BOARD OF EDUCATION OF TOLEDO CITY SCHOOL DIST. v. HOREN

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ber B0564]. LeBlanc and Dykyj provided these hours — at total of 10.25 hours — over the course of the 2004-2005 school year. [Doc. 3, Ex. HH, at B00957-58].

The Horens, meanwhile, argue: "If it was found that such services were actually provided [during 2004-2005], which they weren't as evidenced by the daily care sheets, they would have been provided during the regular school day taking additional time away from [D.H.]'s education." [Doc. 47, at 4].

The IHO described his understanding of the situation:

In November 2004 the IEP team met. Because of the apparent summer [2004] miscommunication, the district offered to provide the student five hours each of direct OT and PT services during school to compensate for the two hours each OT and PT consulting services missed during summer 2004. District personnel testified to their understanding from that meeting that the [Horens] were satisfied with that compensation. The compensatory services were documented to have been provided during the 2004-2005 school year. (Ex. HH).

[Doc. 1-15, at 49].

The IHO then inappositely concluded: "The [Horens] have failed to demonstrate the student's eligibility for ESY in 2005 or 2006 under the regression standard. Thus, they have failed to prove any substantive harm that would warrant a determination that she had been denied a FAPE." [Id.].

The SLRO, meanwhile, found:

While the Horens may have been satisfied with the services themselves, they were not satisfied that the compensatory services were being offered during [D.H.]'s regular school day, when she was supposed to have been receiving the services regularly provided under her IEP. Taking [D.H.] from her regular IEP work to provide missed services amounts to an overall reduction of instructional time, which is clearly not in [D.H.]'s best interests. Further, reducing the time spent working on D.H.'s IEP activities is a denial of FAPE, and compensatory education is the appropriate remedy in this case.

[Doc. 1-19, at 18 (internal citation omitted)].

In determining the compensation required, the SLRO then held: "[D]ue to both the denial of FAPE and the protracted proceedings in this matter, in consideration of the lost educational services for [D.H.], she should be provided with six months of compensatory education, rather than just a summer." [Id. at 42].

Even according the SLRO's opinion "due weight," her finding is in error.

First, the Horens — who have the burden of proof here — argue that the Board never provided D.H. with these services, which would mean the Board did not substitute any compensatory services for D.H.'s classwork. Second, even assuming the Board provided these services, the Board presents evidence — in the form of LeBlanc [Doc. 1-10, at 720-24; Doc. 1-11, at 25-28] and Dykyj's [Doc. 1-11, at 224-25, 241-43] testimony — that the therapists provided these compensatory services during "down time" [Doc. 1-10, at 721-22] or other time "so as not to interfere with the other activities that [D.H.] engages in" [Doc. 1-11, at 242-43]. The Horens, meanwhile, present no contrary evidence, nor is there any evidence in the record to the contrary on which the SLRO could base her determination.

I therefore find that the Board's provision of compensatory services — if any — did not interfere with or take away from D.H.'s 2004-2005 normal IEP activities and goals, and thus that no denial of a FAPE resulted. Deal, supra, 392 F.3d at 854.

The SLRO thus should not have awarded the Horens any compensatory education on this issue, let alone six months' worth for the alleged improper provision of ten hours of gratuitous services during the school day. 20 U.S.C. § 1415(i)(2)(C); see also Pohorecki v. Anthony Wayne Local Sch. Dist., 637 F. Supp. 2d 547, 560-61 (N.D. Ohio 2009).

II. The April 3, 2006, IEP Meeting

The Board also contests several aspects of the SLRO's opinion regarding the April 3, 2006, IEP meeting: whether 1) the Board appealed the IHO's findings regarding the IEP meeting; 2) the IEP meeting was procedurally invalid for insufficient parental involvement; 3) if so, the procedural violation denied D.H. a FAPE; and 4) D.H. is entitled to any relief for the purported procedural violation.

A. Scope of the Board's Appeal

The SLRO found that the Board did not appeal the IHO's findings regarding the April 3, 2006, meeting. [Doc. 1-19, at 2 n. 1 ("The April 3, 2006 IEP team meeting has not been brought as an issue on appeal by either party."); 4 ("[T]he IHO Decision that TP's procedural violation substantially denying the parental participation in the August 3, 2007 IEP meeting resulted in violating [D.H.] a substantive right of FAPE in the development of the 2005-2006 school-year IEP is AFFIRMED as uncontested."); 24 n. 11 ("TPS did not challenge the IHO's finding on [the April 3, 2006, meeting] in their assignments of error, indicating they are satisfied with the IHO's finding that TPS violated the IDEA."); 42 ("The IHO's decision that TPS' denial of parental participation in the April 3, 2006 IEP meeting amounted to a violation of FAPE was not challenged in this appeal, and, thus, that decision stands.").

Because there was no "August 3, 2007," meeting, I assume that the SLRO meant the IEP meeting on April 3, 2006. Also, the SLRO's identification of the school year in question — "2004-2005" — was incorrect. It should be 2006-2007.

The Board protests that it appealed the "IHO's determination that the Board[: 1)] committed a procedural violation in connection with an IEP meeting on April 3, 2006"; and 2) "violated a substantive right of a FAPE in connection with the April 3, 2006 IEP meeting." [Doc. 1, at 6 ¶¶ 26-27]. The Board explains:

[I]t was the IHO's twice-stated determination that a substantive procedural violation, i.e., a denial of FAPE, had occurred because his interpretation was that the legal requirement was for the Board to ensure parent participation. . . . Thus, the Board did appeal to the SLRO from the IHO's finding that denial of FAPE had occurred in connection with the April 3rd meeting.

[Doc. 45, at 10-11].

The Horens disagree and summarily urge me to affirm the SLRO's findings that the Board did not appeal the IHO's determinations regarding the April 3, 2006, IEP meeting: "Clearly, the appeal notice states nothing in relation to finding the IHO decision in regard to the failure to provide FAPE based on the April 3, 2006 meeting, was erroneous. The SLRO was correct. TPS did not appeal the decision on the basis of FAPE." [Doc. 32, at 7 (emphasis added)].

The Board's notice of appeal to the SLRO states, in relevant part:

TPS appeals the IHO's "statement § of law" to the effect that a school district has an obligation to ensure the participation of parents at an IEP meeting. Examples include the IHO's statements, but are not limited to, Decision page 35 ("Its [Congress's] admonition for the school district is to ensure the participation of Parents."), and, Decision page 41 ("It is the obligation to ensure participation by scheduling a meeting a mutually agreed upon time and place or if neither parent can attend, to ensure parent participation through other methods which is lacking for the April 3rd meeting."). TPS asserts that the IHO statements are inconsistent with applicable laws and regulations, including but not limited to OAC 3301-51-07(F).

[Doc. 1-16, at 1].

I agree with the Board. IDEA states that "any party aggrieved by the findings and decision rendered in [an IHO] hearing may appeal such findings and decision to the State education agency." 20 U.S.C. § 1415(g). Ohio law explains further: "The notice [of appeal] shall set forth the order appealed and the grounds of the party's appeal." Ohio Admin. Code 3301-51-05(K)(14)(b)(i)( a).

