R.P. v. Alamo Heights Independent School District , 703 F.3d 801 ( 2012 )

Case: 11-50956 Document: 00512095800 Page: 1 Date Filed: 12/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 27, 2012
No. 11-50956 Lyle W. Cayce
Clerk
R.P., by next friend R.P. and C.P.,
Plaintiff - Appellant,
v.
ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and DeMOSS and GRAVES, Circuit Judges.
CARL E. STEWART, Chief Judge:
Plaintiff-Appellant R.P., a student in the Alamo Heights Independent
School District (“AHISD”), brought suit by her parents, R.P. and C.P., against
Defendant-Appellee AHISD under the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1400 et seq, for allegedly failing to provide her with a
free appropriate public education, as required by the IDEA. The district court
granted AHISD’s motion for summary judgment. R.P. now appeals. We
AFFIRM.
I. BACKGROUND
On appeal, R.P. asserts that she was denied a free appropriate public
education (“FAPE”) for three reasons: (1) her parents were not permitted to fully
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participate in Admissions, Review, and Dismissal (“ARD”)1 committee meetings;
(2) AHISD delayed providing her with an assistive technology (“AT”) device2
because school personnel did not timely complete an AT evaluation; and (3)
AHISD did not conduct a functional behavioral assessment (“FBA”) before
developing a Behavior Intervention Plan (“BIP”) for her.3
A. Facts
At the time of R.P.’s due process hearing, she was a ten-year old student
in AHISD who was eligible for special education placement, programs, and
services as a child with autism, mental retardation, and a speech impairment.
R.P. is essentially non-verbal, and so a variety of communication methods,
including sign language, picture cards, and voice communication devices, have
been used with her at school to help her communicate.
The record shows that in kindergarten, R.P. was using a picture
communication system, which AHISD refers to as a Picture Exchange
Communication System (“PECS”). When R.P. was in first grade (Fall 2006-
1
In Texas, members of the ARD committee prepare an eligible student’s IEP. The
committee includes the parents of the child with the disability, at least one of the child’s
regular education teachers, at least one special education teacher, a representative of the
school district, an “individual who can interpret the instructional implications of evaluation
results, other individuals who have knowledge or special expertise regarding the child,” and
the child, if appropriate. Houston Indep. Sch. Dist. v. V.P., 582 F.3d 576, 580 n.1 (5th Cir.
2009) (internal quotation marks omitted) (citing 20 U.S.C. § 1414(d)(1)).
2
Under the IDEA, an assistive technology device is defined as “any item, piece of
equipment, or product system, whether acquired commercially off the shelf, modified, or
customized, that is used to increase, maintain, or improve functional capabilities of a child
with a disability.” 20 U.S.C. § 1401(1)(A).
3
R.P. raises two additional issues in her brief: (1) the district court erred in refusing
to admit additional ARD tapes into evidence and (2) the district court applied the improper
standard of review. However, R.P. explicitly waived these issues during oral argument.
Although R.P.’s initial complaint before the Texas Education Agency contained
numerous additional issues, she has waived them by not briefing them before this court. See
Fed. R. App. P. 28(a)(9)(A) (stating that an appellant’s brief must contain her “contentions and
the reasons for them”).
2
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Spring 2007), R.P.’s parents purchased a voice output device called the Go Talk
because they were frustrated with her progress. At school, R.P. continued
primarily to use PECS, but the school also began using the Go Talk on a trial
basis. At the end of the year, R.P.’s occupational therapist reported that R.P.’s
“communication system is working well for her. . . . Her communication system
is constantly evolving with the progress she makes.” The occupational therapist
also noted that R.P. was working more successfully with PECS than with the Go
Talk.
At the beginning of her second grade year (Fall 2007-Spring 2008), AHISD
completed a Full Individual Evaluation (“FIE”) for R.P. in order to designate her
as a child with autism. The FIE report noted that R.P. was “most comfortable
using [PECS] for understanding commands and also indicating her wants and
desires,” and it expressed the view that a speech output system should not be
considered until her language further developed. Nonetheless, AHISD continued
to assess R.P.’s use of the Go Talk, and her teachers used it for mathematics and
reading. R.P. continued to make progress toward her language objectives and
reading IEP. However, in the ARD meeting at the end of the school year, R.P.’s
father (“R.L.P.”) reported that R.P.’s expressive language at home had decreased.
