Stanley v. M.S.D. of S.W. Allen County Schools

Decision Date29 December 2008
Docket NumberCause No. 1:07-CV-169-PRC.
Citation628 F.Supp.2d 902
PartiesSTANLEY and Connie C., Individually and as Next Friends of M.C., a minor, Plaintiffs, v. M.S.D. OF SOUTHWEST ALLEN COUNTY SCHOOLS and Green-West Allen Special Education Cooperative, Defendants.
CourtU.S. District Court — Northern District of Indiana

Courtney N. Stillman, Matthew D. Cohen, Monahan & Cohen, Chicago, IL, John C. Theisen, Theisen Bowers & Associates LLC, Fort Wayne, IN, for Plaintiffs.

Jason T. Clagg, William T. Hopkins, Jr., Barnes & Thornburg LLP, Fort Wayne, IN, for Defendants.


PAUL R. CHERRY, United States Magistrate Judge.

This matter is before the Court on (1) Plaintiffs' Motion for Summary Judgment [DE 114], filed on May 15, 2008, by Plaintiffs Stanley and Connie C., Individually and as Next Friends of M.C., a minor (collectively "the Parents"); and (2) Defendants' Motion for Summary Judgment [DE 117], filed on May 15, 2008, by Defendants MSD of Southwest Allen County Schools and Smith-Green West Allen Special Education Cooperative (collectively "SACS" or "the School"). The Parents have brought this action under the Individuals with Disabilities Education Act ("IDEA"), appealing the outcome of the administrative due process hearing that addressed the provision of special education to their daughter M.C. during the 2004-05 and 2005-06 school years, which was largely favorable to SACS. As set forth in this Order, the Court denies the Parents' Motion for Summary Judgment, denies in part as moot SACS' Motion for Summary Judgment as to attorney fees, and grants the remainder of SACS' Motion for Summary Judgment.


The Court summarizes the factual underpinnings of this dispute, incorporating additional details as relevant in the course of the opinion.1

A. The Student—M.C.

M.C. is the fifteen-year-old, adopted daughter of Stanley and Connie C. Her mother describes her as a beautiful girl with a good sense of humor. She has typical adolescent interests such as popular music and fashion, and she loves to dance. Despite her challenges, M.C. has learned how to manipulate a music iPod and cellular telephone adeptly.

M.C. has multiple disabilities resulting from a stroke she suffered at the age of three months. She has speech disorders of dysarthria (weakness of the muscles) and apraxia (difficulty in motor planning). These disorders make oral movements and swallowing difficult and result in drooling and reduced speech intelligibility. M.C. is also diagnosed with cerebral palsy that affects her left-side movement and visual field and that impairs the use of her left arm. In addition, M.C. has visual motor and visual information processing delays that impact her academic performance. These vision problems result in a short visual attention span, visual confusion, visual fatigue, and interference with reading comprehension.

M.C. reads books at a third to fifth grade level, counts money to purchase items, and uses a calculator. She tells time to the half hour and can compose a paragraph. She uses compensatory strategies, such as using her auditory skills to rehearse and keep in memory information she is recording on paper.

M.C. is eligible for special education as a student with a communication disorder, a visual impairment, and a mental impairment. According to Jennifer Barnes, the school psychologist ("School Psychologist") in July 2005, M.C.'s academic profile was commensurate with her cognitive profile in that her reading and writing were better developed and consistent with borderline disability while her math concepts and written computation were reflective of a moderate disability. The School Psychologist also noted that M.C. showed strength in her ability to process and reason with words; in contrast, visual, nonverbal reasoning skills ranged from below the average to the moderate disability range. In testing completed in summer 2006 by Dr. Fisher, a neuropsychologist hired by the Parents, M.C. scored in the average range on a variety of tests, including, but not limited to, auditory processing, phonemic awareness, listening comprehension, and reading vocabulary. SACS' expert, Dr. Couvillion, testified that these tests were scored accurately.

M.C.'s father testified at the administrative hearing that M.C. is sociable and wants friendships but does not have friends due to her drooling and language issues. M.C. reports that a bad thing in her life is that "[n]o boy likes me." AR 2442. Although M.C. is interested in social activities, she is never invited to a peer's house, a sleep over, movies, or parties. M.C.'s mother said that people are repelled when M.C. hugs them and gets them wet with her drool. M.C.'s drooling falls on her papers, homework, and reading materials, and her drooling makes other students avoid her. Prior to the years at issue, when M.C. was in fifth grade, the elementary school would not allow M.C. to eat in the school cafeteria because of her drooling.