While no cases explain the specificity required of this exact Ohio Administrative Code provision, the Ohio Supreme Court has recently interpreted identical "grounds of the party's appeal" language in another administrative context and held that reciting the standard of review is inadequate. Medcorp, Inc. v. Ohio Dep't of Job Family Servs., 121 Ohio St. 3d 622, 626-27 (2009). In that case, the court explained:

[W]e hold that to satisfy the `grounds of the party's appeal' requirement in [O.]R.C. 119.12, parties appealing under state statute must identify specific legal or factual errors in their notices of appeal; they may not simply restate the standard of review. While an extensive explanation of the alleged errors is not required at that point in the proceedings, the stated grounds must be specific enough that the trial court and opposing party can identify the objections and proceed accordingly, much in the same way that assignments of error and issues for review are presented in the courts of appeals and propositions of law are asserted in this court.

Id. (emphasis added).

Here, the Board certainly presented more than merely the standard of review. It pointed to the April 3, 2006, IEP meeting — as evidenced by the example quotations cited in its notice of appeal — and argued that requiring parental presence at that meeting was in error. Its failure to specifically identify that error as a procedural one or to tie that violation to a denial of a FAPE do not waive those issues, because "an extensive explanation of the alleged errors is not required at that point in the proceedings." Id. The Board's language was adequate to "identify [the] specific legal or factual errors" regarding the April 3, 2006, IEP meeting, id., and the SLRO's determination to the contrary was erroneous.

I thus find that the Board adequately appealed all issues regarding the April 3, 2006, IEP meeting and reach the merits of the Board's claims on this issue.

I find no need to remand to SLRO for consideration of this issue for two reasons. First, the record before me is exhaustive on this point and adequate for my consideration of the issue. Second, the IHO assessed the issue, so I have at least one level of state administrative review to draw on for my analysis. E.g., Maynard ex rel. G.M. v. District of Columbia, ___ F. Supp. 2d ___, 2010 WL 1292866, *6 n. 6 (D.D.C.) (finding remand to state hearing officer when record and findings adequate for district court's review); Stanton ex rel. K.T. v. District of Columbia, 680 F. Supp. 2d 201, 205 (D.D.C. 2010) ("Where the administrative record lacks pertinent findings and where neither party requested consideration of additional evidence, the [court] may determine that the appropriate relief is a remand to the hearing officer for further proceedings." (internal quotations and citations omitted)).

B. Adequate Parental Involvement

The Horens argue that the April 3, 2006, IEP meeting was procedurally invalid because of their absence therefrom. They assert that they did not receive the invitation, [Doc. 32, at 8 ("[T]he Horens did not receive [the IEP meeting invitation].")], but also seem to suggest that they simply did not have time to prepare for the meeting [Id. at n. 4 ("If the regular mail services is to be followed, that would mean the Horens received the invitation at the earliest, on Thursday — March 30, just 4 days before the meeting was to occur. No[t] only would such a time frame not provide enough notice for the Horens under the law, it is inconsistent with them being able to obtain [D.H.]'s educational records for review for them to be able to participate.")].

The Board, meanwhile, contends that the meeting was procedurally valid because the Horens knew of it, but chose neither to attend nor to reschedule. The Board notes: "It was not unusual for the Horens to be unresponsive to contacts requesting convenient dates for meetings, or even written invitations to IEP meetings." [Doc. 45, at 9]. The Board further argues that "[t]he Horens could have scheduled a further meeting as they sought in their January 2006 letter . . . or they could have sent written suggestions for the April 3rd IEP meeting, as they also did in January. The Board submits that it gave them the opportunities to participate." [Id. at 12].

IDEA regulations require that "[e]ach public agency must take steps to ensure that one or both of the parents of a child with disability are present at each IEP Team meeting or are afforded the opportunity to participate[.]" 34 C.F.R. § 300.322(a); see also 20 U.S.C. § 1414(d)(1)(B)(i) (defining an IEP team to include the child's parents). However, "[i]f neither parent can attend an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls[.]" 34 C.F.R. § 300.322(c). The regulations, nevertheless, also provide:

Conducting an IEP Team meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such as — (1) Detailed records of telephone calls made or attempted and the results of those calls; (2) Copies of correspondence sent to the parents and any responses received; and (3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.

Id. § 300.322(d).

The Sixth Circuit has recognized that "the regulations expressly provide for the development of an IEP without parental involvement." Knable, supra, 238 F.3d at 765. Discussing this issue, the Ninth Circuit has held that parental refusal to meet allows a school district to hold an IEP without the parents, but that a request to reschedule does not constitute refusal to meet. Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003), superseded by statute on other grounds by 20 U.S.C. §§ 1414(d)(1)(B)(ii)-(iii); Drobnicki ex rel. Drobnicki v. Poway Unified Sch. Dist., 358 F. App'x 788, 790 (9th Cir. 2009) (unpublished disposition); see also Mr. "M" ex rel. "K.M." v. Ridgefield Bd. of Educ., 2007 WL 987483, *5-7 (D. Conn.) (holding that a district's failure to respond to a parent's telephonic request to change an IEP date, notwithstanding the parents' failure to respond to a subsequent email, violated IDEA's parental involvement regulation).

In Shapiro, the school district held an IEP meeting without the parents because it believed the parents' opportunity — but failure — to attend the meeting allowed the district to proceed without them. 317 F.3d at 1078. The district further argued that it mailed them the IEP later and allowed them to comment. Id.

The Ninth Circuit held that the school district's actions violated IDEA:

After-the-fact parental involvement is not enough [to satisfy IDEA's IEP parental involvement command]. Nor does the [district]'s inclusion of the [parents] in certain parts of the process excuse the district's failure to include the [parents] in the June 8 IEP meeting; involvement in the [IEP] `creation process' requires the [district] to include the [parents] unless they affirmatively refused to attend.

Id. (emphasis added).

On the other hand, Congress, see 34 C.F.R. § 300.322(d), and courts have recognized the practical difficulties of coordinating IEP meetings with obstinate or unresponsive parents. See, e.g., Winkelman v. Parma City Sch. Dist. Bd. of Educ., 2009 WL 4456297, *15-16 (N.D. Ohio) (finding no procedural violation for the failure to have parents at an IEP meeting where the district "twice communicated with [the parents] in some fashion before the start of school offering to meet with them about an IEP for [the student] and those communications generated no response"); E.P. v. San Ramon Valley Unified Sch. Dist., 2007 WL 1795747, *7-11 (N.D. Cal.) (finding no procedural violation for the failure to have parents at an IEP meeting where the district "made a good faith effort to schedule a `mutually agreed on time and place' for the final IEP meeting," and the parents were obstinate and did not demonstrate an "absolutely inability to attend the IEP"); Mr. G. v. Timberlane Reg'l Sch. Dist., 2007 WL 54819, * 11 (D.N.H.) ("[A]fter agreeing to the terms of the IEP, plaintiffs time and again neglected to attend team meetings of which they were informed and to which they were invited. When they did attend meetings, Ms. K. often made sweeping and unqualified declarations of what she felt EG needed and refused to engage in a dialogue with the District regarding EG's education. Instead, she withdrew from the meetings and threatened immediate appeal to a Due Process hearing. I conclude that the District made all reasonable efforts to secure [the parents]' participation and reasonably proceeded without them[.]").

Here, the evidentiary record is mixed. Like the parents in Timberlane, the Horens sometimes failed to respond to the Board's attempts to schedule IEP meetings, and even to attend meetings. [Doc. 1-10, at 150-52, 352-62; Doc. 3, Exs. X, at B00462-65; Y, at B00476-77; AA, at B00941].

