O.M. v. Orange Cnty. (N.C.) Bd. of Educ.
| Decision Date | 22 February 2013 |
| Docket Number | 1:09CV692 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | O.M., by and through his parents NICOLE McWHIRTER and ARRAN McWHIRTER, NICOLE McWHIRTER, and ARRAN McWHIRTER, Plaintiffs, v. ORANGE COUNTY (N.C.) BOARD OF EDUCATION, Defendant. |
This matter comes before the undersigned United States Magistrate Judge on: (1) the Motion to Dismiss (Docket Entry 19) filed by Orange County (N.C.) Board of Education (the "Board"); (2) the Board's Motion to Join the State of North Carolina (the "State") and the North Carolina State Board of Education (the "State Board," collectively with the State, the ) (Docket Entry 15); and (3) the Motion for Judgment on the Pleadings (Docket Entry 22) filed by O.M. and his parents, Nicole and Arran McWhirter (the "Parents," collectively with O.M., "Plaintiffs"). For the reasons that follow: (1) the Board's Motion to Dismiss (Docket Entry 19) should be denied; (2) the Board's Motion to Join the State Parties (Docket Entry 15) is denied; and (3) Plaintiffs' Motion for Judgment on the Pleadings (Docket Entry 22) should be denied.
Plaintiffs bring this action pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (the "IDEA"). (See Docket Entry 9.) "The IDEA requires all states receiving federal education funds to provide disabled school-children with a 'free appropriate public education' ('FAPE')." M.S. ex rel. Simchick v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 319 (4th Cir. 2009) (citing 20 U.S.C. § 1412(a)(1)(A)).1 "A FAPE 'consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.'" Id. (quoting Board of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 188-89 (1982)). "[A] FAPE must be reasonably calculated to confer some educational benefit on a disabled child." MM ex rel. DM & EM v. School Dist. of Greenville Cnty., 303 F.3d 523, 526 (4th Cir. 2002) (citing Rowley, 458 U.S. at 207). "Such an educational benefit must be provided to a disabled child in the least restrictive and appropriate environment, with the child participating, to the extent possible, in the same activities as non-disabled children." Id. (citing 20 U.S.C. § 1412(a)(5)(A)).
"A school provides a FAPE by developing an IEP [individualized education program] for each disabled child." J.P. ex rel. Peterson v. County Sch. Bd. of Hanover Cnty., 516 F.3d 254, 257 (4th Cir. 2008). "An appropriate IEP must contain statements concerning a disabled child's level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child's progress." MM, 303 F.3d at 527 (citing 20 U.S.C. § 1414(d)(1)(A)). The IEP is prepared by an IEP team, which includes the child's parents, regular education teacher, special education teacher, a representative of the local educational agency ("LEA"),2 and the child, if appropriate. 20 U.S.C. § 1414(d)(1)(B).3
"Congress incorporated [into the IDEA] an elaborate set of what it labeled 'procedural safeguards' to insure the full participation of the parents and proper resolution of substantive disagreements." School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 368 (1985). Those procedural safeguards permit parents to present complaints regarding the provision of a FAPE. 20 U.S.C. § 1415(b)(6)(A). "Whenever a complaint has been received . . ., the parents . . . shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency [("SEA")] or by the [LEA], as determinedby State law or by the [SEA]." 20 U.S.C. § 1415(f)(1)(A).4 "If the hearing . . . is conducted by the [LEA], any party aggrieved by the finding and decision . . . may appeal . . . to the [SEA]." 20 U.S.C. § 1415(g)(1).
North Carolina has a two-tiered administrative process. See N.C. Gen. Stat. §§ 115C-109.6, 115C-109.9. At the first tier, "any party may file with the Office of Administrative Hearings [('OAH')] a petition to request an impartial hearing with respect to any matter relating to the provision of a [FAPE] of a child[.]" N.C. Gen. Stat. § 115C-109.6(a).5 The OAH then selects an Administrative Law Judge ("ALJ"), N.C. Gen. Stat. § 115B-32(a), who "issue[s] a written decision," N.C. Gen. Stat. § 115C-109.6(f). At the second tier, "[a]ny party aggrieved by the findings and decision of a hearing officer . . . may appeal . . . by filing a written notice of appeal with the person designated by the State Board." N.C. Gen. Stat. § 115C-109.9(a). At that point, "[t]he State Board . . . appoint[s] a Review Officer [('SRO') to] . . . conduct an impartial review of the findings and decision appealed . . . [and] make an independent decision upon completion of the review." N.C. Gen. Stat. § 115C-109.9(a).