The Parents' experts opined that M.C. requires intensive academic programming to learn and that when M.C. does not receive intensive therapy and direct instruction, she is at risk for regression in previously learned skills and functions. Frequent drill and practice of new skills and previously mastered concepts allows M.C. to build her repertoire of academic skills. In the summer of 2005, one of her teachers at SACS indicated that M.C. needs concepts broken into small pieces to understand academic material, and teachers described her use of and need for one-on-one help to complete assignments, communicate, and relay her knowledge. Dr. Fisher testified at the hearing that, when teaching M.C., concepts need to be broken into small components and each small component must be repeated until mastered. Dr. Fisher testified that small group learning is not effective for M.C. and that M.C. can only learn with one-on-one instruction.

B. The Experts

The Parents hired two expert witnesses—Dr. Fisher and Dr. Savage, and relied on a letter submitted by Michael Smith, M.D., who has been M.C.'s neurologist since 1996.

Barbara Fisher, Ph.D., a pediatric neuropsychologist, did a neuropsychological evaluation of M.C. in May and July 2006 at the Parents' expense and spent six days with M.C., testing and observing her. Ronald Savage, Ed.D, is a certified brain injury specialist through the Brain Injury Association of America, is the editor of the Brain Injury Professional Journal, has consulted with institutions specializing in brain injury, such as Bancroft Neurohealth in New Jersey, has chaired the National Task Force on Children and Adolescents with Brain Injury, and consults with George Washington University's brain injury program. He has worked with thousands of brain injured students for over thirty years and published a study of 36,000 brain injured children on which he based his recommendations for M.C. Dr. Savage not only reviewed all of M.C.'s medical and educational records, but he also spent a full day with M.C. and met with the director of the Fort Wayne Center for Learning ("FWCL"), the director of rehabilitation services at Lutheran Hospital, and Dr. Fisher.

SACS also hired two expert witnesses— Dr. Stauffer and Dr. Couvillion. Amy Stauffer, M.D., a pediatric neurologist, submitted a one-page report in the form of a letter dated November 17, 2006, but was not called to testify. Steven Couvillion, Ph.D., a pediatric neuropsychologist, was hired to review documents, write a report, and testify on behalf of SACS. As for Dr. Couvillion's expertise in brain injury, his curriculum vitae lists a presentation on head injury in 1999 for the Brain Injury Association of Indiana and indicates that he was a board member of that same organization beginning in 2004 for an unidentified period of time. He testified that in his current group practice, he conducts evaluations, works with families of children with a variety of conditions, including brain injury, and consults with the acute brain injury rehab unit at Methodist Hospital. He is certified by the American Board of Pediatric Neuropsychology. Dr. Couvillion never saw M.C., and he did not talk with M.C.'s parents, private providers, or anyone at FWCL. He reviewed records and talked to the School Psychologist and to an unidentified teacher for one hour.2

C. Fort Wayne Center for Learning

During the relevant time period, the 2004-05 and 2005-06 school years, M.C. was educated, in part, at FWCL, a not-for-profit center located in Fort Wayne, Indiana, that provides specialized remedial instruction and developmental and remedial intensive therapy for children with disabilities as well as general education and gifted students who are struggling at school. The instructional methodology at FWCL is multi-sensory, explicit, and adapted for each student, and instructors present concepts and information in an organized, structured, and systematic manner. The overall approach to teaching takes into account a student's sensory processing, language processing, and cognitive processing.

Olive Swenson, the Director of FWCL, previously worked for Lindamood-Bell for over ten years, has traveled around the country and to Australia training others in the Lindamood-Bell programs, and has operated two facilities for teaching students with academic difficulties. Prior to coming to FWCL, she was the director of Integrated Learning Systems ("ILS"), a private center in Indianapolis. Lindamood-Bell is a research-based developmental and remedial reading instruction program that focuses on phonemic awareness, decoding, fluency, vocabulary, and comprehension. A visualizing-verbalizing technique is used in teaching comprehension. LiPS, another Lindamood-Bell program, focuses on phonemic awareness. M.C.'s mother testified that LiPS was recognized by the National Institute of Health and Child Development in 2000 as a crucial component of reading...

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