SE.H. v. Board of Education of Anne Arundel County Public Schools ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1486
SE.H., individually and by and through his parents and next
friends, J.H. and S.H.; J.H.; S.H.,
Plaintiffs - Appellants,
v.
BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY PUBLIC SCHOOLS;
MAMIE PERKINS, Interim Superintendent; MARY TILLAR, Director
of Special Education; PATRICIA DEWITT, Coordinator of
Special Services; WENDY CHERMAK, Section 504 Resource Pupil
Personnel Worker,
Defendants - Appellees.
-------------------------
COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
Amicus Supporting Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-00558-JFM)
Argued: March 21, 2016 Decided: May 2, 2016
Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part and remanded by unpublished per curiam opinion.
ARGUED: Selene Almazan-Altobelli, SELENE ALMAZAN LAW, LLC,
Silver Spring, Maryland, for Appellants. Manisha Sharad Kavadi,
CARNEY, KELEHAN, BRESLER, BENNETT & SCHERR, LLP, Columbia,
Maryland, for Appellees. ON BRIEF: Mark B. Martin, LAW OFFICES
OF MARK B. MARTIN, P.A., Baltimore, Maryland, for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Se.H., individually and by and through his parents and
next friends S.H. and J.H. (collectively, “Appellants”), 1 appeals
the district court’s grant of summary judgment in favor of the
Board of Education of Anne Arundel County Public Schools and
four employees of the public school system (collectively,
“AACPS” or “Appellees”).
An Administrative Law Judge (“ALJ”) ruled the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq. (“IDEA”), does not entitle Se.H., who was a first grader
during the 2013-14 school year, to an individual trained in
Cardiopulmonary Resuscitation (“CPR”) and the Heimlich maneuver
to accompany him throughout the school day. The district court
upheld this decision. Appellants contend the district court
erroneously deferred to the ALJ’s IDEA decision, and also failed
to address their claims under Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794(a) (“Section 504”), and Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”).
We hold that the district court properly granted
summary judgment in favor of Appellees on Appellants’ IDEA
1
To protect the identity of the child, this opinion refers
to him and to his parents by their initials only. See MM ex
rel. DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 526 (4th
Cir. 2002).
3
claims. However, the district court’s reasons for disposing of
the Section 504 and ADA claims are unclear. Therefore, we
remand to allow the district court to clarify the reasoning
underlying its disposition of these claims.
I.
A.
The ALJ for the Maryland Office of Administrative
Hearings (“OAH”) found the following facts, which are undisputed
on appeal. Se.H. has been diagnosed with several medical
conditions, including cerebral palsy; severe food allergies to
wheat/gluten, barley, peanuts, and buckwheat; allergies to dust,
pollen, mold, and smoke; asthma, including Baker’s Asthma (an
allergic disease caused mainly by inhalation of flour); oral
dysphasia (a swallowing disorder) and feeding difficulties;
dysarthria (a weakening of speech-producing muscles); seizure
disorder; postural kyphosis (an abnormal curve of the spine);
and vision problems. At all relevant times, Se.H. was enrolled
in Rippling Woods Elementary School (“Rippling Woods”), which is
part of the AACPS System.
At Rippling Woods, Se.H. is assigned to a one-on-one
aide (the “Aide”). He has an extensive Individualized Education
Program (“IEP”) that provides for “instructional supports,
physical and environmental supports, adult assistance or
monitoring at all times, assistive technology, speech-language
4
pathology services, physical therapy services, occupational
therapy services, and vision services.” J.A. 58. 2 Rippling
Woods has implemented the IEP by carrying out the following
measures, inter alia:
• To decrease the possibility of exposure to
food allergens, at lunch time, Se.H. sits
at the end of a table with other
classmates, and his lunch area is marked
off by a yellow stripe about two and one-
half feet from the end of the table. The
other pupils are not allowed to cross into
Se.H.’s lunch area;
• To avoid exposing Se.H. to potential
allergens, students in his class eat
breakfast in the cafeteria rather than the
classroom;
• The Aide assists Se.H. during lunch, and
the speech-language pathologist developed
a feeding protocol for use at mealtimes,
with the goal that Se.H. will self-feed at
a modified independent level;
• If anaphylaxis occurs, the first line of
defense is an injection with an
epinephrine auto-injector (“Epi-Pen”),
which is kept in a pack on the back of
Se.H.’s wheelchair, and all Rippling Woods
staff members have been trained to use the
Epi-Pen;
• If Se.H. were to choke on food or a
foreign object, the emergency plan is to
call 911 and have trained staff perform
the Heimlich maneuver;
2 Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
5
• If Se.H. goes into respiratory arrest and
becomes unconscious, the emergency plan is
to call 911 and have trained staff
administer CPR;
• Rippling Woods has a four-page form that
guides personnel through Se.H.’s abilities
and needs while on field trips. It
requires that Se.H. have adult supervision
and assistance on such trips, but it does
not require that the accompanying adult be
trained in CPR and the Heimlich maneuver;
• Se.H. has a walkie-talkie attached to the
back of his wheelchair that can
communicate with other walkie-talkies
located in the nursing office, principal’s
office, and with the general and special
education teachers;
• Rippling Woods has staff trained in both
CPR and the Heimlich maneuver, including
the school nurse (who is at the school
half-time), the Licensed Practical Nurse
health assistant (who is at the school
full-time), the physical education
teacher, and the school-based speech
pathologist. Three cafeteria workers also
have training in the Heimlich maneuver.
