulations, HISD had

notice of a legal obligation. By operation of the

understandings arising from the August 9, 2006

hearing, there was notice that V.P. was seeking

reimbursement for a second year and payment was

dependent on the Texas Education Agency hearing

officer’s decision being affirmed.

The parties stipulated that if rezmbursement for a

second year became due, the proper amount would be

$16,125.30. We reverse the refusal to award

reimbursement for the second year at the Parish

School and render judgment for the amount agreed to

by the parties.

C. Interests, Attorney’s Fees, and Costs

In the conclusion of her briefs on appeal, V.P.

summarily asserts that the district. court improperly

denied an award of attorney’s fees and related costs for

her attorney’s work on the pendency reimbursement

issue. V.P. further requests that the court award

interest on the reimbursement for the 2004-2005 and

2005-2006 Parish School costs from the date of the

first payment made by V.P.’s parents and award “all

attorney’s fees and related costs without reduction for

all work done in this matter including this appeal.”

Finally, V.P. asks for “the application of a multiplier of

three times the amount due on the reimbursement and

the attorneys fees and related costs, due to the

extended time caused by the vexatious appeals of

HISD, and the . . . impact that this extended litigation

has had on the family and V.P.” HISD provides little

response to V.P.’s requests, simply stating that the

court should reverse the award of attorney’s fees with

5la

respect to the 2004-2005 school year because it

provided V.P. with a free appropriate public education

and should deny V.P. attorney’s fees and related costs

for the 2005-2006 school year.

In its final judgment in this case, the district court

awarded V.P. her costs. Additionally, the magistrate

judge granted in part V.P.’s_ post-judgment

supplemental bill of costs and application for

attorney’s fees. Denied were fees for the portion of her

attorneys time spent working on the 2005-2006

pendency reimbursement issue. The denial was based

on the conclusion that V.P. was not a prevailing party

with respect to that claim.

The parties only briefly reference the attorney’s

fees awarded to V.P. for work on the 2004-2005 school

year issues. The magistrate judge awarded such fees

after both the final judgment and the notices of appeal

were entered in this case. We find that this award is

not presently before the court

With respect to costs and attorney’s fees for work

associated with the 2005-2006 school year, the

magistrate judge did not award V.P. any attorney’s

fees due to its conclusion that she was not a prevailing

party on this claim. Because we reverse and render the

district court’s judgment regarding reimbursement for

the 2005-2006 placement, we remand to the district

court V.P.’s request for attorney’s fees and costs

regarding this issue.

iit. CONCLUSION

The judgment of the district court is AFFIRMED as

to the 2004-2005 school year, but REVERSED and

52a

RENDERED as to a payment of $16,125.30 for the

2005-2006 school year. V.P.’s request for attorney’s

fees and costs associated with the 2005-2006

reimbursement claim is REMANDED to the district

court. We express no opinion about the attorney’s fees

that were awarded below, as issues regarding them

have not been properly presented in this appeal.

53a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20817

D.C. Docket No. 4:05-CV-1686

[Filed September 9, 2009]

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff - Appellee Cross-Appellant

Vv.

VP, by next friend Juan and Sylvia P,

Defendant - Appellant Cross-Appellee

a

Appeals from the United States District Court for

the Southern District of Texas, Houston

Before BENAVIDES, SOUTHWICK, and HAYNES,

Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and was argued by counsel.

It is ordered and adjudged that the judgment of the

District Court is affirmed as to the 2004-2005 school

year, but reversed and rendered as to a payment of

$16,125.30 for the 2005-2206 school year. V.P.’s

54a

request for attorney’s fee and costs associated with the

2005-2006 reimbursement claim is remanded to the

District Court for further proceedings in accordance

with the opinion of this Court. This court express no

opinion about the attorney’s fees that were awarded

below, as issues regarding them have not been

properly presented in this appeal.

IT IS FURTHER ORDERED that

plaintiff-appellee-cross-appellant pay to defendant-

appellant-cross-appellee the costs on appeal to be

taxed by the Clerk of this Clerk.

ISSUED AS MANDATE:

A True Copy

Attest

Clerk, U.S. Court of Appeals, Fifth Circuit

By:

Deputy

New Orleans, Louisiana

55a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION H-05-1686

[Filed October 4, 2007]

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff,

Vv.

V.P. B/N/F JUAN AND SYLVIA P.,

Nee Ne ee eee es “ee”

Defendants.

: er

ORDER ADOPTING MAGISTRATE JUDGE’S

MEMORANDUM AND RECOMMENDATION

The court, having reviewed the Magistrate Judge’s

Memorandum and Recommendation (Dkt. 76 and the

objections filed thereto (Dkt. 77), is of the opinion that

the Memorandum and Recommendation should be

adopted by this Court.

It is, therefore, ORDERED that the Magistrate

Judge’s Memorandum and Recommendation is

ADOPTED by this Court. Plaintiffs motion for partial

56a

summary judgment (Dkt. 70) is GRANTED.

Defendant’s motion for summary judgment (Dkt. 71) is

DENIED.

Signed at Houston, Texas on October 4, 2007.

/s/

Gray H. Miller

United States District Judge

57a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION H-05-1686

[Filed October 4, 2007]

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff,

Vv.

V.P. B/N/F JUAN AND SYLVIA P.,

Defendants.

i i i a

FINAL JUDGMENT

In accordance with the Magistrate Judge’s

Memorandum and Recommendation (Dkt. 58) and the

Order Adopting the Memorandum and

Recommendation (Dkt. 61), it is

ORDERED that the Hearing Officer’s decision

placing V.P. at the Parish School was an appropriate

placement for the 2004-2005 school year. It is further

ORDERED that V.P. is entitled to reimbursement

for the Parish School’s tuition in the amount of

$16,125.30.

In accordance with the Magistrate Judge’s

Memorandum and Recommendation (Dkt. 76) and the

Order Adopting the Memorandum and

Recommendation signed on October 4, 2007, it is

58a

ORDERED that V-P. is not entitled to tuition

reimbursement for the 2005-2006 school year.

All relief not expressly granted is DENIED.

Costs are assessed against the plaintiff.

This is a FINAL JUDGMENT.

Signed at Houston, Texas on October 4, 2007.

/s/

Gray H. Miller

United States District Judge

59a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-05-1686

[Filed September 11, 2007]

HOUSTON INDEPENDENT SCHOOL

DISTRICT,

Plaintiff,

V.P. b/n/f JUAN and SYLVIA P.,

)

)

)

)

)

v. )

)

)

)

Defendant. )

)

MEMORANDUM AND RECOMMENDATION

Pending before the court’ is Plaintiffs Motion for

Partial Summary Judgment (Docket Entry No. 70),

Defendant’s Motion for Summary Judgment (Docket

* This case was referred to the undersigned magistrate judge

pursuant to 28 U.S.C. § 636(bX1XA) and (B), the Cost and Delay

Reduction Pian under the Civil Justice Reform Act, and Federal

Rule of Civil Procedure 72. Docket Entry No. 47.

60a

Entry No. 71), and the responses filed thereto. The

court has considered the motions, all relevant filings,

and the applicable law. For the reasons set forth

below, the court RECOMMENDS that Plaintiffs

Motion for Partial Summary Judgment be GRANTED

and Defendant’s Motion for Summary Judgment be

DENIED.

I. Case Background

The issue before the court arises from an appeal of

the decision of a special education hearing officer in a

Texas Education Agency proceeding filed under the

Individuals with Disabilities Education Act (“IDEA”).’

A. Underlying Facts

Defendant V.P. (“Defendant”) qualified for special

education services in 2001 as a_ six-year-old

kindergarten student at Wainwright Elementary

School.* Upon Defendant’s qualification, an Admission,

Review, and Dismissal (““ARD”) Committee began

holding annual meetings in order to prepare an

individualized education program (“IEP”), which is a

written statement of a disabled child’s present level of

academic achievement, measurable annual educational

goals, and special education, related services, and

other accommodations to be provided. See 20 U.S.C.

§ 1414(dX1)(B); Adam J. ex rel. Robert J. v. Keller

Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir. 2003).

* 20 U.S.C. §§ 1400-1482.

* See Administrative Record, Docket Entry No. 13, vol. IV, p. 978.

6la

At ARD meetings in May of 2004, Defendant’s

mother withheld consent to the ARD-approved [EP for

the upcoming school year. Defendant's mother

indicated that she was dissatisfied with her daughter’s

progress and that her daughter required more

intensive services. Defendant’s parents subsequently

withdrew Defendant from Wainwright Elementary and

enrolled her in a private school, the Parish School,

which is designed for children with different language-

based learning disabilities. She began attending the

Parish School in September of 2004.‘

In August of 2004, Defendant filed a Request for

Special Education Due Process Hearing and Required

Notice with the Texas Education Agency. A hearing

officer issued a decision on February 10, 2005, finding

Houston Independent School District (“Plaintiff”) had

failed to provide Defendant a Free and Appropriate

Public Education (“FAPE”), to develop IEPs reasonably

calculated to provide educational benefits to

Defendant, and to consider an appropriate placement

for Defendant.® The hearing officer also considered

whether Defendant’s parents were entitled

reimbursement for Defendant’s placement at the

Parish School.’ The officer concluded that the parents

had complied with the procedural conditions precedent

* See id., vol. IIC, at p. 572.

