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L.M. v. Henry County Board of Education

United States District Court, E.D. Kentucky, Central Division, Frankfort

September 20, 2019

L.M., by and through her parents and next friends, M.M. and M.M., Plaintiff,
v.
HENRY COUNTY BOARD OF EDUCATION, et al., Defendants.

          OPINION & ORDER

          Gregory F. Van Tatenhove, United States District Judge.

         I

         A

         Kentucky school children are entitled to a Free Appropriate Public Education (FAPE).[1]20 U.S.C. 1412(a). But L.M. alleges Henry County Schools denied her an appropriate education. And, seeing no other option, L.M.’s parents removed her from public school and unilaterally placed her at Summit Academy-a private school for children with learning difficulties. The Hearing Officer determined that the Henry County Schools had provided a FAPE and rejected L.M.’ claim. Tr. 169-199. The Exceptional Children Appeals Board disagreed and found that Henry County Schools did not provide FAPE. Id. at 272-300. Nonetheless, though, the Board determined that Summit Academy was not an appropriate placement. The parties now believe that ECAB only got one half of its determination correct. Henry County Schools disputes that it failed to provide a FAPE. [R. 25.] Meanwhile, L.M. believes that Summit Academy was a proper placement entitled to tuition reimbursement. [R. 30.] Neither Henry County Schools nor L.M.’s attacks on the Board’s determination are persuasive, but first a little background is necessary.

         From a young age, L.M. showed difficulty learning in a traditional school setting.[2] Id. So, to assist LM in overcoming these difficulties the school began a 504 plan, which entitled her to some accommodations.[3] Id. at 274-275. Unfortunately, the 504 did nothing to end L.M.’s behavioral problems. Id. Responding accordingly, an Admissions and Release Committee was convened to determine whether she was eligible for Individuals with Disabilities Education Act (IDEA) services. Id. at 276. That inquiry determined that L.M. had Emotional Behavior Disability, a qualifying disability under the IDEA. Id.

         L.M.’s IDEA eligibility triggered the next step-an Individualized Education Program (IEP). For L.M. this plan primarily called for her to properly manage her feelings with supports. Id. at 276-277. Not long after instituting the IEP however, L.M. was hospitalized at Our Lady of Peace for threatening suicide over frustration with homework. Id. at 82. During her hospitalization, she was briefly educated by Crossroads, Our Lady’s educational component. Id. at 277. The Committee was reconvened to assist L.M.’s transition back to Henry County Schools. But L.M.’s parents allege the Committee’s plans undermined her chances at succeeding.

         L.M.’s IEP goals and objectives remained largely the same for her fifth-grade year. Id. at 278. But her continued behavioral problems caused the Committee to initiate a Functional Behavior Assessment (FBA), adopt a Behavioral Interventional Plan, and institute occupational therapy services. The Committee did not, however, accept the parents request for a more restrictive classroom placement. Id. at 279. Instead L.M. often ended up in the in-school suspension room because of her behavioral issues. Id. at 284.

         The failure to alleviate L.M.’s behavior problems finally reached an impasse when, in April 2016, L.M. became upset at an assembly, refused teachers’ instructions to leave, and had to be restrained. Id. at 280. Rather than completing her year at Henry County Schools, L.M. finished the year at her house on Home Instruction. And, as a result of this incident, the parents enrolled L.M. at the Summit Academy for her sixth-grade year. Id. at 281. Henry County Schools offered a new IEP, but L.M. remained enrolled at Summit. Id. At the same time, they initiated this action by requesting a Due Process Hearing challenging the education she received in Henry County Schools and requesting compensation for her education at Summit Academy. Id. at 2. After winding its way through the administrative process, the case is now properly before this Court. The Court explains its decision below.

         B

         Kentucky schools must provide disabled children with a Free Appropriate Public Education. 20 U.S.C. § 1412(a)(1); 707 KAR 1:290(1). Primarily, schools provide a FAPE through an Individualized Education Plan. § 1412(a)(4); 707 KAR 1:320(1); Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 Fed. App’x 423, 426 (6th Cir. 2016). A proper IEP must include: a statement of present levels of achievement and performance; measurable annual goals; a description of how those goals will be met; a statement of supplementary aids; explanation of the extent to which the students can be educated with nondisabled children; a statement of individual accommodations necessary to measure performance on state assessments; and a start date for services. § 1414(d)(1)(A)(i)(I-VIII); 707 KAR 1:320(5)(d)(7). IEPs are subject to an annual evaluation by the Admissions and Release Committee-a committee made up of the student’s parents, various teachers, and others. § 1414(d)(1)(B), (4)(A)(i); 707 KAR 1:320(2)(6)(a), (3)(e). To the extent possible, a child should be educated in the Least Restrictive Environment, e.g. a student should be “mainstreamed” or educated with children who are not disabled. § 1412(a)(5); 707 KAR 1:350(1)(5), (8). And, for students whose behavior is a manifestation of their disability, positive behavioral supports must be considered. 34 CFR 300.530(f).

         C

         While the parties have filed motions for summary judgment, that standard does not govern this case. Instead, the Court conducts an “independent” review of the administrative record and additional evidence, and determines, by the “preponderance of the evidence, ” whether there was an IDEA violation. Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 205 (1982) (citing S. Conf. Rep. No. 94-455, p. 50 (1975)). Such an analysis goes beyond summary judgment and resolves disputed issues of fact, and makes a legal determination, without the possibility of going to trial. See generally Doe v. Metropolitan Nashville Pub. Sch., 133 F.3d 384, 387 (6th Cir. 1998).

         So here, the Court is required to determine whether Henry County met its duties under the IDEA using a modified de novo standard. But the Court must defer principally to the "final decision of the state authorities, " rendered by the Board. Kenton County Sch. Dist. v. Hunt, 384 F.3d 269, 283 (6th Cir. 2004) (Court declines the plaintiff's insistence that it defer to the Hearing Officer over the Board). Only if the evidence is “more likely than not to preclude the administrative decision from being justified on the agency’s presumed educational expertise, a fair estimate of the worth of the testimony, or both, ” should the Board’s ruling be overturned. Berger v. Medina City Sch. Dist., 348 F.3d 513, 519 (6th Cir. 2003). The Court should not “substitute [its] own notions of sound educational policy.” Bd. Of Educ. v. Rowley, 458 U.S. 176, 206 (1982). After reviewing the record and hearing new evidence, this Court can, “bas[ed] . . . on the preponderance of the evidence, . . . grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). For L.M. to receive reimbursement, she must show that (1) the public placement violated the IDEA and (2) the private placement is "proper" with respect to the IDEA. Florence Cty. Sch. 1Dist. Four v. Carter, 510 U.S. 7, 15 (1993).

         II

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