M.B. v. Hamilton Southeastern Sch.

• Citation: 277 Ed. Law Rep. 60,668 F.3d 851
• Decision Date: 22 December 2011
• Docket Number: No. 10–3096.,10–3096.
• Parties: M.B., by his Parents and Next Friends, Damian BERNS and Amy Berns, Plaintiffs–Appellants, v. HAMILTON SOUTHEASTERN SCHOOLS and Hamilton–Boone–Madison Special Services, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

277 Ed. Law Rep. 60

668 F.3d 851

M.B., by his Parents and Next Friends, Damian BERNS and Amy Berns, Plaintiffs–Appellants,

v.HAMILTON SOUTHEASTERN SCHOOLS and Hamilton–Boone–Madison Special Services, Defendants–Appellees.

No. 10–3096.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 22, 2011.Decided Dec. 22, 2011.

Mitchell M. Pote (argued), Attorney, the Law Office of Mitchell M. Pote, LLC, Indianapolis, IN, for Plaintiffs–Appellants.

Andrew A. Manna (argued), Attorney, Church, Church, Hittle & Antrim, Noblesville, IN, for Defendants–Appellees.

Before WILLIAMS and TINDER, Circuit Judges, and GOTTSCHALL, District Judge.^*GOTTSCHALL, District Judge.

Damian Berns and Amy Berns, on behalf of their son, M.B.,¹ appeal the district court's entry of summary judgment in favor of the Hamilton Southeastern Schools and Hamilton–Boone–Madison Special Services (collectively, the “School”), arguing that they are entitled to reimbursement for private education, therapy, and evaluation expenses, as well as their attorneys' fees, because the School violated the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400– 1491 (the “IDEA”), and the provisions relating to special education in the Indiana Administrative Code, 511 Ind. Admin.Code § 7 (2007), by failing to provide M.B. with a free appropriate public education (or “FAPE”).² For the reasons that follow, we affirm.

I. Background

In October 2007, at the age of four, M.B. was involved in an accident that left him with a traumatic brain injury. M.B. had not yet started kindergarten, and on December 7, 2007, M.B.'s parents asked the School about special education services, including early childhood and extended school year services.

Pursuant to Indiana law, once the School learned that M.B. had a suspected disability, the School was to obtain parental consent to evaluate M.B. and then, within sixty instructional days, it was to convene a case conference committee meeting between M.B.'s parents and School officials to develop an individualized education program (“IEP”) for M.B. See 511 Ind. Admin. Code 7–25–4(b), 7–27–3 (2007). The IEP is a document that describes the child's abilities and measurable goals, as well as the services that a school will provide to assist the child in reaching those goals. See 20 U.S.C. § 1414(d)(1)(A)(i).

Although M.B.'s parents did not consent to have the School evaluate M.B. at that time, they did advise the School that they had hired Dr. Bryan Hudson, a neuropsychologist, to evaluate their son. Dr. Hudson completed his evaluation on January 4, 2008, and concluded that M.B. had a “borderline to mild, acute neurocognitive impairment.” He warned that even mild impairments often resulted “in major functional consequences” if proactive measures to address the potential issues were not taken, and that academic intervention would likely “facilitate smooth transition from the home to the formal academic environment.” (A.R. at 3102–03.)

Shortly thereafter, on January 24, 2008, M.B.'s parents gave the School consent to evaluate M.B. The School's psychologist completed an initial educational evaluation on April 2, 2008. Relying primarily on Dr. Hudson's report, the psychologist suggested that M.B. would benefit from “persistence and consistency in his learning environments,” problem solving support, and level-headed interactions with adults. ( Id. at 1911.) The psychologist encouraged the case conference committee “to consider the information obtained from this evaluation, along with the results of other multidisciplinary team evaluations and classroom observations and performance, when determining the most appropriate educational programming.” ( Id.)

A. The April Committee Meeting

The School convened its first case conference committee meeting for M.B. on April 30, 2008. The parents recorded this conference. At that time, the committee determined that M.B. was eligible for services based on his primary disability of “traumatic brain injury” and his secondary disability of “communicative disorder.” Dr. Hudson, reporting via telephone, stated that he expected M.B. to have difficulty solving problems and that M.B. needed persistence in presentation, repetition, and consistency. (Apr. CCC Recording Minute 0:22–0:23.) ³ Dr. Hudson noted that one of the easiest ways to achieve those goals was to give M.B. “as much schooling as possible.” ( Id.) He emphasized that year-round schooling would be useful, and that all-day kindergarten would be “ultimate” or “optimal” for M.B. ( Id.)

