S. v. Board of Education of Oldham County

Filing 23

MEMORANDUM OPINION AND ORDER denying 20 Motion to Vacate; Signed by Senior Judge Thomas B. Russell on 12/15/15. cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00040-TBR

B.S., by and through
his next friends, C.S. and S.S., his parents

PLAINTIFFS

v.
BOARD OF EDUCATION OF
OLDHAM COUNTY SCHOOLS

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant’s motion to vacate. (Docket #19).
Plaintiff has responded. (Docket #20). Defendant has replied. (Docket #21). The Court being
sufficiently advised, for the following reasons, Defendant’s motion to vacate (Docket #19) is
DENIED.
BACKGROUND
Plaintiff B.S. is a student who struggles with social and learning difficulties. Defendant
Board of Education of Oldham County, Kentucky (the “Board”) is the education agency
encompassing the school system which Plaintiff attends. Additional background information
may be found in this Court’s memorandum opinion granting in part Plaintiff’s motion for
attorneys’ fees. (Docket #18).
On June 4, 2013, Plaintiff requested the Kentucky Department of Education “appoint a
Hearing Officer to preside over a Due Process hearing pursuant to 707 KAR 1:340 (Section 2).”
(Docket #13-1). Plaintiff requested that the Board be found to have failed to properly evaluate
Plaintiff for a disability, failed to develop a Behavior Intervention Plan, and failed to provide a
Free and Appropriate Education (“FAPE”), among other requests. (Docket #13-1).
1

On March 3, 2014, the Board made an offer of judgment which contained, among other
things, an offer to conduct an occupational therapy assessment, a functional behavioral
assessment, the creation of a new a Behavior Intervention Plan, a math assessment and math
interventions, and $4,000 in attorneys’ fees. (Docket #13-2). Plaintiff rejected this offer of
judgment. (Docket #13-3).
The Hearing Officer found in favor of Plaintiff on his claim that he had been denied a
Free and Appropriate Education (“FAPE”) for two school years. The Hearing Officer awarded
Plaintiff two years of compensatory education and ordered the Board to conduct a functional
behavioral assessment. The Hearing Officer denied all of Plaintiff’s remaining requests. 1
(Docket #1-2).
Both parties appealed. The Exceptional Children’s Appeal Board (“ECAB”) affirmed in
part and reversed in part. (Docket #1-3). The ECAB affirmed the Hearing Officer’s conclusion
that Plaintiff had been denied a Free and Appropriate Education for two years. (Docket #1-3).
The ECAB also revised the Hearing Officer’s award of compensatory education. The
interpretation of this revision is disputed by the parties.
Plaintiff filed this action requesting attorneys’ fees as the prevailing party pursuant to 34
CFR 300.517(c) and 20 U.S.C. §1415(3). (Docket #9). The Board responded that even if
Plaintiff could be considered the prevailing party, Plaintiff was not entitled to attorneys’ fees
because the Board made an offer of judgment to Plaintiff that was more generous than what
Plaintiff ultimately recovered. (Docket #13). This Court found that although Plaintiff did not
prevail on most issues, Plaintiff did prevail on the two “most significant claims asserted.”
1

These include Plaintiff’s arguments that the Board was obligated to evaluate Plaintiff for autism
and failed to adequately train staff. The Hearing Officer also denied Plaintiff’s requests for
reimbursement for attending an alternative school and being evaluated by psychologist Dr.
Federici.
2

(Docket #18). The Court found “Plaintiff was denied a Free and Appropriate Education” and
was awarded was a functional behavioral assessment and two years of compensatory education.
(Docket #18). Accordingly, the Court granted Plaintiff’s request for attorneys’ fees but reduced
by 50% the award of attorneys’ fees. (Docket #18). The Board now moves to vacate that
judgment on the grounds that this Court made a mistake of fact in finding Plaintiff had been
awarded two years of compensatory education. (Docket #20).
STANDARD
“On motion and just terms, the court may relieve a party or its legal representative from a
final judgment” due to “mistake, inadvertence, surprise, or excusable neglect,” among other
reasons. Fed. R. Civ. P. 60(b). The Sixth Circuit has stated that “a Rule 60(b)(1) motion is
intended to provide relief in only two situations: (1) when a party has made an excusable mistake
or an attorney has acted without authority, or (2) when the judge has made a substantive mistake
of law or fact in the final judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir.
2002) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000). “By providing
that a court ‘may’ relieve a party from a judgment or order, Rule 60(b) allows for the exercise of
some judicial discretion in determining whether to grant relief.” Keszthelyi v. United States,
2011 WL 1884007, at *16 (E.D. Tenn. May 17, 2011). “Relief under Rule 60(b) is
circumscribed by the policy favoring the finality of judgments and the termination of litigation.”
Id. (collecting cases).
DISCUSSION
“Compensatory education is a legal term used to describe future educational services that
are awarded to compensate for a school district’s failure to provide a free appropriate public
education in the past.” Brett v. Goshen Cmty. Sch. Corp., 161 F. Supp. 2d 930, 942 (N.D. Ind.

