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D.L. v. St. Louis City School District

United States District Court, E.D. Missouri, Eastern Division

July 2, 2018

D.L., et al, Plaintiff,
v.
ST. LOUIS CITY PUBLIC SCHOOL DISTRICT Defendant.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE.

         Minor 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).

         The 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.

         I find 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.

         I. BACKGROUND

         A. Medical History and Diagnoses

         D.L. is 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.)

         D.L. 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 Psyschiatry at Washington University's School of Medicine, and Gregory Robinson at Mercy Children's Hospital 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 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).

         In 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. (AHC Decision, ECF No. 27-23 at 5). 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.)

         B. Educational History and Placements

         D.L.'s 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.

         As 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. (AHC Decision, ECF No. 27-23 at 3). 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.” (April 2013 IEP, ECF No. 27-76 at 6). 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. (April 2014 IEP, ECF No. 27-78 at 6). According to the IEP, “[t]his [environment] helps when there are emotional breakdowns and situations occurring in his life.” (Id.) The April 2014 IEP also documents that “[s]ensory processing is a big issue for [D.L.] He requires sensory support throughout the day to ensure a successful day.” (Id. at 7).

         For 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).

         D.L.'s 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).

         During 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).[1] 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. at 14).

         D.L.'s 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 its enrollment.

         D.L. 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).

         Reflecting 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).

         On 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.

         C. November 2016 Meeting and IEP

         D.L.'s 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.

         Instead, 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.

         At the 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, ...


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