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Johnson v. Duneland School Corp.

August 12, 1996

MICHAEL JOHNSON, A MINOR, BY NEXT FRIEND, JIM JOHNSON AND ANNE JOHNSON, JIM JOHNSON AND ANNE JOHNSON, PLAINTIFFS-APPELLANTS,

v.

DUNELAND SCHOOL CORPORATION, DR. KENNETH PAYNE, IN HIS CAPACITY AS SUPERINTENDENT OF THE DUNELAND SCHOOL CORPORATION, JOAN MCCORMICK, IN HER CAPACITY AS DUNELAND DISTRICT DIRECTOR, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 93 C 191 James T. Moody, Judge.

Before ESCHBACH, MANION, and EVANS Circuit Judges.

ESCHBACH, Circuit Judge.

ARGUED APRIL 16, 1996

DECIDED AUGUST 12, 1996

Plaintiff-Appellant, Michael Johnson, is a disabled child who is eligible under the Individuals with Disabilities Education Act, 20 U.S.C. secs. 1400 et seq. (the "IDEA"), for special educational services. The IDEA entitles a child like Michael to a free public education tailored to the child's needs until he or she turns 21. The IDEA establishes a system of procedural protections that ensures that the child's parents, teachers, and local educational officials work together to establish an individualized and appropriate educational plan ("IEP") for the child. Michael and his parents, Jim and Anne Johnson, (collectively, the Johnsons) came to the district court seeking judicial review of a state administrative decision, as allowed by 20 U.S.C. sec. 1415(e)(2), and a declaration that certain aspects of the administrative proceeding below denied them due process. The district court entered summary judgment against the Johnsons and in favor of each of the defendants. Because we agree with the district court that the Johnsons were not denied due process, we affirm.

I.

Michael is a teenaged boy with a medical history of retardation, attention deficit hyperactivity disorder, leukemia, and acute seizures. Michael was a student in Defendant Duneland School Corporation's school and he received special educational services through the school and through Defendant Porter County Special Education Interlocal (hereinafter, "the school" refers to both Duneland and the Interlocal). The Johnsons and the school have a history of disagreement regarding Michael's evaluation and classification. This appeal arises out of a dispute over the development of an IEP for the 1992-93 school year.

During the 1991-92 school year, Michael's IEP called for him to spend 93 percent of his day in special education classes and 7 percent in a "mainstream" classroom. In the fall of that year, Michael's teachers noted that his seizure activity had worsened, his behavior had decreased in appropriateness, and he had increased difficulty meeting expectations in his mainstream classes. In April of 1992, Michael stopped attending school and received homebound instruction on the recommendation of his treating physician, Dr. Huttenlocher, because Michael suffered a head injury and an increased number of seizures. In the summer of 1992, Michael took an experimental drug, Vigabatrin, to control his seizures. Based on Michael's improved condition, Dr. Huttenlocher recommended that Michael resume attending school with individualized instruction, a full-time aide, and careful supervision.

On August 25, 1992, an annual case review was convened to develop an IEP for the 1992-93 school year. The school made clear at this case conference that it would need to evaluate Michael prior to developing an IEP for him. The school was concerned because Michael had been out of school for some time and the school had no medical information on Michael subsequent to his taking the experimental medication. The Johnsons and the school disagreed regarding the amount of time that Michael should spend in school and whether Michael should have a three-year reevaluation as required by the IDEA, 34 C.F.R. sec. 300.534(b). The case conference was recessed and reset for September 2, 1992. On August 28, the school notified the Johnsons by letter that without a three-year reevaluation, Michael's medical records, and Dr. Huttenlocher's input, the school could not design an appropriate IEP.

The Johnsons did not attend the September 2, 1992 meeting, notifying the school one hour prior. The case conference reconvened *fn1 and developed an IEP calling for interim homebound placement until the three-year reevaluation could be accomplished. The IEP was sent to the Johnsons for signature. Rather than signing, the Johnsons filed a request for a due process hearing with the Indiana Department of Education seeking a specific placement for Michael and seeking reimbursement for an independent evaluation that Michael was undergoing at the Johnsons' behest. The Johnsons did not request a due process hearing regarding the reevaluation issue and did not challenge the propriety of the reevaluation. Thus, the school filed a letter with the Indiana Department of Education requesting that the Johnsons be ordered to produce Michael for reevaluation and that the Johnsons be required to sign the releases for medical information which would allow the school to defend against their hearing request and assist the school in developing an appropriate IEP for Michael.

In a November 16, 1992 hearing, an independent hearing officer ("IHO") ordered Dr. Huttonlocher to provide his testimony and medical records to both parties. Dr. Huttonlocher provided the information the school needed, in conjunction with the reevaluation, to do the IEP. The IHO continued the hearing until December 16, 1992, pending a resolution of the matter through the three-year reevaluation and the drafting of an IEP based on this information.

On November 25, 1992, a case conference was held and the school proposed that Michael attend school consistent with Dr. Huttenlocher's recommendations as an interim placement until the reevaluation took place. In response to the new IEP placing Michael in school consistent with Dr. Huttenlocher's recommendations, the Johnsons refused to place Michael in school at all.

On December 7, 1992, the IHO issued an Order requiring that the three-year reevaluation of Michael take place by December 14, 1992, and that the results be faxed to the IHO and all counsel of record for use at the hearing. The evaluation did not take place. The Johnsons then sought reconsideration of the IHO's December 7 order. In a pre-hearing Order dated January 1, 1993, the IHO reconsidered the order, rejected the Johnsons' challenge, and again ordered that the Johnsons present Michael for the three-year reevaluation in order to provide the information necessary to develop an IEP.

The IHO held a number of other hearings and issued an order directing that the August/September, 1992, IEP remained effective until a three-year reevaluation was conducted. On March 1, 1993, the Johnsons requested that the Indiana Board of Special Education Appeals ...


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