Nursing staff can reach the cafeteria in
four seconds and Se.H.’s classroom in 18
seconds.
Se.H.’s parents are dissatisfied with the IEP, however, because
it does not require that an individual trained in Heimlich and
CPR is by Se.H.’s side at all times throughout the day. 3
3 Se.H. attended kindergarten at Rippling Woods during the
2012-13 school year, and during that year, as well as 2013-14,
he had no episodes of choking or anaphylaxis, did not require
administration of the Heimlich maneuver or CPR, and had no
episodes requiring a 911 call. Se.H. had not attended any field
trips at the time of the ALJ’s hearing.
6
To prepare for the 2013-14 school year, Se.H.’s IEP
team held a meeting on March 4, 2013. It was at this meeting
that his parents first expressed concern that a staff member
trained in CPR and the Heimlich maneuver was not with Se.H. at
all times. The team then held nine meetings between April 17
and August 28, 2013, and his parents “continued to bring this
issue up for discussion.” J.A. 62. AACPS rejected this request
at every turn, explaining that they were only required to have
trained personnel in the building, which they did. Even when
the Anne Arundel County Health Department offered to train
Se.H.’s Aide in CPR and Heimlich maneuver, Appellee Patricia
DeWitt, AACPS Coordinator of Special Services, would not allow
her to be trained because “[i]t would set a precedent and [the
Aide] already ha[d] too much on her plate.” Id. at 73-74.
DeWitt explained at the ALJ hearing that training the Aide would
“[not be] an appropriate use of staff.” Id. at 74.
Se.H.’s IEP for the 2013-14 school year was finalized
on August 28, 2013, but his parents were not satisfied. They
filed a due process complaint (the “Administrative Complaint”)
with the OAH on September 10, 2013, claiming that AACPS failed
to provide Se.H. with a free appropriate public education
(“FAPE”) as required by the IDEA.
7
B.
In the Administrative Complaint, Appellants sought
relief not only under the IDEA, but also under Section 504 and
the ADA. Appellants requested the following relief: “CPR and
Heimlich maneuver training for adult staff, including but not
limited to [Se.H.’s] adult assistant and any other adults who
work directly with [Se.H.] and are present throughout the day
when exposure to known allergens or potential aspiration and
asphyxiation are possible,” and also CPR and Heimlich maneuver
training for those “who work directly with [Se.H.] and are
available to attend field trips with [Se.H.].” J.A. 71.
On October 23, 2013, the ALJ determined that the
Section 504 issues (and presumably, the ADA issues) raised in
the Administrative Complaint should be dismissed for lack of
jurisdiction. This determination was based on AACPS’s October
15, 2013 letter to the OAH explaining that it no longer
possessed the authority to hold Section 504 hearings.
Therefore, the ALJ only considered whether AACPS “failed to
provide [Se.H.] a [FAPE] in the least restrictive environment
for the 2013-2014 school year” under the IDEA. J.A. 52. 4
4The ALJ also addressed whether AACPS committed an IDEA
procedural violation by failing to explain in writing why AACPS
declined to train the Aide. See 20 U.S.C. § 1415(b)(3). The ALJ
ultimately found no violation, and Appellants do not challenge
this determination on appeal.
8
The ALJ held the IDEA administrative hearing on four
separate days, stretching from late October to early December
2013. Appellants presented seven witnesses, and AACPS presented
four witnesses, three of which were also called by Appellants.
