B. et al v. Orleans Parish School District

Filing 54

ORDER granting 19 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 1/20/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
B., et al.

CIVIL ACTION

VERSUS

CASE NO. 13-6068

ORLEANS PARISH SCHOOL DISTRICT

SECTION: “G” (3)

ORDER
Before the Court is Defendant Orleans Parish School District’s (“OPSB”1) “Motion for
Summary Judgment.”2 Having considered the motion, the memoranda in support and in opposition,
the statements made at oral argument, the administrative record, the additional evidence submitted
by the parties, and the applicable law, the Court will grant the motion.
I. Background
A.

Factual Background
In this action, D.B. and C.B. (“Plaintiffs”) seek reimbursement from the OPSB for expenses

related to the initiation and completion of an Independent Educational Evaluation (“IEE”) of their
son, S.B., which was conducted during the 2011-2012 school year.3 S.B. is a child identified with
the disability of autism under the Individuals with Disabilities Education Act (“IDEA”).4
On August 25, 2011, Plaintiffs emailed OPSB to request an IEE at pubic expense for S.B.5

1

The parties refer to the Defendant as the Orleans Parish School Board, or “OPSB,”in their briefing. For ease
of reference, the Court will do the same herein.
2

Rec. Doc. 19.

3

Rec. Doc. 1 at ¶ 1.

4

Rec. Doc. 19-6 at ¶ 2.

5

Id. at ¶ 3.

1

OPSB granted the request on September 6, 2011.6 At the administrative hearing in this matter,
Plaintiffs stipulated that OPSB informed them that the IEE must follow the criteria set forth in
Louisiana Bulletin 1508, Pupil Appraisal Handbook (“Bulletin 1508”).7 On October 3, 2011,
Plaintiffs notified OPSB that they had selected Dr. Steven York, a psychologist, to conduct the IEE.8
However, Dr. York was unable to complete the IEE, and in January 2012, Plaintiffs hired Dr.
Patricia Brockman to complete the evaluation.9
On April 23, 2012, OPSB received a signed copy of the IEE completed by Dr. Brockman.10
OPSB reviewed the evaluation against the applicable agency criteria set forth in Bulletin 1508 and
notified Plaintiffs on May 7, 2012 that the IEE was not in compliance with the agency criteria.11
OPSB invited Dr. Brockman to contact Deloris Simms, OPSB Appraisal External Evaluation
Reviewer, to discuss the areas of alleged non-compliance.12 Neither Plaintiffs nor Dr. Brockman
have contacted Ms. Simms regarding the alleged deficiencies in the IEE.13 On January 31, 2013,
OPSB received a request from Plaintiffs for reimbursement for the cost of the IEE.14 On February
28, 2013, OPSB notified Plaintiffs again that an IEE obtained with public funds must meet the same

6

Id. at ¶ 5; Rec. Doc. 25-1 at ¶ 5; Rec Doc. 1 at ¶ 15.

7

Id. at ¶ 6; see also Rec. Doc. 19-4 at p. 3.

8

Id. at ¶ 7.

9

Rec. Doc. 1 at ¶¶ 35, 36.

10

Rec. Doc. 19-6 at ¶ 10.

11

Id. at ¶ 11.

12

Id. at ¶ 12.

13

Id.

14

Id. at ¶ 40.

2

criteria used by the OPSB when it conducts an evaluation, and the IEE submitted for review failed
to meet those criteria.15 OPSB denied reimbursement for the IEE at issue.16
On April 30, 2013, Plaintiffs requested a due process hearing in part to contest OPSB’s
denial of reimbursement for the IEE.17 A preliminary hearing was conducted on June 18, 2013
before Administrative Law Judge Robert Aguiluz (the “ALJ”) of the Division of Administrative
Law.18 On August 14, 2013, the ALJ found that “[r]eimbursement is not a remedy available to the
parents under the IDEA because the criteria for the evaluation obtained by the parents was not the
same as the required Bulletin 1508 criteria used by the OPSB.”19
B.

Procedural Background
On October 7, 2013, Plaintiffs filed the Complaint in this matter, wherein they seek

injunctive relief in the form of reimbursement of all expenses related to obtaining and conducting
the IEE at issue.20 OPSB filed the pending motion for summary judgment on July 31, 2014,21 and
Plaintiffs submitted a memorandum in opposition on August 13, 2014.22 OPSB filed a reply on

15

Id. at ¶ 15.

16

Id. at ¶ 17.

17

Rec. Doc. 11-1 at p. 8. The parties allude in their briefs to a 2012 administrative hearing before Judge Tameka
Johnson of the Louisiana Division of Administrative Law. However, the record for the 2012 hearing has not been
provided to the Court.
18

Id. at p. 210.

19

Id. at p. 202.

20

Rec. Doc. 1. Plaintiffs additionally seek a declaratory judgment.

21

Rec. Doc. 19.

