Shafi A. v. Lewisville Independent School District
Filing
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MEMORANDUM OPINION AND ORDER - Based on the foregoing, the Court finds that Plaintiffs failed to satisfy their burden to show that Shafi A.s IEP was inappropriate under the IDEA. The Court finds the decision of the SEHO is AFFIRMED. Accordingly, is i t ORDERED that Defendants Motion for Judgment on the Administrative Record (Dkt. 9 ) is hereby GRANTED; judgment is held in favor of Lewisville Independent School District; and Defendants request for attorneys fees and costs of court are DENIED. It is further ORDERED that the Plaintiffs Motion for Judgment on the Administrative Record (Dkt. 10 ) is hereby DENIED; Plaintiffs take nothing on their claims and causes of action against Defendant; and that such claims and causes of action are hereby DISMISSED with prejudice. Signed by Judge Amos L. Mazzant, III on 12/15/2016. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
SHAFI A., by and through his next friends,
MOHAMMED & SHAMFIN A.
v.
LEWISVILLE INDEPENDENT
SCHOOL DISTRICT
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§
§
§
§
§
CASE NO. 4:15-CV-599
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant’s Motion for Judgment on the Administrative
Record (Dkt. #9) and Plaintiffs’ Motion for Judgment on the Administrative Record (Dkt. #10).
The Court, having reviewed the pleadings and administrative record, finds that Defendant’s
motion should be granted and Plaintiffs’ motion should be denied.
BACKGROUND
At the time of the hearing before the Texas Education Agency Special Education Hearing
Officer (the “SEHO” or “Hearing Officer”), Shafi A. was a third grade student at Heritage
Elementary School in the Lewisville Independent School District (“LISD” or the “District”).
Shafi A. has the disability of autism. A.R. at 418. He shows considerable difficulties and delay
relative to his peers with respect to socialization and pragmatic language skills. A.R. at 326–28.
Shafi A. has problems using inappropriate language and profanity A.R. at 380.
On August 23, 2013, LISD held Shafi A.’s transfer Admission, Review, and Dismissal
(“ARD”) committee meeting. Shafi A.’s parents received a copy of the Procedural Safeguards at
this meeting. A.R. at 945. On September 26, 2013, LISD conducted a Full Individual Evaluation
(“FIE”) for Shafi A. and confirmed that he met eligibility requirements for special education and
related services as a student with autism and a speech impairment. A.R. at 967, 988. Specifically,
the LISD evaluators found Shafi A. tested in the fourth percentile for pragmatic language
proficiency and warranted a descriptive rating of “poor” for his age. A.R. at 316. The evaluators
further determined that Shafi A. had a significant delay in pragmatic language skills and
displayed many characteristics commonly associated with an autism spectrum disorder. A.R. at
327. The evaluators concluded that Shafi A. is socially motivated but tends to have difficulty
with social reciprocity, which adversely affects his educational performance. A.R. at 328. Shafi
A.’s parents did not request any component of an evaluation be included as part of the FIE. A.R.
at 1957.
In its Recommendations section, the FIE recommended various strategies for the purpose
of promoting socialization and pragmatic language skills. A.R. at 328–29. These
recommendations included “pair[ing] with prosocial peers for peer partnering activities to
provide Shafi A. with opportunities to engage in positive peer interactions with peers who model
desired on task and prosocial skills” and “[d]evelopment of pragmatic language skills of
referencing the speaker, recognizing facial expressions, responding with on topic commenting
and questioning during conversations, and maintaining whole body attention and participation in
group interactions through turning toward speakers and group members while seated.” A.R. at
328. The FIE did not provide any guidance regarding duration or intensity of these services. A.R.
at 328–29.
On October 3, 2013, Shafi A.’s ARD committee reviewed his FIE. A.R. at 992. Neither
Shafi A.’s parents nor Shafi A.’s advocate Dr. Laurie Harrier, a Licensed Specialist in School
Psychology (“LSSP”), voiced any concern regarding the FIE or requested further evaluation.
A.R. at 1902–03. The ARD committee conducted a Functional Behavior Assessment (“FBA”) of
Shafi A.’s off-task behaviors and agreed to address them through accommodations and goals.
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A.R. at 1003. At this meeting, the ARD developed Shafi A.’s Individualized Education Program
(“IEP”), which included goals to address autism behavior, social skills training, classroom
accommodations, assistive technology to address sensory concerns, parental training at home,
speech therapy, and placement in the general education classroom with inclusion support. A.R. at
999–1019. Shafi A.’s parents reached a consensus with the ARD committee and did not voice
any concerns regarding the IEP developed for Shafi A. A.R. at 1021, 1966. In November 2013,
the District agreed to change Shafi A.’s teacher at the request of his parents. A.R. at 1027, 1030.
