L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cnty.

• Decision Date: 19 January 2018
• Docket Number: No. 16-16412, No. 16-16418,16-16412
• Citation: 879 F.3d 1274
• Parties: L.M.P., ON BEHALF OF E.P., D.P., and K.P., minors, Plaintiffs-Appellants, v. SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Individual Defendants, et al., Defendants-Appellees. C.C. and P.C., on behalf of A.C., a minor, and on behalf of all other similarly situated disabled children, Plaintiffs-Appellants, v. School Board of Broward County, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

879 F.3d 1274

L.M.P., ON BEHALF OF E.P., D.P., and K.P., minors, Plaintiffs-Appellants,

v.SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, Individual Defendants, et al., Defendants-Appellees.

C.C. and P.C., on behalf of A.C., a minor, and on behalf of all other similarly situated disabled children, Plaintiffs-Appellants,

v.School Board of Broward County, et al., Defendants-Appellees.

No. 16-16412

No. 16-16418

United States Court of Appeals, Eleventh Circuit.

January 19, 2018

Neil D. Kodsi, The Law Offices of Neil D. Kodsi, Miami Shores, FL, Jordan M. Lewis, Jordan Lewis, PA, Fort Lauderdale, FL, David J. Pyper, Law Offices of David J. Pyper, PA, Weston, FL, for Plaintiffs–Appellants.

Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, Marylin C. Batista–McNamara, The School Board of Broward County, Florida, Wayne Morris Alder, Fowler White Burnett, PA, Fort Lauderdale, FL, Anastasia Protopapadakis, GrayRobinson, PA, Stuart Isaac Grossman, Levine Kellogg Lehman Schneider Grossman, LLP, Mark A. Hendricks, Lydecker Diaz, LLC, Miami, FL, for Defendants–Appellees.

Before WILSON and ROSENBAUM, Circuit Judges, and TITUS,^* District Judge.

TITUS, District Judge:

This Individuals with Disabilities Education Act ("IDEA") case comes before this Court after a twelve-year battle by two sets of parents on behalf of their children to receive the specific therapy they believed their children deserved. Beginning in 2005, Appellant L.M.P., a mother of triplets acting individually and on her children’s behalf, sought the aid of the courts to force Appellee School Board of Broward County ("School Board") to include one-on-one Applied Behavioral Analysis ("ABA") therapy in each child’s Individual Education Plan ("IEP"). Appellants C.C. and C.P., parents acting individually and on their child’s behalf, intervened in those efforts to try to achieve the same therapy for their child. Appellants allege that the School Board’s refusal to include the desired therapy in the children’s IEPs reflects its predetermined policy of never including any ABA-based method or strategy in a child’s IEP, in violation of the IDEA, 20 U.S.C. §§ 1400 – 1482. But as much as Appellants want to overturn their children’s original IEPs based on impermissible predetermination, they do not have standing to challenge the policy that they allege exists. While they argue to the contrary, an ABA-based therapy was, in fact, included in their children’s IEPs, albeit not the specific one that they desired, thus defeating their standing to challenge an alleged policy that was not applied to them.

The Court will explain how it reached this conclusion through exploration of what ABA is and how it fits into the IDEA framework.

1. Applied Behavioral Analysis¹

ABA is an applied science whose purpose is to produce socially significant changes in behavior. D.E. 549 at 2–3. ABA is not a method of instruction or method of teaching. Id. at 2. Rather, it is a broad umbrella under which numerous intervention strategies fall. Id . There is no singular technique that must be used in all circumstances. Id. at 5. There are hundreds of different ABA intervention strategies that can be provided. Id .

One strategy is called discrete trial training ("DTT"). Id. DTT is a highly structured form of implementing the principles of reinforcement and stimulus control. Id . Although DTT is often done one-on-one, it can also be done in group settings when appropriate. Id. at 6. Just as DTT is a method under the umbrella of ABA, there are multiple intervention strategies that have been developed under the umbrella of DTT. Id . Different methods of DTT include the Lovaas method, the pivotal response method, and the Picture Exchange Communication System ("PECS") method. Id . PECS is a scientifically-validated ABA-based intervention strategy for teaching communication skills to children with autism. Id.

