C. v. Lewisville Independent School District

Filing 34

MEMORANDUM OPINION AND ORDER re 24 MOTION for Judgment on the Administrative Record filed by Lewisville Independent School District; 25 MOTION for Judgment on the Administrative Record filed by Lauren C. ORDERED that Defendant Lewisville Independent School District's Motion for Judgment on the Administrative Record (Dkt. #24) is hereby GRANTED. Plaintiff's Motion for Judgment on the Administrative Record (Dkt. #25) is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 6/29/2017. (kls, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LAUREN C., BY AND THROUGH HER
NEXT FRIEND, TRACEY K.
v.
LEWISVILLE INDEPENDENT SCHOOL
DISTRICT

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Civil Action No. 4:15-CV-00544
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Lewisville Independent School District’s Motion
for Judgment on the Administrative Record (Dkt. #24) and Plaintiff’s Motion for Judgment on the
Administrative Record (Dkt. #25). Having considered the pleadings and the administrative record,
the Court finds that Defendant Lewisville Independent School District’s Motion for Judgment on
the Administrative Record (Dkt. #24) is hereby granted. Plaintiff’s Motion for Judgment on the
Administrative Record (Dkt. #25) is hereby denied.
BACKGROUND
Plaintiff Lauren C. is a student with disabilities who lives with her mother, Tracey K., in
Lewisville, Texas (Dkt. #25 at p. 1). At the time of the administrative due process hearing below,
Plaintiff was twenty-one years old and attended school in the Lewisville Independent School
District (“LISD”) in Lewisville, Texas (Dkt. #25 at p. 1). LISD is the resident school district for
Plaintiff, and it is responsible for providing her with a Free Appropriate Public Education under
the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the “IDEA”).
Plaintiff first attended school in the LISD in 1998. Since enrolling in the LISD, private
practitioners and the LISD conducted many evaluations of Plaintiff (AR 1176-1179). Some of
these evaluations diagnosed Plaintiff with autism, and others did not (AR 1176-1179). Plaintiff’s

physician, Dr. Denise Wooten (“Dr. Wooten”) diagnosed Plaintiff with Mental Retardation and
autism in 2002 (AR 1176-1179; AR 1323). In 2002, the LISD conducted an evaluation of Plaintiff
as required by the IDEA for the provision of special education and related services to a child with
a disability (the “Full and Individual Evaluation”) (AR 1178). The Full and Individual Evaluation
included a psychological evaluation that found that Plaintiff’s Childhood Autism Rating Scale “fell
within the non-autistic range” (AR 1178). The evaluation concluded that Plaintiff did not meet
the diagnostic criteria for Autistic Disorder as the examiner noted Plaintiff “is highly social and
very aware of others around her. She exhibits verbal and nonverbal communication to
spontaneously seek joint attention.” (AR 1178).
On November 8, 2005, when Plaintiff was eleven years old, the LISD conducted another
Full and Individual Evaluation of Plaintiff (AR 1141). A licensed psychologist, a licensed speechlanguage pathologist, an occupational therapist, and a student evaluation specialist evaluated
Plaintiff for autism (AR 1141, 1148-49). The multidisciplinary autism team found that Plaintiff
did not demonstrate characteristics of autism and found that Plaintiff qualified for special
education services as a student with an intellectual disability and speech impairment (AR 1150).
On February 26, 2010, the LISD conducted another Full Individual Evaluation of Plaintiff that
again found that Plaintiff met the criteria of a student with an intellectual disability and speech
impairment (AR 1179).
On February 25, 2013, the LISD conducted another Full Individual Evaluation of Plaintiff
(AR 1174–1221). The evaluation team determined that Plaintiff “does not demonstrate qualitative
deficits in social communication or reciprocity beyond what are accounted for by her intellectual
disability; therefore, she does not meet the diagnostic criteria for the disability condition of
Autism” (AR 1209).

