Appendix — R. H. ex rel. Emily H. v. Plano Independent School District
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Supreme Court, U.S.
P FILED
19-436 SEP 21 2010
_No. QEFICE OF THE CLERK
In The
Supreme Court of the United States
R.H., by his parents and next friends
Kmily and Matthew H..,
Petitioner,
Plano Independent School District,
Respondent.
On Petition For A Writ Of Certiorari To The
United States Court Of Appeals For The Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
VOLUME II — APPENDIX
Stacy L. Zoern*
Kurt M. Sauer
Daffer McDaniel LLP
700 Lavaca Ste. 720
Austin, Texas 78701
(512) 476-1400
* Counsel of Record Attorneys for Petitioner
TABLE OF APPENDICES
Page
POE 11 sntcsiscnethddntaninsnsnianensederatunehiansasaicccnateas ae
May 30, 2006 Amended Opinion of the
Hearing Officer of the Administrative Due
Process Hearing
INIIIEE UD ucucccusndcuscusiananeiackocninantekvceiadesbandammaaaes 378
March 31, 2008 Decision of the United States
District Court for the Eastern District of Texas
and Associated Report and Recommendation
PE We eaticiecatihstbesavescceeravintntincineeenien 62a
May 27, 2010 Opinion of the United States Court
of Appeals for the Fifth Circuit
PE FP tstascsccciiadccusensuannanateeaan sshasendssastsussenenes OU
June 10, 2010 Petition for Panel Rehearing
to the Court of Appeals for the Fifth Circuit
FRI UF inca shsunics nccandicsinenmaatbaddessebtendanindenedas LO8a
June 25, 2010 Denial of the Petition for Panel
Rehearing by the Court of Appeals for the Fifth
Circuit
APPENDIX
APPENDIX A - AMENDED OPINION OF THE DUE
PROCESS HEARING OFFICER DECIDED MAY 30,
2006
R. H BEFORE A SPECIAL
b/n/t M.H. & KH . MOUCATION
HEARING OFFICER
FOR ‘THI
PLANO INDEPENDEN']
SCHOOL DISTRICT
Respond: nt SLATE OF TEXAS
AMENDED DECISION OF HEARING OFFICER
Statement of Cass
On January 25. 2006, R. H.. by next friends, M. H
and EK, H., ("Petitioner") filed this request for due
process hearing under the Individuals’ with
Disabilities Education Improvement Act (“IDEA 04"),
20 U.S.C. § 1400 et seqg., against the Plano
Independent School District ("Respondent" or
"District") and alleged that Respondent failed to
provide Petitioner with a free appropriate publi
education ("FAPE"). Petitioner was represented by
Myrna H. Silver, attorney at law. Nona C. Matthews,
of the law firm, Walsh, Anderson, Brown, Schulze &
Aldridge, P.c., appeared on behalf of Respondent
After a pre-hearing conference on February 27, 2006,
a Pre-Hearing Order was issued. At the request of
Petitioner for certain specific changes to his claims
and issues, an Amended Pre-Hearing Order was
issued that incorporated those changes. The due
process hearing convened on April } 2006 and
presentation of each party case, the parti
file
written closing arguments, and by their agreement
the dec} 10n due date in thi matter wa eT for
31. 2006 in comphance with the forty-five day rul
) { }
Petitione! made cn rOLIOW1] [all
District
|. [The District acted in bad faith and falled t
with an agreement reached by the partie
resolution session 1n a prior due process complaint
2. In January, 2005, the District offered and pl
Petitioner in its PPCD progran it Beaty |
Childhood Center ind failed to consider the
spectrum of educational program available
Petitioner during the spring semester, 2005
3. Although prior to Petitioner's enrollment 1
1); crict, Petitioner received occupational] therap
("OT") from Early Childhood Intervention ("K(
and although Petitioner' private evaluation
t >}
}
recommended OT, the District failed to consider the
provision of occupational therapy ("O'l") to Petiti
and failed to provide OT to Petitioner
4. During the 2005-2006 school year, the D)
rit
fauled to provide an appropriate length of school d
to Petitioner:
5. The District offered an inappropriate educati
program to Petitioner in that a portion yj
program included no peers of Petitioner, and
tn
f
District did not offer a staff person with appropniat«
certification, namely an occupational!
address Petitioner's feeding skills:
6 The District failed to offe) T provi
appropriate peech therapy ("SI") progran
therap)
7
7
|
ba
1. An order directing the District to reimburse
Petitioner's parents for all tuition and fees incurred
at Petitioner's current private school from the end of
May, 2005 to the present, and an order directing the
District to pay for tuition and fees incurred
prospectively by Petitioner until Petitioner begin:
kindergarten in the fall semester, 2008;
2. An order directing the District to reimburse
Petitioner's parents for privately conducted ST, OT,
and PT evaluations in the summer, 2005;
3. An order directing the District to reimburse
Petitioner's parents for expenses incurred for ST
provided by Valerie Sherman from September, 2005
to the present time, and an order directing the
District to pay for such ST’ services conducted
prospectively on a year round basis, such ST being on
a one-to-one basis 1n an amount of two, 30 minutes
sessions per week, until Petitioner begins
kindergarten at the District or until it is determined
that Petitioner no longer needs such therapies; and
4. An order directing the WDistrict to reimburse
Petitioner's parents for privately conducted ST’, OT
and PT by Advanced Therapy Services from May,
2005 to the present time, and an order directing the
District to pay for such ST, OT, and PT services
conducted prospectively on a year round basis until
Petitioner begins kindergarten at the District or it is
determined that Petitioner no longer needs such
therapies.
Findings of Fact
1. R. H. is a four-year-old child, and resides with hi:
parents within the geographical boundaries of the
District. [Petitioner Exhibit 1 and 2]
2. Petitioner is a_ student eligible for special
education services under the classifications of Non
fa
Categorical Early Childhood ("NCEC") with a
suspicion of autism and speech impairment ("SI")
{Respondent's Exhibit 1]
3. Petitioner received services from the ECI Program
beginning in March, 2004, having qualified for such
services in the area of communication/cognition.
[Petitioner's Exhibit 27]
4. Petitioner experienced separation anxiety at night
and school, and awoke once or twice at night at least
50% of time before his third birthday. [Petitioner's
Kxhibit 27; Respondent's Exhibit 1]
5. From June to December, 2004, on a full-day basis,
Petitioner attended TLC Child Development Center
("TLC"), a private pre-school for typically-developing
children. He required extra attention in art and extra
direction when it was time to wash his hands. He
spoke single words and some two to three word
phrases. His speech skills were emerging and were
steadily progressing. His greatest difficulty was
successful communication in a classroom setting. He
had separation anxiety when he began at TLC, but
by December, 2004 he was not having difficulty with
separation from his mother. Petitioner was in the
process of being potty trained. The TLC staff had no
problems with Petitioner's behavior, but encouraged
him to interact with his peers since he kept to
himself. [Tr. Vol. 1, Pages 1, 2, 28-30, 34; Tr. Vol. II,
Pages 101-103]
6. Prior to enrollment in the Duistrict, Petitioner
received ECI services on a 1: 1 basis for 2 hours, 15
minutes per week. The weekly service consisted of 90
minutes speech therapy and 45 minutes occupational
therapy for sensory regulation. |T'r. Vol. I, Page 25]
7. Numerous assessments of R. H. have’ been
performed over a one year period. ‘Those assessments
Sa
and results appear on Table I at the end of this
decision.
8. At approximately age three, Petitioner could
throw, catch and kick a ball, and work puzzles.
[Petitioner's Exhibit 1; Respondent's Exhibit 1]
9. At almost four years, Petitioner could catch, throw
and kick a ball, and jump up and down on both feet.
[Petitioner's Exhibit 18}
10. On December 10, 2004, an admission, review and
dismissal ("ARD") meeting was held at which time
Petitioner was identified as a student eligible for
special education services under JDEA_ with
disabilities of NCEC with a suspicion of autism
spectrum disorder and Sl. ‘The committee
determined that R. H. needs one-to-one instruction
during transition period, small-group instruction in
order to learn new information, to reinforce and
practice new information, and for independent
practice and generalization of skills. The committee,
including Petitioner's parent, developed = an
individualized education program ("IEP") — for
Petitioner that included 60 minutes of group speech
therapy. The ARD committee did not require a
Behavioral Intervention Plan ("BIP"), PT or OT.
Petitioner was placed in the District's early childhood
program at Beaty Karly Childhood School ("Beaty")
which is the home campus for a child of Petitioner's
age. The ARD committee discussed and considered
in-home training and parent training but determined
that Petitioner would be able to generalize skills
across settings; thus, neither training was offered.
Petitioner's parent agreed with the ARD decisions.
[Petitioner's Exhibit 2; Respondent's Exhibit 2; Tr.
Vol. II, Pages 143-146, 161]
9a
11. Numerous accommodations were determined
necessary for Petitioner's educational success. A
sampling of his short term objectives include the
following:
- Answer yes/no questions
- Increase expressive vocabulary by 15 or more
words per month
* Increase length of utterance to 3-5 words
- ngage in joint attention to non-preferred
activities
- Develop tolerance to changes in environment by
using visual/tangible cues
- Increase on-task behavior for non-preferred
activities fer 3-5 minutes
- Participate in classroom tactile activities for 1-2
minutes without protest
- Kxpand food varieties at snack to try 2 new foods
per month [Petitioner's Exhibit 2; Respondent's
Exhibit 2]
12. Beaty is one of three early childhood schools in
the District and has an enrollment of over 400
students; it has a_ state-funded pre-kindergarten
program for at-risk students, pre-school programs for
children with disabilities ("PPCD") where students
with disabilities attend with typically developing
children who are tuition paid students; a
communication program for students who only have
[E&P communication goals, Spanish special education
classroom, self-contained classroom for students with
more significant needs, a centralized structured
classroom for students who need a high degree of
structure and individual direct instruction among
other early childhood programs. he three-year-old,
PPCD classes at Beaty have a maximum enrollment
of 12 students with an opportunity for six students
10a
with [EPs and six tuition students per class; the
four-year-old, PPCD classes have a maximum
enrollment of 15 students, with an opportunity for
six students with IEPs and nine tuition students per
class. All teachers at Beaty are special education
certificd. Additionally, Beaty has Speech and
Language Pathologists ("SLPs"), teaching assistants,
OTs, and physical therapists ("PTs") on campus,
along with itinerant support staff persons. The PPCD
classrooms have one classroom teacher, one teaching
assistant, and a SLP that comes on alternating days.
(Tr. Vol. ll, Pages . 28-135; Petitioner's Exhibit 20]
13. The teacher to student ratio in Petitioner's class
at TLC is approximately 2:26. Petitioner's teacher at
TLC does not have a college degree and 1s_ not
certified or leensed to teach in Texas public schools.
There are no O'l's or ST's on staff at TLC and there is
no occupational therapist that assists Petitioner
during lunch at TLC. [Tr. Vol. I], Pages 100, 112-118,
120-123, 151]
14. Upon enrollment in the District, since no data
existed regarding Petitioner's need for ESY, the ARD
committee did not consider ESY. His teacher saw no
indicators that Petitioner would regress during the
summer months, and ESY was not offered to
Petitioner for the summer, 2005. No ARD meeting
was held to consider ESY for the summer, 2005. [Tr.
Vol. Il, Page161]
15. At Beaty, Petitioner, who was 3 years old at the
time, demonstrated some aggression toward his
teachers. After the use of picture supports and
behavioral supports, the behaviors went away after
one or two weeks. [Tr. Vol. Il, Pages 251-252]
16. During Petitioner's enrollment at Beaty,
Petitioner's parents observed that he cried often on
lla
the way to school and after his mother picked him up
at the end of the school day. He had difficulty making
decisions and regularly woke up several times a week
and was inconsolable. At a March parent teacher
conference, Petitioner's parent discussed what she
believed were increasing negative behaviors, lack of
progress in speech, a need for intensive summer
therapy, and other areas of concern. After receiving
no response after the conference, the parents
proceeded with private evaluations by Advanced
Therapy Services ("ATS") to qualify Petitioner for
services, and began private therapy in May, 2005
without giving notice to the District of their intent to
privately place Petitioner. [Tr. Vol. 1, Pages 44-48,
139]
17. Petitioner re-enrolled in ‘TLC at the end of the
spring semester, May, 2005. TLC had stopped its
curriculum for the summer. Upon Petitioner's return,
TLC experienced behavior problems and_ potty
training issues with Petitioner. [Tr. Vol. II, Pages
104-107]
18. During the summer, 2005, R. H.’s_ parents
provided him with private ST and OT. They
discontinued the services in August while they
worked with the District in the formulation of his
IkPs. ‘The parents noticed deterioration in
Petitioner's language skills and some basic fine
motor skills during that month and resumed ST. [Tr.
Vol. I, Page 40-41]
19. Petitioner's parents contacted the Beaty principal
affirming their belief that Petitioner needs a volume
of typically-developing peers and a longer school day,
and requested an ARD mecting. The District wanted
to observe Petitioner at Beaty before the ARD
meeting. In response, the parents notified the
2a
District that they would not remove Petitioner from
TLC until an agreement could be made regarding his
lEP, and offered to allow the District to observe
Petitioner at TLC. [Petitioner's Exhibits 4,5; Tr. Vol.
I, Pages 54-58]
20. An ARD meeting was held August 15, 2005 and
resumed Augusts 23 during which the parents
presented the private evaluation results. Their
requested changes were discussed. The District
wanted to do its own OT evaluation, an articulation
evaluation, a functional behavioral assessment, and
an in-home training assessment within one month.
(T'r. Vol. |, Page 68; Petitioner's Exhibit 12]
21. Petitioner has continued to attend TLC since the
summer, 2005. He arrives between 9:00-9:30 a.m.,
and typically leaves at 5:30 p.m. [Tr. Vol. I, Page 58]
22. Petitioner has tactile defensiveness issues and it
is difficult to get him to eat new foods independently
in the school setting. Presently, Petitioner continues
to refuse to eat at lunchtime at TLC. At home, he
refuses to try prepared foods unless heavy prompts
are used with him. Even with prompts, he often
refuses. Petitioner's IEP includes goals to address
those issues. [Tr. Vol. I, Page 37; Petitioner's Exhibit
2, 12, 14, and 22
23. From August, 2005 to January, 2006, the District
held several ARD meetings and many efforts were
made to come to an agreement for Petitioner's IEP.
