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N.W. v. Poe

United States District Court, Sixth Circuit

November 4, 2013

N.W., ET AL., Plaintiffs,
RANDY POE, ET AL., Defendants.



This matter is before the Court on plaintiffs' motion for judgment on the administrative record (Doc. #15).

The Court held oral argument on this motion on Thursday, October 24, 2013. Karen Hoskins Ginn and Marianne Schaefer Chevalier were present for the plaintiffs. Claire Parsons was present for defendants Boone County Board of Education, Randy Poe, Karen Chesser, Alissa Ayers, Pam Ecklund, Karen Byrd, Bonnie Rickert, Steve Kinman, Steve Templeton, and Charles Massey. David Wickersham was present for defendants Kentucky Department of Education, Terry Holiday, and Johnny Collett. Official Court Reporter Joan Averdick recorded the proceedings. Having made a thorough review of the record and given careful consideration to the memoranda and oral arguments of the parties, the Court issues the following memorandum opinion and order.


Plaintiff, N.W., is a nine-year-old student who resides in the Boone County, Kentucky school district ("the District"). See Administrative Record ("AR") at 294. N.W. displays characteristics of severe apraxia and autism. Id. at p. 295. At age three (3), N.W. was enrolled in Boone County Schools. At that time, his Admissions and Release Committee ("ARC") determined that he qualified for special education services due to a developmental delay and placed him at St. Rita School for the Deaf in Cincinnati, Ohio. Id. at 294-95.

In June 2010, N.W.'s parents unilaterally enrolled him in Applied Behavioral Services ("ABS") school, also in Cincinnati, Ohio. Id. at 296; see also Due Process Hearing Transcript Day 1 ("Hearing Transcript - Day 1") at 34. Subsequently, the District convened an ARC on October 21, 2010 to discuss N.W.'s placement options. Id. at 27; see also Hearing Transcript - Day 1 at 37. At this meeting, the ARC reviewed N.W.'s individualized education program ("IEP") goals and the educational services that he required, but the ARC could not reach an agreement regarding N.W.'s placement. Id. at 33-34.

While N.W.'s parents intended on transitioning N.W. back into the District's schools, N.W.'s parents felt that ABS was the best placement for N.W. at that time. Id. at 33-34, 296; see also Hearing Transcript - Day 1 at 97. As a result, the parties entered into a mediated agreement on November 15, 2010. See Petitioner Ex. 2. That agreement provided that the District would pay for the following: (1) reimbursement for $5453.53 for N.W.'s tuition costs at ABS from August 19, 2010 through November 30, 2010; (2) a sum of $5, 000 for past transportation costs, attorney fees, and other past expenses; (3) $1666.66 per month in tuition for N.W. to attend ABS during the 2010-2011 school year; (4) an additional $1500 toward ABS summer program tuition; and (5) reimbursement for N.W.'s transportation costs through the 2010-2011 school year. Id.

Furthermore, the parties agreed that an ARC would be convened on or before April 15, 2011 to discuss N.W.'s transition back to the District's schools by the fall of 2011. Id. To ensure a smooth transition, the parties agreed that a board-certified behavioral analyst would lead the transition team and the District would use the ABS behavior plan. Id.

The District missed scheduling the ARC meeting for April 15, 2011. See Respondent Ex. 23. Despite repeated attempts to reschedule the ARC meeting, the earliest the parties were able to convene the ARC was June 1, 2011. Id.

While the parties were finally able to schedule the ARC, Erin Elfers, the District's board-certified behavioral analyst, was not present at the first meeting. At that meeting, ABS Director, Lori Watson, advised the ARC that N.W. had make significant strides in a number of areas while at ABS. See Respondent Ex. 6. Nonetheless, Pam Eklund, the Director of Special Education for the District, advised that she believed that the District's schools could meet all of N.W.'s needs and that N.W.'s transition back to the District's schools would be appropriate. Id. Ultimately, after further discussion regarding N.W.'s transition, the parties agreed to reconvene so that Elfers could attend and further transition plans could be proposed. Id.

On June 23, 2011, Elfers and Pam Knapp, the classroom teacher at the District's autism classroom known as the New Haven Elementary School ("New Haven"), went to ABS to review N.W.'s records, observe N.W. in various settings at ABS, and speak with N.W.'s classroom teacher and behavioral consultant. See Respondent Exs. 11-12. Based on this visit, Elfers authored a report discussing N.W.'s interactions at ABS and including future steps needed for N.W. to transition to New Haven. See Respondent Ex. 11.