Specifically, in the lead up to the April 3, 2006, IEP meeting, TPS sent the Horens a letter indicating that the next IEP would be in March and seeking a convenient date. [Doc. 3, Ex. W, at B01141-42, B01153-54].

On March 27, 2006, the Board sent a written invitation to the April 3, 2006, meeting, which stated: "If you would like to schedule the conference at a different time, date, or location . . . please contact Kellie Fuelling," and included her phone number. [Doc. 3, Ex. V, at B00446]. The Board submits evidence that the Horens called to cancel the IEP meeting, and indicated that they only desired to meet with Felt on April 3, 2006. [Doc. 1-13, at 20-21, 111, 470-72; Doc. 3, Ex. V, at B00447-48]. They appeared to suggest they would reschedule the IEP meeting at a better time for them, but they never did so. [Doc. 1-13, at 20-21; Doc. 3, Ex. V, at B00447-48].

At the February 28, 2006, meeting, the Horens had expressed a desire to sit down with Felt before attending any further IEP meetings.

Instead, the Horens met with Felt and Reuss in the morning of April 3, 2006. [Doc. 1-10, at 241; 1-13, at 472-3]. Reuss left early, and said nothing to the Horens regarding the IEP meeting to be held later. [Doc. 1-10, at 254; Doc. 1-13, at 473-75]. Reuss explains that she said nothing to the Horens because, "when I left the [] meeting [with Felt], I didn't know if [the Horens] would then meet with the IEP team because I had left the building." [Doc. 1-13, at 475]. Reuss states her silence stemmed from a belief that one meeting — the meeting with the Horens and Felt — would transition into the IEP meeting later in the day: "My understanding is I was there for the [Horens-Felt] meeting, I had no idea how long it would take, then we would go into an IEP meeting." [Id. at 478].

The following exchange sheds further light on Reuss's understanding:

[Joanne Horen:] Where would we meet for the [April 3, 2006] IEP meeting?

[Reuss:] In the room you were in for the IEP/MFE meeting [with Felt]. The [IEP] team would come down to you.

[Joanne Horen:] Did you meet with the IEP team?

[Reuss:] Yes, but in that room they said you had left.

[Joanne Horen:] What time was that?

[Reuss:] I don't know, sometime.

[Joanne Horen:] So you came down to have an IEP meeting sometime after 10:00 and looked for the Horens; is that what you testified?

[Reuss:] Came back to EduCare after my other meeting outside of the building.

[Joanne Horen:] So the IEP team was meeting in a room that we had previously met with Doug [Felt]; is that what you're saying?

[Reuss:] No, I believe I went down to the classroom and they said you did not stay.

[Joanne Horen:] Did they indicate to you that we had talked to them at all about if we missed an IEP meeting?

[Reuss:] No.

[Doc. 1-13, at 475-76].

Regardless of misunderstandings, there is no evidence that any member of the IEP team that met on April 3, 2006, informed the Horens that the meeting was still taking place that day, in the school where the Horens met with Felt and Reuss. [Id. at 476-82; see also id. at 487 ("[Board's counsel]: So do you — you have no knowledge whether any member of the IEP team besides yourself told the Horens that there was going to be an IEP meeting? [Reuss]: No, I don't know, that's right, I have no knowledge.")].

Fuelling explained why the IEP meeting continued notwithstanding the Horens' attempt to cancel it:

Because like we — it wasn't like a huge sit down meeting. We already had all of our preplanning meetings, we all submitted what goals and objectives we wanted to work on, so when [the Horens] canceled, we said does everybody's IEP still stand, do we want any changes in this, [and] we all agreed that that was fine but then we were going to hold it [open] for you to come in and discuss it in case we needed to make any changes after that.

[Doc. 1-13, at 111].

The IHO described what he saw to be the point of confusion between the parties on this issue:

Both parties during their testimony used the word "cancel" to describe the language [the Horens] used in person to person meetings or phone calls in reference to the MFE conference and/or the IEP meeting scheduled for April 3, 2006. The word "canceled" is also written in various notations recording contacts made and results of the contacts again pertaining to these two meetings. Apparently, [the Horens'] use of the word "cancel" meant that the [Horens] were canceling a particular meeting that they received an invitation to attend, expecting that the meeting would be scheduled later. On the other hand, the school district's apparent understanding meant that [the Horens] were not going to attend the meeting and that a second meeting would be scheduled for the parents['] participation. Mrs. Reuss testified to the fact that she has 600 students in her district that fall under [IDEA]. For scheduling purposes, it is therefore understandable that the school district would proceed with the scheduled meetings unless another time and location was mutually agreed upon in a timely manner. Any proposed rescheduling on the part of the [Horens] not timely communicated before the first scheduled date would not forestall the school district in having the meeting. A seeming innocent word appears to have been the cause of a lot of confusion, frustration and apprehension on the part of both parties.

[Doc. 1-15, at 40-41].

Relying on his flawed belief that the school district had to ensure actual parent participation as opposed to the opportunity for parent participation, [Doc. 1-19, at 39-40 (the SLRO's finding that the IHO erred on this point)], however, the IHO ultimately concluded:

Notices sent out to the [Horens] for the April 3rd meeting sufficiently notified [the Horens] of the meeting.

Regarding the meeting of April 3rd, the form of notification was present but the acceptance of the team to the wishes of the [Horens] was not. There was no attempt on the part of the school district to seek rescheduling of the date as before. There was no attempt of communication of the date of the meeting when the [Horens] were in the building and as decided in the first issue above, the [Horens] were not put on notice of the change of placement. Notification is more than mere form. It is the obligation to ensure participation by scheduling a meeting a mutually agreed upon time and place or if neither parent can attend, to ensure parent participation through other methods which is lacking for the April 3rd meeting.

[Doc. 1-15, at 40-41].

While the IHO's interpretation of the law was flawed, I find well taken — and assign "due weight" to — his point that the other members of the IEP team — in particular, Reuss — could have done more to see if the Horens could attend the IEP meeting, notwithstanding any prior indications to the contrary. This is especially so because the IEP meeting took place later the same day in the same building as the Horens' meeting with Felt and Reuss.

Drawing on the language and reasoning of Shapiro, I thus find that — even viewing the facts in the light most favorable to the Board — it did not do enough to attempt to include the Horens at the April 3, 2006, IEP meeting to satisfy its obligation under 34 C.F.R. § 300.322. Against the background of confusion and the parents' attempts to either cancel or reschedule, I find the Board should have attempted to accommodate the parents by rescheduling, or at least discussed the continued existence of the meeting when the parents were in the same school on the same day near the same time.

Most simply put: the Horens had asked for a postponement. They had received no definitive response to that request. In that circumstance, the Board at the very least should have either rejected the request in a timely manner or confirmed with the Horens the morning that it planned to proceed with the IEP meeting as scheduled later in the day. The Board thus violated the procedures set forth in IDEA. Deal, supra, 392 F.3d at 853.

C. Denial of a FAPE

Finding that the Board committed a procedural violation, however, does not end my inquiry. Given the Board's procedural violation, there remains the issue of whether that violation was harmless, or whether it denied D.H. a FAPE. Id. The Sixth Circuit has stated:

[A] procedural violation of the IDEA is not a per se denial of a FAPE; rather, a school district's failure to comply with the procedural requirements causes substantive harm to the child or his parents. Substantive harm occurs when the procedural violations in question seriously infringe upon the parents' opportunity to participate in the IEP process. In addition, procedural violations that deprive an eligible student of an [IEP] or result in the loss of educational opportunity also will constitute a denial of a FAPE under the IDEA.

