Deal v. Hamilton County Bd. of Educ.
| Citation | 392 F.3d 840 |
| Decision Date | 16 December 2004 |
| Docket Number | No. 03-5396.,03-5396. |
| Parties | Maureen DEAL; Phillip Deal, Parents, On Behalf of Zachary Deal, Plaintiffs-Appellants, v. HAMILTON COUNTY BOARD OF EDUCATION, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Gary S. Mayerson, Mayerson & Associates, New York, New York, for Appellants. Charles L. Weatherly, the Weatherly Law Firm, Atlanta, Georgia, for Appellee. ON BRIEF: Gary S. Mayerson, Mayerson & Associates, New York, New York, Theodore R. Kern, Knoxville, Tennessee, for Appellants. Charles L. Weatherly, Thomas W. Dickson, Jennifer R. Fain, Kathleen A. Sullivan, the Weatherly Law Firm, Atlanta, Georgia, for Appellee.
Before: MOORE and COLE, Circuit Judges; MARBLEY, District Judge.*
This case arises under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), and corresponding Tennessee laws and rules. Plaintiffs-Appellants, Maureen and Phillip Deal (the "Deals"), bring this action for and on behalf of their autistic son, Zachary. Defendant-Appellee is the Board of Education of Hamilton County, Tennessee (the "School System"). Plaintiffs-Appellants appeal the decision of the district court reversing in part and affirming in part the decision of the administrative law judge ("ALJ") who presided over the administrative hearing. Plaintiffs-Appellants assert that the School System failed to provide Zachary with a "free and appropriate public education" ("FAPE") in Zachary's "least restrictive environment" ("LRE") and that they therefore are entitled to reimbursement from the School System for the education that they provided Zachary at their own expense. The ALJ found several procedural and substantive violations of the IDEA and ordered the School System to pay some of the reimbursement sought by the Deals. The district court found no IDEA violations and reversed the reimbursement ordered by the ALJ. Based on the following analysis, the Court AFFIRMS in part and REVERSES in part.
In 1997, when Zachary was three years old, the School System and the Deals developed Zachary's first "individualized education program" ("IEP").1 Pursuant to the terms of the IEP, Zachary attended a preschool comprehensive development class ("CDC") at Ooltewah Elementary School. While Zachary was assigned to Ooltewah, his parents, in September 1997, began to teach Zachary outside of school using a program developed by the Center for Autism and Related Disorders ("CARD"). According to the ALJ, this program is patterned after a methodology for treating autistic children developed by Dr. Ivar Lovaas at the University of California at Los Angeles.2 The CARD program consists of one-on-one applied behavioral analysis ("ABA") that relies heavily on extremely structured teaching and comprehensive data collection and analysis.
On May 11, 1998, an IEP team met to consider extended school year ("ESY") services for Zachary. The Deals, convinced that Zachary was making exceptional progress because of the one-on-one ABA program they were funding in their home, requested that the School System fund a 40-hour per week home based ABA program for the summer, as well as provide for year-round speech therapy. The School System refused to fund the parents' program and likewise refused to provide the Deals with data regarding the efficacy of the School System's approach to teaching autistic children. Instead, the agreed upon IEP provided for ESY services consisting of three 45 minute speech therapy sessions per week.
On October 9, 1998, an IEP meeting was held to develop Zachary's 1998-1999 IEP. The 95-page IEP, dated October 15, 1998, provided, among other things, for 35 hours per week of special education instruction, with many explicit goals.3 Zachary also was to receive related services, including physical therapy and speech therapy. The Deals filed a "minority report" requesting that the School System fund their private ABA program in the home. The School System convened additional IEP meetings that were attended by the Deals in November 1998, December 1998, February 1999, and March 1999 to discuss Zachary's progress and the Deals' concerns. During the 1998-1999 school year, Zachary attended the School System's program only 16% of the time.
At a May 24, 1999, IEP meeting, the Deals requested an ESY program of 43 hours per week of one-on-one ABA therapy and 5 hours per week of speech therapy. The IEP team determined that it could not document any regression Zachary would suffer without ESY services due to his lack of attendance at the School System's program, so the School System declined to offer any ESY services.
