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Denny v. Bertha-Hewit Public Schools

United States District Court, D. Minnesota

September 29, 2017

Julie Denny, individually and on behalf of H.A.B., Plaintiffs,
Bertha-Hewit Public Schools, Independent School District No. 786, Defendant.

          Margaret O'Sullivan Kane, Esq., Kane Education Law, LLC, and William A. Sand, Esq., Sand Law, LLC, counsel for Plaintiffs.

          Jeanette M. Bazis, Esq., Jenny Gassman-Pines, Esq., and Anna Tobin, Esq., Greene Espel PLLP, counsel for Defendant.




         This matter is before the Court on Plaintiffs' Motion for Judgment on the Supplemented Administrative Record and Motion to Supplement the Administrative Record. (Doc. Nos. 33, 36.) In the Second Amended Complaint, (Doc. No. 5), Plaintiffs seek reversal or remand of a decision issued by an Administrative Law Judge (“ALJ”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. For the reasons set forth below, Plaintiffs' Motion to Supplement the Administrative Record is denied, and Plaintiffs' Motion for Judgment on the Supplemented Administrative Record is denied.


         I. General Background

         The Student is an eleven-year-old individual with Down Syndrome. (D. Ex. 13 at 0054-55.)[1] The Parent describes her as “a fun, bubbly little girl” and “a social butterfly.” (Tr. at 390-91.) The Student displays “delays in gross and fine motor coordination, memory recall and other cognitive functions, developmentally appropriate interpersonal interactions, and communication skills compared to her same-age peers.” (S. Ex. 23 at 266.) Her vocabulary is approximately that of a three- or four-year-old. (Tr. at 640.) The Student receives special education services “under the Developmental Cognitive Disability category.” (Id. at 0054.) She began receiving special education in August 2006. (Id.) The Parent testified that the Student has had numerous friends at the school for years. (Tr. at 381-82.)

         A. The Student's Kindergarten Through Third Grade Years

         The Student attended Bertha-Hewit Elementary School in the District from kindergarten through fourth-grade. In Kindergarten, a staff person sprayed the Student in the face with water as a form of behavioral intervention. (S. Ex. 56 at 425.) A note in the Student's medical file relating to this incident indicates that “[the Parent] has considered pulling her daughter out of the school district . . . but is hoping things will work out to keep her here in Bertha.” (S. Ex. 68 at 744.) An “Assistive Technology Consideration” report from 2012, the Student's kindergarten year, indicates that “[the Student] exhibits inappropriate behaviors such as hitting, kicking, spitting and telling an adult to ‘shut-up' or ‘no.'” (S. Ex. 2.)

         Progress Reports from the Student's first- and second-grades show the Student making “Adequate Progress” in multiple goal areas. (S. Ex. 1; S. Ex. 5; S. Ex. 13.) The paraprofessional who worked with the Student during first and second grade testified that she observed the student “swearing, spitting, kicking, [and] hitting.” (Tr. at 227.) The Student was not restrained or sent home these years. (Id. at 229.) The paraprofessional reported that the Student “mainstreamed for maybe 45 minutes in the morning, [and] the rest of the day was one-on-one.” (Id. at 236.)

         A February 20, 2013 individualized education program (“IEP”) amended on November 7, 2013-the Student's first-grade year-notes: “In the mainstream, [the Student] exhibits some undesirable behaviors that can be disruptive and sometimes harmful to her peers and adults. A majority of [the Student's] programming will be done in the Resource Room until [the Student] can learn to function successfully in the mainstream.” (S. Ex. 4 at 27.) Similarly, it states that “[s]he has a very short attention span so only lasts so long in the mainstream for large group before she starts making noises or moving around the room. At that point, she comes to the Resource Room for lessons at her pre academic level.” (Id. at 30.) The IEP notes that “behavior charts” would be utilized to track the Student's progress. (Id.) In the description of paraprofessional support needs, this IEP states that “[the Student] shows physical aggression towards self or others.” (Id. at 31.) The “Least Restrictive Environment (LRE) Explanation” for this IEP states that “[the Student] will be removed from the mainstream during academic times, where the expectations are too high for her and her growling disrupts her peers and teacher.” (Id. at 32.) The IEP describes the modifications and supports to be used in response to the Student's disruptive behaviors. (Id. at 33.) The Parent testified that the Student was reportedly swearing and touching herself on occasion in first grade. (Tr. at 476.)