22

Rec. Doc. 25.

3

August 19, 2014.23 Oral argument on this motion was conducted on August 20, 2014.24 Plaintiffs
then filed a supplemental memorandum on August 25, 2014;25 OPSB submitted a supplemental
memorandum on September 1, 2014.26 On September 15, 2014, Plaintiffs filed a response.27 Finally,
on September 17, 2014, OPSB filed a sur-reply.28
II. Parties’ Arguments
A.

OPSB’s Arguments in Support
OPSB argues that it is entitled to summary judgment on Plaintiffs’ IDEA claims because it

has established both procedural and substantive compliance with the IDEA.29 First, OPSB argues
that it followed the procedural mandates of the IDEA and the regulations promulgated by the
Louisiana Board of Elementary and Secondary Education (“BESE”) in

Bulletin 1508.30

Specifically, OPSB argues that it granted Plaintiffs’ request for the IEE within eight days of
receiving the request, informed Plaintiffs that the IEE must meet agency criteria, and provided
appropriate notice of reasonable cost criteria.31 With respect to substantive compliance with the
IDEA, OPSB argues that “the ALJ affirmed that the School Board did not deny reimbursement for

23

Rec. Doc. 31.

24

Rec. Doc. 32.

25

Rec. Doc. 35.

26

Rec. Doc. 36.

27

Rec. Doc. 41.

28

Rec. Doc. 44.

29

Rec. Doc. 19-1 at p. 11 (citing Bd. of Educ. v. Rowley, 458 U.S. 176 (1982)).

30

Id. at p. 12.

31

Id. at p. 14.

4

a compliant IEE – instead, the School Board denied reimbursement for an evaluation which did not
meet Bulletin 1508 criteria.”32 OPSB avers that the decision of the ALJ must be accorded due
weight because he was trained to understand the provisions of the IDEA and “rendered a factually
and legally valid decision.”33 Additionally, OPSB contends that Plaintiffs bear the burden of
persuasion here because they are contesting OPSB’s reimbursement decision.34
B.

Plaintiffs’ Arguments in Opposition
Plaintiffs first contend that OPSB bears the burden of proof as to whether it is justified in

denying reimbursement to Plaintiffs for the IEE.35 Next, Plaintiffs argue that this Court should give
the ALJ decision “little or no deference” because it was based on the ALJ’s interpretation of federal
law, rather than an assessment of the facts in this case, and because it was rendered without an
evidentiary hearing.36
Next, Plaintiffs contend requiring formalistic compliance with every requirement in Bulletin
1508 would impose an unnecessary burden on parents that is inconsistent with their right to obtain
an IEE at public expense.37 According to Plaintiffs, replication of the Bulletin 1508 evaluation
process is not required for reevaluation.38 Plaintiffs argue that disputed facts exist with respect to
whether Bulletin 1508 is applicable to the IEE process, and whether Plaintiffs’ IEE complied with

32

Id. at p. 16.

33

Id. at p. 10.

34

Id. at pp. 10–11 (citing Cypress-Fairbanks, 118 F.3d at 247-48).

35

Rec. Doc. 25 at p. 3 (distinguishing Shaffer v. West, 546 U.S. 49, 62 (2005)).

36

Id. at p. 5.

37

Id.

38

Id. at pp. 11–12.

5

Bulletin 1508’s relevant provisions.39 Plaintiffs allege that OPSB failed to provide them with
adequate written notice of the applicable Bulletin 1508 requirements, in violation of the IDEA.40
Plaintiffs additionally argue that Defendant’s policy of requiring all parents, including
Plaintiffs, to “up-front” the costs of an independent IEE is contrary to the IDEA’s requirement that
such evaluations be at “public expense.”41 Requiring such up-front payment, according to Plaintiffs,
“makes the important right to an IEE unavailable to most parents in Orleans Parish.”42 Plaintiffs
additionally argue that imposing a $3,000 limit on the IEE is inconsistent with the right to an IEE
at public expense.43
C.

OPSB’s Arguments in Further Support
In response, OPSB argues that the IEE at issue failed to comply with Bulletin 1508 in 31

specific ways, and that accordingly “the School Board has not denied reimbursement to the plaintiffs
for an IEE that meets agency criteria.”44 OPSB contends that it provided Plaintiffs with notice
regarding the agency criteria requirement. With respect to the $3,000 cap, OPSB avers that it
provided Plaintiffs with an opportunity to present reasons for exceeding that financial limit, but that
Plaintiffs failed to do so.45 OPSB additionally argues that it did not insist that Plaintiffs pay all costs

39

Id. at p. 17.

40

Id. at pp. 22–23.

41

Id. at p. 18 (citing 34 C.F.R. § 300.502(b)(2)(i)–(ii)).

42

Id. at p. 20.

43

Id. at p. 21.

44

Rec. Doc. 31 at p. 6.

45

Id. at p. 7.