On August 20 and again on August 25, 1999, an IEP team met to develop an IEP for Zachary for the 1999-2000 school year. The School System proposed that Zachary would, in addition to his CDC classes, attend a regular kindergarten classroom three times per week for 15 minutes each. He would also have lunch with a regular kindergarten class. The time spent with the regular class would increase as Zachary was able to tolerate it. Zachary would have with him a classroom assistant familiar with and trained to meet his needs. The proposal included specific goals and objectives. Teaching methods would include one-on-one discrete trial teaching; the use of picture cues; incidental teaching to provide an opportunity for carry over and application of learned skills; continual use of functional communication techniques; activity-based instruction; the use of music, story telling, and reading; and other techniques. The proposal also provided for speech and language therapy for 30 minutes five times per week, occupational therapy two times per month, and physical therapy for 30 minutes once a week.
On September 2, 1999, Zachary began attending a private preschool, the Primrose School, at which his parents had enrolled him. Zachary attended a regular pre-K class at the Primrose School for 3 hours per day, 2 days per week, with a personal aide paid for by the Deals. On September 7, 1999, the Deals informed the School System of their rejection of the IEP in favor of the private program. The Deals' disagreement with the IEP stemmed from their belief that Zachary should spend more time in a regular education classroom, as well as their desire to have the School System pay for the CARD program or offer similar ABA therapy. On September 16, 1999, the Deals requested a due process hearing under the provisions of the IDEA. Zachary did not attend public school at all during the 1999-2000 school year.
On August 11, 2000, an IEP meeting was held to develop an IEP for Zachary for the 2000-2001 school year. The proposed IEP called for Zachary to be placed primarily in a regular education kindergarten class at Westview Elementary School. The IEP included specific goals and objectives and provided for various support services, including pre-teaching and re-teaching sessions. The full school day and week program included related services of speech therapy and occupational therapy. The Deals rejected the IEP and continued to insist that the School System pay for their private ABA program for Zachary. Zachary did attend Westview that year, but only part time.
The administrative hearing requested by the Deals on September 16, 1999, began on March 15, 2000, and concluded on February 13, 2001. The hearing encompassed 27 full days of testimony from 20 fact and expert witnesses. The ALJ also reviewed tens of thousands of pages of exhibits, viewed several video tapes, and personally observed Zachary in a number of settings.
In an opinion and order dated August 20, 2001, the ALJ made explicit credibility findings as to all 20 witnesses and provided 191 findings of fact. He also announced the following legal conclusions:
(1) The School System violated the procedural requirements of the IDEA by predetermining, pursuant to an unofficial policy of refusing to consider "Lovaas style ABA," that the School System's extant program was appropriate for Zachary.4
(2) The School System's failure to have regular education teachers attend the IEP team meetings also constituted a procedural violation.
(3) These procedural violations themselves amounted to denial of a FAPE.
(4) The School System had substantively violated the IDEA by failing to provide a proven or even describable methodology for educating autistic children.5
(5) An additional substantive violation resulted from the School System's failure to provide Zachary with 30 hours per week of the intensive Lovaas style ABA that had been proven to be effective for him.6
(6) The School System also substantively violated the IDEA by failing to provide Zachary with ESY services in 1999.
(7) The Deals were not entitled to reimbursement for private evaluations of Zachary.
(8) The Deals were entitled to reimbursement for up to 30 hours per week of the home based ABA services they had provided to Zachary, and the School System was to continue to reimburse the Deals for such services until a properly constituted IEP team, which must include at least one expert in and advocate for Lovaas style ABA, had developed an IEP for Zachary that included at least 30 hours per week of Lovaas style ABA.
(9) The School System did not sufficiently consider the LRE requirement of the IDEA in developing Zachary's 1999-2000 IEP, but the Deals nonetheless were not entitled to reimbursement for Zachary's tuition at the Primrose School because they failed to provide the School System with the required statutory notice.
(10) The School System had mishandled its obligation to provide the related services of physical therapy, occupational therapy, and speech therapy to Zachary and therefore was required to reimburse the Deals for any out of pocket costs they had...
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