Knable, supra, 238 F.3d at 765-66 (emphasis added) (internal citations omitted).

The court in Knable then held that failure to convene an appropriate IEP conference with effective parental participation may cause such "substantive harm." Id. at 766.

Inadequate parental involvement, as at issue here, is the heart of "serious[] infringe[ment] upon the parents' opportunity to participate in the IEP process." Id. at 765. While the Board adequately involved the Horens in drafting the January, 2006, IEP, [Doc. 1-19, at 27-29], and then held an additional meeting on February 28, 2006, [Doc. 1-15, at 17-18], the Board did not adequately involve the parents in the April 3, 2006, IEP meeting, at which the Board changed D.H.'s placement from EduCare to Larchmont.

This is especially so because IDEA requires "that parents be provided prior written notice whenever the school district proposes . . . to initiate or change the educational placement of the child." Berger v. Medina City Sch. Dist., 348 F.3d 513, 525 (6th Cir. 2003) (citing 20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503).
Moreover, as the IHO noted, Ohio law likewise requires parental notice regarding impending changes of placement: "Informed parental consent must be obtained before making a change of placement of a child with a disability." Ohio Admin. Code 301-51-05(E)(5)(b). This requirement, however, contains an exception for when the school district demonstrates "reasonable efforts . . . to obtain consent, and the child's parent has failed to respond." Id. 3301-51-05(E)(5)(c)(i).
This exception does not apply here because there is no evidence that the Board mentioned that the change of placement would take place at the April 3, 2006, IEP meeting.

This change of placement is particularly significant because Larchmont is less restrictive than EduCare and lacks the same medical staff as EduCare. See Part III, infra. As the IHO noted, "[s]hould [the Horens] have been put on notice that the school district was contemplating a change in placement at the April 3rd IEP meeting, the [Horens] would have had the opportunity to request an [independent educational evaluation and] . . . to supplement her [medical] file." [Doc. 1-15, at 35]. D.H.'s "medical record at the time the educational staff made its [change of placement] decision was incomplete." [Id.].

D.H. thus suffered "substantive harm" from — and was denied a FAPE by — the Board's failure to involve her parents adequately in the April 3, 2006, IEP because it changed her placement without adequate input from the Horens.

I, however, decline to rest my decision in this regard on any discussion of predetermination, unlike the IHO. [Doc. 1-15, at 33-36].
"Predetermination" is "pre-select[ion of] a particular program for [a student before creating his or her IEP,] regardless of [his or her] demonstrated individual needs." Nack, supra, 454 F.3d at 610 (citing Deal, supra, 392 F.3d at 855).
The Horens have not demonstrated adequate evidence of predetermination. IEP members' discussions prior to an IEP meeting regarding a possible change in placement [Doc. 1-13, at 493-512] are entirely proper, so long as no "final determination [is] made prior to the IEP Team meeting." N.L. v. Knox County Schs., 315 F.3d 688, 691 (6th Cir. 2003); see also id. at 694 ("The [IDEA] regulation[s] prohibit[] a completed IEP from being presented at the IEP Team meeting or being otherwise forced on the parents, but state[] that school evaluators may prepare reports and come with pre-formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and the parents have the opportunity to make objections and suggestions.").
This is especially so where — as here — the change of location is spurred at least in part by the parents' complaints regarding the current placement. [Docs. 1-10, at 229-32; 1-14, at 119-25].

I postpone until Part V, infra, however, my discussion of what relief is due D.H. from this denial of a FAPE.

III. LRE

I next address the substantive question of whether the Board properly determined that the LRE in which to educate D.H. was Larchmont, not EduCare.

The Horens seem to suggest that neither EduCare, see Doc. 32, at 3 ("Both the Horens and the Board felt EduCare was inappropriate for [DH]."), nor Larchmont, see id. at 4 ("The Horens, both the IHO and SLRO, (and [D.H.]'s physician) found Larchmont to be inappropriate for her."), was the LRE for D.H. They, nonetheless, adequately argue that — as the IHO and SLRO found — EduCare, not Larchmont, was the LRE for D.H. [Id., at 4-6].

Some of the parties' confusion on this issue likely stems from the fact that the SLRO was inconsistent in her language. She stated at different points that the LRE was EduCare, Doc. 1-19, at 3 ("[T]he IHO was correct in his determination that the [LRE] for [DH] was the Educare program[.]"), 40 ("The IHO found that the LRE for [DH] would be the Educare Center. . . . The decision of the IHO is correct."), and Larchmont, id. at 41 ("[T]he IHO was correct in finding that Larchmont was the LRE.").
Examination of the IHO's decision, however, reveals that the IHO found solely EduCare to be the LRE. [Doc. 1-15, at 38 ("[T]he [LRE] for the student is Educare.")]. The SLRO's statement regarding Larchmont being the LRE was thus likely just a typographical error.

The Board responds that Larchmont, not EduCare, was the LRE, because the staff at Larchmont can adequately address D.H.'s needs while educating her amidst non-disabled students.

During 2006, D.H.'s teachers and administrators discussed a change of placement for D.H. from EduCare to Larchmont. [Doc. 1-13, at 493-512]. In D.H.'s April 3, 2006, IEP meeting, the team concluded that a change of location to Larchmont was proper: D.H.'s LRE is a "[s]pecial class learning center [EduCare] in a separate facility where a small class size and limited distractions provide the opportunity for intensive, direct instruction and guided practice, until June 2, 2006; effective Aug. 30, 2006 [however, D.H.'s LRE is] a special class learning center in a school building [Larchmont]." [Doc. 3, Ex. V, at B00439].

IDEA requires that a school district educate a disabled student in the LRE appropriate given the student's needs:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A).

The Sixth Circuit has explained further: "[IDEA] does not require mainstreaming in every case[,] but its requirement that mainstreaming be provided to the maximum extent appropriate indicates a very strong congressional preference." Roncker ex rel. N.R. v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983); see also McLaughlin, 320 F.3d at 671-72 ("[T]he requirement that the school system provide a disabled child with the least restrictive environment is a mandate favoring mainstreaming, that is, the education of disabled children alongside non-disabled children to the maximum extent appropriate for the individual child.").

Here, the congressional preference for mainstreaming is relevant, as only disabled students attended EduCare, while both disabled and non-disabled students attended Larchmont. [Doc. 1-12, at 414-15].

The Horens appear to suggest that mainstreaming is only relevant when the school district considers educating a disabled student in the same classroom as non-disabled peers. [Doc. 32, at 4].
This is incorrect. So long as "the special instruction [the student] need[s may be provided] in a setting where [the student] could have contact with non-handicapped children]," such as "during lunch, recess and transportation to and from school," the mainstreaming requirement applies and favors placing the child in the school where he or she will have such contact. Roncker, supra, 700 F.2d at 1061, 1063 (emphasis added); see also Doe ex rel. Doe v. Bd. of Educ. of Tullahoma City Schs., 9 F.3d 455, 460 (6th Cir. 1993) ("The school system's proposed placement, on the other hand, offers the child an appropriate placement in a setting that is essentially a modified mainstream educational setting, allowing maximum contact with non-handicapped children.").
The congressional preference for mainstreaming thus militates in favor of a disabled student's placement at a school where that child will be in contact with non-disabled students, even if the disabled child will not attend class with non-disabled students. Roncker, supra, 700 F.2d at 1061, 1063; Bd. of Educ. of Tullahoma City Schs., supra, 9 F.3d at 460.