On January 17, 2014, Shafi A.’s ARD committee met to discuss Shafi A.’s off-task
behavior throughout the fall semester, which included an inappropriate drawing, two incidences
of cursing, and one incident of inappropriate attention-seeking behavior. A.R. at 1043. The ARD
discussed whether an FBA or Behavior Intervention Plan was needed, but decided to monitor
Shafi A.’s behavior rather than conduct an FBA because Shafi A. was progressing and his
behavior was not uncommon for a child of his age. A.R. at 1043. Shafi A.’s parents received
Prior Written Notice and reached consensus with the ARD committee regarding this decision.
A.R. at 1046, 1048.
On January 24, 2014, Shafi A.’s ARD committee and Shafi A.’s mother met and reached
a consensus to add handwriting goals and occupational therapy to Shafi A.’s services. A.R. at
1051, 1054–58. In March 2014, Shafi A.’s mother voiced concern regarding Shafi A.’s behavior
at home, but would not provide consent to the District for a counseling evaluation. A.R. at 1062,
1067, 1967–92. The District agreed to conduct an FBA instead. A.R. at 1062. Dr. Jane Jooste,
the District’s LSSP, also revised Shafi A.’s Safety Protocol. A.R. at 1073.
On May 8, 2014, Shafi A.’s parents wrote LISD requesting an Independent Educational
Evaluation (“IEE”) at the District’s expense. The then Executive Director of Special Education,
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Dr. Paula Walker, responded on May 23, 2014, approving an IEE for a full psychological
evaluation. A.R. at 1116. The evaluation was to include an autism evaluation, a Cognitive
Evaluation, an Academic Achievement Evaluation, an Adaptive Behavior Assessment, a full
Speech and Language Evaluation, an Occupational Therapy Evaluation, an FBA, and an
Assistive Technology Evaluation. Id. Dr. Walker provided Shafi A.’s parents with instructions,
the District’s IEE Operating Guidelines, a list of possible providers, and a copy of the Procedural
Safeguards. A.R. at 1116–1143.
On June 3, 2014, the ARD committee met to discuss Shafi A.’s need for Extended School
Year (“ESY”) services. A.R. at 1074. The ARD committee recommended ESY services to
prevent regression in speech and behavior; specifically, thirty minutes of speech therapy two
days per week, thirty minutes of occupational therapy consultation, and ninety minutes of
replacement behavior teachings two times per week. A.R. at 1075–76, 1085. The ARD
committee also conducted an FBA to address Shafi A.’s inappropriate language and wandering,
and developed a Behavioral IEP and safety protocol. A.R. at 1079–83. Shafi A’s parents and
advocate, Mara LaViola, participated in this meeting and requested that Shafi A.’s ESY services
be provided with Shafi A.’s general education peers, but did not indicate a specific program.
A.R. at 1085, 1721–22. The District agreed to look for summer programs. A.R. at 1085. On June
11, 2014, Dr. Walker contacted Shafi A.’s parents to inform them that her search did not produce
any private or community program that had summer vacancy, but she would research any
additional private program recommended by Shafi A.’s parents. A.R. at 1098. The District
offered to provide funding for a program meeting Shafi A.’s ESY needs, but since Shafi A.’s
parents never responded, the District prepared to provide Shafi A. with the ESY services
recommended by his ARD committee. A.R. at 1722. Shafi A. never participated in ESY services
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during the summer of 2014, which would have included Speech Language Pathologist (“SLP”)guided speech therapy or small group therapy. A.R. at 1101–04, 2006–12.
On June 30, 2014, Shafi A.’s father informed the District that he wanted the Ziggurat
Group to conduct the IEE. A.R. at 1145. LISD contacted the Ziggurat Group that day and
determined that their quoted price was $3,959 above the District’s Maximum Fee Schedule. A.R.
at 1159. 1171, 1174. Dr. Walker determined, through her years of experience, that this fee was
excessive and informed the Ziggurat Group that LISD would be willing to pay $3,241 for the
IEE. A.R. at 1170–71, 1159.
On July 2, 2014, Shafi A.’s father informed the District that he wished Julie Liberman to
conduct the speech portion of the IEE. A.R. at 1152. On July 7, 2014, the District sent Ms.
Liberman the District’s Operating Guidelines and Maximum Fee Schedule. A.R. at 1154–59.
LISD sets a maximum rate of $284.00 for a speech evaluation. A.R. at 822. Ms. Liberman
responded that she was unable to conduct the IEE at the District rate. A.R. at 1163. Ms.
Liberman charges $1,250.00 for her speech evaluations. A.R. at 1573. The District requested Ms.
Liberman’s credentials for fee negotiation purposes, but Ms. Liberman objected. A.R. at 1162,
1164.
On July 10, 2014, Shafi A.’s father emailed the District that “given the districts [sic]
severely [sic] restriction on fees for the IEE . . . we see no other recourse than to pay for private
IEEs and then seek reimbursement from the school district.” A.R. at 1164. The District
responded, indicating that Ms. Liberman had not provided her credentials and that negotiations
with the Ziggurat Group were ongoing. A.R. at 1164. On July 14, 2014, Dr. Walker sent an email
to Shafi A.’s father indicating that the District was still negotiating with the Ziggurat Group and
that it would only pay for one speech evaluation. A.R. at 1160. Shafi A.’s father objected,
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indicating he wanted two providers—Ms. Liberman and the Ziggurat Group. A.R. at 1166–67.