3

2001). “Compensatory educational services may include supplemental instruction, extended
school years, testing accommodations, and assistive technology.” Pohorecki v. Anthony Wayne
Local Sch. Dist., 637 F. Supp. 2d 547, 553 (N.D. Ohio, 2009) (citing 34 C.F.R. §§ 300.105-107).
This Court previously held that Plaintiff was justified in rejecting the Board’s offer of
judgment because “Plaintiff ultimately prevailed in showing that Plaintiff had been denied a Free
and Appropriate Education (“FAPE”) and was awarded two years of compensatory education in
addition to an FBA and other relief.” (Docket #18). The Board argues this Court made a
mistake of fact in stating Plaintiff was awarded two years of compensatory education. The Court
agrees that only the Hearing Officer awarded two years of compensatory education. However,
the Court finds that while ECAB did not adopt a set time period of compensatory education,
ECAB did adopt an award package which substantially mirrored that awarded by the Hearing
Officer. The Court has already analyzed this award and found that it was sufficient to justify
Plaintiff’s refusal of the Board’ offer of judgment.
The Hearing Officer found that the Board did not offer a Free and Appropriate Education
for two school years. The Hearing Officer further found Plaintiff “is entitled to two years
compensatory education, which the LEA shall provide in a manner that puts [Plaintiff] in the
positon he would have had, but for the denial of FAPE.” (Docket #1-2). The Hearing Officer
explained that in “order to accomplish this” grant of compensatory education, the Board must (1)
“provide one-to-one instruction;” (2) “fully implement all recommendations of the the (sic)
independent behavioralist;” (3) “pay for the services of the independent behavioralist to assist
with revisions of the BIP no less often than annually, for at least three years;” and (4) “provide
supervised opportunities for the [Plaintiff] to engage in appropriate social interactions with
peers” for the next three years. (Docket #1-2).

4

The parties dispute the degree to which ECAB modified the Hearing Officer’s award of
compensatory education. Their analysis is complicated by the fact that ECAB did not
summarize its conclusions but instead addressed the issues piecemeal over twenty-eight pages.
The Court finds that although ECAB modified the Hearing Officer’s award, ECAB affirmed the
major elements of the Hearing Officer’s award.
First, ECAB clearly “affirm[ed] the Hearing Officer’s findings and Order with regard to
FAPE.” (Docket #1-3). ECAB agreed that Plaintiff had been denied a Free and Appropriate
Education for two school years. 2 Starting from that framework, ECAB modified elements of the
Hearing Officer’s award.
ECAB agreed with the Hearing Officer that the school “failed to conduct a Functional
Behavior Assessment.” (Docket #1-3, p. 7). ECAB further “agree[d] with the hearing officer
that a formal functional behavioral assessment should be performed by a qualified independent
behavioralist to assist in developing an appropriate BIP [Behavior Intervention Plan].” (Docket
#1-3, p. 14). ECAB also agreed with the Hearing Officer that “given the history of the school’s
efforts to manage the student's behavior, it is appropriate that the FBA be performed by a
behavioralist who is not an employee of the school, that the behavioralist be consulted annually
for three years regarding revisions of the BIP, and that the cost of the assessment and
consultations be paid for by the school as compensatory education.” (Docket #1-3).
ECAB also agreed with the Hearing Officer that the individualized education plan
(“IEP”) was deficient, though ECAB did modify the Hearing Officer’s recommendation. First,

2

“In the case at hand Student’s progress was not even minimal due to the exhibited behaviors
which were not addressed by the School in developing an adequate Behavior Intervention Plan
(BIP). The District also failed to conduct a Functional Behavior Assessment which could have
provided valuable information to assist in developing the behavior interventions.” (Docket #13).
5

ECAB found the IEP was deficient in multiple ways, including its “lack of measurable goals”
and absence of an “adequate behavioral intervention plan.” (Docket #1-3, p. 9). ECAB
specifically found “THE IEP WAS DEFICIENT IN FAILING TO PROVIDE FOR MORE
INDIVIDUALIZED INSTRUCTION.” (Docket #1-3, p. 12). While ECAB overturned the
Hearing Officer’s decision that the school be required to provide “all instruction be one-on-one,”
ECAB reached this conclusion because “it would be premature” to order one-one-one instruction
“without taking into account the results of the FBA [functional behavior assessment].” (Docket
#1-3, p. 16). ECAB still “strongly” recommended that the Plaintiff be provided with more oneon-one instruction. (Docket #1-3, p. 16). Therefore, while ECAB modified the Hearing
Officer’s award on this issue, the Court finds that ECAB’s recommendation was substantially
similar to the Hearing Officer’s award.
ECAB did reject the Hearing Officer’s decision that “the school must provide supervised
opportunities for social interaction as a form of compensatory education.” (Docket #1-3).
However here, as with the one-on-one instruction award, ECAB allowed an award of supervised
social interaction if it was recommended in the IEP.
In short, ECAB did not adopt the Hearing Officer’s conclusion that Plaintiff was entitled
to two years of compensatory education, but ECAB did endorse the recommendations of the
Hearing Officer that comprised the two years of compensatory education. The Court does not
agree with the Board that ECAB’s removal of the two years of compensatory education is as
significant in light of the awards which ECAB did grant. A “flexible approach, rather than a rote
hour-by-hour compensation award, is more likely to address [a student’s] educational problems
successfully.” Bd. of Educ. of Fayette Cty., Ky. v. L.M., 478 F.3d 307, 310 (6th Cir. 2007).
Furthermore, the Court has previously considered this relief and found that it exceeded the

6

Board’s offer of judgment. (Docket #18). The Court has also already reduced Plaintiff’s request
for attorneys’ fees by 50% on the grounds that Plaintiff achieved limited success. (Docket #18).
CONCLUSION
IT IS HEREBY ORDERED that, for the foregoing reasons, Defendant’s motion to vacate
(Docket #19) is DENIED.

December 15, 2015

7