Opinion
No. 26604-4-III.
February 3, 2009.
Appeal from a judgment of the Superior Court for Stevens County, No. 05-2-00222-9, Allen Nielson, J., entered October 25, 2007.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Brown and Korsmo, JJ.
The Individuals with Disabilities Education Act (IDEA) seeks to provide a free appropriate public education to children with disabilities. 20 U.S.C. § 1400(d)(1)(A). This education is tailored to the unique needs of a handicapped child by means of an individualized education program (IEP). Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982).
Shannon Hensley is the mother of S.H., an autistic child. Ms. Hensley seeks review of a due process hearing decision that concluded that the October 2004 IEP developed for S.H. in the Colville School District (District) provided him a free appropriate public education under the IDEA. She contends the District did not satisfy the procedural requirements for developing the IEP. In particular, she argues that the District denied her meaningful participation in the IEP development process and did not enlist the participation of appropriate staff. She also contends the IEP does not provide S.H. a free appropriate public education with the goal of self-sufficiency. Because we find that the District employed the proper procedures and developed an IEP that provided S.H. a free appropriate public education, we affirm.
Facts
S.H. was born in the spring of 1994 and was soon diagnosed with autism. He began attending special education classes in the District in 1996. The District agreed to provide applied behavioral analysis (ABA) therapy — considered particularly effective for some autistic children — for S.H. in his home. After conflicts between Ms. Hensley and the ABA providers, however, she withdrew S.H. from the District in June 2000, complaining that she had not been included as a member of the education planning team and that the aides were not properly trained. S.A.H. ex rel. S.J.H. v. Dep't of Soc. Health Servs., 136 Wn. App. 342, 345, 149 P.3d 410 (2006).
Ms. Hensley began taking S.H. to a private speech therapist in the Tri-Cities area in June 2001. A month later, Ms. Hensley applied for transportation assistance with the Department of Social and Health Services (DSHS). DSHS provided transportation for Ms. Hensley and her three children to Richland for the school week and back to Colville for weekends with her husband. It also paid the rent on a home in Richland during the week and provided money for food. Id. at 345-46.
Beginning in 2002, S.H.'s speech therapist gave him ABA therapy through the Richland School District (Richland). Id. at 345. Medicaid covered the costs for the ABA therapy. Every other month, psychologist Billie Jo Davis consulted with Richland regarding the therapy.
In March 2003, DSHS denied Ms. Hensley's request for continued transportation, food, and lodging assistance in Richland because the Colville School District offered to make ABA therapy available to S.H. by the beginning of the 2003-2004 school year. Id. at 346. Ms. Hensley appealed DSHS's decision to the Office of Administrative Hearings for the Superintendent of Public Instruction, which reversed the denial of assistance. Id. at 346-47. DSHS then filed a petition for review. In March 2004, the Board of Appeals entered a final order modifying the initial decision by ruling that DSHS did not have to transport the Hensleys to Richland once ABA therapy was available for S.H. in Colville. The Stevens County Superior Court affirmed the Board in 2005, and this court affirmed in S.A.H. Id. at 352.
While review of the Board's order was pending, S.H. continued to attend school in Richland through the 2003-2004 school year and the District prepared to offer ABA therapy for S.H. beginning the summer of 2004. Richland's IEP team created a final IEP for S.H. in June 2004. Ms. Hensley had filed a due process complaint against Richland's previous IEP, but she agreed with the detailed services, goals, and objectives of the June 2004 Richland IEP. She enrolled S.H. in the Colville District in June 2004. Although the District offered to implement the Richland IEP's extended school year summer program, Ms. Hensley did not allow S.H. to attend because she did not think the staff was adequately trained in ABA therapy.
On August 12, 2004, Ms. Hensley filed a citizen's complaint with the Office of the Superintendent of Public Instruction. She asserted that the District did not have the staff or program to reasonably provide summer ABA therapy for S.H. as provided in the Richland IEP. In October 2004, the superintendent dismissed the complaint, concluding that the staff had been trained in ABA therapy and was qualified to provide special education services. Meanwhile, the Stevens County Superior Court issued a contempt order against Ms. Hensley on August 24, 2004 for failing to allow S.H. to attend services provided by the District.