6

up front.46 Finally, OPSB states that it “reviewed Dr. Brockman’s evaluation and notified the
plaintiffs of specific items of non-compliance per Bulletin 1508, and [OPSB] waits for a revised IEE
to review.”47
D.

Plaintiffs’ Arguments in Reply
Plaintiffs aver that it is contrary to the IDEA to require, as a condition of reimbursement,

that an IEE comply with elements of Bulletin 1508 that are unrelated to the scope of their
disagreement with OPSB’s prior evaluations.48 Plaintiffs contend that a material issue of fact exists
with respect to which factors under Bulletin 1508 are relevant in assessing the IEE.49 Specifically,
according to Plaintiffs, OPSB contends that the purpose of the IEE was to determine whether S. B.
had a Specific Learning Disability (“SLD”), while Plaintiffs state that the purpose was to address
his occupational therapy testing and social functioning.50 Plaintiffs reaver that requiring every
element in Bulletin 1508 to be satisfied in an independent IEE is onerous and impractical, and “rings
hollow under IDEA case law.”51 Finally, Plaintiffs argue that Bulletin 1508 applies to school
districts, but not to parents.52
E.

OPSB’s Arguments in Reply
OPSB contends first that it timely granted Plaintiffs’ request for an IEE at public expense

46

Id.

47

Id. at p. 9.

48

Rec. Doc. 35 at p. 3.

49

Id. at p. 5.

50

Id. at pp. 5–6.

51

Id. at p. 11 (citing Florence County School District 4 v. Carter, 510 U.S. 7 (1993)).

52

Id. at p. 13.

7

without requiring Plaintiffs to provide reasons for their disagreement with OPSB’s prior evaluation
on S. B.53 OPSB contends that whether S. B. had a specific learning disability is at issue because the
administrative record indicates that “[a]t the time the IEE was conducted, [S. B.] was identified as
a student with Autism, the parents also suspected that he might also have a learning disability.”54
Additionally, OPSB states that the IEE was prompted by the parents’ “request to assess his current
needs.”55 Finally, OPSB argues that the IEE yielded two exceptionalities: “Autism” and “Learning
Disabled.”56 According to OPSB, Dr. Brockman was obligated by the IDEA to assess all areas of
suspected disability, including autism and specific learning disabilities.57 OPSB additionally argues
that compliance with Bulletin 1508 is applicable to private and independent evaluators who are
“qualified examiners,” including those hired by parents.58
F.

Plaintiffs’ Sur-Reply
Plaintiffs reaver that none of the 31 compliance issues identified by OPSB are relevant to

a decision to deny a reimbursement of an IEE at public expense.59 Plaintiffs make several additional
arguments with respect to a 2012 hearing, the record for which has not been provided to the Court.60

53

Rec. Doc. 36 at p. 2.

54

Id. at p. 3.

55

Id.

56

Id. at p. 4.

57

Id. (citing 34 C.F.R. § 300.304(b)(4)).

58

Id. at pp. 5, 10.

59

Rec. Doc. 41 at p. 1.

60

Id.

8

G.

OPSB’s Sur-Reply
OPSB reavers that Bulletin 1508’s criteria is applicable to private evaluations, and that “even

if an IEE at issue is considered a re-evaluation, Bulletin 1508 (i.e., the applicable ‘agency criteria’)
requires that initial eligibility criteria be addressed for any additional exceptionality.”61 It is
irrelevant, according to OPSB, whether an IEE is considered a re-evaluation.62 OPSB makes several
additional arguments related to a 2012 hearing, the record of which has not been provided to this
Court.63
III. Standard of Review
The standard of review that the Court must apply in considering a challenge to a hearing
officer’s decision under the IDEA differs from the summary judgment standard outlined in Anderson
v. Liberty Lobby and Celotex Corp. v. Catrett.64 Under the IDEA, “any party aggrieved by the
finding and decision made [by a hearing officer following an impartial due process hearing], shall
have the right to bring a civil action with respect to the complaint presented ... without regard to the
amount in controversy.”65 In any such action, the district court shall “(i) receive the records of the
administrative proceedings; (ii) hear additional evidence at the request of a party; and (iii) grant such

61

Rec. Doc. 44 at p. 2.

62

Id. at p. 3.

63

Id.