On August 24, 2014, Dr. Walker contacted Ms. Liberman directly, explaining the District’s cost
criteria and indicating that the District would be open to consideration of unique issues when a
fee exceeds the criteria. A.R. at 1175–76. Ms. Liberman responded, objecting to the District’s
cost criteria, but did not provide unique issues or her credentials. A.R. at 1176.
In the fall of 2014, Shafi A. returned to Heritage Elementary to start third grade. Ms.
Liberman began her evaluation of Shafi A. at the request of Shafi A.’s parents. A.R. at 403. Ms.
Liberman found Shafi A. had difficulties with pragmatic language and social skills. A.R. at 403–
08. Ms. Liberman observed Shafi A. in the classroom and believed him to be off task. A.R. at
1589–90. Ms. Liberman considered it essential for Shafi A. to receive direct instruction
concerning pragmatic language skills with a minimum of four sessions per week and further
inclusion in a social skills group three times per week. A.R. at 409. Ms. Liberman also
recommended direct training by an outside SLP. A.R. at 1593. Ms. Liberman found the LISD’s
FIE to be deficient in that it did not provide guidance with respect to the duration and frequency
of services. A.R. at 1622–23. Ms. Liberman believed the IEP developed by LISD was delivering
speech services at an inadequate frequency. A.R. at 1600–02.
Shafi A.’s ARD committee met for its annual meeting on October 2, 2014, to discuss
Shafi A.’s progress. A.R. at 1206. Shafi A.’s parents brought their attorney to the meeting
without notifying the District, so the ARD committee meeting was postponed to allow the
District to have their attorney present. A.R. at 1208. At this meeting, Shafi A.’s advocate, Ms.
LaViola, reported concerns regarding the measurability of the draft goals, which the District
agreed to address via email. A.R. at 1246, 1975. Ms. LaViola neither followed up with the
District regarding draft goals nor showed up to the rescheduled ARD committee meeting.
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On October 15, 2014, the ARD committee meeting reconvened. A.R. at 1208. The
committee reviewed Ms. Liberman’s evaluation, which had been provided to the District the
night before. A.R. at 1244. 1255–1266. Ms. Goodspeed, Shafi A.’s SLP disagreed with Ms.
Liberman’s evaluation for several reasons. First, Ms. Goodspeed disagreed with Ms. Liberman’s
recommendation for additional speech therapy because Shafi A. was making good progress with
the current amount of therapy. A.R. at 2018–2021. Further, additional speech therapy would
remove Shafi A. from the beneficial general education classroom. Id. Finally, Ms. Goodspeed
noted that Ms. Liberman’s test instrument was not standard and Ms. Liberman’s own testing did
not support her conclusion that Shafi A. had below-average speech skills. A.R. at 2023–24. Shafi
A. scored in the average range for expressive and receptive language. Id. At this meeting, Shafi
A.’s father expressed concerns, but would not consent to the ARD committee’s recommendation
of a counseling evaluation. A.R. at 1244, 1974. Ms. Persinger, Shafi A.’s special education
teacher, reported that Shafi A. performed academically on grade level, was progressing
academically, behaviorally, and socially, and had no behavioral incidents. A.R. at 1244–45.
Shafi A.’s occupational therapist, Lynn McCoy, also reported that Shafi A. made great gains
with his occupational therapy goals and handwriting skills. A.R. at 1245.
The ARD committee, Shafi A.’s father, and Shafi A.’s attorney worked together to revise
each draft goal to make the goals more measurable. A.R. at 1227–32, 1249, 1975–77. The ARD
committee also developed Shafi's IEP, which included goals to address social skills, pragmatic
speech, and handwriting occupational therapy; a behavioral IEP; classroom accommodations,
including a safety plan to address Shafi A.'s tendency to wander from his assigned area; assistive
technology to address sensory concerns; parental training to address independence and behavior;
social skills instruction; occupational therapy; speech therapy; and continuing placement in the
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general education classroom with inclusion support. A.R. at 1217, 1224–25, 1227–32, 1236,
1242. Shafi A.’s father and attorney did not object to the revised goals, but indicated that they
would need to discuss the IEP with Shafi A.’s mother to make sure she agreed with the IEP. A.R.
at 1977–78. The ARD committee agreed to enter a ten-day recess and reconvene after Shafi A.’s
parents had the opportunity to discuss the IEP. A.R. at 1978. Shafi A.’s parents agreed to meet
on October 15, 2014, but cancelled the meeting. A.R. at 387. Shafi A.’s parents did not raise any
concerns until the District received Shafi A.’s request for a Due Process Hearing on December
11, 2014.
