Board of Educ. of County of Kanawha v. Michael M.

• Decision Date: 26 April 2000
• Docket Number: No. Civ.A. 2:99-0609.,Civ.A. 2:99-0609.
• Citation: 95 F.Supp.2d 600
• Parties: The BOARD OF EDUCATION OF THE COUNTY OF KANAWHA, Plaintiff, v. MICHAEL M., a minor, Stephen M. and Teresa M., Parents of Michael M., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

95 F.Supp.2d 600

The BOARD OF EDUCATION OF THE COUNTY OF KANAWHA, Plaintiff, v. MICHAEL M., a minor, Stephen M. and Teresa M., Parents of Michael M., Defendants.

No. Civ.A. 2:99-0609.

United States District Court, S.D. West Virginia, Charleston Division.

April 26, 2000.

Claudia W. Bentley, Bowles Rice McDavid Graff & Love, Martinsburg, WV, Gregory W. Bailey, Bowles Rice McDavid Graff & Love, Charleston, WV, for plaintiff.

Sandra K. Henson, G. Nicholas Casey, Jr., Lewis, Friedberg, Glasser, Casey & Rollins, Charleston, WV, for defendants.

MEMORANDUM OPINION AND ORDER

GOODWIN, District Judge.

During an administrative hearing before the West Virginia Department of Education, Michael M., by his parents Stephen M. and Teresa M. ("parents"), alleged that the Board of Education of the County of Kanawha ("Board") violated the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., by failing to provide Michael with a free appropriate public education for the 1997-1998 and 1998-1999 school years. The hearing officer agreed with the parents and found that the supplemental home-based educational program that the parents had established for Michael was necessary for him to attain a free appropriate public education. The hearing officer ordered the Board to reimburse the parents for costs related to the home-based educational program incurred in calendar years 1997 and 1998 and ordered prospective reimbursement.

The Board brought this civil action against Michael and his parents pursuant to 20 U.S.C. § 1415(i)(2)(A). The Board requests the court to find that it is not required to reimburse the parents for any costs. It further requests the court to find that the Board may implement Michael's education in accordance with its own previously proposed educational program. The question presented by this action is whether the Board's individualized education program ("IEP") for Michael, which did not contain a supplemental home-based educational program, complied with the Board's obligation under the IDEA.

I.

Congress enacted the IDEA "to ensure that all 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 employment and independent living." 20 U.S.C. § 1400(d)(1)(A); see also Gadsby v. Grasmick, 109 F.3d 940, 942 (4th Cir. 1997). The IDEA requires all states receiving federal funds for education to provide to each child with a disability between the ages of three and twenty-one a free appropriate public education that is specifically designed to meet that child's needs. 20 U.S.C. § 1412(a)(1)(A). Congress intended that the IDEA's goals would be accomplished through the public education system. However, the IDEA allows for private school placement at public expense if the school district lacks the capacity or refuses to provide the services necessary for the child to receive a free appropriate public education. Id. § 1412(a)(10)(c); see School Comm. of the Town of Burlington v. Department of Educ. of Cmwlth. of Massachusetts, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (holding that parents may seek reimbursement from the school district for unilateral private placement when the school district's IEP is inadequate and the private placement is appropriate).

At the heart of the statutory scheme is the IEP. School districts are required to develop an annual IEP for each disabled child to effectuate the goal of providing them with a free appropriate public education. See 20 U.S.C. § 1412(a)(4). An IEP is a customized model of the child's curriculum and academic goals. The IEP is designed to meet the child's educational needs and to provide periodic monitoring of the child's progress. Id. § 1414(d). School officials develop an IEP upon collaboration with teachers and experts, and the child's parents are entitled to participate in the annual development of their child's IEP.¹ Id.

At issue in this case is whether the IEP designed by the Board provided Michael with a free appropriate public education.

II.

Michael is an eight year old Kanawha County, West Virginia boy who was diagnosed with autism at the age of three. Sometime near his fourth birthday in March 1996, Dr. Gretchen Lovett, a child psychologist at the Women and Children's Hospital in Charleston, West Virginia, confirmed that Michael is autistic. Autism is a developmental disorder characterized by significant deficiencies in communication skills, social interaction, and motor control. When Dr. Lovett first met Michael, his communicative ability was severely impaired. He did not make eye contact and Dr. Lovett was unable to attract his attention. Michael also suffered from a severe developmental deficit—his speech was entirely echolalic, meaning that he was merely capable of mimicking sounds that he heard, and he did not demonstrate any awareness of his surroundings.