64

Sylvie M. v. Bd. of Educ. of Dripping Springs Indep. Sch. Dist., 48 F.Supp.2d 681, 694 (W.D. Tex.1999) aff'd,
214 F.3d 1351 (5th Cir. 2000) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)).
65

20 U.S.C. § 1415(i)(2)(A), (3).

9

relief as it determines appropriate based upon the preponderance of the evidence.”66 “[A]though the
district court must accord ‘due weight’ to the hearing officer’s findings, the court must ultimately
reach an independent decision based on a preponderance of the evidence.”67 The district court’s

review of the hearing officer’s decision is “virtually de novo.”68
Accordingly, even though it is termed “summary judgment,” the district court’s decision is
based on a preponderance of the evidence, so the existence of a disputed issue of material fact will
not necessarily defeat the motion.69 In reaching its determination, “courts must be careful to avoid
imposing their view of preferable educational methods upon the States.”70 “The role of the judiciary
is not to second-guess the decisions of school officials or to substitute their plans for the education
of disabled students with the court’s.”71 Courts do not have the “specialized knowledge and

66

See 20 U.S.C. § 1415(i)(2)(B). With respect to the pending motion, Plaintiffs have submitted additional
evidence including: the affidavit of an intern at the Advocacy Center (Rec. Doc. 24-1); the affidavit of Howard Knoff
(Rec. Doc. 24-2); the affidavit of Issac Soileau (Rec. Doc. 24-4); the deposition transcript of Dr. Rosalynne Dennis (Rec.
Doc. 24-2); deposition exhibits (Rec. Doc. 24-6); public record request and response (Rec. Doc. 24-7); affidavits of
Plaintiffs (Rec. Docs. 24-8, 24-9; 41-2); and an OPSB evaluation of S.B. (Rec. Doc. 41-3). OPSB has also submitted
additional evidence including partial hearing transcripts dated May 24, 2012 and April 24, 2012 before Administrative
Law Judge Tameka Johnson Moore (Rec. Docs. 19-3, 44-1); the affidavit of Dr. Steven Welsh (Rec. Doc. 31-1); and
results of an evaluation of S.B. (Rec. Doc. 41-4).
67

Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 394 (5th Cir. 2012); see also Teague Indep. Sch. Dist. v. Todd
L., 999 F.2d 127, 131 (5th Cir. 1993).
68

Klein Indep. Sch. Dist., 690 F.3d at 394 (quoting Cypress–Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d
245, 252 (5th Cir. 1997)).
69

20 U.S.C. § 1415(i)(2)(C); see Sylvie M. v. Bd. of Educ. of Dripping Springs Indep. Sch. Dist., 48 F.Supp.2d
681, 695 (W.D. Tex.1999) aff'd, 214 F.3d 1351 (5th Cir. 2000); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105,
112 (2d Cir. 2007) (stating that the court must engage in an independent review of the administrative record and make
a determination based on a preponderance of the evidence); Wall v. Mattituck–Cutchogue Sch. Dist., 945 F.Supp. 501,
508 (E.D.N.Y. 1996) (holding that, in IDEA actions, summary judgment “is not directed to discerning whether there are
disputed issues of fact, but rather whether the administrative record, together with any additional evidence, establishes
that there has been compliance with the IDEA’s processes and that the child’s educational needs have been appropriately
addressed.”).
70

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 207 (1982).

71
R.H. v. Piano Indep. Sch. Dist., 607 F.3d 1003, 1010 (5th Cir. 2010), citing Flour Bluff Indep. Sch. Dist. v.
Katherine M., 91 F.3d 689, 693 (5th Cir. 1996).

10

experience” necessary to resolve “persistent and difficult questions of educational policy.”72 Since
courts lack this expertise, “the Court is cognizant that the close scrutiny warranted by de novo
review should be tempered by the realization that decisions made by those ‘in the trenches’ of
educational service should not be casually disregarded.”73
The IDEA does not specify which party bears the burden of persuasion at the district court
level or at the administrative hearing level. However, in 2005, in Schaffer v. Weast, the Supreme
Court held that the burden of persuasion in an administrative hearing under the IDEA lies with the
party seeking relief.74 The Court explained that it saw no reason to depart from “the ordinary default
rule that plaintiffs bear the risk of failing to prove their claims.”75 Schaffer did not address which
party should bear the burden of persuasion when a party aggrieved by the decision of the
administrative hearing officer challenges that decision in district court. Since then, several circuit
courts have held that the party challenging the administrative decision bears the burden of
persuasion before the district court as to each claim challenged.76 As the Supreme Court noted in
Schaffer, “[t]he burdens of pleading and proof with regard to most facts have been and should be
assigned to the [party] who ... seeks to change the present state of affairs.”77 Under the IDEA, it is
the party “aggrieved by the findings and decision” of the hearing officer that seeks to change the

72

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973).

73

Jonathan G. By & Through Charlie Joe G. v. Caddo Parish Sch. Bd., 875 F.Supp. 352, 359 (W.D.La.1994).

74

Schaffer v. Weast, 546 U.S. 49, 62 (2005).

75

Id. at 56 (citing 2 J. Strong, McCormick on Evidence § 337, at 412 (5th ed. 1999)).