Shafi A.’s parents directed the Ziggurat Group to evaluate their son. The Ziggurat Group
believed it could not meet LISD’s rate guidelines, so they charged Shafi A.’s parents $3,500.00
for the evaluation. A.R. at 1673. On November 21, 2014, the Ziggurat Group completed their
evaluation of Shafi A. A.R. at 1267–1336. Dr. Grossman observed Shafi A.’s off-task behavior
in the classroom. A.R. at 471–72. The Ziggurat Group concluded that Shafi A. needed more
services than LISD was providing. A.R. at 516. Specifically, the Ziggurat Group recommended
Shafi A. receive forty-five minutes to one hour of social understanding and adapting skills
instructions per day. Id.
The Ziggurat Group reported that Shafi A.’s teachers tended not to recognize his autistic
behavior. A.R. at 502, 1657–58. Dr. Grossman criticized LISD’s practice of administering
speech therapy sessions outside of Shafi A.’s classroom, claiming it is less effective than
working on pragmatic language skills in a classroom of his peers. A.R. at 1344, 1652. Dr.
Grossman included in his evaluation recommendations regarding appropriate responses to any
suicidal thoughts or gestures because Shafi A. has expressed to his mother negative thoughts
about his life and situation. A.R. at 527, 1656. The Ziggurat Group reached the conclusion that
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LISD’s FIE was deficient in that it did not comment on the duration or intensity of the services
recommended. A.R. at 1663–64. The Ziggurat Group recommended more socialization services,
at least forty-five minutes per day, than provided by LISD. A.R. at 516.
The District developed a side-by-side analysis of the District’s FIE, the Ziggurat Group
evaluation, and Ms. Liberman’s evaluation to compare and contrast the findings and
recommendations. A.R. at 1422–80. The ARD committee utilized this analysis to develop a new
IEP. A.R. at 1915. Ms. Goodspeed recommended additional goals and objectives including an
increase in speech therapy. A.R. 2026. Shafi A.’s mother participated in this meeting and did not
request additions to or alterations of the proposed IEP. A.R. at 2027.
On December 11, 2014, Shafi A., by and through his next friends, Mohammed &
Shamfin A. (“Plaintiffs”) filed a request for a hearing before a SEHO. The hearing was held on
March 6, 2015, and April 17, 2015. On June 5, 2015, the SEHO issued its decision, denying
Shafi A.’s request for relief and dismissing all claims with prejudice (Dkt. #1, Exhibit A).
On September 3, 2015, Plaintiffs filed their complaint, appealing the SEHO’s decision to
this Court (Dkt. #1). On May 23, 2016, Defendant filed its Motion for Judgment on the
Administrative Record (Dkt. #9). On June 20, 2016, Plaintiffs filed their response (Dkt. #12). On
July 11, 2016, Defendant filed its reply (Dkt. #13). On July 20, 2016, Plaintiffs filed their surreply (Dkt. #15).
Also on May 23, 2016, Plaintiffs filed their Motion for Judgment on the Administrative
Record (Dkt. #10). On June 20, 2016, Defendant filed its response (Dkt. #11). On July 11, 2016,
Plaintiffs filed their reply (Dkt. #14). On July 25, 2016, Defendant filed its sur-reply (Dkt. #17).
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LEGAL STANDARD
This case arises under the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. §§ 1400–1482. The IDEA's purpose is “to ensure 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 and prepare them for further education,
employment, and independent living[.]” 20 U.S.C. § 1400(d)(1)(A).
States receiving federal assistance under the IDEA must: (1) provide a “free appropriate
public education” (“FAPE”) 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
FAPE provided must be developed to each disabled child's needs through an “individual
education program” (“IEP”). Michael F., 118 F.3d at 247; see 20 U.S.C. § 1414(d). In Texas, the
committee responsible for preparing an IEP is known as an Admissions, Review, and Dismissal
committee. Michael F., 118 F.3d at 247.
“When a parent challenges the appropriateness of an IEP, 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 IEP developed through such procedures was ‘reasonably calculated to
enable the child to receive educational benefits.’” Id. at 583–84 (citation omitted). “If the court
finds that the state has not provided an appropriate educational placement, the court may require
the school district to reimburse the child's parents for the costs of sending the child to an
appropriate private school or institution.” Id. at 584 (citations omitted). “Reimbursement may be
ordered only if it is shown ‘that (1) an IEP calling for placement in a public school was
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inappropriate under the IDEA, and (2) the private school placement . . . was proper under the
Act.’” Id. (citation omitted).
The role of the judiciary under the IDEA is limited, leaving the choice of educational
policies and methods in the hands of state and local school officials. White v. Ascension Parish
Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003) (citing Flour Bluff Indep. Sch. Dist. v. Katherine M.,
91 F.3d 689, 693 (5th Cir. 1996)). “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 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 County v. Rowley, 458 U.S. 176, 206 (1982).
