Blount County Board of Education v. Bowens

Filing 59

MEMORANDUM OPINION AND ORDER: As further set out in order, the court GRANTS Bowens' motion for summary judgment and DENIES Blount County's and Carr's motions. This case is DISMISSED with prejudice. Bowens and J.B. are ORDERED to jointl y submit their motion for attorneys fees by March 15, 2013. Blount Countys and Carr's joint response is due by March 29, 2013, and the joint reply, if any, is due by April 5, 2013. Signed by Judge Abdul K Kallon on 02/28/13. Associated Cases: 2:11-cv-03539-AKK, 2:11-cv-03555-AKK(CVA)

FILED
2013 Feb-28 PM 04:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLOUNT COUNTY BOARD OF
EDUCATION,
Plaintiff,
vs.
MELINDA BOWENS,
Defendant.

J.B., by and through his mother,
Melinda B,
Plaintiff,
vs.
JAMES E. CARR,
Superintendent of and for Blount
County Board of Education,
Defendant.

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Lead Civil Action Number
2:11-cv-3539-AKK

Member Civil Action Number
2:11-cv-3555-AKK

MEMORANDUM OPINION AND ORDER
The dispute before this court centers on the obligations a school system has
to provide a free and appropriate public education (“FAPE”) to a disabled child
under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400,

Page 1 of 33

et seq. After an administrative hearing officer found that Blount County Board of
Education failed to offer J.B., Melinda Bowens’ three year old autistic son, a
FAPE and ordered Blount County to reimburse Bowens for J.B.’s private school
tuition, Blount County filed the lead civil action against Bowens challenging the
hearing officer’s finding. Case No.: 2:11-cv-3539-AKK, doc. 1. Subsequently,
J.B., through his mother Bowens, filed the member civil action against Blount
County Superintendent James E. Carr seeking attorney’s fees and costs as the
prevailing party of the administrative proceeding and sanctions for “unreasonably
protracting the final resolution of the controversy,” and a motion to consolidate
the actions. Case No.: 2:11-cv-3555-WMA, docs 1 and 4. The court granted the
motion to consolidate, doc. 9,1 and now has for its consideration cross motions for
summary judgment, docs. 13, 34, 24 and 36. The motions are fully briefed and
ripe for resolution. Docs. 27, 28, 46, 51. For the reasons stated below, the court
GRANTS Bowens’ motion and DENIES Blount County’s and Carr’s motions.
I. STANDARD OF REVIEW
The parties filed motions under Rule 56(a) of the Federal Rules of Civil
Procedure, which states that summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
1

The court will refer to the document numbers in the lead case, 2:11-cv-3539-AKK.
Page 2 of 33

judgment as a matter of law.” This general principle is inapplicable here because
“summary judgment [in IDEA cases] has been deemed appropriate even when
facts are in dispute, and is based on a preponderance of the evidence. That is why
the district court’s decision ‘is perhaps better described as judgment on the
record.’” Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313
(11th Cir. 2009) (citations omitted). To that end, the IDEA requires the district
court to conduct a de novo review of the hearing officer’s findings. Bd. of Ed. v.
Rowley, 458 U.S. 176, 206 (1982). In doing so, the court must give “due weight”
to the administrative hearing officer’s determination: “The fact that § 1415[ ]
requires that the reviewing court ‘receive the records of the [state] administrative
proceedings’ carries with it the implied requirement that due weight shall be given
to these proceedings.” Id. at 206-207.2 As such, “administrative factfindings are
considered to be prima facie correct, and if a reviewing court fails to adhere to
them, it is obliged to explain why.” Loren F., 349 F.3d at 1314 n.5 (citations and

2

See also 20 U.S.C. § 1415(i)(2)C):
“In any action brought under this paragraph, the court-(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.”

Page 3 of 33

quotation marks omitted). Therefore,
a court’s inquiry in suits brought under § 1415 [ ] is two fold. First,
has the State complied with the procedures set forth in the Act? And
second, is the individualized education program [“IEP”] developed
through the Act’s procedures reasonably calculated to enable the
child to receive educational benefits? If these requirements are met,
the State has complied with the obligations imposed by Congress and
the courts can require no more.
Rowley, 458 U.S. at 206-207. “A ‘no’ answer means no FAPE was provided [ ],
thus enabling the student to resort to private school and seek reimbursement from
the school district under 20 U.S.C. § 1412(a)(10)(C)(ii).” Loren F., 349 F.3d at
1312.
II. FACTS
A.

Bowens’ initial meetings with Blount County officials
Bowens and her autistic son J.B. resided in Blount County, Alabama at all

times relevant to this lawsuit. Docs. 25-4 at 12, 15. Prior to his third birthday,
J.B.’s autism caused him to exhibit “moderate-severe mixed receptive and
expressive language disorder,” “delayed motor skills,” “difficulty understanding
directions,” “repetitious behaviors,” and delays in social and communicative
development. Docs. 25-4 at 12, 15; 25-48 at 8. As a result, J.B.’s pediatrician
referred him to Susan Betke, the Early Intervention Coordinator at The Arc, for

