Ruhl et al v. State of Ohio Department of Health et al
Filing
44
Opinion & Order signed by Judge James S. Gwin on 10/7/16. The Court, for the reasons set forth in this order, denies plaintiffs' motion for partial summary judgment, denies plaintiffs' motion for reconsideration and declines to certify its previous Order for immediate appeal under 28 U.S.C. § 1292(b), and denies plaintiffs' motion to supplement the record. (Related Docs. 16 , 29 , and 37 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------NICOLA RUHL, et al.,
Plaintiffs,
vs.
THE STATE OF OHIO
DEPARTMENT OF HEALTH, et al.
Defendants.
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CASE NO. 16-CV-773
OPINION & ORDER
[Resolving Docs. 16, 29 & 37]
-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this case, Plaintiffs W.R., Nicola and Gary Ruhl allege that Defendants Ohio
Department of Health, the Richland County Board of Developmental Disabilities, and Ohio
IDEA Part C Coordinator Wendy Grove refused to provide W.R., a child with autism, an
essential early intervention service called applied behavioral analysis therapy.1 Specifically,
Plaintiffs allege violations of the Individuals with Disabilities Education Act, Part C (“IDEA Part
C”).2 This Court previously dismissed Plaintiffs’ Rehabilitation Act § 504, Americans with
Disabilities Act Title II, procedural due process, equal protection, and state law claims.3
Plaintiffs move for partial summary judgment on the IDEA Part C claims.4 Plaintiffs also
move for reconsideration of the dismissal of the non-IDEA Part C claims or, in the alternative,
Rule 54(b) certification of final judgment.5 Finally, Plaintiffs move to submit additional evidence
to supplement the administrative record.6
1
Doc. 1.
Id.
3
Doc. 23.
4
Doc. 16.
5
Doc. 29.
6
Doc. 37.
2
Case No. 16-CV-773
Gwin, J.
For the reasons below, the Court DENIES the Plaintiffs’ motions for partial summary
judgment, reconsideration, and to supplement the administrative record.
I. Background
In November 2011, Plaintiff W.R. began receiving services for torticollis from Help Me
Grow, Ohio’s early intervention system under IDEA Part C.7 In April 2013, Nationwide Hospital
diagnosed W.R. with autism and significant impairment in socialization and communication
skills.8 Nationwide directed that W.R. “should participate in autism-specific programming based
on principles of applied behavior analysis.”9
At the time, Help Me Grow did not provide applied behavior analysis therapy as an early
intervention service for children with disabilities.10 On June 27, 2013, the United States
Department of Education notified Ohio that Ohio has a “responsibility to make [applied behavior
analysis] therapy available as a service or a method if the child’s [Individualized Family Service
Plan] team identifies such a service as necessary to meet the unique developmental needs for a
particular infant or toddler with a disability.”11 In mid-December 2013, the Ohio Department of
Health began funding applied behavior analysis therapy for Plaintiff W.R.12 Repeating the above
timeline, W.R. was diagnosed as autistic in April 2013. After the Department of Education told
Ohio it needed to provide services for autistic children, Ohio provided W.R. with services. This
lawsuit deals with W.R.’s claims for the roughly six months that Ohio initially denied services
for W.R.
7
Doc. 1 at ¶¶ 32-33.
Id. at ¶ 41.
9
Id.
10
Id. at ¶¶ 42, 44, 65.
11
Id. at ¶ 84.
12
Id. at ¶ 88.
8
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Gwin, J.