Instead, “due weight” is to be given to the hearing officer'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). Specifically, “a party attacking the appropriateness of an IEP established by a
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local educational agency bears the burden of showing why the IEP and the resulting placement
were inappropriate under the IDEA.” Michael F., 118 F.3d at 252.
ANALYSIS
Plaintiffs contend that Defendant failed to provide Shafi A. with a FAPE. Specifically,
Plaintiffs claim Shafi A.’s IEP was deficient because it failed to provide instructional services
sufficient in duration, frequency, and intensity to prevent Shafi A. from regressing relative to his
peers. If the sufficiency of the IEP is contested, the Court must assess the IEP by considering
whether: (1) the program is individualized on the basis of the student’s assessment and
performance; (2) the program is administered in the least restrictive environment; (3) the services
are provided in a coordinated and collaborative manner by the key “stakeholders”’ and (4)
positive academic and non-academic benefits are demonstrated. Michael F., 118 F.3d at 253.
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.” Id. at 247–48.
Michael F. Analysis
Whether Shafi A.’s IEPs Were Individualized
Plaintiffs present no evidence that Shafi A.’s IEP was not individualized on the basis of
his assessment and performance; rather, Plaintiffs disagree with the manner in which LISD
addressed Shafi A.’s needs. In arguing that the first Michael F. factor has been satisfied,
Plaintiffs allege LISD failed to provide sufficient duration and intensity measures for Shafi A.’s
services, had inadequately trained staff, and did not utilize lunch and recess time for
administering services. None of these arguments address whether Shafi A.’s IEP was
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individualized on the basis of his assessment and performance. The administrative record
contains ample evidence of LISD considering Shafi A.’s needs in formulating his IEP. In fact,
Plaintiffs’ own evaluations of Shafi A., conducted by Dr. Grossman and Ms. Liberman, reached
similar conclusions as the District’s FIE. A.R. at 328, 1597, 1663. The Court finds Shafi A.’s
IEP was individualized on the basis of his assessment and performance. 1
Plaintiffs further allege that LISD failed to provide appropriately measurable goals in its
IEPs. Specifically, Plaintiffs argue the District’s speech therapist measured progress not by
reference to the number of successes, but rather in terms of the degree of prompt reduction
achieved. This procedural violation claim does not entitle Shafi A. to relief unless it is paired
with a deprivation of educational opportunity. See Adam J. ex rel. Robert J. v. Keller Indep. Sch.
Dist., 328 F.3d 804, 812 (5th Cir. 2003) (establishing that “procedural defects alone do not
constitute a violation of the right to a FAPE unless they result in the loss of an educational
opportunity”). The Court, having reviewed the administrative record and briefing of the parties,
finds Plaintiffs have “not established that any procedural deficiency resulted in a loss of
educational opportunity or infringed [Shafi A.’s] parents' opportunity to participate in the IEP
process.” Id. Further, the goals and objectives contained in Shafi A.’s IEP’s are measurable, as
evidenced by testimony at the due process hearing. A.R. at 1003, 1217, 1231, 1985–87. The
Court finds Defendant complied with IDEA in setting measurable goals for Shafi A.
1
Plaintiffs argue Defendant’s FIE was deficient in that it did not give sufficient guidance as to
the duration and intensity of Shafi A.’s speech therapy. But Plaintiffs have waived this argument
as it was not introduced at the due process hearing. See Hall v. GE Plastic Pac. PTE Ltd., 327
F.3d 391, 396 (5th Cir. 2003). Further, Shafi A.’s private evaluator only stated that duration and
intensity guides “would be helpful” because “[s]ometimes the people who do the evaluations are
different . . . from the people who actually write the IEE [sic], the ARD document.” A.R. at
1663. Four of the six individuals who completed Shafi A.’s FIE were members of the ARD
committee and none of them made recommendations regarding duration and intensity. A.R. at
991, 1021. The Court finds Plaintiffs’ duration and intensity argument both judicially estopped
and without evidentiary support.
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Whether Shafi A.’s Services Were Administered in the Least Restrictive Environment
Plaintiffs contend that LISD failed to administer Shafi A.’s program in the least
restrictive environment in two respects. First, Plaintiffs contend LISD failed to provide speech
therapy services in a naturalized environment during the school year. During the prehearing
telephone conference, Plaintiffs’ counsel represented to the SEHO that Shafi A.’s placement was
not an issue except for ESY services. A.R. at 1534–35. The SEHO noted in his decision that
Shafi A.’s “parents had no complaints about the issue of [LRE] except for the proposed [ESY]
for 2014.” Plaintiffs are judicially estopped from bringing LRE claims with respect to services
during the standard school year because “the position of the party to be estopped is clearly
inconsistent with its previous one,” and the party “convinced the court to accept that previous
position.” Hall, 327 F.3d at 396 (citing Ahrens v. Perot Sys. Corp., 205 F.3d 831, 833 (5th Cir.
