647 F.3d 795 (8th Cir. 2011), 10-2176, K.E. ex rel. K.E. v. Independent School Dist. No. 15

Docket Nº:10-2176.
Citation:647 F.3d 795
Opinion Judge:ARNOLD, Circuit Judge.
Party Name:K.E., by and through her parents, K.E. and T.E., Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 15, St. Francis, Minnesota, Appellee.
Attorney:Margaret O'Sullivan Kane, argued, St. Paul, MN, for appellant. Nancy Ellen Blumstein, argued, Christian Richard Shafer, on the brief, Minneapolis, MN, for appellee.
Judge Panel:Before LOKEN, ARNOLD, and BYE, Circuit Judges. BYE, Circuit Judge, dissenting in part.
Case Date:August 03, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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647 F.3d 795 (8th Cir. 2011)

K.E., by and through her parents, K.E. and T.E., Appellant,


INDEPENDENT SCHOOL DISTRICT NO. 15, St. Francis, Minnesota, Appellee.

No. 10-2176.

United States Court of Appeals, Eighth Circuit

August 3, 2011

Submitted: Dec. 14, 2010.

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Margaret O'Sullivan Kane, argued, St. Paul, MN, for appellant.

Nancy Ellen Blumstein, argued, Christian Richard Shafer, on the brief, Minneapolis, MN, for appellee.

Before LOKEN, ARNOLD, and BYE, Circuit Judges.

ARNOLD, Circuit Judge.

K.E. is an eleven-year-old special education student who lives in Minnesota Independent School District No. 15 (the District). An administrative law judge for the Minnesota Department of Education determined that the District had denied K.E. a free appropriate public education (FAPE) within the meaning of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1482. After K.E. filed an action in federal district court seeking attorney fees and costs, both parties filed cross-motions for judgment on the administrative record. The district court 1 reversed the ALJ's decision and denied K.E.'s motion for fees and costs, and K.E. appealed. We affirm.


K.E. attended St. Francis Elementary School in the District during all times relevant to this case. Before K.E. enrolled there as a kindergartner, Dr. Jonathan Miller, a pediatric neuropsychologist, evaluated her based on reports that she had been suffering from severe mood swings and difficulties with hyperactivity, impulsivity, and a decreased attention span. At that time, K.E. had already been diagnosed with attention deficit hyperactivity disorder (ADHD), fetal alcohol syndrome, and disruptive behavior disorder. (She had also been given a diagnosis of bipolar disorder, but her treating physician, Dr. Gary Gronstedt, was in the process of ruling that diagnosis out.) Following his own evaluation, Dr. Miller confirmed the diagnosis of disruptive-behavior disorder, and further concluded that K.E. had non-specific forms of cognitive disorder and mood disorder. Testing also revealed that K.E.'s IQ was 82, which was low-average in range. Based on these results, Dr. Miller offered a number of recommendations for K.E., many of which were directed at aiding her performance at school.

As K.E. was completing first grade, the District conducted its own evaluation to determine whether she was eligible to receive funds for special education services. In the resulting report, the District noted K.E. had been diagnosed as having " mood disorder and ADHD" and that her mother (Parent) had reported a diagnosis of bipolar disorder as well. The evaluation then summarized reports that Parent and K.E.'s teachers had provided, all of which indicated that K.E. required assistance following directions, staying on task, and keeping organized. The reports also indicated that K.E. performed below grade level in reading, writing, and math, and testing revealed that K.E.'s IQ was 78. Despite these difficulties, though, the District determined that K.E. was ineligible

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for special-education services because her file did not include a current DSM-IV diagnosis of a medical condition that would interfere with her academic performance or progress. Soon thereafter, Parent obtained a DSM-IV diagnosis that her daughter had ADHD, and K.E. was deemed eligible for special education services under the category " other health disabilities." Minn. R. 3525.1335 (2004). (DSM-IV is the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders.)

Upon K.E.'s becoming eligible for special education services, the District, by way of an individualized education program (IEP) team— which includes the child's parent, school teachers, and those with relevant expertise— created an initial IEP for K.E. See 20 U.S.C. § 1414(d)(1). This IEP established goals for K.E. in the areas of reading, writing, spelling, working independently, and social skills, and it specified various adaptations intended to assist her in those targeted areas. The next year, after K.E. had entered the third grade, the IEP team created a second IEP that included new goals for reading, spelling, and math; though it made slight changes to the goals in independent work and social skills, the adaptations remained substantially the same.

