United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL, UNITED STATES DISTRICT JUDGE.
plaintiff D.L. appeals a ruling from the Missouri
Administrative Hearing Council (AHC). The AHC affirmed the
St. Louis City School District's (the
“District”) decision to place D.L. in a school
for children with behavioral and emotional challenges called
Education and Therapeutic Support at Madison
(“Madison”). D.L. is an 11-year old boy (at the
time of filing) who has been medically diagnosed with autism,
post-traumatic stress disorder (PTSD), disruptive mood
regulation, encopresis and enuresis. His parents and next
friends the Landons seek a judgment reversing the AHC
decision and ordering tuition reimbursement for their private
school placement under the Individuals with Disabilities
Education Act (IDEA).
Landons argue that the Commissioner was wrong in finding that
(1) Madison was an appropriate placement, (2) D.L. did not
require occupational therapy, and (3) the Landons were not
entitled to tuition reimbursement. The respondent St. Louis
Public School District (the “District”) argues
that (1) I do not have jurisdiction to hear this appeal, (2)
the Landons have not met their burden to overturn the
decisions of the District and the AHC, and (3) that
D.L.'s Individualized Education Program (IEP) was
sufficient to provide him with a free appropriate public
education (FAPE) as required under the IDEA.
that the District's actions were not reasonably
calculated to provide D.L. with FAPE, but only with respect
to the period of time where Madison had no history of, nor
preparation for, autism-related educational supports.
D.L.'s witnesses, past IEPs, and the District's
occupational therapist provide convincing evidence of
D.L.'s autism-related learning needs. Neither the
District nor the AHC provide a convincing explanation for
contradicting or ignoring those needs. In contrast, I find
that the Landons chose an appropriate private school
placement for D.L. As a result, I will order the District to
reimburse the Landons for their private school placement for
the limited period of time where Madison had no
autism-related educational supports.
Medical History and Diagnoses
an 11-year old child in the care of his parents, the Landons.
He suffered unknown trauma before the Landons adopted him and
is diagnosed with autism, post-traumatic stress disorder
(PTSD), disruptive mood regulation, encopresis and enuresis.
(AHC decision, ECF No. 27-43 at 2.)
has received varying medical and educational diagnoses. In
January 2012, he was diagnosed by Our Little Haven with
autistic disorder and neglect of child including
“sensory processing disorder - audio and
tactile.” (Id.) Our Little Haven also noted
that D.L. has behavioral problems that are typical of
children with high functioning autism including
“oppositional defiant symptoms and anger
problems.” (Id. at 3). Dr. Constantino, the
director of the Division of Child Psyschology at Washington
University's School of Medicine, and Gregory Robinson at
Mercy Children's have also diagnosed D.L.'s condition
as autism spectrum disorder, (Letter from Dr. Constantino,
ECF No. 27-75 at 17; Diagnostic Evaluation, ECF No. 27-41 at
pp. 5-6). Dr. Constantino has explained that Devin's
autism “profoundly affect[s]” his educational
performance. (AHC Hearing Transcript, ECF No. 27-27 at 306).
D.L. is “one of the most damaged, affected
children” he has ever seen. (AHC Hearing Transcript,
ECF No. 27-27 at 43).
addition to his medical diagnosis, D.L. has received
educational diagnoses as defined by the state of Missouri.
Missouri school districts use educational diagnoses to
develop students' individualized education plans (IEP)
and otherwise meet their educational needs. At the time of
the events in this lawsuit, D.L. had an educational diagnosis
of Other Health Impairment (“OHI”), a broad
category that includes emotionally disturbed students.
Despite his medical diagnosis of autism, D.L. has not
received an educational diagnosis of autism. In March 2014,
the Landons requested that D.L. be reevaluated for an
educational diagnosis of autism. (ECF No. 27-23, at 5, AHC
Decision). The resulting assessment concluded that D.L. had
“difficulty with emotional regulation when he did not
get what he wanted, ” that he needed “continuous
sensory support … throughout the day, ” that he
had appropriate form, content, and use of language, and that
he met the criteria for “Other Health Impairment”
(OHI), but not for autism. (Id.)
Educational History and Placements
educational history demonstrates inconsistent progress in
behavioral, educational, and social health. Between
D.L.'s first through fourth grade years, the District
conducted six IEP assessments (dated April 2013, April 2014,
June 2014, April 2015, May 2016 and November 2016). Each IEP
explains D.L.'s behavioral, educational, and social
progress in the previous school year, sets goals, and makes
recommendations for the following school year.
documented by the IEPs, D.L. attended kindergarten
(2012-2013) and first grade (2013-2014) at Epworth, a private
school for students with behavioral problems. According to
the 2013 and 2014 IEP, D.L.'s academic progress at
Epworth was challenged by his emotional behavior, anger
management, ability to adapt to changes, defiant behaviors,
and poor social skills. (ECF No. 27-23, at 3, AHC Decision).
He displayed “inappropriate behaviors when he [did] not
get what he want[ed], when something [was] taken away, or he
[did] not want to work.” (ECF No. 27-76, at 6 April
2013 IEP). This behavior included disruptive noises and
emotional outbursts, knocking over chairs, striking his head
against the wall, verbal abuse, and soiling or defecating
himself. Id. Among other recommendations, the April
2014 IEP notes that “[a] therapeutic environment is
very important, ” for D.L. According to the IEP,
“this [environment] helps when there are emotional
breakdowns and situations occurring in his life.” The
April 2014 IEP also documents that “[s]ensory
processing was important throughout the day, ” for D.L.
