M.m., individually v. District 0001 Lancaster County School, also known as Lincoln Public Schools

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3774
___________________________
M.M., individually and on behalf of L.M. their son; C.M., individually and on
behalf of L.M. their son
lllllllllllllllllllll Plaintiffs - Appellants
v.
District 0001 Lancaster County School, also known as Lincoln Public Schools
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 13, 2012
Filed: December 28, 2012
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
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MURPHY, Circuit Judge.
M.M. and C.M. allege that their autistic son L.M. was not provided a free and
appropriate public education (FAPE) by the Lincoln Public Schools (the District) as
required by the Individuals with Disabilities Act (IDEA), 20 U.S.C. §§ 1400 et seq.
Dissatisfied with the District's plans for L.M., his parents placed him in a private
school for his fourth grade year and requested that the District pay its costs. After an

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administrative hearing officer concluded that the District had provided a FAPE for
L.M.'s fourth grade year, his parents brought this action in federal district court. The
court 1 held a bench trial and found that the District had provided a FAPE for L.M. and
allowed his parents meaningful participation in the development of his behavior and
educational plans. M.M. and C.M. appeal. After studying the voluminous record, we
affirm.
I.
L.M. was diagnosed with autism as a young child and began first grade in 2006
at his neighborhood's Sheridan Elementary School which is in the District. An
Individualized Education Plan (IEP) was made to address L.M.'s behavioral and
learning issues during his first grade year. In that year L.M. met or exceeded the
District's academic standards in almost every subject. His behavior problems were
manageable, and he was with his nondisabled peers a majority of the time. He was
promoted to the second grade.
A new IEP was created for L.M. for his second grade year. During that year he
had increased behavioral problems and was "physically aggressive with himself or
others an average of 7 times per day" during the first quarter. District personnel used
calming strategies with L.M., which included taking him to a room away from other
students, but he continued to engage in physically aggressive behaviors. Deb Rauner,
a behavior specialist employed by the District, observed L.M. and recommended
sensory breaks and visual prompts. L.M. nevertheless continued to behave
aggressively. Since his second grade progress was found "sufficient" and he had
exceeded district standards in several areas, L.M. was promoted to third grade.
1The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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L.M. returned to Sheridan for third grade, and a new IEP was developed for
him. When he continued to engage in aggressive behaviors, including physically
hurting staff members, district personnel increased his time away from peers and gave
him less demanding academic work. L.M.'s grades were lower in third grade than in
previous years, but his test results and writing samples indicated that he was making
academic progress.
Before L.M. completed his third grade year, his parents took him to the
Kennedy Krieger Institute (KKI). KKI is a short term rehabilitation facility located
at the John Hopkins University School of Medicine. There, L.M. was assigned to the
care of Dr. Sung Woo Kahng, a senior behavior analyst whose research focuses on
self injurious behaviors by individuals with developmental disabilities. L.M. stayed
at KKI from April to September 2009 while functional behavioral assessments were
conducted on him and his medications were modified. The institute's research
concluded there was a correlation between use of a calming room and increased
aggressive behavior by L.M. and that his problem behaviors would decrease if a
calming room was not used as a punishment.
KKI personnel developed a three level behavior plan for L.M. which eliminated
use of the calming room. As Dr. Kahng explained, this plan was "developed
specifically for [L.M.]. And if you were to compare that treatment to any other
treatment that was for a patient on our unit at that time or at any other time, the
treatment would be very, very different." L.M. was to start at level 3, but was to be
demoted to level 2 if he displayed one instance of problem behavior. At level 2 he
would remain in the same setting but would lose access to toys. If he engaged in four
additional disruptive actions in the next five minutes, L.M. would be demoted to level
1 and placed in a 30 second baskethold.2 He would then be moved to a portable mat
in a safe area where he would remain until one minute passed without any problem
2A baskethold is described in the record as a technique by which a student is
subdued by physically grabbing and holding him from behind.
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behavior. This plan was implemented while L.M. was at the institute, and Dr. Kahng
concluded that replacing the calming room at level 1 with a physical hold of L.M.
resulted in a "95 percent reduction in his problem behaviors as compared to . . .
baseline levels." Dr. Kahng further stated that during outings outside of the facility
L.M.'s "problem behaviors were at near zero levels," especially when his mother was
implementing the treatment.