This preference thus militates in favor of finding Larchmont to be D.H.'s LRE. My inquiry, however, does not end there. I must still determine whether the Board could satisfy D.H.'s unique medical and supervisory needs at Larchmont, because: "the mainstreaming requirement may be overcome" in certain situations. McLaughlin, supra, 320 F.3d at 673 n. 4 (citing Roncker, supra, 700 F.2d at 1063). The Sixth Circuit has identified the factors a court should examine in so determining: "(1) whether the disabled student would benefit from inclusion from [sic] general education, (2) whether such benefits would be outweighed by benefits that are not provided in an inclusive setting, and (3) whether the disabled child disrupts the general education setting." Id.

The court in Roncker explained: "In a case where the segregated facility is considered superior [to a non-segregated facility], the court should determine whether the services which make that placement superior could be feasibly provided in a non-segregated setting. If they can, the placement in the segregated school would be inappropriate under [IDEA]." 700 F.2d at 1063 (emphasis added).

D.H.'s prior placement at EduCare was due to her medical needs, including supervision and nursing services. [Doc. 3, Exs. Y, at B00470, B00474, B00481-82; Z, at B00486, B00491, B00492, B00498-99]. Such a determination falls under the second of the three factors that may overcome the mainstreaming preference: "whether such benefits would be outweighed by benefits that are not provided in an inclusive setting." McLaughlin, supra, 320 F.3d at 673 n. 4.

In 2006, however, the Board changed D.H.'s placement on the belief that D.H. "was not receiving any [further] medical services at EduCare, any nursing services [that is]." [Doc. 1-13, at 507]. The Board claims: "[T]he Horens and [a physician] had informed the Board that DH had no medical conditions except a seizure disorder which had not manifested itself at school for at least three years and that, as of the 2005-2006 school year, no medical services were needed." [Doc. 45, at 4-5].

The Board appears to base this argument on a comparison of D.H.'s "Background Information" forms, because those for 2003-2005 explicitly mentioned seizures and administration of medication, while that for 2005-2006 did not. Compare Doc. 3, Exs. Y, at B00479 ("(4P-) Syndrom, AKA `Wolf-Hirschhorn' History of seizures, mostly late evening and fever or low grade infection induced. Very sensitive to light, eyes do not dialate."); Z, at B00496 (same), with Doc. 3, Ex. ZZ, at B00800 ("4P — Syndrome.").

The difference between the forms does not support the Board's conclusion that D.H. did not have any medical conditions that required medical supervision. This is so because, even aside from Dr. Pappas's testimony, Doc. 1-10, at 104-07, the evidence demonstrates that D.H.'s 4P-Syndrome is itself a seizure disorder, see, e.g., Doc. 3, Exs. AAA, at B00802 (noting that 4P-Syndrome is a "seizure disorder"); GGG; HHH, requiring special medical precautions. Doc. 3, Ex. DDD, at B00799 (D.H.'s school nurse's report — received by the Board "3/2006" — indicating D.H. "does have a history of seizures [and] . . . when [and] if she has one rectal diastat is given [and] 911 is to be called").

The fact that D.H.'s seizures are more infrequent or may occur at night does not mean that they will not occur at school, see id., possibly when there would be no adequate nursing care available at Larchmont. [Docs. 1-11, at 524 ("[Joanne Horen:] Do you recall telling us what the nursing services that were available at Larchmont were? [Maas:] Yes, they're two days a week, and I recall saying that if she came here we'd need to have someone available, you know, it didn't seem like — from what you told me, it did not seem like she needed a one on one nurse but she needed nursing services available because there wasn't anybody to do that procedure should she need it."); 1-12, at 35 (same)].

This concern led both the IHO and SLRO to conclude that Larchmont was inappropriate for D.H. The SLRO, for example, stated:

she has a seizure disorder which requires the immediate administration of Distat [sic] in the event of a seizure. T. 73-74. Failure to administer the Distat [sic] immediately could ultimately result [in] severe and life-threatening medical consequences for [D.H.]. T. 80-81. Because Distat [sic] must be administered rectally, both the special education teacher and the principal at Larchmont indicated that they would decline to administer the medication in the event of a seizure. This means that the administration of Distat [sic] at Larchmont would fall to the school nurse, who is only in the building two days a week. In short, [D.H.] would have to have a seizure on a day when the nurse would be present which is, of course, not something that is predictable.

TPS has indicated that nursing services could be made available at Larchmont. T. 976, 1124, 1272. However, these services were not included in the most recent IEP, which placed [D.H.] at Larchmont. Without a guarantee that full-time nursing services are available, sending [D.H.] to Larchmont would present too great a risk.

[Doc. 1-19, at 40-41; see also Doc. 1-15, at 36 ("[T]he school district initially placed the student at the Educare Center due to her fragile medical condition which required the availability of a nursing staff or trained individuals to administer Diastat.")].

The Board, however, protests: "[I]f the concern of the IHO or SLRO was the remote possibility that DH might experience a seizure during the school day, and require a nurse to administer a suppository medication, then the appropriate remedy was to require the related service of nursing to be made available in the [LRE] — i.e., at an ordinary elementary school such as Larchmont." [Doc. 45, at 8].

The Board is incorrect. The Sixth Circuit has held that a school district's theoretical ability to provide services will not save an otherwise inappropriate IEP if these services are not explicitly included in the written IEP:

As an initial matter, we note that we must limit our evaluation of Bexley's proposed IEP to the terms of the document itself, as presented in writing to the Knables. The IDEA specifically requires school districts to provide parents a formal written offer before either initiating a placement for a disabled child or otherwise providing a FAPE to the child. See 20 U.S.C. § 1415(b)(1)(C). In discussing the importance of the formal written offer requirement, the Ninth Circuit has noted that the requirement is not merely technical, but rather serves the important purpose of creating a clear record of the educational placement and other services offered to the parents. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). The written offer not only helps to eliminate factual disputes between the school district and parents about proposed placements, but also "greatly assists parents in presenting complaints with respect to any matter relating to the . . . educational placement of the child." Id. (internal quotation marks omitted). The written offer requirement should therefore be enforced rigorously. See id.

. . . .

The district court erred in relying on the IHO's finding that Bexley had the capacity to offer Justin an appropriate program. The district court should have limited its assessment to the terms of the draft IEP document itself. Although there was evidence in the record indicating what could have been provided at Harding, only those services identified or described in the draft IEP should have been considered in evaluating the appropriateness of the program offered.

Knable, supra, 238 F.3d at 768 (emphasis added).

Here, as the SLRO noted, "these [required medical] services were not included in the most recent IEP, which placed [D.H.] at Larchmont. Without a guarantee that full-time nursing services are available, sending [D.H.] to Larchmont would present too great a risk." [Doc. 1-19, at 40-41]. Examination of the 2006 IEP confirms that D.H.'s change of LRE placement did not include the required provision of any particular medical services at Larchmont. [Doc. 3, Ex. V, at B00439-42].

The SLRO thus correctly concluded that the Board's change of placement from EduCare to Larchmont was improper, and EduCare was D.H.'s LRE "because any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting" given the services available at Larchmont at the time. Roncker, supra, 700 F.2d at 1063.