         The Student's IEP dated February 12, 2014-the Student's second-grade year- reiterates the prior statements regarding the Student's behaviors in the mainstream that she reportedly “can be disruptive and sometimes harmful to her peers and adults.” (S. Ex. 11 at 58.) In addition, the IEP states that “[s]he generally can be with her peers without pulling hair, hitting, or kicking. On occasion, those behaviors crop up. [The Student's] most recent behaviors include spitting, growling, and saying ‘no' to verbal requests and to her visual schedule.” (Id. at 61.) Once again, the IEP notes that behavior charts would be kept to monitor progress and identifies a benchmark goal that “[the Student] will make it through her day with two or less ‘Needs Improvement' notations on her behavior chart per day for 7 out of 10 days.” (Id. at 62.) This IEP also contained the language referring to “[the Student] show[ing] physical aggression towards self or others.” (Id. at 63.) The “Least Restrictive Environment (LRE) Explanation” for this IEP states that “[the Student] will be removed from the mainstream during academic times, where the expectations are too high for her and she disrupts the learning of her peers.” (Id. at 64.) The modifications referenced in this IEP include redirection and removal to a different setting “[w]hen [the Student] exhibits undesirable behaviors.” (Id. at 65.)

         Also in the Student's second-grade year, the Eagle Bend Police Department documented a report of suspected child abuse and neglect involving the Student. (S. Ex. 53.) According to this report, a paraprofessional involved with the Student had slapped the Student, tapped her on the mouth, squeezed her head firmly, pulled her around by her ponytail or hood, and “pinned [her] to the wall.” (Id. at 407-09.) In May 2014, the Todd County Attorney's Office filed a criminal complaint against the paraprofessional for the reported maltreatment of the Student. (S. Ex. 54.)

         The Student's third-grade year was successful with limited behavioral difficulties, and the Student was “[m]aking progress.” (Tr. at 94, 182-83, 248, 267, 387.) The District's superintendent, Eric Koep (“Koep”), explained that there were “occasional behavior issues, but not to the extreme that started in September [of the Student's fourth-grade year].” (Id. at 56-58, 94.) The Student's mainstream teacher, Mark Frethem (“Frethem”) similarly testified that the Student did not exhibit significant behavioral difficulties in the mainstream classroom during third grade. (Id. at 241-49.) He explained that “when the disruptive behavior began, they left the classroom.” (Id. at 246.) Frethem testified that he did not witness the Student engaging in behavior that created a danger to herself or others. (Id. at 245.) He stated, “I believe she was able to participate somewhat degree [sic] in the classroom to keep her with her classmates a little bit.” (Id. at 246.) Finally, the Parent agreed that third grade had been “awesome” and that the Student had progressed that year. (Id. at 387.) She testified that there were no similar behavioral challenges as those that later took place in the fourth grade. (Id. at 388.)

         The Student's February 19, 2015 IEP, agreed upon by the Parent on March 6, 2015-the Student's third-grade year-noted that “[i]n the mainstream, [the Student] exhibits some undesirable behaviors that can be disruptive and sometimes aggressive toward adults.” (D. Ex. 5 at 0030.) The IEP explained that “[s]he has shown significantly less negative/aggressive behaviors with peers” and that aggressive behaviors towards staff were less common “in the morning structured setting.” (Id.) The IEP indicated that the District would utilize “behavior charts” to measure progress on one of the Student's IEP goals. (Id. at 0034.) The IEP described the Student's needs for paraprofessional support in the regular education setting, special education setting, and on the school bus. (Id. at 0035.) This portion of the IEP noted the Student's “physical aggression towards others, ” “socially inappropriate behavior, ” and “unsafe behaviors while on the bus.” (Id.)