2000)). Even if the issue were properly before the Court, the administrative record indicates that
LISD administered Shafi A.’s IEP in the LRE. Shafi A. received instruction in the general
education setting as well as pull out sessions. 2 Plaintiffs’ own expert, Julie Liberman,
recommended Shafi A. receive speech therapy and social skills training in the “therapy room,
classroom, and/or in natural contexts such as recess, lunch, etc.” A.R. at 1263. Plaintiffs’
argument that Shafi A. did not receive services in the LRE is without adequate evidentiary
support to overcome the deference afforded to a school district’s professionals. See T.C. v.
Lewisville Indep. Sch. Dist., No. 4:13CV186, 2016 WL 705930, at *17 (E.D. Tex. Feb. 23, 2016)
2
Plaintiffs allege the District erred in not utilizing lunch and recess for Shafi A.’s services. But
the administrative record establishes that Shafi A. received social skills training on the
playground, in the cafeteria, and on field trips. A.R. at 1769–71. Shafi A.’s SLP believed his
direct speech therapy was best handled on a pull-out basis due to the progress he was making.
A.R. at 2036.
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(compiling cases indicating that deference should be given to a school district's professionals in
considering whether a school district has complied with the IDEA).
Plaintiffs’ contention that Shafi A.’s ESY services were not administered in the LRE is
properly before the Court. Plaintiffs argue that LISD did not administer ESY services in the LRE
because it did not offer ESY services to Shafi A. in a general education classroom. LISD did not
have a general education program for Shafi A., but Defendant offered to place Shafi A. in a
special education LISD classroom or pay for a private or community program with general
education classes. LISD researched private and community programs for Shafi A. and explained
to Shafi A.’s parents that no programs were available. Dr. Walker offered to investigate any
other programs identified by Shafi A.’s parents, but none were suggested. The Court agrees with
other courts that have determined, “even if a school district fails to place a disabled student in an
ESY program in his LRE, the student still will not be entitled to reimbursement unless he finds a
private alternative ESY placement, proves that alternative placement was appropriate, and proves
that equitable considerations favor reimbursement.” T.M. ex rel. A.M. v. Cornwall Cent. Sch.
Dist., 752 F.3d 145, 167 (2d Cir. 2014) (citing Florence Cty. Sch. Dist. Four v. Carter, 510 U.S.
7, 15–16 (1993); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S.
359, 369–71 (1985)). The Court finds Defendant administered Shafi A.’s services in the LRE
during the school year, and Plaintiffs failed to establish that Shafi A. was denied the opportunity
to receive ESY services in the LRE.
Whether the Services Were Provided in a Coordinated and Collaborative Manner
Plaintiffs contend LISD failed to provide services to Shafi A. in a manner coordinated
and collaborative with the key stakeholders. Specifically, Plaintiffs allege Defendant failed to act
on parental concerns about the pragmatic language and socialization needs of Shafi A. The
15
administrative record indicates that Shafi A.’s parents did not make any request that was not
addressed by the District at any of the ARD committee meetings they attended. The District
changed Shafi A.’s teacher after his parents raised concerns, offered a counseling evaluation,
conducted a Functional Behavior Assessment, and spent considerable time developing,
reviewing, and revising Shafi A.’s goals in order to make them more measurable.
Plaintiffs contend Shafi A.’s services were not coordinated and collaborative with the key
stakeholders because Shafi A.’s parents did not agree with the ARD committee’s
recommendations. But such disagreement “does not mean that [Shafi A.’s] services were not
offered in a coordinated and collaborative fashion.” R.C. v. Keller Indep. Sch. Dist., 958 F. Supp.
2d 718. 736 (N.D. Tex. 2013). 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 343 F.3d at 380. “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 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. The administrative record indicates that LISD reviewed and addressed the
findings of Plaintiffs’ private evaluators, who reached similar conclusions as to Shafi A.’s
condition and needs. Thus, the Court finds Defendant provided services to Shafi A. in a manner
coordinated and collaborative with the key stakeholders. 3
Plaintiffs also allege that LISD’s staff had insufficient training. But the administrative record
does not contain any evidence to support this claim. Plaintiffs paraphrase Dr. Grossman’s
testimony at the Due Process Hearing to claim Dr. Grossman believed Shafi A.’s educators were
inadequately trained. But the portion of testimony referenced by Plaintiffs does not support the
claim. Dr. Grossman observed that Shafi A.’s teachers were “not reporting a lot of symptoms of
3
16
Whether Positive Academic and Non-Academic Benefits Were Demonstrated
Plaintiffs contend LISD failed to provide Shafi A. with positive academic and nonacademic benefits. Specifically, Plaintiffs allege LISD did not provide Shafi A. with the proper
instructional services necessary to prevent the regression of his pragmatic language skills relative
to his peers. Defendant offers evidence of Shafi A.’s success in the classroom by noting that
Shafi A. received all As and Bs. Defendant also asserts Shafi A. progressed socially and
behaviorally as evidenced by the IEP progress reports and discipline records. Conversely,
Plaintiffs stress the importance of pragmatic language skills, but do not offer evidence as to how
Shafi A. fell behind relative to his peers or otherwise rebut Shafi A.’s documented progress and
successes in school. Even if Plaintiff were able to offer proof of Shafi A. falling behind his peers,
the Fifth Circuit does not measure a student’s progress by relation to the rest of the class, “but
rather with respect to the individual student.” Bobby R., 200 F. 3d at 349. The administrative
record clearly shows Shafi A. progressed academically, behaviorally, and socially throughout the
District’s implementation of his IEP. The Court finds Shafi A. demonstrated positive academic
and non-academic benefits under his IEP.
