Renner v. Bd. of Edu. of Public Schools

• Decision Date: 11 March 1999
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFFS-APPELLANTS,No. 98-1162,98-1162
• Citation: 185 F.3d 635
• Parties: (6th Cir. 1999) BRIAN RENNER, KIM RENNER, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF MARTIN RENNER,, v. BOARD OF EDUCATION OF THE PUBLIC SCHOOLS OF THE CITY OF ANN ARBOR, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 635

185 F.3d 635 (6th Cir. 1999)

BRIAN RENNER, KIM RENNER, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF MARTIN RENNER, PLAINTIFFS-APPELLANTS, v. BOARD OF EDUCATION OF THE PUBLIC SCHOOLS OF THE CITY OF ANN ARBOR, DEFENDANT-APPELLEE.

No. 98-1162

U.S. Court of Appeals, Sixth Circuit

Argued: March 11, 1999

Decided: July 26, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. No. 96-60284--Barbara K. Hackett, District Judge. [Copyrighted Material Omitted] Richard J. Landau (argued and briefed), Dykema Gossett, Ann Arbor, Michigan, for Plaintiffs-Appellants.

Charles A. Duerr, Jr. (argued and briefed), Miller, Canfield, Paddock & Stone, Ann Arbor, Michigan, for Defendant-Appellee.

Before: Wellford, Suhrheinrich, and Moore, Circuit Judges.

Harry W. Wellford, Circuit Judge.

Plaintiffs, Brian and Kim Renner, suing on behalf of their son, Martin ("Marty"), challenge the grant of summary judgment by the district court in favor of the defendant, Board of Education of the Public Schools of the City of Ann Arbor ("AAPS").¹ They contend that the individualized educational plan ("IEP") adopted by AAPS to deal with the special problems of young Marty, an autistic child who was born in late 1991, was inadequate. For the following reasons, we AFFIRM the district court.

I.

A. FACTS

According to plaintiffs, Marty exhibited "signs of a disability" at a very early age prior to their moving to Ann Arbor in late 1993. When contacted by plaintiffs seeking assistance for Marty, the AAPS, in February 1994, determined early eligibility and placed him in a preprimary impaired program ("PPI"). Defendant afforded speech therapy in a group format at school and visited the Renner home regularly to help develop language and interaction skills. Plaintiffs were not satisfied with these efforts, and thus, a Multidisciplinary Evaluation Team ("MET")² tested Marty, finding, among other things, deficits in social interaction and communication skills. Plaintiffs at first refused to accept the findings indicating autism and wanted Marty retained in the PPI program. Following a conference between the parties in May 1994, AAPS devised a PPI program which would require schooling three hours a day for four days a week. The IEP which was developed also called for weekly sessions of speech and therapy. After some months, plaintiffs claimed no observable progress in their two-year old son's situation, and they conceded Marty's autism.

In 1994, plaintiffs sought another opinion about early education; they consulted Dr. Luke Tsai, a child psychiatrist at the University of Michigan. Dr. Tsai confirmed the autism evaluation. AAPS convened another MET in early 1995 at plaintiffs' request. Before the subsequent Individualized Educational Planning Committee ("IEPC")³ meeting to consider another IEP, plaintiffs sought out the services of Dr. Patricia Meinhold, a behavioral psychologist and assistant professor at Western Michigan University who was a dedicated follower of a methodology in treating autistic children initiated by Dr. Ivan Lovaas⁴. The emphasis in the Lovaas approach recommended by Dr. Meinhold was extensive home treatment with parental involvement.

When Marty reached three, plaintiffs began to interview potential home tutors, and, by February 1995, "they advised the District AAPS of their intent to begin a trial of home-based DTT." Plaintiffs' Brief at 6. Consistent with that interest, plaintiffs asked for a "one-on-one aide" for twelve weeks to encourage Marty to participate in PPI activities at the school. AAPS provided such an aide, but plaintiffs found her unsatisfactory. On their own, plaintiffs instituted a Lovaas-type DTT program in their home in March 1995. By the end of the school year, plaintiffs had increased the hours of the DTT program in their home from ten hours to about twenty-five hours a week.

In April 1995, plaintiffs met with Dr. Meinhold, who looked at videotapes of Marty's home activities and observed him with the home tutor selected by plaintiffs. Plaintiffs believed that in the home tutoring program their son was making progress and followed Dr. Meinhold's recommendation to "increase the intensity" of Marty's home-based DTT program to as much as thirty-five hours a week. During this time, spring and summer of 1995, plaintiffs' son was absent from AAPS activities and sessions at school as had been planned by them.

