v. Alamo Heights Independent School District

Filing 32

ORDER GRANTING 21 Defendant's Motion for Summary Judgment; DENYING 29 Plaintiff's Motion to supplemen.t Signed by Judge Xavier Rodriguez. (rg)

In the United States District Court
for the
Western District of Texas
R.P.
v.
ALAMO HEIGHTS I.S.D.

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§
§
§
§

SA-10-CV-584-XR

ORDER

On this day came on to be considered Defendant’s Motion for Summary
Judgment (doc. no. 21) and R.P.'s motion to supplement the administrative
record (doc. no. 29) .
BACKGROUND
It is uncontested that R.P. is an elementary school student in the Alamo
Heights Independent School District (AHISD) receiving special education
services for mental retardation and speech impairment.

Pursuant to the

Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. (IDEA),
an individualized educational program (IEP) was developed for R.P. by an
Admissions, Review & Dismissal (ARD) Committee.

See 20 U.S.C. §

1414(d)(1)(B); 19 Tex. Admin. Code § 89.1050(c).
On November 16, 2007, the ARD Committee determined that R.P. also
qualified for special education as a student with autism. On or about this date

R.P.’s parents were also reminded that R.P. needed an eye examination in order
to complete a functional vision assessment. R.P. received an eye examination
on December 11, 2007, and the doctor found no gross vision deficits and no
apparent visual loss. A functional vision assessment was completed on March
28, 2008, and the evaluator noted that based on the December 2007 eye
examination, R.P. did not meet the eligibility criteria to continue her designation
as a visually impaired student.1
During an April 4, 2008 ARD Committee, the Committee recommended
that R.P. receive speech therapy, social skills training in a special education
classroom, and special education instruction in reading, writing, math and self
help skill.

The remainder of R.P.’s school day was to be spent in regular

education classroom with accommodations and support. R.P.’s father requested
one-on-one applied behavioral analysis (ABA) therapy for two hours each day,
but his request was denied because the program recommended for R.P.
incorporated ABA techniques. During a May 12, 2008 ARD Committee meeting,
R.P.’s father requested additional time for speech and occupational therapy, but
that request was denied.
On October 14, 2008, another ARD Committee meeting was convened to
consider R.P.’s parents’ request that the time R.P. spent in regular education
classes be decreased. That request was granted and an additional hour per day
with a special education teacher was assigned.

1

She continued her eligibility for special education on the basis of autism, mental
retardation and speech impairment.

2

On December 11, 2008, an additional ARD Committee meeting was held.
It was recommended that R.P. receive various supplementary aids.

The

Committee agreed that a minimum of 40 sessions of speech therapy continued
to be appropriate, but R.P.’s parents disagreed requesting at least 60 sessions.
During the Spring semester of the 2008-2009 school year, school officials
opined that R.P. was making progress in her independent use of low-tech
communication systems, and began to explore her use of more advanced
communication aids such as Tango and Dynavox.
On May 20, May 28, and June 4, 2009, additional ARD Committee
meetings were held. R.P.’s father expressed dissatisfaction with a number of
issues, e.g. toileting2 and the strategies for teaching autism (STAR) program. He
also requested an Independent Educational Evaluation (IEE)3 and expressed
concern about what he called a “deteriorating” condition in the special education
classroom.
The ARD Committee again met on November 13, 2009. At this meeting,
R.P.’s father requested that R.P. be allowed to take the Dynavox communication
device home. The request was granted, but R.P.’s father was required to sign an
agreement that he would be responsible for any damage to the device beyond
normal wear and tear. R.P.’s father signed the agreement, but under protest.

2

On September 11, 2009, an occupational therapist opined that R.P. may not be
sensing a need to urinate and that she may not possess the muscle control necessary to hold
her urine. It was recommended that R.P. be seen by a pediatric urologist (expense to be borne
by the school district).
3

The due process hearing officer found that the parents failed to submit a written
request for IEE as required by district policy.

3

On November 24, 2009, R.P.’s parents requested the due process hearing
that is the subject of this lawsuit. Their request stated 23 claims or issues.
The due process hearing was held on March 8 and 9, 2010. The hearing
officer heard from 15 witnesses, reviewed 3,400 pages of documents and listened
to ten hours of ARD meeting tapes.
On April 12, 2010, the hearing officer signed a written decision. In that
decision he noted that the “ARD meetings were adversely impacted by a failure
of a key stakeholder [R.P.’s father] to remain productive and consistently
participate in a process that demands cooperation and consensus.” The hearing
officer noted that R.P. continues to struggle with toileting. The hearing officer,
however, concluded that R.P. failed to demonstrate that the school district failed
to provide her with a free appropriate public education (FAPE).

