Ruhl et al v. State of Ohio Department of Health et al

Filing 27

Opinion and Order. Defendant Richland County's Motion to Consolidate (Related doc # 14 ) is denied. Defendant Richland County's Motion to Stay (Related doc # 6 ) is denied as moot. Plaintiff's Motion for Summary Judgment (Related doc # 21 ) is denied. Defendant Richland County's Motion for Affirmance of Dismissal (Related doc # 22 ) is granted and Plaintiff's Complaint is dismissed. Judge Christopher A. Boyko on 3/28/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NICOLA RUHL, et al.,
Plaintiff,
Vs.
STATE OF OHIO DEPARTMENT OF
HEALTH, ET AL.,
Defendant.

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CASE NO.1:16CV0082
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant Richland County Board of
Developmental Disabilities’ Motion to Stay (ECF # 6) and Motion to Consolidate (ECF # 14);
Plaintiffs’ Motion for Summary Judgment (ECF # 21) and Richland County’s Motion for
Affirmance of Dismissal (ECF # 22). For the following reasons, the Court affirms the
hearing officer’s dismissal of Plaintiff’s Second Administrative Due Process Complaint (or
Second Complaint) as an improperly filed Amended Complaint. Therefore, the Court
dismisses the above-captioned case.
Plaintiffs filed their Complaint on January 13, 2016. The Complaint is an appeal of
an administrative decision issued on December 22, 2015, dismissing Plaintiffs’ Second

Administrative Due Process Complaint. According to Plaintiffs Nicola and Gary Ruhl, their
four year old son, W.R., suffers from autism. Plaintiffs allege that from ages 30-36 months,
the Help Me Grow system, a component of the Individuals with Disabilities Education Act
(“IDEA”) failed to provide W.R. the full extent of the therapeutic services required under
W.R.’s Individualized Family Services Plan (“IFSP”).
According to Plaintiffs, W.R. was the first child in Ohio to receive an IFSP when he
was 30 months old. The IFSP authorized applied behavior analysis therapy (“ABA”), speech
therapy and language therapy. It identified an ABA provider and the Help Me Grow system
committed to funding the services. According to Plaintiffs, Defendants Richland County
Board of Developmental Disabilities and the State of Ohio’s Department of Health (“ODH”)
provided services well below the IFSP authorized level of services. Plaintiffs seek
reimbursement for the difference between the authorized services and those actually provided.
Plaintiffs contend W.R. received only 453.25 hours of ABA therapy out of an IFSP
authorized 1,160 hours and received only 16 speech therapy sessions out of 216 authorized
speech therapy visits over a six month period running from December 2013 to June 2014.
Children age out of the Help Me Grow program at age three and local school districts assume
responsibility thereafter under the IDEA.
Plaintiffs had previously filed a Complaint in federal court on September 18, 2014,
alleging denial of early intervention services by the State of Ohio, Wendy Grove, Ohio’s
IDEA Part C Coordinator and the United States Department of Education. Plaintiffs alleged
improper denial of early intervention services including denial of ABA therapy and
compensatory services and reimbursement for these services, resulting in a systematic

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violation of Part C of the IDEA and other laws. The district court dismissed Plaintiffs’
Complaint for failure to exhaust administrative remedies under the IDEA. Plaintiffs appealed
and the Sixth Circuit subsequently affirmed dismissal.
Plaintiffs then filed a First Administrative Due Process Complaint in September 2015
after dismissal of their federal Complaint. Plaintiffs’ First Complaint alleged W.R., along
with all children throughout the State of Ohio who had autism, were denied federally
mandated early intervention services and were denied compensatory service funding to
remedy past unlawful conduct. Plaintiffs alleged Ohio refused to provide ABA therapy and
denied compensatory services awards designed to place disabled children in the same
developmental position they would have been in had they not been deprived of such services.
In their prayer for relief under the First Complaint, Plaintiffs sought a declaration that the
Defendants violated the rights of infants and toddlers with disabilities by excluding ABA
therapies for early intervention services; sought compensatory services funding to achieve
developmental levels W.R. would have achieved had he not been denied early intervention
services; reimbursement for amounts Plaintiffs paid for services Defendants refused to
provide, along with fees, costs and compensatory and punitive damages.
On October 25, 2015, during the First Complaint proceedings, Plaintiffs requested an
Order identifying claims to be heard and decided by the hearing officer since many of the
claims brought by Plaintiffs were outside the scope of the hearing officer’s authority. The
hearing officer set a hearing for December 7, 2015, and determined that the scope of the
hearing would be “whether WR was appropriately provided early intervention services under
the IDEA Part C during the two year period preceding the filing of the due process