76

See Ridley Sch. Dist. v. M.R., 680 F.3d 260, 270 (3d Cir. 2012); J.W. v. Fresno Unified Sch. Dist., 626 F.3d
431, 438 (9th Cir. 2010); Marshall Joint Sch. Dist. No. 2 v. C.D., 616 F.3d 632, 636 (7th Cir. 2010); District of Columbia
v. Doe, 611 F.3d 888, 897 (D.C.Cir. 2010).
77

546 U.S. at 56 (quoting McCormick on Evidence § 337, at 412).

11

present state of affairs.78 “Absent some reason to believe that Congress intended otherwise,” the
Court concludes that the burden of persuasion falls where it usually does, on the party seeking
relief.79 In this case, the burden of persuasion is properly placed upon Plaintiffs, because Plaintiffs
are challenging the decision of the ALJ.80
IV. Analysis
The sole issue before the Court is whether Plaintiffs are entitled to reimbursement for the
IEE that they obtained. It is Plaintiffs’ position that strict compliance with Bulletin 1508 is onerous,
impractical, and inconsistent with their right to obtain an IEE at public expense.81 OPSB contends
that it did not deny reimbursement for a compliant IEE; rather, it argues that it denied reimbursement
for an evaluation which did not meet the required criteria.82 A survey of case law indicates that this
issue appears to be a matter of first impression in the Fifth Circuit.
A.

Independent Education Evaluations under the IDEA
One purpose of the IDEA is “to ensure that all children with disabilities have available to

them a free appropriate public education (“FAPE”) that emphasizes special education and related
services designed to meet their unique needs.”83 The FAPE required by the IDEA “need not be the

78

See 20 U.S.C. § 1415(i)(2)(A).

79

See Schaffer, 546 U.S. at 57–58; see also Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir.
2003); Cypress Fairbanks Indep. Sch. Dist. v. Michael F. by Barry F., 118 F.3d 245, 252 (5th Cir. 1997) (“[A] party
attacking the appropriateness of an IEP established by a local educational agency bears the burden of showing why the
IEP and the resulting placement were inappropriate under the IDEA.”).
80

20 U.S.C.A. § 1415(i)(2) (“Any party aggrieved by the findings and decision” made in the administrative
proceeding “shall have the right to bring a civil action” in state or federal court.).
81

Rec. Doc. 25 at p. 9.

82

Rec. Doc. 19-1 at p. 16.

83
20 U.S.C. § 1400(d); see also Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 188–89 (1982).

12

best possible one, nor one that will maximize the child’s educational potential; rather, it need only
be an education that is specifically designed to meet the child’s unique needs, supported by services
that will permit him ‘to benefit’ from the instruction.”84 To achieve FAPE, school districts must
implement an Individualized Education Plan (“IEP”), which is “a written statement prepared at a
meeting attended by a qualified representative of the school district, a teacher, the child’s parents
or guardians, and when appropriate, the child himself.”85 An IEP need not “maximize the child’s
educational potential”; it “guarantees only a basic floor of opportunity for every disabled child,
consisting of specialized instruction and related services which are individually designed to provide
educational benefit.”86 The IEP process is a collaborative effort, and the student’s parents are
guaranteed procedural safeguards to ensure their involvement in the creation and implementation
of their child’s IEP.87
Parents of children with exceptionalities have a “right to evaluation at public expense” under
certain circumstances.88 Specifically, if a parent “disagrees with an evaluation obtained by the
public agency,” he or she may “request[ ] an independent educational evaluation at public
expense.”89 The IEE is “an assessment conducted by a qualified examiner who is not employed

84

Cypress Fairbanks Indep. Sch. Dist. v. Michael F. by Barry F., 118 F.3d 245, 247-48 (5th Cir. 1997)
(citing Rowley, 458 U.S. 176, 188–89 (1982)).
85

Michael F., 118 F.3d at 247.

86

Id. at 247–48 (internal quotation marks omitted); see also Rowley, 458 U.S. 176, 203–04 (1982).

87

Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 989 (5th Cir. 2014) (citing 20 U.S.C. §§
1400(d)(1)(B) (“The purposes of this chapter are ... to ensure that the rights of children with disabilities and parents of
such children are protected.”), 1414(c)(3), 1415(a))).
88

34 CFR § 300.502(b); Schaffer v. Weast, 546 U.S. 49, 60 (2005).

89

Id.

13

by the public agency responsible for the education of the child in question.”90 Once the school board
receives a request for an IEE, it must either initiate a due process hearing to show that its evaluation
is appropriate, or “ensure that an [IEE] is provided at public expense, unless the agency
demonstrates in a hearing under § 300.507 that the evaluation obtained by the parent did not meet
agency criteria.”91 Additionally, “the criteria under which the evaluation is obtained . . . must be the
same as the criteria that the public agency uses when it initiates an evaluation . . .”92 A public
agency is not obligated to reimburse parents of the cost of a privately-obtained IEE unless the
evaluation satisfies the above requirements.93
B.