L.M. was scheduled to return to Sheridan in the fall of 2009 as a fourth grader,
and his mother presented the KKI behavior plan to the District. Deb Rauner, the
District's behavior specialist, reviewed the KKI plan and expressed concern that it
would not help L.M. "come up with some alternative skills so he doesn't have to
misbehave." She understood the KKI plan not to permit school personnel to respond
until L.M. had engaged in five aggressive behaviors. This concerned Rauner because
her understanding of the literature dealing with autistic students was that a school
should "respond to aggressive problem behaviors the first time." Another teacher at
Sheridan was concerned that the KKI plan would allow L.M. "to hit a student or have
five acts of aggressive behavior before he was removed from the room." Rauner also
did not want district personnel to implement the baskethold procedure from the KKI
plan because she had heard that it had resulted in deaths by asphyxiation at other
schools.
District personnel reviewed L.M.'s behavior data, interviewed his teachers, and
developed a behavior intervention plan for him that would be attached to his IEP.
Rauner explained that she intended the district plan to "replicate the KKI plan" but to
"still have some of the pieces that we thought were very, very important," such as the
"replacement behavior piece." Rauner believed that L.M.'s behavior would improve
if school personnel were to intervene quickly after any problem behaviors and to use
the calming room. L.M.'s parents and KKI personnel expressed concern about this
plan because Rauner was not a board certified behavior analyst, she had not worked
extensively with L.M., and she had failed to provide a rationale for the continued use
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of the calming room. L.M.'s parents insisted that KKI's recommendation to eliminate
the calming room be incorporated into the district plan for their son. They met with
district personnel on multiple occasions, and Rauner revised the district plan in
response to their concerns. Each draft of the plan maintained the District's ability to
use the calming room, however.
An IEP was adopted for L.M.'s fourth grade year at Sheridan. It outlined the
District's assessment of his abilities and concluded that he had met many of the
District's standards for the third grade. This included locating points on a grid, telling
time, and comparing and contrasting. The IEP also developed a number of goals for
L.M., such as participating in group activities, improving math competency, and
increasing reading skills. It provided for a monthly report to L.M.'s parents regarding
his progress. A behavior intervention plan was also attached to the finalized IEP
which adopted many of KKI's suggestions, but it permitted district personnel to take
L.M. to a calming room in certain instances. Like under the KKI plan, L.M. would
start at level 3 and be demoted to level 2 if he engaged in problem behavior. District
personnel were to model calming strategies at level 2 and move him to a different area
such as the calming room. If his behavior did not improve, he would be demoted to
level 1 and would have to remain seated in a safe area for one full minute without
engaging in problem behavior.
L.M.'s parents disagreed with the IEP and the behavior intervention plan
because the District had not adopted KKI's plan in full. The district plan allowed
personnel to move L.M. to a calming room when he engaged in problem behaviors,
which was contrary to the institute's recommendations. L.M.'s parents believed that
the district plan would be detrimental to L.M.'s well being. They were unconvinced
by the rationale given by district personnel and believed that the District was ignoring
research and data that showed that L.M. would regress socially and academically if
the calming room were used. In a letter to district personnel L.M.'s mother expressed
concern that their plan significantly differed from the KKI plan and would result in
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"adverse effects . . . and risk[] the tremendous progress he has made." She represented
that in KKI's opinion the district plan would cause L.M. to "revert to the violent
outbursts that caused him to leave" Sheridan.
C.M. and M.M. withdrew L.M. from the District before the start of his fourth
grade year and enrolled him at the Prairie Hill Learning Center, a private Montessori
school with mostly non special needs students. L.M.'s mother explained that her son
"needs to attend a school where [KKI's] behavior plan (or something so similar as to
allow for [L.M.]'s behaviors to be managed as indicated by the recent data from KKI)
can be implemented with a staff who believes in it and is willing to work all aspects
of the plan." The KKI plan was implemented for L.M. at Prairie Hill. His
paraeducator at that school explained that L.M. "never had aggressions toward another
student" and that "his behavior [was] under control and [he was] able to have this self-
control, he [was] able to progress in his education, in his academics." According to
L.M.'s parents, the KKI plan was successfully implemented at Prairie Hill where he
was in his regular classroom almost all of the time and advanced socially.
L.M.'s parents requested that the District pay for L.M.'s education at Prairie Hill
and for his paraeducator there. The District denied these requests, stating that
Sheridan provided "the least restrictive environment" for L.M. and offered him
"appropriate general and special education services." C.M. and M.M. requested a due
process hearing under the IDEA and Nebraska Revised Statute § 79-1163, asserting
that the District had denied L.M. a FAPE by failing to create an appropriate IEP for
his fourth grade year. They also contended that the District had denied them
meaningful participation in the process of creating an IEP for their son.