On September 18, 2014, the Plaintiffs filed a complaint against the Ohio Department of
Health, Ohio IDEA Part C Coordinator Wendy Grove, and the United States Department of
Education for “systemically, intentionally, and categorically refus[ing] to provide necessary
IDEA Part C early intervention services to all infants and toddlers with autism in Ohio.”13 Judge
Wells dismissed the Plaintiffs’ claims because they had not exhausted their administrative
remedies.14
The Sixth Court of Appeals affirmed the district court’s dismissal for failure to exhaust
administrative remedies.15 The Sixth Circuit also noted that the Plaintiffs could not “seek relief
on behalf of ‘all infants and toddlers with autism in Ohio’ . . . in an individual suit” and that
Plaintiffs’ claims for systemic IDEA Part C violations on behalf of other children therefore fail.16
On September 2, 2015, Plaintiffs filed an IDEA Part C administrative due process
complaint against Ohio Department of Health and Richland County Board of Developmental
Disabilities.17 A private lawyer hearing officer heard the complaint and denied Plaintiffs
compensatory IDEA relief. The hearing officer denied Plaintiff’s Part C claim because Plaintiff
failed to prove that they met Help Me Grow’s financial eligibility requirements.18 The hearing
officer also decided that she lacked “jurisdiction to determine whether [Help Me Grow]
‘systematically denied’ ABA services to WR and all other autistic children in the state of
Ohio.”19
13
No. 1:14-cv-2075, Doc. 1 at ¶ 1.
No. 1:14-cv-2075 Doc. 16.
15
W.R. v. Ohio Health Dept., No. 15-4032, 2016 WL 32112179, at * 3 (6th Cir. June 10, 2016).
16
Id. at *7.
17
Doc. 1.at ¶ 2.
18
Doc. 16-3.
19
Id. at 14.
14
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On July 26, 2016, this Court dismissed all non-IDEA Part C claims against Defendants
Ohio Department of Health and Grove.20 Specifically, the Court dismissed Plaintiffs’
Rehabilitation Act § 504, Americans with Disabilities Act Title II, procedural due process, equal
protection, and state law claims.21
Plaintiffs move for partial summary judgment on their IDEA Part C claims, arguing that
the administrative decision was erroneous and inconsistent with the Sixth Circuit’s opinion.22
Plaintiffs also move for reconsideration of this Court’s dismissal of their non-IDEA Part C
claims or, in the alternative, Rule 54(b) certification of final judgment.23 Finally, Plaintiffs move
to submit additional evidence to supplement the administrative record.24 The Court will address
each of the Plaintiffs’ motions in turn.
II. Motion for Partial Summary Judgment
Plaintiffs move for partial summary judgment on their IDEA Part C claims. Plaintiffs
argue that “the ODH hearing officer erred by refusing to hear and decide W.R.’s claim that he
was injured by ODH’s long-term statewide systemic wrongdoing.”25 Plaintiffs also argue that the
hearing officer’s decision is inconsistent with the Sixth Circuit’s decision in this matter. For the
following reasons, the Court denies Plaintiffs’ motion for partial summary judgment.
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’”26 The moving party must first demonstrate that there is an absence of a genuine dispute as
20
Doc. 23.
Id. at 4-5.
22
Doc. 16.
23
Doc. 29.
24
Doc. 37.
25
Doc. 32 at 3.
26
Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
21
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Gwin, J.
to a material fact entitling it to judgment.27 Once the moving party has done so, the non-moving
party must set forth specific facts in the record—not its allegations or denials in pleadings—
showing a triable issue.28 The existence of some doubt as to the material facts is insufficient to
defeat a motion for summary judgment.29 But the Court views the facts and all reasonable
inferences from those facts in favor of the non-moving party.30
Summary judgment is not warranted here. In a civil action brought under IDEA Part C,
the district court’s role is to review the administrative record. After completing its review, the
district court determines whether the record adequately supports the hearing officer’s decisions.
Plaintiffs argue that “[t]here are no genuine issues of material fact” and “[t]his is solely a matter
of law,”31 but fail to point to any administrative record evidence supporting these conclusory
statements. There is a genuine dispute of material fact here: does the administrative record
support the hearing examiner’s decision? Plaintiffs have failed to prove that they are entitled to
judgment as a matter of law.
Moreover, the ODH hearing officer’s decision is consistent with the Sixth Circuit’s
recent opinion on this matter. In the administrative decision, the ODH hearing officer stated that
she lacked “jurisdiction to determine whether [Help Me Grow] ‘systematically denied’ ABA
services to WR and all other autistic children in the state of Ohio.”32 Plaintiff argues that this
decision conflicts with the Sixth Circuit’s holding that the Plaintiffs’ “claims of systemic
violations on behalf of W.R. are subject to IDEA’s exhaustion requirement.”33
27
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
29
Id. at 586.