® See id., vol. I, at pp. 163-69.

* See Plaintiff's Original Complaint (“Complaint”), Docket Entry

No. 1, Ex. A, Final Decision of the Hearing Officer, p. 2

(unnumbered).

” See id. at p. 20.

62a

and that the Parish School is an appropriate

placement for Defendant. Defendant was awarded

reimbursement for enrollment at the Parish School

“during the 2004-05 school year.”

B. Procedural History

Plaintiff filed its Complaint against Defendant on

May 10, 2005, seeking to overturn the hearing officer’s

decision.”® In Defendant’s Answer and Counterclaim,

filed June 9, 2005, she requested the court uphold the

portion of the hearing officer’s decision in her favor

and award attorney’s fees, related costs, and “other

and further relief to which she is entitled.”"’ In her

Counterclaim, Defendant requested the court “enter a

judgment that the portion of the hearing officer’s

conclusion that [Plaintiff] provided [Defendant] with

FAPE . . . was contrary to the facts and the law” and

award “monetary and compensatory relief as the Court

determines is appropriate.”” After the amended

pleadings deadline had passed,” Defendant filed

id.

é i

id.

” See Complaint, Docket No. 1, p. 2.

" Defendant’s Original Answer & Counterclaim (“Answer &

Counterclaim”), Docket Entry No. 5, p. 5.

'* Id. at p. 14.

"™ See Scheduling Order, Docket Entry No. 8, p. 1. Amended

pleading deadline was set as October 8, 2005.

63a

several motions to submit additional evidence.” In

each motion, Defendant indicated, inter alia, that she

had incurred additional educational costs at the Parish

School since the decision of the administrative hearing

officer and she offered to submit such costs for

reimbursement.”

In a motion hearing held on August 9, 2006, the

court indicated that, prior to the case decision, it would

consider reimbursement for the 2004-2005 school year,

but not those expenses incurred following the hearing

officer’s order."* The court explained that Defendant’s

request for reimbursement for the 2005- 2006 school

year (the period following the hearing officer's

decision) constituted a new claim for relief."’

Plaintiff filed a Motion for Summary Judgment on

June 23, 2006, requesting the decision of the

administrative hearing officer be overturned and

Defendant’s counterclaims be dismissed.” On March

2, 2007, this court issued a Memorandum and

14 See Defendant's Motion to Submit Additional Evidence, Docket

Entry No. 20, pp. 1-2; Defendant’s Amended Motion to Submit

Additional Evidence, Docket Entry No. 26, pp. 1-2; Defendant’s

Supplemental Motion to Submit Additional Evidence

(“Supplemental Motion”), Docket Entry No. 34, pp. 2-3.

® See id.

16 See Minute Entry Order dated August 9, 2005, Docket Entry

No. 53; Hearing on August 9, 2005.

'’ See id.

'® See Plaintiffs Motion for Summary Judgment, Docket Entry

No. 29, pp. 38-39.

64a

Recommendation (“M&R”) affirming the hearing

officer’s decision in all respects, including a finding

that Defendant was entitled to reimbursement of the

costs associated with private school placement during

the 2004-2005 school year."® This court refrained from

addressing the matter of reimbursement for the costs

of the Parish School during the pendency of review, as

well as the extent of reimbursement.” The court

adopted the M&R and ordered parties to engage in

settlement discussions regarding the amount of

reimbursement.” The parties were unable to reach an

agreement and an evidentiary hearing was held on

June 20, 2007.” Both parties stipulated the amount of

reimbursement for the 2004-2005 school year was

$16,125.30, and, if it was ultimately determined that

Defendant was entitled to reimbursement for the 2005-

2006 school year, the reimbursement for that year was

also stipulated to be $16,125.30.% The parties were

ordered to file cross-motions on Defendant’s

entitlement to such reimbursement.” Accordingly, the

primary issue now before the court is whether

See Memorandum and Recommendation, Docket Entry No. 58,

p. 41.

® See id.

™° See Order Adopting Magistrate Judge’s Memorandum and

Opinion, Docket Entry No. 61; Order dated March 22, 2007,

Docket Entry No. 62, p. 2.

See Minute Entry Order dated June 20, 2007, Docket Entry No.

69; Hearing on June 20, 2007.

* Id.

* Id.

65a

Defendant is entitled to reimbursement for attendance

costs at the Parish School for the 2005-2006 school

year.

Il. Analysis

In general, summary judgment is appropriate when

evidence reveals that no genuine dispute exists

regarding any material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Brown v. City of Houston, 337 F.3d 539, 540-41

(5th Cir. 2003). When considering the evidence,

“(djloubts are to be resolved in favor of the nonmoving

party, and any reasonable inferences are to be drawn

in favor of that party.” Evans v. City of Houston, 246

F.3d 344, 348 (5th Cir. 2001); see also Boston Old

Colony Ins. Co. v. Tiner Assocs. Inc., 288 F.3d 222, 227

(5th Cir. 2002).

This case does not directly fall under the general

summary judgment standard, as the issues before the

court are solely those of law. There is no factual

dispute. Furthermore, this case does not directly fall

under’ the unique standard of review under IDEA,

because the court is no longer reviewing the hearing

66a

officer’s decision.” Thus, the court is not following a

“virtually de novo” standard of review.

Plaintiff moves for partial summary judgment

denying Defendant’s request for reimbursement for

2005-2006 private school expenses. The basis of the

motion is Defendant’s failure to properly demand relief

as required under Fed. R. Civ. P. 8(aX2). Plaintiff

asserts that Defendant’s use of boilerplate language

and failure to amend pleadings did not put Plaintiff on

notice that Defendant would be _ seeking

reimbursement.

In Defendant’s Motion for Summary Judgment,

Defendant asks the court to award all costs, including

transportation and pre- and post-judgment interest,

associated with Defendant’s placement at the Parish

School from the date of enrollment until a final order

* The IDEA directs courts, when reviewing a state hearing

officer’s decision, to receive the records of the administrative

proceedings, to hear additional evidence at the request of a party,

and to grant appropriate relief based on a preponderance of the

evidence. 20 U.S.C. § 1415GX2Xc). The court must accord due

weight to the hearing officer's findings, but also must review the

evidence and must “reach an independent decision based on a

preponderance of the evidence.” Houston Indep. Sch. Dist. v.

Bobby R., 200 F.3d 341, 347 (5th Cir. 2000Xquoting Cypress-

Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th

Cir. 1997)); see also Adam J. ex rel. Robert J. v. Keller Indep. Sch.

Dist., 328 F.3d 804, 808 (5th Cir. 2003). The Fifth Circuit refers

to the district court’s standard of review as “virtually de novo.”

Adam J. ex rel. Robert J., 328 F.3d at 808; Bobby R., 200 F.3d at

347.

67a

is entered by the court.” Defendant contends that,

pursuant to 20 U.S.C. § 1415G), and regardless of any

failure to particularly state a claim, Defendant’s

placement at the Parish School is the “pendency” or

“stay put” placement and Defendant is entitled to an

automatic injunction providing tuition reimbursement

during appeal and until such time as Plaintiff offers an

appropriate program. Defendant also claims that it is

within the court’s discretion to award “appropriate”

reimbursement.

A. Pleading Requirements

The general rules of pleading require that a

pleading which sets forth a claim for relief “contain . . .

a short and plain statement of the claim showing that

the pleader is entitled to relief, and . . . a demand for

judgment for the relief the pleader seeks.” Fed. R. Civ.

P. 8(aX(2). Acomplaint must provide “fair notice” of the

nature of a claim, as well as the “grounds” upon which

the claim rests. See Bell Atlantic Corp. v. Twombly, —

U.S. -—, 127 S.Ct. 1955, 1965 (2007). A pleading that

contains only a “bare bones” allegation that a wrong

occurred and does not plead any of the facts giving rise

to the injury, does not provide adequate notice. Beanal

v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir.

1999).

* In Defendant’s Motion for Summary Judgment, Defendant

argues at length that the hearing officer’s determjnation that

Defendant was denied a FAPE should be affirmed by this court.

The court has already issued a decision on the hearing officer’s

order and disregards Dcfendant’s arguments on this matter as

moot.

