K.I. et al v. Montgomery Public Schools

Filing 60

MEMORANDUM OPINION AND ORDER, denying 46 MOTION to Supplement the Record filed by Jennie I., K. I. Signed by Hon. Chief Judge Mark E. Fuller on 9/30/08. (Attachments: # 1 appeals checklist)(vma, )

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IN THE UNTIED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K .I., et al., P L A IN T IF F S , v. M O N T G O M E R Y PUBLIC SCHOOLS, DEFEND AN T. ) ) ) ) ) ) ) ) ) CASE NO. 2:06-cv-905-MEF (W O ) M E M O R A N D U M OPINION AND ORDER T h is case involves claims brought by Plaintiffs under the Individuals with Disabilities E d u c a tio n Act ("IDEA"), 20 U.S.C. 1400 and 504 of the Rehabilitation Act, 29 U.S.C. 794. This cause is before the Court on Plaintiffs' Motion to Supplement the Record (Doc. # 46), filed June 13, 2007. Plaintiff is seeking to introduce additional evidence in the form o f live testimony by Dr. Laura Vogtle, Rochelle West, and Donna Locke. For the reasons s ta te d below, Plaintiffs' motion is due to be DENIED. I . FACTS Jen n ie I. has brought this action individually, and on behalf of her minor daughter, a g a i n s t Montgomery Public Schools (MPS) for failing to provide K.I. with a free and a p p ro p ria te education in violation of the IDEA and 504 of the Rehabilitation Act. K.I. is a child with arthrogriposis, restrictive lung disease, and a form of muscular dystrophy. Due to her disabilities, K.I.'s movements are very restricted, she has limited movement of her h e a d , arms, and hands, and she cannot speak. She also requires feeding through a g a stro s to m y tube and suctioning. From preschool through November 2004, K.I. attended a s e lf -c o n ta in e d school for medically fragile children known as the Children's Center ("the C e n t e r" ) . In November 2004, Jennie I. refused to return her daughter to the Center, and also re f u se d the alternative offered by MPS of homebound services. Jennie I. sought an in d e p e n d en t evaluation of K.I.'s educational needs, so she hired Children's Rehabilitation S erv ice ("CRS") for an evaluation. That evaluation was completed by Donna Locke. K.I. w a s also independently evaluated by Dr. Laura Vogtle, an occupational therapist with the U n iv e rs ity of Alabama. O n April 21, 2005, J.I requested a due process hearing pursuant to the IDEA to d e te rm in e whether MPS had failed to provide K.I. with a free appropriate public education b y only offering enrollment in the Center or homebound services. Jennie I. accepted h o m e b o u n d service pending the outcome of the hearing. A t the conclusion of the due process hearing, the ALJ concluded that MPS's decision to enroll K.I. at the Center complied with its obligation under the IDEA to provide a free a p p ro p ria te public education to K.I. On October 6, 2006, Plaintiffs filed this action to appeal th e ALJ's ruling. II. DISCUSSION P la in tif f s are seeking leave to introduce evidence in the form of live testimony at trial th a t was not a part of the record during the due process hearing. The testimony Plaintiffs w a n t to introduce is from Dr. Laura Vogtle, Rochelle West, and Donna Locke. Both Vogtle 2 a n d Locke testified at the due process hearing. West did not testify at the hearing because a t the time of the hearing she had not evaluated K.I. After the hearing, West took over the job at CRS of evaluating K.I. A district court hearing an appeal from an administrative decision in an IDEA due p ro c e ss hearing must give the determination of the state educational authorities "due weight" a n d not simply substitute its judgment. Walker County School Dist. v. Bennett, 203 F.3d 1 2 9 3 , 1297 (11th Cir. 2000). However, the extent of the deference to be given to the a d m in i str a tiv e decision is left to the sound discretion of the district court, which must c o n s id e r the administrative findings, but is free to accept or reject them. See id. at 1297-98. T he evidence that the court is allowed to consider "generally will be the administrative h e a rin g record." Id. at 1298. Pursuant to the IDEA, the district court may also hear " a d d itio n a l evidence" if the party seeking to supplement the record can show a "solid ju s tif ic a tio n " for doing so. See 20 U.S.C. 1415(e)(2); School Bd. of Collier County v. K.C., 2 8 5 F.3d 977, 981 (11th Cir. 2002). Reasons for a court to allow "additional evidence" in c lu d e "gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence c o n c e r n i n g relevant events occurring subsequent to the administrative hearing." Walker C o u n ty , 203 F.3d at 1298. However, in determining what "additional evidence" to allow, the tria l court must be careful not to allow such evidence to change the character of the hearing f ro m one of review to a trial de novo. Id. Accordingly, there is a rebuttable presumption that 3 a witness who testified at the due process hearing is foreclosed from testifying at trial. Id. M o r e o v e r , in ruling on a motion for additional evidence, a court must consider the f o llo w in g factors: not allowing a party to undercut the statutory role of administrative e x p e rtis e , the unfairness involved in one party's reserving its best evidence for trial, the re a so n the witness did not testify at the administrative hearing, and the conservation of ju d ic ia l resources. Id. A. D r . Laura Vogtle V o g tle is an augmentative communication consultant with CRS. Prior to the hearing, V o g tle conducted an independent evaluation of K.I. on three separate visits. At the hearing, V o g tl e testified that K.I. required appropriate assistive technology devises and services, in c lu d in g an augmentative communication system. She also testified that in order to identify th e appropriate assistive technology, K.I. needed to undergo a comprehensive evaluation. T h e Center was inadequate, according to Vogtle, because its staff did not have adequate e x p e rtis e , and K.I. needed to be placed in an educational program where she would interact w ith less or non-disabled children. P la in tif f s have moved this Court to allow Vogtle to testify at trial. Plaintiffs have iden tified four areas they intend her testimony to cover: 1. T h e appropriateness of MPS's current use of assistive technology, including M P S ' s current staff's abilities to instruct K.I. in the use of assistive t e c h n o l o g y. 4 2. K .I.' s progress since the hearing in understanding "cause and effect," m o tiv a tio n , responsiveness, and social skills; also, K.I.'s potential abilities in th e s e areas. 3. 4. T h e appropriateness of K.I.'s current educational program. T h e relationship between K.I.'s current developmental status and r e sp o n s iv e n e s s and her need for socialization with less disabled peers. T h is Court does not feel that Plaintiffs have presented a "solid justification" for a d m ittin g this additional evidence. Plaintiffs assert that the additional evidence is warranted b e c a u se it concerns K.I.'s progress after the hearing. However, Plaintiffs have failed to a rticu late a "solid justification" as to why K.I.'s progress since the hearing will not simply b e cumulative and duplicative of the testimony that was presented at the hearing. See, e.g., W e st Platte R-II School Dist. v. Wilson, 439 F.3d 782, 785 (8th Cir. 2006) (affirming district c o u rt's decision to disallow testimony in IDEA case from witnesses regarding progress since d u e process hearing because courts "normally determine these issues based solely on the a d m in is tra tiv e record"). Based on a review of Plaintiff's proffer of Vogtle's expected testimony, as well as the e v id e n c e presented during the hearing, this Court feels that the expected testimony of Vogtle w ill be cumulative and duplicative of the evidence presented during the hearing and that P lain tiff s have failed to meet their burden to present a "solid justification" for this Court to allo w the additional evidence. For example, Plaintiffs' have not articulated how Vogtle's 5 o p i n i o n s on MPS's "current" use of assistive technology and educational program will be d if f ere n t from her prior testimony or how it will assist this Court in reviewing the a d m in is tra tiv e record. Similarly, Plaintiffs' have not specified how Vogtle's testimony r e g a rd i n g the appropriateness of K.I.'s "current" educational program, developmental status, re sp o n s iv e n e ss , or need for socialization with less disabled peers, will be different from her p rio r testimony or how it will assist this Court in reviewing the administrative record. Plaintiffs argue that the testimony should be admitted because it will be based on V o g tle's observations of K.I. at the Center, whereas she did not have the opportunity to o b s e rv e K.I. at the Center prior to the hearing due to the fact that K.I. was using homebound s e rv ic e s at that time. However, the