United States District Court, N.D. Alabama, Southern Division
THE HOOVER CITY BOARD OF EDUCATION, Plaintiff/Counter Defendant,
RICHARD LEVENTRY, individually, and as guardian, custodian, and legal representative of K.M., a minor, Defendant/Counter Claimant.
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
Hoover City Board of Education challenges the decision of an
administrative hearing officer who determined that the Board
may have denied K.M. a free appropriate public education
because of procedural flaws in the Board's assessment of
K.M.'s eligibility for special education and related
services under the Individuals with Disabilities Education
Act (IDEA), 20 U.S.C. § 1400 et seq. The
hearing officer ordered the Board to reconsider whether K.M.
is eligible for special education and related services
because the Board did not have sufficient information to make
a determination at the eligibility hearing. The Board seeks a
judgment in its favor on the administrative record. So does
defendant Richard Leventry on behalf of K.M. For the reasons
set forth below, the Court enters judgment in favor of Mr.
IDEA ensures that “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). Under the IDEA, a
“child with a disability” may be a child with an
intellectual or learning disability or a child with a serious
emotional disturbance or a health impairment who, by virtue
of the disability, “needs special education and related
services.” 20 U.S.C. § 1401(3)(A). Under the IDEA, a
“free appropriate public education” (FAPE) is:
education and related services that__
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of this
20 U.S.C. § 1401(9)(A)-(D).
education” means “specially designed instruction,
at no cost to the parents, to meet the unique needs of a
child with a disability.” 34 C.F.R. §
300.39(a)(1). “Specially designed instruction”
(3) . . . adapting, as appropriate to the needs of an
eligible child under this part, the content, methodology, or
delivery of instruction-
(i) To address the unique needs of the child that result from
the child's disability; and
(ii) To ensure access of the child to the general curriculum,
so that the child can meet the educational standards within
the jurisdiction of the public agency that apply to all
34 C.F.R. § 300.39(b)(3). “Related services”
transportation and such developmental, corrective, and other
supportive services as are required to assist a child with a
disability to benefit from special education, and includes
speech-language pathology and audiology services,
interpreting services, psychological services, physical and
occupational therapy, recreation, including therapeutic
recreation, early identification and assessment of
disabilities in children, counseling services, including
rehabilitation counseling, orientation and mobility services,
and medical services for diagnostic or evaluation purposes.
Related services also include school health services and
school nurse services, social work services in schools, and
parent counseling and training.
34 C.F.R. § 300.34.
that receive federal funds through the IDEA must engage in
“child find, ” a process designed to ensure that
“[a]ll children with disabilities residing in the
State, . . . regardless of the severity of their
disabilities, and who are in need of special education and
related services, are identified, located, and evaluated . .
. .” 20 U.S.C. § 1412(a)(3)(A). The “child
find” process “must include . . . [c]hildren who
are suspected of being a child with a disability . . . and in
need of special education ....” 34 C.F.R. §
300.111(c)(1). When the state suspects that a child may be a
child with a disability, the state must evaluate the child to
determine whether the child is eligible to receive an
individualized education plan, commonly called an IEP. 20
U.S.C. §§ 1414(a)(1)(A), (d)(1)(A)(i).
determine whether a child is eligible for special education
and related services under the IDEA, a state educational
agency first must “conduct a full and individual
initial evaluation” of a student who may have a
disability. 20 U.S.C. § 1414(a)(1)(A). Then “a
team of qualified professionals and the parent of the
child” must determine whether the child is a
“child with a disability” as defined by the IDEA
and thus eligible “for special education and related
services.” 20 U.S.C. § 1414(b)(4)(A). If the team
determines that the child is a “child with a
disability” who is eligible for special education and
related services, then the team must develop and the state
agency must implement an IEP for the child. 20 U.S.C.
§§ 1414(d)(1)(A)(i), (2)(A). Consistent with the
least restrictive environment (LRE) requirements applicable
to IEPs, the state educational agency “must ensure that
. . . [t]o the maximum extent appropriate, children with
disabilities, including children in public or private
institutions or other care facilities, are educated with
children who are nondisabled[.]” 34 C.F.R. §
300.114(a)(2)(i); see also 20 U.S.C. §
1412(a)(5)(A)-(B) (IDEA's LRE provisions);
https://sites.ed.gov/idea/acronyms/#L (last visited
Apr. 8, 2019).
litigation concerns the team meeting phase of K.M.'s FAPE
evaluation. During the team meeting, the team members
discussed not only the resources available to K.M. under the
IDEA but also the resources available under the
Rehabilitation Act. Under section 504 of the Rehabilitation
Act, a public school district that receives federal funds
must provide reasonable accommodations to a student with a
disability to ensure that the student is not “excluded
from the participation in, ” “denied the benefits
of, ” or “subjected to discrimination” in
public education “solely by reason of her or his
disability.” 29 U.S.C. § 794(a). A disabled
student under the Rehabilitation Act has “physical or
mental impairments [which] substantially limit his ability to
learn and participate in a classroom environment.”
See J.S.R. by Childs v. Dale Cty. Bd. of Educ., No.