The evaluation recommended speech therapy, occupational therapy,

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strategies to address behavioral difficulties, social skill instruction, and strategies to assist with
attention, following directives, and completing tasks (AR 1211–1213).
On March 26, 2013, Plaintiff’s Admission, Review, and Dismissal committee (the “ARD
Committee”) met to review Plaintiffs progress, eligibility, and placement (AR 1253–1255). The
ARD Committee reviewed a private psychological evaluation by Dr. Denise Wooten that
diagnosed Plaintiff as a student with autism and mild to moderate Mental Retardation (AR 1253).
The ARD Committee found that Plaintiff did not meet eligibility as a student with autism
(AR 1253). Plaintiff’s parents expressed disagreement with regard to the autism eligibility and
the meeting ended in non-consensus (AR 1254). Plaintiff’s parents “expressed agreement with the
proposed [Individual Education Program] goals, accommodations, and schedule of services and
had no concerns or disagreement with the program as proposed.” (AR 1254). Plaintiff’s parents
“were not concerned with the Autism supplement and their goal was not to obtain any additional
services from the school system, but wanted the Autism eligibility added in order to ensure optimal
services from [the Department of Assistive and Rehabilitative Services], [Supplemental Security
Income], and other agencies in the future.” (AR 1254).
On April 5, 2013, the ARD Committee reconvened to address Plaintiff’s parents’ concerns
over the request for autism eligibility (AR 1255). Dr. Key, a member of the ARD Committee,
stated that during the recess she faxed Plaintiff’s evaluation to Dr. Wooten (AR 1255). Dr. Key
called Dr. Wooten’s office, but was unable to speak with Dr. Wooten (AR 1255). Dr. Key also
stated she spoke with Plaintiff’s pediatrician, Dr. Naylor, who diagnosed Plaintiff with Mental
Retardation/Developmental Delay, Attention Deficit/Hyperactivity Disorder and epilepsy
(AR 1278-79). However, Dr. Naylor did not conduct an evaluation for autism (AR 1255). The
ARD Committee concluded that it stood by the evaluation that Plaintiff did not qualify as a student

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with autism (AR 1255). Plaintiff’s parents disagreed with the ARD Committee’s conclusion and
requested an Independent Educational Evaluation for the diagnosis of autism (AR 1280).
On August 17, 2013, Dr. Kim Johnson, Psy.D. (“Dr. Johnson”) conducted Plaintiff’s
Independent Educational Evaluation (AR 1323–1328). Dr. Johnson found that Plaintiff manifested
behaviors “characteristic of individuals with Autism with regard to stereotyped behavior,
communication, and social interaction.”

(AR 1326; 1327).

Plaintiff’s “Autism Quotient”

demonstrated an “above average degree of probability of autism” (AR 1326). Dr. Johnson noted
that Plaintiff’s “progress and development resulted in some ‘partially remitted’ symptoms or an
atypical presentation of Autism.” Dr. Johnson noted that although Plaintiff’s autism symptoms
may have “partially remitted,” Plaintiff’s clinical diagnoses were both Moderate Mental
Retardation and autism (AR 1327).
Dr. Johnson further stated that Plaintiff displayed “some Autistic behaviors within the
school setting that would not necessarily manifest if she only had the diagnosis of [Mental
Retardation], Moderate. [Plaintiff] manifests some partially–remitted autistic behaviors . . . but
also continues to manifest some classic autistic behaviors . . .” (AR 1328). Dr. Johnson noted
Plaintiff’s “exceptional recall of facts and information and completing puzzles that is not typically
seen in an individual with Moderate Mental Retardation due to the more evenly cognitive deficit
pattern that is characteristic of the disorder.” (AR 1328). Dr. Johnson concluded as follows:
After review of the recent [Individual Education Program] in February 2013, the
LISD evaluation team completed a comprehensive evaluation with very appropriate
recommendations to address Lauren’s intellectual, social, behavioral, speech–
related, and occupational therapy–related delays—these cannot currently be
improved upon and space will not be wasted in this report merely to repeat them
here. Likewise, [Plaintiff’s mother] made no complaint about the type and quality
of services provided by the District; rather, her concern was over the diagnostic
label.”

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(AR 1328). Dr. Johnson reiterated that Plaintiff was a student “with an Intellectual Disability and
Autism.” (AR 1328).
On September 12, 2013, the ARD Committee met to consider Dr. Johnson’s Independent
Educational Evaluation (AR 1336–37). The ARD Committee stated that Plaintiff’s special
education teacher noted Plaintiff “does interact and enjoys social interaction with her peers.”
(AR 1337). The ARD Committee also noted that the LISD’s “psychologist reviewed the history
of diagnoses for [Plaintiff] including the reports from Dr. Wooten. The district has completed 3
comprehensive evaluations since her enrollment in LISD and not found her to be [Autistic].”
(AR 1337). The ARD Committee did not accept the autism diagnoses made by Dr. Johnson and
the meeting ended in non-consensus (AR 1337).
On March 26, 2014, the ARD Committee met for Plaintiff’s annual meeting (AR 1354).
Plaintiff requested an Independent Educational Evaluation in the areas of occupational therapy,
assistive technology, speech, adaptive physical education, and functional behavior assessment
(AR 1461–62). The ARD Committee reconvened on May 21, 2014, due to scheduling issues
(AR 1395). The ARD Committee developed an Individual Education Program to include the
provision of occupational therapy, adaptive physical education, speech, transportation, parent
training, and assistive technology (AR 1392). The ARD Committee determined that Plaintiff
“successfully met academic requirements for the minimum graduation plan” and stated that
Plaintiff required continued support in the areas of independent living, vocational training,
employment options, and money management (AR 1390). The ARD Committee recommended
continuing Plaintiff’s education in a Focus on the Future program for the 2014–2015 academic
school year (AR 1397).