Incorporating both Dr. Hudson's findings and the parents' suggestions, the committee developed fourteen goals and objectives as part of M.B.'s IEP. The IEP included goals in the areas of physical therapy, fine motor skills, language development, and academics. (A.R. at 1963.) School officials explained to M.B.'s parents that the School wanted to place M.B. in an early childhood program so that the School could further evaluate him to determine a proper kindergarten placement. This program would include four half-days of early childhood classroom instruction, twenty minutes of occupational therapy each week, an hour of speech therapy twice a week, and twenty minutes of physical therapy each week. School officials suggested convening another case conference committee meeting in May, at which point the committee would make a determination about the services that the School would provide to M.B. during his kindergarten year. The IEP would also enable M.B. to receive extended school year services in June. The parents signed a form indicating their assent to the April IEP, which contained M.B.'s goals and recommendations for services for May 5, 2008 through May 5, 2009.⁴

Before leaving the April meeting, M.B.'s parents asked that M.B. be allowed to attend both morning and afternoon sessions of kindergarten in the fall so that M.B. could obtain the repetitive instruction that Dr. Hudson recommended. ⁵ M.B.'s parents were informed that no one who could respond to that request was present, but that Casey Felus, the Assistant Director of Special Education, would participate in the next committee meeting. When M.B.'s mother expressed concerns about Ms. Felus' role in the decisionmaking process, School representatives assured her that they would consider Dr. Hudson's recommendation, M.B.'s progress over the next four weeks, and the parents' input in determining whether the School could provide such programming, given that there was no “set full-day kindergarten” program in the district. (Apr. CCC Recording Minute 2:02.) Nonetheless, another School representative stated that this process would be a “formality,” that full-day kindergarten had been provided in the past, and that full-day kindergarten was not outside the realm of possibility for M.B. ( Id. 2:03–2:05.)

B. The May Committee Meeting

M.B. began receiving early childhood services on May 4, 2008. Approximately four weeks later, on May 29, 2008, the School convened the May committee meeting; the parents also recorded this conference. Both parents,⁶ Casey Felus, and several other School officials attended. Dr. Hudson was not present, nor had he observed M.B. in the school setting.

During this conference, School officials reported that M.B. had done well in his half-day early childhood education sessions. Of the fourteen goals described in M.B.'s IEP, the committee reported that M.B. fully accomplished four of his goals, and he had made progress toward nine others; of those nine goals, he was on track to meet all of them, having made some progress toward six of them and a little progress toward three of them. The only goal for which M.B. had no recorded progress involved moving to a cool-down area with prompting; this could not be assessed because M.B.'s teachers did not experience behavioral problems with M.B.

Notwithstanding M.B.'s progress, M.B.'s mother again requested that M.B. be allowed to attend both the morning and afternoon sessions of kindergarten in the fall. She reiterated Dr. Hudson's opinion that a full day of instruction would be appropriate for M.B.'s needs. School officials informed her, however, that the School did not offer this type of programming, that the School had not allowed other students to attend both sessions of kindergarten, and that any departure from the existing programming would require superintendent approval. Instead, the School offered to modify M.B.'s IEP to include a half-day of kindergarten as well as additional services (such as speech therapy, physical therapy, and social skills training), some of which would be provided after the morning kindergarten session.⁷

M.B.'s parents declined the offer. They argued that unless the School provided M.B. with a full day of instruction, the School would not be meeting M.B.'s needs. While they held firm on the need for a full day of instruction, they suggested that the instruction could consist of a half day of kindergarten together with either a half day of early childhood services or a half day of first grade. School officials responded that the services the School had provided under M.B.'s IEP were sufficient. They felt that M.B.'s performance over the last four weeks established that M.B. was making progress toward his IEP goals, and that M.B. was ready to advance to kindergarten. M.B.'s parents rejected this conclusion. Having reached an impasse, the meeting ended without M.B.'s parents adopting the revised May IEP. Instead, they declared that they would take the matter up with the superintendent.

C. The Proposed June Committee Meeting

M.B. began receiving extended school year services on June 9, 2008. In the meantime, M.B.'s parents pursued their request for double-session kindergarten with both the superintendent and with Tom Bell, the Director of Special Education. On June 2, 2008, M.B.'s parents asked Bell to review excerpts from the audio they had recorded during the April and May committee meetings. They explained to...