[Petitioner's Exhibits 12, 14, 22, and 31]
24. The District refused Petitioner's request to
increase his educational program to a full day,
refused to place him at TLC at District expense, and
refused to provide 90 minutes of individual ST and
30 minutes of group therapy. [Petitioner's Exhibit 32]
[3a
25. The District agreed to increase’ Petitioner
educational program from 2 hours 45 minutes per
day to 3 hours 45 minutes, adding time for lunch
with peers and IEP goals for his eating issues. It
offered 75 minutes of group ST and 15 minutes of
individual ST. [Petitioner's Exhibit 32]
26. A 25 hour week of instruction for children with
autism can be a combination of intensive classroom,
intensive home, or intensive individual instruction.
Individual instruction by a SLP is important because
communication disorder is a hallmark characteristic
of autism spectrum disorder; thus, the SLP should be
in the classroom on a regular, daily basis for an
extended period of time. [Tr. Vol. Il, Pages 59-60}
27. Apraxia is a speech disorder that is difficult to
diagnose and needs to be done over time in order to
account for a child's language skills or a possible
language disorder. Its characteristics can be seen in
many other speech disorders. [Tr. Vol. Ill, Page 78
81]
28. Least restrictive environment at the pre-school
age is within the context of meaningful daily
activities with their typically developing peers in
meaningful tasks such as play and reading stories.
Children with autism often fail to generalize skills
that are taught in a one on one setting. [Tr. Vol. LU],
Pages 96-97]
29. Dual enrollment was offered to Petitioner, but
was not accessed. [Tr. Vol. I], Pages 225, 236]
30. At the parents' request, the mastery level of some
of R. H.’s proposed objectives are higher’ than
originally proposed. Although the proposed short
term objectives for the 2005-2006 school year are not
agreed upon, the following is a summary of those
l4a
objectives which incorporate Petitioner's parents
requests:
- Correctly use pronouns at the sentence level
- Initiate greetings and closures in a variety of
school settings at least two times per day
- Retell a familiar story in 5 consecutive session
- Indicate understanding of concepts in unstructured
classroom activities to include: first, middle, last,
next to, before and after
- Parent training to assist R. H. with developing a
tolerance to changes in his environment, expand his
food varieties to try and accept new food, and assist
with learning to toilet independently
* Expand food varieties to try one new food per week
and learn to accept without protest two new foods per
month
- Attend to speaker by making visual regard before
following instructions
- Actively play with at least 3 toys as designed for 10
minutes with only verbal prompts for 3 consecutive
days
* Take preferred items from a peer, 2 per day
without prompts for 3 consecutive days
* Participate in classroom tactile activities for 1-2
minutes without protest [Petitioner's Exhibit 31;
Respondent's Exhibit 5]
Discussion
Was a resolution settlement agreement reached; if
so, did the District breach the agreement?
If parties to a due process proceeding reach a
resolution to the dispute, the IDEA 04 requires the
parties to execute a legally binding agreement that is
signed by both the parent and a_ District
representative with authority to bind the District.
15a
Such agreement can be voided by either party within
three business days of the agreement's execution. 20
U.S.C. § 1415()(1)(B)G@i1) and (fav). Although the
parties in this matter participated in a resolution
session, they did not sign a written settlement
agreement. Petitioner failed to prove that a
resolution settlement agreement was reached by the
parties. Tatro v. State of Texas, 703 F.2d 832 (5th
Cir. 1983), affd, 468 U.S. 883 (1984); Schaffer v.
Weast, 126 U.S. 528 (2005). For the spring semester,
2005, did the District consider the full continuum of
placement options, and was the placement for
Petitioner appropriate”
The principal of Beaty was present at the December,
2004 ARD meeting and is knowledgeable of the
continuum of placement options at the District.
Although every type of classroom at Beaty were not
specifically discussed, the committee discussed an
appropriate option for R. H. in hght of his
educational needs for small group and one-on-one
instruction and determined that the integration
classroom was appropriate. Petitioner does not
prevail on the issue regarding the District's failure to
consider a continuum of placement options. Tatro v.
State of Texas, 703 F.2d 832 (5th Cir. 1983), affd,
468 U.S. 883 (1984); Schaffer v. Weast, 126 U. S. 528
(2005). The appropriateness of Petitioner's placement
will be discussed in the FAPE discussion below.
Was the District's placement of Petitioner _in_ the
spring semester, 2005, and its proposed placement
for the 2005-2006 school year in the LRE; if not, did
such placement result in a denial of FAPE_ to
Petitioner?
l6a
Public school districts must comply with the IDEA
procedures for identifying children with disabilitie
who need special education, and _ delivering
appropriate services as necessary to provide a free
h
and appropriate public education (FAPE). 20 U.S.C. §
1412(a)(1); Board of Education of the Hendrick
Hudson Central School District v. Rowley, 458 U.S
176, (1982); Cypress Fairbanks Independent School
District v. Michael F., 118 F.3d 245 (5th Cir. 1997)
The Fifth Circuit has further defined a fre
appropriate public education by delineating four
factors to consider as indicators of whether an
educational plan is reasonably calculated to provide
the requisite benefits: 1) Is the educational program
individualized on the basis of the child's assessment
and performance; 2) Is the program administered in
the least restrictive environment; 3) Are the service
provided in a coordinated and collaborative manner
by the key stakeholders; and 4) Are _ positiv
academic and non-academic benefits demonstrated?
Cypress Fairbanks Independent School District
Michael F., 118 F.3d at 253.
Is the educational program individualized on_ thi
basis of the child's assessment and performance?
The District performed a FIFE prior to Petitioner’
third birthday. The evaluation results were the basi
for Petitioner's IEPs that were developed in
December, 2004. Speech therapy was recommended
while occupational therapy was not although
Petitioner's issues regarding tactile defensivene
during eating were addressed in his IEPs. Thi
assessment team concluded that Petitioner did not
need OT or PT because he had the necessary skills t
20a
day. District personnel did not see regression in
Petitioner; 1n fact, the progress notes in his IEPs and
witness testimony at hearing support that he was
making progress.
Petitioner wants to continue at TLC at Dhistrict
expense and argues that TLC is the least restrictive
environment. However, Petitioner's teacher at TLC is
not a certified special educator, the student to
teacher ratio is high, and no SLP 1s on staff. ARD
documents reflect that Petitioner's parents do not
believe that the teachers at TLC are trained to
recognize sensory issues that affect his participation
at lunch. In light of the fact that Petitioner requires
an individualized education program to address his
speech and communication needs and his tactile
defensiveness issues, and his need for small group
and one to one instruction, the Beaty PPCD program
is the least restrictive environment for Petitioner.
Are services provided ina coordinated and
collaborative manner by the key stakeholders: At
Beaty, there is a SLP in the classroom on alternating
days. During the spring semester, 2005, Petitioner's
classroom teacher and the SLP worked closely
together. An occupational therapist is on staff to
assist with strategies for Petitioner's eating issues
which can be addressed during lunchtime with his
peers. In the lengthy ARD meetings that began in
August, 2005, R. H.'s parents took an active part in
the development and revision of his JEP. In contrast,
the record reflects that there is no collaboration
between the TLC teacher and the key stakcholders.
The teacher testified that she did not interact with
the private service providers. Services are provided
2la
at Beaty in a coordinated and collaborative manner
by the key stakeholders.
Are positive academic _and_non-academic_benefits
demonstrated? The record reflects that Petitioner
benefited from his one semester at Beaty. His parent
admitted to improvement in March, 2005. During the
August, 2005 ARD meeting, his parent agreed that
he was making progress within the school day. At the
January 11, 2006 ARD meeting his mother said she
believed he made more progress in a one to one
setting. She did not say he made no progress in a
group setting such as the District recommends.
Commendably, Petitioner's parents want him to
make maximum progress and scem to feel a sense of
urgency regarding his needs. However, maximum
progress is not the test. The educational benefit that
an IEP is designed to achieve must be meaningful
and likely to produce’ progress, rather’ than
regression or trivial educational advancement.
Although the educational benefit must be
meaningful, schools are not required to maximize a
child's potential or provide the best program.
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,
118 F.3rd 245 (5th Cir 1997); cert. denied, 522 U.S.
1047 (1998). Petitioner's overall progress at Beaty
was meaningful.
Did the District fail to consider or provide ESY to
Petitioner during the summer, 2005?
At the time Petitioner enrolled in the District in
January, 2005, there was no data available to use to
determine a need for ESY. The District relies on the
teachers' observations of regression after breaks from
school. In Petitioner's case, those breaks consisted of
Pier
Pe a |
weekends and spring break. His teachers did not see
any regression following those breaks. However, on
March 22, 2005, Petitioner's parent met with his
teacher and gave her a list of her concerns which
stated, "Due to the critical, hmited window of
opportunity for intervention benefits for autism
spectrum disorders, intensive summer therapy is a
must." A copy of the document was given to
Petitioner's teacher to pass on to the building
principal. Although the record. reflects’ that
Petitioner's teacher believed that she and the parent
had resolved that concern, Petitioner's parent did not
consider it resolved. No ARD meeting was _ held.
When Petitioner's parent did not hear from the
District, in April, 2005, she proceeded to obtain new
evaluations of Petitioner and to seek a summer
program for Petitioner. Petitioner enrolled at TLC
and his parents provided him with O'T services and
20 individual S'l’ sessions of 90 minutes per week
from May, 2005 to August, 2005.
Having been made aware of the parent's concerns at
the mid-point of Petitioner's first semester in the
District, and in hght of summer's approach, it is
reasonable to expect the District to respond by
scheduling an ARD mecting at which time the
necessary decision makers could consider the need
for ESY.
The IDEA 04 requires a district to provided ESY if a
child's IEP team determines, on an individual basis,
that the services are necessary for the provision of
KFAPE to the child. 20 U.S.C. 1412 (a)(1) [emphasis
added]. The Texas Education Agency has specified
criteria for determining when ESY must be provided.
23a
The ARD committee must make the determination
regarding a need for ESY. Documentation must
demonstrate that in one or more critical areas
addressed in the student's current IEP objectives, the
student reasonably may be expected to exhibit severe
or substantial regression that cannot be recouped
within a reasonable period of time. 19 Tex. Admin.
Code §89.1065|/emphasis added]. The District failed
to consider ESY to Petitioner during the summer,
2005 and, in so doing, denied FAPE to Petitioner
Compensatory education is an equitable remedy
available for substantive or procedural IDEA
violation. Burlington Sch. Comm. V. Department of
Educ., 471 U.S. 359 (1985); Alamo Heights Indep.
School Dist. V. State Bd. Of Educ., 790 F.2d 1153
(5th Cir. 1986). In fashioning appropriate equitable
relief, consideration is given to the conduct of the
parties along with the nature of relief requested.
Parents of Student W. v. Puyallup School District,
No.3, 21 IDELR 723 (9th Cir. 1994). Due to the
parents’ concern regarding a limited window of
opportunity to develop speech and language skills
and their conviction that R. H. needs occupational
therapy, either speech therapy, occupational therapy,
or both services would be appropriate compensatory
services.
Petitioner's Request for Reimbursement
Regarding Petitioner's request for reimbursement for
the 2005 summer program, he cannot prevail since
he did not comply with the IDEA 04 _ notice
requirement prior to his unilateral enrollment at
TLC. 20 U.S.C. § 1412(a)(10O)(C)(in). Petitioner also
requests reimbursement for costs incurred from the
d4a
fall, 2005 through the present about which he
provided notice to the District, along with his costs
for privately obtained evaluations. To receive
reimbursement, Petitioner must discharge two
burdens of proof. First, he must show that
Respondent's proposed 2005-2006 program was
inappropriate. Second, he must show that the TLC
program 1s appropriate. If Petitioner fails to
discharge either burden, he is not entitled to
reimbursement. However, if the Hearing Officer
finds that the District's proposed program is
appropriate, it is not necessary to reach the issue of
the appropriateness of the private school placement.
School Committee of Burlington v. Department of
Education of Massachusetts, 471 U.S. 359 (1985);
Klorence County Sch. Dist. Four v. Carter, 114 S.Ct.
365 (1993); Tatro v. State of Texas, 703 F.2d 823,
affd, 468 U.S. 883 (1984). Having previously
determined that Respondent's program 1S
appropriate, nothing further must be determined
regarding reimbursement for costs.
1. RH. is a child in the Plano Independent School
District who 1s eligible for special education services
under the provisions of the IDEA 04 as a child with
autism and speech impairment.
2. Respondent, Plano Independent School District, is
an independent school district duly constituted in
and by the state of ‘Texas, and subject to the
requirements of the IDEA 04. Plano Independent
School District 1s RH.'s resident district and has the
responsibility to provide Petitioner with a_ free
appropriate-public education under the IDEA O 20
U.S.C. §1401(a)(18).
25a
3. Petitioner and Respondent did not reach a
resolution settlement agreement. 20 U.S.C. §
1415(f)(1)(B)(iii1) and (iv); Tatro v. State of Texas, 703
F.2d 823 (5th Cir, 1983), aff'd, 468 U.S. 883 (1984):
Schaffer v. Weast, 126 U. S. S28 (2005).
4. For the spring semester, 2005, the District
considered the full continuum of placement options,
and its placement for Petitioner for the spring
semester, 2005, was appropriate. Tatro v. State of
Texas, 703 F.2d 823 (5th Cir, 1983), aff'd, 468 U.S.
883 (1984); Schaffer v. Weast, 126 U.S. 528 (2005).
5. The District's placement of Petitioner during the
spring semester, 2005, and its proposed placement
for the 2005-2006 school year is in the LRE. 20
U.S.C. §1412(a)(1) and (5); Daniel R. R. v. State
Board of Education, 874 I.2d 1036 (Sth Cir. 1989):
Michael F., 118 F.3d 245; Board of Education of the
Hendrick Hudson Central School District v. Rowley,
458 U.S. 176 (1982); Tatro v. State of Texas, 703 F.2d
823 (5th Cir, 1983), affd, 468 U.S. 883 (1984);
Schaffer v. Weast, 126 U.S. 528 (2005).