Therefore, at the end of the school year AHISD staff conducted three in-home
sessions focused on PECS and the Go Talk in order to transfer R.P.’s successful
use of the communication system to the home environment. The ARD committee
also requested that AHISD complete an AT assessment for communication by
October 1, 2008.4
The ARD committee convened in October of R.P.’s third grade year (Fall
2008-Spring 2009), but the AT assessment was not presented. Nor was it
presented at a December 2008 ARD meeting, which was convened after R.P.’s
4
AHISD did not enter the tape of this ARD meeting into evidence, so we could not
ascertain the exact parameters of or reasons for this evaluation.
3
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principal, Cordell Jones, cut the October meeting short due to R.L.P’s behavior.
In December 2008, R.L.P. sent Jones a letter asking about the status of the AT
assessment due October 1, 2008. In January 2009, Susan Houser, a licensed
specialist in school psychology who was part of the ARD committee, sent an e-
mail to R.P.’s speech therapist inquiring about the status of the assessment. In
the due process hearing, Houser testified that she subsequently learned the
assessment had been completed. At the year-end ARD meetings, held in late
May and early June 2009 to prepare R.P.’s 2009-2010 IEP, the ARD committee
finally discussed the results of the AT assessment. Also at the meeting, R.L.P.
raised concerns about AHISD’s slow implementation of a voice output device for
R.P., and a school employee informed him that the school was in the process of
implementing a voice output device for R.P. to use. The ARD committee then
requested a second AT evaluation. Shortly thereafter, R.P’s mother, C.P., wrote
Jones a letter, raising concerns about the delay that would result from a further
“data gathering” process.
Meanwhile, the record shows that R.P. was using a more advanced voice
output device, known as a DynaVox, no later than April 2009. Some of her IEP
goals also required the use of a voice output device. She was not, however,
issued her own device, but instead she borrowed devices from other students.
Additionally, AHISD began trying an additional device, the Tango, in an effort
to determine which device was best suited for R.P.
AHISD completed the second AT evaluation at the beginning of R.P.’s
fourth grade year (Fall 2009-Spring 2010), and she began using the DynaVox
regularly. R.P.’s parents and her teachers testified that she made significant
progress with the aid of the DynaVox.
B. Procedural History
On November 24, 2009, R.P. filed a written request for a due process
hearing with the Texas Education Agency (“TEA”). See 20 U.S.C. § 1415(b)(6),
4
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(f). R.P. asserted a number of defects in AHISD’s handling of her education,
which she alleged amounted to a denial of FAPE. A two-day due process hearing
was held March 8, 2010 and March 9, 2010 after which the TEA hearing officer
issued a lengthy decision, determining that R.P. had not been denied a FAPE
and finding for AHISD on all claims, even though it also noted that AHISD had
not met its obligations under the law in all circumstances. None of those failures
are relevant to this appeal.
R.P. then filed suit in the district court, see 20 U.S.C. § 1415(i)(2), and
AHISD subsequently filed a motion for summary judgment. The district court’s
order found that R.P. had not been denied a FAPE and entered judgment on
behalf of AHISD. R.P. moved for reconsideration of the judgment, which the
district court denied in a text order. This appeal followed.
II. STANDARD OF REVIEW
A district court conducts a “virtually de novo” review of the due process
hearing officer’s decision. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118
F.3d 245, 252 (5th Cir. 1997) (citation and internal quotation marks omitted).
Thus, while the district court must give “due weight to the hearing officer’s
findings, the court must ultimately reach an independent decision based on a
preponderance of the evidence.” Id. (citation and internal quotation marks
omitted).
We then review the district court’s decision de novo, as a mixed question
of law and fact. Id. (citation omitted). We review the district court’s findings of
underlying fact, such as “findings that a disabled student obtained educational
benefits under an IEP,” for clear error. Id. (citations omitted). Under a clear
error standard, we will not reverse the district court unless we are “left with a
definite and firm conviction that a mistake has been committed.” Houston
Indep. Sch. Dist. v. V.P., 582 F.3d 576, 583 (5th Cir. 2009) (citation and internal
quotation marks omitted). “The party challenging the appropriateness of an IEP
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bears the burden of demonstrating that the IEP and resulting placement were
inappropriate under the requirements of the IDEA.” Id. (citation omitted).