30
Killion, 761 F.3d at 580 (internal citation omitted).
31
Doc. 16 at 3.
32
Doc. 16-3 at 14.
33
W.R. v. Ohio Health Dept., 2016 WL 32112179, at * 7.
28
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Plaintiffs misread the Sixth Circuit opinion. According to the Sixth Circuit, Plaintiffs
cannot sue on behalf of “all infants and toddlers with autism in Ohio” unless they meet Rule 23’s
class action requirements.34 Because Plaintiffs do not allege a class, the Sixth Circuit held that
“Plaintiffs’ claims for systemic violations of Part C of the IDEA on behalf of other children
fail.”35 Thus, the ODH hearing officer’s refusal to hear Plaintiffs’ claims on behalf of “all other
autistic children in the state of Ohio” was appropriate. The hearing officer and the Sixth Circuit
agree that Plaintiffs’ claims only relate to one child, W.R. Plaintiffs are not entitled to summary
judgment on their IDEA Part C claims.
III. Motion for Reconsideration or Rule 54(b) Certification
Plaintiffs move for reconsideration of this Court’s dismissal of their non-IDEA Part C
claims or, in the alternative, Rule 54(b) certification of final judgment so that Plaintiffs can make
an immediate appeal.36 Plaintiffs argue that the Court’s dismissal order “mistakenly” and
“erroneously” holds that the Plaintiffs fail to allege “disability-motivated discrimination.”37
Alternatively, the Plaintiffs argue that there is no just reason for delaying the Plaintiffs’
immediate appeal of their non-IDEA claims to the Sixth Circuit.38
A. Reconsideration
Reconsideration is not warranted here.
Federal Rule of Civil Procedure 54(b) provides that an order or decision other than a final
judgment “may be revisited at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.”39 Generally, courts find justification for reconsidering
34
Id. at *6-7.
Id.
36
Doc. 29.
37
Id. at 1.
38
Id. at 2.
39
Fed. R. Civ. P. 54(b); see also Rodriguez v. Tennessee Laborers Health & Welfare Fund 89 F. Appx. 949, 959
(6th Cir. 2004) (recognizing that the Federal Rules of Civil Procedure do not expressly address motions for
35
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interlocutory orders when there is: “(1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent manifest injustice.”40 A
motion for reconsideration is not available, however, to relitigate already-decided issues, or to
present a “legal theory or argument [that] could, with due diligence, have been discovered and
offered during the initial consideration of the issue.”41 Likewise, motions for reconsideration “are
not substitutes for appeals.”42 Thus, motions to reconsider are “‘extraordinary in nature and,
because they run contrary to notions of finality and repose, should be discouraged.’”43
None of the justifications for reconsideration are present here. Plaintiffs have failed to
show any intervening change of controlling law, any newly available evidence, or the occurrence
of clear error or manifest injustice. The Plaintiffs’ claims all stem from the alleged denial of
state-funded applied behavior analysis therapy. The complaint is thus solely based on an alleged
IDEA violation, and the Court properly dismissed the Plaintiffs’ ADA, Rehabilitation Act § 504,
§ 1983, and state law claims.
In their motion, the Plaintiffs repeatedly assert that this Court was “mistaken” and
“erroneous” in dismissing the non-IDEA claims. But the Plaintiffs have not offered any new
facts, arguments, or compelling reasons for reconsidering the Court’s prior dismissal order. At its
core, the Plaintiffs’ claim continues to be an appeal from the denial of IDEA benefits. The
motion for reconsideration is denied.
reconsideration of interlocutory orders, but nevertheless finding that the district court’s power to reconsider such
orders is supported by both common law and Rule 54(b)).
40
Rodriguez, 89 F. App’x at 959 (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998))
41
McConocha v. Blue Cross & Blue Shield, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996).
42
Automated Sols. Corp. v. Paragon Data Sys., Inc., No. 1:05 CV 01519, 2011 WL 13076887, at *2 (N.D. Ohio Jan.
13, 2011).