4

4

In claim 1, R.P. complained about the duration of her general education setting as
determined by the ARD Committee. The Hearing Officer concluded that because of R.P.’s need
for intensive specialized education techniques and curriculum, her IEP allowed for variability.
He concluded that R.P. failed to establish that her general education inclusion was
inappropriate, and she failed to establish that she was denied a FAPE.
In claim 2, R.P. complained that AHISD failed to assess her in all areas of suspected
disabilities, specifically any vision issues. The hearing officer found that the record did not
support this allegation.
In claims 3, 4,5,8, and 9, R.P. claimed that AHISD had “predetermined decisions” prior
to the ARD meetings, which resulted in the denial of parental participation and the parents’
rights to have concerns expressed. The hearing officer found that the record did not support
these allegations. To the contrary, the hearing officer found that the father frequently used
ARD meetings and was “needlessly combative, insulting and unproductive.”
In claims 6,10, 11, and 17, R.P. alleged that the goals and objectives stated in the IEP
were confusing and failed to adequately set forth whether the student was making progress.
She further complained that a functional behavioral assessment was not conducted. The
hearing officer stated that “[w]hile the clarity of Respondent’s specific ARD document
formatting could be improved, it is [sic] certainly allow [sic] the reader to determine the
Student’s educational progress. Some of the goals and objectives could be improved by a
quantified element of success.” That said, the hearing officer concluded that AHISD provided
the parents with “ample information about the Student’s educational progress....” The hearing
officer further found that a behavioral intervention plan (BIP) and functional behavioral
assessment were unnecessary. With regard to the use of the phrase “remainder of the school

4

On July 9, 2010, R.P. filed this lawsuit alleging that the hearing officer
erred in virtually all of his rulings. On April 15, 2011, AHISD filed its motion
for summary judgment.

day,” the Hearing Officer noted that the phrase should be amended to record time as
accurately as possible, but nevertheless found that there was no denial of a FAPE.
In claim 7, R.P. alleges that AHISD has failed to appropriately address toileting
training. The hearing officer found that R.P. has had inconsistent success in toilet training
at school and at home. He nevertheless concluded that even though no significant progress
had been achieved, the IDEA does not require a school district to cure an educational
disability. Relying upon Houston I.S.D. v. Bobby R., 200 F. 3d 341 (5th Cir. 2000) and Clear
Creek I.S.D. v. D.K., 400 F. Supp. 2d 991 (S.D. Tex. 2005), he further concluded that a
student’s lack of progress on a single objective is not a denial of a FAPE.
In claim 12, R.P. alleged that the school district incorrectly determined that R.P. was
able to comply with the student code of conduct. The hearing officer found that R.P. either did
not understand the code of conduct, or was indifferent to it. Nevertheless, he concluded that
this incorrect determination did not result in a denial of a FAPE.
In claim 13, R.P. alleged that AHISD failed to conduct an IEE and FIE. The hearing
officer concluded that no written request was submitted by the parents, and accordingly there
was no violation by the school district.
In claim 14, R.P. alleged that AHISD failed to consider an occupational therapist report
prepared in the Summer of 2009. The hearing officer found that AHISD reviewed that report
during the September 15, 2009 ARD and incorporated the O.T.’s findings in R.P.’s educational
program.
In claims 15 and 20, R.P. alleged that AHISD failed to consider an assistive technology
device for communication. The hearing officer found, in part, based upon R.P.’s mother’s
statements that substantial progress in communication has been made with use of the
Dynavox device and thus R.P. has received a FAPE from the appropriate AT initiative. The
hearing officer stated that it may have been inappropriate for AHISD to “shift the risk of
loss/costs of a necessary educational device to the Student’s parents.” Nevertheless, he found
that there was no denial of a FAPE.
In claims 16, 22 and 23, R.P. alleged that AHISD failed to provide the parents with
certain IEP progress reports. The hearing officer states that there may have been a failure
to provide a particular progress report, but that in light of 22 ARD meetings, multiple preARD meetings, “and nearly continual conflict about some aspect of the Student’s educational
program or another makes this allegation seem superfluous.”
In claim 18, R.P. alleged that AHISD should have purchased a Pants Alert system as
a necessary AT device to address the toileting issue. The hearing officer found that there was
confusion as to whether the device was incorporated into the IEP, but even if there was a
failure to purchase the device there was no denial of a FAPE.
In claim 19, R.P. alleged that AHISD destroyed educational records. The hearing
officer found that this was not a violation of the IDEA.
In claim 21, R.P. alleged that AHISD failed to provide faculty and staff with
appropriate training regarding her disability. The hearing officer found that the record did
not support that allegation.