Pursuant to the de novo standard, we have carefully reviewed the
extensive record associated with this case, including over 4,000 pages of exhibits,
transcripts from the due process hearing, and over 10 hours of tape-recorded
ARD committee meetings.
III. DISCUSSION
A. Motion for Reconsideration
As a threshold matter, AHISD asserts that R.P.’s notice of appeal was only
from the district court’s denial of her motion for reconsideration.5 AHISD argues
that R.P.’s motion did not address the district court’s interpretation of the IDEA
or her allegations that she was denied a FAPE. AHISD therefore claims that
R.P.’s substantive challenges are not properly before this court. We disagree.
Under the Federal Rules of Appellate Procedure, “[t]he notice of appeal
must . . . designate the judgment, order, or part thereof being appealed.” Fed.
R. App. P. 3(c)(1)(B). This court treats notices of appeal relatively liberally
“where the intent to appeal an unmentioned or mislabeled ruling is apparent
and there is no prejudice to the adverse party.” C.A. May Marine Supply Co. v.
Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. July 1981) (per curiam) (citation
omitted). “[W]e have specifically treated appeals of [59(e) motions for
reconsideration] as appeals of the underlying judgment when the intent to do so
was clear.” Alberta Energy Partners v. Blast Energy Servs., Inc. (In re Blast
5
In AHISD’s initial brief on appeal, it also asserted that we lacked jurisdiction to hear
this appeal because R.P.’s notice of appeal was untimely. As AHISD recognized in a letter
subsequently filed pursuant to Federal Rule of Appellate Procedure 28(j), R.P.’s motion for
reconsideration was timely filed twenty-eight days after the judgment was entered in the
docket. See Fed. R. App. P. 4(a)(7)(A). Accordingly, her deadline to file a notice of appeal was
tolled until the district court entered an order disposing of her motion for reconsideration. Id.
at 4(a)(4)(A). After the district court entered such order, R.P. timely filed her notice of appeal.
Therefore, we have jurisdiction to review this appeal.
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Energy Servs, Inc.), 593 F.3d 418, 424 n.3 (5th Cir. 2010) (citations omitted).
The purpose of the notice of appeal is to provide sufficient notice to the appellees
and the courts of the issues on appeal. See, e.g., Hernandez v. Thaler, 630 F.3d
420, 425 n.15 (5th Cir. 2011) (per curiam) (quoting Smith v. Barry, 502 U.S. 244,
248-49 (1992)); Fed R. App. P. 3 advisory committee’s note (“[S]o long as the
function of notice is met by the filing of a paper indicating an intention to appeal,
the substance of the rule has been complied with.”).
Here, AHISD has not asserted it was prejudiced by R.P.’s notice of appeal,
which stated that it was an appeal from the “Order Denying Motion for
Reconsideration.” Therefore, determining whether to treat R.P.’s notice of
appeal as an appeal from the underlying judgment turns on whether the intent
to appeal the merits of the judgment was “apparent.” C.A. May Marine Supply
Co., 649 F.2d at 1056.
R.P.’s motion for reconsideration was supported by a memo seeking broad
relief from the district court’s summary judgment order. The memo asked the
district court to reconsider its entry of summary judgment and concluded that
“[b]y dismissing as incompetent summary judgment evidence all of the
administrative record citations in the Plaintiff’s response, the court failed to
conduct a proper review of the motion [for summary judgment].” The district
court’s summary judgment order clearly discussed all of the issues R.P. has
raised on appeal. Therefore, the combination of R.P.’s memo in support of her
motion for reconsideration and the contents of the district court’s summary
judgment order provided AHISD with notice of the issues R.P. raises on appeal.
That R.P. ultimately chose not to appeal all of the issues analyzed in the district
court’s order does not alter our analysis.
Accordingly, we hold that R.P. satisfied our liberal notice of appeal
requirements, and we now consider the merits of her appeal.