In September 2004, the District offered to implement as much of the Richland IEP as it could until the District developed its own IEP. Ms. Hensley did not allow S.H. to attend school. She attended an IEP meeting with District staff and Dr. Davis on September 22, 2004. After that meeting, the District drafted a proposed IEP and sent it to all members of the IEP team, including Ms. Hensley, who received the draft on October 9, 2004.
The final IEP was developed at a meeting held October 13, 2004. Ms. Hensley attended this meeting, as did Dr. Davis and an advocate for Ms. Hensley. The team added information and goals and modified the proposed IEP before everyone signed. Ms. Hensley was not satisfied with the final IEP.
According to the June 2004 Richland IEP, S.H. was due for his three-year reevaluation in November 2004. The District invited Ms. Hensley to a meeting in early November to discuss S.H.'s reevaluation. She did not attend and did not consent to a reevaluation because she asserted that an April 2004 assessment by the University of Washington constituted a three-year reevaluation.
Because S.H. still was not attending school, the District requested a due process hearing regarding whether the October 2004 IEP provided S.H. a free appropriate public education. The Office of Administrative Hearings for the Superintendent of Public Instruction held a hearing in Colville for two days in late February 2005. On April 5, 2005, the administrative law judge (ALJ) issued findings of fact, conclusions of law, and an order concluding that the October 2004 IEP was developed without procedural error and provided S.H. a free appropriate public education. This order was affirmed by the Stevens County Superior Court on December 17, 2007. Ms. Hensley filed a timely amended notice of appeal.
IDEA Procedural Requirements
The IDEA was enacted to ensure that children with disabilities receive a free appropriate public education that emphasizes special education and other services designed to meet their unique needs. 20 U.S.C. § 1400(d)(1)(A); In re A.D., 140 Wn. App. 579, 588, 166 P.3d 837 (2007). This free appropriate public education must conform to the IEP, which is a written program of annual and short-term special education goals and services developed by an IEP team that includes the child's parents or guardians, teachers, and special education professionals. 20 U.S.C. § 1414(d); N. Kitsap Sch. Dist. v. K.W., 130 Wn. App. 347, 358, 123 P.3d 469 (2005).
Stated simply, Ms. Hensley contends the District did not provide S.H. a free appropriate education for the 2004-2005 school year. The ALJ who evaluated S.H.'s IEP at the due process hearing disagreed. As the party challenging the ALJ's decision in superior court, Ms. Hensley carried the burden of proof. A.D., 140 Wn. App. at 590; see also Schaffer v. Weast, 546 U.S. 49, 62, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) (the burden of proof in an administrative hearing challenging an IEP is placed upon the party seeking relief).
This court reviews the trial court's factual findings for clear error, giving special deference to findings of the ALJ that are thorough and careful. K.W., 130 Wn. App. at 360-61. Clear error means the "`definite and firm conviction that a mistake has been committed.'" Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001) (quoting Burlington N., Inc. v. Weyerhauser Co., 719 F.2d 304, 307 (9th Cir. 1983)), quoted in K.W., 130 Wn. App. at 360. Because the ALJ's 57 findings here are thorough and detailed, they are entitled to heightened deference. See K.W., 130 Wn. App. at 360 (deference to thorough and careful ALJ findings applies to both trial and appellate courts). We review de novo whether the District's IEP provided a free appropriate education. A.D., 140 Wn. App. at 590; K.W., 130 Wn. App. at 361. We are not, however, free to make our own determinations of sound educational policy. A.D., 140 Wn. App. at 590; K.W., 130 Wn. App. at 360-61.
Courts use a two-part test to review whether a school district has provided a free appropriate education under the IDEA. A.D., 140 Wn. App. at 590; K.W., 130 Wn. App. at 362. First, the court asks whether the school district complied with the procedures set out in the IDEA. A.D., 140 Wn. App. at 590-91. Second, the court asks whether the IEP is reasonably calculated to enable the student to receive educational benefits. Id. at 591. If the school district fails to satisfy the procedural requirements, the inquiry ends there. Id. Thus, we begin our analysis with Ms. Hensley's allegations of procedural violations.
