Independent School District No. 283 v. E.M.D.H
Filing
42
MEMORANDUM OPINION AND ORDER: The District's Motion for a Temporary Restraining Order and Preliminary Injunction Staying Enforcement of Administrative Decision (Doc. No. [6)]) is GRANTED as to the following provisions.(Written Opinion) Signed by Judge Donovan W. Frank on 4/25/2018. (See Order for specific provisions.) (las)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Independent School District No. 283,
Civil No. 18-935 (DWF/LIB)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
E.M.D.H., a minor, by and through her
parents and next friends, L.H. and S.D.,
Defendants.
________________________________________________________________________
Peter A. Martin, Esq., Knutson, Flynn & Deans, PA, counsel for Plaintiff.
Amy J. Goetz, Esq., and Andrea L. Jepsen, Esq., School Law Center, LLC, counsel for
Defendants.
________________________________________________________________________
INTRODUCTION
In this action, Independent School District No. 283 (the “District”) requests
judicial review of a March 16, 2018 decision (the “Decision”) issued by an administrative
law judge (“ALJ”). (Doc. Nos. 1, 2.) The Decision ruled in favor of the parents of a
high-school student who lodged a due process complaint under the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”). The District seeks
reversal of the ALJ’s Decision and presently moves for a Temporary Restraining Order
(“TRO”) and Preliminary Injunction Staying Enforcement of Administrative Decision
pending resolution of the current litigation. (Doc. Nos. 1, 6.) The District’s motion is
granted as set forth below.
BACKGROUND
Defendants E.M.D.H. (the “Student”), a minor, by and through her parents and
next friends, L.H and S.D. (the “Parents”) (together “Defendants”) assert that the Student,
a sixteen-year old junior in high school, has been denied her right to a free and
appropriate education under the IDEA. In short, Defendants submit that the Student went
years without special education and related services because she was not properly
classified as having a disability. The Parents hired a private educational team to design
and implement an individualized education program. In June 2017, Defendants initiated
an administrative hearing to correct the conditions and restore the Student’s education. 1
After a seven-day hearing, the ALJ issued the Decision, requiring Plaintiff to
immediately change the Student’s educational placement by providing her a free
appropriate public education consisting of special education and related services, at
public expense, until her graduation. The District then initiated the present action
seeking judicial review of the Decision and to reverse the findings therein. The District
presently seeks to stay the following portions of the Decision pending resolution of this
action: 2
1
The facts relevant to the merits of the case are fully recited in the Decision. There
does not appear to be a dispute as to the material facts, but rather Plaintiff challenges the
legal conclusions reached by the ALJ. The Court will refer to facts as relevant in its
discussion below.
2
The School District represents that it seeks to stay the hearing officer’s award of
compensatory education, not the portion of the hearing decision that directly involves the
Student’s educational placement.
2
1.
The requirement that the District reimburse the Parents
$21,208.80 for costs associated with independent educational evaluations
conducted by privately hired evaluators Dr. Read Sulik (the Student’s
treating psychiatrist), Dr. Richard Ziegler (a pediatric neuropsychologist),
Wendy Selnes (a behavior analyst), and Heather Lindstrom (a special
education teacher working for the Minnesota Department of Corrections
with a side-business known as “Beyond Risk Youth”); 3
2.
The requirement that the District reimburse the Parents
$2,430 for the assessment conducted in May 2017 by Dr. Denise Reese, a
private, licensed psychologist;
3.
The requirement that the Student’s IEP team meet at least
quarterly following the implementation of the Student’s initial IEP;
4.
The requirement that Dr. Sulik and Lindstrom be invited to all
quarterly IEP meetings and be reimbursed for their time participating in
such meetings;
5.
The requirement that the District reimburse the Parents for the
cost of a private program provided by Lindstrom since January 5, 2018 and
for future services;
6.
The requirement that the Student’s IEP include a placement in
a “program identical” to the program currently provided by Lindstrom; and
3
The Court previously stayed portions of the Decision pending a ruling on the
present motion. (Doc. No. 19.)
3
7.
