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L.O. v. East Allen County Sch. Corp.

United States District Court, N.D. Indiana, Fort Wayne Division

September 30, 2014

L.O., by her Parents and Next Friends, D.O. and D.O., Plaintiffs,

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[Copyrighted Material Omitted]

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For LO, a minor, and her parents and next friends next friend, DO, Plaintiff (1:11-cv-001788-JTM-RBC): Dorene J Philpot, Philpot Law Office LLC - Gal/TX, Galveston, TX; Mitchell M Pote, Law Office of Mitchell M Pote LLC, Indianapolis, IN.

For East Allen County School Corporation, Defendant (1:11-cv-001788-JTM-RBC): Monica J Conrad, LEAD ATTORNEY, Elizabeth Lucas Barnes, Church Church Hittle & Antrim LLP - Mer/IN, Merrillville, IN.

For East Allen County Schools, Plaintiff (1:11cv187): Monica J Conrad, LEAD ATTORNEY, Church Church Hittle & Antrim LLP - Mer/IN, Merrillville, IN USA; Barbra A Stooksbury, Chesterton, IN USA.

For Lo, by her parents and next friends next friend, DO, Defendant (1:11cv187): Dorene J Philpot, LEAD ATTORNEY, Philpot Law Office LLC - Gal/TX, Galveston, TX USA.

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This matter is before the court on what are essentially cross-motions for summary judgment in the captioned actions consolidated in this proceeding: one filed by plaintiffs seeking judgment in the suit they filed docketed as 1:11 CV 178, and one filed by defendant East Allen County School Corporation (hereinafter, " the School" ) seeking judgment in its favor for the relief sought in the suit it filed as 1:11 CV 187. The overall dispute arises from administrative proceedings concerning the student L.O.'s right to a free appropriate public education (" FAPE" ) as provided by the Individuals with Disabilities in Education Act (" IDEA" ), 20 U.S.C. § § 1400 et seq. Oversimplifying, those proceedings those proceedings were initiated when L.O. requested a due process hearing to determine whether IDEA was violated when she was denied a FAPE by not having been identified as a child in need of services in a timely fashion and by improper procedures used to evaluate her. (A.R. 684-96.) Oversimplifying again, that proceeding ultimately concluded with a decision made by the Independent Hearing Officer (" IHO" ) that L.O. was entitled to compensatory educational services, and for the School to conduct some additional evaluations.

L.O., through her parents, then brought an action seeking attorneys' fees as a prevailing party pursuant to 20 U.S.C. § 1415(i)(3)(B), and seeks a summary judgment in her favor awarding them. The School filed the separate action consolidated herein pursuant to 20 U.S.C. § 1415(i)(2)(A), appealing certain aspects of the IHO's decision, and it too seeks a summary judgment in its favor. To be a prevailing party entitled to attorneys' fees, L.O. must show that the IHO's decision caused a material alteration of her educational relationship with the School, Bingham v. New Berlin School Dist., 550 F.3d 601, 603 (7th Cir. 2008), and the size of any award depends on the degree of success obtained. See Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Giosta v. Midland School Dist. 7, 542 F.App'x 523, 524 (7th Cir. 2013).

Conversely, as the party challenging the administrative outcome, the School has the burden of persuasion in that regard. Marshall Joint School Dist. No. 2 v. C.D., 616 F.3d 632, 636 (7th Cir. 2010). As to issues of law, this court's review is de novo and the IHO is owed no deference. Alex R. v. Forrestville Valley

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Community Unit School Dist. No. 221, 375 F.3d 603, 611 (7th Cir. 2004). On factual issues, however, the court must accord the IHO's findings due deference. Id. at 612. Where, as here, the case is to be decided on the basis of the administrative record from below without the submission of new evidence, " due" deference is substantial deference, and the IHO's findings and order based thereon can be set aside only if this court is strongly convinced the order was erroneous. Id.

Background/Findings of Fact, Conclusions of Law, Orders Below

Ordinarily the court would provide a summary of the dispute between the parties as a background to the analysis that follows. In this case, however, the most efficient way to do that is to summarize the relevant factual findings made by the IHO, his conclusions of law, and his orders based thereon. Doing so not only explains L.O.'s circumstances which caused her parents to invoke due process rights pursuant to IDEA below, but also provides the necessary details for the analysis that follows. It bears repeating, however, that this is a summary, that is, a condensed version of the IHO's 41-page (over 41 pages, considering a later amendment) hearing decision. That means certain details have been simplified, generalized or omitted.

Hearing Officer's Factual Findings[1]

At the time of the hearing, March 2011, L.O. was in the ninth grade, was fifteen years old, (633; 4[2]), and had been found eligible for special education services.[3] (633; 5.) When L.O. was in the fourth grade she contracted a streptococcus bacterial infection that resulted in her developing a medical disorder called Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcal Infections, commonly abbreviated as PANDAS.[4] (633; 7.) Her resulting symptoms worsened over time, but after beginning to receive care at age 14[5] from a pediatric specializing in treatment of PANDAS, L.O. made progress with her symptoms. (633-34; 7.) Because of the problems associated with PANDAS, L.O. has psychiatric diagnoses

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of Obsessive-Compulsive disorder (" OCD" ), Tourette's Disorder, and Attention Deficit Hyperactivity Disorder. (634; 8.)