6. The District failed to consider or provide KESY to
Petitioner during the summer, 2005; such failure was
denial of FAPE. 20 U.S.C. 1412 (a)(1);19 Tex. Admin.
Code §89.1065.
Order
Based upon the record of this proceeding and the
foregoing Findings of Fact and Conclusions of Law,
Respondent is ordered to take the following actions:
1. Convene an Admission, Review, and Dismissal
Committee meeting at the earlest practicable time
to consider Petitioner's needs for ESY during the
2006 summer session; and
26a
2. Provide Petitioner with either individual or group
speech therapy services, occupational therapy
services, or both, as compensatory services, in the
total amount of 15 hours to begin as soon as
practicable. These compensatory services shall be in
addition to the speech therapy services that the
District has offered to Petitioner and shall occur
outside Petitioner's proposed school day. The ARD
committee shall make the determination of the
schedule and individual session lengths based on
Petitioner's age and individual needs.
All other relief not specifically granted is hereby
DENIED.
The district shall timely implement this Decision
within 10 school days in accordance with 19 T.A.C.
§89.1185(q) and 34 C.F.R. §300.514. The following
must be provided to the Division of Special
Education Programs and Complaints at the
Texas Education Agency and copied to the Petitioner
within 15 school days from the date of this Decision:
1.) Documentation demonstrating that the Decision
has been implemented; or 2.) If the timeline set by
the Hearing Officer for implementing certain aspects
of the Decision is longer than 10 school days, the
district's plan for implementing the Decision within
the prescribed timeline, and a signed assurance from
the superintendent that the Decision will be
implemented.
Finding that the public welfare requires’ the
immediate effect of this Final Decision, the Hearing
Officer makes it effective immediately.
i
SIGNED on the 30th day of May, 2006
Brenda Rudd
Special Education
Hearing Officer
For the State
Texas
R.H. b/n/f M.H. and E.H. v. P
School District
Docket No. 108-SE-0106
Amended Decision of Hearing
'Evalu | Age | Evaluati
of | on
Petit | Perform
ione | ed
ation
| Date
- 4
11.15.0
4
|
|
| |
|
|
|
|
|
|
|
|
r
Qvrs.
Qmos
|
|
|
|
28a
TABLE 1
Full
Individua
|
Evaluatio
1 (FILE)
yy
)
y
|
|
|
|
| Results
|
|
a. Brief IQ 105
Kivaluation (FIK)
b. Behaviors that
impede adequate
development of
interpersonal skills
ec. Difficulty with
flexible thinking
d. Transition difficulties
e. CARS score 30 w/]
range of Autism
Spectrum Disorders
f. No difficulties that
would prevent progress
on goals; no need for OT
e. Significant
disruptions in ability to
communicate and use
language; uses Jargon,
word
approximations a few
single words and
occasional 2-3 word
phrase
h. Does not interact
with peers and has
difficulty attending to
large group instruction
| 4.12.05
12°R OD
—EE
ee ee
Oo Vrs.
§)
mos.
| Appr
OX
IQaq
Speech
Assessme
nt by
| Advanced
Therapy
Services
(ATS) at
request of
parents
Occupat}
onal
Therapy
(OT)
Assessme
nt by
| ATS at
request of |
prrents
1. Can adequately bite,
chew and swallow but
has limited diet
{Petitioner's Exhibit 1;
Respondent's Exhibit 1]
| a. Mild expressive
language delay and
| moderate receptive
language delay; age
equivalent 2 yrs. 8 mos.
b. Oral aversion
[Petitioner's Exhibit 28]
a. Peabody
Developmental Moto)
Scales to assess
reflexes, gross motor
and fine motor skills.
Petitioner's result:
grasping age equivalent
14 months; visual-motor
integration age
| equivalent 35 months
| b. Definite differences
with vestibular
processing and oral
processing; definite
difference in sensory
input affecting
| emotional response;
probable difference with
| emotional/social|
responses and
behavioral outcomes ol]
9.15.05 | 3 yrs.
9.14.05 | 3 yrs.
1
| Mos,
Appr
OX
9.16.05 | 3 yrs
30a
|
=.
| Physical
| Therapy
| Assessme
nt by
ATS at
request of
parents
| Addendu
m to FIE
| by
| District
| (articulat
| 10n)
| FIE-OT
| by
Dist rict
|
|
sensory processing
c. Problem areas:
decreased fine moto:
skills, visual-motor
integration, sensory
processing and self-care
skills.
d. Currently being potty
trained [Petitioner's
Exhibit 28]
a. Peabody
Developmental Motor
Scales to assess
reflexes, gross motor,
fine motor skills;
Petitioner rated 33
mos.-Stationary, 34
mos.-Locomotion, and
| 80 mos.- Object
| manipulation[Petitioner
|
|
|
|
|
|
|
's Exhibit 28]
a. Goldman-Fristoe
Test-difference in
percentage consonant
correct 1n single word
| and connected speech
| 8%; does not qualify for
articulation therapy
‘Petitioner's Exhibit 13
| Respondent's Exhibit
(articulation) 8]
la. No difficulty with fine
motor, gross motor, self
help, or sensory
| processing skills that
ponaent
a. Parents «
with Petit
aren)
ipport I
| Petitioner’ Kixhibit
ate and Distr
34a
| language demands
| f. Vineland assessment
| of adaptive (day to day)
| functioning: within
| average range with the
| exception of daily living
| skills
| g. Summary: Petitioner
| has language and social
| deficits associated with
| autism disorder;
nonverbal
| cognitive skills in
| superior range
compared to same age
| peers; moderate
communication disorder
characterized by deficits
| in processing and
| production of language
and pragmatics, or
| interactive use
| of language; evidences
mild-moderate
| developmental apraxia
| of speech [Respondent's
_| Exhibit 19]
R.H. b/n/f M.H. and E.H. v. Plano Independent
Schoo! District
Docket No. 108-SE-0106
Amended Decision of Hearing Officer
R. H.
b/n/f M.H. & E.H.
PLANO INDEPENDENT
SCHOOL DISTRICT
Held:
Citation:
Issue:
35a
DOCKET NO. 108-SE-0106
BEFORE A SPECIAL
EDUCATION
Petitioner
HEARING OFFICER
FOR THE
> “LN
.
wv
8
>
>
ST ATE OF TEXAS
LF:
Respondent
Toe
SYNOPSIS
Whether or not a _ resolution session
agreement between the parties was
reached in the fall semester, 2005 and,
if an agreement was made, whether or
not the District failed to comply with
such agreement.
For Respondent
20 U.S.C. § 1415(H(11)(B)Gi1) and (iv);
Tatro v. State of Texas, 703 F.2d 823
(5th Cir, 1983), affd, 468 U.S. 883
(1984); Schaffer v. Weast, 126 U.S. 528
(2005).
For the spring semester, 2005, whether
or not the District considered the full
continuum of placement options, and
whether or not the District's placement
for Petitioner for the spring semester,
2005, was appropriate.
For Respondent
Citation:
Held:
Citation:
Held:
Citation:
36a
Tatro_ v. State of Texas, 703 F.2d 823
(5th Cir, 1983), affd, 468 U.S. 883
(1984); Schaffer v. Weast, 126 U. S. 528
(2005).
Whether or not the District's placement
of Petitioner during’ the © spring
semester, 2005, and _ its’ proposed
placement for the 2005-2006 school year
was 1n the least restrictive environment
("LRE") and resulted in a denial of F
APE to Petitioner.
For Respondent
20 U.S.C. §1412(a)(1) and (5); Daniel R.
R. v. State Board of Education, 874 F.2d
1036 (5 Cir. 1989); Cypress Fairbanks
Independent School District _v. Michael
F., 118 F.3d 245; Board of Education of
the Hendrick Hudson Central School
District v. Rowley, 458 U.S. 176 (1982)
Whether or not the District failed to
consider or provide ESY to Petitioner
during the summer, 2005.
For Petitioner
20 U.S.C. 1412 (a)(1); 19 Tex. Admin.
Code §89.1065
R.H. b/n/f M.H. and E.H. v. Plano Independent
School District
Docket No. 108-SE-0106
Amended Decision of Hearing Officer
APPENDIX B - REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE AND ASSOCIATED
ADOPTING ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF TEXAS ORDERED MARCH 31, 2008
38a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
R.H., BY HIS PARENTS
AND NEXT FRIENDS,
KMILY AND MATTHEW
H.
Plaintiff.
CASE NO. 4:06ev352
SPO LD) 2) (O?0 (00 2 LI? “P?- 492 I)
PLANO INDEPENDENT
SCHOOL DISTRICT
Defendant.
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Now before the Court are Defendant’s Motion for
Summary Judgment on the Administrative Record
(Dkt. 15) and Plaintiffs Motion for Summary
Judgment on the Administrative Record (Dkt. 38).
Having reviewed the motions, responses, and the
administrative record before it, the Court finds
Defendant’s Motion should be GRANTED, Plaintiffs
Motion should be DENIED, and the findings of the
Special Education Hearing Officer for the State of
Texas in this matter should be affirmed.
BACKGROUND
39a
Plaintiff, R.H., a four-year-old boy with a disability,
has filed this civil action against Defendant Plano
Independent School District (“PISD”), alleging
violations of the Individuals with Disabilities
Education Act. Specifically, Plaintiff alleges that
Defendant has violated his rights under IDEA to be
educated with his non-disabled peers to the
maximim extent appropriate and to be educated in
the least restrictive environment, in violation of his
right to a free appropriate public education.
On January 25, 2006, Plaintiff requested a due
process hearing from the Texas Education Agency, in
accordance with IDEA, complaining of Defendant’s
actions. Following the due process hearing on April
4, 6, and 7, 2006, the Special Hearing Officer issued
a decision 1n favor of Defendant. The Special Hearing
Officer made the following conclusions of law
relevant to R.H.’s case here:
* For the spring semester, 2005, the District
considered the full continuum of placement
options, and its placement for Petition for the
spring semester, 2005, was appropriate.
* The District’s placement of Petitioner during
the spring semester, 2005, and its proposed
placement for the 2005-2006 school year is in
the LEE.
* The District failed to provide ESY to
Petitioner during the summer, 2005 (A.R. I at
14),
Based on these findings and the record before her,
the Special Hearing Officer ordered PISD to take the
following actions:
40a
1. Convene an Admission, Review, and Dismissal
Committee meeting at the earliest practicable time
to consider Petitioner’s needs for ESY during the
2006 summer session; and
2. Provide Petitioner with either individual or group
speech therapy services, occupational therapy
services, or both, as compensatory services, in the
total amount of 15 hours to begin as soon as
practicable. These compensatory services shall be in
addition to the speech therapy services that the
District has offered to Petitioner and shall occur
outside Petitioner’s proposed school day. The ARD
committee shall make the determination of the
schedule and individual session lengths based on
Petitioner’s age and individual needs. (A.R. I at 15).
Plaintiff now brings this civil action pursuant to 20
U.S.C. §1415()(2)(A) alleging that the hearing officer
failed to properly interpret federal law and that her
findings are not supported by the record. Plaintiff
claims that PISD’s placement of R.H. at Peaty Early
Childhood School, a district preschool where both
disabled and non-disabled children are enrolled,
violated the IDEA. Plaintiff further argues that the
appropriate placement for R.H. is at TLC, a private
preschool which R.H. has attended and for which
Plaintiff seeks reimbursement here.
STANDARD
This case arises under the IDEA, the Individuals
with Disabilities Education Act, 20 U.S.C. §§ 1400-
1482. The IDEA’s purpose is “to ensure that all
4}a
children with disabilities have available to them a
free appropriate public education that emphasizes
special education and related services designed to
meet their unique needs and prepare them for
further education, employment, and independent
living.” 20 U.S.C. § 1400(d)(1)(A).
States receiving federal assistance under the IDEA
must: (1) provide a “free appropriate public
education’ (“FAPE”) to each disabled child within its
boundaries, and (2) ensure that such education is in
the “least restrictive environment” (“LRE”) possible.
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,
118 F.3d 245, 247 (5th Cir.1997); 20 U.S.C. § 1412(1),
(5). The FAPE provided must be developed to each
disabled child’s needs through an “individual
educational program” (“IEP”), which is a written
statement prepared at a meeting attended by a
school district representative, a teacher, the child’s
parents or guardians, and, when appropriate, the
child. Michael F., 118 F.3d at 247: see 20 U.S.C. §
1414(d). In Texas, the committee responsible for
preparing an IEP is known as an Admissions,
Review, and Dismissal Committee (“ARD
Committee’).
The role of the judiciary under the IDEA is hmited,
leaving the choice of educational policies and
methods in the hands of state and local school
officials. White v. Ascension Parish Sch. Bd., 3438
K.3d 373, 377 (5th Cir. 2003), citing Flour Bluff
Indep. Sch. Dist. v. Katherine M., 91 ¥.3d 689, 693
(5th Cir. 1996). The Court must reach an
independent decision based on a preponderance of
the evidence. Houston Indep. Sch. Dist. v. Bobby R.,
42a
200 F.3d 341, 347 (5th Cir. 2000); Cypress- Fairbanks
Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252
(5th Cir. 1997); Teague Indep. Sch. Dist. v. Todd L.,
999 F.2d 127, 131 (5th Cir. 1993). However, this
requirement “is by no means an invitation to the
courts to substitute their own notions of sound
educational policy for those of the school authorities
which they review.” Bd. of Educ. of the Hendrick
Hudson Cent. Sch. Dist., Westchester County v.
Rowley, 458 U.S. 176, 206, 102 8S. Ct. 3034, 73 L.
kid.2d 690 (1982). Instead, “due weight” is to be given
to the hearing officer’s decision. /d. Thus, “courts
must be careful to avoid imposing their view of
preferable educational methods upon the States. The
primary responsibility for formulating the education
to be accorded a handicapped child, and for choosing
the educational method most suitable to the child's
needs, was left by the Act to state and local
educational agencies in cooperation with the parents
or guardian of the child.” /d. at 207. The Court’s task
therefore is not to second guess PISD’s decisions or
impose its own plans for the education of disabled
students; rather, it is the narrow one of determining
whether PISD complied with the IDEA. White uv.
Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th
Cir. 2003); see also Daniel R.R. v. State Bd. of Edu.,
874 F.2d 1036, 1048 (5th Cir. 1989).
The party seeking relef under the IDEA — Plaintiff
here — bears the burden of proof. Schaffer v. Weast,
546 U.S. 49, 126 S. Ct. 528, 8535-537 (2005)
Specifically, “a party attacking the appropriateness
of an IEP established by a local educational agency
bears the burden of showing why the IEP and the
resulting placement were inappropriate under the
43a
IDEA.” Michael F., 118 F.3d at 252. The IDEA also
creates a presumption in favor of the education plan
proposed by the school district, and places the
burden of proof on the party challenging it. Cypress-
Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d
245, 248 (hth Cir. 1997); Alamo Heights Indep. Sch.
Dist. v. State Bd. of Edu., 790 F.2d 11538, 1158 (5th
Cir. 1986); Salley v. St. Tammany Parish Sch. Bd.,
57 F.3d 458, 467 (5th Cir. 1995); Teague Indep. Sch.
Dist. v. Todd L., 999 F.2d 127, 132 (5th Cir. 1993).
Here, the parties concur that the is no need for
additional evidence or discovery to be conducted in
this proceeding. Therefore, the Court will determine
the merits of the case based on the administrative
record. Austin Indep. Sch. Dist. v. Robert M., 168 F.
Supp.2d 635, 638 (W.D. Tex. 2001), affd, 54 Fed.
Appx. 413 (5th Cir. 2002); see also Hunger uv.
Leininger, 15 F.3d 664, 669 (7th Cir. 1994), cert.
dented, 513 U.S. 839, 115 S. Ct. 123 (1994).
Both parties have filed summary judgment motions
and responses framing their positions in light of the
administrative record before the Court. Notably,
many of the facts alleged by Plaintiff in his summary
judgment pleadings do not refer to specific portions
of the administrative record. The Court notes that, in
summary judgment proceedings, the parties are
expected to cite to specific facts in the record. Webb v.
Cardiothoracic Surgery Assoc. of North Texas, P.A.,
139 F.3d 532, 536 (5th Cir. 1998). The citations to
evidence must be specific, as the district court is not
required to “scour the record” to determine whether
the evidence raises a genuine issue of material fact.
K.D. Trex. LOCAL R. CV-56(d); see also Ragas uv.
44a
Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5!
Cir.1998) (Rule 56 does not require court to rifle
through the record in search of evidence to support a
party's opposition to summary judgment)
Unsubstantiated and _ subjective’ beliefs and
conclusory allegations and opinions of fact are not
competent summary judgment evidence. Morris
Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998). The Court has therefore based it
analysis primarily on those portions of the record
specifically cited by the parties
ANALYSIS
In this case, Plaintiff seeks reimbursement for thi
cost of the minor's schooling at TLC, a private school
his parents enrolled him in. For parents of a disabled
child to be entitled to reimbursement for private
schooling, they must show both that (1) the publi
placement violated the LDEA and that (2) the private
school placement was proper under IDEA. Florence
County School Dist. Four v. Carter By and Through
Carter, 510 U.S. 7, 12-13, 114 8.Ct. 361, 365 (1993)
Town of Burlington v. Dept. of Edu., 471 U.S. 359
369-370, 105 S. Ct. 1996, 2002-2003 (1985). II
reimbursement is appropriate, it can be retroactive
from the time of placement 1n the private school. /d
Thus, the Court will first look to whether PISD
placement of Plaintiff at Beaty Early Childhood
School. a schoo! within the District, violated the
IDEA. If the Court finds that it did not, then it need
not reach an analysis of the propriety of the privat
school placement at TLC
Under the IDEA, public school district n state
receiving federal funds must provide each child with
a FAPE. 20 U.S.C. § 1412(a)(1). To establish that
PISD failed to provide R.H. with a FAPE, Plaintiff
must first demonstrate that 41) PISD failed
comply with the procedures set forth in IDEA; or (ii)
the individualized education program (Lie P)
cle veloped by PISD thro igh the IDEA’s pp! cedure
wa not reasonably calculated to enable R.H. t
receive educational benefit Bd { kdu Rowl
Loe | SS 176 2()'; {)» 1c me. Ct 30384 8051 (1982)
Because Plaintitf all ie n procedural Violations ol!
the IDEA her the Court focuse n whether PISTD)
developed an IEP for R.H. that wa reasonabD!
ilculated t enable } . ; , ; ed
benefit
In determining whethe iieP ippropriat tne
Fifth Circuit has outlined four factors to conside:
vyhnether the program 1s individualized on the ba
the tudent asst ment ind periormancs
vnether the program 1s admunistered in the lea
restrictive environn nt: (5) wnetner tne er 1)
provided 1n a coordinated and collaborative mann
the } takeholde (4) hether |
den ind non-a em benefit
ry if ! Vf } j | j
tne iho]
neaningtu! Atl | f t at { :
192 e¢ » Michael | | at im. ||
jul! do t tur a 1po ether tl!
istrict pi led R.H. with educa é
his potent Mic it
Neverthi
[IDEA] re
Individualized IEP Based on Student
Assessment and Performance
ne
lal
.. TTT
\
it 6/7 } 14-4
Additionally, PISD gathered information from R.H
parent and teachers at ‘ILC to formulate
ippropriate plan for h R.H IEP was based
this assessment which, in lhgeht of the 1 rd he
ippeal to have been thorough and ind ualize
Indeed, the record contain hundred ' igre
de! I h ¢ uation ind a . 1 4
\.R. il at -347, Ill at 678
I the re qa tne! f i é
between parent nd school offic \RD committe
eetn and District meetiny re rdit tne p
r R.H. The formulation of R.H likly ical
I LANL a } ¢ yt ivy Dl ( In idd aie 1 \
i re ) f it } Roi liteP ind ite { i
ecded dé é rye { vit
ident t if rat gd that he need dit
( ? I rile rar I be
ct bie LR 69 LR tlea
ra pt |] ' ‘ I ( Dy ! th) ’
RH rent i! ce) ut
D) r PISD w d I iddit alu
VOI ! i] f ( i}
ibmitted b ROH Other tna t
Wistrict lal pre imme
UU tne \e a? yr olticer ne q
np! th JOKA and / Vill b I later
th _— +] thy , ,
ica t PISD 1 to NI
re VIC!
48a
R.H’s parents specifically contest those portions of
the IEP regarding the proposed length of school day
and the amount of individualized speech therapy.
While his’ parents believe he needed more
individualized speech therapy rather than the 15
minute sessions, coupled with 75 minutes group
sessions recommended by the District, the record
indicates that R.H. made some progress in his speech
skills with even 60 minutes. group therapy.
Therefore, the Court does not find, under a
preponderance of the evidence, that the District’s
recommendation regarding speech therapy was
insufficient for R.H.’s specific needs.
In regards to the length of the school day, after
R.H.’s parents expressed concern, the District
specifically proposed to extend the length of each
school day to include lunch time so that R.H.’s
eating, textural, and feeding issues could be
addressed by District personnel and _ therapists.
Plaintiff has not shown how the District’s refusal to
lengthen the school day more resulted in a failure to
address any other individualized needs. As noted
above, to be in compliance with the IDEA, a school
district is not required to provide an education that
maximizes a student’s potential. Therefore, by a
preponderance of the evidence before it, the Court
agrees with the Special Hearing Officer and finds
that the 2005 IEP and the proposed educational
program for 2005-2006 school year were
individualized to R.H.’s needs in light of his
assessment and performance.
49a
2. Services Provided in Coordinated and
Collaborative Manner by Key
“Stakeholders”
As with the individualized IEP, the record indicates
extensive participation in R.H.’s educational plan by
various professionals within the District (A.R. LII at
678-693). The District relied upon teachers certified
in special education, speech pathologists,
occupational therapists, and schoel psychologists,
among others, to evaluate R.H.’s needs. Additionally,
R.H.’s parents were active in the develupment of his
IEP. There is nothing in the record to indicate that
his well-being was not the primary objective of both
the District «ad his parents or that the key
stakeholders did not work together in developing a
plan. Moreover, the record reflects an educational
plan for R.H. that incorporated the input and
collaboration on ali of these individuals, including
periodic reports to and conferences with R.H.’s
parents regarding his progress. Therefore, the Court
finds by a preponderance of the evidence, as did the
Special Hearing Officer, that R.H.’s IEP was
developed and implemented in a coordinated and
collaborative manner by the key stakeholders.
3. Demonstration of Positive Academic and
Non-academic Benefits
Unfortunately, R.H. attended Beaty for only one
semester, so the time period that the Court has to
evaluate his progress is rather short. And, the Court
agrees with the District that the true extent of how
much R.H. would benefit from the IEP is hampered
by the fact that he did not stay enrolled at Beaty for
S0a
the full 12-month period the IEP was developed for.
However, the record sufficiently indicates that R.H.
made some progress during that short period (A.R.
III at 693-94, 700, 720-721; A.R. IV, Hearing
Transcript Il, at 255-262; A.R. IV, Hearing
Transcript III, at 16-24). The possibility that he did
not make as much progress as his parents would
hope, while certainly unfortunate, does not mean he
did not demonstrate some positive benefits from the
IEP, sufficient to show the District formulated an
appropriate IEP for his needs. Having weighed the
record before it, the Court finds this element was
satisfied.
4. Program Administered in Least Restrictive
Environment
Whether PISD’s program was administered in the
least restrictive environment, or LRE, appears to be
the gravamen of Plaintiffs complaint here. The IDEA
requires that “to the maximum extent appropriate,
children with disabilities, including children in
public or private institutions or other care facilities,
are educated with children who are not disabled, and
special classes, separate schooling, or other remova
of children 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 the regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.” 20 U.S.C. § 1412(a)(5)(A). Plaintiff
argues that the decision of the Special Hearing
Officer failed to comply with this provision and Fifth
Circuit precedent. In Daniel R.R. v. State Bd. of
Educ., 874 F.2d 1036 (5th Cir. 1989), the Fifth
Sla
Circuit developed a two-part test to determine
whether Section 1412 has been complied with:
First, we ask whether education in the
regular classroom, with the use of
supplemental aids and services, can be
achieved satisfactorily for a given child. See
§ 1412(5)(B). If it cannot and the school
intends to provide special education or to
remove the child from regular education,
we ask, second, whether the school has
mainstreamed the child to the maximum
extent appropriate. See id. A variety of
factors will inform each stage of our
inquiry; the factors that we consider today
do not constitute an exhaustive lst of
factors relevant to the mainstreaming
issue. Moreover, no_ single factor is
dispositive in all cases. Rather, our
analysis is an individualized, fact-specific
inquiry that requires us to examine
carefully the nature and severity of the
child’s handicapping condition, his needs
and abilities, and the schools’ response to
the child’s needs.
Daniel R.R., 874 F.2d at 1048. Plaintiff argues that
the District did not comply with this requirement.
The Court disagrees.
Plaintiff claims that placement at Beaty was not in
the LRE because R.H. would have been exposed to a
greater number of non-disabled peers if he attended
TLC. The least restrictive environment has been
defined by the Fifth Circuit as “not only freedom
52a
from restraint, but the freedom of the child to
associate with his or her family and able-bodied
peers to the maximum extent possible.” Teague
Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 128 n.2
(5th Cir.1993) (emphasis added) (citations omitted).
Plaintiff claims that “[a]lthough the least restrictive
classroom option on the Beaty campus’ was
recommended, tnis ‘integrated’ placement provided
R.H. with greatly reduced exposure to his non-
disabled peers compared to his regular education
setting at TLC.” Dkt. 38 at 4. Plaintiff cites to
evidence in the record that the enrollment of
students at Beaty fluctuated, such that, during some
periods, only half of the students in any given class
might be non-disabled. Plaintiff claims that TLC, on
the other hand, had a= significantly smaller
percentage of disabled children in R.H.’s class.
However, the fact (or possibility as it appears in this
case) that R.H. may have been 1n a classroom with a
greater percentage of non-disabled peers at TLC does
not mean that the Beaty classroom environment is
not considered an LRE. Importantly, the Fifth
Circuit has stated that “even when school officials
can mainstream the child, they need no provide for
an exclusively mainstreamed environment; the Act
requires school officiais to mainstream each child
only to the maximum extent appropriate.” Dantel
R.R., 874 F. 2d at 1045. Here, R.H. was placed in an
integrated environment at Beaty where he was in a
classroom with both disabled and non-disabled peers.
Plaintiff has not shown that this’ integrated
classroom ~— merely because it contained more
disabled children than his at TLC — failed to provide
him with a FAPE, and there is no magic number of
53a
non-disabled peers a classroom must have in order to
satisfy the IDEA. The Court agrees that the
integrated classroom offered at Beaty was
mainstreamed to the maximum extent appropriate.
The Court next addresses Plaintitfs allegation that
PISD’s failed to consider TLC as a possible LRE for
R.H., including the District's purported failure to
consider whether placement at TLC with
supplemental aids would have been more
appropriate. Plaintiff rehes on some testimony by
Beaty’s principal that she did not consider TLC when
determining the LRE for R.H. The Court need not
reach what the record shows about whether TLC was
considered by the District in order to find that the
District provided him with a FAPE in the LRE. Even
though a private school might be more appropriate or
better able to serve a child, courts have found that
school districts are not required to consider private
placement as long as an apprepriate public school
program is available. See, e.g., Michael F., 931 F.
Supp. at 479. As correctly noted by one court,:
[T]he proposition that a school district is
required, as part of its assessment of how
best to provide for a child’s education, to
canvass’. private schools’ for possible
placements if so requested by the
parents....is a faulty reading of IDEA. The
law requires the district to evaluate the
child’s needs and to determine what is
necessary to afford the child a FAPE. If it
appears that the district is not in a position
to provide those services in the public
school setting, then (and only then) must it
54a
place the child (at public expense) in a
private school that can provide’ those
services. But if the district can supply the
needed services, then the public school is
the preferred venue for educating the child.
Nothing in IDEA compels the school
district to look for private school options if
[the District], having identified the services
needed by the child, concludes that those
services can be provided in the public
school.
W.S. ex rel. CLS. v. Rye City School Dist., 454 F.
Supp.2d 134, 148 (S.D. N.Y. 2006).