         The “Modifications” section of the February 19, 2015 IEP similarly noted that “[the Student] needs observation and redirection of behavior as she shows physical aggression towards others at times and increased vulnerability due to cognitive deficits or socially inappropriate behavior.” (Id. at 0037.) The IEP provided that “[the Student] will be removed from the classroom to quiet setting [sic] if she is disrupting the learning of her fellow students” and that she would be “removed from the problematic setting to another setting” if “exhibit[ing] undesirable behaviors.” (Id.) Another modification noted that a paraprofessional would accompany the Student in the school van “to insure that [the Student] stays in her seat and does not harm herself or other students in the van.” (Id.) Amanda Mozis (“Mozis”), the student's special education teacher, explained that this IEP was intended to be effective from February of the Student's third-grade year through February of her fourth-grade year. (Tr. at 545, 548, 603-04.) The Parent agreed that “at the start of [the Student's] fourth grade . . . this particular IEP was appropriate for [the Student].” (Id. at 506.)

         B. The Student's Fourth-Grade Year

         1. Increasing Behaviors

         According to Mozis, the Student began to display increased problematic behaviors between her third- and fourth-grade years. (Tr. at 545-48, 550-51.) Such behaviors included “running from the designated area, ” “some physical aggression and a little bit of the verbal aggression.” (Id. at 551.) Mozis did not have documentation of such behaviors occurring in the summer. (Id. at 578.) These behaviors reportedly continued in the Student's fourth grade along with near-daily swearing, hitting, inappropriate touching of herself, and touching “with a sexual nature.” (Id. at 552-53.) Shari Moller (“Moller”), the Student's fourth-grade speech teacher at school, testified that she witnessed similar behaviors such as “[s]wearing, hitting, throwing or destruction of property.” (Id. at 636, 638, 702-03.)

         Mozis described the Student's fourth-grade year as “rough from the get-go.” (Id. at 554.) This was consistent with Moller's explanation that “when I started out this year from the first day there were behaviors.” (Id. at 703.) Mozis explained that “[w]ithin eight school days or our third week of school we had seen enough behaviors to be concerned and want to begin charting to see if we could find a pattern with the people or the time of day or the activity to try and get a handle on the behaviors that we were seeing.” (Id. at 554.) She met with a team that included the school psychologist to discuss these concerns and developed a chart to document the Student's behaviors. (Id. at 554-57.) According to Mozis:

. . . [I]t was a very big concern for us that we were seeing as much swearing and as much physical aggression, that . . . we did not feel it was appropriate.
And I wanted to get a handle on this because it's not allowing her the best education when we've got things that are blocking it and we can't figure out why.

(Id. at 556.) Heidi Bucher (“Bucher”), the District's school psychologist, testified that she talked with Mozis and two other individuals on September 3, 2015 “regarding [the Student's] behaviors and some strategies that we might use to address those.” (Id. at 711, 716-17.) She explained that this discussion resulted in the decision to develop a behavior chart and begin tracking the Student's behaviors. (Id. at 717-18.)

         2. September 15, 2015 Restraint Incidents

         On September 15, 2015, the Student was placed in a restrictive hold in response to a reported emergency situation after she hit a teacher. (S. Ex. 29; see also S. Ex. 56 at 445-46.) The Critical Incident Data Sheet relating to this incident also reports that the Student “threw objects in the room, swore, [and] kicked the desk.” (S. Ex. 29.) The incident is reported to have taken place from 9:55 to 10:30 in the sensory room. (Id.) The same day, another restrictive procedure was utilized after the Student reportedly “was throwing objects, swearing, hitting, spitting, [and] kicking.” (S. Ex. 30; see also S. Ex. 56 at 445-46.) This incident took place in the hallway and sensory room from 11:15 to 12:00. (S. Ex. 30.)

         Moller explained the circumstances leading up to the first restrictive hold on September 15, 2015. (Tr. at 705-07.) The Student was listening to music on a device, and Moller indicated that her time was finished and speech class was done. (Id. at 705.)