2. Individuals with Disabilities Education Act

The IDEA is a comprehensive statute that sets forth the intent of Congress that children with disabilities be entitled to a "free appropriate public education" ("FAPE"). See Winkelman ex rel. Winkelman v. Parma City Sch. Dist. , 550 U.S. 516, 523, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (citation omitted). Under Part B of the IDEA, states must provide disabled children between the ages of three and twenty-one with the opportunity to receive a FAPE by offering each student special education and related services under an IEP. 20 U.S.C. § 1412.² An IEP must include "a statement of the special education and related services and supplementary aids and services ... to be provided to the child." Id . § 1414(d)(1)(A)(IV). Determining an IEP "is supposed to be the culmination of a collaborative process between parents, teachers, and school administrators outlining the student’s disability and his educational needs, with the goal of providing the student with a [FAPE]." R.L. v. Miami-Dade Cty. Sch. Bd ., 757 F.3d 1173, 1177 (11th Cir. 2014) (citing 20 U.S.C. §§ 1401(9), 1412(a)(1)(A), 1414(d)(1)(A)–(B), (d)(3) ). Once an IEP has been determined, it "should comply with the procedural and substantive requirements set forth in the IDEA and should be ‘reasonably calculated to enable the child to receive educational benefits.’ " Id . at 1177 (quoting J.S.K. ex rel. J.K. v. Hendry Cty. Sch. Bd. , 941 F.2d 1563, 1571 (11th Cir. 1991) ).

The IDEA’s framework recognizes that not all stakeholders will agree on all aspects of an IEP. Id . The statute thus provides for procedural safeguards through which a child’s parents, if they believe that the IEP does not comply with the IDEA’s requirements, can challenge the IEP. 20 U.S.C. § 1415 ; R.L. , 757 F.3d at 1177. The parents "may unilaterally withdraw their child from the school system and pursue alternative placement options." R.L. , 757 F.3d at 1177. Even if the parents do not withdraw their child, they, or the state, "can file a complaint with the appropriate state administrative agency and get a due process hearing before an [Administrative Law Judge ("ALJ") ] to resolve the dispute." Id . (citing 20 U.S.C. § 1415(f)(1)(A) ; Fla. Stat. § 1003.57(c) ). The complaint may be based on "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." 20 U.S.C. § 1415(b)(6). Either party can then challenge the ALJ’s decision by appealing to either a state court or a United States District Court. R.L. , 757 F.3d at 1178 (citing 20 U.S.C. § 1415(i)(2)(A) ).

A court has broad discretion to grant the relief it deems "appropriate in light of the IDEA’s purpose." Id . In reviewing a challenge under the IDEA, the court will conduct a two-part inquiry: "First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?" Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 206–07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (footnotes omitted). The state must meet both the procedural and substantive prongs of the Rowley test for the court to find the state has complied with the IDEA. See id . at 207, 102 S.Ct. 3034. Only procedural violations that cause a party substantive harm will entitle plaintiffs to relief. See Sch. Bd. of Collier Cty. v. K.C. , 285 F.3d 977, 982 (11th Cir. 2002) ; Doe v. Ala. State Dep't of Educ ., 915 F.2d 651, 660–63 & nn. 9–10 (11th Cir. 1990).

In this case, Appellants have asserted challenges solely under the procedural prong of Rowley and have explicitly disavowed any challenge under the substantive prong. Appellants' Consol. Reply 6. Thus, any question as to the sufficiency of the IEPs to provide educational benefits to the children of the Appellants is not before this Court.

3. Background and Procedural History³

This case involves consolidated appeals. Appellant L.M.P. is the mother of E.P., D.P., and K.P. (the "Triplets"). Appellants C.C. and P.C. are the parents of A.C. The parties all appeal from the same district court order issued after a joint bench trial. The bulk of the factual background pertains to the Triplets as reflected in the district court’s factual findings.

The Triplets were born on January 4, 2001 and were diagnosed with autistic spectrum disorder ("autism") in 2003. D.E. 549 at 10. A.C. was also diagnosed with autism at an early age. Id. at 16. Autism is a neurological disorder that results in deficits in social communication and social interaction. Id. at 2. An autistic child qualifies as a "child with a disability" under the IDEA. 20 U.S.C. § 1401(3)(A).

In May 2003, shortly after the Triplets' diagnosis, their father had the children examined by David Garcia, the clinical supervisor for Behavioral Analysis, Inc. ("BAI"). Id. at 10. After the examination, the father hired BAI to provide each child with thirty hours per week of one-on-one ABA-based therapy. Id.

On December 8, 2003, a meeting took place between the School Board and the Triplets' parents to discuss the transition of services their children had been receiving at the early intervention stage.⁴ Id. at 12. The parents expressed their desire that the Triplets continue receiving the thirty hours per week of one-on-one ABA-based therapy provided by BAI. Id . Carol Bianco, one of the School Board employees present at the meeting, allegedly advised the parents that ABA-based therapy was not provided by the School Board as an intervention service. Id .

After the transition meeting, the School Board’s team evaluated the Triplets. Id. Following the evaluations, the School Board scheduled a meeting for December 18, 2003 to develop IEPs for the children. Id. at 12–13. Before the scheduled meeting, the Triplets' father requested copies of the School Board’s evaluations, as a result of which the meeting was postponed until January 5, 2004. Id. at 13. The Triplets'...