During elementary school L.O. earned all A and B grades, except for one C in the fourth grade. (634-35; 10.) In the seventh grade her grades began to decline, with more C grades, although in the third trimester she received three B grades and one A-minus. (635; 11.) Third trimester grades in the eight grade were A-plus, A, two B grades, a C and a C; in the ninth grade they were two A-pluses, one A, three Bs, one C-plus, one C and one C-minus, and one D-plus. (635; 12, 13.)

With the exception of math in the fourth grade, in grades 3 - 6 L.O. passed Indiana Statewide Testing for Educational Progress Plus (" ISTEP" ), which is a standardized group achievement test in English, math and science. (635; 14.) In the seventh grade she did not pass. ( Id.) In the fall semester of eight grade, she did not pass English or math (science was not administered). ( Id.) In spring semester, she passed English, did not pass math (science was not administered). (636; 14.) In ninth grade ISTEP was administered for biology, which L.O. failed, and algebra, which she passed. (635; 15.) However, L.O. also took NWEA[6] standardized tests which indicated that L.O. was equal to norms of typical students. (636; 16.)

In September, 2007, L.O.'s parents requested an Individual Educational Evaluation (" IEE'" ) because they thought she was spending too much time on her homework and preparation for tests, trying for perfection and getting " stressed out." (636; 17.) The evaluation consisted of measures of cognitive ability, achievement, and assessments of adaptive behavior based on ratings by teachers and interviews with the parents and LO herself. (636; 18.) In short, test scores for cognition and achievement showed her to be average in all areas. (636-37; 18, 19.) On behavior assessment, her teachers rated her average in all areas; this differed markedly from her parents assessment, who reported significant problems in the areas of hyperactivity, anxiety, depression, atypicality and withdrawal, and at-risk in somatization[7] and leadership skills. (637; 20.) L.O. reported herself as having a significant attention problem, and at-risk for depression, atypicality and social stress. ( Id.) At the case conference convened almost immediately thereafter, school personnel unanimously agreed that L.O. was not in need of special education services based on her ability, achievement and behavior being in the average range at school. (637-38; 21.)

The School also implements " General Education Intervention Plans" (" GEIP" ) to assist students who are having difficulties but who do not qualify for special education. (638; 22.) Although a GEIP is not required before a student is found to be in need of special education services, the school considers implementation of a GEIP and its associated " Action Plan" to be a form of response to a need for intervention,[8] although the two programs are not the same. (638; 22.) Prior to the 2007 case conference, the School had implemented a GEIP for L.O. starting in January, 2006. (638; 23.) The record of the GEIP for L.O. shows that the School recognized

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her OCD, that she was spending several hours a night on homework, that she did not do well in timed situations, that there were concerns in math, reading, task attention and short attention span. ( Id.) The GEIP included accommodations of preferential seating, additional time to complete tasks and take tests, providing a structured daily routine, assignments given both orally and visually, reduced quantity of material in math, and increased contact between school personnel and the parents. (639; 23.) L.O.'s parents agreed to implementation of this GEIP. ( Id.) Additional meetings and discussions concerning the GEIP were held on at least 13 occasions during 2006-2010. (639; 24.) In general, L.O.'s teachers felt that she was doing well. ( Id.)

In 2009 L.O. received tutoring from a private learning center and its staff conducted additional assessments. (639; 25.) She scored average in nine areas (including vocabulary and math reasoning/computation), below average in oral reading rate, and oral reading accuracy, fluency, comprehension. (639-40; 25.)

On March 23, 2010, L.O.'s parents requested the school to complete an educational evaluation to consider L.O.'s eligibility for special education in the areas of Specific Learning Disability and Other Health Impairment. (640; 26.) The evaluation was completed in April/May 2010, and results were similar to the 2007 evaluation, with all scores showing L.O. to be in the average range, except for a significant decrease in " processing speed" on the Wechsler Intelligence Scale for Children. (640; 27.) The school psychologist explained that L.O. works at a slower pace on the items tested for processing speed, which lowered her score. (641; 27). Achievement testing, compared to 2007, showed a decline in math fluency and writing fluency. (641; 28.) Cognitive ability testing showed average performance in all areas except for one subtest measuring processing speed, which was below average. (642; 29.) Assessment of adaptive behavior by L.O.'s teachers placed her in the high average range; her parents rated her average. (642; 30.)

A ratings scale to measure behaviors associated with ADHD was completed by teachers, parents and L.O. Two of the three teachers rated L.O. average in all areas; one placed her at risk in several areas. (642; 31.) Parents rated L.O. significant in all areas, and L.O. rated herself significant for inattention and at-risk for hyperactivity/impulsivity and learning problems. ( Id.) The three teachers also completed a behavior rating scale and found L.O. average in all areas except one teacher rated her at-risk for somatization, adaptability, leadership, and resiliency. (642; 32.) Her parents rated her as significant or at-risk in virtually all areas. ( Id.)