68a

The Supreme Court has cautioned that a claim

“extracted late in the day” from a “general prayer for

relief and asserted solely to avoid otherwise certain

mootness” calls for “close inspection.” Arizonans for

Official English v. Arizona, 520 U.S. 43, 71 (1997). In

the context of an IDEA reimbursement claim, other

circuits have found the use of boilerplate language

insufficient to read such a claim into a complaint. See

Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d

828, 833 (D.C. Cir. 2006) (reasoning that a boilerplate

request for “any other relief the Court deems just” did

not entitle a party to add additional claims in an

attempt to defeat a mootness defense); Brown v.

Bartholomew Consol. Sch. Corp., 442 F.3d 588, 598

(7th Cir. 2006) (declining to infer a request for

reimbursement when the complaint contained no

specific mention of such); Lillbask v. Connecticut Dep’t

of Educ., 397 F.3d 77, 90 (2d Cir. 2005) (finding a

general request for “other such relief as the Court

deems appropriate” insufficient to constitute a claim

for compensatory educational services which were not

specifically requested in the complaint); Thomas R.W.

v. Massachusetts Dep’t of Educ., 130 F.3d 477, 480 (1st

Cir. 1997) (finding a general prayer for “such relief as

this court deems just and proper” did not preserve a

request for damages and avoid mootness on a claim for

reimbursement). Courts have also considered the

presence of language requesting IDEA-related

reimbursement in subsequent motions and, likewise,

found such late mention insufficient to constitute a

claim for relief. See Brown, 442 F.3d at 598; Lillbask,

397 F.3d at 90.

There is no dispute that Defendant did not

explicitly request tuition reimbursement for the 2005-

2006 school year in her Answer and Counterclaim. In

69a

such pleadings, Defendant refers to the hearing

officer’s administrative order, but that order was

confined solely to reimbursement for the 2004-2005

school year.”” There was no mention of continuing

educational expenses or tuition reimbursement for

2005-2006.

Defendant alleges that her use of boilerplate

language (“such other and further relief to which she

is entitled;”” “additional monetary and compensatory

relief as the Court determines is appropriate”)

constitutes a claim for reimbursement for 2005-2006.

However, as cautioned by the Court in Arizonans, a

general prayer for relief calls for close inspection. 520

U.S. at 71. Defendant’s general claim contains

boilerplate language equivalent to that which courts

have found, when alone, to be insufficient to preserve

a claim for compensatory educational services.

Plaintiff highlights the fact that Defendant had

ample opportunity to amend her pleadings to include

a claim for tuition reimbursement for 2005-2006. In a

motion hearing on August 9, 2006, the court

specifically indicated to Defendant that her request for

reimbursement for the 2005-2006 school year

constituted a new claim for relief.” Regardless,

71 See Complaint, Docket Entry No. 1, Ex. A, Final Decision of

Hearing Officer, p. 2 (unnumbered).

7° Answer & Counterclaim, Docket Entry No. 5, p.5.

* Id. at p. 14.

*® See Minute Entry Order dated August 9, 2005, Docket Entry

No. 53; Hearing on August 9, 2005.

70a

Defendant still failed to file any motion requesting

leave of court or consent of Plaintiff to amend the

pleadings. See Lillbask, 397 F.3d at 90-91 (considering

the failure to amend pleadings when dismissing a

compensatory educational services claim as moot).

Plaintiff filed subsequent motions to submit

additional evidence, but such motions do not, by

themselves, establish an additional claim for relief. Id.

at 90. Defendant’s late mention of additional and

ongoing education costs at the Parish School™ does not

properly meet the requisite timing and form necessary

to put Plaintiff on notice of the 2005-2006

reimbursement claim. See Brown, 442 F.3d at 598.

Accordingly, the court finds that the pleadings were

insufficient to put Plaintiff on notice that Defendant

was seeking reimbursement for the 2005-2006 school

year at the Parish School.

B. Court’s Discretion to Award “Appropriate

Relief”

Alternatively, Defendant claims she is entitled to

2005-2006 tuition expenses pursuant to the court’s

broad discretion to award “appropriate”

reimbursement.

IDEA provides for judicial review of an

administrative due process hearing and grants the

reviewing court the authority to “grant such relief as

the court determines is appropriate.” 20 U.S.C.

§ 1415(e)(2). The Supreme Court has determined that

*! See Supplemental Motion, Docket Entry No. 34, p. 2-3.

7la

the Act authorizes courts to order school authorities to

retroactively reimburse parents for private education

expenses if that court ultimately decides that private

placement, and not a proposed IEP, is appropriate

under the Act. See Sch. Comm. of Burlington v. Dep’t

of Educ. of Mass., 471 U.S. 359, 369 (1985). Burlington

further suggests that, in such a case, “appropriate

relief would include a prospective injunction directing

the school officials to develop and implement at public

expense an IEP placing the child in a private school.”

Id. at 370 (internal quotation omitted).

The court acknowledges that it holds discretion to

award reimbursement, but Defendant has failed to

persuade the court to exercise that discretion in this

case. The discretion of the court is broad, but not

limitless. It does not grant the court the power to

ignore the Federal Rules of Civil Procedure. The court

will not impute notice on Plaintiff when Defendant has

not followed the pleading guidelines.

C. “Stay Put” Provisions

Finally, the court addresses Defendant’s argument

that she is entitled to reimbursement for the 2005-

2006 school year based upon the “stay put” provision

of IDEA. The “stay put” provision states in pertinent

part: “During the pendency of any proceedings

conducted pursuant to this section, unless the State or

local educational agency and the parents otherwise

agree, the child shall remain in the then-current

educational placement... .” 20 U.S.C. § 1415()).

The Fifth Circuit has indicated that a stay put

order is a collateral order and that resolution of stay

put issues are completely separate from merits issues

72a

focusing on the adequacy of a proposed IEP. See St.

Tammany Parish Sch. Bd. v. Louisiana, 142 F.3d 776,

781-82 (5th Cir. 1998).

Pendency placement is not at issue in this case

because Defendant’s placement did not change during

the course of these court proceedings. This case

concerned whether Plaintiff provided Defendant with

a FAPE, whether IEPs were reasonably calculated to

previde educational benefits to Defendant, and

whether the Parish School was an appropriate

placement for Defendant for the 2004-2005 school

year. The maintenance of Defendant at her current

educational placement for future years was not

directly questioned or raised at the administrative

level.

The court has acknowledged its discretion to award

appropriate relief to parents with IDEA claims,

including retroactive reimbursement of educational

costs. St. Tammany suggests that such discretion may

also be exercised when considering costs pending a

merits decision. 142 F.3d 782-83. A school district may

be held responsible for maintaining a_ certain

placement during the pendency of court proceedings.

However, as noted previously, discretion is not

unlimited. This court will not disregard Defendant’s

failure to properly and timely raise any pendency

placement reimbursement issues during the course of

litigation.

The court concludes that Defendant is not entitled

to reimbursement for 2005-2006 school expenses under

the stay put provisions of IDEA. In consideration of

the court’s disposition, Defendant is not entitled to

attorney’s fees or pre- and post-judgment interest for

73a

the 2005-2006 school year, as she was not a prevailing

party. See 20 U.S.C. § 141501 X3)(BXi).

Il. Conclusion

Based on the foregoing, the court RECOMMENDS

that Plaintiffs motion for partial summary judgment

be GRANTED and Defendant’s motion for summary

judgment be DENIED.

The Clerk shall send copies of this Memorandum

and Recommendation to the respective parties who

have ten days from the receipt thereof to file written

objections thereto pursuant to Federal Rule of Civil

Procedure 72(b) and General Order 2002-13. Failure to

file written objections within the time period

mentioned shall bar an aggrieved party from attacking

the factual findings and legal conclusions on appeal.

The original of any written objections shall be filed

with the United States District Clerk, either

electronically or by mail to P.O. Box 61010, Houston,

Texas, 77208. Copies of such objections shall be mailed

to opposing parties and to the chambers of the

undersigned, 515 Rusk, Suite 7019, Houston, Texas

77002.

SIGNED in Houston, Texas, this llth day of

September, 2007.

/s/

Nancy K. Johnson

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION H-05-1686

[Filed March 22, 2007]

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff,

V.P. B/N/F JUAN AND SYLVIA P.,

Defendants.

)

)

)

)

Vv. )

)

)

)

)

)

ORDER ADOPTING MAGISTRATE J UDGE’S

MEMORANDUM AND OPINION

Having reviewed the Magistrate Judge's

Memorandum and Recommendation and the objections

thereto, the court is of the opinion that both parties’

objections should be OVERRULED.

It is, therefore, ORDERED that the Memorandum

and Recommendation is hereby ADOPTED by this

court. The decision of the Hearing Officer is affirmed

with respect to the determinations on Plaintiffs

75a

procedural and substantive compliance with the

Individuals with Disabilities Education Act. Issues

related to reimbursement will be addressed under the

direction of the Magistrate Judge. Therefore, Plaintiff's

motion for summary judgment (Dkt. 29) is GRANTED

IN PART and DENIED IN PART.

