Ruby J. v. Jefferson Cnty. Bd. of Educ.

• Decision Date: 17 August 2015
• Docket Number: Case No.: 2:14–cv–00581–RDP
• Parties: Ruby J., individually and as mother and next friend of L.L., a minor, Plaintiff, v. Jefferson County Board of Education, Defendant.
• Court: U.S. District Court — Northern District of Alabama

122 F.Supp.3d 1288

Ruby J., individually and as mother and next friend of L.L., a minor, Plaintiff,

v.Jefferson County Board of Education, Defendant.

Case No.: 2:14–cv–00581–RDP

United States District Court, N.D. Alabama, Southern Division.

Signed August 17, 2015

Deborah A. Mattison, Rachel L. McGinley, Wiggins Childs Quinn & Pantazis LLC, Birmingham, AL, James Patrick Hackney, Jenny R. Ryan, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, for Plaintiff.

Carl E. Johnson, Jr., Bishop Colvin Johnson & Kent LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION

R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

This case is before the court on two motions: (1) Defendant's Renewed Motion for Judgment on the Record (Doc. 42), filed February 24, 2015; and (2) Plaintiff's Renewed Motion for Judgment on Plaintiffs' IDEA Appeal and Motion for Summary Judgment on Plaintiffs' Rehabilitation Act Claims (Doc. 44), filed February 24, 2015. The parties have fully briefed their Motions (Docs. 43, 45, 49, 50), and the United States intervened in this case pursuant to 28 U.S.C. § 2403(a). (Doc. 46). Plaintiff Ruby J., individually and as mother and next friend to her daughter L.L., a minor, asserts claims against the Jefferson County Board of Education pursuant to section 504 the Rehabilitation Act, 29 U.S.C. § 794, and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff appeals from an administrative due process hearing decision which concluded that Defendant satisfied its obligations under the IDEA. (Doc. 1).

After carefully reviewing the record and considering the arguments made by the parties, and for the reasons stated below, the court concludes that the Hearing Officer's decision on Plaintiff's IDEA claims is due to be affirmed and Defendant is entitled to summary judgment on Plaintiff's section 504 claims.

I. Facts

L.L. is a thirteen-year-old student who has several serious disabilities, including Angelman's Syndrome (a rare genetic disorder), Reactive Airway Disease, a seizure disorder (including febrile, petit mal, and grand mal seizures), and Cystic Cerebromalacia. (R. 25–26, 417–418).¹ Surgeries to reconstruct L.L.'s airway damaged her vocal chords, she uses a wheelchair for mobility, and L.L. has a G-tube through which she receives nutrition. (R 25–26, 417–18). Plaintiff is a single parent and the primary caretaker of L.L. As her mother, Plaintiff is responsible for L.L., including caring for her by administering some of her medications. (R. 2427, 90).

L.L. was expected to experience increased seizure activity as she aged. Therefore, in the summer of 2012, L.L.'s treating physician, Dr. Lauree Jones, prescribed her Diastat to help control her seizure activity.² L.L. needed to have Diastat available while being transported for trips in excess of ten minutes.³ (R. 25–26, 107–08, 507–08). Although Diastat is typically administered by a nurse or other health care provider, Dr. Jan Mathisen, L.L.'s treating neurologist, discussed with Plaintiff how to administer Diastat to L.L. in case of an emergency. (R. 25–26, 98–99). Dr. Mathisen felt that no physical demonstration was necessary; rather, he referred Plaintiff to certain websites for a visual demonstration. (R. 99).

A. Plaintiff's First Enrollment with Defendant

On December 17, 2012, Plaintiff first registered her daughter at the Clay–Chalkville Middle School in the Jefferson County School District. (R. 24–25, 28–29, 503). That is the school for which L.L. was zoned. (Id. ). L.L. transferred to Jefferson County from the Birmingham City System. (R. 221–22).⁴ On December 20, 2012, Defendant held an individual education program ("IEP") meeting for L.L., and with Plaintiff's knowledge and agreement, L.L. was placed at the Burkett Center, a school which exclusively educates children with disabilities. (R. 29, 503). L.L. began attending school on January 3, 2013. (R. 222, 227).

It has never been disputed that, as a child with a qualifying disability, L.L. is entitled to some form of specialized transportation under the IDEA. This was necessary in the event that she experienced a prolonged seizure that would require the administration of Diastat. At the request of the Burkett Center staff, Plaintiff provided Defendant with Dr. Jones's prescription confirming L.L.'s need for specialized transportation. (R. 227–28, 503). Because Defendant indicated that it had no nurse to accompany L.L. on the bus, Plaintiff agreed to transport her daughter to the Burkett School.⁵ The Burkett Center is located in Morris, Alabama, which is about twenty miles from Plaintiff's home. Plaintiff contends that it takes about forty-five minutes to transport L.L. to school one way, even assuming minimal traffic. (R. 40, 397, 40305). Defendant asserts that the trip takes thirty-four minutes. (R. 534).⁶ In any event, Defendant reimbursed Plaintiff on the basis of its standard mileage reimbursement plan (R. 236–37), and Plaintiff received no other compensation. (R. 35–36, 44–45). Plaintiff does not challenge this initial arrangement.

