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Independent School District No. 283 v. E.M.D.H

United States District Court, D. Minnesota

January 15, 2019

Independent School District No. 283, Plaintiff,
E.M.D.H., a minor, by and through her parents and next friends, L.H. and S.D., Defendants.

          Peter A. Martin, Esq., Knutson, Flynn & Deans, PA, counsel for Plaintiff.

          Amy J. Goetz, Esq., and Andrea L. Jepsen, Esq., School Law Center, LLC, counsel for Defendants.




         In this action, Independent School District No. 283 (the “District”) requests judicial review and reversal of a March 16, 2018 decision (the “Decision”) issued by an administrative law judge (“ALJ”). (Doc. Nos. 1 (“Compl.”), 2 (“Decision”).) The Decision ruled in favor of the parents of a high-school the student who lodged a due process complaint under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”). This matter is before the Court on cross motions for judgment on the administrative record. (Doc. Nos. 85, 89.) For the reasons set forth below, the Court grants Defendants' motion in part, affirming the ALJ's decision but modifying the remedies.


         Defendants E.M.D.H. (the “Student”), a minor, by and through her parents and next friends, L.H and S.D. (the “Parents”) (together “Defendants”) assert that the Student, a sixteen-year old junior in high school, has been denied her right to a free and appropriate education under the IDEA. In short, Defendants submit that the Student went years without special education and related services because she was not properly classified as having a disability. The Parents hired a private educational team to design and implement an individualized education program. In June 2017, Defendants initiated an administrative hearing to correct the conditions and restore the Student's education. On March 16, 2018, the ALJ issued a 67-page decision in favor of the Parents. The District now asks the Court to reverse the Decision.

         I. Elementary School

         The Student began attending school in the District beginning in 2006. During elementary school, the Student performed well academically, socially, and on measures of self-management. In the fourth grade, the Student's teacher stated that she “is a joy to teach, ” “has a great sense of humor, ” and “is a delight to be around.” (Doc. No. 60-2 at 21.) From elementary school through the time of the Decision, the Student has never had a discipline referral noted in her record. (Docs. No. 60-2 at 45-53, 60-3 at 1.) The Student has always excelled academically. For example, in the fifth grade, the Student enrolled in an advanced math class at the middle school.

         The Student has had attendance problems since elementary school though. During elementary school, the Student averaged around eight absences per school year. (Doc. No. 72-5 at 42-44.) Nevertheless, the Student continued to perform well academically during those years. (See Doc. No. 60-2 at 12-13, 17-26, 36-38, 41-44.)

         Although the Student performed well in elementary school, she has had behavioral meltdowns since she was four years old. Her behavioral meltdowns were characterized by hitting, biting, pinching, crying, throwing objects, and banging on walls. (Doc. No. 61-7 at 4.) The meltdowns would last from a few minutes to several hours, and would sometimes occur multiple times per day or not at all for multiple weeks. (Id.) Beginning in 2008, when the Student was in second grade, the Student's mother took the Student to the Washburn Center for Children, where the Student was diagnosed with adjustment disorder with mixed disturbance of emotion and conduct, and received therapy until discharged on July 23, 2009. Since 2008, the Student has carried several diagnoses from various health care professionals, and she is currently diagnosed with: generalized anxiety disorder, school phobia, unspecified obsessive-compulsive disorder (“OCD”) (or autism spectrum disorder (“ASD”)), panic disorder with agoraphobia, attention deficit hyperactivity disorder (“ADHD”), primarily inattentive type, and severe recurrent major depressive disorder. (Doc. No. 60-1 at 20.)

         II. Middle School

         The Student remained enrolled in the District for middle school. In middle school, the Student participated in the Gifted and Talented programming and earned A's and B's in her classes. In sixth grade, teachers commented on the Student's performance: “Gifted writer”; “insightful social studies student”; and “Always prepared, and engaged, great end to the year.” (Doc. No. 60-2 at 12-13.) In seventh grade, teachers commented: “Hard worker”; “Great job despite the absences”; “Showed lots of hard work this spring”' and “Great participation.” (Id. at 17.) The Student excelled on her sixth and seventh grade standardized tests. The Student's attendance issues continued, however, with her missing 18 days of school in sixth grade and 20 days in seventh grade.