An administrative hearing officer held a hearing about whether the District had
provided L.M. with a FAPE for his fourth grade year. After hearing testimony from
KKI employees, L.M.'s parents, and district personnel, the hearing officer concluded
that the District had provided a FAPE to L.M. The hearing officer noted that the
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District had considered the KKI plan, had adopted portions of it, and had stated
legitimate reasons for allowing district personnel to place L.M. in a calming room.
The hearing officer also found that the District had acted in good faith and that
"clearly" L.M. was "making some progress and receiving some educational benefit"
because he had advanced from grade to grade and was meeting some of the District's
educational assessments.
C.M. and M.M. challenged the administrative hearing officer's decision in
federal district court. See 20 U.S.C. § 1415(i). Trial was held to the court, and the
district judge stated that she would make an "independent decision," based on a
preponderance of the evidence after giving "due weight" to the administrative
proceedings, as to whether a FAPE had been made available to L.M. for his fourth
grade year. See Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1028 (8th Cir. 2003).
The court determined that the District had made a FAPE available to L.M. that year
because its IEP included L.M.'s achievements, measurable goals, and behavioral
strategies. While L.M.'s parents would have preferred that the District adopt the KKI
plan in full, that was not required by the IDEA. Sheridan was found by the district
court to be the least restrictive environment for L.M. because it was his neighborhood
public school, non disabled students attended it, and L.M. would be removed from
class when he became disruptive. The court also determined that C.M. and M.M. had
been provided with meaningful participation in the formation of L.M.'s IEP. C.M. and
M.M. appeal.
We review de novo the district court's ultimate determination of whether a
FAPE was made available to L.M. Bradley ex rel. Bradley v. Ark. Dep't of Educ., 443
F.3d 965, 974 (8th Cir. 2006). Factual findings are reviewed for clear error, and "due
weight" is to be given to the "outcome of administrative proceedings." Id. (citing Bd.
of Educ. v. Rowley, 458 U.S. 176, 206 (1982)).
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II
The IDEA requires that an IEP be created for each child with a disability at the
beginning of the school year. 20 U.S.C. § 1412(a)(4); see Lathrop R-II Sch. Dist. v.
Gray, 611 F.3d 419, 424 (8th Cir. 2010). The IDEA's legal requirements are fulfilled
if a school district (1) complies with the law's procedures in developing an IEP, and
(2) the resulting IEP is "reasonably calculated to enable the child to receive
educational benefits." Rowley, 458 U.S. at 206–07. Although the IEP must provide
"some educational benefit," it need not "maximize a student's potential or provide the
best possible education at public expense." Park Hill Sch. Dist. v. Dass, 655 F.3d 762,
766 (8th Cir. 2011) (citation omitted). Since each child's needs and abilities are
unique, the law does not mandate the acquisition of specific knowledge or "strict
equality of opportunity or services." Rowley, 458 U.S. at 198.
The IDEA also requires that students with disabilities be educated in the "least
restrictive environment." 20 U.S.C. § 1412(a)(5). Congress expressed a "strong
preference in favor of disabled children attending regular classes with children who
are not disabled," creating a "presumption in favor of public school placement." CJN
v. Minneapolis Pub. Schs., 323 F.3d 630, 641 (8th Cir. 2003). A student may be
removed from the regular classroom, however, if it is necessary for the safety of other
students or for the disabled child. See 20 U.S.C. § 1412(a)(5); see also Rowley, 458
U.S. at 181 n.4. The IDEA "significantly qualifies the mainstreaming requirement by
stating that it should be implemented 'to the maximum extent appropriate.'" Pachl v.
Seagren, 453 F.3d 1064, 1067 (8th Cir. 2006) (emphasis in Pachl) (citations omitted).
The mainstreaming requirement is inapplicable if it "cannot be achieved
satisfactorily." Id. at 1068 (emphasis in Pachl) (citations omitted).
Here, the district court, like the hearing officer before, concluded that the
District had provided L.M. with a FAPE for his fourth grade year. L.M.'s fourth grade
IEP had included his present levels of academic achievement as well as goals for his
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advancement during that year. It indicated that L.M. had been advancing from year
to year while at Sheridan and was meeting the District's academic criteria in many
areas. The IEP also contained strategies to address L.M.'s behavior problems. These
included "adult supports for self regulation," "intervention specialists," and speech
language services. A detailed behavior intervention plan had also been attached to the
IEP. Its plan had a three level graduated approach to addressing L.M.'s behavior
problems which maintained the ability to remove him from the classroom when
necessary and to take him to a calming room for his own safety as well as that of the
other children.