Signed at Houston, Texas on March 22, 2007.

/s/

Gray H. Miller

United States District Judge

76a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-05-1686

[Filed March 2, 2007]

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff,

v.

VP by next friend, Juan and Sylvia P,

Defendant.

MEMORANDUM AND RECOMMENDATION

Pending before the court’ is Plaintiffs Motion for

Summary Judgment (Docket Entry No. 29). The court

has considered the motion, all relevant filings, and the

applicable law. For the reasons set forth below, the

' This case was referred to the undersigned magistrate judge

pursuant to 28 U.S.C. § 636(bX 1A) and (B), the Cost and Delay

Reduction Plan under the Civil Justice Reform Act, and Federal

Rule of Civil Procedure 72. Docket Entry No. 47.

Tla

court RECOMMENDS that Plaintiffs motion be

GRANTED IN PART AND DENIED IN PART.

I. Case Background

This is an appeal of the decision of a special

education hearing officer in a Texas Education Agency

proceeding filed under the Individuals with

Disabilities Education Act (“IDEA”).”

A. Assessments, Placement, and Implementation

Defendant V.P. (“Defendant” or “V.P.”) first

qualified for special education services in 2001 under

the category of “speech impairment” due to “a severe

deficit in receptive/expressive language.” In April

2003, V.P. received hearing aids and, thereafter, also

qualified for special services under the category of

“auditory impairment” due to “mod|[erate]-to-severe

sensorineural hearing loss in [both] ear[s].“% In May

2003, V.P. was in her second semester of kindergarten

at Wainwright Elementary School.® She was six years

old.® V.P. began first grade in the fall of 2003.’

720 U.S.C. $§ 1400-1482.

? Administrative Record, Docket Entry No. 13, (“A.R.”), vol. IV, p.

855; see also id. at 852, 917, 943.

*Id. at p. 979; see also id. at pp. 873, 898, 978.

” See id. at p. 1001.

78a

In August 2003, V.P. began using an FM system,

which amplified the teacher’s voice through V.P.’s

hearing aids.* Debra Harris (“Harris”) was the school

nurse at Wainwright Elementary beginning in the

2003-04 school year.*? She oversaw V.P.’s use of the

system and provided training to school staff, but had

no regular consultation with an audiologist.”° Harris

testified that, when she picked up the FM system to be

used by V.P. from T. H. Rogers Elementary, she

received brief instruction and witnessed a

demonstration on its use."’ When she returned to

Wainwright Elementary, she provided V.P.’s general

education teacher with the system, some printed

material about the system, and instructions.”

V.P. used the system successfully until another

student damaged the loop component” sometime in

mid to late September.’* Harris returned the loop

component to T. H. Rogers Elementary via interoffice

* See id. at vol. IIB, pp. 407-08.

* Id. at p. 407.

'° See id. at pp. 407-08, 412, 420-21.

" Id. at p. 408.

? See id.

'? The loop component transmitted the sound of the teacher's voice

directly through V_P.’s hearing aids. See id. at vol. ILA, pp. 154-55.

' See id. at vol ILB, p. 460; but see id. at p. 409 (stating that the

nurse did not have the exact date, but recalled that the system

was damaged in mid to late October).

79a

mail.” While the loop was unavailable, V.P. used

headphones with the system, but experienced some

difficulty understanding proper use of the

headphones." In fact, on October 7, 2003, the itinerant

teacher for hearing-impaired students, Reba Powell-

Ivory (“Ivory”), noticed that V.P. was wearing the

headphones over her hearing aids, which was an

incorrect usage.’” Although Harris did not have the

exact dates of when the system was damaged and

replaced, she estimated that the loop component was

out of service for about three to four weeks.” V.P.’s

mother recalled that the loop component was out of

commission until November 21, 2003.*°

On a few other occasions, school staff questioned

the functionality of the system.” During the fall, V-P.

used the headphones in the place of the loop on at least

two other occasions, once when she lost her hearing

5 See id. at p. 410.

See id. at pp. 410-11, 414.

"” See id. at pp. 411, 463-64; vol. IIIB, p. 513. Patricia Moncada

(“Moncada”), an audiologist who treated V.P. beginning in

January 2003, expressed concern at the hearing about the use of

a headset with hearing aids. Id. at vol. IIA, pp. 139, 142, 155. She

testified that usage of the headphones over the hearing aids could

cause a myriad of problems, including feedback or whistling from

the hearing aids and sound leakage around the hearing aid

microphones. See id. at p. 155.

*® See id. at vol. IIB, pp. 409, 412, 418.

' Id. at p. 460.

*” See id. at pp. 420-21.

80a

aids and once when she had an infection behind her

right ear that prevented her from wearing her hearing

aids.”

An annual Admission, Review, and Dismissal

(“ARD”) Committee” meeting convened on October 7,

2003, to review V.P.’s progress and to develop an

educational program for first grade.” V.P.’s parents,

the school principal, V.P.’s general education teacher,

the special education chair, an itinerant teacher for

hearing impaired students, a speech therapist, and an

language proficiency assessment committee (“LPAC”)

representative attended the meeting.“ The minutes

from the meeting reflect the mother’s concern that V.P.

cried when working on homework because she did not

* See id. at p. 419; vol. ILA, pp. 104-05.

= In Texas, the ARD Committee is charged with preparing a

student’s individualized education program (“IEP”), which is a

written statement of the disabled child’s present level of academic

achievement, measurable annual educational goals, and special

education, related services, and other accommodations to be

provided to the child. The ARD Committee is composed of the

disabled child’s parent(s), at least one special education teacher

and/or one regular education teacher, a representative of the

school district, someone who can provide insight into the

instructional implications of the child’s clinical evaluation, and,

when appropriate, other individuals with special knowledge or

expertise related to the child and the child herself. See 20 U.S.C.

§ 1414 (dX1XB); Adam J. ex rel. Robert J. v. Keller Indep. Sch.

Dist., 328 F.3d 804, 808 (5th Cir. 2003).

* See A.R., vol. IV, pp. 1001, 1014.

* See id at p. 1019.

8la

understand the directions.” V.P.’s mother also

informed the committee that the parents had hired a

private tutor and a private speech/language provider

to work with V.P. after school.™ V.P.’s general

education teacher, Karen Williams (“Williams”),

reported that she could not understand V.P.’s speech,

sometimes even after several attempts.” V.P.’s speech

therapist, Yvonne Frankiewicz (*Frankiewicz”),

reported that V.P. had made progress in speech,

including improved intelligibility.“ The minutes

indicate that V.P. followed the school rules and did not

need any behavior intervention.”

The committee discussed the oral deaf program at

Sutton Elementary as a possible placement for V.P.,

but decided, instead, to implement the following

additional modifications at Wainwright Elementary for

a thirty-day trial period: frequent breaks, content

mastery, one-on-one instruction for every subject, and

in-class support for reading, language or math.”

According to the notes, the committee also

recommended academic and audiological testing.” The

program plan to assist V.P. with speech included one

* Id. at p. 1014.

* See id. at p. 1016.

* See id. at pp. 1003, 1015-16.

*\ Id. at p. 1016, 1017.

82a

and one-half hours of group speech therapy per week

and thirty minutes of individual speech therapy once

per week.”

For auditory amplification, the committee noted

that V.P. wore hearing aids and, when in the

classroom, used the FM system.™ Ivory reported that

she had given each of V.P.’s teachers a copy of “Tips for

Working with Hearing Impaired Students,” a one-page

flyer that identifies about a dozen strategies that

assist hearing-impaired children learn in_ the

classroom.” Despite V.P.’s qualification as hearing

impaired and her mother’s request for intensive

language service, the committee did not propose deaf

education with Plaintiffs itinerant teacher for hearing-

impaired students.”

Also in October, V.P. was working with Amy Powell

(“Powell”), special education chair, on content mastery,

when Powell raised her voice toward V.P. in

frustration.” V.P. began to cry, and Powell stopped the

™ See id. at p. 1018.

* See id. at p. 1017.

* See id. at pp. 1017, 1156.

* See id. at pp. 1001, 1003, 1015.

** See id. at vol. ILA, pp. 238-42; but see id. at vol. IIC, p. 579

(providing Powell’s testimony that V.P. refused to work and

started crying when Powell threatened to tell V.P.’s mother that

she was not working).