         When the Student began eighth grade in the fall of 2014, she told her mother that she was afraid to go to school. From the beginning of the school year through February 2015, she missed 18 days of school. (Id. at 12; Doc. No. 72-5 at 45.) In March 2015, the Student stopped attending school altogether. (Doc. Nos. 60-1 at 26, 62 at 13.) On May 6, 2015, the Student completed a psychiatric evaluation at Prairie Care Medical Group in Edina, Minnesota. (Doc. No. 56-9 at 9.) The Student was diagnosed with depression not otherwise specified and generalized anxiety disorder. (Id.) On May 18, 2015, the Student was admitted to the Prairie Care day treatment program; she was discharged on June 12, 2015. (Id. at 17.)

         When the Student stopped attending school, one of her teachers brought her concern to a group of teachers called the Orange Academy, which consisted of ten people, including the Student's teachers and Gina Magnuson, the Dean of Students. (Doc. No. 60-4 at 13.) The teachers discussed what to do about the Student's grades given she was not attending school. (Id.) It was decided to give her “incompletes” as opposed to failing grades. (Id.) The group also decided not to refer the Student to the District's Student Intervention Teacher Team (“SITT”), which is one of the District's child-find activities. (See, e.g., id. at 32.) The group decided not to refer the Student because her grades were excellent when she attended school. Staff at the middle school were aware of the Student's mental health issues and that the Student had been admitted to the Prairie Care day treatment program.

         As a result of her absences, the Student received no fourth quarter credit or grades in eighth grade, and the District dis-enrolled the Student that spring. (Doc. No. 54-3 at 16; Doc. No. 54 at 5.)

         III. High School

         When the Student began high school, her ninth-grade guidance counselor, Barb Nelson, offered to meet the Parents to re-enroll the Student, and to meet the Student to get to know her, but did not address the issue of special education or evaluation. (Doc. No. 72-5 at 59.) Then, shortly after beginning ninth grade, the Student's attendance became irregular. Eventually in November 2015, she was admitted again to the Prairie Care day treatment program, and the District again dis-enrolled her. (Doc. No. 55-6 at 36.)

         The Student re-enrolled on December 15, 2015. On April 26, 2016, the District discussed referring the Student for a special education evaluation. (Doc. No. 60-4 at 7.) The District did not make a referral, but instead Nelson called the Student's mother to explain various options for special education placement for the Student. According to the Parents, however, Nelson did not inform the Student's mother that special education services would allow the Student to continue taking honors courses. (Doc. No. 54 at 21.)

         On June 6, 2016, near the end of the Student's freshman year, she was admitted to the Rogers Memorial Hospital (“Rogers”) in-patient program in Oconomowoc, Wisconsin. (Doc. No. 62-4 at 5.) At Rogers, the Student took some education-related assessments, including the WRAT-3, on which she scored in the post-high school level for reading, spelling, and math. (Doc. Nos. 62-9 at 21, 62-6 at 2, 75 at 9-10.) Also while at Rogers, the Student was diagnosed with ADHD - Inattentive type, and was prescribed Adderall XR. (Doc. No. 62-7 at 27.)

         When the Student began her sophomore year, the District created a Section 504 plan for the Student, even though it had never conducted an evaluation of her. The 504 plan involved providing the Student extra time on assignments, adjustments to workload to prevent falling behind, regular check-ins with teachers, breaks from the classroom and a pass to the counseling office, and the use of a fidget. (See Doc. Nos. 60-5 at 72, 60-6 at 21.) Despite having a 504 plan, the Student's English teacher denied her extra time to complete an assignment with which she was having difficulty. (Tr. at 1025-27.) As a result of the Student's frustration with the English class, Defendants agree with the Student's tenth-grade counselor, Heidi Cosgrove, and the school social worker, Marlee Nirenstein, to switch the Student to an online English course. (Doc. No. 60-5 at 69; Tr. at 1032-33, 1200.) By December 5, 2016, however, the Student was again dis-enrolled by the District because she had missed 15 or more days of school in the semester. (Doc. No. 60-6 at 1.)

         The Student and the Student's mother met with Cosgrove and Nirenstein in January 2017 to discuss the possibility of special education services. Cosgrove explained that if the Student were eligible for special education, then she would need to be instructed in academic and organizational skills in a structured study hall setting. (Tr. at 1050-51, 1212.) Cosgrove and Nirenstein also indicated that the Student would be assigned a new social worker along with a case manager. (Tr. at 1050-51.) Although Cosgrove and Nirenstein did not expressly say it, the Student's mother understood them to be suggesting that special education would not be an appropriate placement for the Student because she is talented and gifted. (Tr. at 1448-49.) The District did not propose a special education evaluation at the time; the Parents did not request one. (Tr. at 1449.) Then, after attending only the first day of the semester, the Student was eventually dis-enrolled again on February 16, 2017. On April 25, 2017, the Student was again admitted to Rogers.

