United States District Court, E.D. Kentucky, Central Division, Frankfort
L.M., by and through her parents and next friends, M.M. and M.M., Plaintiff,
HENRY COUNTY BOARD OF EDUCATION, et al., Defendants.
OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
school children are entitled to a Free Appropriate Public
Education (FAPE).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.
young age, L.M. showed difficulty learning in a traditional
school setting. Id. So, to assist LM in
overcoming these difficulties the school began a 504 plan,
which entitled her to some accommodations. 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.
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.
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.
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.
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).
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).
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).