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Kerry M. v. Manhattan School Dist. #114

September 29, 2006

KERRY M. AND KRISTINE M.; AND KATHY M., INDIVIDUALLY AND AS NEXT FRIEND OF KERRY M. AND KRISTINE M., PLAINTIFFS,
v.
MANHATTAN SCHOOL DIST. #114; BOARD OF EDUCATION OF MANHATTAN SCHOOL DIST. #114; GLENN HOFFMAN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT; AND THE ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Kerry and Kristine M. ("Plaintiffs") bring this action against the Manhattan School District, #114 ("District"), Board of Education of Manhattan School District #114 ("Board"), Glenn Hoffman, in his official capacity, and Illinois State Board of Education ("ISBE"). Plaintiffs are twin girls who both have Rett Syndrome and require special education pursuant to the Individuals with Disabilities Education Act ("IDEA"). Plaintiffs complain that their Individualized Education Programs ("IEPs") do not provide a free and appropriate public education ("FAPE") in the least restrictive environment ("LRE") as required by the IDEA.

This action is an appeal of an administrative ruling rendered by an Impartial Hearing Officer ("IHO"). The IHO found that Plaintiffs were provided a FAPE in the LRE. Plaintiffs allege that this ruling violates the IDEA, 20 U.S.C. § 1400 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The parties have cross-moved for summary judgment.

Because the IHO did not commit any errors of law or clearly err in finding that Kerry M. and Kristine M. were provided a free and appropriate public education in the least restrictive environment by the District, the District is entitled to judgment as a matter of law. Additionally, even if the ISBE failed to educate and monitor properly other IHOs or other districts, Plaintiffs have not suffered any injury as a result because the IHO and the District in this case adequately enforced the IDEA's FAPE and LRE mandates. Finally, Plaintiffs' ADA and Rehabilitation Act claims based upon the denial of a free and appropriate public education are dismissed for the same reasons.

Background

Plaintiffs Kerry M. and Kristine M. were students of Manhattan School District No. 114. (Defendants' Rule 56.1 Statement of Material Facts ("Defs. SOF") ¶ 1.) Kathy M. is their mother. (Id.) Manhattan School District No. 114 is an elementary (K-8th grade) school district located in Will County, Illinois. (Defs. SOF ¶ 2.) The Illinois State Board of Education is the state agency responsible for the educational polices and guidelines in public schools in Illinois, including implementation of the IDEA. (Defs. SOF ¶ 3.)

Kerry and Kristine M. are twin girls who have Rett Syndrome. (Defs. SOF ¶ 14.) Dr. Sukkubai Naidu, who followed Kerry and Kristine through a research study, summarized Rett Syndrome as follows:

A neuro-developmental disorder associated with a devastating loss of function in childhood. It is manifested by psychomotor retardation, deceleration of head growth, stereotyped hand movements with loss of purposeful hand use, lack of expressive language skills with poor communication intent, seizures, irregular respirations, vasomotor instability and gastrointestinal problems including failure to thrive, reflux and constipation. (Defs. SOF ¶ 17.) The severity of the symptoms associated with Rett Syndrome, including the level of physical and cognitive impairment, vary from child to child. (Defs. SOF ¶ 19.) Kerry and Kristine, in particular, suffer from physical impairments including seizures, apnea, poor peripheral circulation, hypoglycemia, nosebleeds and allergies. (Defs. SOF ¶¶ 20-21.) They are more severely disabled physically than some other girls with Rett Syndrome. (Defs. SOF ¶¶ 22, 24.) While some girls with Rett Syndrome can walk and function at an 18-month level, Kerry and Kristine are non-ambulatory, and their gross motor skills are in the 6-month range of functioning. (Defs. SOF ¶ 25.) Kerry and Kristine received scores that were the cognitive-functioning age equivalent of less than 1 year 9 months. (Defs. SOF ¶ 38.) At times, Kerry and Kristine exhibit seizure-like activity, ranging from staring or absence seizures to harder or grand mal-type seizures. (Defs. SOF ¶ 44.) Kristine suffers more frequent and harder seizures than Kerry. (Defs. SOF ¶ 45.)

Since 1993, when the girls were three years old, the District arranged for them to be educated at United Cerebral Palsy ("UCP"), a private day school in Joliet, Illinois. (Defs. SOF ¶ 106.) UCP serves students between the ages of 3 and 21, and the students are placed with age-appropriate peers in one of UCP's six classrooms. (Defs. SOF ¶ 109.) UCP employs certified education instructors and contracts with physical, occupational, music, speech and language therapists, and a feeding specialist. (Defs. SOF ¶ 114.) UCP classrooms have carpeted areas, mats, and physical therapy equipment, in additional to instructional materials, augmentative communication devices and computers. (Defs. SOF ¶ 116.) UCP also has what is called a "gross motor room" for physical and occupational therapy services, a speech and language therapy room, a gymnasium, and a respite room. (Defs. SOF ¶ 117.) Additionally, there is an internal emergency response system known as "Mr. Team," and emergency ("911") crews are within five minutes of the school. (Defs. SOF ¶ 124.) In the classroom, Kerry and Kristine had access to augmentative communication devices, including a dual output VOCA switch and a Step-by-Step communication device. (Defs. SOF ¶¶ 148-49.)