         Moller explained, “I signed all done again and she swore and I said stop, hold on. And she threw the device and started to hit.” (Id. at 705-06.) The Student hit both Moller and the paraprofessional who was with the Student, Mary Denny. (Id. at 706.) Moller called Merchant and left the room to attempt to let the Student calm down. (Id. at 706-07.) She was not present when the restraints were imposed on the Student in the classroom. (Id. at 707.) Merchant testified regarding the restraint:

I was called down to the sensory room because [the Student] was hitting, spitting, kicking, and throwing things at the two - at the teacher and para who were in the room. So, I was called down to assist.
And at the time they were unable to calm her and redirect her. And so, she continued to throw things and hit and kick and spit and was - got to a point of being concerned for [the Student's] safety and getting hurt because there were numerous objects in the room.
And a restraint was put on [the Student] so Mary [Denny] could assist in getting the room cleared out of any other objects and items that [the Student] might hurt herself or others with.

(Id. at 318.)

         Mozis also testified regarding what took place on September 15, 2015. (Id. at 560-68.) She was not involved in the first hold or the incidents leading up to it. (S. Ex. 29 at 341.) Mozis had been working with the Student when she “became noncompliant” and “went underneath the table.” (Tr. at 560.) Mozis attempted to redirect the Student, and the Student appeared willing to comply with another task. (Id. at 560-61.) However, Mozis explained, she then “began . . . clearing and pushing everything off of the table.” (Id. at 561.) Mozis recalled, “it very quickly went from a compliant situation where she was agreeing with the choices she was given to a situation where she was no longer compliant and was becoming physically aggressive.” (Id. at 561.) The Student then tried to pick up a large piece of office equipment, and Mozis sought additional staff help because, in her words, “this was going south very fast and being concerned that she was putting herself in physical harm right there, physical danger. That's what led up to being escorted out of the room.” (Id. at 561.) Merchant then arrived and helped Mozis escort the Student from the room. (Id. at 561-62.)

         Merchant testified that “when we were leaving the resource room [the Student] indicated to us, and she was very calm and mild about it, that she wanted to walk to the sensory room.” (Id. at 365.) However, the Student then “became very hostile” and “[they] were concerned about her safety and her running, ” so she and Mozis then escorted the student down the hall with her hands over her chest in a “CPI hold we were taught.” (Id. at 325-26, 363-64.) The Student then got onto the floor and a restraint was imposed to hold the Student. (Id. at 364.) Mozis explained that she used “[v]ery, very little” force when holding down the Student in the hallway and attempted to verbally calm the Student. (Id. at 563-64.)

         A video recording documents what took place in the hallway. (S. Ex. 31.) The video shows that Mozis and Merchant escorted the Student in the hallway with her arms crossed over her chest for a few seconds before the Student dropped to the floor. (Id. at 11:29:06-11:29:13; Tr. at 80-82.) Mozis and Merchant then held the Student's arms while she was lying on the floor, and Merchant moved to hold down the Student's legs after she appeared to raise her leg or kick. (S. Ex. 31 at 11:29:13-11:29:33.) The restraint of the Student's legs lasted approximately two minutes. (Id. at 11:29:33-11:31:20.) The restraint of the Student's arms lasted approximately three minutes. (Id. at 11:29:13-11:32:01.) After the staff both stopped restraining the Student, the Student continued to lie on the ground for approximately fifteen minutes before sitting up on her own. (Id. at 11:32:01-11:47:15.) While the Student was on the floor in the middle of the hallway, numerous students and staff walked past her. (See, e.g., id. at 11:33:10.) After sitting up, the Student moved over to sit by her paraprofessional, Connie Leyh (“Leyh”), who had arrived on the scene and was standing against the wall. (Id. at 11:48:00; Tr. at 347-50.) After about three minutes, the Student stood up and walked down the hallway with Leyh, Mozis, and Merchant, reaching out to hold Mozis by the hand. (S. Ex. 31 at 11:51:05-11:51:19.)

         Merchant testified that she believed that the situation was an emergency when the restraint in the hallway was applied. (Tr. at 333.) Mozis also believed the restraint incident was an emergency. (Id. at 565.) As she explained, “moments before what's seen on video was she was grabbing that paper shredder . . . which really scared me. I mean, I truly thought she was in danger of hurting herself, as it's a very large, heavy machine.” (Id. at 564; see also Id. at 606.)