It seems that Plaintiff's argument is premised on the
assumption that TLC is a “regular” classroom and
Beaty is not. The Court finds that the neither the
record nor applicable case law make such a bright
line distinction. The classrooms in both schools had
both disabled and non-disabled children in them
though the ratio of disabled to non-disabled mav
have differed. The Court finds that, however way
Beaty is characterized, the District’s plan provided
R.H. with supplemental aids and services one of
which may have well indeed been the placement of
R.H. in a classroom with both disabled and non-
disabled peers where he could both model
appropriate behaviors and receive the extra services,
attention, and therapies from trained care providers
his disability merited — in the least restrictive
manner. As recognized by the court in Daniel R.R., a
variety of factors determine whether a District has
appropriately mainstreamed a child with disabihties.
Daniei K.R., 874 F.2d at 1048. The Court finds that
5Sa
the placement at Beaty constituted a program
administered in the least restrictive environment as
required by the IDEA and the cases interpreting it.
Having examined this case under all four of the
Michael F-. factors, the Court, therefore concludes by
a preponderance of the evidence that the record
indicates that PISD’s IEP for R.H. was reasonably
calculated to enable him to receive meaningful
educational benefts and thus provided him with a
FAPE in accordance with IDEA. As noted above,
because the Court has concluded that PISD did not
violate IDEA in this case, the Court need not reach
whether TLC was an appropriate private school
placement.
Because the Court agrees that PISD comphed with
IDEA, Plaintiff is not entitled to reimbursement for
the costs of TLC during the 2005-2006 school years.
Although 20 U.S.C. § 1415(e)(8)(A) provides that
“during the pendency of any proceedings conducted
pursuant to this section, ... the chud shall remain in
the then current educational placement of such
child,” “parents who unilaterally change their child’s
placement during the pendency of review
proceedings, without the consent of state or local
school officials, do so at their own financial risk. If
the courts ultimately determine that the IEP
proposed by the school officials was appropriate, the
parents would be barred from — obtaining
reimbursement for any interim period in which their
child's placement violated § 1415(e)(3)” School
Committee v. Department of Educ., 471 U.S. 359,
373-74, 105 S.Ct. 1996, 85 L. Ed.2d 3885 (19885).
Because PISD did not consent to R.H.’s transfer to
S6a
private school, his parents are not. entitled to
reimbursement for the cost of TLC for the 2005-2006
school year. Houston Independent School Dist. v.
Bobby R., 200 F.3d 341, 350 (5th Cir. 2000).
Notice Requirement for Summer 2005
In his complaint, Plaintiff alleges that the Special
Hearing Officer erred as a matter of law by applying
the IDEA notice requirement to bar reimbursement
to Plaintiff for summer 2005. Plaintiff argues that
the notice requirement applies only to a cage in
which a parent specifically refuses placement and
that no placement was offered for Summer 2005 in
this case. 20 U.S.C. § 1412(a)(10)(C)(ina).
As noted above, the Special Hearing Office:
concluded that the District failed to provide R.H.
with a FAPE for the Summer of 2005 because it
failed to consider providing him with ESY during
that period. It is undisputed that R.H.’s parents
enrolled him in TLC for that period. When parents
enroll their children in private schools without the
consent of the school district, “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(a)(10)(c)(11).
Here, the Special Hearing Officer determined
reimbursement was not warranted because Plaintiff
did not comply with the notice requirements outlined
in 20 U.S.C. § 1412(a)(10)(c)(i11) (A.R. at 14). Plaintiff
~
S7a
argues that these notice provisions did not apply to
the denial of the 2005 summer session because no
ARD meeting was ever conducted to specifically
consider this session. However, Plaintiff does not cite
any to legal authority or portions of the record to
support his apparent argument that the denial of the
2005 summer session was not encompassed by the
other ARD meetings and therefore not subject to the
notice requirements. Therefore, the Court declines to
find that the Special Hearing Officer erred in her
findings regarding the notice requirements. In any
event, the Court notes that regardless of the notice
requirement, the reimbursement of costs under this
section of the IDEA is within the Special Hearing
Officer’s discretion. 20 U.S.C. § 1412(a)(10)(c)(i1). The
Court declines to find that the Special Hearing
Officer abused her discretion in finding Plaintiff was
not entitled to reimbursement here.
Attorney’s Fees
Plaintiff seeks an award of attorney’s fees here.
Under the IDEA, a court may, in its discretion award
attorney's fees to a parent of a child with a disability
if that parent is found to be the prevailing party. 20
U.S.C. § 1415()(3)(B)G)(D. The Court declines to find
that such an award of attorney’s fees is justified here
because Plaintiff has not prevailed.
Costs
Finally, PISD seeks to recover its taxable costs of
court under Michael F., 118 F.3d at 256- 57. The
Court declines to award costs to PISD under Michael
F. While the Fifth Circuit did not expressly
8a
disapprove of the district court’s award of costs in
that case, the court suggests that such an award wa:
within the district court’s discretion. Indeed, costs
are recoverable under Rule 54 unless a “court order
provides otherwise.” FED .R. Civ. P. 54(d) The taxing
f costs under 20 US.C. § 1920 is likewise
discretionary. Further, the Michael F. court stated it
did not disagree with the parents’ equity-based
arguments 1n opposing an award of costs. Michael F.,
118 F.3d at 257. Plaintiff makes similar argument:
here.
The Court agrees with Plaintiff that the spirit, if not
the express language, of the IDEA does _ not
contemplate such an award of costs in favor of a
prevailing school district, And, based on these fact:
the Court declines to award the school district it
COStS.
Although the Court ultimately found in favor of the
school district, R.H.’s parents here were well within
their rights under the IDEA and their obligations a
parents to ensure that their son is afforded all thi
opportunities available to him. R.H.’s parents were
only seeking the best for their son. The Court find
that, absent clear authority mandating them to do
so, they should not be required to take on additional
financial burdens solely because they sought
adjudication of this matter
Recommendation
Based on the foregoing, the Court recommends that
Defendant's Motion for Summary Judgment on thi
Administrative Record (Dkt. 15) be GRANTED, that
Plaintulfs Motion tor S y Judgment o
Administrative Record (Dkt. 38) be DENIED
that
the findings of the Special Education Hearing Officer
ce) the State of Texa In thi matter be affirmed
that each party should be ordered to bear it
(*¢) Ts and te
Within ten (10) day
judge § report, any party may serve and file
objection to the finding an recommendat
the magistrate judge. 28 U.S.C S 636(b)(1)
ftallure to file wn obiectio!
finding and recommendation
report within ten day alter
iverieved party [rom 1e novo
ourt of the proposea
ind from appellate
accepted O! adopted D\
grounds of pla erro!
irn, 474 U.S. 140
SIGNED this ith dav
]
ana
fy
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
R.H.. BY HIS PARENTS
AND NEXT FRIENDS,
MMILY AND MATTHEWS
H
PLANO INDEPENDE!
SCHOOL DISTRI
FINAL JUDGMEN'I
Pu) lant te met Viemorandu
Recommendation of United
d in this matter, it is h
CONSIDERED, ORDERED,
that the final decisio!
Hearing Office: hereby
GRANTED in ta
pa r\ itt OCH!
r\ either |
DENIED
AFFIRM
AND
pre
KD }
ADJUDGED
Kducat
SIGNED this the 315t dav of March, 2008
/ Richard A chell
Richard A. Schell!
LInited States District Judy
O2Za
APPENDIX C- OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
DECIDED MAY 27, 2010
Osa
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Fite D
No. 09-40369 May 27, 2010
Lyle W. Cayce
(‘lerk
R.H., Unidentified Party, by His Parents and Next
hriends: EMILY H., Unidentified Party: and
MATTHEW H., Unidentified Party,
Plaintiffs-Appellants,
PLANO INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before JONES, Chief Judge, SMITH and ELROD,
Circuit Judges.
JMRRY ko. SMITH, Circuit Judge
R.H., a minor, appeals the denial of tuition
reimbursement for private pre-schooling under the
Individuals with Disabilities Kducation Act (IDIEA”).
We affirm.
04a
1. The IDEA
Congress enacted the IDEA to ensure that children
with disabilities will have access to public education,
including special education and related services. See
20 U.S.C. § 1400(d)(1)(A); Dantel RR. v. State Bd. of
Kduc., 874 F.2d 10386, 1044 (5th Cir. 1989). The
IDEA requires school districts in states receiving
designated federal funds to implement procedures
and policies that assure that each disabled student
receives a “free appropriate public education,” or
“PAPE.” 20 U.S.C. §§ 1412(a)(1), 1415(a). To ensure
that a child receives a FAPE, parents and school
districts collaborate to develop) an — Individualized
Mducation Plan (“IEP”) that is “reasonably calculated
to enable the child to receive educational benefits.” !
In ‘Texas, a committee that develovs an IP 1s known
as an Admissions, Review, and Dismissal (““ARD’)
Committee. Cypress-Katirbanks Indep. Sch. Dist. v.
Michael F., 118 F.8d 245, 247 (5th Cir. 1997). The
ARD Committee consists of the parents of the child:
at least one of his regular education teachers; at least
one special-education Leacher; a qualified
representative of the school district; an individual
who can interpret “the instructional implications of
evaluation results;” other individuals who have
knowledge or special expertise regarding the child
GQneluded at the discretion of the parent or agency);
and, where appropriate, the child. V.P., 582 F.3d at
580 n.1 (citations omitted). The IDEA does not
' Houston Indep. Sch. Dist. v. VP. ex rel. Juan P., 582 F.3d 576,
S83-84 (Sth Cir. 2009) 1 (citation omitted), cert. dented, 78
U.S.L.W. 3546 (U.S. Mar. 22, 2010); see also 20 USC
1415(b)(1)
Oa
entitle a disabled child to an LEP that maximizes his
potential, but instead only guarantees a “basic floor”
of opportunity “specifically designed to meet the
child’s unique needs, supported by services that will
permit him to benefit from the instruction.”
Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d
286, 292 (5th Cir. 2009) (citations omitted). The
educational benefit. however. “cannot be ai mere
modicum or de minimis; rather, an IKP must be
likely to produce progress, not. regression or trivial
educational advancement.” /d. (citation omitted)
One of the primary mandates of the IDIA, and the
central focus in this case, is “matnstreaming,” which
is the requirement that an TEP place a disabled child
in the least restrictive environment (“LR”) for his
education:
In general[, tlo the maximum extent
appropriate, children with disabilities,
Including children in) public or” private
Institutions or other care facilities, are
educated with children who are not
disabled, and = special classes, separate
schooling, or other removal of children 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(a)(5)(A). See Daniel R.R., 874 F
at 1039.
66a
“By creating a statutory preference for
mainstreaming, Congress also created a_ tension
between two provisions of the [IDIEA],” the
requirement that a school district provide a FAP on
the one hand, and the requirement that, on the other
hand, it does so within the least restrictive
environment, /d. at 1044. “Even when school officials
can mainstream fa] child,” however, “they need not
provide for an exclusively mainstreamed
environment.” /d. at 1045. Rather, “the [IDIcA]
requires school officials to mainstream cach child
only to the maximum extent appropriate. In short,
the [IDEA]’s mandate for [FAPE] qualifies and limits
its mandate for education in the regular classroom.”
ld. (citation omitted)
(1. Factual Background
R.H. was born in December 2001. At age two, he
received an evaluation through ‘Texas's’ Early
Childhood Intervention (“ECI’) program and was
deemed echigible for CI services, namely, speech and
occupat ronal therapy.
In June 2004, R.H. began attending TLC, a private
preschool, and continued there until December of
that year, when his parents convened with officials
from Plano Independent School District “PISD” or
“the district”) for an ARD committee meeting. At the
meeting, R.IH. was determined to qualify for IDIA
services because of suspected autism and speech
impairment. The ARD committee also developed
R.H.’s IEP, which proposed placing him part-time in
a class at Beaty Early Childhood School (“Beaty”)
that included both special education and typically
O/a
developing students. KR.H. would = also receive
supplemental services, including weekly speech
therapy sessions. His parents agreed to the IEP
R.H. enrolled at Beaty in January 2005 and spent
most of the spring semester there. ‘The record reflects
that, while at Peaty, he made some progress toward
the goals listed in his LEP. Nevertheless, his parents
became concerned that he was showing behavioral
repression. During a parent-teacher conference in
March 2005, they expressed concern about the
perceived regression and stated their behef that R.H
needed summer school
In May 2005, after receiving no response from VISD
about their concerns, R.H.’s parents removed him
from Beaty and re-enrolled him at ‘TLC. By that
time, the spring curriculum had ended at TLC, and
RH. participated in a less’ structured summer
program, which a TLC employee referred to as “play
time.” R.H.’s teacher at TLC was not certified to
teach in Texas public schools, was not certified in
special education, and did not have a college degree.
TLC did not have a speech or occupational therapist
on staff. R.H.’s parents beheved, however, that R.H.
was better suited to be at TLC, in large part because
the ratio of typically developing students to special
education students was higher than at Beaty. During
the summer, R.H.’s parents obtained private speech
and occupational therapy for him.
At the end of the summer, PISD and R.1I1.’s parents
held another ARD meeting to discuss modifications
to the IEP. More ARD meetings followed throughout
the fall, until January 2006. R.H.’s parents wanted
Osa
PISD to provide R.H. with a full day’s schedule and
90 minutes of individual speech therapy and 30
minutes of group speech therapy each week. ‘The
district instead offered to lengthen R.H.’s school day
from 2 hours, 45 minutes to 3 hours, 45 minutes,
including supervised lunch time with other students
to address some of R.H.’s difficulties with eating. The
district also offered 15 minutes of individual speech
therapy and 75 minutes of group therapy each week
As an alternative, the district offered ai “dual
enrollment” option, whereby R.H.’s parents could
enroll him at TLC at their own expense but. receive
supplemental services at Beaty at no cost.
The parties could not reach an agreement. R.H.'s
parents requested a due process hearing pursuant to
the IDEA, which was held before a special hearing
officer in April 2006. At the hearing, R.H. alleged
that PISD had denied him a FAPE. Specifically, he
alleged that, in developing his IEP, the district had
failed to (1) consider the full continuum of placement
options, including non-special education
environments; (2) offer an appropriate educational
program at Beaty during the spring of 2005; (3) place
him in the LRIE available for his education; and (4)
provide him with extended-school-year education for
the summer of 2005. R.H. requested reimbursement
for his tuition at TLC and privately obtained speech,
occupational, and physical therapy from May 2005
onward, as well as an order that PISD continue to
pay for tuition and therapy until he began
kindergarten in the fall of 2008.