AAPS placed Marty in a new program in September 1995 for four hours a day, five days a week, which included some DTT direction. AAPS presented the new IEP to the Renners for approval, and Mrs. Renner signed this plan⁵. When Marty resumed schooling in accordance with the IEP, the hours of one-on-one home DTT were reduced accordingly. Dr. Meinhold observed at the end of September that Marty was making progress, but plaintiffs claim that defendant's new requirements brought about behavior deterioration in Marty. Soon thereafter, plaintiffs presented to defendant a list of their "concerns" about Marty's development, claiming, among other things, that Marty was not receiving one-on-one school DTT but rather, the school provided only a one-teacher-to-two-students basis of instruction. Defendant arranged a conference promptly, but there was disagreement as to the number of DTT hours demanded with one-on-one instruction, and an asserted lack of coordination between the school and home programs⁶.

This September 1995 IEP, which was the subject of the first serious dispute between the parties, had several provisions. First, it provided for a new class for students, such as Marty, who lacked rudimentary communication skills. Second, it provided for increased classroom instruction, generally a ratio of seven students to one teacher and four aides. In addition, two days a weeks, there was to be a speech and language teacher, and once a week, a special therapist. Other child specialists, including a nurse, were also available. DTT was incorporated into part of each day. Marty's former teacher, Linda Singer, was to continue in charge of Marty under the 1995 IEP. AAPS sent Singer and another teacher to the Renner home, and Mrs. Renner visited the AAPS facility to meet with one of Marty's tutors to demonstrate the home training given Marty. AAPS agreed that the September 1995 IEP was limited to a one-month trial period with a possible revision thereafter.

Another conference on the school IEP was arranged in December 1995, but no agreement was reached. Plaintiffs thereafter requested a "due process" hearing, pursuant to the provisions of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400 et seq., and withdrew Marty from the school program. The Renners then proceeded to increase their home-based DTT program⁷. AAPS maintains that the proposed December 1995 IEP came about after its offer to reimburse plaintiffs for one and a half hours of daily home DTT. The parties disagree as to whether this offer would replace schooltime DTT. There were discussions about the frequency of submission of trial data to the plaintiffs and the frequency of home visits by school personnel, as well as parent observation periods at school⁸.

Plaintiffs also requested that defendant pay Dr. Meinhold for an independent evaluation, which was completed in March 1996 after several observations⁹. Dr. Meinhold rendered her opinion that the December IEP was inadequate and inappropriate; her suggested program mandated:

"(1) forty hours of DTT a week, divided between the home and school environments; (2) an extended school year; (3) weekly team meetings between the school, the parents and the tutors; (4) staff training and supervision by a consultant with experience in implementing DTT with young autistic children; (5) recorded trial-by-trial data on Marty's responses to DTT; and (6) appropriate opportunities for interaction with non-handicapped peers."

Plaintiffs' Brief at 9.

The record ultimately supports the magistrate Judge's finding that the "main sticking point remained the intensity of the DTT that Marty would receive" during the 1995 fall meetings between the parties. Dr. Meinhold recommended in March 1996:

"The 'Lovaas-style' package of discrete trial-based programs is the only available intervention for young children with Autism and related disorders which has been subjected to an empirical outcome study (Lovaas, 1987) with strong positive findings. This package of intensive one-on-one discrete trial programming, systematic selection of key skills, generalization of skills in structured play and home situations, etc. is well-suited to Marty's current developmental, behavioral and educational needs. A standard administration of this program requires between 30 and 40 hours per week of therapy (the current preference in the field is for 40) conducted in the child's home followed by gradual introduction of the child into a 'regular' preschool setting with the support of a behaviorally trained aide."

JA at 389.

B. PROCEDURAL HISTORY

The due process hearing requested by the plaintiffs then went forward. The parties chose a lawyer, Lynwood Beekman, as the local hearing officer ("LHO") in connection with the Renners' appeal. Beekman's lengthy opinion, issued on June 20, 1996, was favorable to plaintiffs. The LHO found the IEP to be flawed and ordered one-on-one DTT sessions over an extended school year, together with substantial reimbursement to plaintiffs for home program costs and for costs of Dr. Meinhold, and he concluded that he could retain jurisdiction. Defendant appealed this decision under applicable state procedure¹⁰ to the Michigan Department of Education, which appointed William Sosnowsky as the State Hearing Review Officer ("SHRO") for the appeal. Dr. Sosnowsky reversed the LHO on September 14, 1996, concluding that the defendant IEP was adequate and valid. Significantly, he found that the burden of proof belonged to the plaintiffs rather than the defendant,...