L.M.P. ex rel. E.P. v. School Bd.

• Decision Date: 27 September 2007
• Docket Number: No. 05-60845-Civ-MARRA/JOHNSON.,05-60845-Civ-MARRA/JOHNSON.
• Citation: 516 F.Supp.2d 1294
• Parties: L.M.P. on behalf of E.P., D.P., and K.P., minors, and L.M.P. on behalf of all others similarly situated disabled children, Plaintiffs, v. SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

516 F.Supp.2d 1294

L.M.P. on behalf of E.P., D.P., and K.P., minors, and L.M.P. on behalf of all others similarly situated disabled children, Plaintiffs, v. SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, et al., Defendants.

No. 05-60845-Civ-MARRA/JOHNSON.

United States District Court, S.D. Florida.

September 27, 2007.

David J. Pyper, Paul Jon Layne, Pyper & Layne LLC, Weston, FL, for Plaintiffs.

Edward James Marko, Marylin C. Batista-McNamara, School Board Attorney's Office, Mark A. Hendricks, Richard Arthur Beauchamp, Panza Maurer & Maynard, Michael Thomas Burke, Johnson Anselmo Murdoch Burke Piper & McDuff, Fort Steven M. Lury, Marlow Connell Valerius Abrams Adler & Newman, Lauderdale, FL, for Defendants.

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

This cause is before the Court upon Defendant School Board's Motion to Dismiss Counts II, III, and Class Action Claims of the, Second Amended Complaint. (DE 135). Plaintiffs have filed a response to the motion (DE 147) and Defendant has filed its reply (DE 153). The Court has considered the motion and is otherwise fully advised in the premises. The matter is now ripe for review

I. Background

On October 17, 2006, Plaintiffs L.M.P. filed, on behalf of E.P., D.P., K.P., and all other similarly situated disabled children, a Second Amended Complaint asserting claims against various Defendants pursuant to the Individuals with Disabilities Education Act ("IDEA"), 29 U.S.C. § 1400, et seq., Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, Fla. Stat. § 1003.57, 42 U.S.C. § 1983, and 42 U.S.C. 1985 (DE 126). Plaintiffs also filed Class Allegations on behalf of all Broward Students with autism spectrum disorder (ASD), asserting claims pursuant to the IDEA, Section 504, 42 U.S.C. § 1983, and 42 U.S.C. § 1985.

Facts Alleged in Second Amended Complaint

The facts alleged in the Amended Complaint are as follows: Plaintiff Triplets each have been diagnosed with a serious autism spectrum disorder ("ASD"). (Amended Complaint ¶ 24.) In September of 2002, prior to their second birthday, the Triplets began to receive speech therapy, occupational therapy, and physical therapy under Part C of the IDEA through their local Early Intervention Program ("EIP"). (Amended Complaint ¶ 22.) In May 2003, the Triplets began to receive thirty hours per week of Applied Behavioral Analysis therapy ("ABA").¹ (Amended Complaint ¶ 30.) The EIP program authorized the Triplets Family Support Plan ("FSP"); the final FSP for the Triplets provided that each child was to receive 30 hours of ABA. (Amended Complaint ¶ 31.)

A transition plan was prepared to move the children between the EIP program from Part C of the IDEA to part B of the IDEA (Amended Complaint ¶ 33). To facilitate the transfer, the children needed to have an Individual Education Plan (IEP) in place by their third birthday — January 4, 2004.

The transition plan had the children scheduled to be evaluated by Defendant School Board of Broward County ("School Board") on December 8, 2003. (Amended Complaint ¶ 34.) However, unbeknownst to the parents, a child study team meeting — a formal meeting at which it is determined what assessments are necessary for the children — was held for the Triplets on November 18, 2004. (Amended Complaint ¶¶ 38-40.) At the December 8th meeting, the parents met with Carol Bianco, the Broward School Board Part C liaison, and explained to her that the Triplets had been receiving applied behavioral analysis ("ABA") therapy at home and asked whether Broward County could provide ABA as an intervention in Part B of the IDEA. (Amended Complaint ¶¶ 37, 38, 45.). Ms. Bianco told the parents that ABA was not an available intervention for their children because it has always been the policy of Broward County to never approve intensive one to one ABA for children as part of their IEP under any circumstances. (Amended Complaint ¶ 46.) Shedding further light on the availability of ABA treatment for children in Part B, Lakasmy Ossaba, a program specialist for pre-K programs for autistic children, had dealt with between 50-100 families that had requested similar ABA treatment and all had been denied. (Amended Complaint ¶ 47.) Ms. Ossaba testified that the ABA therapy the Triplets were receiving is not an option in Broward County, irrespective of the circumstances. (Id.) Further, Mary Stone, a Broward County psychologist, has stated that the ABA services the Triplets are receiving are not provided by School Board and that there is no program in a Broward County School where a child can receive a similar ABA program. (Amended Complaint ¶ 47.)

