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B.J. v. Homewood Flossmoor Chsd # 233

United States District Court, Seventh Circuit

August 30, 2013

B.J., and T.J. and J.J., Individually and as next friends of B. J., Plaintiffs,
v.
HOMEWOOD FLOSSMOOR CHSD #233, DR. VON MANSFIELD, in his Official Capacity as Superintendent; ILLINOIS STATE BOARD OF EDUCATION; CHRISTOPHER KOCH, in his Official Capacity as State Superintendent, Defendants.

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

The plaintiffs in this case are B.J., a sixteen-year-old student in Defendant Homewood Flossmoor Community High School District #233 ("the District"), and T.J. and J.J., next friends of B.J. They bring suit under the Individuals with Disabilities Education Act ("the IDEA"), 20 U.S.C. § 1400 et seq., which requires states to provide a "free appropriate public education" to disabled children in exchange for federal funding. The plaintiffs challenge the appropriateness of the residential treatment placement that the District proposed to further B.J.'s individual education plan ("IEP"). Specifically, they appeal the ruling of an Impartial Hearing Officer (IHO), which followed a special education due process hearing held pursuant to the IDEA. The plaintiffs also bring a claim pursuant to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), alleging discrimination by the Illinois State Board of Education ("ISBE") and State Superintendent Christopher Koch against students with severe obsessive compulsive disorder ("OCD").

Now before the court is the plaintiffs' motion to supplement the administrative record with respect to the IDEA claim and to conduct discovery with respect to the Rehabilitation Act claim. For the reasons explained below, the motion is granted.

I. BACKGROUND

B.J. is a special education student diagnosed with OCD, which has become more severe over time. According to the complaint, although B.J. is very intelligent, his OCD is now so severe that he performs rituals related to contamination and symmetry for the majority of each day, rendering him unable to complete school-related tasks. He has been unable to participate in a school setting for the past two years.

The District created an IEP for B.J. in 2010. Although homebound instruction was first attempted, B.J. was unable to complete class assignments and earned few high-school credits. The IEP was reviewed and revised in May 2011. The District recommended a therapeutic day school placement, but the plaintiffs did not believe that any private day programs existed that could address B.J.'s needs. At an April 2012 IEP meeting, the IEP team determined that B.J. needed a residential placement. The plaintiffs agreed.

The District and the plaintiffs differed, however, as to what residential program was appropriate for B.J. The plaintiffs proposed that B.J. attend a short-term residential program at the Child and Adolescent Center at Rogers Memorial Hospital in Wisconsin that provides therapy for OCD ("the OCD Center"). The OCD Center offers Exposure Response Prevention ("ERP") therapy, a form of cognitive behavior therapy. The District refused the plaintiffs' proposed placement but proposed various other placements. Two of those centers-Yellowstone Boys and Girls Ranch in Billings, Montana, and Acadia Montana in Butte, Montana-accepted B.J. into their programs.

Pursuant to the IDEA, states must provide a formal process for parents to seek administrative review of "any matter relating to the... provision of a free appropriate public education" to a child with a disability. 20 U.S.C. § 1415(b)(6)(A). When a complaint is made, the parents "shall have the opportunity for an impartial due process hearing." 20 U.S.C. § 1415(f)(1)(A). On August 8, 2012, the plaintiffs requested an impartial due process hearing before the IHO. The relief they sought was placement at the OCD Center or another appropriate residential program, payment for transportation to and from the OCD Center, and compensatory educational services to enable B.J. to complete high school.

The due process hearing before the IHO was held on October 16-18, and November 12, 2012. The plaintiffs called as witnesses B.J.'s mother, an educational consultant, a psychiatrist, a therapist, the director of the OCD Center, and numerous District personnel, including teachers, tutors, counselors, and the current and former special education directors. The District additionally called the Principal of Acadia Montana and the Admissions Director of Yellowstone Boys and Girls Ranch (Compl. Ex. A (IHO Decision) 3-4, ECF No. 1.) The witness from Yellowstone Boys and Girls Ranch testified that its program currently had two students with OCD, although those students did not have symptoms similar to B.J.'s. Yellowstone's curriculum included 350 minutes of daily instruction. The OCD Center's clinical director testified that its primary goal was not academic instruction, and that ERP therapy made up 85% of the program, while students participated in a classroom setting for 90 minutes a day.

The IHO issued a decision on November 29, 2012, denying relief for the plaintiffs. The IHO found that B.J.'s needs had grown worse since his 2010 IEP, that the homebound instructors provided by the District had not been provided with training or support to address his OCD, and that the IEPs the District had created for B.J. were significantly deficient. But given B.J's severe OCD, which would have made any goals set out in the IEPs difficult to realize, the IHO found that the deficiencies did not deprive B.J. of any educational benefit. ( Id. at 22.)

Turning to the question of whether the school district had provided B.J. with an appropriate placement in a private residential facility after April 2012, the IHO found that ERP therapy was necessary to implement B.J.'s IEP. ( Id. at 26.) The IHO found that Acadia Montana would not be able to assist B.J. in accessing an education because it could not provide the appropriate therapy. ( Id. at 27.) As to Yellowstone Boys and Girls Ranch, the IHO noted that "the question is much closer, " and he could not "say that Yellowstone is an inappropriate facility." ( Id. at 28.) The IHO ordered the District to submit additional evidence regarding training in ERP therapy received by Yellowstone staff. He stated that B.J. "should be provided up to 30 hours per week of ERP therapy." ( Id. ) The IHO further concluded that the OCD Center was not a "primarily educational" facility and that B.J.'s progress there would not be judged by his educational achievement, making the OCD Center an inappropriate placement. ( Id. at 29.)

Following the hearing, the District submitted evidence to the IHO on December 27, 2012, indicating that although no Yellowstone staff member had been trained in ERP therapy, the District planned to pay for a Yellowstone staff member to attend a three-day training offered by the International OCD Foundation in January 2013. That staff member would then train other staff at Yellowstone to provide ERP therapy. The plaintiffs were not allowed to respond to the District's submission of this evidence. (Compl. Ex. B (Order on Parents' Request for Clarification), ECF No. 1.)

A party aggrieved by the findings and decision resulting from an impartial due process hearing may bring a civil action in federal court. 20 U.S.C. § 1415(i)(2)(A). The plaintiffs have filed such an action and allege in their complaint before this court that the IHO's decision should be overturned because the IHO's factual findings were clearly erroneous and failed to give proper weight to the evidence presented during the due process hearing, and because the plaintiffs were not allowed to respond to the evidence submitted by the District after the hearing. They contend that the placement at Yellowstone proposed by the District would not provide B.J. with a free appropriate public education, as required by the IDEA. They argue that the three-day training by one staff member in ERP therapy is insufficient to implement B.J.'s IEP, and that it would not be safe for B.J. to attend Yellowstone.

In the motion now before the court, the plaintiffs seek to supplement the administrative record developed before the ...


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