# Appendix — R. H. ex rel. Emily H. v. Plano Independent School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2549%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1216 ## Text 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 ‘ ‘ } ipprop! “AL I : iT ‘ ‘ y ’ ’ * > ryri? ’ | { I ap} ALA | + j f tj | rrye i ) t | t if tl ‘ } } mt ’ 4 : } | ] i?é qt) i rat UATE ( | } Gl WI } arf I ia { ’ nfide t i tne ‘ Yr) | l . led t ind } ’ ryt T I | Ait | ‘ ij j 1 i { rt tell th ! Ss [ ‘ i] r | rhye k re y ror, EPLIe it 1 f [) { ‘ ’ y ) ’ | 1T1C) ‘ } 12 } { f rats ‘ ri f Lf I i 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2549%3A2. Public record. Not legal advice.