D.L.'s second grade year, the June 2014 IEP amendment
recommended that he move from Epworth to Mullanphy Elementary
School, a public school with support services for students
with educational disabilities. The Landons supported this
change. They were concerned that D.L. had become
overstimulated and nonverbal at times in the special
education classrooms at Epworth. During his second grade year
at Mullanphy, D.L. was primarily in a “self-contained
classroom for students with autism.” (AHC Decision, ECF
No. 27-23 at 8). D.L. made progress in several areas during
this year. He “usually respond[ed] well when boundaries
[were] set and when he [was] treated no differently than any
other child, ” and “[he] ha[d] the ability to sit
and perform tasks for [a] 30 minute session with minimal
prompts, especially when it [was] something he really
want[ed] to do… .” (ECF No. 27-84 at 7).
problematic behaviors continued at Mullanphy, however, and
become more threatening in some ways. In kindergarten, D.L.
made threats to harm himself. In first grade, he made threats
to harm his teachers. In second grade, he made threats to
harm his fellow students as well. (AHC Decision, ECF No.
27-23 at 10). He also demonstrated “definite
dysfunction” regarding his overall ability to process
sensory input throughout the school day, ” and the IEP
recommended that sensory supports continue to be available to
him. (Id. at 9-10).
the third grade, D.L. regressed in his social interactions
and personal health. (Id. at 13). At the beginning
of the year, he was placed in a cross-categorical classroom
with high functioning students of varying educational
disabilities. (Id. at 11). He was hospitalized four
times due to suicidal ideation, aggression, outbursts, and
other behavioral and emotional challenges. (Id. at
11-14). D.L. also became less responsive to some
routines and supports. (Id. at 13). At times, he
simply refused to do certain tasks. (Id.) During
this time, the Landons explored several private school
placements for D.L., but they were unable to obtain a private
placement before the next school year started. (Id.
started his fourth grade year at Mullanphy with a string of
violent incidents. (Id. at 14). He spent the first
two weeks in a cross-categorical special education classroom
at Mullanphy. (Id.) He threatened to kill his
teacher at least eight (8) different times in the first week,
bit staff and teachers several times, threatened to kill
other students and staff, and even “threatened to kill
his entire school.” (Id.) In the second week,
he kicked, punched, pinched, and head-butted a teacher who
blocked him from fighting another student. (Id.)
Later in the week, he escalated to violent behavior without
any specific triggers. (Id.) In response to this
behavior, the District scheduled an IEP meeting for September
14, 2016. (Id.) Before the meeting was held,
however, the Landons were able to place D.L. in a residential
educational program Great Circle. They cancelled the meeting,
and without their knowledge, the District removed D.L. from
attended Great Circle, a residential treatment program and
school environment, from September 6 to November 4. He was
enrolled in a class with ten students, predominantly those
diagnosed with autism. While at Great Circle, D.L.
“made some progress… but continued to have
difficulties such as refusing to complete work, biting
himself and staff members, kicking the wall, throwing his
shoes, and banging his head against the wall.”
(Id. at 16). His “negative behaviors escalated
when asked to stop engaging in a preferred activity.”
(Id. at 17).
on his challenges during this time, some Great Circle staff
came to believe that a different placement would be better
for D.L. (Id. at 19). They stated that they believed
that D.L.'s behavior was not based on autism, that he was
not responsive to sensory supports, and that he should be
placed in a program for children with emotional disturbances.
(AHC Hearing Transcript, Doc. 27-27 at 101, 152, 201). In
contrast, the Landons wanted D.L. stay in the non-residential
day program at Great Circle after he was discharged from
residential treatment. (AHC Decision, ECF No. 27-23 at 20).
November 4, 2016, Great Circle discharged D.L. Three days
later, on November 7, 2016, the District re-enrolled D.L. and
held his IEP meeting the same day. The recommendations of the
eventual IEP are the subject of this action.
November 2016 Meeting and IEP
November 2016 IEP was created at a time of disagreement,
controversy, and communication breakdowns among D.L's IEP
team. On November 3, 2016, before the IEP meeting, the
Landons gave the District a letter describing D.L.'s
recent challenges and Dr. Constantino's recommendations
for D.L. The recommendations included a proactive sensory
diet, an autism-based educational program, and accommodations
that avoid extremely loud and crowded places. The letter also
recommended that D.L. be enrolled in “[a] program that
addresses both the ADHD and Autism components of [his]
educational diagnosis, [and] not a program geared towards
children with emotional disturbances and behavioral
disorders.” (ECF No. 27-28 at 13-14). The District held
the IEP meeting on November 7, 2016. Fifteen people
participated in the meeting, including eight in-person
attendees and seven people who participated by telephone.
(Nov. 2016 IEP, ECF No. 27-86 at 5-6). During the meeting,
the Landons advocated that D.L. be placed in a Great Circle
classroom for children with emotional disturbances. The IEP
team voted against this possibility.
the IEP team voted to place D.L. at a public separate school
for children with behavioral and emotional disturbances. (AHC
Decision, ECF No. 27-23 at 21-22). The public separate school
that fit this recommendation was Madison.
time of the IEP meeting, Madison was in its second year of
operation. The behavioral program at Madison was designed in
part by its current and original program director, Marvin
Echols. (Hearing Transcript, ECF No. 27-27 at 471). According
to the Landons “no student with autism and no student
with a developmental disability had ever attended”
Madison. (Petitioner's Proposed Findings of
Fact, ECF No. 32 at 13). In Echols own admission, he does not
“know a lot about autism” and has no experience
teaching students with autism. (Hearing Transcript, ECF No.
27-27 at 495). At the time the Landons filed their due
process complaint, Madison also had no sensory room to help
students with autism prepare for classes or prevent
“meltdowns.” (Hearing Transcript, ECF No. 27-27
at 498). By April 6, ...