C.M. and M.M. argue that the District did not make a FAPE available to L.M.
because he would not have made any academic progress in fourth grade if he had
attended Sheridan. As evidence of L.M.'s lack of progress there, his parents contend
that he failed to meet his third grade math requirements and that his reading scores had
shown significant decline.
Academic progress is an "important factor" in deciding "whether a disabled
student's IEP was reasonably calculated to provide educational benefit." CJN, 323
F.3d at 638 (citing Rowley, 458 U.S. at 202). One of the cases in which we have
previously addressed the question of whether a school district provided a FAPE to an
autistic student is Gray, 611 F.3d at 421. There, a father alleged that a FAPE had not
been established for his autistic son because his IEP did not contain enough detailed
information or adequately address his son's disruptive behaviors. Id. at 424–26.
While there had been conflicting evidence at the administrative hearing about whether
the student was improving behaviorally, we concluded that he had received
educational benefit. Id. at 426. Since his IEP "contained both detailed present level
statements and measurable goals," the school district had provided him a FAPE. Id.
at 424.
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The record here shows that L.M.'s IEP would have provided him "some
educational benefit" for his fourth grade year at Sheridan. Dass, 655 F.3d at 766.
L.M. was advancing from year to year, and he was gaining educational skills each
year. While L.M. had not completed his third grade math curriculum, his parents had
removed him from Sheridan before the end of the school year to attend KKI. That
likely affected his low scores. The District prepared IEPs for L.M. before each school
year, and his fourth grade IEP included specific goals for him in math, reading, and
speech. His parents were to be informed on a monthly basis about his progress.
Teachers and other district personnel believed that L.M. would have received an
educational benefit during his fourth grade at Sheridan. See Sch. Bd. of Indep. Sch.
Dist. No. 11 v. Renollett, 440 F.3d 1007, 1012 (8th Cir. 2006). We conclude that the
record supports the district court's findings and conclusions that L.M.'s IEP was
reasonably calculated to provide him some educational benefit. See CJN, 323 F.3d
at 638.
L.M.'s parents also argue that he was not provided a FAPE for fourth grade
because the District's behavior intervention plan for him would have allowed school
personnel to use the calming room. In the parents' view the district plan would not
have decreased L.M.'s disruptive behaviors because KKI had determined that the
calming room caused them. When a child's learning is impeded by behavioral issues,
the IDEA requires that the IEP team "consider the use of positive behavioral
interventions and supports, and other strategies, including positive behavioral
interventions." 20 U.S.C. § 1414(d)(3)(B)(i) (emphasis added). A failure to address
behavioral issues appropriately can amount to a denial of a FAPE for a student. Clark,
315 F.3d at 1028.
It is "largely irrelevant" if the school district could have employed "more
positive behavior interventions" as long as it made a "good faith effort" to help the
student achieve the educational goals outlined in his IEP. CJN, 323 F.3d at 639.
Although an IEP team must "consider" the results of outside evaluations, not all such
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recommendations need be adopted. K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647
F.3d 795, 805–06 (8th Cir. 2011) (citation omitted). That is because requiring a
school to change methodologies based on the preferences of each parent would create
"the potential that a school district could be required to provide more than one method
. . . for different students whose parents had differing preferences." E.S. v. Indep. Sch.
Dist., No. 196, 135 F.3d 566, 569 (8th Cir. 1998) (citation omitted).
L.M.'s IEP and behavior intervention plan included detailed strategies to
address his behavior problems. The District created his behavior intervention plan
after reviewing the KKI plan and considering what would be feasible in the school
setting. The IEP team adopted the majority of the KKI plan, but maintained use of the
calming room because of the belief that it was important for the safety and
development of L.M. See K.E., 647 F.3d at 805–06. The school was only required
by IDEA to consider the KKI plan, not to adopt it in its entirety. E.S., 135 F.3d at
569.
The District maintained the ability to use the calming room based on its past
experience with L.M., concern for the safety of students and staff, and perceived
differences between KKI and the public school setting. District personnel had
increased the use of the calming room before L.M. had gone to KKI, and they believed
that it had helped to reduce his problem behaviors at school. District behavior
specialist Rauner explained that she noticed that when district personnel "intervened
and used the [calming] room . . . then it was longer before another behavior occurred."