Page 4 of 33

intervention services.3 Doc. 25-48 at 8. Betke arranged for J.B. to receive speech
and occupational therapy and an evaluation at the University of Alabama at
Birmingham’s Sparks Clinic. Doc. 25-48 at 8. Bowens returned to the Sparks
Clinic in late April to meet with the practitioners to discuss J.B.’s autism
diagnosis. Doc. 25-4 at 13. The Sparks Clinic’s report stated, in relevant part:
[T]he family should begin to have some conversation with early
intervention regarding transition planning. [J.B.] will be eligible for
comprehensive special education services once he turns three year[s]
old. The goal is to have [J.B.’s IEP] in place so services with the
school system may begin on his third birthday.
****
[J.B.] needs an intensified approach to treatment. Young children
with Autistic Disorder appear to benefit significantly from 25 hours
or more per week of intervention, delivered in highly structured
settings, with very specific teaching goals that address all areas of
development.
****
It is recommended that [J.B.] attend a structured preschool on a fulltime basis. Exposure to typically developing peers is often helpful in
facilitating communication and interaction skills as children often
learn through observation and imitation.
Id. at 13, 16, 19 (emphasis added).
In April 2009, before the Sparks Clinic diagnosed J.B. with autism, Betke
also arranged a meeting (known as Early Intervention to Preschool Transition

3

The Arc is “a powerful voice for all people with [intellectual and developmental
disabilities], working daily to create opportunities for individuals and drive systemic change.”
www.arcjc.org/whoweare/.
Page 5 of 33

Planning Meeting) with Bowens and Blount County’s speech pathologist Jan
Sullivan to discuss options for J.B.’s education. Docs. 25-4 at 6; 25-48 at 9; 25-51
at 11, 16, 25-20 at 27; 20 U.S.C § 1412(a)(9); Ala. Admin. Code 290-8-9.01(1)(d). Betke arranged this meeting to comply with the IDEA’s mandate that
J.B.’s IEP begin by his third birthday. 20 U.S.C. § 1412 (a)(1)(A); Ala. Admin.
Code, 290-8-9-.01(d). During the meeting, Bowens described J.B.’s behavior and
explained that she had to withdraw J.B. from First Baptist Church of Pinson’s
daycare program because J.B. was not toilet trained. Docs. 24-19 at 15; 25-48 at
9-10. Sullivan then informed Bowens of educational options available in her area,
including that J.B. could attend and receive services at the Multi-Needs Center in
Cleveland, Alabama for two or three days per week or attend the kindergarten
program at Locust Fork Baptist Church. Docs. 25-4 at 5; 25-48 at 9-11; 25-54 at
56. However, Bowens viewed the suggested placement at Locust Fork as a nonstarter because Locust Fork also has a toilet trained requirement. Docs. 25-48 at
9-11; 25-54 at 56. The meeting ended with Bowens and Sullivan agreeing to meet
again in May to review the Sparks Clinic results. Doc. 25-48 at 12.
In May 2009, since J.B. was still two years old and Blount County had no
obligation yet to educate him, Bowens enrolled J.B. at Mitchell’s Place in
Birmingham, Alabama for the 2009-2010 school year. Doc. 25-48 at 15-16.
Page 6 of 33

Bowens relayed this fact to Sullivan when the two met in May 2009 for their
second meeting. Id. Bowens also provided Sullivan a copy of the Sparks Clinic’s
autism diagnosis, which formed the basis for J.B.’s special education services. Id.
at 15; doc. 25-5 at 13, 19. Sullivan again offered placement at the Multi-Needs
Center for two days per week, which Bowens rejected based on the Sparks
Clinic’s recommendations that J.B. needs “25 hours or more per week of
intervention” and “structured preschool on a full-time basis.” Docs. 25-4 at 13,
19; 25-48 at 15; 25-51 at 64 (emphasis in original). Sullivan also offered a Head
Start placement although Bowens was ineligible because of her income. Doc. 2548 at 15. However, Sullivan failed to offer Hayden Primary School, which is an
“extension of the Multi-Needs Center” and is the “same program, just in a
different location,” because it was not in Bowens’ local area. Docs. 25-51 at 66;
25-48 at 22; 25-3 at 15; see also doc. 25-51 at 18. Presumably, Hayden Primary
School had the resources to provide J.B. treatment that was consistent with the
Sparks Clinic’s recommendation. In any event, at Bowens’ request, Sullivan
agreed to arrange for J.B. to receive speech and occupational therapy at Blount
County’s Locust Fork Elementary School beginning in January 2010 so that J.B.
could get accustomed to the school before enrolling in kindergarten. Docs. 25-48
at 16, 19, 20; 25-5 at 19.
Page 7 of 33

B.

The October 7, 2009 IEP meeting
In October 2009, shortly before J.B.’s third birthday, Bowens and Sullivan

met to formulate J.B.’s IEP.4 Doc. 25-5 at 13. The parties completed various
documents memorializing the IEP, which, in relevant part, state:
•

That “Blount County School System is accepting all the previous
evaluations from Children’s Hospital - Sparks Center, etc.” and that further
evaluations are “not needed.”

•

Noted J.B.’s autism diagnosis, that J.B. is enrolled at Mitchell’s Place where
he receives speech and occupational therapy, and that J.B. receives speech
and occupational therapy through Blount County.

•

The IEP form’s least restrictive environment5 section stated: “Does this
student attend the school (or for a pre-school-age student, participate in the
environment) he/she would attend if nondisabled? Yes.” Importantly, the
section labeled “Secondary LRE (only if LRE above is Private SchoolParent Placed)” was left blank.

•

The Notice of Intent Regarding Special Education Services signed by
Sullivan and other Blount County officials stating that (1) the “IEP Team
considered a request to initiate or change” J.B.’s “Provision of Free
Appropriate Public Education,” but the “Placement” box option was
unchecked; (2) “[J.B.] will continue to receive Early Intervention Services.
He will attend Mitchell’s Place in the fall. . . . The parents have enrolled
[J.B.] in Early Intervention Services and at Mitchell’s Place;” and (3) the

4

Steve Love and Rebecca Goble signed the IEP form as conference attendees, but later
admitted that they did not attend the conference. Doc. 25-5 at 25.
5

Least restrictive environment is used to mean that children with disabilities are educated
with non-disabled children and “removal of children with disabilities from the regular
educational environment occurs only if the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily.” 34 C.F.R. § 300.114(a)(2)(i) and (ii); see also Ala. Admin. Code 290-8-9-.06(1).
Page 8 of 33

“family considered placing [J.B.] in the Multi-Needs Preschool classroom,
but decided to place him at Mitchell’s place.”
•

The Persons Responsible for IEP Implementation form, signed by Sullivan
and J.B.’s Mitchell’s Place teacher, stating that the Mitchell’s Place “have
access to the IEP and have been informed of their responsibility in
implementing the IEP, and of the specific accommodations, modifications,
and support that must be provided for [J.B.] for [the] 2009-2010 school
year.”