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B. Free Appropriate Public Education
One of the purposes of the IDEA is “to ensure that all children with
disabilities have available to them a free appropriate public education that
emphasizes special education and related services designed to meet their unique
needs . . . .” 20 U.S.C. § 1400(d)(1)(A). As “a local educational agency
responsible for complying with the IDEA as a condition of the State of Texas’
receipt of federal education funding,” AHISD must “provide each disabled child
within its jurisdictional boundaries with a free appropriate public education
tailored to his unique needs . . . .” Michael F., 118 F.3d at 247 (citation and
internal quotation marks omitted). A student’s “individual education program”
(“IEP”) is the method by which a school system implements these requirements.
See 20 U.S.C. § 1414(d).
The FAPE required by the IDEA “need not be the best possible one, nor
one that will maximize the child’s educational potential; rather, it need only be
an education that is specifically designed to meet the child’s unique needs,
supported by services that will permit him ‘to benefit’ from the instruction.”
Michael F., 118 F.3d at 247-48 (citing Bd. of Educ. of the Hendrick Hudson Cent.
Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 188-89 (1982)).
“Nevertheless, the educational benefit to which the [IDEA] refers and to which
an IEP must be geared cannot be a mere modicum or de minimus; rather an IEP
must be likely to produce progress, not regression or trivial educational
advancement.” Id. at 248 (citation and internal quotation marks omitted).
When a parent challenges the appropriateness of an IEP, we first
determine whether the state has complied with the IDEA’s procedural
requirements. V.P., 582 F.3d at 583 (citation omitted). Then, we determine
“whether the IEP developed through such procedures was reasonably calculated
to enable the child to receive educational benefits.” Id. (citation and internal
quotation marks omitted). We have identified four factors “that can serve as
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indicators of whether an IEP” satisfies the substantive inquiry: “(1) the program
is individualized on the basis of the student’s assessment and performance; (2)
the program is administered in the least restrictive environment; (3) the services
are provided in a coordinated and collaborative manner by the key
‘stakeholders’; and (4) positive academic and non-academic benefits are
demonstrated.” Michael F., 118 F.3d at 253.
1. Procedural requirements
We first evaluate whether AHISD complied with the IDEA’s procedural
requirements. R.P. has not explicitly identified any claims as procedural.
However, R.P. does argue that her parents were not permitted to participate
fully in ARD committee meetings. We interpret this issue as a procedural one
and will evaluate it as such. She makes four arguments in support of this
contention: (1) that Jones prematurely terminated ARD meetings; (2) that
AHISD improperly used voting at the ARD meetings to approve IEPs instead of
seeking consensus; (3) that her parents’ input was not meaningfully considered;
and (4) that decisions about her IEPs were made prior to the ARD meetings. We
address these arguments in order.
One of the purposes of the IDEA is “to ensure that the rights of children
with disabilities and parents of such children are protected.” 20 U.S.C. §
1400(d)(1)(B). The IDEA thus “imposes extensive procedural requirements
designed to guarantee parents . . . an opportunity for meaningful input into all
decisions affecting their child’s education . . . .” Buser v. Corpus Christi Indep.
Sch., 51 F.3d 490, 493 (5th Cir. 1995) (citation and internal quotation marks
omitted). These procedures require that the parents of a child with a disability
have the opportunity “to participate in meetings with respect to the
identification, evaluation, and educational placement of the child, and the
provision of a free appropriate public education to such child . . . .” 20 U.S.C. §
1415(b)(1); see also 34 C.F.R. § 300.501 (b)(1) (same). However, “procedural
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defects alone do not constitute a violation of the right to a FAPE unless they
result in the loss of an educational opportunity.” Adam J. v. Keller Indep. Sch.
Dist., 328 F.3d 804, 812 (5th Cir. 2003) (citations and internal quotation marks
omitted).
First, we address R.P’s argument that ARD meetings were improperly
terminated early. The district court found that “R.P. fails to demonstrate how
any alleged premature termination of meetings resulted in the denial of a
FAPE.” We hold that the district court did not err in this finding. There is no
question that R.P.’s parents and AHISD employees had a history of tension. We
do not doubt that R.L.P., who attended the ARD meetings, was often frustrated
with AHISD, and a review of the ARD meeting tapes shows that AHISD
employees occasionally fueled this frustration. It is also true that AHISD
employees dedicated significant time and effort to preparing for and
participating in ARD committee meetings and usually sought to work
cooperatively with R.P.’s parents. In his efforts to be an effective advocate for
his daughter, R.L.P. sometimes allowed his emotions to thwart resolution of the
educational issues.