The hearing officer found in favor of PISD on all but
the extended-school-year claim. Although the hearing
69a
officer found that the district had improperly denied
R.H. services for the summer of 2005, she did not
award reimbursement, because R.H. had failed to
notify PISD of his intent to enroll at TLC during that
period as required by 20 U.S.C. § 1412(a)(10)(C) (in)
Ri. sued. Both parties moved for summary
judgment after agreeing that the evidence in the
administrative record was sufficient. The magistrate
judge issued a report and recommendation in favor of
affirming the ruling of the hearing officer. ‘The
magistrate judge found that R.H.’s LEP provided him
with a FAPE, including an education in the LRE, and
that R.H.’s failure to give notice under §8&
1412(a)(10)(C)Qul) barred reimbursement for tuition
at TLC during the summer of 2005. Over R.H.’s
objections, the district court adopted the report and
recommendation
On appeal, R.H. argues that his placement at Beaty
violated the IDEA because it was not the LRE for his
education and because PISD failed to follow certain
procedural requirements of the IDEA. R.H. also
contends that the notice requirement, which the
district court held barred recovery for summer 2005
tuition, does not apply.
Lll. Standard of Review
The district court, reviewing the decision of a hearing
officer under the IDEA, accords “due weight” to the
hearing officer's findings but ultimately reaches “an
independent decision based upon the preponderance
of the evidence’ that 1s “virtually de novo.” Michael
k., 118 F.3d at 252. We review the district court's
Oa
decision that the IEP’s placement of R.H. at Beaty
was appropriate under the IDEA de novo as a mixed
question of law and fact.* The findings of underlying
facts, “such as findings that a disabled student
obtained educational benefits under an IEP,” are
subject to clear error review. /d. (citations omitted)
The role of the judiciary is not to second-guess the
decisions of school officials or to substitute thei
plans for the education of disabled students with the
court's. Flour Bluff Indep. Sch. Dist. v. Katherine M.,
91 F.3d 689, 693 (5t Cir. 1996) (citation omitted)
Instead, the court’s role is limited to determining
whether those officials have complied with the IDEA.
Id. (citation omitted). The IDEA creates a
presumption 1n favor of a school district’s educational
plan, placing the burden of proof, by preponderance
of the evidence, on the party challenging it. Salley v.
St. Tammany Parish Sch. Bd., 57 F.3d 458, 467 (5t
Cir. 1995) (citation omitted).
lf there is a violation of the IDEA, we review the
district court’s decision not to grant tuition
reimbursement for abuse of discretion. St. Tammany
Parish Sch. Bd. v. Loutsiana, 142 F.3d 776, 782-83
(5th Cir. 1998). Because we affirm the finding that
PISD did provide R.H. with a FAPE, however, we
need not review the denial of reimbursement.
~ Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (Sth
Cir. 2000) (citation omitted); see also Brillion v. Klein Indep
Sch. Dist., 100 F. Appx 309, 312 (Sth Cir. 2004) (“In our view,
comphance with the mainstreaming requirement presents a
mixed question of law and fact, review 1s de novo ')
‘la
[V. Tuition Reimbursement for the
Regular School Year
Tuition reimbursement for private education is a
remedy available to courts and hearing officers
where a school district fails to provide a child with a
FAPE.’ To receive reimbursement, R.H. must show
that (1) his IEP’s public placement at Beaty was
inappropriate under the IDEA and (2) his private
school placement--in this case, at TLC--was proper
under the IDEA.4
We determine whether R.H.’s IEP appropriately
placed him at Beaty by considering two additional
questions. First, did PISD comply with the
procedural requirements of the IDEA? And second,
was the IEP “reasonably calculated to enable |R.H.|
to receive educational benefits?” Michael Z., 580 F.3d
at 293 (citing Bd. of Educ. v. Rowley, 458 U.S. 176,
206-07 (1982)).
A. Did PISD Comply with IDEA’s Procedural
Requirements?
“If the parents of a child with a disability, who previously
received special education and related services under the
autherity of a public agency, enroll the child in a private
clementary schoo! or secondary school without the consent of o1
referral by the public agency, a court or a hearing officer may
require the agency to reimburse the parents for the cost of tha’
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(a)(10)(C)1)
1 :
Michael 7., 580 F.3d at 293: see also Florence County
Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993)
io he
l2a
R.H. alleges three violations of the LDEA that could
be construed as “procedural.” He does not explicitly
identify them as procedural, perhaps because the
district court held that he had not alleged procedural!
violations in his complaint and had thus waived his
right to pursue such claims. Though we are inclined
to agree, we review R.H.’s_ procedural claims,
assuming arguendo that they were properly raised
The first such claim is that PISD failed to consider
the harmful effects of placing R.H. at Beaty when
developing his IEP, as required by “34 C.F.R. §
300.552(d).” That regulation no longer exists. R.H
gives us no information about whether it was
effective at relevant times in the past. Because the
claim is inadequately briefed, it is waived. United
States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001)
Kven if we were to consider the argument, it 1s
directly controverted by the record. R.H.’s LEP from
December 2004 contains a standard subsection
entitled, “Consideration of Potential Harmful
Effects,” which indicates that the ARD committee
members--including R.H.’s_ parent--discussed the
potential harmful effects of R.H.’s placement at
Beaty.
The potential harmful effects considered included lack of
opportunity for appropriate role models, stigmatization,
isolation from peers, diminished access to full range of
curriculum, decreased student self-esteem, and decreased
access to the instructional opportunities available in integrated
settings.
Id
R.H. also alleges th: s L/P offered no “explanation
of the extent, if any, to which |R.H.] w{fould] not
participate with nondisabled children in the regula:
class,” in violavuon of 20 U.S.C. § 1414(d)(1)(A)Q)(V)
Again, the LEP controverts R.H.’s claim. It contains a
standard section entitled “Committee Justification
for Removal from the General Education,” which
explains that R.H.’s “needs/behaviors are such that
he requires a full-time special education setting’ but
that he would still be part of a “General Education
Campus with “opportunity to participate with
tudents without disabilities in all nonacademic and
extracurricular activities to the maximum extent
appropriate.” ‘Therefore, R.H. has not met his burden
of proving a procedural violation in that respect
Finally, R.H. claims his ARD committee violated thi
IDEKA’s procedural requirements because it did not
consider placing him in a “regular, as opposed to
pecial, educational setting with supplementary aid
as needed. That argument dovetails with R.H.’
principal substantive claim, that his IEP was not
reasonably calculated to deliver educational benefit:
because it violated the LRE requirement of the
[DEA. Because of that overlap, and because R.H. ha
not explicitly identified a distinct procedural claim in
his briefing, we will consider this claim as part of his
allegation that PISD violated the substantive LRE
requirement of the IDEA.‘
KR
circultl nha treat¢
continuum of educationa!
than substantive violation
admittedly
tu
questiol
appropriate!
whether the
calculated to
enel
At tl
prec cde ni
reasonably
identified in Michael Ff
program individualized on the
assessment and performance; (2) ne progran
admunist in the least restrictive environment; |
ire the eCrvice provided a ordinated
collab yrative manner by the <ey takeholder
(4) are positive academt
iemonstrated
ommodate t
continued)
pplementar'
R._H. argues. however. that analvsis under Michael /
premature until we examine whether hi [hp
atisfies the statutes LR requirement. He points t
Daniel R.It., 874 F.2d at 1045, in which we said the
tWOoO part inquiry looking first to procedural
yiolations and second to whether an JEP wa
rea onably calculated ] not the appropriate too] tor
idl met it
]
i
letermining whether a school district
mainstreaming |i. LRE| oblgations.. We then
leveloped an independent test for itisfving the LRI
requirement
Michael ]| ind Dant Ie Te ur not mn conthict
Michael I’. interpreted the LRE requirement as part
of the FAPE requirement but did not alter Daniel
R.f.’s framework for determining whether a school
district satisfies the LRE requirement. Our analys)
f the second Michael ft ictor, the ruided by
RH did iot addr tne Vichael | cto} in f
rietin nsisting that only Daniel R.R. is relevant
\ we have just explained, we consider hi
irgument is relating to the cond Michael Ff
factor, whether the IEP satisfied the statutes LRE
provision. As for the other Michael F. tactors, nothing
R H 'S briefing could bi Con trued a challenging
the district court’s finding that PISD satisfied th
first (individualized program) and third (stakeholder
involvement) factor RH. dos argue that he
regressed during his time at Beaty, and this could be
construed a a challenve to the district court
finding under the fourth tractor! that RH
Joa
benefits under his [iP. We therefore review the
district court's findings under the second and fourth
Michael IF. factors
2. Standard of Review Under Michael F-.
We review the district court’s underlying factual
findings under each of the four Michael I. factors for
clear error.’ We consider de novo any legal issues
that arise under the four factors. V.P., 582 F.3d at
5R4.
3. Michael F. Factor Two: the LRE
Requirement.
In Daniel R.R., 874 F.2d at 1048, we stated a flexible,
two-part test for determining whether an IEP’s
placement was in the LRE. “First, we ask whether
education in the regular classroom, with the use of
supplemental aids and services can be achieved
satisfactorily for a given child.” Daniel R.R., 874 F.2d
at 1048. “If it cannot and the school intends to
provide special education or to remove the child from
regular education, we ask, second, whether the
school has mainstreamed the child to the maximum
extent appropriate.” Id. At the outset of step one, “we
must examine whether the state has taken steps to
accommodate the handicapped child in regular
education _If the state has made no effort to take
V.P., 582 F.3d at 7 5&3 (reviewing the district court’s findings
under cach Michael F. factor, including the LRE requirement,
for clear error), but see Brillion v. Klein Indep Sch. Dist, 100 +t
Appx 309, 312 (Sth Cir. 2004) (‘In our view, compliance with
the mainstreaming requirement presents a mixed question of
law and fact, [and] review 1s de novo.”)
T7a
such accommodating steps, our inquiry ends, for the
state 1s in violation of the Act’s express mandate to
supplement and modify regular education.” /d.
R.H.’s central argument is that PISD fails Daniel
RR. step one (and thus, Michael I. factor two),
because the district did not consider placing him
anywhere except at Beaty. His class at Beaty, R.H.
argues, is a “special education” setting, not a
“regular” setting. It follows that. PISD took no “steps
to accommodate [him] in regular education,” as
required by the IDEA.
We disagree. The hearing officer found that PISD
had considered placing R.H. in a fully mainstreamed
environment but rejected that option. That finding
was amply supported by evidence offered at the due
process hearing. Susie Vaughn, the principal at
Beaty and a member of R.Hs ARD committee,
testified that the committee was aware of R.H.’s
previous enrollment at TLC, but because of the needs
identified in R.H.’s I P--a low staff-to-student ratio,
a special education teacher with knowledge of
autism, regular collaboration with a speech
pathologist--the committee could not be confident
that the IEP could be implemented in a_ private
school setting, without PISD's direct supervision.
At one point, Vaughn admiited that she personally
“did not consider” whether R.H.’s IEP “could be
implemented in a typical pre-school setting.” But she
later clarified, “IT wouldn’t say that it wasn’t that we
couldn't consider [implementing the TEP at a private
preschool], because we obviously did consider it. It’s
that we didn’t recommend it. We didn’t advise that
/Sa
because we couldn’t assure that we could implement
that IEP as written in that preschool setting.”8
The picture that emerges from the due-process
hearing transcript is of an ARD~ committee
marshaling a range of resources and services. to
ensure R.H. a free appropriate public education. As
the IP developed, it seemed apparent to the
committee members--including R.H.’s) mother--that
the best place to implement the plan was at Beaty.
The ARD committee was well aware of R.H.’s
previous experience in- private” preschool, — but
considering all his newly identified needs and newly
offered resources, the committee did not recommend
that he continue at TLC. The hearing officer thus
concluded that R.H. had not met his burden to prove
PISD failed to consider a full continuum of placement
options.
The district court, ziving due weight to the hearing
officer’s factual findings but still conducting an
independent review, left that finding in place and
found no violation of either the procedural or
substantive requirements of the IDEA. Michael F-.,
118 F.3d at 252. We review that underlying factual
finding for clear error and find none. /d.2 PISD
"See Hearing Transcript 150-53, 224-25
"RH argues that the clear-error standard of review ts “not as
heavy” here, because we stand in the same shoes as did the
district court in reviewing the administrative record. See Sicula
Oceanica v. Wilmar Marine Ene g & Sales Corp., 413 F.2d 1332,
1333 (Sth Cir. 1969). The distinction is irrelevant, however,
because, as our analysis above should make apparent, we would
uphold the district court’s finding that PiISD satisfied Daniel
R.R. step one even under a more stringent review
19a
satisfied Daniel R.I. step one by considering whether
R.H.’s LP could be satisfactorily implemented in a
regular classroom.
We disagree, moreover, with nd.’ rigid
interpretation of Daniel R.R. step one, because he
ignores an important factual distinction. In Daniel
R.R., the district had the option of placing the child
in either of two pre-existing public classrooms: a
regular pre-kindergarten class or a special education
early childhood class. Daniel R.R., 874 F.2d at 1039
R.H. asserts that “PISD offers no mainstream public
classes for preschool children.” In such a case, he
argues, PISD was required to begin with” the
presumption that it would place him in “[t]he only
mainstream placement available,” a “private’
placement at a preschool for typically developing
children,” and remove him from the private setting
only if it could not provide a satisfactory education
there.
The IDEA, however, makes removal to a_ private
school placement the exception, not the default. The
statute was designed primarily to bring disabled
students into the public educational system and
ensure them a free appropriate public education."
Courts should therefore be cautious before holding
«
20 U.S.C. § 1400(c)\(2)(B) (finding that disabled children were
being “excluded entirely from the public school system and trom
being educated with their peers”); WS. ex rel. CS. vo Rye City
Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N-Y. 2006) (‘Nothing
in IDEA compels the school district to look for private school
options if the [district], having identified the services needed by
the child, concludes that those services can be provided by the
public school.”)