In January 2013, Plaintiff provided the school with a prescription from L.L.'s physician advising that, for bus trips longer than ten minutes, a nurse should be on the bus with L.L. to respond to a seizure. (R. 227, 507). Shortly thereafter, Defendant employed a nurse for that purpose. (R. 249–50). On March 8, 2013, four days after this nurse reported for duty (R. 247–48), L.L. was withdrawn from Jefferson County schools. (R. 272).

B. Plaintiff's Yuba County, California Enrollment

In late February 2013, Plaintiff and her children moved to California to care for Plaintiff's seriously ill mother. On April 8, 2013, a month after Plaintiff's withdrawal from Jefferson County schools, Plaintiff completed enrollment papers for L.L. in California. (R. 272). On June 3, 2013, L.L. began receiving educational services in California. (R. 245, 272–73). The school term ended on June 11, 2013. (R. 272).

On July 1, 2013, the Yuba County School District held an IEP meeting for L.L., and developed an IEP that acknowledged L.L.'s need for specialized transportation. (R. 465). L.L.'s transportation needs were addressed as follows:

In her prior IEP, transportation was provided by the parent with in lieu reimbursement. The IEP indicated the parent had a note from [L.L.'s] physician stating a nurse was needed for transportation on the bus that was more than ten minutes long. [Plaintiff] is in the process of establishing doctors in this area and will provide a note us when given by the Doctor....

The offer of FAPE for [L.L.] is continued placement in the YCOE SDC Developmental Center with Specialized Academic Instruction for 325 min/day for 5x/week; Specialized Nursing Services 325 min/day for 5x/week; Specialized transportation provided for PLUSD by MJUSD once doctors note is provided regarding nurse required on bus (parent will continue to transport at this time); ESY services as listed; Supplemental Aides and Services as listed.

(R. 480) (emphasis supplied). Yuba County agreed to provide a nurse on L.L.'s bus once it received the appropriate documentation from L.L.'s doctor; however, in the interim, L.L.'s IEP clearly reflects that Plaintiff agreed to transport L.L. to and from school for reimbursement. (R. 300, 475, 480).

C. Plaintiff's Second Enrollment with Jefferson County

On August 10, 2013, shortly before the start of the 2013–14 school year, L.L.'s family moved back to Alabama prior to the beginning of the 2013–14 school year, and returned to the same home they previously occupied in the Clay–Chalkville school zone. (R. 113–16). The heart of this dispute is the nearly two months after that (between August 27, 2013, and October 24, 2013), during which Plaintiff was responsible for her daughter's transportation. (R. 43–45, 39192).

Plaintiff claims she was initially unsuccessful in contacting the school's administration to set up L.L.'s program for the next school year. (R. 28–31, 116–17). Plaintiff alleges that she attempted to contact Defendant "prior to school starting" on August 19, and again on August 21 and 22. (R. 116:6–11). Plaintiff also asserts she contacted the Exceptional Education Department several times, but was only given Special Education Director Susan Wirt's voicemail. (R. 116).

Nevertheless, on August 23, 2013, Defendant directed Plaintiff to enroll L.L. directly at the Burkett Center. (R. 29–32, 37–38, 117–19, 268–70, 391). Defendant contends that Plaintiff was allowed to enroll L.L. directly to simplify and facilitate delivery of special education services. (R. 31–32, 267–269, 454, 437).⁷ When Defendant told Plaintiff to place her daughter at the Burkett Center it did not yet have L.L.'s IEP from Yuba County (the "Yuba County IEP"), which was dated July 1, 2013. Plaintiff told Dan Roth, the Burkett Center's principal, that she was no longer able to transport L.L. to the Burkett Center. (R. 119–21). She asked that Defendant to transport her daughter. (R. 119–21). Roth told Plaintiff that, because Defendant didn't have the necessary transportation set up yet, Plaintiff would have to temporarily transport her daughter to school. (R. 122, 249–51, 256–59). Because L.L. was deemed an out-of-state transfer, Defendant believed it was not required to immediately hold an IEP meeting to address Plaintiff's inability to continue transporting her daughter. (R. 85, 207–08, 267–68, 270, 279). Roth told Plaintiff that her request for bus transportation with medical support would be considered at a board meeting on September 24, 2013.⁸ (R. 122).

Accordingly, Plaintiff began transporting L.L. (R. 40–42, 89–90).

Plaintiff's first day of school at the Burkett Center was August 27, 2013. (See R. 549). Each day Plaintiff waited until her younger children boarded their bus before taking L.L. to school, and she picked L.L. up early from the Burkett Center to make sure that she could arrive back in time for her younger children's return home. (R. 39–41, 89–90). This routine...