Any alleged requirement that a “program identical” to
Lindstrom’s program must also include involvement by Dr. Ziegler and
Selnes in IEP meetings from now until the Student graduates.
On April 13, 2018, after this action and the present motion were filed, the District
sent a proposed individualized education program (“IEP”) to the Parents. On April 16,
2018, the Parents consented to the proposed IEP. (Doc. No. 38 (“Second Reynolds
Decl.”) ¶¶ 12, 15 & Ex. 1(“IEP”).) The IEP was implemented in response to the
Decision, and services under the IEP are anticipated to begin the week of April 23, 2018.
(Second Reynolds Decl. ¶ 15.) The IEP outlines the services to be provided the Student
by fully-licensed District employees within the boundaries of the District. The District
submits that it informed Defendants’ outside providers that their contracted services were
on hold pending the outcome of this action or that the District would be in contact if a
contract for services became necessary. (Id. ¶¶ 13-14.)
ANALYSIS
I.
The IDEA and the “Stay-Put” Rule
The IDEA codifies the goal that “all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related
services designed to meet their unique needs.” 20 U.S.C. § 1400(d). In addition, the
IDEA mandates that participating states extend various procedural protections and
administrative safeguards to disabled children, parents, teachers, school officials, and
educational institutions. 20 U.S.C. § 1415. For example, under the IDEA, parents are
entitled to notice of proposed changes in their child’s educational program and, where
4
disagreements arise, to an “impartial due process hearing.” Id. § 1415(b)(2) & (f). Once
the available avenues of administrative review have been exhausted, aggrieved parties
may file a civil action in state or federal court. Id. § 1415(i)(2).
The IDEA also includes a “stay-put” provision, under which a disabled student
“shall remain in the then-current educational placement of the child” during the pendency
of any judicial review, unless “the State or local educational agency and the parents
otherwise agree.” Id. § 1415(j). The “stay-put” provision ensures an uninterrupted
continuity of education for a disabled child pending any administrative or judicial review.
See Light v. Parkway C-2 Sch. Dist., 41 F.3d 1223, 1227 (8th Cir. 1994). Further, the
regulations implementing the IDEA provide:
If the hearing officer in a due process hearing conducted by the SEA or a
State review official in an administrative appeal agrees with the child’s
parents that a change of placement is appropriate, that placement must be
treated as an agreement between the State and the parents for purposes of
[the general rule].
C.F.R. § 300.518(d). See also Lawrence Cty. Sch. Dist. v. McDaniel, Civ. No. 17-4, 2017
WL 4843229, at *2 (E.D. Ark. Oct. 26, 2017) (explaining that a hearing officer’s
decision in favor of a student constitutes the student’s “then-current” placement).
Defendants argue that the Student’s “current educational placement” is that which
is set forth in the Decision. The District, however, argues that the injunctive relief sought
does not implicate the “stay-put” provision because the District does not seek to change
the Student’s educational placement, but rather seeks to stay the expenditure of public
money to pay private providers for both past and future services. The District points out
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that the parties have agreed to an IEP and that the portion of the Decision that directly
involves the Student’s educational placement is not subject to the stay.
The District has cited to authority that at least calls into question whether a
challenge to an award of compensatory education, as opposed to the “then current
educational placement,” falls within the purview of the “stay-put” provision. See, e.g.,
Board of Educ. v. Maez, Civ. No. 16-1082, 2017 WL 3610546, at *4 (D. N.M. 2017)
(“There is some question as to whether the [stay-put] provision applies to compensatory
education—or in this case, payment for future services.”). Regardless of whether the
“stay-put” provision applies to the provision of compensatory education, the “stay-put”
provision can be overcome at the equitable discretion of a district court. See Honig v.
Doe, 484 U.S. 305, 327-28 (1988). The “stay-put” rule was not intended to eliminate the
availability of traditional injunctive relief. See Board of Educ. v. Maez, 2017 WL
3610546, at *3. Therefore the Court evaluates the District’s request for injunctive relief
below.
II.