fact that Vogtle's opinions will be based on different o b s e rv a tio n s does not mean that the testimony will substantively different. The ALJ's o p in io n noted that "Petitioner's experts' opinions related to maximizing the Child's potential, w h ic h is not required by IDEA." With this standard in mind, Plaintiffs have failed to meet th e ir burden to show a solid justification explaining how additional testimony from Vogtle w ill be anything other than cumulative of the testimony at the hearing. Accordingly, Vogtle w ill not be allowed to testify at trial. B. D o n n a Locke and Rochelle West L o c k e is a speech and language therapist who managed the Augmentative C o m m u n ic a tio n Clinic at CRS. She worked with school districts to provide assistive te c h n o lo g y to students with disabilities. Prior to the hearing, Locke conducted an evaluation 6 o f K.I. and assessed K.I.'s ability to use augmentative communication technology. Locke te s tif ie d at the hearing that she believed K.I. was not cognitively impaired, understood "cause a n d effect," and could learn the alphabet, colors, and numbers with appropriate assistive te c h n o lo g y. Also, Locke believed that K.I. needed to receive direct speech and language s e rv i c e s for at least one hour per week from a pathologist specifically trained to use a u g m e n ta tiv e communication. K.I. also needed to work on communication skills with a s p e c ia l education teacher for at least one hour each day, and be afforded continuous o p p o rtu n itie s to use any communication device throughout the day. Locke testified that the C e n te r was inappropriate for K.I. because she is only allowed to use assistive technology o c c a s i o n a l l y. W e st is Locke's successor at CRS and is K.I.'s current speech and language p a th o lo g is t. West did not evaluate K.I. until after the hearing, and so did not testify at the h e a rin g . Plaintiffs have indicated that they expect West to testify regarding the following s u b j e c t matters: 1. K .I.'s ability to use assistive technology, and her need for extensive exposure to the technology. 2. K .I.'s progress in understanding "cause and effect" when working with a ss istiv e technology, and K.I.'s ability to respond to stimuli. 3. 4. K .I.' s need for exposure to students who can verbally communicate.. K .I.'s motivation, demonstrated enjoyment of social interactions, and need for 7 a more stimulating environment including placement with students who are le ss impaired. W h ile West did not testify at the hearing, her evaluations of K.I. were conducted as th e successor to Locke's position at CRS. Moreover, a review of her proffered testimony, a s well as a review of the evidence presented at the hearing, leads this Court to conclude that h e r testimony would be cumulative and duplicative of evidence presented at the hearing, such a s the testimony of Vogtle and Locke. In addition, for the same reasons discussed regarding V o g tl e , the fact that West's testimony will be based on observations at the Center is not a s u f f ic ie n t justification to warrant admitting the additional evidence. Consequently, Plaintiffs h a v e failed to meet their burden to show a "solid justification" and West will not be p e rm itte d to testify at trial. P la in tif f s have also moved this court to permit Locke to testify. Plaintiffs submit that L o c k e will testify as to K.I.'s progress in responsiveness and visual tracking skills, as well a s her need for additional auditory and visual stimulation. Locke will also testify about the re la tio n s h i p between K.I.'s present level of functioning and her need for a less restrictive en v iro n m en t. Despite the fact that Locke has only now had the opportunity to observe K.I. a t the Center, the Court finds that this testimony will be cumulative and duplicative of the e v id e n c e presented at the hearing, such as the prior testimony of Locke. Therefore, Plaintiffs h a v e failed to meet their burden to show a "solid justification" for allowing this additional e v id e n c e . Thus, Locke will not be permitted to testify at trial. 8 I I I . CONCLUSION F o r the reasons set forth above, it is hereby ORDERED that Plaintiffs' Motion to S u p p le m en t the Record (Doc. # 46) is DENIED. D O N E this the 30th day of September, 2008. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 9

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