Plaintiff’s attorney stated he would disagree with the ARD

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recommendation so that he could confer with his client and speak with the LISD’s attorney
(AR 1397).
On August 21, 2014, Plaintiff requested a due process hearing under the IDEA (Dkt. #10
at ¶ 5). In her request, Plaintiff complained of Defendant’s failure to comply with its obligations
under the IDEA to identify and address all of her multiple disabilities and to create an
Individualized Education Program (“IEP”) which took each of those disabilities into account
(Dkt. #10 at ¶ 5). The parties participated in hearing on April 22 and 23, 2015. Following the
completion of the due process hearing, on June 22, 2015, the Special Education Hearing Officer
(“SEHO”) issued a decision finding:
1. The LISD “failed to comply with its Child Find obligations . . . in failing to
diagnose [Plaintiff] as autistic when assessing her disabilities.” (AR 31).
2. The LISD “failed to identify that Plaintiff was eligible for special education
services as a student with the disability of autism.” (AR 31).
3. Plaintiff is eligible for IDEA services with her specific learning disabilities
including autism (AR 31).
4. The LISD provided a Free Appropriate Public Education and “there were no
substantive or procedural violations.” (AR 31).
5. The LISD met its burden of proving Plaintiff is not entitled to an Independent
Educational Evaluation at the LISD’s expense “because an appropriate [Full and
Individual Evaluation] was conducted” by the LISD. (AR 31).
The ARD Committee convened on September 4, 2015, and added autism eligibility for
Plaintiff’s special education (Dkt. #23). No additional changes were made to Plaintiff’s Individual
Education Program (Dkt. #23).

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On November 14, 2016, the LISD filed a Motion for Judgment on the Administrative
Record (Dkt. #24). The LISD contends that the SEHO erred in determining that the LISD failed
to comply with its Child Find obligations (Dkt. #24 at p. 1). The LISD also argues that the SEHO
erred in determining that it failed to identify Plaintiff as eligible for special education services as
a student with autism and erred in ordering the LISD to add autism as an eligibility for Plaintiff
when Plaintiff did not seek such relief in the underlying due process hearing (Dkt. #24 at p. 2).
The LISD also argues the SEHO improperly relied on evidence not contained in the record
(Dkt. #24 pp. 1–2).
On December 26, 2016, Plaintiff filed a response (Dkt. #29). Plaintiff argues the SEHO
correctly determined that the LISD failed to comply with the Child Find Provisions of the IDEA
(Dkt. #29 at p. 4). However, Plaintiff argues that the SEHO erred in determining that the LISD
provided Plaintiff a Free and Appropriate Public Education (Dk. #29 at p. 8). On January 16,
2016, the LISD filed a reply (Dkt. #30). On January 30, 2016, Plaintiff filed a sur-reply (Dkt.
#33).
On November 14, 2016, Plaintiff filed a Motion for Judgment on the Administrative
Record (Dkt. #25). Plaintiff seeks attorneys’ fees as the prevailing party in the administrative due
process hearing (Dkt. #25 at p. 1). On December 26, 2016, the LISD filed a response (Dkt. #28).
On January 16, 2016, Plaintiff filed a reply (Dkt. #31). On January 30, 2016, the LISD filed a surreply (Dkt. #32).
LEGAL STANDARD
“Under the IDEA, a federal district court’s review of a state hearing officer’s decision is
‘virtually de novo.’” Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir. 2003). “The
district court must receive the state administrative record and must receive additional evidence at

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the request of either party.” Id. The court must reach an independent decision based on a
preponderance of the evidence. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir.
2000); Michael F., 118 F.3d at 252. However, this requirement “is by no means an invitation to
the courts to substitute their own notions of sound educational policy for those of the school
authorities which they review.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester
Cty v. Rowley, 458 U.S. 176, 206 (1982). Instead, “due weight” is to be given to the SEHO’s
decision. Id. Thus, “courts must be careful to avoid imposing their view of preferable educational
methods upon the States. The primary responsibility for formulating the education to be accorded
a handicapped child, and for choosing the educational method most suitable to the child’s needs,
was left by the Act to the state and local educational agencies in cooperation with the parents or
guardians of the child.” Id. at 207. The party seeking relief under the IDEA bears the burden of
proof. Schaffer v. Weast, 546 U.S. 49, 62 (2005).
ANALYSIS
Child Find
The Court finds the SEHO erred in concluding that that LISD “failed to comply with its
Child Find obligations . . . in failing to diagnose [Plaintiff] as autistic when assessing her
disabilities.” (AR 31).
Texas has an ongoing obligation to “identif[y], locat[e], and evaluat[e]” “all children with
disabilities residing in the State” to ensure that they receive needed special education services. 20
U.S.C. §§ 1412(a)(3)(A), 1412(a)(10)(A)(ii). “The IDEA’s Child Find obligation imposes on each
local educational agency an affirmative duty to have policies and procedures in place to locate and
timely evaluate children with suspected disabilities in its jurisdiction, including “[c]hildren who
are suspected of being a child with a disability . . . and in need of special education, even though