83a

session.” After the incident, V.P.’s mother met with

Powell, a special education coordinator, the school

counselor, and a school psychologist to process the

incident.” Powell reported that the primary technique

she used with V.P. was to read her the material.” The

special education coordinator explained that other

teaching techniques were more effective with hearing-

impaired students.“ Although Powell had attended the

most recent ARD committee meeting, at which Ivory

indicated that she had provided a tips handout on how

to work with hearing-impaired students, Powell said

that she had not seen the handout and was not

employing the suggested techniques.*’ The group

decided to give V.P. a couple of weeks off from content

mastery.” A “couple of weeks” turned into the

remainder of the fall semester.** Additionally, a

teacher’s aide who had been assisting V.P. in class

*’ See id. at vol. IIA, p. 239; but see id. at vol. IIC, pp. 579-80

(providing Powell’s testimony that she allowed V.P. a few minutes

to calm down before completing the content mastery session,

during which remaining time, V.P. worked “beautifully[,} did all

her work, did it all correctly”).

* See id. at vol. IIB, p. 471.

™ See id.

“ See id.

41

yp

-

|

42

3

id. at p. 472.

* See id. at p. 473.

84a

stopped doing so sometime in the fall, apparently at

the direction of the school principal.“

The following month, V.P.’s mother and Powell

engaged in a heated discussion in the school office.“ A

school clerk testified that Powell was careless with

confidential information during the exchange, but was

uncertain whether anyone other than school personnel

was within earshot.“

In late November, school staff administered a series

of tests and completed screening forms in an effort to

evaluate V.P.’s educational abilities.‘ Testing was

performed in both Spanish and English because of

V.P.’s exposure to both languages.“ On a language

proficiency evaluation, Debra Charro (“Charro”),

educational diagnostician, found V.P. to have Spanish

and English language oral skills that were very low

compared to others at her age level.“ Charro opined

that V.P. would find the Spanish oral language

demands of age-level tasks impossible and English oral

language demands very to extremely difficult.” The

administration of other tests revealed that V.P.’s

“Id. at vol. ILA, pp. 127-28.

*’ See id. at vol. IV, pp. 876-908.

* See id. at p. 897.

® See id. at p. 880.

® See id

85a

performance in English was average in written

language and written expression and low average in

basic reading skills, reading comprehension, basic

mathematics skills, and mathematics reasoning.”

V.P.’s abilities to read and write in Spanish were

negligible. *”

A couple of days after testing V.P., Charro observed

V.P.’s classroom performance, noting that she was

attentive to the lesson presentation, did not participate

in group reading of instructions, remained focused on

the class assignment only for short periods of time

before needing redirection, and did not finish the

assignment.”

Williams completed a behavior rating scale for V.P.

and ranked her as average in cooperation, attention,

ability to organize, ability to adapt to change,

acceptance of responsibility, and assignment

completion.™ Williams rated V.P. as above average in

social acceptance and socialization.” As far as oral

language skills, Williams gave V.P. the second lowest

rating in every category: sentence _ structure,

*' See id. at p. 884. The record contains, without explanation, a

second evaluation dated the same day, based on the same tests

administered by the same evaluator, but which reflects that V.P.

performed at an average level in all subjects. See id. at p. 890.

See id. at p. 884.

* See id. at pp. 893, 900.

™“ See id. at p. 894.

» See id.

86a

vocabulary ability, word recall, story-telling, idea

formulation, and speech.”

Based on the above assessments, Charro issued a

Full and Individual Initial Evaluation dated December

1, 2003." She reported V.P.’s full scale intelligence

quotient (“FSIQ”) as 90, which is in the average range

of functioning. Among other recommendations,

Charro suggested preferential seating, small group

instruction and/or peer tutoring, small clusters of

work, creative projects as alternatives to written

reports, and use of pictures, objects, or charts to teach

key vocabulary words and concepts.”

Charro indicated that V.P. needed to utilize hearing

aids and assistive listening equipment to support her

hearing needs.” She opined that V.P.’s_ severe

discrepancies between intelligence and achievement in

oral expression and listening comprehension was a

product of her hearing loss rather than due to any

learning disability.”

* See id. at p. 895.

*” See id. at pp. 897-909.

* See id. at p. 901.

® See id. at p. 905.

© See id.

*! See id. at pp. 907, 909.

87a

The next ARD meeting was held at the end of

January 2004." Attendees who had been at the

previous meeting included V.P.’s parents, the school

principal, the special education chair, the teacher for

hearing-impaired students, and the LPAC

representative.™ In addition, V.P.’s ancillary teacher

for writing, the educational diagnostician who

evaluated V.P. in November, two attorneys, the deaf

education manager, and the director of special

education attended.” V.P.’s teacher was ill and did not

attend, but later testified that she continued to have

concerns at that time about V.P.’s grades and speech

intelligibility.©

Charro presented the results of her educational

evaluation.” It was noted that V.P. failed language

arts and reading during the first and second nine

weeks of the fall semester.’ The ARD committee noted

that V.P. was not attending content mastery, which

was one of her IEP services agreed upon at the

previous meeting. The group reached a general

consensus that content mastery was an important part

of V.P.’s educational program and should be utilized by

* See id. at pp. 1024-41.

™ See id. at pp. 1019, 1041

™ See id. at p. 1041

See id. at vol. IIC, pp. 644-45

® See id. at vol. 1V., p. 1037

*? See id. at p. 1038.

See id. pp. 1003, 1016, 1037.

88a

V.P. for at least one hour per week.” They decided

that, if V.P.’s teacher felt in-class support would be

more appropriate at any particular time, she could

schedule it in advance.” The record does not reflect

that anyone in the meeting took responsibility for

sharing this information with Williams.”

The deaf education manager, Gillian Brown

(“Brown”), explained that special services had to be

provided at a child’s home school before the district’s

deaf education program could be considered as a

placement.” She also noted that the school bore the

responsibility of ensuring that the FM system was

functioning properly.” Ivory reported that she had

provided V.P.’s classroom teacher with inservice

training on the FM system.” Discussion briefly

addressed V.P.’s ability to participate in class

discussions in light of the FM system’s amplification of

only the teacher’s voice.”” Brown made two suggestions

to alleviate the problem, but favored passing the

microphone around during classroom discussions over

™ See id. at p. 1038

” See id

" See id

™ See id. at p. 1037

” See id.

* See id

™ See id

89a

providing a conference system, due to the increase in

background noise with the latter option.”

The committee adopted the following modifications

for V.P.: amplification system, visual cues, preferential

seating, teacher presentation facing V.P., questioning

for understanding, speech and language services,

content mastery, small group instruction, and

modifications on standardized testing.”” The speech

and language services included two hours per week of

speech therapy and one hour per week with the

itinerant teacher for hearing-impaired students.”

V.P.’s plan involved a total of four hours of services per

week out of the regular classroom.” The notes reflect

consideration of the negative effects of the isolation

from peers, but deemed it necessary for V.P.’s benefit.”

V.P.’s goals included developing auditory memory

for sounds and words by identifying them sequentially

(ninety percent mastery), discriminating between

speech sounds accurately (eighty-five percent

mastery), discriminating between like words differing

in medial vowel sounds (eighty percent mastery), and

See id

™ See id. at pp. 1026, 1034, 1037, 1038.

™ See id. at p. 1026.

™ See id.

“Id. at p. 1034.

90a

mastering grade level Texas Essential Knowledge and

Skills (TEKS) concepts (seventy percent mastery).™

V.P.’s parents initially disagreed with the planned

IEP because they supported placement in the oral deaf

program at Sutton Elementary.“ After some

discussion with the deaf education manager, the

director of special education, and the attorneys, the

parents changed their decision and indicated their

agreement with the proposed IEP.”

Although the IEP did not authorize the

modification of classroom tests, Williams modified

V.P.’s testing requirements in several ways, such as

giving her fewer spelling words to learn and exempting

her from sentence dictation examinations.” Williams

implemented the modifications based on Powell’s

representation to Williams that the January ARD

committee ordered testing modifications.” V-P.’s

grades improved with the modifications.”

Frankiewicz performed a speech and language

assessment in April 2004." Upon review of education

*" See id. at pp. 1028, 1029.

™ See id. at p. 1038.

™ See id. at pp. 1038, 1041.

™ See id. at vol. LIC, pp. 641-43, 649 51, 667

™ See id. at pp. 667, 677.

™ See id. at p. 649.

*’ See id. at vol. IV, pp. 910-916

9la

records, observation, and a parent interview,

Frankiewicz found that V.P.’s educational performance

was below her grade-level placement.™ She also

reported that V.P. experienced difficulties in the areas

of listening comprehension, oral expression,

comprehension of long phrases and sentences, question

response, and answer explanation, all of which

interfere with V.P.’s success in class.” According to

Frankiewicz, these difficulties most likely result from

V.P.’s severe hearing loss.” V.P. also demonstrated

inadequate ability “to use and understand the

language in classroom speaking and listening tasks”

and inadequate metalinguistic skills, per the report.”

Other deficits included syntax, semantics, morphology,

and pragmatics.”