5

Analysis
“Congress enacted the IDEA to ensure that children with disabilities will
have access to public education, including special education and related services.
The IDEA requires school districts in states receiving designated federal funds
to implement procedures and policies that assure that each disabled student
receives a ‘free appropriate public education,’ or ‘FAPE.’ To ensure that a child
receives a FAPE, parents and school districts collaborate to develop an
Individualized Education Plan (“IEP”)5 that is “reasonably calculated to enable
the child to receive educational benefits.’” R.H. v. Plano Independent School
Dist., 607 F.3d 1003, 1008 (5th Cir. 2010)(citations omitted).
“The IDEA does not entitle a disabled child to an IEP that maximizes his
potential, but instead only guarantees a ‘basic floor’ of opportunity ‘specifically
designed to meet the child's unique needs, supported by services that will permit
him to benefit from the instruction.’ The educational benefit, however, ‘cannot
be a mere modicum or de minimis; rather, an IEP must be likely to produce
progress, not regression or trivial educational advancement.’” Id.
“The district court, reviewing the decision of a hearing officer under the
IDEA, accords ‘due weight’ to the hearing officer's findings but ultimately
reaches ‘an independent decision based upon the preponderance of the evidence’

5

The Fifth Circuit has identified four factors for analyzing whether an IEP was
reasonably calculated to provide a meaningful educational benefit under the IDEA: (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. See Cypress-Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 249 (5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).

6

that is ‘virtually de novo.’ 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.

Instead, the court's role is limited to

determining whether those officials have complied with the IDEA. The IDEA
creates a presumption in favor of a school district's educational plan, placing the
burden of proof, by preponderance of the evidence, on the party challenging it.”
Id. at 1010.
In determining whether a student has been provided a free appropriate
public education, the Court must examine “(1) whether the state complied with
the procedural requirements of IDEA, and (2) whether the challenged IEP was
reasonably calculated to enable the child to receive educational benefits.” Bd.
of Educ. v. Rowley, 458 U.S. 176, 206 (1982). The Supreme Court has made clear
that the IDEA does not grant permission for “courts to substitute their own
notions of sound educational policy for those of the school authorities which they
review.” Rowley, 458 U.S. at 206. Rather, courts must give “due weight” to the
state proceedings. Id.
R.P.’s motion to supplement the administrative record
R.P. seeks leave to file tapes of various ARD meetings that were not
considered by the hearing officer. It is uncontested that R.P. was in possession
of these tapes, but failed to timely tender these exhibits to the AHISD the
requisite five days prior to the hearing. Accordingly, the hearing officer excluded
them from evidence. R.P. argues, relying upon Town of Burlington v. Dep’t of

7

Educ., 736 F. 2d 773 (1st Cir. 1984), aff’d, 471 U.S. 359 (1985), that this is a gap
in the administrative record caused by AHISD and requires correction. R.P.’s
reliance upon Town of Burlington is misplaced. Here, R.P. was in possession of
the tapes prior to the hearing and failed to timely disclose the tapes. The
hearing officer made a correct decision to exclude the tapes.
In addition, R.P. states that a hearing or trial is necessary, or in the
alternative the record must be supplemented with affidavits from three
witnesses. R.P. states that these witnesses would provide testimony regarding
AHISD’s “continuing effort to hold parent’s financial [sic] responsible for
Dynavox....” Two of the witnesses would also testify about the independent
educational evaluation requests. It is uncontested that the district allowed R.P.
to take the device home and it is also uncontested that the parents were asked
to sign an agreement to reimburse the district for any loss or damage to the
device (beyond normal wear). Accordingly, R.P. fails to establish why the record
requires supplementation. Likewise, R.P. fails to contest that she did not file a
written request for an IEE pursuant to district policy.
R.P.’s motion for leave to supplement administrative record (doc. no. 29)
is denied.
R.P.’s Response to Defendant’s motion for summary judgment
R.P. responds that there are material fact issues that require denial of the
motion for summary judgment. Plaintiff contests any statements or findings
made by the hearing officer that R.P.’s father’s conduct was improper. No

8

competent summary judgment evidence, however, is attached and the complaint
is conclusory.
R.P. complains that no assistive technology device was provided under the
November 16, 2007 report and there was a one year delay in providing the
device, resulting in the denial of a FAPE. This is contradicted by the record.
R.P. was successfully utilizing communication cards in the classroom during this
time frame.
R.P. complains that AHISD did not timely review an occupational
therapist’s report, but assuming this is correct, she fails to state how any
untimely review resulted in the denial of a FAPE.6
R.P. complains that her father was not provided a copy of an AT
evaluation and other documentation, but fails to refute the hearing officer’s
determination that, given the numerous ARD meeting and teacher conferences

6

A free appropriate public education “consists of both ‘special education’ and ‘related
services.’ 20 U.S.C. § 1401(9). The statute defines ‘special education’ as ‘specially designed
instruction ... to meet the unique needs of a child with a disability.’ 20 U.S.C. § 1401(29). The
statute defines ‘related services’ to include ‘transportation, and such developmental, corrective,
and other supportive services (including ... psychological services, ... social work services, ...
counseling services, ... and medical services, except that such medical services shall be for
diagnostic and evaluation purposes only) as may be required to assist a child with a disability
to benefit from special education....’ 20 U.S.C. § 1401(26)(A). A school district satisfies its
obligation to provide a FAPE to a disabled child ‘by providing personalized instruction with
sufficient support services to permit the child to benefit educationally from that instruction.’
Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S.
176, 203 (1982). ‘The primary tool in assuring that a [FAPE] is provided to all eligible children
with disabilities is the requirement that the state create an individualized education plan
(“IEP”) for each disabled child.’ Miller v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d
1232, 1236 (10th Cir. 2009). ‘The IEP is a written statement that sets forth the child's present
performance level, goals and objectives, specific services that will enable the child to meet
those goals, and evaluation criteria and procedures to determine whether the child has met
the goals.’ Ass'n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993); see
20 U.S.C. § 1414(d)(1)(A).” Jefferson County School Dist. R-1 v. Elizabeth E. ex rel. Roxanne
B., --- F. Supp. 2d ----, 2011 WL 2565513 (D. Colo. 2011).

9

in this case, any isolated failures to provide documentation did not result in the
denial of a FAPE.7
R.P. disputes that any ARD meetings were compromised because of his
behavior. Other than the conclusory statement that parents must be able to
participate in ARD meetings, R.P. fails to demonstrate how any alleged
premature terminations of meetings resulted in the denial of a FAPE.
R.P. complains that an AT evaluation should have been completed by
October 2009, but was not. That does not appear to have been raised as an issue
for the due process hearing. Even assuming it was, R.P. fails to demonstrate
how any delay resulted in the denial of a FAPE.
R.P. complains that her father was required to sign an agreement to be
financially responsible for any loss or damage (beyond normal wear) to the
Dynovox device. R.P. apparently argues that a school district must provide any
assistive device requested by a parent to a student, without limits of any kind
on use or loss. The Court is not aware of any cases to support this argument,
and Plaintiff does not provide any citation. Even assuming AHISD incorrectly
required the signing of the financial loss agreement, R.P. fails to demonstrate
how this agreement resulted in the denial of a FAPE. R.P. was provided the

7

“An IEP's failure to clear all of the Act's procedural hurdles does not necessarily
entitle a student to relief for past failures by the school district. Instead, this court must
determine whether the procedural error resulted in “substantive harm to the child or his
parents”; “deprive[d] an eligible student of an individualized education program”; or “result[ed]
in the loss of [an] educational opportunity.” In sum, then, the courts inquire whether the
violation resulted in the denial of a FAPE.” Sytsema ex rel. Sytsema v. Academy School Dist.
No. 20, 538 F.3d 1306 (10th Cir. 2008)(citations omitted).

10

device for use at school and home.
R.P. complains that there were no revisions to her toileting program and
that resulted in the denial of a FAPE. AHISD reviewed an OT report and the
report did not recommend any changes to the IEP. Although R.P. was not
completely toilet trained, there is not sufficient evidence in the record to support
a finding that her toileting issues were considerable, such that the IEP was not
“reasonably calculated” to confer educational benefits.8
R.P. complains that she was not given additional vision assessments.
Although acknowledging that the ophthalmologist’s report gave R.P. a
satisfactory finding, R.P.’s father states that the doctor verbally told him that
R.P. had a cortical vision impairment. The school district’s reliance on the
written report was not improper. Further, Plaintiff has failed to provide any
evidence that R.P. does indeed suffer from any vision impairment. Finally, R.P.
could have sought, but failed to file, a written request for IEE seeking an
additional vision assessment.
Further, R.P. questions the abilities of the district’s special education

8

Actual implementation of the IEP is important. See 20 U.S.C. § 1401(8); Bobby R., 200
F.3d at 348; Socorro Indep. Sch. Dist. v. Angelic Y. ex rel. Angela T., 107 F.Supp.2d 761, 767
(W.D. Tex. 2000). However, an FAPE does not demand that every element of the IEP be
implemented. The Fifth Circuit has held that “a party challenging the implementation of an
IEP must show more than a de minimis failure to implement all elements of that IEP, and,
instead, must demonstrate that the school board or other authorities failed to implement
substantial or significant provisions of the IEP.” Bobby R., 200 F.3d at 349. Generally, “[a]ll
that a school is required to do is ensure that its students are receiving educational benefit.”
Sylvie M. ex rel. Diane R. v. Bd. of Educ. of Dripping Springs Indep. Sch. Dist., 48 F.Supp.2d
681, 698 (W.D. Tex. 1999). A child need not “improve in every area to obtain an educational
benefit from his IEP.” Bobby R., 200 F.3d at 350.

11

teachers, complaining that one could not explain terms or give examples of the
techniques applied in the classroom. The record, however, establishes that the
teacher was properly credentialed and that she was merely unable to recall
specific examples.

R.P. also relies upon a review of AHISD’s educational

programming for students with autism generally to conclude that AHISD must
have failed R.P. specifically. That leap fails to establish a denial of R.P.’s right
to a FAPE.
R.P.’s parents complain that the ARD developed a BIP without conducting
a Functional Behavioral Assessment. The Court is unsure what R.P.’s parents
are alleging. By all accounts, R.P. is a model student and her only issues are
those related to her disabilities. A FBA was not required, and even if one was
required, R.P. fails to establish that such an omission resulted in the denial of
a FAPE.
Finally, R.P. alleges that the IEP was “vague, immeasurable and
repetitive,” and lacked specificity in setting forth her time to be spent in general
education. Again the Court is unsure of her parents’ complaint. At one point in
time they requested that R.P. be given additional special education time. Now
it appears that they are claiming that she should be provided more time in
general education classes.

In any event, R.P. fails to establish that any

vagueness resulted in the denial of a FAPE.
Conclusion
After conducting its own review of the administrative record in this case,
the Court finds that R.P. received a FAPE in the least restrictive environment.
12

Plaintiff has failed to meet her burden of persuading the Court that the Hearing
Officer's Determination of no denial of a FAPE was wrong.
“We sympathize with [R.P.’s] family and do not question the enormous
burdens they face. Our job, however, is to apply the law as Congress has written
it and the Supreme Court has interpreted it. Though IDEA is certainly evidence
that Congress intends that States, acting through local school districts, provide
assistance to disabled students and their families, the assistance that IDEA
mandates is limited in scope. The Act does not require that States do whatever
is necessary to ensure that all students achieve a particular standardized level
of ability and knowledge. Rather, it much more modestly calls for the creation
of individualized programs reasonably calculated to enable the student to make
some progress towards the goals within that program. The findings of [the
hearing officer and our de novo review] indicate that this standard has been met
here.” 9
Defendant's Motion for Summary Judgment (doc. no. 21) is granted. R.P.'s
motion to supplement the administrative record (doc. no. 29) is denied.
The Clerk is directed to enter a Judgment in favor of Defendant.
Defendant is awarded costs and shall file a bill of costs in the form required by
the Clerk of the Court, with supporting documentation, within fourteen days of
the Judgment.

9

Thompson R2-J School Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1155 (10th Cir.

2008).

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It is so ORDERED.
SIGNED this 9th day of August, 2011.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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