Docs. 25-5 at 18, 19, 27, 36, 54; 25-48 at 27 (emphasis added).6 According to
Sullivan, “[t]he IEP team made the decision to accept that IEP,” which was
“negotiated [ ] based on what the parents wanted and what the IEP team decided
was appropriate for the child and was agreed upon and finalized.” Docs. 25-54 at
29; 25-51 at 68 (emphasis added). Although J.B.’s IEP form states that Bowens
considered the Multi-Needs Center but decided to place J.B. at Mitchell’s Place,
Sullivan testified that Bowens requested only speech and occupational
consultation services and “had no interest in the preschool programs in Blount
County. [Bowens] had already made the decision about Mitchell’s Place.” Docs.
25-54 at 56; 25-5 at 27.

6

Although there were other meetings with J.B.’s parents and Blount County officials prior
to the October 2009 IEP meeting, the court addresses only the meetings relevant to its
determination of the issues.
Page 9 of 33

C.

Bowens’ requests for J.B.’s Mitchell’s Place tuition reimbursement and a
due process hearing and the hearing officer’s decision
Consistent with the IEP, J.B. attended Mitchell’s Place for the 2009-2010

school year. In May 2010, during an IEP meeting at Blount County, Bowens
requested for the first time that Blount County pay J.B.’s 2009-2010 Mitchell’s
Place tuition. Doc. 25-48 at 55. Bowens subsequently made the request in writing
on July 27, 2010. Doc. 25-7 at 11. After Blount County rejected the requests,
doc. 25-53 at 15, Bowens asked for a due process hearing with the Alabama State
Department of Education in which she alleged that Blount County failed to offer
J.B. a FAPE and requested tuition reimbursement. Doc. 25-18 at 5. Ultimately, the
hearing officer found in Bowens’ favor:
The State Department of Education regulations require that a school
make a [FAPE] available to a disabled child no later than the child’s
third birthday. Ala. Admin. Code, 290-8-9-.01(d). [Sullivan] insisted
that the October 7, 2009 IEP was ‘negotiated.’ That assessment is
stretching the events that actually occurred at the meeting. According
to the parents, the offer of services was fundamentally a ‘take or leave
it’ proposition. In that regard, the services offered by the school
system for the 2009-2010 school year were not designed to provide a
[FAPE].
It was the position of the special education director for the
school system that once the parents elected to enroll the child in the
Mitchell’s Place the school system was not obligated to provide
services to a child enrolled in an out-of-county placement. However,
it is the finding of the Hearing Officer that the local education
representative of the school system acquiesced and approved the
parent’s placement of their son in Mitchell’s Place. She sought and
Page 10 of 33

obtained the acknowledgment of Mitchell’s Place that it was
responsible for implementation of Petitioner’s 2009-2010 IEP. In her
role as [the local educational agency representative (“LEA”),
Sullivan] committed the agency resources to ensure that adequate
services would be provided to the child at Mitchell’s Place via
implementation of the IEP. Ala. Admin. Code, 290-8-9-.05(3)(d)4.
The fact that reimbursement was not discussed at that time does not
warrant a different conclusion. A parent of a disabled child should
not be led to believe that the school system approves a placement of a
child and then, when the parent learns they are entitled under the law
to reimbursement for that placement, have the school system decline
to provide such reimbursement.
****
The procedural violations of the school system involving the
lack of a notice of intent regarding reimbursement, the absence of an
appropriate LEA and general education teacher at the October 2009
IEP meeting and the contention that the speech pathologist [Sullivan]
who participated in the IEP meeting was not actually a LEA do not
warrant relief other than as specified [ ] below.
****
The parents are entitled to reimbursement for the enrollment of
the child at Mitchell’s Place beginning October 7, 2009 and for the
remainder of the academic 2009-2010 school year. Further, because
it was clear from the evidence that Petitioner needed extended school
year services yet the local education agency did not respond to that
need the parents are also entitled to reimbursement for June 2010 and
July 2010. The school system shall reimburse the parents Mitchell’s
Place tuition for the months of October 2009 though July 2010 as
well as mileage at [the] regularly mandated rate for the local
education agency. [ ]. The parents shall be required to provide
documentation of both tuition and other fees at Mitchell’s Place as
well as the miles traveled. The local education agency is entitled to
an offset for any sums paid to Mitchell’s Place as a consequence of
parents’ insurance.

Page 11 of 33

Doc. 25-3 at 49-50, 51-52.7 It is this decision that Blount County challenges and
for which J.B., through Bowens, seeks attorney’s fees as the prevailing party and
sanctions.
III. ANALYSIS
A.

