Albright v. Mountain Home School District, 926 F.3d 942, 74 IDELR 187 (8th Cir. June 12, 2019), is one of a number of recent court of appeals cases grappling with how to interpret the free, appropriate public education (FAPE) term of the IDEA in light of Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017). Along the way, the court took up issues of parental participation in the IEP process and the adequacy of behavioral services provided the student. The case therefore has much of interest for impartial hearing officers.
The case involved parts of the third and fourth grade school years of a student with autism and intellectual deficits. Other proceedings covered other periods of time. The parent contended that the educational program and behavior interventions provided the student were inadequate under IDEA standards, but she failed to prevail at a due process hearing and a subsequent appeal to federal district court. The court of appeals affirmed the judgment against the parent.
On the FAPE issue, the court cited Endrew F. and first took up the concerns about the behavior plan. The parent contended that sensory integration techniques, which the plan incorporated, lacked scientific support, and that the student’s behavior deteriorated under the plan. The court rejected the parent’s views, relying on testimony of a board-certified behavior analyst employed as a consultant by the school district. The consultant said that the plan was working well, and that testimony was credited by the hearing officer and the district court. The parent said that the district had lengthened the list of the student’s problem behaviors over the relevant time, something she said showed the plan was not working, but the court pointed out that a list of behavior that lacked information about frequency did not undermine the testimony of the consultant. The court acknowledged the requirement in IDEA that services be “based on peer-reviewed research to the extent practicable,” (see 20 U.S.C. § 1414(d)(1)(A)(i)(IV)), but relied on a district court finding that there was no evidence that sensory integration techniques lack peer-reviewed research support. The court also noted that the techniques were recommended by the student’s occupational therapist. Moreover, the district court found that other, research-supported techniques were used for behavioral support as well.
The parent argued that the IEP had failed to produce academic progress for the student, who in fourth grade was still working at kindergarten level and showed decreasing IQ scores over four years. The court said that the four-year time period was overbroad for the denial of FAPE being alleged, and stressed that the behavior analyst consultant said the student appeared to be improving academically. The court relied on that testimony and on standardized tests that showed progress in English, Reading, and Math, even though the student remained below a first grade level. The court again cited Endrew F., this time for the proposition that the school did not need to maximize the student’s potential.
On the issue of parental participation, the court said the parent had extensive involvement throughout the IEP process, and that her contention that the IEP team improperly held a meeting without her was wrong; instead she chose not to attend despite the district’s efforts to persuade her to come. Any notice violations did not deprive the student of an educational benefit, according to the court. The remainder of the opinion focused on whether the district court improperly failed to afford the parent adequate opportunities to extend time to file responsive pleadings and accept papers out of time, as well as issues of exhaustion of non-IDEA claims when IDEA claims not in front of the court were settled. The court also rejected a retaliation claim.
Part of the takeaway for impartial hearing officers is that well-supported decisions about the credibility of well-qualified experts will likely be upheld by the courts. The hearing officer in the case issued a forty page opinion, which the court said fully addressed the FAPE and participation issues, and there was no question that the testimony on which the hearing officer opinion was based came from someone with adequate credentials who had extensive experience with the child. An additional takeaway is that even though sufficiency of an IEP is a prospective determination, indicators of actual progress such as standardized test scores and credible reports of behavioral progress under an IEP will carry persuasive force as to whether the IEP offered FAPE at the time it was written.