The IDEA's procedural requirements are rigorous. K.W., 130 Wn. App. at 362. Violations of those requirements do not, however, automatically require a finding that the school district has failed to provide a free appropriate education. A.D., 140 Wn. App. at 591. Only those procedural inadequacies that cause a loss of educational opportunity or that seriously interfere with a parent's opportunity to participate in forming the IEP will constitute the denial of a free appropriate education. K.W., 130 Wn. App. at 362 (quoting M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 645 (9th Cir. 2004)).
I. Parental participation in the IEP process. Ms. Hensley contends the District interfered with her participation in the IEP development. She asserts that she was denied participation in the decisions regarding placement of S.H. and the choice of an autism consultant, and argues that all her input was disregarded. She also contends she was not allowed to participate in a reevaluation meeting.
Under chapter 28A.155 RCW, Washington provides children with disabilities a free appropriate public education consistent with the IDEA. RCW 28A.155.010. To that end, the legislature authorizes the superintendent of public instruction to develop rules to implement the IDEA. RCW 28A.155.090(7). Former WAC 392-172-15700 (2001) and former WAC 392-172-15705 (1999) describe the procedures required to ensure parental participation in development of the IEP. As stated in former WAC 392-172-15700(1)(b), "[e]ach school district or other public agency shall take steps to ensure . . . that one or both parents of the special education student are present at each IEP meeting or are afforded the opportunity to participate," primarily by "[s]cheduling the meeting at a mutually agreed upon place and time." If a parent cannot participate "in a meeting in which a decision is to be made relating to the educational placement" of the student, the school district must use other means to ensure the parent's participation, such as individual or conference telephone calls or video conferencing. Former WAC 392-172-15705(3).
Ms. Hensley does not dispute the ALJ's finding that she attended a meeting with S.H.'s IEP team on September 22, 2004. The IEP team included Michael Cashion, director of the District's special services; Ken Emmil, principal of Hofstetter Elementary School; school psychologist Craig Figley; special education teacher Suzann Jensen; general education teacher Barb Braff; speech and language pathologist Laurie Anderson; Ms. Hensley; Ms. Hensley's advocate, Janet Thomas; and Ms. Hensley's autism consultant, Dr. Billie Jo Davis. The purpose of this meeting was to develop the IEP, and Ms. Hensley and her associates participated. Following this meeting, the District held a meeting without Ms. Hensley and drew up a proposed IEP for presentation at the next IEP development meeting. ( See former WAC 392-172-105(3) (2001): a "meeting" — requiring notice and the opportunity for the parent to attend — does not include preparatory activities by the school district to develop a proposal.) This draft IEP was given to Ms. Hensley on October 9, 2004.
The final form of the IEP was developed at a meeting held October 13, 2004. As in the September 22 meeting, Ms. Hensley attended with her associates Ms. Thomas and Dr. Davis and the rest of the IEP team. The completed IEP from that meeting shows that the draft incorporates handwritten modifications and additions offered by the participants.
Ms. Hensley contends the District prevented her participation in development of the IEP because it ignored her input and the input of Dr. Davis. The record does not support her contention. Ms. Hensley attended both the September 22 and the October 13 IEP meetings, as did her associates. By serving as a member of the IEP team, she "participated" under the terms of former WAC 392-172-15700(1) and former WAC 392-172-15705. Handwritten notes from the October 13 meeting show that Dr. Davis gave extensive information and that comments and objections by Ms. Hensley and Ms. Thomas were addressed. Ms. Hensley and her associates not only participated, but their participation was meaningful.