The District’s Request for Injunctive Relief
A movant must demonstrate circumstances that justify a stay pending judicial
review, and as with other temporary injunctive relief, the Court weighs the following
factors: (1) the threat of irreparable harm to the moving party; (2) the balance between
the alleged irreparable harm and the harm that granting the injunction would inflict on the
other party; (3) the public interest; and (4) the likelihood of the moving party’s success
on the merits. See Dist. of Columbia v. Masucci, 13 F. Supp. 3d 33, 39 (D.D.C. 2014);
see also Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). The
6
factors must be balanced to determine whether they tilt toward or away from granting
injunctive relief. See West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th
Cir. 1986).
The Court has considered the parties’ respective arguments made in their papers
and during the hearing on this matter. After careful consideration, the Court concludes
that the District is entitled to a stay of portions of the Decision pending a final resolution
of this lawsuit. First, the Court concludes that the District has demonstrated irreparable
harm. Absent a stay, the District will be required to reimburse the Parents roughly
$24,000 for past services provided by private evaluators and an assessment conducted by
a private licensed psychologist. In addition, the District will be required to reimburse the
Parents for future costs for private professionals’ participation in quarterly IEP meetings,
as well as the cost of the private program provided by Lindstrom outside of the District.
The District has submitted evidence that the costs of these private services could total
$175,000 to $200,000 in a single year. (Doc. No. 16 (“Reynolds Decl.”) ¶ 13.) While
financial harm is ordinarily reparable because it is compensable by monetary damages,
the circumstances here support a contrary conclusion. Without a stay, the District could
be required to pay over $200,000 to cover both past and prospective private services.
Even with a multi-million dollar operating budget, this is not an insignificant amount of
money, particularly because the District maintains that it is capable of providing these
services using its own licensed and qualified special education staff. (Id. ¶ 16.)
The District also argues that even if it ultimately prevails, there is no mechanism
to recoup money spent to pay for private services. The District has cited to several cases
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supporting this contention. See, e.g., Masucci, 13 F. Supp. 3d at 41 (holding that school
district would be irreparably harmed absent a stay because the district would be unable to
recoup costs paid for private tuition and related private services); Board of Educ. v. Maez,
2017 WL 3610546, at *6-8 (enjoining an order requiring $5,000 of private speech
therapy for student because the district could not recoup the funds and because it would
have to pay for duplicate services it could provide). While the Court does not necessarily
agree with the notion that it could not order reimbursement of the funds, it concedes that
it would be difficult to ask the Parents to reimburse the District for the costs of an ALJ’s
erroneous decision. See Masucci, 13 F. Supp. 3d at 41 (noting circuit court’s statement
that “[i]t would be absurd to imagine a trial court ordering parents to reimburse a school
system for the costs of a hearing examiner’s erroneous placement of their child”). The
potential of not being able to recoup the costs, in combination with the fact that the
District will be forced to pay a high amount for duplicate services that it can provide, tips
this factor in favor of a stay.
Second, the Court concludes that the balance of the harms weighs in favor of a
stay. For services already provided and paid for, a stay will delay reimbursement to the
Parents for several months. This delay is not irreparable. In addition, the Court finds that
any harm the Student will suffer if payment for prospective private services is stayed will
be mitigated by the fact that the District can implement the Student’s educational
placement with their own staff. Importantly, the District points out that the ALJ did not
conclude that the District was incapable of providing appropriate services. The potential
8
harm in requiring the District to pay for private services outweighs the potential harm to
the Student and her Parents.
Third, the Court agrees with the District that the public interest is served by
minimizing unnecessary expenditure of public funds and that any unnecessary expense
will affect the District’s ability to serve its student population at large. The Court
recognizes and acknowledges the public interest promoted by the IDEA. However, it is
not in the public interest to spend upwards of $200,000 in past and prospective costs to
pay for private services when the District employs specialists who are licensed and
qualified to provide those services to the Student.
Finally, Plaintiff argues that it is likely to succeed on the merits of its challenge to
the Decision. Defendants disagree and argue that the District is unlikely to prevail
because the Decision is well-reasoned, presumptively correct, and entitled to deference.
