Brown v. Bartholomew Consol. School Corp.

• Decision Date: 29 March 2006
• Docket Number: No. 05-1526.,05-1526.
• Citation: 442 F.3d 588
• Parties: Robert BROWN, Plaintiff-Appellant, v. BARTHOLOMEW CONSOLIDATED SCHOOL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

442 F.3d 588

Robert BROWN, Plaintiff-Appellant, v. BARTHOLOMEW CONSOLIDATED SCHOOL CORPORATION, Defendant-Appellee.

No. 05-1526.

United States Court of Appeals, Seventh Circuit.

Argued November 10, 2005.

Decided March 29, 2006.

COPYRIGHT MATERIAL OMITTED

Gary S. Mayerson, Christina D. Thivierge (argued), Mayerson & Associates, New York, NY, for Plaintiff-Appellant.

George T. Patton, Jr. (argued), Theresa M. Ringle, Bose, McKinney & Evans, Indianapolis, IN, for Defendant-Appellee.

Before FLAUM, Chief Judge, and RIPPLE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., requires that states, as a condition of receiving federal funds, provide each disabled child within their school system a free appropriate public education. In this action, the parents of an autistic child, Robert Brown ("Bobby"), were unhappy with the "individualized educational program" ("IEP") that their school district, the Bartholomew Consolidated School Corporation ("Bartholomew"), proposed for the 2002-2003 school year to address Bobby's autism. Unable to settle their differences through negotiation, the parties proceeded before a state administrative officer, who ruled in favor of Bartholomew. Bobby's parents appealed to the State Board of Special Educational Appeals ("BSEA"), which upheld the hearing officer's determination. The Browns then filed this action in the district court, requesting reversal of the administrative decisions. After hearing new evidence on Bobby's academic progress following the BSEA's decision, the district court affirmed the BSEA. The Browns then filed this appeal. In the meantime, while this appeal has been pending, the Browns enrolled Bobby to a different school district and agreed to a new IEP for Bobby's upcoming school year. As we explain further in the following opinion, this change in circumstances renders Bobby's case moot. We therefore vacate the order of the district court and remand with the direction to dismiss this action on that ground.

I BACKGROUND

A. Facts

Bobby Brown was born on March 28, 1996, and is currently nine-years old. At age two, he was diagnosed with Autism Spectrum Disorder, a condition that severely impaired the development of his linguistic and social abilities. Bobby's autism qualified him as a "child with a disability" under the IDEA, see 20 U.S.C. § 1401(3)(A), and when Bobby was three, the Browns sought free appropriate educational assistance from their local school district, Bartholomew. Bobby was evaluated and determined to be eligible for the district's Early Childhood Special Education ("ECSE"), a developmental preschool program for disabled children. Once a child is designated "disabled" under the IDEA, the Act requires that the child receive an individually tailored instruction program, or IEP, that first is developed and then annually reviewed by a committee, or "IEP Team," composed of parents and educators. See id. § 1414(d)(1)(A). Consistent with this statutory directive, Bartholomew convened a case conference on April 9, 1999, to develop an initial IEP for Bobby. The IEP Team recommended that Bobby attend ECSE services three days per week, receive 30-minute sessions of speech/language therapy two times per week, and a 30-minute session of occupational therapy once a week. The Browns agreed.

Subsequently, the Browns began researching alternative educational approaches to treating Bobby's autism. They learned of an approach developed by Dr. Ivar Lovaas known as "discrete trial training," which emphasizes heavy parental involvement, early intervention and treatment in the home and elsewhere in the community, rather than in professional settings. The Browns, without consulting Bartholomew, hired Janet Rumple, who had been trained in a variation of the Lovaas approach known as Applied Behavior Analysis ("ABA"). With the help of Rumple, the Browns began a home-based ABA program for Bobby and hired two additional ABA aides to carry out Bobby's day-to-day instruction with oversight and training from Rumple.

Bartholomew held a second case conference on April 27, 2000, to revise Bobby's IEP in contemplation of the upcoming school year. The committee agreed that Bobby's home-based ABA instruction should substitute for the occupational therapy and fine motor skills services that Bobby was receiving through the school. In an effort to cover the increased cost of the at-home program, the Browns and Bartholomew submitted an Application for Alternative Services to the Indiana Department of Education ("DOE"), requesting approval of funding of Bobby's ABA program. The application listed Bobby's major behavioral impediments such as fecal smearing, temper tantrums, physical aggression and self-injurious behavior, all of which, it submitted, prevented Bobby from learning in a school environment. The DOE denied the request, noting that Bobby's behavioral difficulties were not, at that point, occurring at school. The DOE encouraged the Browns and Bartholomew to try increasing Bobby's school hours and one-to-one assistance before requesting additional funding.