IDEA
The IDEA “ensure[s] that all children with disabilities have available to

them a [FAPE] that emphasizes special education and related services designed to
meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A); Rowley, 458 U.S. at 176. A
FAPE is special education services that:
(A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool [ ] education in the State involved; and
(D) are provided in conformity with the individualized education program
required under section 1414(d).
20 C.F.R. § 1404(9). “Related services” include “such developmental, corrective,
and other supportive services (including speech-language pathology [and]
psychological services . . .) as may be required to assist a child with a disability to

7

Bowens also requested tuition reimbursement for J.B.’s 2010-2011 school year at
Mitchell’s Place. Doc. 25-3 at 1. The hearing officer declined that request and Bowens did not
appeal that issue.
Page 12 of 33

benefit from special education.” 20 U.S.C. §§ 1401(26)(A) and 1404(9).
There are several basic steps involved in creating a FAPE. First, the school
board must formulate an IEP annually “during a meeting between the student’s
parents and school officials.” 20 U.S.C. §§ 1414(d)(1)(A)-(B) and (d)(2)(A). This
meeting “protect[s] the informed involvement of parents in the development of an
education for their child.” Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 524 (2007). Basically, the IEP outlines the child’s current
educational performance, establishes annual objectives to improve the
performance, and describes the instruction and related services needed to enable
the child to meet those objectives. 20 U.S.C. § 1414(d). Critically, “[t]he Act
contemplates that such education will be provided where possible in regular public
schools, with the child participating as much as possible in the same activities as
nonhandicapped children, but the Act also provides for placement in private
schools at public expense where this is not possible.” See Sch. Comm. of Town of
Burlington v. Dept. of Educ., 471 U.S. 359, 369 (1985) (citations omitted). In
other words, “[t]o the maximum extent appropriate,” a disabled child’s educational
placement must conform with the child’s least restrictive environment (“LRE”).
20 U.S.C. § 1412(a)(5). The regulations require a child’s LRE to be, among other
things, (1) based on the child’s IEP, (2) as close as possible to the child’s home,
Page 13 of 33

(3) in the school where the child would be educated if non-disabled, unless the IEP
requires some other arrangement, and (4) in age appropriate regular classrooms.
Ala. Admin. Code 290-8-9-.06(1).
Next, once an IEP is formulated, the school must determine whether to
provide the child’s special educational needs. See Burlington, 471 U.S. at 369. If
the school decides not to provide the services described in the IEP, or decides that
it cannot provide a FAPE, the school must refer the child to private placement at
public expense. See 20 U.S.C. § 1412(a)(10)(B)(i). Conversely, if the school opts
to provide the services, the parents can (1) enroll their child and the school must
provide the services described in the IEP, (2) agree that the IEP provides FAPE
but voluntarily enroll their child in a private program at the parents’ expense, or
(3) reject the IEP and challenge it through a due process hearing. See 20 U.S.C.
§§ 1412(a)(6)(A), (a)(10)(B) and (C).8 Relevant to this lawsuit,

8

20 U.S.C. § 1412(a)(10)(C)(iii) provides, in relevant part, that
“Payment for education of children enrolled in private schools without consent of or referral by
the public agency
(i) In general
Subject to subparagraph (A), this subchapter does not require a local educational agency to pay
for the cost of education, including special education and related services, of a child with a
disability at a private school or facility if that agency made a free appropriate public education
available to the child and the parents elected to place the child in such private school or facility.
(ii) Reimbursement for private school placement
If the parents of a child with a disability, who previously received special education and related
services under the authority of a public agency, enroll the child in a private elementary school or
secondary school without the consent of or referral by the public agency, a court or a hearing
Page 14 of 33

the IDEA authorizes reimbursement for the cost of private specialeducation services when a school district fails to provide a FAPE and
the private-school placement is appropriate, regardless of whether the
child previously received special education or related services
through the public school.
When a court or hearing officer concludes that a school district failed
to provide a FAPE and the private placement was suitable, it must
consider all relevant factors, including the notice provided by the
parents and the school district’s opportunities for evaluating the child,
in determining whether reimbursement for some or all of the cost of
the child’s private education is warranted.
Forest Grove, 557 U.S. at 247; 20 U.S.C. §§ 1412 (a)(10)(C) & 1415(i)(2)(C)(iii).
With this framework in mind, the court now addresses the parties’
respective contentions, beginning first with whether Blount County offered J.B. a
FAPE, then whether J.B.’s placement at Mitchell’s Place was appropriate, and,
finally, whether equity considerations favor a finding that reimbursement of J.B.’s

officer may require the agency to reimburse the parents for the cost of that enrollment if the court
or hearing officer finds that the agency had not made a free appropriate public education
available to the child in a timely manner prior to that enrollment.
(iii) Limitation on reimbursement
The cost of reimbursement described in clause (ii) may be reduced or denied-(I) if-(aa) at the most recent IEP meeting that the parents attended prior to removal of
the child from the public school, the parents did not inform the IEP Team that
they were rejecting the placement proposed by the public agency to provide a free
appropriate public education to their child, including stating their concerns and
their intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior
to the removal of the child from the public school, the parents did not give written
notice to the public agency of the information described in item (aa).”
Page 15 of 33

tuition is warranted.
B.

Blount County failed to provide J.B. a FAPE
The critical inquiry here is confined to the October 2009 IEP the parties

executed just prior to J.B.’s third birthday. 20 U.S.C. § 1412 (a)(1)(A); Ala.
Admin. Code, 290-8-9-.01(d). The IEP reflects that Bowens rejected Blount
County’s offer to place J.B. at the Multi-Needs Center. Docs. 25-48 at 23; 25-52
at 64. Therefore, to obtain reimbursement of J.B.’s 2009-2010 Mitchell’s Place
tuition, Bowens must first show that the proposed placement at the Multi-Needs
Center was inappropriate. Forest Grove, 557 U.S. at 246, (citing Florence Cnty.
Sch. Dist. #4 v. Carter, 510 U.S. 7, 15 (1993).
To make this showing, consistent with the hearing officer’s finding, Bowens
contends that Blount County failed to offer J.B. a FAPE because two to three days
placement at the Multi-Needs Center failed to sufficiently meet J.B.’s needs for
the fundamental reason that it is inconsistent with the Sparks Clinic’s assessment
and recommendation. Docs. 13-1 at 14; 25-48 at 23. Based on the court’s de novo
review, the court finds that the record supports the hearing officer’s finding. As a
threshold matter, the evidence is undisputed that Blount County accepted the
Sparks Clinic’s evaluation. Doc. 25-5 at 36. Consequently, Blount County had an
obligation to provide a FAPE consistent with the Sparks Clinic’s determination
Page 16 of 33