The Court concludes that this particular factor weighs slightly in favor of injunctive
relief. The merits of this case are complex and the record is voluminous, making a full
analysis of the merits more properly addressed at a later stage of litigation. However,
even at this early stage, the District’s challenges to the Decision have merit in that they
have raised substantial questions regarding the propriety of ALJ’s order, and that those
questions call for a more deliberate investigation. Specifically, the District argues that
the ALJ erred in ordering reimbursement of outside professionals hired by the Parents
because the underlying conclusions supporting the ALJ’s order on reimbursement were
erroneous. For example, the District explains that it did not conduct required classroom
observations because the Student was at home nearly every day and rarely attended
9
school, and that the absence of classroom observations and a functional behavior analysis
were harmless because the Student did not meet the other eligibility criteria. 4 In addition,
the District argues that the ALJ exceeded his authority by ordering, as compensatory
education, the District to pay for private consultation and future services because there
was no evidence that the District staff are incapable of providing the mandated services.
The Court declines to make any definitive finding as to the likelihood of success
on the merits, except to note that the District’s arguments have significant merit and
deserve additional and thorough consideration. Even without a finding of a strong
likelihood of success on the merits, the Court concludes that a temporary stay is
warranted because the factors of irreparable harm, public interest, and balance of the
harms all weigh heavily in favor of a stay. 5 On balance, the Court concludes that
equitable considerations favor an injunction.
CONCLUSION
The Court grants the District’s motion and temporarily stays the enforcement of
the Decision insofar as it imposes any requirement on the District to expend public funds
4
The District evaluated the Student, but found no eligibility, for possible special
eligibility in Autism Spectrum Disorder (“ASD”), Emotional and Behavioral Disorder
(“EBD”), and Other Health Disability (“OHD”), and within the OHD category, evaluated
the Student for ADHD and Generalized Anxiety Disorder.
5
The Eighth Circuit has explained that the “equitable nature of the proceeding
mandates that the court’s approach be flexible” and has rejected “an effort to apply the
probability [of success] language to all cases with mathematical precision.” Dataphase
Sys., Inc., 640 F.2d at 113. Thus, “where the balance of other factors tips decidedly
toward plaintiff a preliminary injunction may issue if movant has raised questions so
serious and difficult as to call for more deliberate investigation.” Id. Such is the case
here.
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to pay for past or future private services. Of course, the Parents are free to continue to
contract with private providers and could seek reimbursement should they prevail in this
lawsuit. Hopefully, the implementation of the IEP and the resulting services provided by
the District will meet the Student’s educational needs. In addition, the Court believes that
it is in the bests interests of the parties to resolve this case quickly. Consistent with the
Court’s remarks at the hearing, the parties are directed to contact Magistrate Judge
Brisbois’ chambers to set a date for a scheduling conference with priority. The Court
also commits to giving this matter calendar priority.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY ORDERED that:
1.
The District’s Motion for a Temporary Restraining Order and Preliminary
Injunction Staying Enforcement of Administrative Decision (Doc. No. [6)]) is
GRANTED as to the following provisions:
a.
The requirement that the District reimburse the Parents
$21,208.80 for costs associated with independent educational evaluations
conducted by privately hired evaluators Dr. Read Sulik, Dr. Richard
Ziegler, Wendy Selnes, and Heather Lindstrom;
b.
The requirement that the District reimburse the Parents
$2,430 for the assessment conducted in May 2017 by Dr. Denise Reese;
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c.
The requirement that Dr. Sulik and Lindstrom be invited to all
quarterly IEP meetings and be reimbursed for their time participating in
such meetings;
d.
The requirement that the District reimburse the Parents for the
cost of a private program provided by Lindstrom since January 5, 2018 and
for future services;
e.
The requirement that the Student’s IEP include a placement in
a “program identical” to the program currently provided by Lindstrom; and
f.
Any alleged requirement that a “program identical” to
Lindstrom’s program must also include involvement by Dr. Ziegler and
Selnes in IEP meetings from now until the Student graduates.
Dated: April 25, 2018
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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