The case conference reconvened, and Bartholomew proposed a revised IEP that would allow Bobby to attend school accompanied by a full-time, one-to-one aide who would provide necessary assistance and behavioral intervention. The Browns objected to this proposal because the full-time aide recommended by Bartholomew had not been trained in ABA instruction. Instead, the Browns proposed that Bobby receive one-to-one instruction by an ABA-trained educator for eight hours per day, five days a week.

As the 2000-2001 school year went forward, negotiations between Bartholomew and the Browns continued to stall. Bobby was reevaluated by a private child development center, and the evaluation suggested that Bobby's ABA treatment was producing some positive results. Yet, Bartholomew still would not agree to an IEP that included ABA treatment. Typically, when disputes arise over an IEP, they are resolved through the impartial due process procedures prescribed by the IDEA. See id. § 1415(f). The Browns filed a request for a due process hearing, but before it got underway, the parties reached a settlement, the terms of which were memorialized in an agreement dated February 20 2001. The agreement provided for a Monday-Thursday schedule of three hours of one-to-one, at-home ABA instruction in the morning, three hours of one-to-one ABA instruction at school, followed by two hours of one-to-one ABA instruction after school. On Fridays, Bobby would receive six hours of at-home, one-to-one ABA instruction, and this schedule would continue throughout the summer during which all instruction would take place at Bobby's home. Pursuant to the settlement, Bartholomew entered into service contracts with Rumple and two ABA-trained aides to oversee and assist in Bobby's ABA instruction and to train Bobby's teachers at Smith Elementary School in ABA methods. The terms of the settlement were formalized as Bobby's IEP for the remainder of the 2000-2001 school year and the following summer. Bartholomew also agreed to reimburse the Browns for attorneys' fees, school supplies and the costs incurred in providing private ABA instruction going back to June 2000.

For the month of June 2001, Rumple was unable to maintain the level of hours expected of her due to personal and professional commitments. Interested anyway in shifting Bobby's program to a more speech-centered approach, the Browns retained the services of Dr. Carl Sundberg, a professor at Western Michigan University who specialized in Applied Verbal Behavior ("AVB"), a variant of ABA instruction. Dr. Sundberg's AVB methods emphasized rudimentary conversation skills that are taught through a sequence of twenty-six steps, with each step building on the ones before it. In Dr. Sundberg's view, Bobby would need instruction in these basic conversation skills for his upcoming transition from early childhood education to kindergarten. Dr. Sundberg believed that Bobby had to raise his conversational skill level, as measured under the AVB program, from its current 30% level to 70% before he would be ready to enter kindergarten. The Browns transitioned Bobby from his ABA program to Dr. Sundberg's AVB instruction, and Janet Rumple continued to oversee the program and arranged training for school personnel and at-home aides. Bobby entered kindergarten at the start of the 2001-2002 school year, attending the program on a half-day basis at Richards Elementary School. All other terms of the parties' settlement agreement remained in place, and Bartholomew continued to pay the salaries of Bobby's in-school ABA aides and Janet Rumple.

The IDEA requires that each "child with a disability" be evaluated at least once every three years to assess the child's status as disabled and to evaluate the child's progress in the school curriculum. Id. § 1414(a)(2)(A). When Bobby's three-year reevaluation came due in April 2002, both parties recruited outside specialists to undertake independent evaluations. One of Bartholomew's two specialists, Dr. John Umbreit, was an expert in ABA methods and a professor of special education at the University of Arizona. He observed Bobby in the classroom and at home and interviewed Mrs. Brown and Bobby's teachers. Based on his evaluation, Dr. Umbreit made several recommendations, the most important of which was that Bobby attend a full day of kindergarten class at Richards Elementary, assisted by an instructional aide for most of the school day. In Dr. Umbreit's opinion, Bobby would benefit from learning the necessary functional skills, such as communication, self care and motor abilities, in a classroom setting that involved age-appropriate materials and activities. To the greatest extent possible, according to Dr. Umbreit, Bobby's autism-specific instruction should be embedded within typical activities that were...