At the same time, Parent arranged for Dr. Richard Ziegler, a professor of pediatrics and neurology, to evaluate K.E. The results of this evaluation indicated that K.E. had below-average cognitive abilities, low-to-average skills in reading and math, and a significant impairment in written language. Many of these findings were consistent with the District's earlier evaluation, although Dr. Ziegler did note a significant decline in certain areas of K.E.'s cognitive functioning and academic skills for which he could provide no definite explanation. Dr. Ziegler stated that K.E.'s progress should be viewed in the " context of her complex psychiatric concerns" : He suggested that any " general slowing or plateauing" of her academic abilities likely resulted from " her difficulty managing her behavior and following the flow of information in the classroom," which, in turn, resulted from " psychiatric issues including mood disorder and ADHD." The doctor also noted that K.E.'s medications might be affecting her performance. To address these deficits, Dr. Ziegler recommended speech and language services and additional written language services, as well as small-group instructional time or paraprofessional support in the classroom.

After the District received a copy of Dr. Ziegler's evaluation, K.E.'s IEP team met to discuss its findings and recommendations. A speech and language clinician participated in the meeting specifically to address the recommendation concerning speech and language services. After discussing Dr. Ziegler's report in its entirety, the IEP team concluded that two significant changes to the adaptations section of K.E.'s IEP were appropriate: first, K.E. would have access to an educational assistant (EA) in the classroom (the record indicates no distinction between a " paraprofessional" (referred to by Dr. Ziegler) and an EA), and second, she would be allowed to take sensory breaks as needed. The IEP team determined, however, that K.E. did not need speech and language services. At the beginning of K.E.'s fourth-grade year, the IEP team made additional changes. Specifically, the team set new goals in the IEP for reading, spelling, and math but made little or no change in areas of independent work or social skills.

Shortly before K.E. finished fourth grade, the District completed a comprehensive three-year reevaluation of her that resulted in an eleven-page report. In the

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report, the District again referred to K.E.'s ADHD diagnosis, and it added that K.E., while hospitalized on an unspecified occasion, had been diagnosed with personality disorder and probable bipolar disorder. The reevaluation report included a finding that K.E.'s academic performance was low-average when compared to her peers, noting particular concern about her language-based learning abilities, and attached reports from her teachers indicated that she struggled with reading comprehension. The teachers' reports also noted that K.E. had difficulty sustaining attention, following directions, remaining quiet, working independently, completing assignments, and staying organized, and that she often acted impulsively and lacked self-control.

As part of the reevaluation process, the District conducted a " sensory profile," which concluded that K.E. had difficulty processing sensory input and regulating her behavior in school due to its increased distractions and demands; to address these difficulties, the profile recommended that K.E. be given additional sensory input throughout the day and be allowed to take movement breaks as necessary. The District also conducted a " functional behavior assessment," which identified two of K.E.'s behaviors as requiring increased attention: blurting out and negative interactions with peers. Based on the assessment, the District created a behavioral intervention plan (BIP), which identified common triggers for the two targeted behaviors, as well as strategies that staff could use to reduce the likelihood that K.E. would engage in them. As a result of the reevaluation, the District changed K.E.'s listed disability from " other health disabilities" to " emotional or behavioral disorders with secondary other health disabilities." The stated reason for this change was K.E.'s diagnosis of personality disorder and probable bipolar disorder.

After the District completed the reevaluation report, the IEP team met to review the results and make changes to K.E.'s IEP. At that time, the team rewrote some of the IEP goals with greater specificity and incorporated the newly-created BIP into the IEP by reference. The team also included a variety of new adaptations for K.E. in the IEP, including access to sensory tools, supervision by an EA during lunch and recess, reading aloud of tests, the opportunity to redo assignments and retake tests for an improved grade, and occupational therapy. It was also at this meeting that Parent informed the IEP team that K.E. had recently been evaluated by Dr. Secan Unal, a psychiatric psychologist at the Mayo Clinic, and that Dr. Unal had diagnosed K.E. with bipolar disorder with psychotic traits. K.E. continued to be treated by Dr. Unal throughout the remaining months relevant to this case.

At the beginning of K.E.'s fifth-grade school year, Parent contacted the District to inquire about potential day treatment options for K.E. Jacqueline Stein, the...

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