M.M. ex rel. L.M. v. Dist. 0001 Lancaster Cnty. Sch., 11–3774.

• Citation: 702 F.3d 479
• Decision Date: 28 December 2012
• Docket Number: No. 11–3774.,11–3774.
• Parties: M.M., individually and on behalf of L.M. their son; C.M., individually and on behalf of L.M. their son, Plaintiffs–Appellants, v. DISTRICT 0001 LANCASTER COUNTY SCHOOL, also known as Lincoln Public Schools, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

702 F.3d 479

M.M., individually and on behalf of L.M. their son; C.M., individually and on behalf of L.M. their son, Plaintiffs–Appellants,

v.DISTRICT 0001 LANCASTER COUNTY SCHOOL, also known as Lincoln Public Schools, Defendant–Appellee.

No. 11–3774.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 13, 2012.

Filed: Dec. 28, 2012.

Mark Collins Laughlin, Clint D. Cadwallader, Omaha, NE, for appellants.

Gregory Perry, Jeanette Stull, Lincoln, NE, for appellee.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

M.M. and C.M. allege that their autistic son L.M. was not provided a free and appropriate public education (FAPE) by the Lincoln Public Schools (the District) as required by the Individuals with Disabilities Act (IDEA), 20 U.S.C. § 1400 et seq. Dissatisfied with the District's plans for L.M., his parents placed him in a private school for his fourth grade year and requested that the District pay its costs. After an administrative hearing officer concluded that the District had provided a FAPE for L.M.'s fourth grade year, his parents brought this action in federal district court. The court ¹ held a bench trial and found that the District had provided a FAPE for L.M. and allowed his parents meaningful participation in the development of his behavior and educational plans. M.M. and C.M. appeal. After studying the voluminous record, we affirm.

I.

L.M. was diagnosed with autism as a young child and began first grade in 2006 at his neighborhood's Sheridan Elementary School which is in the District. An Individualized Education Plan (IEP) was made to address L.M.'s behavioral and learning issues during his first grade year. In that year L.M. met or exceeded the District's academic standards in almost every subject. His behavior problems were manageable, and he was with his nondisabled peers a majority of the time. He was promoted to the second grade.

A new IEP was created for L.M. for his second grade year. During that year he had increased behavioral problems and was “physically aggressive with himself or others an average of 7 times per day” during the first quarter. District personnel used calming strategies with L.M., which included taking him to a room away from other students, but he continued to engage in physically aggressive behaviors. Deb Rauner, a behavior specialist employed by the District, observed L.M. and recommended sensory breaks and visual prompts. L.M. nevertheless continued to behave aggressively. Since his second grade progress was found “sufficient” and he had exceeded district standards in several areas, L.M. was promoted to third grade.

L.M. returned to Sheridan for third grade, and a new IEP was developed for him. When he continued to engage in aggressive behaviors, including physically hurting staff members, district personnel increased his time away from peers and gave him less demanding academic work. L.M.'s grades were lower in third grade than in previous years, but his test results and writing samples indicated that he was making academic progress.

Before L.M. completed his third grade year, his parents took him to the Kennedy Krieger Institute (KKI). KKI is a short term rehabilitation facility located at the John Hopkins University School of Medicine. There, L.M. was assigned to the care of Dr. Sung Woo Kahng, a senior behavior analyst whose research focuses on self injurious behaviors by individuals with developmental disabilities. L.M. stayed at KKI from April to September 2009 while functional behavioral assessments were conducted on him and his medications were modified. The institute's research concluded there was a correlation between use of a calming room and increased aggressive behavior by L.M. and that his problem behaviors would decrease if a calming room was not used as a punishment.

KKI personnel developed a three level behavior plan for L.M. which eliminated use of the calming room. As Dr. Kahng explained, this plan was “developed specifically for [L.M.]. And if you were to compare that treatment to any other treatment that was for a patient on our unit at that time or at any other time, the treatment would be very, very different.” L.M. was to start at level 3, but was to be demoted to level 2 if he displayed one instance of problem behavior. At level 2 he would remain in the same setting but would lose access to toys. If he engaged in four additional disruptive actions in the next five minutes, L.M. would be demoted to level 1 and placed in a 30 second baskethold.² He would then be moved to a portable mat in a safe area where he would remain until one minute passed without any problem behavior. This plan was implemented while L.M. was at the institute, and Dr. Kahng concluded that replacing the calming room at level 1 with a physical hold of L.M. resulted in a “95 percent reduction in his problem behaviors as compared to ... baseline levels.” Dr. Kahng further stated that during outings outside of the facility L.M.'s “problem behaviors were at near zero levels,” especially when his mother was implementing the treatment.