The parties filed over 50 exhibits.
The ALJ rendered a decision on the IDEA claim on
December 18, 2013, ultimately determining that the procedures in
place at Rippling Woods satisfied the IDEA standards.
Meanwhile, the parties engaged in protracted communications in
an attempt to meet for an administrative hearing pursuant to
Section 504, to no avail.
Appellants filed the instant action in the District of
Maryland on February 25, 2014. Counts I and II challenge the
ALJ’s IDEA decision, alleging substantive and procedural IDEA
violations. 5 Counts III, IV, V, and IX allege Section 504
violations only: intentional discrimination (III),
discrimination in AACPS’s policies and practices (IV), denial of
reasonable accommodation (V), and failure to provide a FAPE
(IX). Counts VI and VII allege claims under both the ADA and
Section 504: failure of AACPS to act against certain employees
5 Pursuant to the IDEA, “[a] party aggrieved by the decision
of the state agency may bring a civil action in state or federal
court.” E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of
Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20 U.S.C.
§ 1415(i)(2)).
9
for discriminatory actions (VI), and retaliation (VII). 6 And
Count VIII alleges Appellees violated Title II of the ADA by
excluding Se.H. from programs, services, and benefits by reason
of his disabilities.
Apart from attorney’s fees and costs, Appellants seek
only the following equitable relief: an order requiring the Aide
to be trained in Heimlich and CPR, and a declaratory judgment
stating that AACPS’s Section 504 practices violate Section 504
as applied to Se.H. 7
Appellants filed a motion for partial summary judgment
on only the IDEA claims and Section 504 discrimination claims.
Appellees filed a cross motion for summary judgment on all
counts. The district court granted Appellees’ motion and denied
Appellants’ motion, explaining:
It is true that because of Se.H.’s physical
condition, there is a greater risk he will
need CPR or the administration of the
Heimlich maneuver than other students.
However, [AACPS] has in place reasonable
procedures to assure that if Se.H. does need
assistance, there are persons available who
6 Appellants also grounded these causes of action in 42
U.S.C. § 1983, but they do not raise any issues with respect to
§ 1983 in this appeal.
7 Appellants also seek “a declaratory judgment” stating the
ALJ’s decision contained “mistakes of law that were flawed and
were clearly erroneous.” J.A. 26. Because the possibility of
this type of relief is inherent in the review process set forth
in the IDEA, we decline to consider it a separate remedy.
10
will be able to help him. One certainly is
sympathetic to Se.H. and his parents.
However, reasonableness is something less
than perfection, and, as found by the [ALJ],
the measures that defendant has put in place
provide adequate protection of Se.H.
J.A. 46-47. The district court mentioned Section 504 and the
ADA 8 only in the opening sentence of the memorandum, and in a
footnote observed, “[T]he emergency plan that defendant has in
place for Se.H. complies with applicable law.” J.A. 47 n.1
(emphasis supplied). Appellants filed a timely notice of
appeal.
II.
The IDEA Decision
We first address whether the district court erred in
granting summary judgment to Appellees on Appellants’ IDEA
claims.
A.
The IDEA requires that states receiving federal
education funds provide a FAPE to all children with
disabilities. See E.L. ex rel. Lorsson v. Chapel Hill-Carrboro
Bd. of Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20
U.S.C. § 1400(d)(1)(A)). Where an ALJ decides that a student’s
IEP provides a FAPE, the party challenging the IEP “properly
8 The district court actually stated the action was brought
under the “ADEA,” but we construe this as a typo.
11
bears the burden of proof in showing that the [ALJ]’s decision
was erroneous.” Barnett by Barnett v. Fairfax Cty. Sch. Bd.,
927 F.2d 146, 152 (4th Cir. 1991).
A reviewing court “is obliged to conduct a modified de
novo review” of the ALJ’s IDEA decision, “giving ‘due weight’ to
the underlying administrative proceedings.” MM ex rel. DM v.
Sch. Dist. of Greenville Cty., 303 F.3d 523, 530-31 (4th Cir.
2002) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982)).
In this situation, “findings of fact made in administrative
proceedings are considered to be prima facie correct, and if a
reviewing court fails to adhere to them, it is obliged to
explain why.” Id. at 531; see also J.P. ex rel. Peterson v.
Cty. Sch. Bd. of Hanover Cty., Va., 516 F.3d 254, 259 (4th Cir.