that J.B. required a minimum of twenty-five hours of intensive instruction per
week and that J.B. “attend a structured preschool on a full-time basis.” Docs. 25-4
at 19; 24-4 at 13, 16. Therefore, Blount County’s offer for J.B. to attend the
Multi-Needs Center for two to three days per week fell significantly short of
satisfying J.B.’s “unique needs,” as outlined by the Sparks Clinic. 20 U.S.C. §
1400(d)(1)(A); see also Rowley, 458 U.S. at 176. Based on these facts, the
hearing officer’s finding that the Multi-Needs Center placement offer failed to
meet the Sparks Clinic’s determination of J.B.’s required services is prima facie
correct. See Loren F., 349 F.3d at 1314 n.5.
Blount County’s contention that genuine issues of fact exist regarding
whether the Multi-Needs Center placement adequately met J.B.’s needs misses the
mark. In fact, the court is confounded by this contention given that Blount County
acknowledged that the Multi-Needs Center was an inappropriate placement when
it agreed in the IEP meeting to J.B.’s Mitchell’s Place placement. Docs. 25-54 at
29; 25-51 at 68. Moreover, even ignoring this fact, the purported factual dispute
rests on an erroneous reading of the testimony of Blount County’s expert Becky
Brothers. Specifically, Blount County alleges that Brothers, its Special Education
Coordinator, testified that two to three days at the Multi-Needs Center
appropriately met J.B.’s needs. Docs. 27 at 15; 25-50 at 43; 25-53 at 12.
Page 17 of 33

However, Blount County overlooks conveniently that Brothers’ based her
contention on the absence of an autism diagnosis:
Q:

[B]ased on your expertise and looking at [the Early Intervention to
Preschool Transition Planning Meeting Documentation], would two
days a week at the Multi-Needs Center, would that be an appropriate
location and appropriate amount of time and resources available to
serve this child as his needs are documented on [the Early
Intervention to Preschool Transition Planning Meeting
Documentation]?

A:

Yes, they would.

Q:

Because at this point in time, there is not an Autism diagnosis that the
school district knows about; correct?

A:

Correct.

Doc. 25-50 at 43 (emphasis added). While Brothers’ assessment may be correct
with respect to the initial meeting that occurred in April 2009, unfortunately for
Blount County, the May 2009 autism diagnosis J.B. received, well prior to the
October 2009 meeting to develop J.B.’s IEP, undermines Brothers’ testimony.
Again, the Sparks Clinic diagnosed J.B. with autism and recommended an
“intensified approach to treatment” and “25 hours or more per week of
intervention, delivered in highly structured settings.” Doc. 25-4 at 13. It is this
diagnosis that established J.B.’s eligibility for special education services and
provided the basis for Blount County’s obligation to develop J.B.’s IEP.

Page 18 of 33

Consequently, because Brothers’ testimony is premised on the absence of an
autism diagnosis, her testimony is insufficient to disturb the preponderance of
evidence that establishes that the Multi-Needs Center placement failed to provide
J.B. a FAPE. Loren F., 349 F.3d at 1313.
Based on the record before this court, Blount County failed to establish that
the hearing officer’s determination is not entitled to “due weight.” See Rowley,
458 U.S. at 206. The court agrees with the hearing officer and finds as a matter of
law that Blount County’s offer for J.B. to attend the Multi-Needs Center for two to
three days per week was inconsistent with the Sparks Clinic’s evaluation and
recommendations, and that Blount County failed to provide J.B. a FAPE.
C.

Mitchell’s Place was appropriate and provided J.B. a FAPE
The court turns next to Blount County’s contention that Bowens’ “unilateral

placement of her child in a private program outside of her child’s neighborhood
and community when such a program is not required violates the IDEA’s [least
restrictive environment] mandate.” Doc. 34-1 at 16.9 Basically, Blount County
9

34 C.F.R. § 300.116 provides, in relevant part:
“(b) The child’s placement –
(1) is determined at least annually;
(2) is based on the child’s IEP; and
(3) is as close as possible to the child’s home;
(c) Unless the IEP of a child with a disability requires some other arrangement, the child is
educated in the school that he or she would attend if non-disabled;
(d) In selecting the LRE, consideration is given to any potential harmful effect on the child or on
Page 19 of 33

maintains that Bowens released it from its IDEA obligations by unilaterally
enrolling J.B. at Mitchell’s Place. This argument is unavailing, in part, because
although Bowens enrolled J.B. at Mitchell’s Place before the October 2009 IEP
conference, Blount County never objected and, in fact, acquiesced to the
placement. See Burlington, 471 U.S. at 372 (unilateral placement found where
parents rejected the proposed IEP, withdrew their son from his public placement,
and placed him at a private school); Carter, 510 U.S. at 13 (unilateral placement
where “the private placement has necessarily been made over the schools
districts’s objection). Moreover, Bowens’ decision to place J.B. at Mitchell’s
Place, even if unilaterally made, does not absolve Blount County from its IDEA
obligations. Rather, the regulations state unequivocally that Blount County’s
responsibility for providing J.B. a FAPE only ceases “if appropriate services are
available in the local education agency of residence.” Ala. Admin. Code, 290-8-9.10(b) (emphasis added). Where, as here, Blount County failed to offer J.B.
appropriate services, it remained responsible for providing J.B. a FAPE despite the
family’s decision to place J.B. at a private facility.
Based on this record, the court finds no basis to disturb the hearing officer’s
decision. As the hearing officer found, the Mitchell’s Place placement was