43
McConocha v. Blue Cross & Blue Shield Mut. of Ohio, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996) (quoting In re
August, 1993 Regular Grand Jury, 854 F. Supp. 1403, 1406 (S.D. Ind. 1994)).
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B. Interlocutory Appeal
There are no exceptional circumstances justifying interlocutory appeal present here.
Litigants are generally not entitled to appellate review of court orders prior to a final
judgment on the merits.44 In “exceptional cases,” however, district courts may grant parties leave
to take interlocutory appeals.45 To appeal under 28 U.S.C. § 1292(b), a party must show: (1) the
issue concerns a controlling question of law; (2) substantial ground for difference of opinion on
that issue exist; and (3) immediate appeal would materially advance the ultimate termination of
the litigation.46 “The burden of showing exceptional circumstances justifying an interlocutory
appeal rests with the party seeking review.”47
The first factor weighs in favor of granting an interlocutory appeal. “A legal issue is
controlling if it could materially affect the outcome of the case.”48 “Thus, generally, ‘[a]n issue is
. . . controlling if its resolution on appeal could result in a reversal of a district court’s final
judgment.’”49 If the Sixth Circuit overturned this Court’s dismissal of Plaintiffs’ non-IDEA
claims, it could also reverse the Court’s final judgment. This factor does not weigh heavily in
favor of certifying interlocutory appeal, however. Resolution of an interlocutory appeal in
Plaintiffs’ favor would not resolve this case; rather, a decision on the actual merits of their nonIDEA claims would still be necessary.
The second factor weighs against granting appeal. “‘Substantial grounds for a difference
of opinion exist when (1) the issue is difficult and of first impression; (2) a difference of opinion
Gelboim v. Bank of Am. Corp., ––– U.S. ––––, –––– – ––––, 135 S.Ct. 897, 902–03 (2015); Coopers & Lybrand v.
Livesay, 437 U.S. 463, 474–75, (1978).
45
In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002) (citations omitted); see also 28 U.S.C. § 1292(b).
46
Negron v. United States, 553 F.3d 1013, 1015 (6th Cir. 2009); In re City of Memphis, 293 F.3d at 350.
47
Trimble v. Bobby, No. 5:10–cv–00149, 2011 WL 1982919, at *1 (N.D. Ohio May 20, 2011) (citing In re City of
Memphis, 293 F.3d at 350).
48
In re City of Memphis, 293 F.3d at 351.
49
Trimble, 2011 WL 1982919, at *1 (quoting Gaylord Enter. Co. v. Gilmore Enter. Group, 187 F. Supp. 2d 926,
956 (M.D. Tenn. 2001)).
44
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exists within the controlling circuit; or (3) the circuits are split on the issue.’”50 In their motion,
Plaintiffs fail to cite a single case suggesting that there is disagreement or ambiguity over the law
cited in the Court’s dismissal order. The legal issues here are not particularly difficult, nor is
there a clear split of authority. There is no substantial disagreement requiring immediate
resolution by the Sixth Circuit.
The third factor also strongly weighs against granting appeal. An immediate appeal
materially advances the termination of litigation where “appellate review could ‘appreciably
shorten the time, effort, and expense exhausted between the filing of a lawsuit and its
termination.’”51 Here, the resolution of the non-IDEA Part C claims on appeal would not
substantially alter the course of the district court proceedings.
Plaintiff’s Part C claims are not difficult. The Part C claims are decided on an
administrative record and are relatively simply. Plaintiffs themselves concede that “[u]ltimate
resolution of the IDEA Part C claim before this Court has no effect on the family’s non-IDEA
claims for unlawful discrimination and deprivation of constitutional rights.”52 If anything, the
Court finds that allowing this appeal will delay the ultimate progression of the litigation.
Because Plaintiffs fail to demonstrate the exceptional circumstances that would justify
interlocutory appeal, their motion is denied.
IV. Motion to Supplement
The Plaintiffs move to submit additional evidence, arguing that 20 U.S.C. § 1439(a)(1)
requires this Court to supplement the administrative record with testimony “corroborat[ing] the
50
Id. at *2 (quoting West Tenn. Chapter of Assoc. Builders and Contractors, Inc., 138 F. Supp. 2d 1015, 1019 (W.D.