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they are advancing from grade to grade[.]” El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp.
2d 918, 949–50 (W.D. Tex. 2008) (quoting 34 C.F.R. §§ 300.111(a), (c)(1)). “The Child Find
duty is triggered when the local educational agency has reason to suspect a disability coupled with
reason to suspect that special education services may be needed to address that disability.” Id. at
950 (citing Dep’t of Educ., State of Hawaii v. Cari Rae S., 158 F.Supp.2d 1190, 1194
(D.Haw.2001); C.G. v. Five Town Cmty. Sch. Dist., No. 05–237–P–S, 2007 WL 494994, at *25
(D.Me. Feb.12, 2007); Kanongata'a v. Washington Interscholastic Activities Ass’n, No. C05–
1956C, 2006 WL 1727891, at *20 (W.D.Wash. Jun.20, 2006)). A local educational agency “must
evaluate the student within a reasonable time after school officials have notice of behavior likely
to indicate a disability.” Id. (quoting Strock v. Indep. Sch. Dist. No. 281, No. 06–CV–3314, 2008
WL 782346, at *7 (D.Minn. Mar. 21, 2008) (citations omitted)).
A Court must “undertake a two-part inquiry to determine whether a local educational
agency has complied with its Child Find responsibilities.” Id. First, the Court “must examine
whether the local educational agency had reason to suspect that a student had a disability, and
whether that agency had reason to suspect that special education services might be needed to
address that disability.” Id. “Next, the Court must determine if the local educational agency
evaluated the student within a reasonable time after having notice of the behavior likely to indicate
a disability.” Id.
Here, the LISD knew Plaintiff had a disability when Plaintiff transferred into the school
district in 1998. Plaintiff’s physician, Dr. Wooten diagnosed Plaintiff with Mental Retardation
and autism in 2002 (AR 1176-1179; AR 1323). In 2002, the LISD conducted a Full and Individual
Evaluation, including a psychological evaluation that found that Plaintiff’s Childhood Autism
Rating Scale “fell within the non-autistic range” (AR 1178). The evaluation concluded that

9

Plaintiff did not meet the diagnostic criteria for Autistic Disorder. On November 8, 2005, the
LISD conducted another Full and Individual Evaluation of Plaintiff, which included a
multidisciplinary autism team that found that Plaintiff did not demonstrate characteristics of autism
(AR 1150). On February 26, 2010, the LISD conducted another Full Individual Evaluation of
Plaintiff that again found that Plaintiff met the criteria of a student with an intellectual disability
and speech impairment (AR 1179). On February 25, 2013, the LISD again conducted a Full
Individual Evaluation of Plaintiff that determined that Plaintiff “does not demonstrate qualitative
deficits in social communication or reciprocity beyond what are accounted for by her intellectual
disability; therefore, she does not meet the diagnostic criteria for the disability condition of
Autism” (AR 1209). On September 12, 2013, the ARD Committee met to consider Dr. Johnson’s
Independent Educational Evaluation (AR 1336–37) and again determined Plaintiff did not qualify
as a student with autism.
The Court finds the LISD satisfied the two-part inquiry required to determine whether a
local educational agency complied with its Child Find responsibilities. Richard R., 567 F. Supp.
at 949–50. First, the Court finds the LISD had reason to suspect that a Plaintiff had a disability,
and had reason to suspect that special education services might be needed to address that disability.
Id. Next, the Court finds the LISD evaluated Plaintiff within a reasonable time after having notice
of the behavior likely to indicate a disability. Id. The LISD knew Plaintiff had a disability when
Plaintiff transferred into the district and knew in 2002 that Plaintiff’s physician diagnosed Plaintiff
with autism. The LISD evaluated Plaintiff on multiple occasions for autism after having notice of
the behavior likely to indicate a disability, including autism. The LISD complied with its Child
Find obligations.

