Anchorage Sch. Dist. v. M.G.
| Decision Date | 15 June 2018 |
| Docket Number | Case No. 3:17-cv-00157-SLG |
| Parties | ANCHORAGE SCHOOL DISTRICT, Appellant, v. M.G., and his parents Betsy and Brian G., Appellees. |
| Court | U.S. District Court — District of Alaska |
This case is an administrative appeal under the Individuals with Disabilities Education Act ("IDEA").1 Appellant Anchorage School District ("ASD") appeals from a Hearing Officer's decision to require ASD to pay for disabled student M.G.'s residential placement at Perkins School for the Blind. ASD's corrected opening brief was filed at Docket 82-1. Appellees filed their brief in opposition at Docket 68; ASD filed its reply brief at Docket 81. Oral argument was held on January 31, 2018.2 For the following reasons, the Hearing Officer's decision will be affirmed.
A court's review of an IDEA determination "differs substantially from judicial review of other agency actions, in which courts generally are confined to the administrativerecord and are held to a highly deferential standard of review."3 Judicial review is less deferential in IDEA cases. However, "due weight" must be given to the administrative decision below and courts must not "substitute their own notions of sound educational policy for those of the school authorities which they review."4 A court should base its decision on the preponderance of the evidence found in the record of the administrative proceedings and any additional evidence that supplemented the record.5
"In determining the degree of deference owed to the administrative findings, this court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue."6 "After such consideration, the court is free to accept or reject the findings in part or in whole."7 "The amount of deference accorded the hearing officer's findings increases where they are thorough and careful."8 "The determinations of a state agency are entitled to greater deference where . . . the agency finds that one of its school systemshas not complied with the state's implementation of the IDEA."9
Judicial review of a Hearing Officer's decision involves two steps. 10
This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1441 because this is a civil action in which the causes of action arise under the laws of the United States, primarily the IDEA.
Under the IDEA, all children with disabilities must have available to them a free appropriate public education ("FAPE") "that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living."11 To achieve this goal, an individualized education program ("IEP") is developed, which addresses the specific and particular needs of each disabled child.12
M.G. was born in 1999. He was first diagnosed with autism when he was two-and-a-half years old.13 M.G. has a severe, nonverbal intellectual disability.14 He also has severe gastrointestinal problems and food allergies.15
In elementary school, it became apparent that M.G. would not be speaking and needed an alternative way to communicate.16 M.G. was introduced to the Dynovox, a speech communication device that generates speech based on various photos selected by the user.17 Throughout M.G.'s primary education, he successfully used such visual methods to assist with his learning.18
In the fall of 2014, M.G. began high school at West High School in Anchorage, Alaska.19 M.G. had a difficult time with the transition.20 In March 2015, M.G. began to poke his eye with his finger.21 His mother testified that he was "screeching, screaming, kind of banging on walls . . . poking his eye, banging on his head."22 On March 24, 2015, ASD conducted a routine distance vision test on M.G., which M.G. failed in both eyes.23ASD did not inform M.G.'s parents ("Parents") of these test results at that time.24 M.G.'s mother testified that it wasn't until the winter of 2016 when she first saw that vision report.25
On April 16, 2015, M.G.'s IEP team met to update his IEP.26 M.G.'s recent failed distance vision test was not mentioned. M.G.'s April 2015 IEP included M.G.'s need for visual supports. Parents' comments on that IEP noted that "[s]upport of [M.G.]'s visual learning needs through structure and visual supports (including visual schedules, pictures and his Dynovox) are necessary and critical for [M.G.] to learn."27
In April 2015, M.G. was seen by a pediatric ophthalmologist, Robert Arnold, M.D. Dr. Arnold did not find anything apparently wrong with M.G.'s eyes at that time.28 But M.G.'s mother testified that "the eye poking, the head banging, the agitation . . . continued."29 In the summer of 2015, Parents received reports from M.G.'s summer camp that M.G. was running into things.30