the quality of services that he or she needs.”
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consistent with the LRE mandate and the Sparks Clinic’s evaluation and
recommendations. Indeed, the IEP Blount County developed specified the
Mitchell’s Place placement as J.B.’s LRE because it is a “school that he would
attend if not nondisabled.” Doc. 25-5 at 18. This IEP, which Blount County
“negotiated” and “what the IEP team decided was appropriate . . . and was agreed
upon,” established unequivocally that Blount County agreed that Mitchell’s Place
was J.B.’s LRE. The decision by Blount County to accept the Mitchell’s Place
placement was appropriate and not surprising because, consistent with the Sparks
Clinic’s recommendation, the placement allowed J. B. to attend school five days
per week, have “exposure to typically developing peers” to facilitate J.B.’s
“communication and interaction skills,” and, rather than the Multi-Needs Center’s
class 6:2 ratio of disabled to typical students, J.B.’s class had “seven typically
developing children” and “[five] children on the autism spectrum.” Docs. 25-3 at
28; 25-8 at 13, 17-36; 25-4 at 19. Furthermore, J.B.’s Mitchell’s Place IEP team
formulated a comprehensive IEP that included communication, social/emotional
(play), social/emotional (social behavior and play), verbal behavior/Applied
Behavior Analysis, motor, adaptive, language and literacy, and oral motor
evaluations and benchmark goals. Doc. 25-8 at 17-36. Finally, in light of Blount
County’s failure to offer any viable options close to Bowens’ home, the distance
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between Bowens’ home and Mitchell’s Place did not violate the IDEA’s
requirement that J.B. receive services as close to his home as possible.
In short, based on the evidence before this court, no credible basis exists for
Blount County to challenge the hearing officer’s findings regarding the Mitchell’s
Place placement. Accordingly, the court finds that the hearing officer’s findings
are supported by a preponderance of the evidence and, as such, accords them due
weight.
D.

Equitable Factors
In light of the determination that Blount County failed to offer J.B. a FAPE

and that Mitchell’s Place was an appropriate placement, the court now addresses
the equitable considerations it must evaluate in determining if reimbursement is
warranted. The IDEA provides aggrieved parties the right to bring a civil action
and authorizes the court to grant relief “as the court determines appropriate,” 20
U.S.C. § 1415(i)(2)(C)(iii), including reimbursement, which is “a matter of
equitable relief, committed to the sound discretion of the district court,” Loren F.,
349 F.3d at 1314 (citations omitted). The court’s authority includes “the power to
order school authorities to reimburse parents for their expenditures on private
special-education services if the court ultimately determines that such placement,
rather than a proposed IEP, is proper under the Act.” Burlington, 471 U.S. at 369;
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see also Carter, 510 U.S. at 7. “When a court [ ] concludes that a school district
failed to provide a FAPE and the private placement was suitable, it must consider
all relevant factors, including the notice provided by the parents and the school
district’s opportunities for evaluating the child, in determining whether
reimbursement for some or all of the cost of the child’s private education is
warranted.” Forest Grove, 557 U.S. at 247. Moreover, “courts retain discretion to
reduce the amount of a reimbursement award if the equities so warrant.” Id. at 232
(internal citations omitted); see Burlington, 471 U.S. at 370. Finally, “Congress
meant to include retroactive reimbursement to parents as an available remedy in a
proper case. . . . Reimbursement merely requires the [school district] to belatedly
pay expenses that it should have paid all along and would have borne in the first
instance had it developed a proper IEP.” Burlington, 471 U.S. at 370-371.10
Blount County contends that it is not obligated to reimburse Bowens
because she (1) failed to provide timely notice of the intent to seek reimbursement,
(2) refused to visit Blount County’s programs or talk to its teachers, and (3) is
estopped from claiming reimbursement because she purportedly only requested

10

“In considering the equities, courts should generally presume that public-school officials
are properly performing their obligations under IDEA.” Forest Grove, 557 U.S. at 247. Based
on the procedural violations and credibility issues cited by the hearing officer, doc. 25-3 at 31,
38, the court declines to presume that Blount County properly performed its obligations under the
IDEA.
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consultative services. Docs. 27 at 20-25, 34-1 at 17-27. The court addresses each
contention in turn.
1.

