Denny ex rel. H.A.B. v. Bertha-Hewit Pub. Sch.

• Decision Date: 29 September 2017
• Docket Number: Civil No. 16-1954 (DWF/LIB)
• Parties: Julie Denny, individually and on behalf of H.A.B., Plaintiffs, v. Bertha-Hewit Public Schools, Independent School District No. 786, Defendant.
• Court: U.S. District Court — District of Minnesota

Julie Denny, individually and on behalf of H.A.B., Plaintiffs, v. Bertha-Hewit Public Schools, Independent School District No. 786, Defendant.

Civil No. 16-1954 (DWF/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

September 29, 2017

MEMORANDUM OPNION AND ORDER

Margaret O'Sullivan Kane, Esq., Kane Education Law, LLC, and William A. Sand, Esq., Sand Law, LLC, counsel for Plaintiffs.

Jeanette M. Bazis, Esq., Jenny Gassman-Pines, Esq., and Anna Tobin, Esq., Greene Espel PLLP, counsel for Defendant.

INTRODUCTION

This matter is before the Court on Plaintiffs' Motion for Judgment on the Supplemented Administrative Record and Motion to Supplement the Administrative Record. (Doc. Nos. 33, 36.) In the Second Amended Complaint, (Doc. No. 5), Plaintiffs seek reversal or remand of a decision issued by an Administrative Law Judge ("ALJ") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. For the reasons set forth below, Plaintiffs' Motion to Supplement the Administrative Record is denied, and Plaintiffs' Motion for Judgment on the Supplemented Administrative Record is denied.

BACKGROUND

I. General Background

The Student is an eleven-year-old individual with Down Syndrome. (D. Ex. 13 at 0054-55.)¹ The Parent describes her as "a fun, bubbly little girl" and "a social butterfly." (Tr. at 390-91.) The Student displays "delays in gross and fine motor coordination, memory recall and other cognitive functions, developmentally appropriate interpersonal interactions, and communication skills compared to her same-age peers." (S. Ex. 23 at 266.) Her vocabulary is approximately that of a three- or four-year-old. (Tr. at 640.) The Student receives special education services "under the Developmental Cognitive Disability category." (Id. at 0054.) She began receiving special education in August 2006. (Id.) The Parent testified that the Student has had numerous friends at the school for years. (Tr. at 381-82.)

A. The Student's Kindergarten Through Third Grade Years

The Student attended Bertha-Hewit Elementary School in the District from kindergarten through fourth-grade. In Kindergarten, a staff person sprayed the Student in the face with water as a form of behavioral intervention. (S. Ex. 56 at 425.) A note in the Student's medical file relating to this incident indicates that "[the Parent] has considered pulling her daughter out of the school district . . . but is hoping things will work out to keep her here in Bertha." (S. Ex. 68 at 744.) An "Assistive Technology Consideration"report from 2012, the Student's kindergarten year, indicates that "[the Student] exhibits inappropriate behaviors such as hitting, kicking, spitting and telling an adult to 'shut-up' or 'no.'" (S. Ex. 2.)

Progress Reports from the Student's first- and second-grades show the Student making "Adequate Progress" in multiple goal areas. (S. Ex. 1; S. Ex. 5; S. Ex. 13.) The paraprofessional who worked with the Student during first and second grade testified that she observed the student "swearing, spitting, kicking, [and] hitting." (Tr. at 227.) The Student was not restrained or sent home these years. (Id. at 229.) The paraprofessional reported that the Student "mainstreamed for maybe 45 minutes in the morning, [and] the rest of the day was one-on-one." (Id. at 236.)

A February 20, 2013 individualized education program ("IEP") amended on November 7, 2013—the Student's first-grade year—notes: "In the mainstream, [the Student] exhibits some undesirable behaviors that can be disruptive and sometimes harmful to her peers and adults. A majority of [the Student's] programming will be done in the Resource Room until [the Student] can learn to function successfully in the mainstream." (S. Ex. 4 at 27.) Similarly, it states that "[s]he has a very short attention span so only lasts so long in the mainstream for large group before she starts making noises or moving around the room. At that point, she comes to the Resource Room for lessons at her pre academic level." (Id. at 30.) The IEP notes that "behavior charts" would be utilized to track the Student's progress. (Id.) In the description of paraprofessional support needs, this IEP states that "[the Student] shows physical aggression towards self or others." (Id. at 31.) The "Least Restrictive Environment(LRE) Explanation" for this IEP states that "[the Student] will be removed from the mainstream during academic times, where the expectations are too high for her and her growling disrupts her peers and teacher." (Id. at 32.) The IEP describes the modifications and supports to be used in response to the Student's disruptive behaviors. (Id. at 33.) The Parent testified that the Student was reportedly swearing and touching herself on occasion in first grade. (Tr. at 476.)