SOa
that a school district is required to place a child
outside the available range of public options.
We do not read Daniel R.R. to flip the default of the
IDEA in favor of a private school placement in this
case. Daniel R.R. does not consider or speak to the
circumstances at issue here, where the public
preschool curriculum does not include a_ purely
mainstream class. Since Daniel R.R. was decided,
none of our decisions involving LR analysis
addressed facts remotely similar to those in thi
case.'!! A rigid application of Daniel R.R. step one,
therefore, is not as helpful or persuasive as R.H
contends.
RH. hangs his LRE argument on a_ threshold
challenge to Daniel RR. step one and has not
advanced an alternative argument that PISD failed
step two. Accordingly, we affirm the district. court’s
finding that R.H. was mainstreamed to the
maximum extent appropriate, and R.H. has not met
his burden under Michael F. factor two to show that
his IEP was not implemented in the least restrictive
environment.
4. Michael I. factor Four: Academic and Non
acndemic Benefits
See VP S88? TF 3d at S86 (concluding that mainstream
placement for hearing-impaired child did not provide a FAPE
under the circumstances presented there); Brillon, 100 F. Appx
at S11-IS (stating that) removing a second-prader from
mainstream social studies and science classes because he could
not keep pace with the curriculum did not violated the LRE
requirement)
Sla
We move to the fourth factor under Michael F.,
whether R.H. demonstrated positive academic and
non-academic benefits under bis TEP. Here again, we
agree with the district court that the record has
evidence that R.H. made sufficient progress during
his one semester at Beaty to show that his IEP was
providing a FAPE. R.H.’s teacher testified at the due
process hearing, for instance, that R.H. had made
progress in a number of areas, including shape
recognition, counting, responding to his name, and
socializing with other students.
According to R.H.’s parents, he was happier and
developing better at TLC than at Beaty. As we have
already explained, however, the IDEA does _ not
entitle R.H. to a program that maximizes his
potential. Michael Z., 580 F.3d at 292. As long as
PISD has provided R.H. with a “basic floor” of
opportunity, “specifically designed to meet the child's
unique needs, supported by services that will permit
him to benefit from the instruction,” the distmet has
fulfilled its obligations under the law. Jd.
C. R.H.’s Placement at Beaty Did Not
Violate the IDEA.
In summary, R.H. has not shown that. PISD violated
the procedural requirements of the IDEA, nor has he
shown that his IEP was not reasonably calculated to
enable him to receive educational benefits. It follows
that the IiP’s placement of R.H. at Beaty was not
Inappropriate under the IDEA, and R.H. is_ not
entitled to tuition reimbursement for his time at
TLC. We need not and do not decide, therefore,
82a
whether TLC’s. school-year curriculum offered a
proper private placement under the IDEA.
V. Tuition Reimbursement for
Summer 2005.
In addition to normal = school-year tuition
reimbursement, K.H. seeks reimbursement for
summer enrollment at TLC in 2005. As explained
above, we analyze requests for reimbursement by
asking first, whether the IEP’s placement (or in this
case, lack thereof) was appropriate under the IDEA,
and second, whether the private school placement at
TLC was proper under the statute. Michael Z., 580
F.3d at 293.
The hearing officer held that PISD violated the IDEA
when it failed to respond to the request of R.H.’s
parents that the district provide an extended school
year for R.H. in the summer of 2005. Nevertheless,
the hearing officer held that reimbursement for
R.H.’s enrollment) at TLC that summer was
Inappropriate because R.H. had not given notice to
PISD that he would be enrolled at TLC during that
time period, as required by 20 US.C. §
1412(a)(10)(C)n). That part of the statute provides,
in relevant part, that a court or hearing officer may
reduce or deny an otherwise valid reimbursement
request if
at the most recent IEP meeting that the
parents attended prior to removal of the
child from the public school, the parents did
not inform the IEP ‘Team that they were
rejecting the placement proposed by the
Sa
public agency to provide a free appropriate
public education to their child, including
stating their concerns and their intent to
enroll their child in a private school at
public expcnse; or... 10 business days
prior to the removal of the child from the
public school, the parents did not give
written notice to the public agency of the
information described [above]
20 U.S.C. § 1412(a)00)(C)OiDD). The district court
affirmed the denial of reambursement
On appeal, R.H. argues, as he did before the district
court, that the notice requirement did not apply to
him, because PISD never organized an ARD meeting
specifically to address his request for an extended
school year in 2005. He could not have possibly
rejected the placement proposed by PISD per the
notice requirement, when there was no summer
placement proposal to reject in the first place.
We agree, instead, with the district court that the
lack of extended school year services was part and
parcel of R.H.’s IP at the time he re-enrolled at TLC
in May 2005, and he was thus required to give notice
to PISD of his intent to reject the terms of his
existing IEP. We note, moreover, that the decision to
award private tuition reimbursement is a matter left
to the discretion of courts and hearing officers
20 U.S.C. § 1412(a)1OKC)U1) (stating that “a court or a
hearing officer may require the [school district] to reimburse the
parents for the cost of [private] enrollment if the court or
hearing officer finds that the agency had not made a free
appropriate public education available’) (emphasis added)
S44
And even if we were convinced by R.H.’s argument
that he was not required to give notice of enrollment
at TLC for the summer of 2005, we are skeptical that
he has met his burden to show that TLC was an
appropriate private placement, worthy of
reimbursement. The record reflects that TLC’s
regular curriculum ended in May 2005 and that the
summer program was mere “play time.”
VI. Conclusion
PISD satishied its obligations under the IDEA to
develop an IEP for R.H. that offered him a FAPE
during the school year. R.H. is barred from receiving
reimbursement for private summer preschool tuition,
because he did not give proper notice. R.H.'s request
for attorney's fees is denied.
There is no error. The judgment is AFFIRMED
APPENDIX D - PETITION FOR PANEL
REHEARINGTO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT FILED JUNE
LQ, 2010
soa
IN THE UNITED STATES COURT OF APPEAL
FOR THE FIFTH CIRCUIT
R.H., by his parents and
next friends
{’ yr 4 } |. " :
Hmily and Matthew H., No. 09-40369
Civil Action No
\ppellant 1:06-CV-00352
Plano Independent
School Districi
Appelles
8
S
.
S
.
§
§
S
S
§
.
S
S
R.H.’S PETITION FOR PANEL REHEARING
Appellant R.H. files this Petition for Panel Rehearing
pursuant to FRAP 40. The Fifth Circuit opinion issued
on May 27, 2010 (“Opinion”) contains several
substantive errors of law and fact that warrant a
different outcome. The overarching error in th
Opinion is a failure to apply Damiel R.R. and the
mainstreaming requirement of the IDEA, which may
be caused in part by particular errors of fact, as set
forth below
Krror 1: Reliance on a “finding” that does not
exist
The Court mistakenly determined that “the hearing
otncer tound that PIS
a fully mainstream en\ ted that
yption.” Opinion is finding dos
exist anywhere in the hearing officer's opinion
Amended Decision of Hearing Officer | Bate Y
09-40369 Document: O0O511
Ob/ | ZU1LUO.z ‘The
as th
.reaulrement
ubstantive mistake ot factal
UOCre,
burden for R.H. to defeat since “findy
otficer mu
yr 2: Relying on documentation from thi
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e devi be? ()4
finish out the 2004-201 | ur (P. |
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relevant December 20 » TEP 1 or ire P xt
Bat 182-484]. In rta
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90a
This is factually wrong. Yet, this mistaken assumption
leads the Court to the erroneous conclusion that
Daniel R.R. and the LRE mandate of the IDEA do not
apply, when this Court states at p. 14 of the Opinion
that “Daniel R.R. does not consider or speak to the
circumstances at issue here, where the public preschool
curriculum does not include a purely mainstream
class.”
As discussed during oral argument, R.H.’s statement
that “PISD offers no mainstream public classes for
preschool children” reflects the lack of free public
preschools since the compulsory school age for children
in Texas is age 6. See Amended Hearing Officer
decision at p.8. R.H. briefed mainstream preschool
options aside from private school to this Court at p.
43 of his brief, and discussed these options during
oral argument.’ Moreover, R.H.’s parents were not
requesting private school, but rather, a mainstream
placement.°®
*R.H. argued for other mainstream options to the D. Ct. as well.
See, 1.e., ROA 316; 583; see also ROA 512; 580.
* See PISD’s notice of refusals at P. Exh. 11-1 [Bates 279] (parents
requested natural ratio of typically developing peers to students
with an IEP); P. Exh. 15-3 [Bates 347] (parents requested high
volume of peers). A request for TLC is denied for the first time
in January, 2006, after the parents requested other mainstream
options from PISD for five months. See P. Exh. 19-4 [427].
91a
finally, it is undisputed that R.H.’s parents never
approved the December 2005 ITEP nor agreed that
Beaty was appropriate, so the Court's statement in
the Opinion at p. 13 that R.H.’s mother agreed that
the best place to implement the plan was at Beaty 1s
factually wrong.
The most important point is that PISD did have at least
three mainstream preschool options at its disposal:
regular kindergarten classes, Head Start, and PISD’s
Karly Learning Centers.® This is not inconsistent with
R.H.’s statement “that PISD offers no mainstream
public classes for preschool children”:
kindergarten classes are public but not typically for
preschoolers; Head Start is community based and not
run by PISD; and the Early Learning Centers are not
free. But these are all regular settings that PISD
can and should use to fulfill its LRE obhgations for
preschoolers who can be mainstreamed. The lack
of free public preschool is not unique to PISD, and
districts all over the country use regular kindergarten
classes, community preschools, and Head Start to
meet LRE for preschoolers. R.H. is not suggesting
anything novel.
®Even if PISD were to now argue and this Court agree that
the Early Learning Centers, regular kindergarten class, and
Head Start would all be inappropriate placements for R.H., the
violation of IDEA still occurred because PISD did not consider
these when they were required to — during the development of
R.H.’s TEP, with his parents who must be allowed to participate
in all placement decisions. 34 C.F.R. § 300.327
92a
PISD’s tuition-based Early Learning Centers present
the most interesting option for PISD to mainstream
preschoolers with disabilities as they are preexisting
regular education classrooms for preschoolers in PISD
and, in fact, one is closer to R.H.’s residence than
Beaty. However, PISD never told R.H.’s parents about
this option. During the due process hearing, R.H.’s
counsel Myrna Silver asked the Beaty principal,
Susie Vaughan, whether the district had tuition based
alternatives for typically developing students. Ms.
Vaughan gave false testimony by completely omitting
discussion of PISD’s Early Learning Centers.’ See
Vol. Il, p. 206-207. However, at first glance, an
Karly Learning Center appears to provide an ideal
mainstream environment for R.H., including the very
low student/teacher ratio that PISD insisted R.H.
needed only after suit was filed.2 ROA 134 4 20.°
There is no exception in the IDEA that if a “regular
class doesn’t exist” one may avoid application of main-
streaming laws. States are required to make available
a “continuum of alternative placements”
PISD’s Early Learning Centers were available at the time
R.H.’s 2005-2006 IEP was being developed (see P. Exh. 20-1
[Bates 000430)).
* See http://www.pisd.edu/schools/early.childhood/early. learning
shtml.
* “ROA” citations refer to the record on appeal which was Bates
numbered by the District Court
Q3a
which must include regularclasses. 34 C.F. R.§ 800.115.
PISD is either violating this law, or it is violating the
law by not considering available mainstream options
and instead automatically placing preschoolers with
disabilities in special classes. It was error for this Court
to disregard these options, which led to a misguided
analysis of the law, and toa conclusion that 1s squarely
at odds with Fifth Circuit and Federal law.
Error 4: Failure to determine R.H.’s ability to
.
be mainstreamed
If a child with disabilities has the capability to be
educated satisfactorily in a regular classroom, with
the use of supplemental aids and services, then the
school district must educate that child in a regular
classroom. 20 U.S.C. § 1412(a)(5)(A). In determining
whether a child can be educated satisfactorily in a
regular classroom, with the use of aids and services,
the lens 1s focused on the child.'® This is consistent with
the Federal mandate that “only when the nature or
severity of the disability of achild is such that education
in regular classes with the use of supplementary aids
and services cannot be achieved satisfactorily” can
the child be removed from the regular educational
environment. Id. (emphasis added).
' The Fifth Circuit in Daniel R.R. evaluates in detail whether
In a regular education setting the child can receive academic
benefit; the child receives nonacademic benefit; and the child is
disrupt ive to other children
94a
This Court and the school district mistakenly focus
their lenses on the school facilities rather than on the
child; they mistakenly ask whether the facility and
personnel are capable of satisfactorily educating this
child rather than whether the child has the capability
to be educated in a regular classroom. To date, nobody
not PISD, the hearing officer, the District Court or this
Court — has asked or answered the question of whether
R.H. had the capability to be educated satisfactorily in
a regular classroom, with the use of supplemental aids
and services, at the time his second IEP was being
developed for the 2005-2006 school year. ‘This Court's
focus on the school district’s inabilities rather than
on R.H.’s abilities is contrary to the Court’s opinion
in Daniel R.R. and handicaps a child such that the
protections of the IDEA are worthless."!
Federal policy specifically forbids sclecting a placement
Inasegrevated sctting over placementinaregularclass
if the placement decision is based on administrative
factors and not on the student’s needs. “In all cases,
placement decisions must be individually determined
on the basis of each child's abilities and needs, and not
solely on factors such as ... configuration of the service
delivery system, availability of space,
‘Tf we determine whether a child can be mainstreamed only in
the context of the placements the school district chooses to offer,
schools could always place preschoolers in special education
placements by choosing not to offer regular placements.
95a
or administrative convenience.”!” A school cannot
use lack of appropriate placements as an excuse for
denying students with disabilities their nght to an
education in the least restrictive environment."
It hght of the errors discussed above, it becomes clear
that it was also error for this Court to fail to apply
Daniel R.R. and ask first whether the child can be
mainstreamed, based on his abilities and unique needs.
Since the evidence proves he can be mainstreamed, the
Court should then ask what public and private options
provide this setting. With public options in this case,
then PISD must either provide aids and services to
accommodate the child in one of those options, or pay
for private preschool."
‘2 Assistance to States for the Education of Children With Dis-
abilities and the Early Intervention Program for Infants and
Toddlers With Disabilities, 64 Fed. Reg. 12455, 12471 (1999).