In so finding, I rely heavily on the findings of the state administrative officers, [Docs. 1-15, at 36-38; 1-19, at 40-41], especially in light of evidence from medical professionals who opined on the issue [Doc. 1-10, at 104-07; Doc. 3, Ex. DDD, at B00799].
As the Sixth Circuit has noted, "the mainstreaming issue imposes a difficult burden on the district court. Since Congress has chosen to impose that burden, however, the courts must do their best to fulfill their duty." Roncker, supra, 700 F.2d at 1063. Fortunately, I need not make this determination alone: "The district courts are not without guidance insasmuch as they have the benefit of two state administrative proceedings and may justifiably give due weight to those administrative findings." Id.; see also Burilovich, supra, 208 F.3d at 566 ("Indeed, federal courts are generalists with no expertise in the educational needs of handicapped children and will benefit from the factfinding of a state agency, which is presumed to have expertise in the field.").
Indeed, the Sixth Circuit has taken particular care to ensure that district courts assessing mainstreaming accord the state administrative proceedings such "due weight." E.g., McLaughlin, supra, 320 F.3d at 673; Roncker, supra, 700 F.2d at 1062.

D.H.'s April 3, 2006, IEP — which included a change of placement from EduCare to Larchmont — thus was not "reasonably calculated to enable [D.H.] to receive educational benefits." Deal, supra, 392 F.3d at 853-54 (internal citations omitted).

IV. Other Issues

The Board contests two other findings in the SLRO's opinion: 1) upholding the admissibility of Glenn Horen's affidavit; and 2) finding D.H.'s teachers and therapists' tally sheets to be education records under IDEA or FERPA, which the Horens had a right to examine.

A. Admissibility of Glenn Horen's Affidavit

The Board protests the SLRO's admission of Glenn Horen's affidavit [Doc. 1-18], primarily describing D.H.'s condition and ongoing health problems. The Horens respond that the SLRO could properly consider the affidavit and, further, that the Board "has [presented] no evidence as to whether any weight was given the document by the SLRO." [Doc. 32, at 15].

The SLRO held: "Summarily, the . . . [Horens'] motion to supplement [with Glenn Horen's affidavit] is granted because, as an administrative officer, the relative probative value of the documents will be weighed and, if competent, has been given appropriate consideration." [Doc. 1-19, at 9 n. 5].

She, however, did not appear to rely on that affidavit. The Board points out: "The proffered affidavit, if it is relevant at all, is relevant only to a determination of DH's LRE[.]" [Doc. 45, at 19-20]. This statement appears correct, as the affidavit focuses on D.H.'s ongoing medical problems. The SLRO's LRE discussion, however, focused entirely on facts adduced at the IHO hearing, not on the affidavit. [Doc. 1-19, at 40-41].

I thus find that the SLRO did not rely on Glenn Horen's affidavit, and the Board's contention on this point is not well taken. Moreover, to the extent that the SLRO might have so relied, she was entitled — and in fact had a duty — to "[s]eek additional evidence, if necessary." Ohio Admin. Code 301-51-05(K)(14)(b)(iii)( c).

I note, parenthetically, that the Board points to virtually identical language once present at Ohio Admin. Code 301-51-08(H)(3)(c). That subsection — and that of Ohio Admin. Code 3301-51-08(F)(3) — no longer exists, and does not apply.

The Board encourages me to adopt a narrow view of "seek" and "necessary" and second-guess the SLRO on this question. I decline to do so as regards the SLRO's consideration of Glenn Horen's affidavit. Cf. Conley v. N.L.R.B., 520 F.3d 629, 639 (6th Cir. 2008) ("[A]dministrative hearings, like the proceeding before the administrative law judge in this labor dispute, are not necessarily bound by the same evidentiary strictures as are federal district courts.").

Because I must independently reexamine the evidence, however, Metro. Nashville Pub. Schs., supra, 133 F.3d at 387, and because I am bound by the Federal Rules of Evidence, I must determine whether Glenn Horen's affidavit independently deserves weight before me.

Glenn Horen's affidavit is generally consistent with the Federal Rules of Evidence, except for paragraph six, which states:

On April 20, 2007, we were informed by Dr. Eugene Izsak that "[D.H.] requires continuous observation and assessment during the school day by trained medical personnel so that seizure activity can be immediately detected and addressed. [D.H.] has a malformed and delicate trachea and is very difficult to intubate. Immediate and emergent medical intervention in the even of seizure activity is necessary to prevent the need for intubation."

[Doc. 1-18, at 1 ¶ 6].

This is clear hearsay evidence not covered by a hearsay exception, and it is inadmissible. Fed.R.Evid. 801(c); 802. Such hearsay evidence is even more troubling because it is hearsay expert testimony without a suitable basis — either for establishing reliability of the expert or the testimony itself. Fed.R.Evid. 702; 703.

The SLRO's consideration of Glenn Horen's affidavit — if she gave it any weight, which it appears she did not — was therefore proper, and I may likewise consider the affidavit in my ruling, except for paragraph six.

B. Tally Sheets

The Horens claim they are entitled to inspect Fuelling's tally sheets, because they were: 1) "kept in a cabinet room open to many individuals, not just to the service provider"; 2) "reviewed by the school psychologist"; and 3) "stolen." [Doc. 32, at 15].

The Board responds that the tally sheets are not educational records under either IDEA or the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, because they "were [solely] used [as] a memory aid, were used for the maker's own personal use, and were discarded after being incorporated into DH's records[.]" [Doc. 45, at 22].

IDEA states: "The procedures required by this section shall include . . . [a]n opportunity for the parents of a child with a disability to examine all records relating to such child[.]" 20 U.S.C. § 1415(b)(1) (emphasis added); see also Ohio Admin. Code 301-51-04(A) ("Each school district, county board of mental retardation and developmental disabilities . . . and other educational agency shall adopt and implement written policies and procedures . . . that afford parents the opportunity to examine records in accordance with the procedures of 34 C.F.R. 300.610 to 300.628[.]").

The regulations implementing IDEA — and referenced by the Ohio Administrative Code — provide further guidance as to this mandate: "Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part." 34 C.F.R. § 300.613(a) (emphasis added).

FERPA likewise recognizes a parent's right to inspect education records of any educational institution receiving federal funding:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.

20 U.S.C. § 1232g(a)(1)(A).

Moreover, "[i]f circumstances effectively prevent the parent . . . from exercising the right to inspect and review the student's education records, the educational agency . . . shall [p]rovide the parent . . . with a copy of the records requested[.]" 34 C.F.R. § 99.10(d)(1). "The educational agency . . . shall respond to reasonable requests for explanations and interpretations of the records." Id. § 99.10(c).

The applicable regulations for both IDEA, 34 C.F.R. § 300.613, and FERPA, 34 C.F.R. § 99, define "education records" under 34 C.F.R. § 99. See also Ohio Admin. Code 3301-51-04(B)(2) (defining "education records" under 34 C.F.R. § 99 also). Section 99.3(a) of Title 34 of the Code of Federal Regulations defines "education records" as "records that are (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting or the agency or institution." The section, however, states that "education records" do not include "[r]ecords that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record." 34 C.F.R. § 99.3(b)(1).