Based on informal and standardized testing,

Frankiewicz identified the following strengths: ability

to follow simple directives, knowledge of classroom

routines, ability to speak in basic sentences, and fluent

speech. She also identified the following weaknesses:

“lilnsufficient language skills to complete instructional

tasks,” “[l]imited use of language for a variety of

academic purposes,” “[llimited use of effective

% See id. at p. 911.

® See id. at p. 912.

™ See id.

*' See id.

* See id. at pp. 912, 914.

% See id. at p. 914.

92a

strategies when attempting curricula tasks,”

misarticulation that affects intelligibility, difficulty

with error sounds, “[t]hree or more phonological

processes operating consistently,” imprecise or unclear

speech, “[iJnadequate processing of verbal and

nonverbal stimuli,” use of gestures in response to

verbal stimuli on occasion, and use of incorrect or age-

inappropriate vocabulary and syntactical patterns.”

Frankiewicz found that V.P. “exhibited a severe

communication disorder secondary to the primary

impairment(s) of auditory impairment” and that she

continued to meet the eligibility criteria for speech

impairment.* Frankiewicz recommended instructional

strategies related to articulation, receptive language,

expressive language, and voice.”

The ARD committee convened again on May 14,

2004.*’ In attendance were V.P.’s mother, her general

education teacher, the school principal, the speech

therapist, the special education chair, an LPAC

representative, and two _ special education

coordinators.” Ivory attended telephonically.”

™ See id.

* See id. at p. 915.

* See id. at pp. 915-16.

” See id. at pp. 1052-69.

* See id. at p. 1069.

* See id. at p. 1067.

93a

Frankiewicz shared the results of her report and

noted that V.P. was making progress in speech class.’”

Ivory reported that V.P. also was demonstrating

improvement through her work with Earobics, a

software program that assists with listening skills.’”

Williams reported that V.P.’s grades were Bs and Cs

after modification of the material.’ However, she

expressed continuing concern about V.P.’s

comprehension and conversation skills.’™

After expressing appreciation for the efforts of the

teachers, V.P.’s mother stated that she was

dissatisfied with V.P.’s progress.™ In particular, V.P.’s

mother was concerned that the reports of progress

were based on subjective criteria, that V.P. had not

shown any growth, and that V.P. needed more

intensive services.” She also questioned the

November 2003 FSIQ score because it represented a

twenty point drop from testing that occurred three

years earlier."~ V.P.’s mother announced that she

10 See id.

* See id.

2 See id.

**S See id.

See id. at pp. 1067-68.

** See id.

© See id. at p. 1068.

94a

planned to withdraw V.P. from Wainwright

Elementary in order to enroll her in private school.*”

In light of V_P.’s mother’s disagreement with the

proposed IEP and the absence of V.P.’s father at the

meeting, the committee tabled the discussion for ten

days.'® On May 21, 2004, the committee reconvened.'”

V.P.’s father again was not in attendance.’ V.P.’s

mother, Williams, Ivory, and Frankiewicz, as well as

the school principal, the special education chair, an

LPAC representative, the special education director,

and a special education coordinator were present.”

V.P.’s mother again expressed a desire for V.P. to

have a more intensive language program.*” Direct

deaf education by Ivory was not included in V.P.’s LEP

until January 2004.'* Although Ivory stated that she

had provided services for V.P. consistent with the

requirements of the prior IEP, she did acknowledge

that she owed V.P. a couple of more hours of service.**

V.P.’s mother countered that she believed Ivory owed

See id.

'*6 See id.

10 See id. at pp. 1068, 1078-90.

1° See id. at p. 1090.

'! See id.

“? See id. at p. 1089.

3 See id.

4 See id.

95a

V.P. more than just a couple of hours of service.’ The

committee asked Ivory to review her service logs to

determine whether the school owed V.P. additional

service hours.*®

The committee found that V.P. had made progress

on all of her IEP goals in audiological services, that

she passed all classes in general education with

modifications.*"” The recommended additional services

for V.P. were two hours per week of speech therapy,

one hour per week of content mastery, and four hours

per month of direct auditory-impairment services.*”

The committee approved V.P.’s IEP.’” V.P.’s mother

withheld her consent to the IEP.”

V.P.’s parents withdrew V.P. from Wainwright

Elementary shortly after the May 21, 2004, ARD

meeting and enrolled her in a private school, the

Parish School, which is designed for children with

different language-based learning disabilities.’** She

™ See id.

"® See id.

"7 See id.

'™® See id.

™ See id.

1” See id. at p. 1090.

121 See id. at vol. IIB, pp. 370, 400, 489-90.

96a

began attending the Parish School in September

2004.”

On August 20, 2004, Defendant filed a Request for

Special Education Due Process Hearing and Required

Notice with the Texas Education Agency.™ The issues

raised were: 1) whether Plaintiff failed to provide free

appropriate public education (“FAPE”) to V.P.; 2)

whether Plaintiff failed to provide notice of an ARD

committee meeting to V.P.’s parents; 3) whether

Plaintiff improperly disclosed personally identifiable

information about V.P.; 4) whether Plaintiff failed to

identify in timely a fashion V.P.’s_ auditory

impairment; 5) whether Plaintiff failed to develop IEPs

reasonably calculated to provide educational benefit to

V.P.; 6) whether Plaintiff failed to implement and/or

deliver special education, related services,

supplementary aids and services and/or assistive

technology in V.P.’s IEPs; 7) whether Plaintiff denied

V.P. her choice of mode of communication; 8) whether

Plaintiff failed to provide properly trained staff to

serve V.P.; and 9) whether Plaintiff failed to consider

an appropriate placement for V.P.'* The hearing

officer conducted the due process hearing on December

13-15, 2004.”

12 See id. at vol. II.C, p. 572.

3 See id. at vol. I, pp. 163-69.

™ See Plaintiffs Original Complaint, Docket Entry No. 1, Ex. A,

Final Decision of the Hearing Officer, (“Final Decision”), p. 2

(unnumbered).

See id. at p. 3.

97a

C. Hearing Officer’s Decision

The hearing officer issued his decision on February

10, 2005.’ He ruled in favor of Plaintiff on the second,

third, fourth, sixth, seventh, and eighth issues raised,

but found that Plaintiff had failed to provide V.P. with

FAPE, to develop IEPs reasonably calculated to

provide educational benefit to V.P., and to consider an

appropriate placement for V.P.’”

In his findings of fact, the hearing officer concluded

that V.P. had intensive language development and

auditory-processing deficiencies that stemmed from

her hearing loss and an _ auditory-processing

disorder.'” He found that amplification alone was not

sufficient to ameliorate her hearing loss and that she

needed “interventions such as auditory training,

memory training, phonemic awareness training, noise

desensitization, sequencing ability training, gap-

detection training, onset time training, visual

instruction and an FM loop system.”™ Many of these

interventions, such as noise desensitization training,

gap-detection training, and sequencing training were

never contemplated by the ARD committee, according

to the hearing officer, and the services provided by

Plaintiff fell short of allowing V.P. meaningful

2% See id. at p. 22.

"27 See id. at pp. 23-25.

8 See id. at p. 11.

' See id. at p. 12.

98a

progress in the area of auditory processing.” The

hearing officer determined that V.P.’s improvement on

the listening portion of the Stanford Achievement Test

from kindergarten to first grade was “more

attributable to the hearing aids provided by her

parents than programming by [Plaintiff].”*"

In addition to the rulings on the issues presented,

the hearing officer considered whether V.P.’s parents

were entitled to reimbursement for V.P.’s placement at

the Parish School.*” He concluded that the parents

complied with the procedural conditions precedent and

that the Parish School is an appropriate placement for

V.P.** Accordingly, he awarded reimbursement “in

accordance with the documented expenses.”™

Il. Standard of Review

The IDEA directs courts, when reviewing a state

hearing officer’s decision, to receive the records of the

administrative proceedings, to hear additional

evidence at the request of a party, and to grant

appropriate relief based on a preponderance of the

evidence. 20 U.S.C. § 1415G/)(2\(c). The court must

accord due weight to the hearing officer’s findings, but

also must review the evidence and must “reach an

'™® See id.

'! See id. at p. 13.

™ See id. at p. 20.

'S See id.

' See id.

99a

independent decision based on a preponderance of the

evidence.” Houston Indep. Sch. Dist. v. Bobby R., 200

F.3d 341, 347 (5th Cir. 2000Xquoting Cypress-

Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d

245, 252 (5th Cir. 1997)); see also Adam J. ex rel.

Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808

(5th Cir. 2003). The Fifth Circuit refers to the district

court’s standard of review as “virtually de novo.” Adam

J.ex rel. Robert J., 328 F.3d at 808; Bobby R., 200 F.3d

at 347.