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Identifying Plaintiff as a Student with Autism
As part of its determination that the LISD violated the Child Find provisions of the IDEA,
the SEHO held that the District failed to identify Plaintiff as an individual eligible for services
related to autism (AR 21). The SEHO erred in this determination.
As discussed above, the Child Find provisions of the IDEA require a Court to examine
whether the local educational agency had reason to suspect that a student had a disability and
whether the local educational agency evaluated the student within a reasonable time. The LISD
met these obligations. That the LISD did not diagnose Plaintiff with autism disorder after multiple
evaluations testing for autism does not mean that LISD failed to comply with its Child Find
procedural obligations. On the contrary, the multiple evaluations demonstrate that the LISD
complied with these obligations. See C.P. v. Krum Indep. Sch. Dist., No. 4:13CV63, 2014 WL
4651534, at *12 (E.D. Tex. Sept. 17, 2014) (holding that a school district’s full evaluation of
plaintiff, including an evaluation for autism spectrum disorder, shortly after suspecting plaintiff
had a disability was “sufficient to satisfy [the school district’s] Child Find obligations.”); Dallas
Indep. Sch. Dist. v. Woody, 178 F. Supp. 3d 443, 468 (N.D. Tex. 2016) (holding that a school
district did not violate its Child Find obligations because it evaluated Plaintiff within a reasonable
time).
Further, the IDEA specifies “[n]othing in this chapter requires that children be classified
by their disability so long as each child who has a disability listed in section 1401 of this title and
who, by reason of that disability, needs special education and related services is regarded as a child
with a disability under this subchapter.” 20 U.S.C. § 1412(a)(3)(B). “Various courts throughout
the nation have also held that school districts are not required to classify a student into a particular
category, or affix that student with a particular label. Instead, the IDEA only requires that the

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school district provide an appropriate education.” G.I. v. Lewisville Indep. Sch. Dist., No.
4:12CV385, 2013 WL 4523581, at *10 (E.D. Tex. Aug. 23, 2013). See Fort Osage R–1 Sch. Dist.
v. Sims, 641 F.3d 996, 1004 (8th Cir.2011) (“Given the IDEA’S strong emphasis on identifying a
disabled child’s specific needs and addressing them . . . the particular disability diagnosis affixed
to a child in an [Individual Education Program] will, in many cases, be substantively immaterial
because the [Individual Education Program] will be tailored to the child’s specific needs.”);
Heather S. v. State of Wisconsin, 125 F.3d 1045, 1055 (7th Cir.1997) (“[t]he IDEA concerns itself
not with labels, but with whether a student is receiving a free and appropriate education.”); D.B.
v. Houston Indep. Sch. Dist., No. Civ. A. H–06–354, 2007 WL 2947443, at *10 (S.D.Tex. Sept.
29, 2007) (“IDEA does not require that children be classified by their disability so long as each
eligible child is regarded as a child with a disability under the Act.”).
Additionally, the “fact that plaintiff believes he was mislabeled does not automatically
mean that he was denied a [Free Appropriate Public Education]”. R.C. ex rel. S.K., D.H. v. Keller
Indep. Sch. Dist., 958 F. Supp. 2d 718, 732 (N.D. Tex. 2013). A court must look “not to whether
plaintiff was properly labeled as . . . autistic, but whether the [Individual Education Program] itself
was sufficiently individualized to meet plaintiff's unique needs and provide him with educational
benefits.” Id.
The SEHO erred in holding that as a matter of law, the LISD violated its Child Find
obligations because it failed to diagnose Plaintiff as autistic (AR 31). A specific classification or
label is not required as part of the Child Find obligations or as part of the IDEA itself. 20 U.S.C.
§ 1412(a)(3)(B). The relevant inquiry is whether Plaintiff received a Free Appropriate Public
Education. The Court will thus address whether the LISD provided Plaintiff a Free Appropriate
Public Education.

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Free Appropriate Public Education
The SEHO found that the LISD provided a Free Appropriate Public Education and there
were no substantive or procedural violations (AR 31). Plaintiff argues that because the SEHO
found that the LISD failed to diagnose Plaintiff’s autism, the SEHO erred in determining that the
LISD had provided Plaintiff with a Free Appropriate Public Education (Dkt. #29 at p. 6). The
Court finds that the LISD provided Plaintiff with a Free Appropriate Public Education.
States receiving federal assistance under the IDEA must: (1) provide a “free appropriate
public education” to each disabled child within its boundaries, and (2) ensure that such education
is in the “least restrictive environment” (“LRE”) possible. Cypress–Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 247 (5th Cir. 1997); 20 U.S.C. § 1412(a)(1), (5). The Free Appropriate
Public Education provided must be developed to each disabled child's needs through an “individual
education program.” Michael F., 118 F.3d at 247. In Texas, the committee responsible for
preparing an Individual Education Program is the ARD Committee. Id. at 247.
“The primary vehicle through which a [Free Appropriate Public Education] is provided is
a student’s [Individual Education Program], and the determination of whether a student received
a [Free Appropriate Public Education] is typically made by evaluating the student’s [Individual
Education Program] and its implementation.” R.C. ex rel. S.K., D.H. v. Keller Indep. Sch. Dist.,
958 F. Supp. 2d 718, 730 (N.D. Tex. 2013). “When a parent challenges the appropriateness of an
[Individual Education Program], a reviewing court’s inquiry is two-fold.” Houston Indep. Sch.
Dist. v. V.P., 582 F.3d 576, 583 (5th Cir. 2009). “The court must first ask whether the state has
complied with the procedural requirements of the IDEA, and then determine whether the
[Individual Education Program] developed through such procedures was ‘reasonably calculated to
enable the child to receive educational benefits.’” Id. at 583–84 (citation omitted).