         After the restraint, the Student continued to lie on the floor without being held. (Id. at 336.) Merchant explained that the staff were “waiting for [the Student] to go on her own accord” because she believed she was not supposed to “pick [students] up and move them.” (Id. at 338-39.) She explained that this response was consistent with how she had been trained to deal with such situations: “You are to let a student on their terms let you know when they are calm and they are ready and they are ready to move on.” (Id. at 357.) Mozis explained, “to avoid ramping her up, we were using a technique of ignoring, purposeful ignoring, so that it wasn't giving her more attention to feed into her, but to allow her to unwind in that situation on her own.” (Id. at 566.)

         The school's special education director testified that “[t]he restraint [imposed in the hallway] [was] not one that is taught by CPI.” (Id. at 250, 271.) Mozis also testified to this fact. (Id. at 565-66.) Mozis had not obtained CPI training until October 2015, after the September 15, 2015 incident. (Id. at 546.) Moller also testified that she was not up-to-date on her CPI training at the time. (Id. at 706.) This training educates professionals on “nonverbal strategies, the nonviolent crisis intervention strategies and de-escalation, things to do before it comes to a need for a restrictive hold.” (Id. at 546.) Mozis followed Merchant's lead, “trusting that [the hold] she was using was CPI certified.” (Id. at 606.) Merchant answered affirmatively when asked, “Are you aware that there is collateral damage, not only physically, but psychologically to children when you use a physical restraint?” (Id. at 330.) Mozis testified similarly. (Id. at 586.)

         3. Aftermath of the September 15, 2015 Incidents

         On September 15, 2015, Merchant left a message for the Parent to call her back about the incidents, but the two were unable to connect on the phone until the following day. (Id. at 383, 385-86.) The Parent first learned about the incident from other students who reported it to their guardians who then called the Parent that evening. (Id. at 383-85.) The Parent did not receive an incident report about the incident until “quite a few days” after it took place. (Id. at 392.) The Parent did not see the video documenting this incident until the day of the parties' resolution session in January 2016. (Id. at 386; S. Ex. 57; S. Ex. 56 at 581-83.) According to Mozis, she spoke to the Parent “quite immediately after the situation and proposed a team meeting to address the concerns that we were having, as well as the hold that had been done.” (Tr. at 568.) This meeting, discussed in more detail below, took place on September 24, 2015. (D. Ex. 7.)

         On October 8, 2015, Koep made a maltreat report to the Minnesota Department of Education relating to the September 15, 2015 hold imposed upon the Student in the hallway. (S. Ex. 55; Tr. at 293.) According to this report, the hold was not conducted in accordance with guidelines. (S. Ex. 55 at 423.) The Minnesota Department of Education's summary description similarly states that “[a] school administrator placed a student in an improper restraint.” (Id. at 421.) There was no reported injury resulting from the hold. (Id. at 423.) The matter was closed on October 19, 2015 because the incident “[did] not meet the definition of maltreatment.” (Id. at 421.) A case note indicates that “[i]t is a situation of an inappropriately executed physical restraint that did not result in injury.” (Id. at 422.) The District did not notify the Parent of the maltreatment report. (Tr. at 394-95.)

         4. The Student's Behaviors and Regression in Skills

         Included in the administrative record are the District's behavioral charts from September 15, 2015 to February 29, 2016 documenting the Student's incidents of verbal and physical aggression, escape, and inappropriate touching. (D. Ex. 23.) These charts illustrate increased behavioral difficulties during speech, lunch, and recess and in the afternoons. (Id.) The charts do not specifically document the antecedent triggers for the Student's behaviors. (Id.; see also Tr. at 594.) Mozis explained that “[f]rom my college courses and the training that I have there, I know that it's important to try and find the function of the behavior and what is triggering the behavior.” (Tr. at 594.) She explained that in her view, such data was “collected and written in the [functional behavioral assessment] that we did.” (Id.) Mozis testified that the District also did not collect “data around the use of interventions and whether they are effective or not for [the Student].” (Id. at 598.)