Alleged delay in providing notice of intent to seek reimbursement

Blount County’s timeliness contention is premised on several grounds.
First, Blount County essentially asserts a waiver argument by maintaining that
Bowens failed “to notify the local school district of [her] intent to enroll [J.B.]
unilaterally in a private school placement and seek tuition reimbursement from the
school district” and to give the district an opportunity to address her concerns.
Docs. 27 at 20; 34-1 at 17, 19. Unfortunately for Blount County, the evidence
belies its claim that Bowens unilaterally placed J.B. at Mitchell’s Place. Id.
Rather, based on the record before this court, Blount County accepted the Sparks
Clinic’s evaluation of J.B.’s specific needs and services, failed to offer J.B. a
FAPE, knew about Bowens’ dissatisfaction with the Multi-Needs Center and prior
placement of J.B. at Mitchell’s Place, and consented to the Mitchell’s Place
placement for the 2009-2010 school year. Docs. 25-54 at 29; 25-51 at 68.
Therefore, Blount County’s waiver argument is unavailing.
Second, relying on A.H. v. New York City Dep’t of Educ., 652 F. Supp. 2d
297 (E.D.N.Y. 2009), Blount County contends that Bowens’ failure to provide
notice at the October 2009 IEP meeting that she intended to seek reimbursement
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constitutes undue delay and a waiver of her right to seek reimbursement. Docs. 27
at 16; 34-1 at 24. The reliance on A.H. misses the mark since the facts are
distinguishable from the matter before this court. Specifically, in A.H. the court
denied the plaintiff’s request for private school reimbursement because the
plaintiff unilaterally placed her child in private school before completing the IEP
process and prior to the school board’s offer of a FAPE, which “demonstrated that
[the plaintiff] did not seriously intend to enroll [her child] in public school.” A.H.,
652 at 313. In contrast, here, Bowens enrolled J.B. at Mitchell’s Place at age two
prior to Blount County having any obligation to provide J.B. a FAPE. Thereafter,
Bowens contacted Blount County when J.B. turned three to request the FAPE,
which establishes that Bowens expected Blount County to provide an education
for her son as the law requires. Critically, unlike in A.H., Blount County failed to
offer J.B. a FAPE. Moreover, Sullivan’s testimony that Blount County
“negotiated [the IEP] based on what the parents wanted and what the IEP team
decided was appropriate for the child and was agreed upon and finalized”
demonstrates, as the hearing officer correctly determined, that Blount County
“acquiesced and approved the parent’s placement of their son in Mitchell’s Place.”
Docs. 25-3 at 49-50; 25-54 at 29; 25-51 at 68 (emphasis added); see Carter, 510
U.S. at 12 (the promise of a FAPE is “met by an IEP’s provision for education in
Page 25 of 33

the regular public schools or in private schools chosen jointly by school officials
and parents.”). Therefore, the court rejects Blount County’s contention that
Bowens failed to provide timely notice.
Third, Blount County asserts that it “would have offered the additional
services allegedly sought by Bowens” had it known that Bowens intended to seek
reimbursement. Docs. 27 at 22; 34-1. In other words, Bowens’ purported failure
to timely notify Blount County of her intent to seek reimbursement placed Blount
County at a disadvantage since it did not have the opportunity to devise
alternatives for J.B. Under this logic, a school can wait to see if a parent will
pursue a private placement without requesting reimbursement and then only fully
comply and provide a FAPE if the parent requests reimbursement for the private
placement or insists that the school meets its legal obligation fully. The court
declines to sanction such a practice which the court finds would make a mockery
of the IDEA. The court rejects this contention also because it is contrary to the
evidence, which shows that Bowens sought services from Blount County for J.B.
in line with the Sparks Clinic’s recommendations. Given that Blount County
accepted these recommendations, it follows that Blount County had an obligation
to provide J.B. a FAPE consistent with the recommendations during the October
2009 IEP meeting. Blount County simply cannot offer an inadequate option and
Page 26 of 33

then wash its hands of its obligations, especially since Bowens informed it of the
inadequacy of the offered placement and Blount County’s representative Sullivan
agreed with this assessment by signing off on J.B.’s placement at Mitchell’s Place.
In doing so, Sullivan bound Blount County to provide J.B.’s private placement at
public expense. Doc. 25-54 at 29; 25-51 at 68.
Finally, the court likewise finds unavailing Blount County’s contention that
Bowens’ request for private placement reimbursement and a due process hearing
seven months after the October 2009 IEP meeting constituted an undue delay.
Doc. 43-1 at 22. Blount County failed to present any evidence of bad faith or an
actual intent to delay. In fact, Bowens maintains that she asked for reimbursement
as soon as she learned that it may be available to her. Doc. 25-48 at 55. Likewise,
the need for a due process hearing became evident only after Blount County
denied the reimbursement request. Doc. 25-1. Moreover, Blount County’s
contention ignores conveniently that it agreed to and committed to the Mitchell’s
Place placement. Doc. 25-54 at 29; 25-51 at 68. As the hearing officer correctly
determined,
[Sullivan] committed agency resources to ensure that adequate
services would be provided to the child at Mitchell’s Place via
implementation of the IEP. [ ] The fact that reimbursement was not
discussed at that time does not warrant a different conclusion. A
parent of a disabled child should not be led to believe that the school
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system approves a placement of the child and then, when the parent
learns they are entitled under the law to reimbursement for that
placement, have the school system decline to provide such placement.
Docs. 25-3 at 50. In other words, Blount County cannot mandate that Mitchell’s
Place deliver the services outlined in J.B.’s IEP and then seek after-the-fact to void
its decision to pass to Mitchell’s Place Blount County’s responsibility to provide
J.B. a FAPE. Doc. 25-5 at 51, 54; 25-48 at 27.
Based on the record before this court, Blount County knew of its potential
liability regarding J.B.’s tuition. As such, Bowens’ request for reimbursement
simply required Blount County to belatedly pay the expenses it would have paid
had it provided J.B. a FAPE. See Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149,
157 (3d Cir. 1994) (parents expression of concerns regarding child’s placement
arguably put the education board “on effective notice of the IEP’s inadequacy and
the Board’s potential liability to [child’s] parents.”).
2.