Compliance with agency criteria
Plaintiffs have failed to demonstrate by a preponderance of the evidence that they are entitled

to reimbursement for the IEE that they obtained. As stated above, an IEE at public expense must
conform to the same criteria that the agency uses when it initiates an evaluation.94 When OPSB
initiates an evaluation, it uses the criteria promulgated by the Louisiana Board of Elementary and
Secondary Education (“BESE”) in Bulletin 1508.95 Bulletin 1508 states that: “[t]he Criteria for
Eligibility describes the minimal data that must be obtained in order to determine whether the
student has an exceptionality and is in need of special education services.”96 Accordingly, under the

90

34 C.F.R. § 300.502(a)(3)(i).

91

34 C.F.R. § 300.502(b)(2)(i) and (ii).

92

34 C.F.R. § 300.502(e) (emphasis added).

93

See P.R. v. Woodmore Local Sch. Dist., 256 Fed.Appx. 751, 754 (6th Cir. 2007).

94

34 C.F.R. § 300.502(b)(2)(i) and (ii).

95

Rec. Doc. 19-1 at pp. 15–16.

96

LA. ADMIN. CODE tit. 28, pt. CI, Bulletin 1508, § 101(B).

14

IDEA, an IEE obtained at public expense in the Orleans Parish School District, including the IEE
obtained by Plaintiffs, is subject to evaluation under Bulletin 1508.97
The parties agree that the IEE obtained by Plaintiffs does not meet Bulletin 1508 criteria.98
The disagreement in this matter stems from the scope of compliance that is a necessary prerequisite
for reimbursement. After receiving and reviewing the IEE, OPSB notified Plaintiffs that 31
“components” of the IEE do not meet Bulletin 1508 criteria.99 Those “components” are grouped into
the following four categories: (1) Missing initial evaluation components; (2) Student does not meet
eligibility for Specific Learning Disability; (3) Student does not meet eligibility for physical therapy;
and (4) Noncompliant Occupational therapy assessment.100 OPSB indicated no additional areas of
non-compliance, even though Bulletin 1508 includes other areas of evaluation.101
1.

“Missing initial evaluation components”

As stated above, the criteria under which an IEE at public expense is obtained must be the
same as the criteria that the public agency uses when it initiates an evaluation.102 OPSB uses the
criteria set forth in Bulletin 1508 when it initiates an evaluation. As indicated in OPSB’s May 7,
2012 letter to Plaintiffs, the IEE at issue does not meet Bulletin 1508 criteria with respect to 12

97

See 34 C.F.R. § 300.502(e) (emphasis added).

98

Rec. Doc. 19-1 at p. 14; Rec. Doc. 11-1 at p. 201.

99

Rec. Doc. 11-1 at p. 122; see also Rec. Doc. 41-1.

100

Id. at pp. 122-125.

101

For example, Bulletin 1508 includes, among others, criteria for evaluating traumatic brain injury, deafblindness, and developmental delays.
102

34 C.F.R. § 300.502(e) (emphasis added).

15

initial evaluation components.103 Accordingly, the IEE does not comply with agency criteria, as
required in order for an IEE to qualify as one at public expense.
2.

“Student does not meet eligibility for Specific Learning Disability”

Plaintiffs represent that the IEE was not obtained to test for a specific learning disability,
and therefore that it need not comply with Bulletin 1508’s criteria for evaluating specific learning
disabilities.104 The Court finds this argument unavailing for two reasons. First, Plaintiffs argue that
Bulletin 1508 compliance should not be required for evaluations that are not related to the scope of
their disagreement with OPSB’s prior evaluations.105 However, in order for an IEE to be obtained
at public expense, the parents must “disagree[] with an evaluation obtained by the public agency.”106
Although failure to provide notice of disagreement prior to obtaining the IEE does not discharge the
public agency from its obligation of reimbursement, it appears well settled that an IEE at public
expense is available only where the parents disagree, at some point, with the district’s evaluation.107
Here, Plaintiffs appear to admit that they did not disagree with OPSB’s prior evaluations of S.B. for
specific learning disabilities. Still, Plaintiffs seek reimbursement for the entire IEE, which includes

103

Rec. Doc. 24-6 at pp. 55-56.

104

See Rec. Doc. 35 at p. 3; Rec. Doc. 24-8 at p. 2.

105

Rec. Doc. 35 at p. 3.

106

See 34 C.F.R. § 300.502(b)(1) (stating that if a parent “disagrees with an evaluation obtained by the public
agency,” it can “request[ ] an independent educational evaluation at public expense”); Schaffer v. Weast, 546 U.S. 49,
60 (2005) (stating that a parent may request an IEE at public expense if they disagree with an evaluation provided by
the school).
107

See, e.g., P.R. v. Woodmore Local Sch. Dist., 256 Fed.Appx. 751, 755 (6th Cir. 2007) (unpublished);
Board of Educ. of Murphysboro Community Unit School Dist. No. 186 v. State of Illinois, 41 F.3d 1162, 1169 (7th
Cir. 1994) (“parents can initiate an evaluation before notifying a school district that they disagree with the district’s
evaluation.”) (citing Hudson v. Wilson, 828 F.2d 1059, 1065 (4th Cir. 1987)).