         On October 12, 2015, the District suspended the Student for two days because she “hit and kicked [two] paras[, ] threw items off desktop, knocked over waste baskets, [and] tried to tip over water cooler.” (S. Ex. 32.) On this day, the District called the Parent to pick up the student from school. (S. Ex. 56 at 429; see also D. Ex. 23 at 0204.) The record also includes more than a dozen Incident Report Forms documenting the Student's behaviors throughout her fourth-grade year, such as pulling others' hair; hitting, kicking, and scratching others; inappropriately touching herself and others; spitting; and swearing. (See S. Exs. 33-50; see also S. Ex. 56 at 505, 510.)

         The Student has been seen by Dr. Shaneen Schmidt (“Dr. Schmidt”) as her primary care doctor since her birth. (Tr. at 146-49.) During the administrative hearing, Dr. Schmidt agreed that the Student is “vulnerable” and “[has] a communications disorder.” (Id. at 169.) She explained that “maladaptive behaviors” among children with communication difficulties are commonly related to stress. (Id.)

         On February 3, 2016, the Parent brought the Student to Dr. Schmidt for a visit and raised concerns about incidents of wetting at school. (S. Ex. 68 at 778.) The medical note states:

This only happens when she is at school and never happens when she is at home or on the weekends during the day. When she comes home from school she apparently repeats the word ‘naughty' many times. [The Parent] is wondering if she is getting yelled at . . . in a stressful way . . . caus[ing] her to wet her pants.

(Id.) Dr. Schmidt described the Student's daytime wetting (or enuresis) to be a “regression in skills.” (Tr. at 155-59.) Dr. Schmidt testified that such a response is typically stress-related. (Id. at 157.) The Parent similarly testified that daytime wetting was a deterioration in skills as the Student was toilet trained for two years previously. (Id. at 434.)

         Dr. Schmidt sought to determine the cause of the wetting incidents and “recommended that [the Parent] work with the school for tracking the episodes of enuresis to try to see if we could . . . do a correlation with her enuresis to a particular environmental thing.” (Id. at 158.) She explained, “I had no idea. I just knew something was happening.” (Id.) On February 3, 2016, Dr. Schmidt wrote to the District regarding the student's incidents of enuresis:

[The Student] has been struggling with daytime enuresis during the school year. She has no incidences of any enuresis at home or during the day when she is not in school. I believe that she has some type of trigger or stressor that is bringing on this event. I am requesting that the school keep track of events that occur within 1 hour prior to her daytime enuresis. I would like to see if we can identify the trigger and potentially modify it so that she no longer has the enuresis. I do not believe that she is acting out but instead is having some type of visceral response to stress.

(S. Ex. 56 at 600.) Dr. Schmidt did not receive the information she sought from the District. (Tr. at 158-59.) She recommended that “[i]f things can't be identified and corrected, . . . [the Parent] may need to consider changing schools.” (Id. at 159.) The Parent explained that the wetting incidents were inconsistently reported in the communication notebook from the school, and that she never received the data Dr. Schmidt requested. (Id. at 434-36.)

         As of March 2016, the District was reporting the Student's progress as “Insufficient” on four of her IEP goals. (D. Ex. 19.) A note on the Student's Progress Report dated February 1, 2016 indicates that “[d]ue to behaviors from [the Student], we are unable to work on these objectives and this goal because she will not do these activities.” (Id. at 0114.) Another note from March 7, 2016 indicates that “[the Student] struggles to engage in a variety of settings with appropriate behaviors.” (Id. at 0115.) A March 2, 2016 grade report indicated the Student was receiving an “A” in Art, Health, and Music, a “P” in Phy Ed, an “F” in Functional Skills, and an “NI” in Math and Reading. (S. Ex. 25.) No grade was identified for Science. (Id.) For both Functional Skills and Reading class, a “disruptive behavior” notation is included. (Id. (capitalization omitted).) The Student had also received an “F” in Functional Skills and an “NI” in Reading during the first and second quarters of fourth-grade. (S. Ex. 56 at 447.)