As found by the trial court and the ALJ, two private caucuses took place during the October 13 IEP meeting, one between Ms. Hensley and Dr. Davis, and one by District staff. During its brief caucus, the District discussed whether Dr. Davis or Dr. Marion Moore, who was already the District's autism consultant, would be the appropriate autism consultant for S.H.'s IEP. Ms. Hensley agreed to the District's caucus, and cannot now contend she was wrongfully excluded. See Humbert v. Walla Walla County, 145 Wn. App. 185, 192, 185 P.3d 660 (2008) (the invited error doctrine, which prohibits a party from setting up an error at trial and then complaining of it on appeal, is also applicable to administrative actions). Even if the District erred in excluding her from the caucus, however, she fails to show that the error seriously infringed on her ability to participate in development of the IEP. K.W., 130 Wn. App. at 363-64. The District chose Dr. Moore, whose professional qualifications are clear from the record, and who had observed S.H. when he attended school in the District in 2000. Ms. Hensley's protest against using Dr. Moore instead of Dr. Davis was noted. She had the opportunity to participate afforded by former WAC 392-172-15705(1).
After the October 2004 IEP meeting, the District tried to set up a reevaluation of S.H. His Richland IEP called for a three-year reevaluation by November 29, 2004. Previously, Ms. Hensley had informed Mr. Cashion that she was available for meetings any Wednesday or Thursday after early October. Yet when the District sent her a notice that a reevaluation meeting was set for Wednesday, November 3, she responded on November 1 that she was not available and added,
[r]ather than scheduling another reevaluation meeting, I question the need to meet at all and suggest that any reevaluation discussions be tabled for the time being.
[S.H.] was adequately assessed by esteemed professionals just last April/May 2004, and any reevaluation will not provide information that is not already available. Until such time as [S.H.] attends Colville schools, it would be inappropriate to subject him to any such unnecessary procedures.
If the circumstances change and an adequate program will be provided, I would be available to attend a meeting after the Thanksgiving holidays.
Administrative Record (AR) at 638. Contrary to Ms. Hensley's assertion on appeal, she did not ask to reschedule the reevaluation meeting, and she clearly discouraged the District's attempts to have her participate in the meeting. After the November 3, 2004 meeting, she rejected multiple attempts to have S.H. reevaluated. Her contention that she received inadequate notice of the November 3 reevaluation meeting and that the District failed to accommodate her schedule is belied by the record.
Finally, Ms. Hensley contends the District denied her the right to attend additional meetings that were held after the November 3 reevaluation meeting. These were "status" meetings where the progress of several students was discussed. AR at 16. Staff at these meetings, held November 4, 10, and 17, 2004, merely referred to the reevaluation needed for S.H. and noted that Ms. Hensley had not yet consented. Because the meetings did not involve actual evaluation, educational placement, or provision of a free appropriate public education, Ms. Hensley had no right to attend them. Former WAC 392-172-105(1).
II. Parental access to educational records. Former WAC 392-172-408(1) (1999) states that each school district must permit the parents of special education students to inspect and review any educational records related to their child. Educational records are defined in part as records maintained by the school district that are directly related to a student. Former WAC 392-172-400(1) (1999).
It is unclear from this record what Ms. Hensley claims was withheld from her. She cites AR at 689, which is a December 20, 2004 letter from Ms. Hensley to the District's attorney. Ms. Hensley states in the letter that she does not think she has any additional documents to provide to the District before the due process hearing. She also states that she has reviewed copies of many of her child's educational records, but adds, "not all of the records I know to exist were there for me to review, nor were they included in the copies I was given. The example I gave to Ms. Dunham was copies of faxes exchanged with Dr. Marion Moore that I saw in the possession of Ms. Suzie Jensen, the special education teacher, at the 9/22/04 IEP meeting." AR at 689. The record does not reveal what was contained in these faxes or what additional documents constituted the record that Ms. Hensley knew to exist. Further, it is not even clear from this letter that Ms. Hensley is actually requesting additional educational records. She fails to show that she was not permitted access to S.H.'s educational records.
III. Participation by the regular school teacher. One of the required participants on the IEP team is "[a]t least one general education teacher (or preschool education teacher) of the student if the student is, or may be participating, in the general education environment." Former WAC 392-172-153(2) (1999). This general education teacher must "to the extent appropriate, participate in the development, review, and revision" of the student's IEP. Former WAC 392-172-15700(6).