2008); Doyle v. Arlington Cty. Sch. Bd., 953 F.2d 100, 105 (4th
Cir. 1991). Furthermore,
[w]hether a district court has accorded the
proper “due weight” to the administrative
proceedings is a question of law -- or at
least a mixed question of law and fact -- to
be reviewed de novo by an appellate court.
In our review, we need not defer to factual
recitations made by a district court from
the administrative record, because that
court stands in no better position than do
we in reviewing the record.
MM, 303 F.3d at 531.
12
If the administrative findings of fact are not
“regularly made,” however, they are not entitled to deference.
J.P., 516 F.3d at 259; see also Cty. Sch. Bd. of Henrico Cty.,
Va. v. Z.P., 399 F.3d 298, 305 (4th Cir. 2005) (“[F]actual
findings made during the state administrative proceeding are
entitled to a presumption of correctness, so long as the
findings were regularly made.” (internal quotation marks
omitted)). Factual findings are not “regularly made” “if they
are reached through a process that is far from the accepted norm
of a fact-finding process.” J.P., 516 F.3d at 259 (internal
quotation marks omitted); see also Doyle, 953 F.2d at 105 (“[I]n
deciding what is the due weight to be given an administrative
decision under Rowley, we think a reviewing court should examine
the way in which the state administrative authorities have
arrived at their administrative decision and the methods
employed.”).
B.
Appellants contend the ALJ’s IDEA decision was not
“regularly made” for the following reasons: (1) it was “not
well-reasoned and nor [sic] supported by the record”; (2) it
“failed to make determinations based upon findings of fact and
current IDEA statutes and regulations” and instead characterized
the issues as “policy” disputes; and (3) it erred in its
13
analysis regarding “training” of school personnel. Appellants’
Br. 14-16.
We first note that although Appellants mention that
the ALJ’s “findings were not entitled to deference” and that the
ALJ “failed to make [certain] determinations,” their opening
brief does not specifically note which findings they challenge
or which “determinations” the ALJ failed to make. Appellants’
Br. 14. Therefore, Appellants have waived this particular
issue. See Fed. R. App. P. 28(a)(8)(B) (“The appellant’s brief
must contain . . . appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record
on which the appellant relies.”); see also Estate of Armstrong
ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 n.6
(4th Cir. 2016) (“Failure to present or argue assignments of
error in opening appellate briefs constitutes a waiver of those
issues[.]”).
In any event, the ALJ’s proceedings were not “far from
the accepted norm.” J.P., 516 F.3d at 259 (internal quotation
marks omitted). First, the ALJ decision was well-reasoned and
supported by the record. The ALJ heard testimony from numerous
witnesses over four days and clearly reviewed meeting reports,
health reports, educational documents, and IEPs. The ALJ
credited the testimony of personnel who actually worked with
Se.H. over Appellants’ expert, which is reasonable and
14
appropriate. See A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 328
(4th Cir. 2004) (“IDEA requires great deference to the views of
the school system rather than those of even the most well-
meaning parent.”). We see no indication that the ALJ deviated
from the “normal” process of soliciting evidence and hearing
testimony.
Second, Appellants’ reliance on the ALJ’s mention of
“policy” disputes is a red herring. Appellants maintain that
the ALJ relied on “policy” rather than “appl[ying] the
requirements of the IDEA to the facts in their case.”
Appellants’ Br. 17. In so arguing, Appellants extract isolated
phrases out of context.
The ALJ did state, “The dispute in this case is really
about policy, not facts.” J.A. 71. However, the ALJ then
expounded on this statement, explaining that according to the
notes from the March 4, 2013 IEP meeting (when the parents
raised their concerns for the first time), the parents had been
in contact with the Maryland State Department of Education.
Based on a conversation with personnel there, they believed that
someone trained in the Heimlich maneuver and CPR was required to
be in the room with Se.H. when he was eating. The ALJ found
that, in that March IEP meeting, the parents were referring to
Maryland’s Technical Assistance Bulletin 28, which explained,
“Training of personnel [for safety of students during mealtime]
15
should include first aid, CPR, Heimlich, signs and symptoms of
aspiration, and procedures specific to individual
students/children.” Id. at 72 (emphasis supplied). Therefore,
the ALJ’s statement about “policy” was merely a recognition that
the dispute between the parents and AACPS was based in part on
interpretation of a state policy.
The ALJ then mentioned “policy” again, stating:
A review of [the evidence] might lead one to
think that AACPS could have easily complied
with the Parents’ request to forestall
disagreement, and ultimately, litigation.