Tenn. 2000).
51
Hurt v. Commerce Energy, Inc., 2015 WL 4629242, at *4 (N.D. Ohio Aug. 3, 2015) (quoting Berry v. Sch. Dist.
of City of Benton Harbor, 467 F.Supp. 721, 727 (W.D. Mich.1978)).
52
Doc. 29 at 8.
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systemic nature” of ODH’s alleged deprivation of services for children with autism.53
Specifically, the Plaintiffs seek to depose twelve witnesses and admit six pieces of documentary
evidence.54
When reviewing an administrative IDEA decision, a district 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.”55 The Sixth Circuit takes “an expansive view of the scope of
additional evidence that may supplement the administrative record,” rejecting the position that
“additional evidence is admissible only in limited circumstances, such as to supplement or fill in
gaps in the evidence previously introduced.”56
Still, the admission of “‘additional’ evidence must be left to the discretion of the trial
court which must be careful not to allow such evidence to change the character [of] the hearing
from one of review to a trial de novo.”57 District courts should consider “‘the important concerns
of not allowing a party to undercut the statutory role of administrative expertise, the unfairness
involved in one party’s reserving its best evidence for trial, the reason the witness did not testify
at the administrative hearing, and the conservation of judicial resources.’”58
Much of the additional evidence sought by Plaintiffs is irrelevant. This Court’s role is to
determine whether the hearing officer was correct in finding that there was no IDEA violation in
the delivery of early intervention services to W.R. The Plaintiffs, however, seek to admit
evidence that supports Plaintiffs’ claim of “systemic deprivation” on behalf of all children with
53
Doc. 37 at 3.
Id. at 2-10.
55
20 U.S.C. § 1415(i)(2).
56
Adam Wayne D. ex rel. David D. v. Beechwood Indep. Sch. Dist., 482 F. App’x 52, 58 (6th Cir. 2012).
57
Metro. Gov’t of Nashville & Davidson County, Tenn. v. Cook, 915 F.2d 232, 234-35 (6th Cir. 1990) (quoting
Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 790-91 (1st Cir. 1984)).
58
Id.
54
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autism.59 But the Sixth Circuit already rejected this claim because Plaintiffs’ suit is not a class
action “on behalf of all children with autism.”60 Plaintiffs’ suit only concerns the wrongful
deprivation of IDEA services to Plaintiff W.R.
The other evidence sought by Plaintiffs is redundant. For example, Plaintiffs seek
additional testimony from witnesses who already spoke at the administrative hearing.61
Admitting the additional evidence here would unnecessarily bloat this matter’s record, which
already exceeds 2,000 pages. Accordingly, the Court denies Plaintiffs’ motion to supplement the
record.
V. Conclusion
For the foregoing reasons, the Court DENIES Plaintiffs’ motion for partial summary
judgment, DENIES Plaintiffs’ motion for reconsideration and declines to certify its previous
Order for immediate appeal under 28 U.S.C. § 1292(b), and DENIES Plaintiffs’ motion to
supplement the record.
IT IS SO ORDERED.
Dated: October 7, 2016
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
For example, Plaintiffs seek to admit the testimony of Holly Young about the “extent of ODH’s long-term
systemic deprivation of proper IDEA Part C services for children with autism.” Doc. 37 at 3. Likewise, Plaintiffs
seek to admit expert witness testimony “to demonstrate the scientific basis that infants and toddlers with autism
enrolled in IDEA Part C programs need ABA therapy.” Id. at 4.
60
W.R. v. Ohio Health Dept., 2016 WL 32112179, at * 7. Plaintiffs’ reply brief misses the mark when it states “[t]he
Sixth Circuit already ruled that W.R. had the right to demonstrate that Ohio’s Help Me Grow program systemically
deprived all children, including W.R., of their IDEA Part C rights.” Doc. 42 at 5.
61
Doc. 37 at 4-5. Plaintiffs also seek to add their financial eligibility worksheet to the record, id. at 8, but there is
already testimony and evidence regarding the family’s financial eligibility.
59
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