In August 2015, Parents took M.G. back to Dr. Arnold, who then determined thatM.G. had significant vision field loss. He diagnosed M.G. with a slow degenerative disease that would progressively tunnel his vision and eventually lead to near total blindness.31 M.G.'s mother promptly informed ASD staff and requested additional support for M.G. On August 25, 2015, the Blind and Visually Impaired ("BVI") teacher at West High School, Victoria Ackerman, recognized "the importance of getting tactile communication system/supports in place ASAP while [M.G.] . . . can take advantage of whatever vision [he] has while he still has it."32 Between September 2015 and January 2016, Ms. Ackerman provided M.G. a total of 12.5 hours of cane training and a functional visual assessment.33
Meanwhile, promptly after receiving Dr. Arnold's diagnosis in August, 2015, M.G.'s mother was concerned that ASD could not meet M.G's educational needs given his autism and newly diagnosed, rapidly developing vision loss. M.G.'s mother began looking for education alternatives for her son.34 M.G.'s mother contacted local service agencies and schools across the country that work with students with multiple disabilities and vision loss.35 She learned Perkins School for the Blind ("Perkins") was the only school that served children with blindness and multiple disabilities, including severe autism, that had a weekend residential program.36
In early September 2015, M.G.'s mother contacted Perkins and placed M.G. on the waitlist for an independent educational evaluation ("IEE").37 In September and October 2015, M.G.'s mother completed the application packet to enroll M.G. as a student at Perkins.38 She did not inform ASD that she had sought to enroll M.G. at Perkins until nearly one year later in the summer of 2016.39
Meanwhile, in December 2015, M.G. had an eye evaluation under anesthesia in Denver, Colorado by Robert Enzehauer, M.D., a pediatric ophthalmologist. Dr. Enzehauer determined that:
retinal function was not the problem, but rather rapidly progressive optic nerve atrophy. . . . There is no question that extensive vision rehabilitation services will be most effective for [M.G.] in the next 1-2 years, before his visual function is markedly deteriorated even more. The services that the family are seeking for [M.G.] will require an urgent combination and sequence of special, interdisciplinary, or generic assistance, supports or other services that are individually planned and coordinated. Without such aggressive and coordinated behavior and vision rehabilitation services, [M.G.]'s risk of being institutionalized is greatly increased.40
Upon the request of Parents, ASD agreed to pay for the IEE at Perkins on January 29, 2016.41 In March 2016, M.G. and Parents travelled to Perkins for M.G.'s IEE.42 The visit also included an admission tour apparently unbeknownst to ASD at that time.43Perkins' evaluation was finalized and sent to ASD on May 18, 2016.44 It totaled 71 pages and included reports from a school psychologist, a teacher of students with visual impairments, a speech-language pathologist, an occupational therapist, an orientation and mobility specialist, a work activities teacher, a board certified behavioral analyst, and a home and personal management teacher.45 The reports are silent on residential placement; rather, the IEE appears aimed at providing ASD with recommendations for educational programming for M.G. at home and at an in-district school.46
On April 28, 2016, M.G.'s IEP team met to update M.G.'s IEP.47 The IEP team meetings included Parents, M.G.'s special education teacher, the general education teacher, an ASD representative, the speech/language pathologist, the occupational therapist, the adaptive physical education teacher, the BVI teacher, the department chair, the assistive technologist, counsel for Parents, and counsel for ASD.48 The IEP team did not finalize an IEP at the April 28th meeting but met again on May 11, 2016 and on May 18, 2016.49 At the May 18th meeting, the IEP team had not yet received the Perkins' evaluation. However, at the end of the two hour meeting, the IEP was signed by all participants.50 The May 2016 IEP provides that 51
Based on the May 18, 2016 IEP meeting, on May 24, 2016, ASD issued a Notice of Requirements and Procedural Safeguards. The notice referenced the "attached IEP" and states that "[t]he district will implement [M.G.]'s IEP, which includes a change of placement to residential treatment."52 The notice states that the change to residential treatment was based on "parental request" and "an annual review." It further provides ...
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