         5. Student's Presence in the Mainstream Classroom

         The Student's schedule in the fall of her fourth-grade year involved alternating time periods between the general education classroom and the special education environment. (See S. Ex. 28 at 327.) For example, the Student was scheduled to be with her peers for breakfast and in the mainstream for a “Morning Meeting.” (Id.) Her mornings then alternated between speech therapy time with Moller, special education instruction with Mozis, or time in the general education classroom with Jessica Flock (“Ms. Flock”). (Id.) The Student was scheduled to have lunch and recess with her peers followed by afternoon instruction largely in the mainstream with the exception of “Down Time” of forty-five minutes with Mozis. (Id.)

         On September 30, 2015, the Student's mainstream teacher, Flock, e-mailed her special education teacher, Mozis, to inquire about how to best record the Student's attendance because she had been relying on other students to report whether or not they had seen the Student at school. (S. Ex. 56 at 545.) Similarly, Flock also e-mailed Mozis on October 1, 2015 to inquire if the Student was absent from school. (Id. at 550.) She noted, “I'm thinking I need to make a more concrete system for identifying [the Student's] attendance.” (Id.) Again on October 22, 2015, Flock e-mailed Mozis to ask about attendance. (Id. at 557.) Flock testified that this occurred “a handful [of days] every month” but that she did not have a specific record identifying the Student's time in her classroom. (Tr. at 221.) She stated: “[w]e have a schedule that they follow the best they can, but we make adjustments throughout the day. So, no, there's no record of her specific times each day in my room.” (Id.) She testified that she had observed some behaviors by the Student in her classroom, including “inappropriately touch[ing] herself” and refusal to comply with transitions between activities. (Id. at 222.) However, she reported that it was “nothing serious.” (Id.)

         Mozis explained that the Student had some behavior difficulties in the mainstream setting in fourth-grade, but that “it [was] much more frequent in my room because oftentimes she was removed if she was swearing or hitting or kicking or spitting.” (Id. at 605.) She explained, “[t]he behaviors that we were seeing, she was oftentimes removed from the general ed curriculum and brought out of there so that it's not a scene . . . for the others to have to witness this and that she didn't have to be going through those behaviors in front of her peers.” (Id.)

         The Parent disagreed with the District's characterization that the Student was having problems in the mainstream setting. (Id. at 522.) She acknowledged that some removals were appropriate “to try to address [the Student's] individual academic, behavioral, and functional needs.” (Id. at 521.) The District did not provide the Parent with data on the frequency of removals from the mainstream classroom, and Mozis testified that she did not record such removals. (Id. at 400-01, 608.)

         6. Calls to the Parent and Removals from School

         The Parent testified that she received numerous calls from the District throughout the Student's fourth-grade year beginning in September. (Id. at 401.) She asserted that these calls were taking place “[d]aily” and related to the Student's behaviors. (Id. at 405-06.) According to the Parent, “[m]any times I'd have to come get her.” (Id. at 406.) The Parent explained that in the first part of the Student's fourth-grade year, she left work “[w]eekly, on a weekly basis, a couple times a week” to get the Student from school. (Id.) If the Parent were unavailable, the District would call others including the Parent's son and a friend of the Parent. (Id. at 406-07.) The Parent testified that her friend was called “a couple, two, three times a week, daily.” (Id. at 407.) The Parent explained that she requested the District to stop these calls and that the calls stopped for some time before starting again. (Id. at 407-08.) The Parent testified that she stopped receiving calls “[a]bout a month” before the administrative hearing. (Id. at 408.) The Student's half-brother testified that he was called by the District on “probably five” occasions to pick up the Student, and that he actually did so one time. (Id. at 304.) The Student's personal care assistant testified that she “[was] aware that [the Student] was . . . being sent home on a consistent basis.” (Id. at 486-87, 503.)

         As previously noted, the District suspended the Student for two days in October 2015. (S. Ex. 32.) According to the District's behavior charts, the Parent came to the school on November 9, 2015 for approximately forty minutes after the Student was exhibiting behavioral difficulties. (D. Ex. 23 at 0223.) Records also indicate that the Parent was called to pick up the Student two times in February 2016 due to behaviors. (S. Exs. 42 & 44.)