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evaluations for specific learning disabilities.108 As the Court has already stated, a public agency is
not obligated to reimburse parents for the cost of any and all privately-obtained evaluations.109
Without any guiding authority, the Court will not accept Plaintiffs’ invitation to expand the law by
finding that assessments obtained beyond the scope of an IEE may still be considered “at public
expense.”
Notwithstanding Plaintiff’s arguments to the contrary, the record indicates that the Plaintiffs
stated in their initial request for an IEE that “[p]ursuant to the laws that govern special education,
[S.B.] is entitled to receive a comprehensive IEE at public expense.”110 The record indicates that at
the time of the IEE, Plaintiffs suspected that S.B. might have a learning disorder, and that Dr.
Brockman evaluated S.B. for learning disabilities.111 Even if, based on this evidence, the assessments
are considered within the scope of the IEE, Plaintiffs still are not entitled to reimbursement because
they do not satisfy the criteria set forth in Bulletin 1508. OPSB indicated seven specific areas in
which the IEE does not comply with the requirements for evaluations of specific learning disabilities
set forth in Bulletin 1508.112 Accordingly, the Court cannot find that the evaluation complies with
the required agency criteria with respect to testing for specific learning disabilities.

108

See Rec. Doc. 11-1 at p. 113 (diagnosing S.B. with three learning disabilities).

109

See P.R. v. Woodmore Local Sch. Dist., 256 Fed.Appx. 751, 754 (6th Cir. 2007).

110

Rec. Doc. 11-1 at p. 68 (emphasis added).

111

See Rec. Doc. 11-1 at p. 62 (“At the time the IEE was conducted, [S.B.] was identified as a student with
Autism, although the Parents suspected that he might also have a learning disability.”); id. at p. 113 (diagnosing S.B.
with three learning disabilities). See also Rec. Doc. 19-3 at pp. 200-01.
112

Rec. Doc. 24-6 at pp. 56–57.

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3.

“Student does not meet eligibility for physical therapy” and “Noncompliant
Occupational therapy assessment”

According to Plaintiffs, the IEE was obtained to determine “S.B.’s Occupational Therapy
testing and recommendations, his social functioning and lack of evaluation in this area, and the
recommendations for his program.”113 In the May 7, 2012 letter, OPSB indicated six specific areas
in which the IEE does not comply with the requirements for occupational therapy assessments, as
well as six areas in which the IEE does not comply with the requirements for physical therapy
evaluations.114 Again, 34 C.F.R. § 300.502(b) requires that an IEE obtained at public expense meet
agency criteria.115 The Court finds that the IEE at issue does not comply with the Bulletin 1508
criteria for occupational therapy and physical therapy evaluations.
A public agency is not obligated to reimburse parents of the cost of a privately-obtained IEE
unless the evaluation satisfies the requirements set forth in 34 C.F.R. § 300.502(b).116 The IEE
obtained by Plaintiffs does not satisfy those requirements; namely, it does not meet the criteria set
forth in Bulletin 1508 for the types of evaluations that were obtained. Contrary to Plaintiffs’
assertions, the record does not indicate that OPSB required Plaintiffs to replicate every provision
of Bulletin 1508; rather, it appears that OPSB required compliance only with respect to specific
areas that were actually addressed or tested in the IEE. Accordingly, Plaintiff’s insistence that OPSB
required the IEE to “fully replicate or supplant the procedures in Bulletin 1508”117 is inconsistent

113

Rec. Doc. 35 at p. 6.

114

Rec. doc. 25-6 at pp. 57-58.

115

34 C.F.R. § 300.502(b)(2)(i) and (ii).

116

See P.R. v. Woodmore Local Sch. Dist., 256 Fed.Appx. 751, 754 (6th Cir. 2007).

117

Rec. Doc. 35 at p. 2.

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with the record.
In support of their argument that reimbursement is appropriate, Plaintiffs rely heavily on
A.S. ex rel. S. v. Norwalk Bd. of Educ., a non-binding decision where the District Court for the
District of Connecticut affirmed a hearing officer’s decision requiring a School Board to reimburse
parents for the cost of an IEE obtained at public expense.118 In that case, the hearing officer
determined that (1) the Board’s evaluation of the student was not appropriate because it did not
assess her progress toward the goals and objectives of her IEP, as required under 34 CFR §
300.532(b); (2) the fact that the evaluation was conducted after the parties requested a due process
hearing did not alleviate the Board’s duty; and (3) the evaluator was entitled to rely on “information
already in the possession of the Board” to complete the IEE because “[t]he plain language of the
applicable regulations requires only that a parent’s expert meet the same criteria that the Board used
when initiating its evaluation, not that the expert employ a methodology approved by the Board.”119
These facts are easily distinguishable from the present case, where the ALJ found that Plaintiffs
were not entitled to reimbursement specifically and solely because their IEE did not meet the same
criteria that OPSB uses when initiating its evaluations.120
As stated above, a public agency is not obligated to reimburse parents of the cost of a
privately-obtained IEE if “the agency demonstrates in a hearing under § 300.507 that the evaluation
obtained by the parent did not meet agency criteria.”121 “[T]he criteria under which the evaluation

118

A.S. ex rel. S. v. Norwalk Bd. of Educ., 183 F.Supp.2d 534 (D. Conn. 2002).