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The Fifth Circuit has developed four factors in evaluating whether an Individual Education
Program is reasonably calculated to enable the student to receive educational benefits: (1) whether
the program is individualized on the basis of the student’s assessment and performance; (2)
whether the program is administered in the least restrictive environment; (3) whether the services
are provided in a coordinated and collaborative manner by the key “stakeholders;” and (4) whether
positive academic and non-academic benefits are demonstrated. Michael F., 118 F.3d at 253. The
Fifth Circuit has treated the factors “as indicators of when an [Individual Education Program]
meets the requirements of IDEA, but [has] not held that district courts are required to consider
them or to weigh them in any particular way.” Richardson Indep. Sch. Dist. v. Michael Z., 580
F.3d 286, 293 (5th Cir.2009).
Whether the Individual Education Programs were Individualized
Plaintiff argues that the “LISD’s failure to diagnose Plaintiff with autism and address her
needs as an autistic student constitutes a failure to provide a program individualized on the basis
of her assessment and performance.” (Dkt. # 29 at p. 9). Plaintiff argues the LISD failed to utilize
the autism supplement and Applied Behavioral Analysis (“ABA”) therapy (Dkt. #29 at p. 9). The
LISD responds that it considered the strategies contained in the autism supplement, including ABA
therapy (Dkt. #30).
During the due process hearing, Jean Stephens, an assessment specialist for the LISD,
testified that the LISD considered the autism supplement to “address all of [Plaintiff’s] social skills
. . . her classroom management and her [Individual Education Programs].” (AR 1789; AR 1800–
1801).

Dr. Key likewise testified that the LISD implemented “all aspects of the autism

supplement” in evaluating Plaintiff and addressed the autism supplement in ARD documentation
for all individuals in special education, including Plaintiff (AR 1860–1861). Dr. Key further

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testified that the LISD “absolutely” used formal ABA therapy with Plaintiff (AR 1861). Dr. Key
stated that Plaintiff’s teachers, Steve Johnson and Cindy Lisenby implemented goals for Plaintiff
based on ABA principles (AR 1861). Karen Shearer (“Shearer”), a Board Certified Behavior
Analyst for the LISD likewise testified that she observed Plaintiff in the classroom setting since
Plaintiff was eight or nine years old (AR 1994). Shearer described the LISD’s use of ABA
methodology with Plaintiff including, “prompting,” “modeling,” and visual supports” which were
“evidence based.” (AR 1994). Shearer stated that she reviewed Plaintiff’s assessments and
Individual Education Programs and felt that the goals were appropriate to address Plaintiff’s needs
(AR 1995).
Further, during the March 26, 2013, Plaintiff’s parents “expressed agreement with the
proposed [Individual Education Program] goals, accommodations, and schedule of services and
had no concerns or disagreement with the program as proposed.” (AR 1254). Plaintiff’s parents
“were not concerned with the Autism supplement and their goal was not to obtain any additional
services from the school system, but wanted the Autism eligibility added in order to ensure optimal
services from [the Department of Assistive and Rehabilitative Services], [Supplemental Security
Income], and other agencies in the future.” (AR 1254).
On August 17, 2013, Dr. Johnson conducted Plaintiff’s Independent Educational
Evaluation and found that the LISD should have diagnosed Plaintiff with both Moderate Mental
Retardation and autism (AR 1327). However, Dr. Johnson noted:
After review of the recent [Individual Education Program] in February 2013, the
LISD evaluation team completed a comprehensive evaluation with very appropriate
recommendations to address Lauren’s intellectual, social, behavioral, speech–
related, and occupational therapy–related delays—these cannot currently be
improved upon and space will not be wasted in this report merely to repeat them
here. Likewise, [Plaintiff’s mother] made no complaint about the type and quality
of services provided by the District; rather, her concern was over the diagnostic
label.”
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(AR 1328).
Plaintiff argues that the “LISD does not use rigorous ABA therapy at all, but rather takes a
loose approach to data collection and analysis completely contrary to that dictated by the principles
of ABA” (Dkt. #29). The educational program provided under the IDEA “need not be the 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.” Michael F., 118 F.3d at 253. Here, the
administrative record demonstrates that Plaintiff had several evaluations that assessed Plaintiff for
autism. The administrative record further demonstrates that the LISD developed a program
specifically individualized to address Plaintiff’s needs. The Individual Education Programs
incorporated the autism supplement and ABA therapy methodologies even though the LISD did
not diagnose Plaintiff with autism. Plaintiff’s Full and Individual Evaluation likewise indicated
that although the LISD had not diagnosed Plaintiff with autism, the LISD appropriately addressed
Plaintiff’s intellectual, social, behavioral, speech–related, and occupational therapy delays and that
the LISD could not improve upon these areas. Plaintiff’s parents likewise indicated “their goal
was not to obtain any additional services from the school system.”
Plaintiff’s evaluations and her Individual Education Programs focused on all aspects of her
education and incorporated the autism supplement and ABA therapy, regardless of the disability
label. “The fact that the parents disagreed with the conclusions of the ARD [Committee], some of
the content of the [Individual Education Programs], or the eligibility category does not mean that
the [Individual Education Program] was not appropriately individualized for plaintiff.” R.C. ex
rel. S.K., D.H., 958 F. Supp. 2d at 733. Plaintiff has not met her burden of demonstrating the
Individual Education Program was not individualized based on her assessment and performance.
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Least Restrictive Environment
Plaintiff argues “because LISD has failed to develop an [Individual Education Program]
that addresses Plaintiff’s needs as a student with autism, it is not possible to determine whether
she is in the least restrictive environment appropriate to her needs.” (Dkt. #29 at p. 13). The
SEHO noted during the due process hearing that “that there does not appear to be any disagreement
in that the program is administered in the least restrictive environment, the special education
classroom, and that Student participates with non-disabled peers in appropriate environments.”
(AR 27). Plaintiff has not met her burden of demonstrating the LISD failed to provide services in
the least restrictive environment appropriate to her needs.
Provision of Services in a Collaborative Manner by Key Stakeholders
The IDEA provides that the Individual Education Program team consists of the parents, at
least one regular education teacher of the student, at least one special education teacher of the
student, a representative of the school district who is qualified to provide specially designed
instruction and is sufficiently knowledgeable about the general education curriculum and
availability of resources, and an individual who can interpret the instructional implications of
evaluation results. 20 U.S.C. § 1414(d)(1)(B). In addition, at the parents’ or agency’s discretion,
the team may include other individuals who have knowledge or special expertise regarding the
student. Id
While the IDEA gives the parents the right to provide meaningful input, this right “is
simply not the right to dictate the outcome and obviously cannot be measured by such.” White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 380 (5th Cir.2003). “If a student’s parents want him to
receive special education under IDEA, they must allow the school itself to reevaluate the student
and they cannot force the school to rely solely on an independent evaluation.” Andress v. Cleveland