After this transition meeting with the parents, the Triplets met with the assessment team whose task it was to determine their eligibility, formulate a present level of performance and to make program recommendations for the children. (Amended Complaint ¶¶ 51-54.) A series of six tests were to be performed on each child which the parents contend would have taken several hours to conduct. (Amended Complaint ¶¶ 51-69.) The meeting lasted an hour and fifteen minutes. (Amended Complaint ¶ 51.)

Concerned with thoroughness of the tests, the children's father repeatedly called and wrote letters to the school board, expressing his concerns, requesting copies of the children's evaluation reports, and attempting to reschedule the IEP meeting date. (Amended Complaint ¶¶ 72-83.) The school board responded by faxing over the evaluation reports and rescheduling the IEP meeting for January 5, 2004, one day after the Triplets were to turn three. (Amended Complaint ¶¶ 83-87.) Worried the children would turn three without an IEP in place, the father called and requested the children's last FSP be extended in the interim, including the ABA services. (Amended Complaint ¶¶ 87-88.) On December 19, 2003, Jane Koblick, a parent liaison with Broward County, called the father and denied his request for the continuation of ABA services. (Id.) The father placed several more calls to the School Board requesting interim ABA services for the Triplets to no avail. (Amended Complaint ¶¶ 92-97.)

The Triplets turned three on January 4, 2004 and there was no IEP established (Amended Complaint ¶¶ 97-101). At this point the children came within the jurisdiction of the Florida Department of Education ("FDOE") and the Broward County School Board. (Amended Complaint ¶ 98). Part B of the IDEA requires that the Florida Department of Education and the Broward County School Board provide the children with a free and appropriate public education ("FAPE"). (Amended Complaint ¶ 99.)

Over the course of the next month, the Triplets' father repeatedly and vigorously expressed his concern that the examinations conducted were not proper, could not have been completed in seventy five minutes, did not accurately reflect the children's level of performance, and that the files available to the IEP team were lacking vital information, including the last FSP, rendering them incomplete and unreliable. (Amended Complaint ¶¶ 102-140.) He requested that he be permitted to review the children's test records on numerous occasions and was rebuffed several times. (Amended Complaint ¶¶ 102-40.) Among other complaints, the father requested an independent educational evaluation ("IEE") and repeatedly voiced his fear that the IEP team was ill-suited to make a proper recommendation for his children. (Amended Complaint ¶¶ 112-117.)

On February 3, 2004, the Triplets IEP team temporarily assigned the children to Baudhin Oral Preschool, a private school operated by Defendant Nova University. (Amended Complaint ¶¶ 152.) Defendant School Board has a contract with Nova for the placement of autistic children in Baudhin Oral Preschool. Broward County has placed over 100 children with ASD at Baudhin. (Amended Complaint ¶¶ 154, 157.) Baudhin is a private school exclusively for children with ASD and only accepts students for enrollment that are subjected to the IEP process. (Amended Complaint ¶ 154.) Baudhin does not accept privately enrolled students. (Id.) Plaintiffs allege Nova has conspired with the School Board to never approve or consider intensive one to one ABA for children with ASD. (Amended Complaint ¶ 156.) Plaintiffs further allege that Nova has trained the School Board personnel on how to systematically violate the rights of disabled children under the IDEA. (Id.)

On February 5, 2004, the parents wrote to the School Board, informing it that they did not consent to the temporary placement of the Triplets at Baudhin Oral Preschool. (Amended Complaint ¶¶ 164.) Defendants did not take any further action after the February 3rd meeting to set up extended school services for the Triplets for the 2004 summer session. (Amended Complaint ¶ 169.) Defendants also did not take any action to have an IEP in place for the Triplets for the 2005-05 school year. (Amended Complaint ¶¶ 169-72.) In July of 2004, the Triplets changed service providers and began a new program where the children receive ten hours of ABA therapy every week. (Amended Complaint ¶ 172.)

On August 27, 2004, the Plaintiffs requested a due process hearing, alleging that the School Board violated their procedural and substantive rights under the IDEA. (Amended Complaint ¶ 177.) On April 25, 2006, following a four day hearing, an Administrative Law Judge ("ALF) entered a final order against the Plaintiffs, declining to rule on whether the Triplets were denied a FAPE. (Amended Complaint ¶ 177.)

The ALJ did not reach the FAPE issue, finding that regardless of whether the children had been denied a FAPE, they were not eligible to receive the reimbursement that the Plaintiffs were seeking.² (Final order at 43(). Dissatisfied with the with All's ruling, Plaintiffs brought this action.

Claims Contained in Second Amended Complaint

Plaintiffs have brought suit against various Defendants, including, the School Board of Broward County. Count I alleges Defendants violated the...