IIL. Analysis

Plaintiff moves for summary judgment reversing

and vacating the hearing officer’s decision with respect

to the rulings against Plaintiff and affirming the

decision with respect to the rulings in favor of

Plaintiff. Defendant asks the court for the opposite

relief: to affirm the portion of the hearing officer’s

decision that favors Defendant and to reverse the

hearing officer’s decision on those issues raised by

Defendant in her counterclaim.*”

*® Although Defendant does not move for summary judgment on

the issues, she does state in the conclusion to her response: “V.P.’s

parent is entitled to reimbursement of the costs of the Parish

school. Moreover, in view of the significant procedural and

substantive failures on the part of (Plaintiff,] V.P. is entitled to

compensatory education.” Defendant’s Amended Response to

Plaintiffs Motion for Summary Judgment, Docket Entry No. 46,

p. 51. In her surreply, Defendant “urges this Court to affirm the

portion of the hearing officer’s decision on all issues appealed by

[Plaintiff], reverse the decision on the Defendant's counter-claims,

and order full reimbursement with interest on all costs” associated

with the private school placement. Defendant’s Surreply to

Plaintiff's Motion for Summary Judgment, Docket Entry No. 52,

p. 24. The court has determined that these issues should be

100a

One of Defendant’s arguments has an overriding

impact on this recommendation and should be

addressed first. Defendant contends that the one-year

limitations period for requesting a due process hearing

to challenge a child’s educational placement should be

tolled until V.P. reaches the age of eighteen.

A. Limitations Period

Section 16.001 of the Texas Civil Practice and

Remedies Code tolls any limitations period for a

person entitled to bring a personal action while that

person is under a legal disability, which includes

minority status. Defendant argues that section 16.001

tolls the limitations period for requesting due process

hearings in IDEA actions. The court disagrees.

The Texas Administrative Code sets a time limit of

one year within which a parent or a public education

agency may request a due process hearing as provided

by the IDEA. 19 Tex. Admin. Code § 89.1151(c); see

also 20 U.S.C. § 1415(bX6)(B), (M(1)(A), (PASC). The

law does not confer the right on the minor child to

request a due process hearing. See 20 U.S.C.

§ 1415(f)(1 XA). Only after a student reaches the age of

eighteen does she gain the IDEA rights that belonged

to her parents during her minority. 34 C.F-.R.

§ 300.520(aXrecodified from 34 C.F.R. § 300.517(a)); 19

Tex. Admin. Code § 89.1049. In other words, a student

is never simultaneously: 1) entitled to request a

hearing; and 2) under a legal disability due to her age.

addressed as if it were considering cross-motions for summary

judgment.

10la

Defendant directs the court’s attention to Hickey v.

Irving, 976 F.2d 980, 981, 983 (5th Cir. 1992), a case

that the Fifth Circuit remanded for the district court

to consider the possibility of tolling the statute of

limitations applicable to the Rehabilitation Act’ due

to the plaintiffs minority at the time of the alleged

violation. That decision is inapposite because the

plaintiff there, a former student, was the party to

whom the Rehabilitation Act granted rights. Cf. id. at

983 n.4 (quoting the Rehabilitation Act’s provision

prohibiting discrimination against persons with

handicaps). The other case cited by Defendant, Tex.

Advocates Supporting Kids with Disabilities v. Tex.

Educ. Agency, 112S.W.3d 234 (Tex. App.—Austin 2003,

no pet.), does not address the issue of tolling.

The plain language of the statutes applicable here

grant the right to request due process hearings to

parents or public education agencies, not minor

students. Thus, section 16.001 of the Texas Civil

Practice and Remedies Code does not apply in cases

such as this one.

Applying the statute of limitations, the only time

period covered by the present IDEA claim is August

20, 2003, through February 10, 2005. The period

begins one year prior to the date that Defendant filed

the instant request for a due process hearing and ends

on the date that the hearing officer issued his decision.

Any complaint based on Plaintiff's actions before this

time period is barred by limitations. See 19 Tex.

Admin. Code § 89.1151(c). As for complaints based on

occurrences after the due process hearing, the court

% 29 U.S.C. §§ 701-7961.

102a

cannot exercise subject matter jurisdiction because

Defendant has not exhausted administrative remedies

under the IDEA. See 20 U.S.C. § 1415(iX2XA);

Gardner v. Sch. Ed. Caddo Parish, 958 F.2d 108, 111

(5th Cir. 1992).

B. IDEA Substantive Law

The main thrust of the IDEA is to ensure that

states provide disabled children with FAPE. See 20

U.S.C. §§ 1400(dx1XA), 1412(a), 1415(a); Morris v.

Dearborne, 181 F.3d 657, 674 (5th Cir. 1999); Daniel

R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th

Cir. 1989). The IDEA contains both procedural and

substantive requirements. See, eg... 20 U.S.C.

§§ 1412(a), 1414, 1415. Therefore, the focus of the

court’s review is twofold:

First, has the State complied with the

procedures set forth in the Act? And second, is

the individualized educational program

developed through the Act’s procedures

reasonably calculated to enable the child to

receive educational benefits?

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.

Rowley, 458 U.S. 176, 206-07 (1982); see also, Adam J.

ex rel. Robert J., 328 F.3d at 809; Bobby R., 200 F.3d

at 346.

The IDEA procedures guarantee parents the right

to examine all school records, the right to participate

in the development of TEPs for their children, and the

right to an impartial due process hearing at which

they can air their complaints about the school district’s

“identification, evaluation, or educational placement of

103a

the child, or the provision of a free appropriate public

education to such child.” 20 U.S.C. § 1415(bX6); see

also 20 U.S.C. §§ 1415(bX1)(5), 1415(f. In certain

situations, a procedural violation alone may “warrant

a finding that, as a matter of law, the school has failed

to provide a free appropriate public education.” Adam

J. ex rel. Robert J., 328 F.3d at 809, 811 (quoting

Buser by Buser v. Corpus Christi Indep. Sch., 51 F.3d

490, 493 (5th Cir. 1995)). However, the procedural

violation must result in the loss of an educational

opportunity in order to be actionable. Adam J. ex rel.

Robert J., 328 F.3d at 812.

In deciding the second question, the Fifth Circuit

directs courts to consider: 1) whether “the program is

individualized on the basis of the student’s assessment

and performance;” 2) whether the program is

implemented in the least restrictive environment; 3)

whether the services are coordinated and collaborative;

and 4) whether “positive academic and non-academic

benefits are demonstrated.” Michael F., 118 F.3d at

253. School officials must develop an IEP for each

student and must determine the appropriate

placement for the student. Daniel R.R., 874 F.2d at

1039.

The placement is appropriate if it is designed to

meet the particular child’s needs and includes services

that will permit the child to benefit from instruction,

even if it is not the “best possible” placement. Adam J.

ex rel. Robert J., 328 F.3d at 808. The party attacking

the appropriateness of an IEP or a _ placement

recommended by the school bears the burden of

demonstrating why it is inappropriate. Adam J. ex rel

Robert J., 328 F.3d at 808; Michael F., 118 F.3d at 252.

104a

C. Discussion

Plaintiff argues that the hearing officer erred in

concluding that Plaintiff denied Defendant FAPE and

that Plaintiff must reimburse V.P.’s parents for the

cost of private school. Plaintiff argues in favor of the

hearing officer's decision as to the procedural

violations alleged against Plaintiff.

Defendant argues in response that the hearing

officer’s decision is correct with regard to his rulings

that V.P. was denied FAPE and that the Parish School

is an appropriate placement for V.P. Based on the

latter issue, Defendant argues in favor of full

reimbursement for V.P.’s tuition at the Parish School,

including semesters of attendance during the pendency

of this appeal.’”’ She also contends that the decision is

not supported with regard to the following procedural

violations: failure to notify the parents of an ARD

meeting, disclosure of confidential information, failure

to identify V.P.’s auditory impairment in a timely

fashion, and failure to deliver assistive technology in

the form of an amplification system. The court

addresses the arguments by turning first to

Defendant’s allegations of procedural violations.

7” Although the parties ask the court to consider whether V.P.’s

parents are entitled to reimbursement of private school expenses

as ordered by the hearing officer, neither Plaintiff nor Defendant

has moved for summary judgment on reimbursement for expenses

during the continuing placement at the Parish School. Therefore,

the court leaves consideration of that matter for another day.

105a

1. Alleged Procedural Violations

Beginning with notification of ARD meetings, the

court acknowledges that the regulations require the

public agency to provide timely notice of meetings. 34

C.F.R. § 300.322(a). The summary judgment briefs

contain no details of what meeting Plaintiff failed to

provide notice to V.P.’s parents. The administrative

record includes copies of notices sent to V.P.’s parents

prior to all of the meetings. At least one of V.P.’s

parents attended each of the ARD meetings. This is a

nonissue.