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Complaint. If services were not appropriately provided, then the decision would also address
compensatory services.” (Decision on Motions Filed by ODH and Richland Newhope ECF #
1-2 pg 3).1
Four days prior to the December 7, 2015 hearing on the First Complaint, Plaintiffs
filed a Second Complaint on December 3, 2015. Under the Second Complaint, Plaintiffs
allege W.R. was denied a substantial amount of the therapies he was authorized under a 2013
IFSP. The Second Complaint seeks compensatory services for W.R. for the difference
between the therapies he was authorized to receive and those he actually received, along with
costs and fees. Plaintiffs sought to consolidate their two Complaints at the hearing set for
December 7, 2015. According to Plaintiffs, this Second Complaint was filed pursuant to 34
C.F.R. § 303.441. Plaintiffs contend 34 C.F.R. § 303.445(c) authorizes the filing of a separate
due process complaint even if a family has a due process complaint already pending. The
First Complaint addressed deficiencies in therapy offered to all children in Ohio. The matter
concerned W.R.’s deprivations of early intervention therapies prior to his turning 30 months
of age. Plaintiffs contend the hearing officer dismissed their Second Complaint at the
December 2015 hearing in violation of the law when she declined to hear the arguments
because they were not part of the First Complaint and were an attempt to improperly amend
the First Complaint.
In February 2016, Plaintiffs filed a Motion to Expedite the case because the denial of
W.R.’s full authorized benefits negatively impacts his development. Defendants opposed the

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According to Defendant Richland, Richland Newhope and Richland County
Board of Developmental Disabilities are the same entity. (ECF # 24 pg. 1).
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Motion and the Court denied the Motion. In March 2016, Defendants filed a Motion to Stay
Proceedings to allow the appeal of the First Complaint, now with the Sixth Circuit, to play
out. Plaintiffs oppose that Motion. Defendant Richland also moves to consolidate this action
with a subsequently filed action concerning a more recent alleged denial of authorized
therapies. Both parties seek a determination by the Court whether the hearing officer properly
dismissed Plaintiffs’ Second Complaint.
“The IDEA provides that a party aggrieved by the findings and decision of the
administrative law judge has a right to bring a civil action in federal court. 20 U.S.C. §
1415(i)(2). The court shall receive the record of the administrative proceedings, hear
additional evidence if the parties make such a request, and, basing its decision on the
preponderance of the evidence, grant appropriate relief.”A.U., ex rel. N.U. v. Roane Cty. Bd.
of Educ., 501 F. Supp. 2d 1134, 1140 (E.D. Tenn. 2007) citing 20 U.S.C. 1415(i)(2). Under
the heading Separate Due Process Complaint the applicable CFR reads, “Nothing in §§
303.440 through 303.449 precludes a parent from filing a separate due process complaint on
an issue separate from a due process complaint already filed.” 34 C.F.R. § 303.445.
According to Defendants, the hearing officer properly determined Plaintiffs’ Second
Complaint was merely an attempt to improperly amend their pending First Complaint.
According to the hearing officer, Plaintiffs’ Second Complaint seeks the same determination
as the First - i.e. the appropriate provision of early intervention services to W.R. under IDEA
Part C. The hearing officer’s ruling on the scope of the December 7, 2015 hearing
specifically encompassed the denial of early intervention services for the time period covering
both the First and Second Complaints and noted that the parties had litigated the entire two

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year period encompassing both Complaints during the litigation of the First Complaint. The
same issues and the same parties were in both Complaints. According to the hearing officer,
the only added component in the Second Complaint is an additional remedy (additional
compensatory services). The hearing officer held that 34 CFR § 303.441(d)(3), permits
amendment either with the opposing party’s consent or with the permission of the hearing
officer and permission is granted not later than five days before the due process hearing
begins. Defendants never consented and Plaintiffs never sought permission of the hearing
officer to amend. Because the Second Complaint was filed only two business days before the
hearing, the hearing officer determined no right to amend existed and the Second Complaint
did not seek a determination of an issue separate from that litigated in the First Complaint.
Therefore, the issue before the Court is simply whether Plaintiffs’ Second Complaint
alleges an issue separate from the issues in Plaintiffs’ First Complaint. There is no dispute
that the Ruhls, Richland and ODH were parties to both Complaints. The hearing officer
determined that the matters before her in the First Complaint involved the denial of early
intervention services for the two years prior to the September 2015 Complaint. This two year
look back clearly encompassed the mid December 2013 to June 2014 time period of the
Second Complaint.
The First Complaint broadly encompassed the denial of early intervention services for
this two year period. This included the ABA therapies Plaintiffs allege W.R. was denied in
both Complaints. The only difference in the Complaints is that Plaintiffs seek an additional
remedy for speech therapies it alleges Defendants failed to provide. Plaintiffs argue their
First Complaint sought relief for pre-December 2013 failures to provide early intervention