'S Federal Policy Letter on LRE, Education for the Handicapped
Law Reporter (KHLR) page 211:384, March 21, 1986; CDE, Of
fice of Special Education, Policy Statement on LRE.
'* “There is no doubt that Congress has imposed a significant
financial burden on States and school districts that participate
in IDEA. Yet public educational authorities who want to avoid
reimbursing parents for the private education of a disabled child
can do one of two things: give the child a free appropriate public
education in a public setting, or place the child in an appropri
ate private setting of the State’s choice. This 1s IDEA’s mandate,
and school officials who conform to it need not worry about reim-
bursement claims.” Florence County Sch. Dist. v.
Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)
(emphasis added).
96a
However, 1n_no event is it permissible to restrict a
child to a special class if his abilities are sufficient to
receive a satisfactory education in a regular class with
supplemental aids and services, and it was error for
this Court toallow PISD to do so, as explained below.
As R.H. has argued, PISD placed him in a full-time
special education classroom without first determining
whether he had the capability to receive a satisfactory
education in a regular classroom environment, which
violates the IDEA." 20 U.S.C. § 1412(a)(5)(A); Daniel
R.R., 874 F.2d at 1048. The Court relies on the
testimony of Beaty’s principal, Susie Vaughn that “the
committee could not be confident that the IEP could
be implemented in a private school setting, without
PISD’s direct supervision.” (emphasis added). This
reliance is error first, because this 1s no evidence that
R.H.’s IEP could not be implemented in PISD’s Early
Learning Centers, regular kindergarten classrooms,
'S The after the fact justification given by PISD for rejecting the
private preschool, as this Court noted, was due to its lack of
confidence that it could tmplement an IEP in the private setting.
In addition, an ESL pre-K classroom at Beaty was rejected as
inappropriate for R.H., who needed appropriate speech models.
Accordingly, it is crucial to recognize that PISD never rejected
the possibility that R.H. could be accommodated in a regular
classroom with the use of supplemental aids and services for the
2005-2006 school year; so nothing in the record defeats R.H.’s
right under the IDEA to be educated in a regular classroom for
this year.
Q7a
or Head Start. Second, PISD’s lack of confidence in
implementing an IEP in a private preschool does not
rclheve it of its obligation to mainstream a child to the
maximum extent appropriate.'® 20 U.S.C. § 1412(a)
(5)(A)
further, Daniel R.R. sets forth factors to consider when
determining whether a child can achieve education in
the regular classroom satisfactorily — it is error that
no reviewing Court has applied these factors in this
case.!’ This analysis reveals there is no evidence that
PISD took any steps to accommodate R.H. in regular
education. Even if the Court beleves that PISD
“considered” the private preschool but just did not
recommend it, what steps did PISD take to attempt to
implement R.H.’s IEP in that setting? None.'® The
'* It is undisputed that R.H. was succeeding in a mainstream
environment during the summer and fall of 2005. Why then
is PISD permitted to make the leap from assuming a private
regular class won’t work, to placing him in full-time special
education? This is not a continuum of placement options and this
predetermination violates the letter and spirit of the IDEA.
7 R.H. briefed these factors with evidence to the District Court,
and to the Fifth Circuit in his opening brief. R.H. will not repeat
the evidence again in this petition, as space does not permit
*In another case, the Fifth Circuit found the school district had
taken steps to accommodate the child in a regular education
setting where it “modified the class assignments, provided a
teacher's aide, and worked collaboratively to reinforce concepts’
in that regular setting. Brillon v. Klein Independent School Dist.,
100 Fed. Appx. 309, 312, (5th Cir. 2004)
YSa
ARD documents reveal that PISD assumed from the
very beginning that R.H. needed a full-time special
education classroom.'* As the Court of Appeals for the
Kleventh Circuit explained in Greer v. Rome, 950 F.2d
688, 698 (llth Cir. 1991), withdrawn for procedural
reasons, 956 F.2d 1025 (11th Cir. 1992):
(T]he critical inquiry is whether the school
district took steps during the development
of the IEP and placement proposal] to
accommodate Christy in the regular
classroom; we will not consider after-the-fact
justifications for a predetermined placement.
Our review of the record convinces us that the
school district, during the development of the
IEP, did not take steps to accommodate
Christy in the regular classroom. First,
school officials failed to consider the
full range of supplemental aids and services,
including resource rooms and itinerant
instruction, that could be provided to
assist Christy in the regular classroom.
... Indeed, the school district's own minutes
of the placement committee meetings
indicate that school officials considered only
three options for Christy: the regular
classroom with no supplemental aids and
services, the regular classroom with some
speech therapy only, and the self-contained
* P. Exh. 2-14, 2-18 [Bates 238-242]; P. Exh. 14-12 |Bates 333];
P. Exh. 22-9 [Bates 482].
994
special education classroom. The school]
district's consideration of only these limited
options does not comply with the mandates of
the Act
PISD failed to consider supplemental aids and
services that would allow R.H. to receive his
education in a regular setting; this violates Daniel
R.R. step one and the IDEA. In order to accomplish
the IDEA’s mainstreaming requirements, schools
must “hire various specially trained personnel to
help handicapped children,”° such as_ physical,
occupational, and speech therapists.”! Additionally, a
school district must assign a supplementary teacher's
assistant to a regular classroom, on a full or part-time
basis, if necessary to accommodate the special needs
of included children with disabilities.”
With respect to the other Daniel R.R. step one factors,
there is no evidence that R.H. would not receive
educational benefit from regular education and, in
*’ Irving Independent School District v. Tatro, 468 U.S. 883, 893
104 8.Ct. 3371, 3377, 82 L.Ed.2d 664 (1984)
' See Polk v. Central Susquehanna Intermediate Unit 16, 853
Kk 2d 171, 176 (3d Cir.1988), cert. denied, 488 U.S. 1030, 109
S.Ct. 838, 102 L.Ed.2d 970 (1989); 20 U.S.C. § 1401(a)(16)
See, e.g., Department of Education, State of Hawau v
Katherine D., 727 F.2d 809, 813 (9th Cir.1983) (aide ordered for
child with cystic fibrosis), cert. denied, 471 U.S. 1117, 105 S.Ct
2360, 86 L.Ed.2d 260 (1985)
1U0a
fact, with an IQ of 127 his academic skills exceeded
those of his typical preschool peers as he was reading
books to his classmates at TLC, Vol. II, p. 112. There is
ample evidence that R.H. was not only fully capable of
receiving educational benefit but that he was thriving
from the regular education placement that his parents
funded. There is also overwhelming evidence in thi:
case that R.H. received enormous nonacademic benefits
from mainstreaming which were central to his specific
deficits such as a speech impairment, just as the Court
in Daniel R.R. understood. Finally, there is ample
evidence in the record that R.H. did not detrimentally
affect the regular classroom environment
Accordingly, not one, but all of the factors discussed
at length in Daniel R.R. support the conclusion that
R.H. could have received a satisfactory education in
a regular class with supplemental aids and services
Yet PISD proposed only a fulltime special education
classroom for R.H.** P. Exh. 14-12 [Bates 000333]; P
Kxh. 22-9 [Bates 000482]. This alone is a violation of
°3 As previously briefed, PISD’s offer of dual enrollment doe
nothing to defeat this argument since this would not only have
been disruptive to transport R.H. during the day for only 15
minutes of individualized speech therapy, but this would have
been a denial of FAPE, since R.H.’s parents would have been
paying for his preschool. This would defeat IDEA’s purpose of
ensuring “that children with disabilities receive an education
that is both appropriate and free.” See Florence County Sch
Dist. v. Carter, 510 U.S. 7, 11, 13, 114 S.Ct. 3861, 126 L.Ed.2d
284 (1993)
the LUKA
tlowevel ourt rejects the evidence, and
refuses ly the step one factors, PISD is still habl
for failing to mainstream R.H. to the maximum extent
appropriate, pursuant to Daniel R.R. step two.“
this case, PISD had thebenefit of documentary
testimonial evidence of RH ucce
with occupational and speech therapy
funded by hi parent PISD knew at the times
they were working with the parent
December 2005 IEP, that R Wi making progre
[kP goals in a le ‘ictive ing than the
full-time special education
ho neces aril
Beaty did not
xtent appropriate
regard this vi
i{
Reimbursement
Although 1 turt ha Vi reacned Ti ioe
l entitled to relmbursement beca Line irs '
placement at TLC wa ippropriate. Parent
entitled to reimbursement if: ( there isubstant
yiolation of the IDEA: and (2) the edu ALLOI
by the private school } rea onably « ili ilated
the child to receive educational benefit
the panel expre ed concern about the lack
education teacher it TLC, thi dor not
finding that TLC was not an appropriate
placem«i nt. See 34 C.F.R. § 300.146(b) and
(00.18(h). In Florence County. the district
that the privat chool wa Inappropriat
facultv members were n
develop [IE Ps. The Supreme ¢ rt st
Line LOl(a)(] eqgulre f
tne requirement tnat the cno meet
the standards of the state educat
1401(a)(18)(B)--do not appl
private parental placements. Indee:
hool district’s empha ( tate st
ymewhat ire is the ( rt
\ppeals noted t hard em
n | it with tl Vet
e Flor (
Burlingto! Dep't of |
t state certihed and
i speci
ustu
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1O4a
Zurlington, 471 U.S. at 370. In this case, PISD violated
the IDEA by failing to provide R.H. with an LRE.?’
In addition, it is undisputed and PISD has offered
no evidence to the contrary that R.H. benefitted
significantly, both academically and non-academically,
a) e . J
from his mainstream placement. Therefore, the
education provided at the piivate school, supported
by the supplementary aids and services funded by
his parents, is reasonably calculated to enable R.H.
to receive educational benefits - the only standard for
a unilateral placement when a school fails to provide
the LRE. R.H. respectfully asks this Court to award
reimbursement.
Conclusion
This case was not filed to require school districts to
pay for private preschool. The private setting was the
only mainstream option available to R.H. because
PISD failed to offer, make available, or even consider
any other mainstream alternative. R.H
If there is a substantive LRE violation, there is no need to
determine if a FAPE was provided.K.B. v. Nebo School District
379 F.3d 966, 975 (10th Cir. 2004). The IDEA requires both that
the child be provided a FAPE and that sucha FAPE be provided in
an LRE to the maximum extent appropriate. Murray v. Montrose
County Sch. Dist., 51 F.3d 921, 925-26 (1Oth Cir.1995).The
IDEA's substantive provision is violated if a FAPE is provided,
but not, to the maximum extent appropriate, in the LRE. See 20
U.S.C. § 1412(a)(1), (5); Murray, 51 F.3d at 925-26
10OSa
was limited by PISD to a single choice to obtain his
education in a regular setting, which happened to
be private, and he should not be penalized for this
circumstance. This case was filed because a child with
disabilities was not educated in the least restrictive
environment, be it private or public, a substantive
violation of the IDEA. There is no evidence 1n the record
that R.H. could not receive a satisfactory education in
a regular education classroom with supplemental aids
and services for the 2005-2006 school year.”* Asa result,
that is where he had the right to receive his education.
20 U.S.C. § 1412(a)(5)(A). The rules do not change just
because the child is a preschooler or because a school
district limits the placement options it offers.*° R.H.
can and did succeed 1n a regular education classroom
with assistance — placing him in a full-time special
education classroom was thus a blatant violation of
the IDEA
“Indeed, the Act’s strong presumption in favor of
mainstreaming, 20 U.S.C. § 1412(5)(B), would be turns
on its head if parents had to prove that their child was
worthy of being included, rather than the school district
having to justify a decision to exclude the child from
regular classroom.” Oberti v. Bd. Of fduc., 995 F.2d 1204,
1219 (ad Cir.1993).
? Not only did Damel R.R. concern a preschooler, but the
LRE requirement explicitly applies to
all preschoolers with disabilities under Federal law. 34
C.F.R. § 300.116.
106a
The undeniable result of the Opinion is that it 1s
acceptable for R.H. to have been placed in a special
education classroom even though his individual needs
did not require that restrictive setting, because PISD
assumed it could not implement his IEP in a private
school and otherwise failed to consider any other
ainstream options, much less with the provision of
supplemental aids and services. R.H. can not envision
a more straight forward violation of the IDEA’s LRE
requirement and R.H. respectfully requests a ruling
in his favor
Respectfully submitted,
By: ¢
Stacy L. Zoern
State Bar No. 24051565
Kut M. Sauer
State Bar No. 17673700
Daffer McDaniel LLP
700 Lavaca, Ste 730
Austin, TX 78701]
(512) 476-1400
(512) 708-1250 (fax)
ksauer@dmtechlaw.c
szoern@dmtechlaw.com
CERTIFICATE OF SERVICE
The undersigned certifies that on June 10, 2010 the
following counsel of record for Appellee are being
served with a copy of this document via the Court's
lO7a
CM/ECF system pursuant the FED
(1)(D):
Joe R. Tanguma
WALSH, ANDERSON, BROWN
SCHULZE, & ALDRIDGE, p.
P.O. Box 168046
Irving, Texas 75016
Kmail: itanguma@irv.wab
Additionally, the following counsel of record for
Appellee is being served on the
class mall
Nona C. Matthews
WALSH, ANDERSON, BROWN
SCHULZE, & ALDRIDGE, p.
P.O. Box 168046
Irving, Texas 75016
’ ; | j
( Oounsel O] led Cl Q JO! Le PN
108a
APPENDIX E - ORDER DENYING PETITION
FOR PANEL REHEARING OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT FILED JUNE 25, 2010
109a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FLETH CIRCUIT
No. 09-40369
RH,UnidentifiedParty, by his parents and next
friends; EMILY Unidentified Party: H, Unidentified
Party,
Plaintiffs -Appellant:
PLANO INEDPENDENT SCHOOL,
DISTRICT,
Defendant Appellee
fas
Appeal from the United States District Court for the
Kastern District of Texas. Sherman
ON PETITION FOR REHEARING
Before JONES, Chief Judge, SMITH and ELROD,
Circuit Judges
Pitk CURIAM
ITIS ORDERED that the petition for rehearing 3
DENIED.
ENTERED FOR THE COURT
‘uit Judge
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