Education agencies are given the responsibility of

protecting the confidentiality of personally identifiable

information regarding children with disabilities. See

34 C.F.R. §§ 300.123, 300.610-300.626. Defendant’s

allegation that a loud exchange in the school office

between V.P.’s mother and Powell compromised

confidential information about V.P. is simply not

supported by the evidence. According to the testimony,

no one other than staff was present during the

exchange. Upon prompting, the office clerk who

witnessed the exchange speculated that, although she

was not aware of the presence of anyone else in the

vicinity, it was possible that a parent may have been

within hearing range. This allegation lacks any

evidentiary support.

The regulations contain detailed evaluation

procedures, including timing requirements. See 34

C.F.R. §§ 300.301, 300.304-300.305. The ARD

committee qualified V.P. as having an auditory

impairment in May 2003 based on prior audiological

testing. Because Defendant did not file a request for a

due process hearing until August 2004, any complaint

106a

of a delay in identification prior to the May 2003 ARD

is barred by the applicable one-year statute of

limitations. See 19 Tex. Admin. Code § 89.1151(c).

A child with disabilities who is maintained in

general education classes is entitled to supplemental

aids and services necessary to achieve an educational

benefit. See 20 U.S.C. § 1412(aX5XA). Defendant

complains that she did not receive needed assistive

technology because of the difficulties with the FM loop

system. The court finds that this issue is not a

procedural challenge, but, rather, is relevant to the

court’s analysis of the provision of FAPE.

The hearing officer’s determinations on the first

three of the above four issues should be affirmed. As to

the fourth, it is best consolidated with the discussion

below.

2. Provision of FAPE

The court turns to the more significant question in

this case: whether Plaintiff provided V.P. with FAPE.

The court employs the four Michael F. factors for this

evaluation and finds that all four weigh against

Plaintiff.

a. Individualized Program

The IEP must be designed to meet the particular

student’s needs and include “sufficient support

services to allow him to benefit from the instruction.”

Adam J. ex rel. Robert J., 328 F.3d at 810.

During the relevant time period, the ARD

committee held four meetings. V.P. qualified for

107a

special services as speech impaired and hearing

impaired. In May 2003, when the committee first

determined that she qualified under the auditory-

impairment category, it recommended an audiological

evaluation.’ Again, in the October 2003, the

committee mentioned an audiological evaluation.” As

of May 2004, one year after the original

recommendation, the evaluation still had not been

completed.”

The committee recognized that V.P. continued to

have auditory-processing difficulties despite the use of

hearing aids and the FM loop system. Even so, the

IEPs were not specific enough with regard to V.P.’s

audiological deficiencies."*’ For example, they lacked

strategies to assist with sequencing, gap detection, and

noise desensitization.'** According to expert testimony

at the hearing, these strategies should be implemented

as soon as possible to allow maximum development of

the neurons in the auditory system.'*

The committee acknowledged that V.P.’s most

significant problems were speech and language

deficiencies due to hearing loss. Yet, the committee did

™%® See A.R., vol. IV, p. 978.

See id. at p. 1017.

1 See id. at vol. IIA, pp. 210-11, 213.

‘ See id. at pp. 58-60.

M? See id. at p. 58.

* See id.

108a

not integrate special education sessions with the

teacher for hearing-impaired students until January of

2004. Even then, the question arose whether Ivory

provided as many hours of service as recommended by

the ARD committee. Ivory’s tabulation of the hours

that she provided services to V.P. grossly exceeded

Williams’s recollection of time V.P. was out of the

classroom for that purpose.

Additionally, the ARD committee failed to address

problems with the FM loop system at the meetings.

Repair of the loop and problems with the headphone

system were not even mentioned in the notes of the

October 2003 meeting, even though Ivory observed

V.P. using the headphone system incorrectly on that

same day.”

The court finds that the interventions, strategies,

and goals of V.P.’s IEPs were not sufficiently

individualized to her needs.

b. Least Restrictive Environment

The IDEA mandates that the student be placed in

the least restrictive environment:

To the maximum extent appropriate, children

with disabilities . . . are educated with children

who are not disabled, and special classes,

separate schooling, or other removal of children

™ Compare id. at vol. IIIB, pp. 511-48 with id. at vol. IIC, pp. 669-

70.

“6 See id. at vol. IIIB, p. 513.

109a

with disabilities from the regular educational

environment occurs only when the nature or

severity of the disability of a child is such that

education in regular classes with the use of

supplementary aids and services cannot be

achieved satisfactorily.

20 U.S.C. § 1412(aX5)A). In its lengthy discussion of

the IDEA’s requirement that students be

“mainstreamed” into general education as much as

possible, the Daniel R.R. court enunciated a two-part

analysis for courts to use in determining school

compliance: 1) “whether education in the regular

classroom, with the use of supplemental aids and

services, can be achieved satisfactorily for a given

child;” and 2) “whether the school has mainstreamed

the child to the maximum extent appropriate.” Daniel

R.R., 874 F.2d at 1048. To aid in this individualized,

fact-specific inquiry, the Fifth Circuit suggested that

courts examine, along with any other pertinent factors:

1) the steps taken by a school to accommodate the

disabled child in general education; 2) the extent to

which the student receives an educational benefit from

general education; and 3) the effect the disabled

student has on the general education population. Id. at

1048-49.

In the fall of 2003, V.P. remained in the general

education class except when she attended speech

therapy for two hours a week or, during the first

couple of months of the semester, when she

participated in content mastery. The concern in this

case is not whether V.P. was mainstreamed to

maximum extent possible, but whether she was

mainstreamed beyond her capabilities.

110a

As noted above, V.P. needed additional hearing-

impaired education, but did not receive the service

until after the January 2004 ARD meeting. After V.P.

stopped attending content mastery in the fall of 2003,

no substitute service replaced it. In fact, the teaching

aide who intermittently had assisted V.P. in her

general education class ceased providing that service.

The record contains no evidence suggesting that

anyone on staff tried to reconnect V.P. with content

mastery until after the next ARD meeting in the

spring, at which time the committee solidly endorsed

content mastery as a crucial part of V.P.’s IEP.

When Charro observed V.P. in class during

November 2003, she noted that V.P. paid attention to

the teacher’s portion of the lesson, but did not

participate in the group portion. She also observed

that V.P. could remain focused on her assignment only

for short periods without redirection. V.P.’s FM system

did not allow her the benefit of class discussions. The

proposed solution, to have the teacher pass the

microphone around the class during discussions (a

less-than-ideal proposition), was not presented to the

ARD committee until the January 2004 meeting.

Nothing in the record indicates whether V.P.’s teacher,

who was not at the January meeting, was even given

that suggestion, much less ever employed it.

Additionally, during the time that the loop component

was unavailable, the use of headphones further limited

V.P.’s ability to hear classmate voices and class

discussions.“

“6 See A.R., vol. ITB, p. 461.

llla

In every ARD meeting within the relevant time

period, the discussion addressed placement at one of

the district’s schools that offered more intensive

programming for hearing-impaired students. In

October 2003 and January 2004, the committee

decided against the more restrictive placement solely

on the basis that services first should be attempted at

Wainwright.'*”

After V.P. lost her hearing aids on the playground,

she regularly took them off and left them on her

teacher’s desk before going out to play.’** Nothing in

the record suggests that any member of the ARD

committee spoke with V.P. or her parents about this

practice, which resulted in auditory isolation for V.P.

during recess and restricted her opportunity to

socialize with other students.

Overall, the court finds that V.P.’s placement did

not provide her with sufficient supplementary services

to be successful in the general education environment.

c. Coordinated and Collaborative Services

Coordination and collaboration among the key

“stakeholders” is a necessary component of FAPE. See

Michael F., 118 F.3d at 253.

Here, the ARD committee meetings were well-

attended and included the key stakeholders (with the

exception of Williams’s absence from the January 2004

7 See id. at vol. IV, pp. 1016, 1037.

8 See id. at vol. IIA, p. 106.

112a

meeting). However, communication between ARD

meetings lacked coordination and collaboration. For

example, Powell, the special education chair, never

discussed V.P.’s progress with Williams outside of the

ARD meetings.’ Williams also noted that she did not

discuss V.P. with V.P.’s writing teacher or any other

school staff member except during meetings.’

The record does not reflect that anyone informed

Williams of the decisions made during the January

2004 ARD, even though implementation required

Williams's involvement. Actually, the only information

given to Williams after that ARD meeting was not

accurate. According to Williams, Powell instructed

Williams to modify V.P.’s classroom tests to be in

compliance with V.P.’s IEP. No such modification was

incorporated into V.P.’s IEP, although the committee

did authorize modifications for standardized testing.

In addition to poor communication outside of the

ARD meetings, the school staff struggled with training

and followup. Regarding training, Ivory’s reliance on

the one-page flyer to train school staff on working with

hearing-impaired students was inadequate.” This

was no more apparent than when Powell denied,

during a meeting with V.P.’s mother and other school

staff, that she had ever seen the tips sheet.

By the nurse’s own account, she received very little

training on the FM system and provided v

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