Under both federal and North Carolina law, a party dissatisfied with the SRO's decision may file a civil action in state or federal court. See 20 U.S.C. § 1415(i)(2)(A); N.C. Gen. Stat. § 115C-109.9(d). J.P., 516 F.3d at 259. The United States Court of Appeals for the Fourth Circuit has interpreted "Rowley's 'due weight' requirement to mean that the finding of fact made in the state administrative proceedings must 'be considered prima facie correct, akin to the traditional sense of permitting a result to be based on such fact-finding, but not requiring it.'" Id. (citing Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991)).
A LEA must allocate a proportional amount of federal IDEA funds to provide "special education and related services" to children enrolled in private schools, 20 U.S.C. § 1412(a)(10)(A)(i), but need not "pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if [the LEA] made a [FAPE] available . . . ." 20 U.S.C. § 1412(a)(10)(C)(i). However, "[w]hen a state receiving IDEA funding fails to provide a FAPE, the child's parent may remove the child to a private school and then seek tuition reimbursement from the state." A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 320 (4th Cir. 2004) (citing School Comm. ofBurlington, 471 U.S. at 369-70). The IDEA-mandated due process procedures do not apply to complaints that an LEA "failed to meet the requirements [for disabled children unilaterally placed by parents in private school]," 34 C.F.R. § 300.140(a)(1), but instead such complaints "must be filed in accordance with [a separate state complaint process]," 34 C.F.R. § 300.140(c)(1). Conversely, "[d]isagreements . . . regarding the availability of a [FAPE], and the question of financial reimbursement, are subject to the [IDEA-mandated] due process procedures . . . ." 34 C.F.R. § 300.148(b).
The parties agree that, in May and June of 2008, staff of the Orange County Schools (the "School System") observed O.M. while he participated in a playgroup at Pathways Elementary School, a public school in the School System. (Docket Entry 12 at 18, ¶ 4; Docket Entry 13, ¶ 4.)6 The Board alleges that, at an IEP team meeting on July 22, 2008, "[S]chool [S]ystem staff proposed that O.M. receive three hours of special education services per week in the Pathways playgroup, as well as occupational therapy." (Docket Entry 12 at 18, ¶ 6.) According to the Board, "Arran McWhirter . . . and Casey Palmer, [P]laintiffs' private autism consultant, objected to the proposed placement, stating that the playgroup was not the appropriate setting and that three hours per week was not enough."(Id. at 19, ¶ 10.) In the Board's view, the IEP team discussed "other possible options, including the [Parents] securing a placement in a preschool program [and] . . . agreed to reconvene the following week to finalize O.M.'s IEP." (Id. at 19, ¶ 11.)
The Board maintains that, at an IEP team meeting on July 30, 2008, "the [S]chool [S]ystem again offered O.M. placement in the Pathways playgroup for three hours per week" (id. at 19, ¶ 12), but Nicole McWhirter and Palmer "insisted that [O.M.] needed a full-day program" (id. at 20, ¶ 16). Further, according to the Board, "[a]t the conclusion of the meeting, Lisa Combs, the [LEA] representative, discussed with Ms. McWhirter, Ms. Palmer, and Lisa Dankner, a family friend, the provision of the DEC 5 form, or 'Prior Written Notice.'" (Id. at 20, ¶ 18.)7 The Board alleges that, Combs "stated that the DEC 5 would reflect . . . three hours per week of special education in the Pathways playgroup and one hour per week of occupational therapy." (Id. at 4-5, ¶ 21.) In the Board's view, "everyone agreed that the DEC 5 would be provided . . . within 10 days." (Id. at 21, ¶ 22.) Additionally, the Board acknowledges that "Plaintiffs were not provided with a DEC 6, the form on which parents provide written consent for special education services at the meetings in July 2008." (Id. at 21, ¶ 23.)
According to the Board, "Ms. McWhirter emailed Ms. Combs multiple times after the July 30, 2008, IEP meeting and before receiving the DEC 5, asking the [S]chool [S]ystem to describe how the services on O.M.'s IEP would be delivered in a private setting." (Id. at 21-22, ¶ 28.) The Board asserts that "Combs asked the [S]chool [S]ystem's Exceptional Children's program director, Milinda Grenard, for assistance in drafting the DEC 5 . . ., [although she] had not had any contact regarding O.M. with the [S]chool [S]ystem staff that had been participating in...
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