Rauner also stated that the District preferred the calming room because it avoided
"injuries to staff or to students" which could occur by physically restraining a child.
District personnel also believed that it was inappropriate to compare L.M.'s behavior
at KKI with his likely behavior at Sheridan because KKI was in a hospital setting, and
L.M. had been on different medications while he was there. The evidence showed that
the District adequately considered positive behavioral interventions and strategies and
chose an appropriate behavior intervention plan for L.M.
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L.M.'s parents cite Clark, 315 F.3d at 1028, in support of their argument that no
FAPE was provided to their child. We concluded in Clark that a school district had
failed to provide a FAPE because the challenged IEP had not included behavioral
intervention for the student and substantial evidence showed that he was not
progressing in his academic studies. Id. at 1029. There was however contradictory
evidence in Clark about whether the student was progressing academically; every time
his teacher attempted to advance his work, he was unable to complete it. Id. The
record here, in contrast, shows that L.M. was progressing academically and would
have received some educational benefit if the District used the behavior intervention
plan attached to his IEP. The District sought to employ behavior strategies and
provided detailed information to L.M.'s teachers about how to use the three level
graduated approach to address his problem behaviors. The record does not show that
L.M. would have been unable to complete fourth grade work at Sheridan. The district
court did not err in concluding that L.M.'s fourth grade IEP would have provided him
with some educational benefit.
C.M. and M.M. argue, however, that Sheridan was not the least restrictive
environment for L.M. because he had spent almost all of his time in the calming room
in his third grade year and his proposed fourth grade schedule would only give him
45 minutes each day of academic instruction in his regular classroom. The record
nevertheless supports the district court's conclusion that Sheridan was the least
restrictive environment for L.M. It was his neighborhood public school attended by
both disabled and non disabled students. L.M.'s behavior intervention plan allowed
him to be removed from class if he was disruptive or aggressive. While L.M. may
have been mainstreamed for a larger percentage of his day at Prairie Hill, IDEA has
a presumption in favor of educating a student at his neighborhood public school and
the record shows that the District would have attempted to mainstream L.M. whenever
possible at Sheridan. See CJN, 323 F.3d at 641.
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III.
C.M. and M.M. also challenge the district court's conclusion that the District
complied with IDEA's procedural requirements. They contend that they were denied
meaningful participation because the District failed to disclose its reason for using the
calming room. They argue that the District improperly predetermined the components
of L.M.'s IEP, citing Deal v. Hamilton County Board of Education, 392 F.3d 840, 859
(6th Cir. 2004).
The IDEA requires that the parents of a child with a disability either be "present
at each IEP meeting or [be] afforded the opportunity to participate." Gray, 611 F.3d
at 427 (citation omitted). A school district cannot refuse to consider parents' concerns
when drafting an IEP. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005).
The IDEA explicitly requires school districts to include the parents in the team that
drafts the IEP, to consider "the concerns of the parents for enhancing the education of
their child," and to address "information about the child provided to, or by, the
parents." 20 U.S.C. § 1414(d)(3)(A)(ii), (d)(4)(A)(ii)(III). A school district cannot
predetermine the educational program for a disabled student before meeting with
parents. Deal, 392 F.3d at 859. Such a predetermination could amount to a
procedural flaw in the IEP because it could deprive parents of a meaningful
"opportunity to participate in the formulation process." Gray, 611 F.3d at 424
(citation omitted).
C.M. and M.M were given notice of IEP meetings, attended them, and shared
their views about L.M.'s behavior intervention plan. While they wanted the District
to stop using the calming room as urged by KKI, IDEA does not mandate that parental
preferences guide educational decisions. The District did not predetermine L.M.'s IEP
or behavior intervention plan, and it did not refuse to listen to suggestions from L.M.'s
parents or KKI. To the contrary, the District participated in numerous meetings with
KKI and L.M.'s parents and adopted a behavior intervention plan for L.M. that
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included almost all of the institute's recommendations. See Fort Osage R-1 Sch. Dist.
v. Sims ex rel. B.S., 641 F.3d 996, 1005 (8th Cir. 2011). We therefore conclude that
L.M.'s parents were given a meaningful opportunity to participate in the creation of
his fourth grade IEP.
IV.
Accordingly, we affirm the judgment of the district court.
______________________________
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