Since his diagnosis, Michael's parents have been involved in a nearly continuous litigation against the Board. The legal strife began when Michael's parents established for him, at their own expense, a pre-school home-based program using the Lovaas methodology. Under the Lovaas methodology, private instructors use a discrete trial training ("DTT") method wherein the instructor breaks down complex items and concepts into their most basic components and builds upon those components to allow the child to approach more difficult concepts. The Lovaas program is administered at home by two Lovaas therapists. The program is supervised by consultants at the Redwood Learning Center in New Jersey, who come to West Virginia every three months to conduct a one-day workshop for the instructors and the family. The parents asked the Board to incorporate the home-based Lovaas program into Michael's IEP. The Board refused, instead advancing the position that their own pre-school program of approximately two and a half hours per day was appropriate for Michael.

Believing the Board's pre-school program inadequate, the parents filed a grievance against the Board in the West Virginia Department of Education. In December 1996, an impartial hearing officer found that the Board's program was inadequate and that the Lovaas program was appropriate for Michael's special needs. Accordingly, the hearing officer also directed that the Board incorporate the Lovaas program into Michael's IEP. The Board brought an action in the Circuit Court of Kanawha County seeking to set aside the hearing officer's decision. On January 15, 1998, the state court upheld the decision of the hearing officer.

Following the December 1996 decision of the hearing officer, the parents and the Board met on several occasions for the purpose of reaching a mutually agreeable IEP for Michael. In January 1997, the IEP committee offered Michael, among other things, twenty hours of discrete trial training in the school setting. The parents believed that the proposed IEP remained inadequate and elected to keep Michael at home and continue his pre-school education using the Lovaas methodology.

At the age of five, Michael was scheduled to begin kindergarten during the 1997-1998 school year. The Board did not complete a new IEP for Michael's kindergarten year until January 6, 1998. The new IEP still did not incorporate Michael's home-based Lovaas program. Nevertheless, Michael began his kindergarten year in January 1998. He attended only fourteen half-days of school, however, before his parents withdrew him. Prior to the start of the 1998-1999 school year, Michael received approximately 30 to 38 hours of one-to-one DTT per week at home using the Lovaas methodology.

After almost two years of meetings, administrative hearings, and court proceedings, Michael finally began attending kindergarten on a continuous basis in September 1998. Michael attended kindergarten during the 1998-1999 school year pursuant to an IEP that was developed on September 2, 1998 and another slightly modified IEP developed on November 20, 1998 ("the IEPs"). As required by the IDEA, the IEPs set forth several annual goals and objectives for Michael. The November IEP listed seven specific annual goals:

(1) Language: Developmental. Increase acquisition of language using an analytical and systematic approach;

(2) Language: Morphology/Syntax. Increase use of sentence structure, inflection, and derivational forms in language appropriately;

(3) Language: Semantics. Increase development, and appropriate use of vocabulary;

(4) Socialization: Pre-school/Primary. Increase development of appropriate, positive relationships with adults and peers;

(5) Task Attention and Completion. Increase focus of attention towards completion of task;

(6) Content Area: Remediation. Increase acquisition and knowledge of basic concepts in content area through remediation and reinforcement; and

(7) Accessibility. Development of skills or techniques needed for student to access educational materials and perform necessary self-care in the school setting.

See November 20, 1998 IEP. Within each of the annual goals were several proposed objectives for Michael to achieve during the school year. For example, under the goal "Language: Morphology/Syntax," were the following objectives: Michael "will with 80% accuracy: (1) Demonstrate comprehension and use of various verb forms to include "-ed" and "-ing" as well as present progressive; and (2) demonstrate the ability to use irregular plural forms." Id. The IEPs also indicated the special education and related services that Michael would receive from the school. Included within the 1950 minutes per week that Michael attended school, he received three hundred minutes of "skills remediation and maintenance required skills" and sixty minutes of speech therapy in a separate setting. In addition, Michael received thirty minutes per month of occupational therapy.

The IEPs are at the very heart of...