Following completion of the evaluation, a case conference was conducted in late May and early June, 2010. (643; 33.) The school proposed that L.O. was eligible for special education services implemented in an Individualized Education Plan (" IEP" ) as a student classified with the disability of " Other Health Impairment (511 IAC 7-41-10)," and that the steps implemented in her GEIP could continue to address her educational needs. ( Id.) The IEP included goals to address Study Skills, Organization, and Social-Emotional needs. (643; 34.) A single objective/benchmark was included that L.O. would use study guides, new strategies, and accommodations within her IEP to compensate for processing speed 80% of the time. ( Id.) Methods were included for evaluating progress. ( Id.) An organization goal was included that included an objective/benchmark that L.O. would utilize backwards planning to

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develop a timeline and complete long-term projects by the timeline's deadline. (643-44; 34.) A social/emotional goal was set to focus on learning skills to recognize and cope with stressors. ( Id.)

The IEP included a number of accommodations including, for algebra, extended test-taking time, use of her own calculator, testing in a small group setting; for language arts, extended test-taking time, testing in a small group setting, and tests read aloud by a test administrator; for biology, extended test-taking time and testing in a small group setting. (644; 35.) There were a number of other accommodations, including time and a half for all test; the opportunity to correct answers if the teacher felt reasons other than lack of preparation impacted the test; teachers seeking out the student to check her understanding of new concepts, and sending a set of textbooks home. ( Id.) The IEP also included academic support by special education staff for 70 minutes per day; 30 minutes per week of consultation; and 70 minutes per day of direct instruction/study skills. (644; 36.) The IEP did not include a health plan, although L.O.'s mother had testified that accommodations needed to be made for use of hand sanitizers because L.O. has a compromised immune system. (645; 37.)

L.O. testified that her OCD, Tourette's and anxiety were improving, and her parents agreed. (645; 40.) Her parents did not consent to implementation of the IEP at the conclusion of the conference because they wanted to discuss with L.O. " her feeling about being labeled for special education services." (645; 41.) On June 3, 2010, the parents presented a written request for an independent educational examination (" IEE" ), to include additional evaluations including auditory processing skills and language skills. (645; 42, 646; 44.) On June 17, 2010, the School's Director of Special Education (" DSE" ) responded that the school wanted to exercise its option to conduct the IEE, and that if the parents disagreed with the result, they could request one at public expense. (646; 42.) On June 22, 2010, the parents responded that they did not want to wait a long period of time for the School to conduct the central processing disorder evaluation. (646; 43.) The DSE responded that the School was willing to conduct the evaluation and that an IEE would be premature. ( Id.) The central auditory processing evaluation was conducted by an independent evaluator at the School's expense following an order by the IHO. (646; 44.) The evaluator concluded that L.O.'s auditory perceptual skills set is " within a generally acceptable range for a student of her age. In my opinion this is not an area of disability." (646-47; 44.)

L.O. takes medicine at school as needed to treat tic symptoms associated with Tourette's, has permission to go to the school nurse's office to take it, and has done so on several occasions. (648; 46.) The nurse has never observed any tics, and does not believe that L.O. requires a medical plan. ( Id.) Testimony of L.O.'s teachers was that they did not observe tics or symptoms of OCD. (648; 47.) Their testimony was that she was not disruptive, had friends, did not show high levels of disorganization, worked hard on assignments, and seemed to enjoy school. ( Id.) They uniformly described her as typical of students her age. ( Id.)

On one occasion when L.O. was the last student to finish a test, a boy annoyed by the delay made derogatory comments to her and called her a profane name. (646; 48.) The substitute teacher in charge of the class did not appropriately address the incident. ( Id.) After L.O. told her parents, they contacted the School, which then disciplined the boy and determined the substitute

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teacher would not be hired again. ( Id.) The principal apologized to the parents in an e-mail message. ( Id.) The parents considered the incident to be bullying and harassment, and they testified that L.O. became afraid of being harmed in the future. (646-47; 48.) A similar incident occurred in April 2009, and L.O. responded to the boy (who had told her she took so long that he " felt like slitting" her throat) by calling him an expletive, which ended the conversation. (647; 49.) The principal responded, copying the dean of students on the message, telling the parents that L.O. should report any similar incidents to an adult. ( Id.) There is no evidence whether the boy who made the comment was disciplined. ( Id.)

There was no evidence that L.O. needs any assistive technology to help her meet educational needs, although there was some discussion of providing her with a laptop computer to take notes in class. (650; 53.) L.O. testified, however, that she did not want one because it would make her stand out in class, and there was no evidence establishing that a computer was necessary. ( Id.)

The record of GEIP meetings shows that the School staff know of L.O.'s condition and history, and how PANDAS-related issues can interfere with educational performance. (650; 54.) Although the school counselor has some training in Tourette's, OCD, PANDAS and ADHD, the classroom teachers had no specific training ...

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