Ms. Hensley contends the District violated the procedural rules for development of the IEP because it included S.H.'s prospective Colville general education teacher, Ms. Braff, rather than his former Richland teacher. As discussed in R.B. v. Napa Valley Unified School District, 496 F.3d 932, 939 (9th Cir. 2007), however, after the 1997 amendments to the IDEA, the presence of the child's current regular education teacher is no longer required for the IEP team. The regular education teacher who appropriately serves on the IEP team is the teacher who will, or who may, be responsible for implementing portions of the IEP. Id. (quoting 34 C.F.R. Pt. 300 App. A — Question 26 (1999)). Ms. Braff, the fourth grade general education teacher at S.H.'s Colville school, was the appropriate teacher for his October 2004 IEP team. Although the record does not show that she participated in the discussion of his IEP, she attended the meeting and agreed with the final IEP.
In summary, the record supports the findings of the ALJ and the trial court regarding the District's compliance with the procedural requirements of the IDEA. Ms. Hensley does not meet her burden of showing either a procedural violation or that such violation resulted in a loss of educational opportunity or seriously infringed her opportunity to participate in the IEP process. A.D., 140 Wn. App. at 591.
Substantive Sufficiency of the IEP
We next consider de novo whether the IEP provides S.H. a free appropriate public education. A.D., 140 Wn. App. at 590. Ms. Hensley contends the October 2004 IEP does not provide a meaningful education because (1) it provides merely the same services as the District's 2000 IEP, which did not benefit S.H.; (2) some of its goals and objectives had already been reached by S.H. in Richland; (3) its goals and objectives are too vague and inappropriate; (4) it places S.H. in an inappropriate grade level at the wrong school; and (5) it does not provide for standardized testing, as used by the University of Washington. Ms. Hensley assigns additional errors to findings and conclusions of the ALJ, including those related to the District staff's ABA training, additional services offered by the District but not contained in the IEP, and a finding that S.H. suffers from mental retardation. She requests compensatory education for S.H., including reimbursement for tuition expenses. G. v. Fort Bragg Dependent Schs., 343 F.3d 295, 308 (4th Cir. 2003).
A school district provides an acceptable free appropriate public education if it substantially complies with the IDEA and (1) addresses the child's unique needs, (2) provides support services that allow the child to take advantage of the educational opportunities, and (3) accords with the IEP. K.W., 130 Wn. App. at 365-66 (quoting Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir. 1995)). Although the school district cannot discharge its duty by providing a program that offers mere minimal academic advancement, the instruction provided also need not guarantee maximization of the disabled student's potential. Amanda J., 267 F.3d at 890; A.D., 140 Wn. App. at 593; K.W., 130 Wn. App. at 366. In effect, school districts are obliged to provide a basic floor of opportunity. K.W., 130 Wn. App. at 366. "The District's program need not be perfect; rather it must generate some educational benefit tailored to [the student's] unique needs." Id. at 367.
I. Admission of evidence. Ms. Hensley moved the trial court for admission of additional evidence — 58 documents she argued would show (1) an improper connection between the State and the District and (2) the past services offered in the 2000 Colville IEP. After considering the factors for admission of additional evidence, the trial court denied the motion to admit information on an improper connection as irrelevant and reserved a ruling on the remaining motion. At the hearing the next day, the trial court allowed admission of the 2000 IEP for the limited purpose of showing any similarity or dissimilarity between it and the 2004 IEP. Ms. Hensley now contends the trial court misunderstood the standard for admission of evidence and should have admitted everything she presented.
As noted by Ms. Hensley, review of an ALJ's decision under the IDEA is a hybrid because the trial court is directed to hear additional evidence at the request of a party. 20 U.S.C. § 1415(i)(2)(C)(ii). The reasons for supplementing the administrative record might include "gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Town of Burlington v. Dep't of Educ., 736 F.2d 773, 790 (1st Cir. 1984). Additional evidence should be limited to what is necessary to determine whether the IEP is reasonably calculated to afford some educational benefit. Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 850 (6th Cir. 2005). The trial court's decision regarding admission of additional evidence is reviewed for abuse of discretion. Id.