L.M. was scheduled to return to Sheridan in the fall of 2009 as a fourth grader, and his mother presented the KKI behavior plan to the District. Deb Rauner, the District's behavior specialist, reviewed the KKI plan and expressed concern that it would not help L.M. “come up with some alternative skills so he doesn't have to misbehave.” She understood the KKI plan not to permit school personnel to respond until L.M. had engaged in five aggressive behaviors. This concerned Rauner because her understanding of the literature dealing with autistic students was that a school should “respond to aggressive problem behaviors the first time.” Another teacher at Sheridan was concerned that the KKI plan would allow L.M. “to hit a student or have five acts of aggressive behavior before he was removed from the room.” Rauner also did not want district personnel to implement the baskethold procedure from the KKI plan because she had heard that it had resulted in deaths by asphyxiation at other schools.

District personnel reviewed L.M.'s behavior data, interviewed his teachers, and developed a behavior intervention plan for him that would be attached to his IEP. Rauner explained that she intended the district plan to “replicate the KKI plan” but to “still have some of the pieces that we thought were very, very important,” such as the “replacement behavior piece.” Rauner believed that L.M.'s behavior would improve if school personnel were to intervene quickly after any problem behaviors and to use the calming room. L.M.'s parents and KKI personnel expressed concern about this plan because Rauner was not a board certified behavior analyst, she had not worked extensively with L.M., and she had failed to provide a rationale for the continued use of the calming room. L.M.'s parents insisted that KKI's recommendation to eliminate the calming room be incorporated into the district plan for their son. They met with district personnel on multiple occasions, and Rauner revised the district plan in response to their concerns. Each draft of the plan maintained the District's ability to use the calming room, however.

An IEP was adopted for L.M.'s fourth grade year at Sheridan. It outlined the District's assessment of his abilities and concluded that he had met many of the District's standards for the third grade. This included locating points on a grid, telling time, and comparing and contrasting. The IEP also developed a number of goals for L.M., such as participating in group activities, improving math competency, and increasing reading skills. It provided for a monthly report to L.M.'s parents regarding his progress. A behavior intervention plan was also attached to the finalized IEP which adopted many of KKI's suggestions, but it permitted district personnel to take L.M. to a calming room in certain instances. Like under the KKI plan, L.M. would start at level 3 and be demoted to level 2 if he engaged in problem behavior. District personnel were to model calming strategies at level 2 and move him to a different area such as the calming room. If his behavior did not improve, he would be demoted to level 1 and would have to remain seated in a safe area for one full minute without engaging in problem behavior.

L.M.'s parents disagreed with the IEP and the behavior intervention plan because the District had not adopted KKI's plan in full. The district plan allowed personnel to move L.M. to a calming room when he engaged in problem behaviors, which was contrary to the institute's recommendations. L.M.'s parents believed that the district plan would be detrimental to L.M.'s well being. They were unconvinced by the rationale given by district personnel and believed that the District was ignoring research and data that showed that L.M. would regress socially and academically if the calming room were used. In a letter to district personnel L.M.'s mother expressed concern that their plan significantly differed from the KKI plan and would result in “adverse effects ... and risk[ ] the tremendous progress he has made.” She represented that in KKI's opinion the district plan would cause L.M. to “revert to the violent outbursts that caused him to leave” Sheridan.

C.M. and M.M. withdrew L.M. from the District before the start of his fourth grade year and enrolled him at the Prairie Hill Learning Center, a private Montessori school with mostly non special needs students. L.M.'s mother explained that her son “needs to attend a school where [KKI's] behavior plan (or something so similar as to allow for [L.M.]'s behaviors to be managed as indicated by the recent data from KKI) can be implemented with a staff who believes in it and is willing to work all aspects of the plan.” The KKI plan was implemented for L.M. at Prairie Hill. His paraeducator at that school explained that L.M. “never had aggressions toward another student” and that...