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Indep. Sch. Dist., 64 F.3d 176, 178 (5th Cir.1995). A parent who disagrees with the school’s
evaluation has the right to have an independent evaluation conducted, and the evaluation must be
considered by the school district. Id.; 34 34 C.F.R. § 300.503.
Here, the administrative record shows that the ARD Committee met on multiple occasions,
included all required and relevant individuals, and considered all reports from Plaintiff’s
physicians. Plaintiff argues that the LISD “refused to give Plaintiff’s parents any substantive
grounds for disagreeing with the conclusions reached by their [Independent Educational
Evaluation] provider, Dr. Kim Johnson, and another evaluator, Dr. Denise Wooten, stating instead
that they simply placed their trust in LISD’s own evaluation.” (Dkt. #29 at p. 13). However, the
administrative record demonstrates that the LISD attempted to contact Dr. Wooten and never
received a return call from her to discuss the autism diagnosis (AR 1255). Further, Dr. Johnson’s
evaluation noted that Plaintiff’s “progress and development resulted in some ‘partially remitted’
symptoms or an atypical presentation of Autism.” (AR 1327). Dr. Johnson also noted that overall
the LISD conducted a “comprehensive evaluation with very appropriate recommendations” to
address Plaintiff’s needs (AR 1328). The LISD stated that it disagreed with Dr. Johnson’s
diagnosis based on three comprehensive, multidisciplinary evaluations conducted since Plaintiff’s
enrollment in LISD. (AR 1337).
Plaintiff has not met her burden of demonstrating the LISD did not offer services in a
coordinated and collaborative fashion. That Plaintiff’s parents disagree with the conclusions of
the ARD Committee does not mean that the services were not offered in a coordinated and
collaborative fashion.