However, as stated previously, this dispute
is about policy, not facts. Whether AACPS
could have provided the training that the
Parents wanted is immaterial; the issue is
whether the decision not to do so deprives
the Student of a FAPE.
J.A. 74 (emphasis supplied). A reasonable reading of this
passage is that an ALJ should not consider what an educational
entity could have done; rather, it is required to look at
whether that entity’s actions were appropriate under the IDEA.
The ALJ in this case did just that. He applied the information
from extensive testimony and numerous exhibits to the proper
IDEA standards in rendering his decision.
Finally, Appellants’ argument regarding training is
without merit. Appellants claim that the ALJ’s statement that
“‘training that a school system decides to use . . . is solely
within the purview of school officials’” was incorrect and
16
“subsequently over ruled [sic]” by the enactment of 20 U.S.C.
§ 1414(d)(1)(A). Appellants’ Br. 16 (quoting J.A. 77); see also
20 U.S.C. § 1414(d)(1)(A)(i)(IV) (An IEP should include “a
statement of the program modifications or supports for school
personnel [i.e., special training] that will be provided for the
child.” (emphasis supplied)).
But even if § 1414(d)(1)(A) “overruled” the concept
upon which the ALJ relied, nothing in these provisions
undermines the ALJ’s ultimate decision. The ALJ still analyzed
whether AACPS’s decision to forego training Se.H.’s Aide
deprived him of a FAPE. See J.A. 77-78 (“The evidence that such
trained personnel would be of benefit to the Student is minimal,
and [AACPS]’s evidence is convincing that it is not necessary,
since trained personnel are always in the building and
immediately available if an emergency occurs.”). As a result,
any perceived error on the ALJ’s part was not materially
erroneous.
For these reasons, the district court was entitled to
give the administrative decision “due weight.” We reject
Appellants’ argument to the contrary. 9
9Appellants fail to set forth a sufficient argument
challenging the district court’s or ALJ’s determination that
Se.H.’s IEP provides him with a FAPE. Therefore, they have also
waived this issue on appeal. See Fed. R. App. Proc.
28(a)(8)(B); Estate of Armstrong, 810 F.3d at 898 n.6.
17
III.
Section 504 and ADA Claims
Appellants also contend the district court erred in
granting summary judgment on their Section 504 and ADA claims.
They maintain that the district court did not sufficiently
address these claims and that genuine issues of material fact
remain.
On March 31, 2015, the district court filed a
memorandum decision (“Memorandum”), and entered an accompanying
order (“Order”). At the end of the Memorandum, the district
court stated, “A separate order is being entered herewith
affirming the decision of the administrative law judge,” and the
Order itself only purports to affirm “the order entered by the
administrative law judge.” Id. at 47-48 (emphasis supplied).
As explained above, the ALJ only decided the IDEA issue, did not
address the ADA claims, and did not possess jurisdiction over
the Section 504 claims.
Although the Memorandum mentions the ADA and Section
504, it does so only in the opening sentence, merely
acknowledging that Appellants’ action was “brought under” those
statutes. J.A. 45. Further, whereas the Memorandum observes
that the IEP “complies with applicable law,” J.A. 47 n.1, this
court has explained the “IDEA and the Rehabilitation Act are
different statutes. Whereas IDEA affirmatively requires
18
participating States to assure disabled children a free
appropriate public education, [S]ection 504 . . . instead
prohibits discrimination against disabled individuals,” Sellers
by Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F.3d 524,
528 (4th Cir. 1998) (citation omitted)).
Therefore, the basis for the district court’s decision
on the ADA and Section 504 claims is not apparent. We believe
the best course of action is to remand and allow the district
court to clarify the reasoning underlying its disposition of
Appellants’ Section 504 and ADA discrimination, reasonable
accommodation, retaliation, and FAPE claims. See Jones v.
Plaster, 57 F.3d 417, 421-22 (4th Cir. 1995) (remanding for
further proceedings “in order for the district court to clarify
its ruling”); see also Q Int’l Courier, Inc. v. Smoak, 441 F.3d
214, 220 n.3 (4th Cir. 2006) (“Although we are not precluded
from addressing [questions the district court did not reach], we
deem it more appropriate to allow the district court to consider
them . . . in the first instance on remand.”).
IV.
For the foregoing reasons, we affirm the district
court with regard to its IDEA decision, and we remand for
further proceedings consistent with this opinion.
AFFIRMED IN PART
AND REMANDED
19