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Hoover City Board of Education v. Leventry

United States District Court, N.D. Alabama, Southern Division

September 16, 2019

THE HOOVER CITY BOARD OF EDUCATION, Plaintiff/Counter Defendant,
v.
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.

         The 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. Leventry.

         I. STATUTORY BACKGROUND

         The 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).[1] Under the IDEA, a “free appropriate public education” (FAPE) is:

         special 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 title.

20 U.S.C. § 1401(9)(A)-(D).

         “Special 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” means:

(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 children.

34 C.F.R. § 300.39(b)(3). “Related services” are:

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.

         States 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).

         To 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).

         This 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.

         II. FACTUAL BACKGROUND

         A. K.M.'s Impairments

         When 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).

         K.M. 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).

         The 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).

         Katie 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).

         Ms. 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.”[2] 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. 12-13).

         On 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 ...


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