Plaintiffs contend that the present set of circumstances falls into an exception, arguing
that relative regression necessarily entails absolute regression in the areas of pragmatic language
and socialization. But Plaintiffs do not offer any support for their claims. And Defendant is not
required to offer complete remediation for Shafi A.’s disabilities. Klein Indep. Sch. Dist. v.
Hoven, 600 F.3d 390, 396 (5th Cir. 2012). 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
autism, and it makes me wonder if they couldn’t see it.” A.R. at 1653. This level of speculation
does not evidence a lack of training.
17
maximum of Shafi A.’s potential. The same analysis applies to the issue of skill generalization.
Courts have held the IDEA does not require generalization as long as the child is making
progress in school. See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1150 (10th Cir.
2008). The Texas Autism Supplement only requires consideration of generalization skills, which
is reflected in the Administrative Record. 19 TEX. ADMIN. CODE § 89.1055(e)(3); A.R. at 998,
2037–39. Considering Shafi A.’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 Shafi A. 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 IEP for Shafi A. was reasonably calculated to
enable him to receive meaningful educational benefits and thus provided him with a FAPE in
accordance with IDEA.
IEE Analysis
Plaintiffs contend Defendant failed to meet its obligations with respect to the provision of
an IEE for Shafi A. Specifically, Plaintiffs argue the District’s FIE was deficient and that Shafi
A. was entitled to two separate speech evaluations at the District’s expense. Further, Plaintiffs
contend the District’s cost parameters for reimbursing private evaluations were unreasonable.
Defendant contends that two speech evaluations were not appropriate under FAPE, and found
Ms. Liberman’s evaluation fee unreasonable. Defendant attempted to work with Plaintiffs’
chosen IEE providers, and gave Shafi A.’s parents and private evaluators the opportunity to
demonstrate unique circumstances for the District to exempt Shafi A. from the District’s cost
parameters as required by the Fifth Circuit. See Seth B. v. Orleans Parish Sch. Bd., 810 F.3d 961,
18
980 (5th Cir. 2016). Plaintiffs did not demonstrate unique circumstances, yet Defendant still
contacted Shafi A.’s private evaluators in an attempt to negotiate costs. Ms. Liberman refused to
provide her credentials or negotiate her fees. Ultimately, Defendant refused to pay for Ms.
Liberman’s evaluation because the only explanation regarding unique circumstances provided by
Plaintiffs was that Shafi A. had autism. Plaintiffs suggest LISD carries the burden of establishing
Ms. Liberman’s costs 4 were unreasonably excessive, but the burden lies with Plaintiffs when
seeking reimbursement for IEEs. See id. at 972.
Plaintiffs contend Shafi A. was entitled to two full speech evaluations because LISD
itself performs FIEs with two SLPs. Defendant contends it utilizes two SLPs for the same report
as part of a comprehensive speech evaluation. One SLP tests regular receptive and expressive
language, while the other SLP tests pragmatic language elements. The tests are combined to form
a single report. In contrast, Shafi A.’s parents requested LISD cover the cost of two separate
reports with considerable overlap, which is not required under IDEA regulations. See 34 C.F.R.
300.502(b). Shafi A.’s parents ultimately paid for speech evaluations from both Ms. Liberman
and the Ziggurat Group, but the Court finds the District is not required to pay for the evaluations
because Plaintiffs have not met their burden in proving LISD’s evaluations were deficient and
that two extra private speech evaluations were necessary.
Plaintiffs further contend that LISD’s cost parameters are not reasonable. But LISD based
its maximum fee schedule on research as to customary rates in the area, as determined by a team
of special education evaluators. A.R. at 1690. The administrative record establishes that LISD
sets its rates at thirty-five percent above the Medicaid rate. Numerous providers in the area
4
The parties disagree on the reasonable cost of an IEE evaluation. Ms. Liberman ultimately
charged $1,250 for Shafi A.’s evaluation, which the District found greatly excessive. The Court
need not determine whether Ms. Liberman’s IEE fee was reasonable, as Plaintiffs failed to
demonstrate unique circumstances warranting an exemption from the District’s cost parameters.