At issue in the IDEA administrative hearing was Kerry's and Kristine's education during the 2000-01, 2001-02 and 2002-03 school years. During the 2000-2003 school years, Kerry's and Kristine's IEP required multiple individualized one-on-one therapy sessions. (Defs. SOF ¶ 174.) Kerry and Kristine received two one-on-one half-hour sessions of speech therapy per week (Defs. SOF ¶ 175); a half-hour of physical therapy (Defs. SOF ¶ 199); a half-hour of occupational therapy (Defs. SOF ¶ 207); and a half-hour of musical therapy (Defs. SOF ¶ 214). At the time of the due process hearing, Vicki Rickel had been the home room teacher for Kerry and Kristine for three years. (Defs. SOF ¶ 138.) Ms. Rickel had four classroom aides to assist her. (Defs. SOF ¶ 141.) The UCP staff testified that they made efforts to better understand Rett Syndrome. (Defs. SOF ¶¶ 128-36.)

Each year the IEP team for Kerry and Kristine conducted an annual review of their progress under their IEP and proposed an IEP for the upcoming year. (Defs. SOF ¶¶ 221, 251, 286.) Kathy M. and their teacher, Ms. Rickel, attended the reviews. (Defs. SOF ¶¶ 226, 228, 252, 288-89.) As part of the review process, the IEP team reviewed the possibilities for and appropriateness of Kerry's and Kristine's placement in a regular education classroom. (Defs. SOF ¶¶ 234-37, 246-47, 258-62, 300-01, 353-61, 426.)

At the administrative hearing, Plaintiffs offered evaluations from five consultants. Plaintiffs' consultants criticized the excessive downtime in Kerry's and Kristine's schedules (Plfs. SOF ¶¶ 204-27); the lack of opportunities for communication (Plfs. SOF ¶¶ 236-273); the inappropriate use of assistive technology such as the Voice Output Communication Aids ("VOCA") devices, Step-by-Steps and eye gaze boards (Plfs. SOF ¶¶ 287-345); that Kerry and Kristine were not systemically instructed (Plfs. SOF ¶¶ 346-53); that literacy was not taught effectively (Plfs. SOF ¶¶ 354-95); and that the goal and therapy time was insufficient (Plfs. SOF ¶¶ 396-450). Plaintiffs also argue that the UCP staff did not have the training or experience to be working appropriately with Kerry and Kristine. (Plfs. SOF ¶¶ 212, 227, 236-395, 528-548.) Dr. Swisher opined that it was medically safe to send Kerry and Kristine to a regular educational facility. (Plfs. SOF ¶¶ 40-89.) Dr. Owen testified from an educational or instructive perspective why Kerry and Kristine were capable of being educated in a regular classroom. (Plfs. SOF ¶¶ 21-39.)

The due process hearing commenced on May 13, 2003 and continued from: May 13-16, May 19-20, June 26-27, and June 30-July 3. Kathy M. complained that her daughters had been denied a FAPE because UCP failed to adequately train its staff, implement their IEP, provide curriculum on a full day basis, provide assistive technology appropriately, educate the twins in the LRE and did not pay for the twins' wheelchairs. After hearing numerous days of testimony and evaluations, the IHO found that "[b]ased on the preponderance of the evidence . . . Kerry M. and Kristine M. were provided a free and appropriate education in the least restrictive environment for the school years 2000-2001, 2001-2002, 2002-2003 by the Manhattan Elementary School District #144."

Standard of Review

The summary judgment analysis under the IDEA differs from the familiar " no genuine issue as to any material fact" standard in Fed. R. Civ. P. 56(c). The IDEA requires that a district court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). When neither party presents new evidence "[t]he motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record." Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994). Plaintiffs, as the party challenging the outcome of the state administrative decision, bear the burden of proving their claims by a preponderance of the evidence. See Patricia P. v. Board of Educ. of Oak Park, 203 F.3d 462, 467 (7th Cir. 2000).

This Court reviews a hearing officer's application of the law de novo. See Alex R. v. Forrestville Valley Community Unit School Dist. #221, 375 F.3d 603, 612 (7th Cir. 2004). This Court independently evaluates the testimony of witnesses and evidence in the administrative record, but gives "due weight" to the administrative proceedings and the hearing officer's decisions. See Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982); Heather S. v. State of Wis., 125 F.3d 1045, 1053 (7th Cir. 1997). How much weight is due weight depends on the amount of new evidence that is presented to the district court. See School Dist. of Wisconsin Dells v. Z.S. ex rel. Littlegeorge, 295 F.3d 671, 675 (7th ...


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