1:13-CV-582-WKW2015, WL 5692804, at *4 (M.D. Ala. Sept. 28,
2015) (citing 34 C.F.R. § 104.35(a)). “All
children with disabilities under the IDEA, as well as some
children who are ineligible for special education under the
IDEA, are  protected by § 504 of the Rehabilitation
Act.” J.S.R., 2015 WL 5692804, at *3. An IEP
created under the IDEA satisfies § 504's
requirements. J.S.R., 2015 WL 5692804, at *4 (citing
K.D. v. Starr, 55 F.Supp.3d 782, 785 n.3 (D. Md.
2014)). But an education plan created for a student under the
Rehabilitation Act may not meet the IDEA's FAPE
requirements. See J.S.R., 2015 WL 5692804, at *4.
The distinction is significant for purposes of this case.
the FAPE process in this case began, K.M. was a student in
the tenth grade at Hoover High School, a public school that
the Board operates. In mid-2015, K.M. experienced significant
trauma. Her half-brother sexually abused her. (Doc. 15-1, pp.
34-35, 179). K.M.'s mother, who worked at Hoover High
School, was physically aggressive towards K.M. at school.
(Doc. 15-1, pp. 34-35, 182-85). As a result, K.M. began
spending 15 to 17 hours a day with Mr. Leventry and his
family. K.M. moved into the Leventry home on December 3,
2015. (Doc. 15-1, p. 29). Mr. Leventry is K.M.'s
court-appointed guardian. (Doc. 15-33, pp. 2-4).
struggled with the transition to a new household and with the
memories of her experiences with her mother and her
half-brother. Throughout the 2015-16 school year, she
suffered from extreme anxiety and frequently had severe panic
attacks at school. (Doc. 15-1, pp. 48-53). She had
convulsions, hallucinations, and memory loss. (Doc. 15-1, pp.
39-40, 81-82, 92-96). She fainted frequently and was often
transported by ambulance from school to a hospital. (Doc.
15-1, pp. 53-54, 80-81). K.M. was absent from school for many
days because of these emergencies. (Doc. 15-1, p. 48). As a
result, her grades faltered. (Doc. 15-1, pp. 209-10).
school's guidance counselor, Zach Butler, met regularly
with K.M. (Doc. 15-1, pp. 179-81, 187-89, 200). In January
2016, Mr. Butler asked teachers to give K.M. extra time to
complete assignments and to allow her to freely visit him.
(Doc. 15-1, pp. 198-200). Mr. Butler also referred K.M. to a
problem solving team (PST), a group of teachers and
administrators at the school who collaborate to develop
interventions for struggling students. (Doc. 15-1, pp. 201,
210-13). On February 24, 2016, to accommodate K.M.'s
absences, the PST implemented extended time for K.M. to
finish her assignments following absences. (Doc. 15-1, p.
212; Doc. 15-15, pp. 1-2). Despite the accommodation, KM.
failed her history class. (Doc. 15-1, pp. 211-12).
Vines, a licensed professional counselor, was K.M.'s
treating therapist. (Doc. 15-2, pp. 14, 18). Ms. Vines began
treating K.M. on March 2, 2016. (Doc. 15-2, p. 18). K.M.
explained to Ms. Vines that she had endured extensive abuse
and neglect in her parents' home; that her mother
physically abused her, and her father emotionally neglected
her; that her mother assaulted her at school, and her
half-brother sexually abused her. K.M. described panic
attacks, feelings of worthlessness, hopelessness, sleep
disturbances, emotional difficulties, attachment
difficulties, social difficulties, and pseudo seizures. (Doc.
15-2, pp. 18-19).
Vines specializes in working with patients who suffer from
these kinds of abusive conditions. (Doc. 15-2, pp. 10-11).
Ms. Vines met with K.M. at least biweekly for 55 minutes at a
time. (Doc. 15-2, p. 20). Ms. Vines diagnosed K.M. with
post-traumatic stress disorder (PTSD) and conversion
disorder. (Doc. 15-2, p. 21). Ms. Vines was licensed to
diagnose these disorders and had many years of experience
working with patients who suffer from PTSD. (Doc. 15-2, pp.
8-14). K.M. was Ms. Vines's first patient with conversion
disorder. (Doc. 15-2, p. 12). Conversion disorder “is a
mental condition in which a person has blindness, paralysis,
or other nervous system (neurologic) symptoms that cannot be
explained by medical evaluation.” Ms. Vines
testified that conversion disorder is “physiological or
neurological in nature, but there is no medical explanation
for it.” (Doc. 15-2, p. 12). Ms. Vines diagnosed K.M.
with conversion disorder because K.M. experienced pseudo
seizures, which Ms. Vines testified are real seizures without
the EEG activity of a seizure in the brain. (Doc. 15-2, pp.
March 21, 2016, Ms. Vines sent Mr. Butler a letter in which
she stated that she had been treating K.M. for PTSD and
conversion disorder; that K.M. attended regular therapy
sessions; that K.M. was “coping with many complex
stressors in a small amount of time”; that K.M.'s
anxiety and panic attacks had “stabilized greatly over
the past few weeks”; that K.M. could return to school;
that K.M. occasionally exhibited pseudo seizures and fainting
spells “during moments of distress or when recalling
unpleasant memories, ” but that those incidents had
“greatly decreased”; that K.M. might still faint
or have a pseudo seizure at school; that K.M. would utilize
coping strategies; that “normalcy and ...