FERPA uses virtually identical language. 20 U.S.C. §§ 1232g(a)(4)(A)-(B).
Before reaching the merits of the Horens' claims, I first note that the Supreme Court has held that FERPA does not create personal rights that an individual may enforce through 42 U.S.C. § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002). Construing Gonzaga University, the Sixth Circuit stated: "We limit th[e] conclusion[] that the FERPA imposes a binding obligation on schools that accept federal funds[] to federal government action to enforce the FERPA." U.S. v. Miami Univ., 294 F.3d 797, 809 n. 11 (2002). In so stating, the Sixth Circuit relied heavily on the fact that FERPA's obligations are phrased in terms of receiving federal funding, which the United States alone may enforce. Id. at 808-09. This reasoning, however, extends equally to attempted enforcement through mechanisms besides § 1983 suits, and I find that the Horens do not have standing to bring suit under FERPA.
Because IDEA's regulations incorporate the same language and dictates as those of FERPA on this issue, 34 C.F.R. § 300.613, however, and because IDEA contemplates private suits to enforce it, 20 U.S.C. § 1415(e), an individual's inability to sue under FERPA for access to education records will be of little practical significance as long as the individual sues also under IDEA.

Finding that the Horens had a right to inspect the tally sheets, the SLRO explained: "OT Nancy LeBlanc testified that she and other therapists used these tally sheets to record what they did with [D.H.] on a daily basis, and also used the form as a billing record for Medicaid. T. 535. Since the tally sheets were used by the school district, the Horens had a right to receive them when requested." [Doc. 1-19, at 36].

The IHO performed a similar analysis: "Mrs. LeBlanc testified to the use of tally sheets in the services she provided to the student. (R-536). Tally sheets are used to keep track of each student. (R-537). No tally sheets were included within the records provided on request to the [Horens]." [Doc. 1-15, at 58].

The Horens, SLRO and IHO, however, skip a necessary step: determining that the school "maintain[s]" the tally sheets. 34 C.F.R. § 99.3(a)(2). Interpreting language in FERPA that is virtually identical to 34 C.F.R. § 99.3(a)(2), the Supreme Court held that student-graded assignments were not "maintained" by the institution and thus not "education records." Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 435-36 (2002). The Court explained:

The word `maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments for a few moments as the teacher calls out the answers. It is fanciful to say they maintain the papers in the same way the registrar maintains a student's folder in a permanent file.

Id. at 432-33.

While the student-graded assignments in Falvo were even more transient than the tally sheets at issue here, the same rationale applies. Like the student-graded assignments, the tally sheets were temporary vehicles assisting school staff in memorializing notes in the students' permanent records, but never themselves went into a "records room," the student's "permanent file," or on "a permanent secure database." Id.

The tally sheets were thus not "maintained" as that term is used in 34 C.F.R. § 99.3(a)(2) as incorporated into IDEA through 34 C.F.R. § 300.613.

Having so found, I hold that the tally sheets were not "education records" to which the Horens were entitled under IDEA or FERPA.

Nevertheless, even assuming the tally sheets were "maintained" by the institution, the "personal use" exception to the definition of "education records" applies here.

As noted above, the regulations exempt from the definition of "education records" any records "kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record[.]" 34 C.F.R. § 99.3(b)(1).

The Horens thus have the burden of submitting evidence that the tally sheets were not: 1) kept in the sole possession of the maker; 2) used as a personal memory aid; or 3) inaccessible or revealed to any other person except a temporary substitute. They need only establish one of the three elements to render inapplicable the exception to the definition of "education records." Id.

The Horens fail to do so. The Horens do not point to any evidence in the record demonstrating that the tally sheets qualify as records to which they are entitled. Both the IHO and SLRO, meanwhile, appear to ground their arguments simply on LeBlanc's testimony.

LeBlanc, however, merely testified that the tally sheets were "how we keep our records," and that they served solely as a "record keeping" basis for their reports. [Doc. 1-10, at 710-11; see also Doc. 35-2, at 1-2 ("When I am working with a student I make personal notes to tally the number of times a student performs a certain action. . . . I would use my tally notes to complete the Medicaid forms and sometimes to complete quarterly progress reports regarding one of my students. After incorporating my tallies into those other records, I destroyed or discarded the notes." (Dykyj's affidavit) (emphasis added)].

The full portion of LeBlanc's relevant testimony is:

[Joanne Horen:] And is it your understanding that [D.H.] could tell us what happened with her?

[LeBlanc:] No. There's tally sheets on that and our individual notes.

[Joanne Horen:] There's tally sheets available on what?

[LeBlanc:] The classroom [teacher] keeps her tally sheet on what she does.

[Joanne Horen:] There's a tally sheet, and if I told you I've never seen that tally sheet, would you have any reason to disagree with me on that?

[LeBlanc:] That's how we keep our records.

[Joanne Horen:] So there's a tally sheet available on [D.H.] as to the services that she's received?

[LeBlanc:] Uh-huh, for activities.

[Joanne Horen:] Okay. And if I told you I've never seen such a tally sheet in her records, would that surprise you?

[LeBlanc:] No, because our reports are written off our daily notes.

[Joanne Horen:] What does that have to do with a tally sheet on [D.H.]?

[LeBlanc:] That's for our record keeping. That's how we keep track of each student.

[Doc. 1-10, at 710-11 (emphasis added)].

The Board — attempting to find some evidentiary basis for the Horens' claims on this issue so it may respond — suggests that the Horens may be referencing Fuelling's testimony that she keeps "notebooks" and "tally sheets[.]" [Doc. 1-13, at 263-64].

The full portion of Fuelling's relevant testimony is:

[Joanne Horen:] Are you aware of any documents that would be called charting information?

[Fuelling:] Documents, no.

[Joanne Horen:] Any documentation? So if Mr. Felt stated that he got some information from charting, do you know what he would be speaking of?

[Fuelling:] Probably like my notebooks that I keep on the kids. When I work with them, I'll write down, you know —

[Joanne Horen:] What's in those notebooks?

[Fuelling:] In the notebooks that I keep for the kids?

[Joanne Horen:] Yes.

[Fuelling:] Their IEP, tally sheets, their medical packet, documentation sheets for Gtube feedings and suctioning, the latest MFE.

[Doc. 1-13, at 263-64].

Her testimony does not suggest, however, that she shows her notebooks — tally sheets or otherwise — to anyone, but merely explains that she keeps such information. [ Id.; see also Doc. 35-1, at 2 ("When I worked with DH on the goals and objectives in her IEP, I would often make personal notes for myself to tally the number of times she did certain things, or how much assistance she needed to do a certain task, and so on. I kept these notes in my classroom in the notebook I kept for DH. I used them as my resource to verify my accuracy when I prepared periodic progress reports for my students." (emphasis added))].

Further, the Horens' bald claim that the school psychologist — I assume they mean Felt — reviewed the tally sheets, is not the same as pointing to evidence thereof.

In J.P. ex rel. Popson v. West Clark Cmty. Schs., 230 F. Supp. 2d 910, 949, the court stated:

In the first place, this Court is not persuaded that [a teacher]'s personal teaching notes constitute `educational records' in the sense intended by [FERPA]. And, in the second place, the fact that one teacher has a habit of throwing out such notes at the end of each school year does not establish the existence of a school-wide policy or practice of throwing them out.

In K.C. v. Fulton County Sch. Dist., 2006 WL 1868348, *10 (N.D. Ga.), meanwhile, the court held that a teacher's "personal notes" were "education records" because they were "accessible to individuals other than a teacher or substitute." The court explained: "Here, however, Ms. Gray testified that she allowed [another student]'s mother to review these notes at the end of every session with [that other student]." Id.

Here, like J.P. and unlike K.C., the Horens have presented no evidence that anyone other than the creating individual had possession of, viewed, or had access to the tally sheets. 34 C.F.R. § 99.3(b)(1). The Horens have likewise failed to show that the tally sheets were anything other than a "personal memory aid." Id. The Board's employees quoted above indicated that the tally sheets were a personal aid to assist them in drafting permanent records, and not themselves intended to go into the students' records or be used by others besides the creator.