19
conduct IEEs at the Medicaid rate, and LISD maintains a list of IEE providers that conduct
evaluations at or below the District’s maximum fee schedule. A.R. at 1481, 1746. The District
allows parents to request an exemption for unique circumstances, which is all that is required
under IDEA. Seth B., 810 F.3d at 980; 71 FED. REG. 46,689–46,690 (2006). The District met and
exceeded its duty by asking both Shafi A.’s parents and Ms. Liberman for evidence of unique
circumstances, which Plaintiffs did not offer. Regardless, LISD ultimately agreed to exceed its
cost criteria for the Ziggurat Group’s IEE. A.R. at 1183. But Shafi A.’s parents refused because
they wanted the District to also pay for Ms. Liberman’s evaluation, which both the District and
the Ziggurat Group found unreasonable. A.R. at 1166, 1183, 1710. The District attempted to
meet with Shafi A.’s parents to resolve the dispute, but Shafi A.’s parents refused and chose to
obtain the evaluations at private expense. These evaluations reached similar conclusions as the
District’s FIE. These conclusions, along with the evidence provided in the administrative record,
establish that the District appropriately evaluated Shafi A. The Court finds that Plaintiffs have
not met their burden in showing Defendant failed to meet its obligations with respect to the
provision of an IEE for Shafi A. 5
Plaintiffs’ final contention with respect to the IEE is that Defendant acted with
unnecessary delay in responding to Plaintiffs’ request. Specifically, Plaintiffs argue Defendant
knew the IEE was sought at public expense and LISD should have objected before the due
5
Under the IDEA regulations, a school district may challenge the request for an IEE by either
demonstrating its evaluation was appropriate or the private IEE did not meet agency criteria. 34
C.F.R. § 300.502(b)(5). Defendant takes issue with Ms. Liberman’s testing and conclusions.
Specifically, Ms. Liberman’s instruments were out of standardization and her own test scores
concluded Shafi A. had average expressive and receptive language skills. The District also
challenges the Ziggurat Group evaluation because Dr. Grossman used incorrect dates and a
faulty administration procedure, resulting in false scoring. The Court need not address these
issues as the administrative record establishes that LISD provided Shafi A. with an appropriate
evaluation.
20
process hearing. But the Fifth Circuit has held a school district’s “delay in ‘demonstrating’ the
IEE’s noncompliance should be measured from the submission of the invoices” for the IEE,
which was not done until Shafi A.’s parents filed a request for a due process hearing. Seth B.,
810 F.3d at 971. The Court finds that Defendant did not act with unnecessary delay in
responding to Plaintiffs’ request for IEE’s.
The Court finds Defendant provided Shafi A. with a FAPE in compliance with the IDEA
by developing individualized IEPs, communicating with Shafi A.’s parents and teachers
regarding his specific needs, and considering public and private evaluations at multiple ARD
meetings. Although there were disagreements with the District and Shafi A.’s parents, the Court
finds Defendant complied with the IDEA.
In making this finding, the Court is not only mindful of Plaintiffs' failure to sustain their
evidentiary burden but also of the Fifth Circuit's guidance regarding the district court's role in
suits under the IDEA. Primarily, Fifth Circuit courts have construed the IDEA to create a
presumption in favor of the education plan proposed by the school district, and places the burden
of proof on the party challenging it. Alamo Heights Indep. Sch. Dist. v. State Bd. of Edu., 790
F.2d 1153, 1158 (5th Cir. 1986); Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 467 (5th
Cir. 1995); Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 132 (5th Cir. 1993). More
importantly, the Fifth Circuit has acknowledged that “Congress intentionally left the choice of
educational policies and methods where it properly belongs—in the hands of state and local
school officials.” White, 343 F.3d at 377. “The role of the judiciary is not to second-guess the
decisions of school officials or to substitute their plans for the education of disabled students
with the court's.” R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1010 (5th Cir. 2010).
21
CONCLUSION
Based on the foregoing, the Court finds that Plaintiffs failed to satisfy their burden to
show that Shafi A.’s IEP was inappropriate under the IDEA. The Court finds the decision of the
SEHO is AFFIRMED.
Accordingly, is it ORDERED that Defendant’s Motion for Judgment on the
Administrative Record (Dkt. #9) is hereby GRANTED; judgment is held in favor of Lewisville
Independent School District; and Defendant’s request for attorneys’ fees and costs of court are
DENIED. 6
It is further ORDERED that the Plaintiffs’ Motion for Judgment on the Administrative
.
Record (Dkt. #10) is hereby DENIED; Plaintiffs take nothing on their claims and causes of
action against Defendant; and that such claims and causes of action are hereby DISMISSED
with prejudice.
SIGNED this 15th day of December, 2016.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
6
Under the IDEA, it is within the court's discretion to award attorney's fees as part of costs to the
school district against the parents or the parents' attorney if it determines that the parents' due
process hearing request or a subsequent action is “frivolous, unreasonable, or without
foundation”; was litigated “after the litigation clearly became frivolous, unreasonable, or without
foundation”; or “was presented for any improper purpose, such as to harass, to cause unnecessary
delay, or to needlessly increase the cost of litigation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II)-(III). The
Court finds there is insufficient evidence in the administrative record to support such a finding.
22
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