119

A.S. ex rel. S. v. Norwalk Bd. of Educ., 183 F.Supp.2d 534, 551 (D. Conn. 2002).

120

Rec. Doc. 11-1 at pp. 201-02.

121

34 C.F.R. § 300.502(b)(2)(i) and (ii).

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is obtained . . . must be the same as the criteria that the public agency uses when it initiates an
evaluation . . .”122 OPSB has demonstrated that Plaintiffs are not entitled to reimbursement because
the IEE at issue does not comply with Bulletin 1508 criteria with respect to the four areas of testing
listed above.123 Accordingly, the IEE obtained by Plaintiffs does not qualify as one obtained at
public expense, and the remedy of reimbursement is not available.124
C.

Notice of agency criteria
Plaintiffs additionally argue that summary judgment is inappropriate because OPSB failed

to provide them with “adequate written notice of the Applicable [sic] Bulletin 1508 requirements.”125
The record indicates that when OPSB granted Plaintiffs’ request for an IEE at public expense, it
stated that the assessment must follow the requirements outlined in Bulletin 1508 and provided a
link to an online version of the document.126 Additionally, when OPSB notified Plaintiffs that the
IEE was not compliant with Bulletin 1508, it invited Dr. Brockman to contact the OPSB Appraisal
External Evaluation Reviewer regarding the areas of non-compliance.127 There is no evidence in the
record that such contact was made. Considering that Plaintiffs cite no legal authority suggesting that
the IDEA requires public agencies to provide parents with any additional or different form of notice,
such as a checklist, the Court concludes that OPSB’s actions complied with the regulations set forth
by the IDEA.

122

34 C.F.R. § 300.502(e) (emphasis added).

123

Rec. Doc. 11-1 at p. 201. See also Rec. Doc. 11-1 at p. 62; pp. 97–98.

124

34 C.F.R. § 300.502(e).

125

Rec. Doc. 35 at p. 2.

126

See Rec. Doc. 11-1 at p. 69.

127

Id. at pp. 122–125.

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D.

Whether OPSB Waived its Right to Object to Reimbursement
Plaintiffs contend that by failing to request a due process hearing following their requests

for an IEE at public expense, and again following their requests for reimbursement, OPSB waived
its right to object to reimbursing Plaintiffs for the cost of the IEE.128 However, as stated above, a
public agency is not obligated to reimburse parents of the cost of a privately-obtained IEE unless
the evaluation satisfies certain requirements, including compliance with agency criteria.
Accordingly, the Court finds Plaintiffs’ argument that OPSB has somehow waived its right to object
to reimbursing Plaintiffs lacks merit.
IV. Conclusion
The Court is aware that it does not have the “specialized knowledge and experience”
necessary to resolve “persistent and difficult questions of educational policy.”129 However, based
on the administrative record and the additional evidence submitted by the parties, the Court cannot
conclude by a preponderance of the evidence that Plaintiffs are entitled to the relief that they seek.130

The Court concludes, therefore, that Plaintiffs are not entitled to reimbursement for the IEE that
they obtained, because it does not qualify as one obtained at public expense. Because this issue is
dispositive, the Court need not examine Plaintiffs’ remaining arguments regarding financial
expense.131 The Court notes, however, that OPSB represented in its briefings and during oral
argument that it was willing to work with Plaintiffs to ensure that the IEE conformed to the

128

Rec. Doc. 25 at pp. 23–24.

129

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42 (1973).

130

See 20 U.S.C. § 1415(i)(2)(B).

131

Plaintiffs additionally devote significant portions of their brief to the expense of the evaluation that they
obtained, and their objections to paying that cost “up-front.” Because the Court has determined that Plaintiffs are not
entitled to reimbursement for the IEE at issue, the Court need not reach the policy concerns outlined by Plaintiffs with
respect to cost.

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requirements of Bulletin 1508, and that under those circumstances at least partial reimbursement
may be possible.132
Accordingly,
IT IS HEREBY ORDERED that OPSB’s “Motion for Summary Judgment”133 is
GRANTED.
NEW ORLEANS, LOUISIANA, this ______ day of January, 2015
20th
____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

132

Rec. Doc. 31 at p. 9.

133

Rec. Doc. 19.

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