On July 20, 2011, the parties convened their next ARC meeting. See Respondent Ex. 9. At this meeting, Elfers presented her preliminary transition plan for N.W., which included the following: "Having speech teacher visit and observe at ABS; have para-educators visit ABS; ABS teacher would visit NHE during am circle period; would need duplicate copy of card box, IEP data sheets, update ABLLS and copy of behavior." Id. The notes of this meeting indicate that N.W.'s parents were concerned about N.W.'s transition, but they did not object to the transition plan. Id. Ultimately, the parties agreed to reconvene on August 25, 2011 to discuss dates to begin N.W.'s transition into a District school. Id.

At the August 25, 2011 ARC meeting, Elfers presented the following transition plan:

N.W. can visit twice the week before ABS vacation (in mid September); Beginning the following week, [N.W.] would begin a[] half day at NHES, beginning at natural transition time; We will continue to use ABC sheets and graphs to show progress during the transition as well as note positive behavior once [N.W.] comes to us; The length of the transition was not discussed specifically, but I propose half a day for 2 weeks to a month then beginning at a full day at NHES once target behavioral academic and language goals have been established and progress evaluated at meeting.

See Respondent Ex. 15.

Elfers' plan also listed the following materials that were still needed:

(1) We will need all of [N.W.'s] materials, behavior plans, progress report, etc. to come with [N.W.] once he's full time in [the District] as well as a list of reinforcers, activities he likes, and potential triggers' sent to us while [N.W. is] on vacation so we can prepare him; (2) [The District] would like to send a social narrative about changing schools to his parents and ABS with pictures of [N.W.'s] classroom that ABS will go over with him during 1:1 time in the weeks leading up to his first visit in mid Sept. This will be prepared after the meeting so we can be very specific."

Id. Also at that meeting, N.W.'s mother discussed her recent visit to New Haven and voiced her concern that the students at New Haven had lower verbal skills than N.W. See Respondent Ex. 14. In response, Pam Knapp, the teacher at New Haven, disputed that the students in her class were less verbally proficient than N.W. Id. Additionally, the speech therapist in attendance proposed that N.W. could spend time in a regular classroom to address any possible deficiencies in conversational development. Id.

Further, N.W.'s parents stated that, without a more specific transition plan and schedule for N.W. at New Haven, they would reject the District's proposal. Id. In response, Pam Knapp outlined the specific afternoon schedule at New Haven. Id. Nonetheless, N.W.'s parents rejected the District's offer and ended the meeting. Id.

After this meeting, the District sent letters to N.W.'s parents and their counsel requesting that the parties convene another ARC prior to October 21, 2011 - the date that N.W.'s IEP would expire. See Respondent Exs. 24, 25. However, the parents did not respond. Ultimately, N.W.'s parents filed a due process request with the Kentucky Department of Education on October 31, 2011. See AR at p. 294.

Due to ongoing settlement negotiations, the parties did not begin the due process hearing until March 12, 2012. At the due process hearing, N.W. offered the testimony of Dr. Rena Sorensen, the Director of the Severe Behavior Treatment Program at Cincinnati Children's Hospital, and Lori Watson, the Director of ABS. Dr. Sorensen's work typically involves transitioning children with severe negative behavioral disorders such as aggression, self-injury, fecal smearing, and vomiting. See Hearing Transcript - Day 2 at 30.

It is undisputed that N.W. does not engage in the type of severe behavior that Dr. Sorensen's work often involves. Dr. Sorensen testified that transition plans for children with less severe behavior usually "go[] way faster because the child responds really well to new folks and the behavior plans aren't as complicated." Id. at 25.

Additionally, Dr. Sorensen reviewed Erin Elfers' transition plan from the August 25, 2011 ARC meeting, and stated that, "It has some of the pieces, but not nearly the detail that I would suggest." Id. at 26. However, Dr. Sorensen admitted that since she has never met N.W. nor has she observed ABS or New Haven, she "could not add the details to" the proposed transition plan. Id. at 37.

Further, Dr. Sorensen testified that each child's situation must be analyzed individually and that "[t]here's a lot more that goes into transitions than a piece of paper." Id. at 17, 42. Dr. Sorensen admitted that the details for a transition plan are often filled in at the ARC meetings and she had not had the opportunity to review the notes of the most recent ARC meeting. Id. at 45.

Lastly, Dr. Sorensen admitted that she could not provide an opinion regarding the adequacy of New Haven as a placement for N.W. because she has "no ...

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