Ms. Hensley provides no argument for admission of the evidence relating to an improper connection between the State and the District other than to state that all of her evidence should have been admitted. The trial court considered admission and decided that some of the evidence was irrelevant. Ms. Hensley fails to show an abuse of discretion.
II. Whether the October 2004 IEP provides a free appropriate public education. Ms. Hensley's substantive attack of the IEP argues that the ALJ and the trial court made findings that are not supported by the record and conclusions that are not supported by the findings. She faces the two hurdles of overcoming the presumption that the ALJ's findings are correct and proving that the IEP is inappropriate. Travis G. v. New Hope-Solebury Sch. Dist., 544 F. Supp. 2d 435, 441 (E.D. Pa. 2008). She does not satisfy her burden of proof here.
For instance, Ms. Hensley contends the October 2004 IEP is inappropriate because it provides the identical services that were offered by the 2000 IEP and that were ruled inadequate in S.A.H., 136 Wn. App. at 345. But the record shows that the services are not the same in the two IEPs. Further, this court in S.A.H. did not rule that the 2000 IEP was inappropriate, but merely noted that the District did not adequately staff or oversee S.H.'s previous ABA home therapy.
Ms. Hensley also contends the 2004 IEP offers vague goals and objectives, includes goals and objectives that S.H. had already met, places S.H. in the fourth grade regular class when his age level is fifth grade, and does not allow standardized testing of S.H.'s abilities. The ALJ noted that the number of ABA service hours per day under the 2004 IEP was the same provided with Ms. Hensely's approval under the Richland IEP. The ALJ also concluded that the lack of specificity in the amount of time the autism consultant would spend assisting the District did not deprive S.H. of an educational opportunity because the staff was trained well enough to know when to access those services on an "as needed" basis. AR at 22. The record supports the ALJ's findings that S.H. likely had regressed in the year he was held from school and that the 2004 IEP appropriately included goals and objectives he may have mastered under the Richland IEP but could no longer accomplish. Besides, as the ALJ found, once skills were mastered, other goals and objectives would take their places. The record shows that even Ms. Hensley originally placed S.H. in the fourth grade. And Richland staff, Dr. Moore, and Dr. Davis agreed that standardized testing can be inaccurate due to the modifications that had to be made so that S.H. could take the tests.
The remaining assignments of error also fail to overcome the deference given to the ALJ's and the trial court's findings. The adequacy of the District staff's ABA therapy training is supported by the record, which shows that the providers reached or exceeded the hours of ABA training recommended by Dr. Davis. S.H.'s probable diagnosis as suffering from mental retardation is supported by Dr. Figley's testimony, Richland staff, and Dr. Davis. And the 2004 IEP is flexible enough to allow the modifications offered by the District to address Ms. Hensley's concerns after the IEP was adopted.
Ultimately, Ms. Hensley's allegations of error do not show that the 2004 IEP failed to provide an educational benefit tailored to S.H.'s unique needs. K.W., 130 Wn. App. at 367. As S.H.'s parent, Ms. Hensley reasonably desires the best possible instruction for her child that will maximize his potential. But the IEP developed under the IDEA is not required to guarantee maximization of potential. Amanda J., 267 F.3d at 890. That said, the record shows that the District has struggled mightily to meet Ms. Hensley's standards. She is not satisfied with that effort, but this court must be.
Attorney Fees
The last line of Ms. Hensley's appellant's brief, contained in the section titled "Conclusion," is as follows: "The Appellant requests that the Court award compensatory education to [S.H.] and award the Parent her costs and fees incurred during these proceedings pursuant to [former] WAC 392-172-362(1) [(1999)], RAP 14 and RAP 18.1." Br. of Appellant at 50. Because she is not the prevailing party on appeal, Ms. Hensley is not entitled to attorney fees and costs. Former WAC 392-172-362(1).
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KORSMO, J., concur.