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services. However, contrary to Plaintiffs’ representation, its First Complaint contains no such
time restriction. In fact, it incorporates the 2014 Complaint filed with the District Court,
which alleges, “It is also uncontroverted that the Defendants systemically chose to deprive
W.R. of essential applied behavior analysis therapy during the most critical developmental
time of his life until he turned 2 1/2 years old and now systemically continues to deprive him
of compensatory services.” (14-2075 Complaint at 7). The December 2015 Second
Complaint seeks “from the Help Me Grow system as compensatory services for (W.R.)
funding for the difference between the amount of IFSP authorized ABA therapy and speech
therapy for (W.R.) and the actual much lower amount Mrs. Ruhl was able to achieve for her
son.” (Second Complaint pg. 2).
When a claim is brought under IDEA, the Court must afford due weight to the state
administrative proceedings. Bd. of Educ. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S.
176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The Court must “review questions of law
de novo, though some deference may be owed where the agency is reasonably interpreting the
statutes it is charged with administering.” R/T 182, LLC v. F.A.A., 519 F.3d 307, 309 (6th
Cir. 2008).
Upon consideration of the record, the Court holds the hearing officer’s ruling that
Plaintiffs’ Second Complaint was merely an attempt to improperly amend its First Complaint
was not contrary to law. Based on the claims, parties and remedies sought in both
Complaints, the Court agrees with the hearing officer that the claims in Plaintiffs’ Second
Complaint were largely subsumed in the First. There was no limiting time frame found in the
First Complaint and even if there were, the hearing officer’s decision on motions filed by

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ODH and Richland clearly stated she intended to consider whether W.R. was provided early
intervention services under the IDEA Part C during the period running from the Complaint of
September 2015 back two years. This time frame clearly encompassed the time frame of
Plaintiffs’ Second Complaint. The hearing officer further stated her intent to determine
whether all early intervention services were provided and if not, what compensatory services
should be provided. Both of these issues address the substance of Plaintiffs’ Second
Complaint. While the parties do not perfectly align from the First Complaint to the Second
Complaint, it is only because Wendy Groves, the IDEA administrator was named in the First
but not the Second Complaint. This is immaterial because the ODH and Richland were
parties to both Complaints.
Therefore, for the foregoing reasons, the hearing officer properly determined
Plaintiffs’ claims in its Second Complaint were litigated and addressed in proceedings on the
First. Furthermore, the Court agrees that any remedies Plaintiffs’ sought should have and
could have been brought in the First Complaint either initially when filed or upon a properly
requested amendment. Plaintiffs offer no explanation why they could not have asserted the
additional remedy for speech therapies at the time of the filing of the First Complaint.
The Court believes there exist other grounds to dismiss Plaintiffs’ Complaint. ODH
contends Plaintiffs’ Second Complaint was improper for failing to comply with the relevant
Code of Federal Regulations. 34 CFR § 303.441 requires the following be specifically stated
in a due process complaint.
(b) Content of complaint. The due process complaint required in paragraph (a)(1) of this
section must include—

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(1) The name of the child;
(2) The address of the residence of the child;
(3) The name of the EIS provider serving the child;
(4) In the case of a homeless child (within the meaning of section 725(2) of the
McKinney–Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact
information for the child, and the name of the EIS provider serving the child;
(5) A description of the nature of the problem of the child relating to the proposed or refused
initiation or change, including facts relating to the problem; and
(6) A proposed resolution of the problem to the extent known and available to the party at the
time.
Plaintiffs Second Complaint does not allege the names of the therapy providers for
speech and ABA and they were not served. Relief could not be granted in the form of
compensatory services from these providers because they are not parties to the action. Also,
ODH claims Plaintiffs request damages -i.e. funding for the difference between what W.R.
was authorized to receive and what he in fact received. This proposed resolution by Plaintiffs
is not appropriate under IDEA Part C. Lastly, OHD points out that Plaintiffs failed to include
a description of the problem of W.R. relating to the proposed or refused initiation or change.
In accordance with 34 CFR § 303.441(d), ODH filed a timely notice of deficiency
with the IHO on December 18, 2015. 34 CFR § 303.441(d)(1) reads:
Sufficiency of complaint.
(1) The due process complaint required by this section must be deemed
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sufficient unless the party receiving the due process complaint notifies the
hearing officer and the other party in writing, within 15 days of receipt of the
due process complaint, that the receiving party believes the due process
complaint does not meet the requirements in paragraph (b) of this section.

Because she found the Second Complaint an improper amendment, the hearing officer
did not address this issue.
A review of the Second Complaint demonstrates it is deficient, as it does not include
the required elements at paragraphs 3, 5 and 6 of 34 CFR § 303.441(b). This further militates
in favor of dismissal.
Therefore for the foregoing reasons, the Court denies Plaintiffs’ Motion for Summary
Judgment, denies Defendant Richland’s Motion to Consolidate and grants Defendant’s
Motion for Affirmance of Dismissal and dismisses plaintiffs Complaint.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 28, 2017

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