         On April 28, 2017, the Parents requested that the District evaluate the Student's eligibility for special education. On May 23 and 24, 2017, while still at Rogers, Dr. Denise K. Reese conducted a comprehensive psychological evaluation of the Student. Dr. Reese diagnosed the Student with: major depressive disorder, recurrent, in partial remission; ASD; ADHD, predominantly inattentive presentation; and generalized anxiety disorder with panic and OCD features, features of borderline personality disorder. (See Doc. No. 59-6 at 10.) Dr. Reese also made several educational recommendations to accommodate the Student's anxiety and ASD, including an individualized curriculum, providing the Student a resource room to go to when she is feeling anxious or upset, and reducing requirements for the Student to socialize in large groups during the academic day. (Id.) The Student's mother paid $2, 430 for Dr. Reese's evaluation. (Doc. No. 56-1 at 4.)

         In June 2017, the Student re-enrolled in the District as a junior. On June 14, 2017, the District held an evaluation planning meeting. (Doc. Nos. 60-6 at 57-61, 60-7 at 1-10.) The Student's mother was provided a notice of her parent rights under special education law. (Doc. No. 54-6 at 22-39.) Meeting attendees determined that the Student should be evaluated under the categories of ASD, EBD, and other health disability (“OHD”). The Parents' counsel also informed the District of Dr. Reese's evaluation and requested that the District rely upon the information rather than have the Student retested in the same areas. The District agreed to do so. The evaluation plan also included three classroom observations of the Student. (Doc. Nos. 60-6 at 57-61, 60-7 at 1-10.) The District conveyed the plan to the Parents on June 20, 2017. (Id.) The Parents consented to proceed with the evaluation. The District had 30 school days, or until October 16, 2017, to complete the evaluation. (Id.)

         On August 31, 2017, The Parents met with school officials to discuss the Student's junior year. School officials presented four options for the Student: (1) full days with advanced level classes; (2) full days with no advanced level classes; (3) partial school days; and (4) participation in the PAUSE program, which is an alternative learning environment supported by a teacher and social worker. The District also proposed the Student having access to PLATO, an online learning platform through which the Student could progress at her own pace and earn class credits. (Doc. No. 61-6 at 5-7.) The Student and the Parents chose to pursue the PAUSE and PLATO route.

         On September 6, 2017, the Student began her junior year attending PAUSE. Her teacher, Bob Logan, indicated that the Student worked steadily on PLATO from 10:00 a.m. to 11:30 a.m. without a break. (Doc. No. 61-6 at 27-35.) The Student was organized, focused, taking notes, but was also receptive, made eye contact, and was pleasant and affirming with Logan. (Id.) She sat with Logan and the social worker over lunch, during which time she was conversational, polite, and social. (Tr. at 162.) The Student worked diligently that afternoon, but the next morning, she went home sick after working for only an hour and a half. (Id. at 163, 167-68, 174.) The Student returned to PAUSE only one more time-the next day-during which time she worked consistently on PLATO assignments. (Id. at 169-170.) After the third day, the Student did not return to PAUSE. At the Student's mother's suggestion, Logan left voicemails on the Student's cell phone encouraging her to return to PAUSE.

         IV. Special Education Evaluation

         On October 16 and 24, 2017, District presented the results of its evaluation to the Parents. (Doc. No. 61-6 at 8-11.) The District never completed a functional behavioral assessment (“FBA”) of the Student. (Tr. at 899.) The District concluded that the Student did not qualify for special education in the ASD, EBD, or OHD categories. (Doc. No. 61-6 at 8-11.) The Parents disagreed. The Parents then requested that the District consider applying the override criteria to the District's eligibility determination. Because the District viewed the results as valid, the District determined that the override criteria were not applicable and that the Student did not need special education. (Tr. at 807, 842-45, 849.)

         The District determined the Student did not meet the definition of EBD because she does not exhibit a specific emotional or behavioral response that adversely affects educational performance. (Doc. No. at 55-7 at 22.) The District further concluded that the Student's intrapersonal impairment does not severely interfere with her educational performance because, in part, it has not manifested in the classroom. (Id.) The District also determined that the Student did not meet the definition of OHD because neither her ADHD nor her anxiety adversely affects her ability to complete educational tasks within routine timelines, and that her ADHD and anxiety have not resulted in a pattern of unsatisfactory educational ...

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