         C. Educational Planning in the Student's Fourth-Grade Year

         1. September 24, 2015 IEP Team Meeting

         On September 17, 2015, the District issued a Notice of a Team Meeting for a September 24, 2015 IEP Team Meeting “[t]o discuss the need for development and implementation of a Behavior Intervention Plan (BIP).” (D. Ex. 6.) The record of this meeting indicates that the Parent attended, but Mozis did not sign the record of attendance, and no general education teacher is identified. (D. Ex. 7.) However, Mozis testified that she prepared the agenda for the meeting, and she testified about the contents of what took place at the meeting. (Tr. at 569-70.) According to Mozis, the team discussed conducting a functional behavioral assessment (“FBA”) “to get some answers for what we were seeing” and proposed “an additional 45 minutes to get [the Student] some downtime.” (Id. at 569-70.)

         The Parent testified that those in attendance “discussed downtime in the afternoon” outside of the mainstream setting. (Id. at 396-97.) She explained, “at that time I felt in the afternoon, long day maybe - at the time I felt maybe she needed a little break.” (Id. at 396.) The rest of the team agreed. (Id. at 396-97; see also Id. at 719.) The Parent testified that she later determined this approach was not working as anticipated. (Id. at 399.)

         According to the Parent, the District did not mention the possibility of conducting an FBA at the September meeting. (Id. at 410.) She testified that she proposed the FBA. (Id. at 455, 734.) Bucher, the school psychologist, testified that she attended the meeting and explained that “[m]y involvement was to be there to explain the possibility of a functional behavior assessment and what that might entail or might look like.” (Id. at 718.) She explained the Parent's response to the FBA suggestion as follows: “I recall that we explained the process quite thoroughly, as she did have some questions about it, but in the end she was in agreement that that was an acceptable plan.” (Id. at 719.)

         2. September 28, 2015 IEP Amendment

         On September 28, 2015, the District issued a Prior Written Notice proposing an increase in the Student's special education services. (D. Ex. 8A at 0042.) Specifically, the notice lists the following reason for the proposed change: “[the Student] is exhibiting significant behavioral difficulties at this time, so the IEP Team has determined that increased behavioral support services are needed.” (Id.) The Parent and the District entered into an Agreement to Amend dated September 28, 2015, and the Student's February 19, 2015 IEP was amended “without convening the entire IEP Team.” (D. Ex. 8A.) This agreement states, “At the meeting on 09/24/2015, the team members decided that [the Student] would increase her service time away from her peers by allowing for downtime in her afternoons in the Resource Room.” (Id.) The resulting IEP increased the Student's time in the special education setting by 45 minutes, and included the same goals and modifications as the February 19, 2015 IEP. (Id.) The Parent agreed that “at least . . . as of September 24th of 2015 . . . that IEP [was] appropriate to address [the Student's] educational needs.” (Tr. at 507.)

         3. The District's Functional Behavior Assessment

         The District issued a Prior Written Notice on October 7, 2015 proposing to conduct a behavioral assessment of the Student. (D. Ex. 10.) This notice indicates that “[t]he Team determined that additional behavioral and functional data is needed to determine appropriate programming for [the Student] and meet her educational needs.” (D. Ex. 10 at 0049.) Rather than utilize “existing information, ” the Team decided to obtain new data “to determine an appropriate behavioral plan and schedule for [the Student].” (Id.) On October 9, 2015, the Parent agreed to this evaluation. (Id. at 0048.)

         An Evaluation Report dated November 23, 2015 documents the results of the District's behavioral assessment. (D. Ex. 13.) This report illustrated the District and the Parent's reports regarding the Student's behaviors at home and school. (See generally id.) The Parent reported receiving “daily phone calls from the school” and stated the “everything in the communication book is negative.” (Id. at 0055.) The Parent also indicated that the Student has no “major behavioral problems at home.” (Id. at 0054.) This was consistent with testimony of ...

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