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Positive Academic and Non-Academic Benefits
Plaintiff contends that the LISD did not provide Plaintiff with an appropriately meaningful
benefit with respect to life skills (Dkt. #29 at p. 14). Plaintiff states that “Plaintiff has not mastered
her [Individual Education Program] goal regarding wiping after a bowel movement.” (Dkt. #29 at
p. 14). Plaintiff notes:
the LISD occupational therapist indicated that Plaintiff continued to need four or
more prompts to wipe all the way . . . Consequently, the ARD Committee simply
put in another goal regarding wiping . . . However, no evidence points to any change
in approach designed to allow Plaintiff to effectuate mastery.
(Dkt. #29 at p. 14). Plaintiff also states, “Plaintiff’s current teacher acknowledges that Plaintiff is
incompetent now with respect to the same life skills regarding which she was incompetent in
January of 2014.” (Dkt. #29 at p. 14). Plaintiff argues that with the help of her private provider,
Teach Me, Plaintiff has “finally become aware of the need to wipe . . . and to address other aspects
of personal hygiene.” (Dkt. #29 at p. 15). However, Plaintiff notes, “she still has not mastered
these skills.” (Dkt. #29 at p. 15).
The administrative record demonstrates and Plaintiff acknowledges that the LISD
implemented progress reports with functional goals including the use of toilet paper/wipes to clean
after a bowel movement and independent hand washing (AR 1361). The LISD also implemented
goals such as “compensatory speech strategies,” “acceptable social behaviors in school and work
environment,” and “store orientation to use a shopping list.” (AR 1362). The LISD measured
Plaintiff’s progress throughout the school year, noting the percentage of progress expected and
attained (AR 1482–1516). The LISD’s therapist recorded notes of each goal and the progress
made including notes such as “working in the bathroom today with student . . . she will need to
work on all of the micro-steps between the initial backward reach and wiping” and “supporting
toileting goals with fine motor and trunk strengthening exercise.” (AR 1621–1644, 1645–1666).
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The core of the IDEA is to provide access to educational opportunities and requires only
the “basic floor of opportunity,” and some meaningful educational benefits more than de minimis,
not a perfect education and not the maximum of Plaintiff’s potential. As the SEHO noted in its
decision “while TeachMe’s practices may be superior to the [LISD’s] practices, it has not been
shown that the [LISD’s] educational program is not meaningful” (AR 28). The LISD maintains
logs indicating the tasks attempted, progress report logs recording success or failure, and whether
a prompt or other assistance was needed.
Considering Plaintiff’s academic, social, and behavioral progress evidenced in the
administrative record, and the opinion of the SEHO who had the opportunity to observe witnesses
and make credibility determinations, the Court concludes that Plaintiff gained measurable
educational benefits sufficient to comply with the IDEA.
Having examined this case under all four of the Michael F. factors, the Court concludes by
a preponderance of the evidence that LISD’s Individual Education Program for Plaintiff was
reasonably calculated to enable her to receive meaningful educational benefits and thus provided
her with a Free Appropriate Public Education in accordance with IDEA.
Special Education as a Student with Autism
The LISD contends that the SEHO erred in ordering the ARD Committee to convene in
order to develop an Individual Education Program with autism added as a disability (Dkt. #30 at
p. 15). The ARD committee convened on September 4, 2015, and added autism eligibility for
Plaintiff’s special education (Dkt. #23). However, no additional changes were made to Plaintiff’s
Individual Education Program (Dkt. #23). Because the LISD did not violate its Child Find
obligations and provided Plaintiff with a Free Appropriate Public Education, the SEHO erred in

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ordering the LISD to develop an Individual Education Program with autism added as disability1.
In any event, as discussed above, the LISD considered the autism supplement and ABA therapy in
preparing Plaintiff’s Individual Education Programs and did not have to make additional changes
to Plaintiff’s Individual Education Program after adding autism eligibility for Plaintiff’s special
education.
The parties also dispute in their briefing whether the SEHO was correct in finding that
Plaintiff is a student with autism. The Court has found that the LISD was not required to classify
a student into a particular category, or affix that student with a particular label in order to meet its
Child Find obligations or to comply with the IDEA. The Court also found that the LISD provided
Plaintiff a Free Appropriate Public Education. The Court need not weigh in on Plaintiff’s disputed
diagnosis.
Attorneys’ Fees
Under the IDEA, a plaintiff may receive reasonable attorneys’ fees if she can show that she
is a prevailing party. 20 U.S.C. § 1415(i)(3)(B)(i). The Court found the LISD complied with its
Child Find obligations and provided Plaintiff a Free Appropriate Public Education. Plaintiff’s
Motion for Judgment on the Administrative Record seeking attorneys’ fees (Dkt. # 25 at p. 25) is
therefore denied.
CONCLUSION
It is therefore ORDERED that Defendant Lewisville Independent School District’s
Motion for Judgment on the Administrative Record (Dkt. #24) is hereby GRANTED. Plaintiff’s
Motion for Judgment on the Administrative Record (Dkt. #25) is hereby DENIED.

Plaintiff’s due process request also did not seek special education eligibility based on the disability of autism (AR 2).
Plaintiff sought compensation as an equitable remedy for educational services the LISD failed to provide, an
appropriate Individual Education Program, and reimbursement for past and future private placement (AR 2).
1

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SIGNED this 29th day of June, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE