United States District Court, D. Idaho
GUADALUPE RODRIGUEZ and JOSE LOPEZ, on behalf of themselves and as legal guardians and parents of C.L., a minor individual with disabilities, Plaintiffs,
INDEPENDENT SCHOOL DISTRICT OF BOISE CITY, NO. 1, Defendant.
MEMORANDUM DECISION AND ORDER
CANDY W. DALE, District Judge.
Before the Court is the Motion for Summary Judgment (Dkt. 24) filed by Defendant, the Independent School District of Boise City, No. 1 (BSD), in this action under the Individuals with Disabilities Education Act (IDEA). 20 U.S.C. § 1400 et seq. Plaintiffs Guadalupe Rodriquez and Jose Lopez filed this administrative appeal on behalf of themselves and as parents of C.L., the disabled student at the center of this lawsuit. C.L.'s Parents generally allege that BSD violated the IDEA by failing to provide C.L. a free appropriate public education, or FAPE, during the 2011-2012 school year.
C.L.'s Parents further claim Hearing Officer Jean Uranga (HO Uranga) committed several legal and factual errors in her June 21, 2012 decision, which found BSD did not violate the IDEA and denied all of Parents' requested relief. BSD requests that the Court affirm HO Uranga, grant summary judgment in favor of BSD on all of C.L.'s and his Parents' claims, and dismiss the Complaint with prejudice. After careful review of the administrative record, the additional evidence, relevant authorities, and the parties' written and oral arguments, the Court will affirm in part and reverse in part HO Uranga's decision and deny BSD's motion for summary judgment.
1. Factual History
C.L. is a 15-year-old student diagnosed with Autism Spectrum Disorder and Anxiety Disorder. His autism results in significant cognitive and developmental deficits. For example, C.L.-who has an approximate IQ of 40-often communicates his wants and needs in two and three word phrases. Due to his disability, C.L. was found eligible for and received special education from BSD under an Individualized Education Program (IEP) developed under the IDEA.
During the 2010-2011 school year, C.L. attended sixth grade at Garfield Elementary School within BSD. As contemplated in his IEP, C.L. received special education and related services in the structured learning center at Garfield, a self-contained program for students with autism and behavioral issues. In December of 2010, BSD conducted its three-year reevaluation of C.L. As part of that reevaluation, BSD conducted a Functional Behavioral Assessment (FBA) and prepared a Behavioral Intervention Plan (BIP) to address C.L.'s problematic behaviors at school.
The FBA, dated December 12, 2010, was prepared by a team that included teachers, therapists, a psychologist, and C.L.'s Parents. (Dkt. 16, Ex. 510.) The FBA notes that C.L. is frequently noncompliant, impulsive, and may wet or soil himself when angry. Other behaviors include difficulty keeping his hands to himself, hitting, kicking, pushing, screaming, vulgar language, and exposing himself. The FBA theorizes that the purpose of C.L.'s behaviors is to attract attention from adults and peers. In addition, the FBA provides a variety of intervention strategies for BSD staff, such as limiting unstructured time, spending time in a "cool down" area when problem behaviors occur, reminders about personal space, and rewards and penalties for behaviors using preferred objects or sensory activities.
Also in December of 2010, BSD found that C.L. continued to be eligible for special education and related services under the disability category of "Autism Spectrum Disorder." (Dkt. 16, Ex. 507.) A revised IEP, dated December 15, 2010, was developed with input from C.L.'s Parents, his teachers, and BSD staff. The IEP notes that C.L.'s autism causes anxiety and behavioral issues, as well as significant impairments in an array of academic and developmental areas. Because of his special needs, the IEP contemplates that C.L. would continue to receive special education and related services in a structured learning center. The IEP also notes that C.L. "has a lot of anxiety[, which] prevents him from participating in many new tasks and situations." (Dkt. 16, Ex. 512 at 8.)
Under the December 2010 IEP, FBA, and BIP, C.L. began attending Hillside Junior High School within BSD in late August, 2011. Hillside houses BSD's only structured learning center program specifically for autistic junior high school students. To attend Hillside, C.L. rode a school bus to and from his home for approximately one hour in each direction.
C.L. attended class at Hillside with seven other students and five adult staff led by special education teacher, Kelsie Badger. Hillside's structured learning center is in a portable building and features a "quiet/sensory room" with headphones and other equipment available for student use. (Dkt. 16, Ex. 521.) BSD staff documented C.L.'s school activities and behaviors in a daily communication log, which was provided to C.L.'s Parents each day. (Dkt. 16, Exs. 103-105.)
Ms. Badger characterized C.L.'s behaviors at Hillside as "severe" from "day one." (Dkt. 16-44, Badger Test. 35:15-22.) Consistent with the behaviors noted in the December 2010 FBA, C.L.'s behaviors in the fall of 2011 included "hitting and kicking, exposing himself, [and] hands in his pants." ( Id. at 40:17-18.) Although the precise reason for C.L.'s behavior is unclear from the record, it is apparent that C.L. was behaving this way both at home and at school. It is also clear that C.L.'s mood medication dosage had been reduced during the fall of 2011, (Dkt. 16, Ex. 531, 532, 534, 535), and that behavioral changes are "very common" during such medication changes. (Dkt. 16-46, Kingsbury Test. 703:11-704:1.)
Beginning September 23, 2011, BSD staff maintained a detailed log of C.L.'s behaviors at school. (Dkt. 16, Ex. 530.) The purpose of the behavior log was to identify patterns and share the observations with Dr. Timothy Leavell, C.L.'s treating behavioral pediatrician. In addition, BSD attempted to address C.L.'s behaviors with various positive reinforcement techniques, as contemplated by his BIP.
C.L's inappropriate and sometimes aggressive behaviors at school continued from late September into mid-October, 2011. (Dkt. 16, Ex. 105.) At one point, C.L. stabbed Ms. Badger's arm with a pencil, puncturing the skin and leaving a mark. (Dkt. 16-44, Badger Test., 78:14-25.) On September 22, C.L. was sent home early due to his aggressive behavior towards students and his teacher. (Dkt. 16, Ex. 523.) He kicked a classroom aide hard enough to leave a mark on October 10. (Dkt. 16, Ex. 105 at 7-8.) C.L. was also sent home early on October 12 because he hit Ms. Badger in the face, leaving a handprint and causing swelling. (Dkt. 16, Ex. 523.) When C.L.'s father arrived to pick up C.L., C.L.'s father requested a meeting with BSD to discuss C.L.'s behaviors.
Friday October 14, 2011, was C.L.'s last day at Hillside. C.L. did not return to school until June of 2012. Although BSD's behavior log notes several instances of hitting, inappropriate touching, and other behaviors on October 14, (Dkt. 16, Ex. 530), Ms. Badger explained that C.L. had an "excellent day" at school because his behaviors "were minor" relative to previous days. (Dkt. 16-44, Badger Test. 77:1-9.) The following week, Ms. Badger learned of an incident during C.L.'s bus ride home on October 14, and was told the incident was the reason C.L. did not return to school.
Reports prepared by the bus driver and bus monitor indicate that C.L. repeatedly pushed buttons on the dashboard console of the bus as he was disembarking on October 14. (Dkt. 16, Ex. 625, 626.) The bus driver attempted to redirect C.L.'s attention while the bus monitor took C.L. by the right arm and physically directed him off the bus to his waiting grandmother. An investigation report prepared by the bus company's insurer indicates that a second incident occurred during the bus ride on October 14. (Dkt. 46-2.) The investigator interviewed two minors who rode the bus with C.L. and saw C.L. stand while the bus was moving. The minors reported that the bus monitor told C.L. to sit down and then pushed C.L. into the seat with his foot. Both minors characterized this contact as a moderate push, rather than a kick, and neither reported any injuries. Neither the bus monitor nor the bus driver mentioned this pushing incident in their reports, however.
Three days later, on October 17, C.L.'s mother took him to the emergency room. A report prepared by the hospital states that C.L. chiefly complained of "bilateral knee pain" and that his mother stated that C.L. was kicked by the bus driver. (Dkt. 16, Ex. 628.) The hospital report further notes a "small" abrasion on C.L.'s left elbow, as well as "mild swelling, " "slight discoloration" of the left knee and thigh, pain in both knees, but "normal ambulation." ( Id. ) C.L.'s parents declined x-rays because of C.L.'s anxiety about the x-ray machine. Ultimately, C.L. was discharged in a stable, self-ambulatory condition with instructions to return if his conditions worsened or new conditions developed.
While at the hospital, the attending physician requested that a social worker talk to C.L. and his Parents about a possible battery. ( Id. ) The social worker met with C.L. and his Parents and later contacted the police department to make a report. The Boise Police Department report prepared on October 17 indicates that C.L.'s mother wished to press charges for battery against Ms. Badger and the bus driver. (Dkt. 16, Ex. 627.) The police report states that C.L. was "pushed against the wall" by Ms. Badger and "kicked" by the bus driver. The investigating officer conducted follow-up interviews with both Ms. Badger and the bus monitor. Ms. Badger denied pushing C.L. against the wall and offered her opinion that C.L. previously had untruthfully claimed Hillside teachers and students hit him. She also and described C.L.'s at-school behavior consistent with the notes in the behavior logs. The bus monitor's statements were consistent with his report described above, and the monitor denied that C.L. fell or hit his knees on the bus. The police report was routed to the Boise City Prosecutor's Officer for review, but no further action was taken.
Also on October 17, 2011, BSD personnel began attempting to schedule a meeting with C.L.'s Parents to review C.L.'s IEP and BIP. Although C.L.'s Parents were not present, BSD went forward with the IEP team meeting on October 20. At that time, BSD personnel reviewed C.L.'s IEP and BIP, and determined that the structured learning center at Hillside continued to be the appropriate placement for C.L. (Dkt. 16, Ex. 107.)
BSD received a letter from C.L.'s father on October 26, 2011, which requested an updated FBA and a facilitated IEP team meeting. (Dkt. 16, Ex. 108.) In the letter, C.L.'s father advocated for a BIP that specifically addressed C.L.'s anxiety and behavior. The letter also stated that C.L. "is currently experiencing an enormous amount of anxiety, due to incidents that occurred at school and on the bus. As a result, he does not want to return to school at this time." ( Id. )
Acting on this request, BSD sought C.L.'s Parents' permission to conduct a new FBA and update C.L.'s BIP. (Dkt. 16, Ex. 110.) Starting November 9, 2011, and culminating on December 13, 2011, BSD conducted five facilitated IEP team meetings in an effort to update C.L.'s IEP, BIP, and FBA. C.L.'s Parents were present at each of these meetings and were assisted by a Spanish language interpreter provided by BSD. After the fifth meeting, BSD provided an updated IEP, FBA, and BIP to C.L.'s Parents on December 14, 2011. (Dkt. 16, Ex. 587.) Six days later, C.L.'s Parents rejected the proposed IEP, FBA, and BIP and objected to BSD's failure to provide C.L. homebound services during his prolonged absence from school. (Dkt. 16, Ex. 123.)
Legal counsel for C.L.'s Parents initially raised the issue of homebound services at the first facilitated IEP team meeting on November 9, 2011. However, the team did not discuss the matter because it was "not on the agenda." (Dkt. 16, Ex. 546 52:10.) At the second meeting on November 16, the team briefly discussed Parents' request for homebound services, but BSD personnel insisted C.L. could and should return to Hillside immediately. (Dkt. 16, Ex. 552.)
BSD formally rejected C.L.'s Parents' request for homebound services in a notice dated November 18, 2011. The stated reason for this refusal was that there was no documentation to indicate C.L. suffered from an "illness or accident that necessitates an absence from school for more than ten consecutive school days." (Dkt. 16, Ex. 116.) BSD maintained this position throughout the facilitated meeting process and did not formally assess whether an at-home placement would be appropriate.
On December 5, 2011, BSD received a letter from Dr. Joseph Kiehl, C.L.'s pediatrician. Dr. Kiehl recommended that C.L. receive homebound services due to his fear of returning to Hillside. (Dkt. 16, Ex. 117.) In Dr. Kiehl's opinion, homebound services would be necessary only until C.L. could be "evaluated further by Dr. Leavell and Northwest Neurobehavioral Health and a concrete plan is developed for his schooling." ( Id. ) The letter also notes C.L. would see Dr. Leavell in January of 2012.
On December 9, 2011, BSD, with C.L.'s Parents' consent, sent Dr. Kiehl a series of questions concerning this recommendation, including: "What do you see as the benefits of homebound services?" (Dkt. 16, Ex. 126.) On January 30, 2012, BSD received Dr. Kiehl's response, which stated:
Nothing, other than I thought that is what the family and the school were desiring until his IEP, behavior intervention plan, and medication plan were in place such that his disruptive/concerning behaviors could be better helped/controlled. If you ...