Alleged refusal to visit Blount County’s program or talk with the
teachers

Blount County maintains next that Bowens reached an erroneous conclusion
about available services due to Bowens’ failure to visit Blount County’s preschools and speak to teachers. Doc. 34-1 at 21-22. This failure purportedly
prevented Bowens from discovering that Blount County’s preschool program “in

Page 28 of 33

fact provided up to a 5 day a week program” and that the private pre-school day
care centers in the county would have waived the toilet trained requirement. Id.
In a nutshell, Blount County asks this court to put the onus on Bowens to “learn”
information that the IDEA obligated Blount County to provide. By raising this
contention, Blount County actually demonstrates its failure to offer J.B. a FAPE
and provides further support for J.B.’s private placement at Mitchell’s Place. As
the hearing officer correctly observed, Blount County failed to even offer Hayden
Primary School as an option although it offered the same services as the MultiNeeds Center, docs. 25-3 at 15; 25-51 at 66; 25-48 at 22, and, now by its own
admission, that it failed to offer five day a week placements that were available.
In light of the Sparks Clinic report and recommendations, which Blount County
accepted, Blount County’s decision to only offer J.B. a two to three-day placement
and to claim subsequently that Bowens had the obligation to discover on her own
the better options that existed within the Blount County System is confounding to
say the least. To find for Blount County under these facts, the court would have to
re-write the IDEA and shift to Bowens the burden of providing a FAPE. The court
declines to adopt such an erroneous reading of the IDEA.
3.

Estoppel

Finally, Blount County asserts that Bowens is estopped from “complaining
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about the October 2009 IEP offered to her son” because Bowens requested that
Blount County provide only consultative services. Doc. 34-1 at 23. To support its
contention, Blount County cites Bowens’ conversations with Sullivan in May,
June, and August 2009 where Bowens requested that Blount County provide J.B.
speech and occupational therapy. Id. Unfortunately for Blount County, Bowens
made these requests while J.B. was receiving early intervention services, months
before J.B.’s third birthday in October and, therefore, before the IDEA obligated
Blount County to provide J.B. a FAPE. Moreover, when J.B. turned three,
Bowens requested a meeting where she asked Blount County to provide a FAPE.
It defies logic that Bowens would have requested the October 2009 IEP meeting if
she had not intended to request that Blount County provide the full services the
IDEA required. Furthermore, Bowens earlier requests did not terminate or
suspend Blount County’s obligations under the IDEA, which provides
unequivocally that “each local educational agency [ ] shall have in effect, for each
child with a disability in the agency’s jurisdiction, an [IEP].” 20 U.S.C. §
1414(d)(2) (emphasis added). Therefore, Bowens is not estopped from pursuing
rights prescribed under the IDEA.
In sum, construing the IDEA to cut off parental rights to reimbursement
under these facts would defeat the IDEA’s principal purpose of providing children
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with disabilities a FAPE based on their unique needs. Therefore, the court finds
that equitable considerations do not warrant denying or reducing Bowens’
reimbursement of J.B.’s Mitchell’s Place tuition. Consequently, consistent with
the hearing officer’s determination, Bowens is entitled to reimbursement of J.B.’s
Mitchell’s Place tuition from October 2009 through July 2010, and mileage at the
local educational agency’s mandated rate. 20 U.S.C. § 1401(26)(A) (“The term
‘related services’ means transportation.”); doc. 25-3 at 51-52.
E.

J.B. v. Superintendent Carr
1.

Carr’s motion for summary judgment based on procedural grounds

Construing the Complaint as raising claims against him in his individual
capacity, Superintendent James E. Carr filed a motion for summary judgment
asserting that (1) the Complaint fails to mention him as a party to this lawsuit or
elsewhere in the body of the Complaint, (2) the IDEA does not authorize
attorney’s fees against an individual, and (3) he cannot be sued under the IDEA
because he does not receive federal funds. Doc. 24-1 at 5-8. To the extent J.B.
raises claims against Carr in his individual capacity, Carr is correct. However, this
lawsuit is against Carr in his official capacity because the Complaint names the
defendant as “James E. Carr, Superintendent of and for Blount County Board of

Page 31 of 33

Education” and J.B. served Blount County instead of Carr. Docs. 1, 2 and 3.11
“Official-capacity suits [ ] generally represent only another way of pleading an
action against an entity of which an officer is an agent. As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.” Ky. v.
Graham, 473 U.S. 159, 166 (1985), (citing Monell v. N.Y. City Dep’t of Soc.
Servs., 436 U.S. 658, 690 n.55 (1978). Therefore, the court denies Carr’s motion
as MOOT.
2.

Carr’s motion for summary judgment on substantive grounds

Carr incorporates by reference Blount County’s contention that Bowens was
not the prevailing party in the due process proceeding and argues, alternatively,
that the court should reduce Bowens’ attorneys fees, if any, because she prevailed
on only one of her three claims. Consistent with the court’s decision regarding
Blount County’s contentions, the court DENIES Carr’s motion as it relates to
J.B.’s status as the prevailing party. Regarding Carr’s contention that a reduction
of J.B.’s attorneys fees and costs is warranted, the court will enter a briefing
11

The court declines to consider Carr’s contention that J.B.’s Complaint claiming
attorneys fees as the prevailing party in the due process hearing under the IDEA is redundant
because J.B.’s answer to Blount County’s Complaint also requested attorneys fees. Doc. 35 at 4.
Carr waived this argument because he asserted it for the first time in his reply and failed to assert
it in a motion to dismiss or his initial summary judgment briefing. Brewer v. Purvis, 816 F.
Supp. 1560, 1579 (M.D. Ga. 1993), cert. denied, 514 U.S. 1111 (1995).
Page 32 of 33

schedule and allow Carr and Blount County to respond to J.B.’s motion for
attorneys fees.
IV. CONCLUSION
The court GRANTS Bowens’ motion for summary judgment, and DENIES
Blount County’s and Carr’s motions. Blount County has not had an opportunity to
fully address the attorneys fee issue. Therefore, in the interest of judicial
economy, Bowens and J.B. are ORDERED to jointly submit their motion for
attorneys fees by March 15, 2013. Blount County’s and Carr’s joint response is
due by March 29, 2013, and the joint reply, if any, is due by April 5, 2013. This
case is DISMISSED with prejudice.
Done the 28th day of February, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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