Even according the state officers due deference on this determination, I thus find that the Horens have not shown that the tally sheets constitute "records" or "education records" under IDEA or FERPA.

Having so concluded, I hold that the Horens had no right to them and suffered no prejudice from the Board's destruction thereof.

Moreover, even were the tally sheets records to which the Horens entitled, they have failed to show that this failure "seriously infringed" on their ability to participate in D.H.'s IEP process, Knable, supra, 238 F.3d at 765, as they received the information underlying the tally sheets and incorporated into D.H.'s reports and Medicaid forms.

Having failed to make this showing, the Horens have not stated a procedural violation or a denial of a FAPE on this issue. Id.

V. Appropriate Relief

There remains solely the determination of what relief is appropriate for the violation I found to deny D.H. a FAPE: the Board's failure to involve the Horens adequately in D.H.'s April 3, 2006, IEP meeting, which changed her placement from EduCare to Larchmont. This is especially significant because EduCare — not Larchmont — constitutes D.H.'s LRE.

As I found no IDEA violations regarding the Summer 2004 ESY services or gratuitous services provided during 2004-2005, see Part I, supra, I do not order relief as to those issues. I also found no violation — and thus no relief appropriate — for the Board's failure to allow the Horens to examine the tally sheets. See Part IV.B.

The SLRO held:

The IHO's decision that TPS' denial of parental participation in the April 3, 2006 IEP meeting amounted to a violation of FAPE was not challenged in this appeal, and, thus, that decision stands. Thus, the IHO was ordering three months of compensatory education for the denial of parental participation in the April 3, 2006 IEP meeting.

[Doc. 1-19, at 42].

It is unclear from where in the IHO's opinion the SLRO draws this conclusion, as even the Horens seem to imply. [Doc. 32, at 16 ("Whether the SLRO erred in finding that the IHO ordered three months of compensatory education for the denial of parental participation in the April 3, IEP meeting is inconsequential.")].

The Horens seem to argue that such compensation is justified, notwithstanding the SLRO or IHO's determinations.

The Board responds, in effect: "No harm, no foul." In so doing, the Board notes that it offered D.H. continued placement at EduCare under the "stay-put" provision, or otherwise. The Board further points out that, notwithstanding this offer, the Horens chose to keep D.H. at home.

Under IDEA, I may grant "such relief as [I] determine[] is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). Any such relief constitutes an equitable remedy. L.M., supra, 478 F.3d at 316. The Supreme Court has thus stated that "equitable considerations are relevant in fashioning relief, and the [district] court enjoys broad discretion in so doing." Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). I should, however, "consider all relevant factors[.]" Id.

As to the aim of such relief, the Sixth Circuit has held: "An appropriate award of compensatory education is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA." L.M., supra, 478 F.3d at 316 (internal quotation omitted). Furthermore, "compensatory awards should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA," not to "punish[] . . . the School District[.]" Id. at 317 (internal quotation omitted); cf. Pohorecki, supra, 637 F. Supp. 2d at 555 ("[H]ere, because the May 2007 IEP was never implemented, J.C. suffered no harm.").

Here, the harm to D.H. stems from her improper change of placement from EduCare to Larchmont without her parents' input. The Board, however, never actually implemented this change. When the Horens learned of the decision regarding Larchmont — and before the Board implemented it — they filed their due process complaint in which they expressed a desire that D.H. remain at her "stay-put" placement at EduCare. [Doc. 3, Ex. A, at B01165].

IDEA contemplates that, "during the pendency of any proceedings conducted pursuant to [the filing of a due process complaint or afterwards], . . . the child shall remain in the then-current educational placement of the child[.]" 20 U.S.C. § 1415(j).
As the Horens filed their due process complaint on August 28, 2006, and D.H.'s change of placement to Larchmont did not become effective until August 30, 2006, [Doc. 3, Ex. V, at B00439], her "stay put" placement was EduCare.

Billau sent the Horens a letter confirming this stay-put placement the following week and offering D.H. placement at either EduCare or Larchmont, as the Horens desired:

Your due process complaint, filed last week, indicated that you intended to keep [D.H.] at the Educare location as a "stay-put" placement while the due process proceeds, rather than send her to Larchmont Elementary School. However, during the first four (4) days of school you did not send [D.H.] to school at either Larchmont Elementary or the Educare facility. . . . The District is currently holding places for her both at Larchmont Elementary School [and] . . . at the Educare facility.

[Doc. 3, Ex. LL].

The Horens responded to Billau's letter with an email, indicating receipt of his letter but an intent to keep D.H. home from EduCare — or at least to "seek[] other options" — "until such time as we were notified that Kellie Fuelling, who poses a substantial risk of harm to [D.H.]'s well-being and care, would not in any way, have any contact with [D.H.] or any authority whatsoever over anything related to [D.H.]'s education or care in the primary program at EduCare." [Id.].

As the SLRO observed, the Horens have since kept D.H. home from EduCare:

During the pendency of this action, [D.H.]'s parents have refused to send her to either of the placements made available to her by TPS, while the educators, who seem ready and willing to educate [D.H.], have spent more time dealing with the Horens' numerous complaints than they have educating [D.H.], albeit because the parents withdrew [D.H] from school and didn't give them the opportunity.

[Doc. 1-19, at 43].

Through its actions, the Board thus demonstrated that it left the option open to the Horens to continue to send D.H. to EduCare, as would have been the case but for the April 3, 2006, IEP. L.M., supra, 478 F.3d at 317. There is nothing further the Board could do "to ensure that [D.H. was] appropriately educated within the meaning of the IDEA." Id. at 316. As the SLRO pointed out, her lack of education since that time has been a direct consequence of her parents' actions, not the Board's.

The Horens' justification for doing so — their distrust of Fuelling — is not properly before me, because they have not raised it as an issue on appeal. E.g., A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679 n. 7 (4th Cir. 2007); Woods ex rel. T.W. v. N.J. Dep't of Educ., 796 F. Supp. 767, 775 (D.N.J. 1992) ("[P]ursuant to the IDEA, failure to raise an issue at the administrative level will result in a waiver of the issue on appeal to a United States District Court."). It is thus not an appropriate factor for me to consider at this stage.

Thus, notwithstanding the SLRO's determination to the contrary and giving it "due weight," I find that the Board's violation merits no award of relief in the circumstances before me. In so finding, I have considered the relevant circumstances and factors militating for and against an award of relief, and determined that no such award is justified here.

Because the Horens, for the reasons stated above, are not entitled to relief, final judgment shall be entered in favor of plaintiff and against defendants, notwithstanding the violations attendant on the April 3, 2006, IEP meeting and its outcome. Any injury thereby caused to D.H. could, had her parents acted otherwise, have been avoided entirely.

Conclusion

For the foregoing reasons, it is hereby:

ORDERED THAT:

1. Plaintiff's motion to strike [Doc. 46] be, and the same hereby is, granted;

2. Defendants' motion for summary judgment [Doc. 32] be, and the same hereby is, granted in part and denied in part; and

3. Plaintiff's motion for partial summary judgment [Doc. 35] be, and the same hereby is, granted, and the compensatory education ordered by the SLRO for the violations noted herein be vacated.

The Clerk shall enter final judgment accordingly.

So ordered.