The Student's IEP dated February 12, 2014—the Student's second-grade year—reiterates the prior statements regarding the Student's behaviors in the mainstream that she reportedly "can be disruptive and sometimes harmful to her peers and adults." (S. Ex. 11 at 58.) In addition, the IEP states that "[s]he generally can be with her peers without pulling hair, hitting, or kicking. On occasion, those behaviors crop up. [The Student's] most recent behaviors include spitting, growling, and saying 'no' to verbal requests and to her visual schedule." (Id. at 61.) Once again, the IEP notes that behavior charts would be kept to monitor progress and identifies a benchmark goal that "[the Student] will make it through her day with two or less 'Needs Improvement' notations on her behavior chart per day for 7 out of 10 days." (Id. at 62.) This IEP also contained the language referring to "[the Student] show[ing] physical aggression towards self or others." (Id. at 63.) The "Least Restrictive Environment (LRE) Explanation" for this IEP states that "[the Student] will be removed from the mainstream during academic times, where the expectations are too high for her and she disrupts the learning of her peers." (Id. at 64.) The modifications referenced in this IEP includeredirection and removal to a different setting "[w]hen [the Student] exhibits undesirable behaviors." (Id. at 65.)

Also in the Student's second-grade year, the Eagle Bend Police Department documented a report of suspected child abuse and neglect involving the Student. (S. Ex. 53.) According to this report, a paraprofessional involved with the Student had slapped the Student, tapped her on the mouth, squeezed her head firmly, pulled her around by her ponytail or hood, and "pinned [her] to the wall." (Id. at 407-09.) In May 2014, the Todd County Attorney's Office filed a criminal complaint against the paraprofessional for the reported maltreatment of the Student. (S. Ex. 54.)

The Student's third-grade year was successful with limited behavioral difficulties, and the Student was "[m]aking progress." (Tr. at 94, 182-83, 248, 267, 387.) The District's superintendent, Eric Koep ("Koep"), explained that there were "occasional behavior issues, but not to the extreme that started in September [of the Student's fourth-grade year]." (Id. at 56-58, 94.) The Student's mainstream teacher, Mark Frethem ("Frethem") similarly testified that the Student did not exhibit significant behavioral difficulties in the mainstream classroom during third grade. (Id. at 241-49.) He explained that "when the disruptive behavior began, they left the classroom." (Id. at 246.) Frethem testified that he did not witness the Student engaging in behavior that created a danger to herself or others. (Id. at 245.) He stated, "I believe she was able to participate somewhat degree [sic] in the classroom to keep her with her classmates a little bit." (Id. at 246.) Finally, the Parent agreed that third grade had been "awesome" and that the Student had progressed that year. (Id. at 387.) She testified that there were nosimilar behavioral challenges as those that later took place in the fourth grade. (Id. at 388.)

The Student's February 19, 2015 IEP, agreed upon by the Parent on March 6, 2015—the Student's third-grade year—noted that "[i]n the mainstream, [the Student] exhibits some undesirable behaviors that can be disruptive and sometimes aggressive toward adults." (D. Ex. 5 at 0030.) The IEP explained that "[s]he has shown significantly less negative/aggressive behaviors with peers" and that aggressive behaviors towards staff were less common "in the morning structured setting." (Id.) The IEP indicated that the District would utilize "behavior charts" to measure progress on one of the Student's IEP goals. (Id. at 0034.) The IEP described the Student's needs for paraprofessional support in the regular education setting, special education setting, and on the school bus. (Id. at 0035.) This portion of the IEP noted the Student's "physical aggression towards others," "socially inappropriate behavior," and "unsafe behaviors while on the bus." (Id.)

The "Modifications" section of the February 19, 2015 IEP similarly noted that "[the Student] needs observation and redirection of behavior as she shows physical aggression towards others at times and increased vulnerability due to cognitive deficits or socially inappropriate behavior." (Id. at 0037.) The IEP provided that "[the Student] will be removed from the classroom to quiet setting [sic] if she is disrupting the learning of her fellow students" and that she would be "removed from the problematic setting to another setting" if "exhibit[ing] undesirable behaviors." (Id.) Another modification noted that a paraprofessional would accompany the Student in the school van "to insurethat [the Student] stays in her seat and does not harm herself or other students in the van." (Id.) Amanda Mozis ("Mozis"), the student's special education teacher, explained that this IEP was intended to be effective from February of the Student's third-grade year through February of her fourth-grade year. (Tr. at 545, 548, 603-04.) The Parent agreed that "at the start of [the Student's] fourth...