With this background, we hold that AHISD did not deny R.P. a FAPE
when Jones occasionally ended meetings early due to R.L.P.’s behavior. We so
conclude primarily because AHISD promptly scheduled follow-up meetings at
times R.L.P. could attend in order to continue discussing issues related to R.P.’s
IEP. These follow-up meetings ensured that R.P. did not lose any educational
opportunities and thus, she was not denied the right to a FAPE.6
6
We recognize the burden multiple meetings place on parents, and so we do not suggest
that scheduling multiple meetings is appropriate as a matter of course. The specific facts of
this case, however, indicate that Jones acted appropriately when circumstances warranted a
cooling-off period for R.L.P.
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As to her second argument, R.P. has provided no citations to the record
where AHISD personnel voted on her IEP rather than reach consensus. A
party’s argument must contain appropriate citations to relevant parts of the
record. Fed. R. App. P. 28(a)(9). It is not the Court’s “duty to sift through the
record in search of evidence to support a party’s opposition to summary
judgment.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citation and
internal quotation marks omitted). Therefore, this argument is unavailing.
R.P.’s third and fourth arguments are related. She asserts that AHISD
personnel made decisions about her IEP prior to the ARD meetings, and thus
her parents’ input was not meaningfully considered. Under Federal regulations,
not every conversation about a child is a statutorily-defined meeting in which
parents must participate. See 34 C.F.R. § 300.501(b)(3) (“A meeting also does
not include preparatory activities that public agency personnel engage in to
develop a proposal or response to a parent proposal that will be discussed at a
later meeting.”). R.P.’s complaint is similar to, but not as extreme as, the
complaint alleged in Buser, where a child’s parents argued “that the ARD
meetings they attended were conducted in such a way that they were led to
believe that they would have no impact in the development of their son’s IEPs,
and that any disagreement they might have with the IEPs would be futile.” 51
F.3d at 493. In that case, we held that because the child’s parents actively
participated in their child’s special education program, the school district had
complied with the IDEA’s procedural requirements. Id. at 494; see also Adam
J., 328 F.3d at 813 (finding IDEA’s procedural requirements were “substantially
satisfied” where child’s parent was present at every ARD meeting and his
parents “frequently submitted supplemental ‘parent statements’ to express their
concerns and frustrations”).
We reach the same conclusion here. The record shows that AHISD held
numerous ARD meetings for R.P., all of which included R.L.P., who had
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numerous opportunities to voice his thoughts about R.P.’s IEPs. Changes R.P.’s
parents proposed were incorporated into R.P.’s IEPs. Thus, R.P.’s third and
fourth arguments are unavailing as well.
We thus find that as to the alleged defects R.P. raises on appeal, AHISD
did comply with the IDEA’s procedural requirements. Moreover, if any defects
did exist, we conclude that they did not rise to the level of denying R.P. a lost
educational opportunity.
2. Substantive requirements
Having considered R.P.’s procedural claims, we now analyze R.P.’s
substantive claims under the Michael F. factors. We first note that R.P. does not
advance her claims on appeal using the Michael F. framework nor did the
district court explicitly conduct such an analysis. However, “[w]e are not limited
to the district court’s reasons for its grant of summary judgment and may affirm
the district court’s summary judgment on any ground raised below and
supported by the record.” Cambridge Integrated Servs. Group, Inc. v. Concentra
Integrated Servs., Inc., No. 11-31032, – F.3d –, 2012 WL 4378128, at *4 (5th Cir.
Sept. 26, 2012) (citation and internal quotation marks omitted). It does not
appear R.P. has alleged any violations of the second7 or third8 factors, so we do
not consider them.
7
Whether the program is administered in the least restrictive environment.
8
Whether the services are provided in a coordinated and collaborative manner by the
key stakeholders. We note, however, that the multiple claims discussed earlier as asserted
procedural violations of the IDEA could also reasonably be construed as claims relevant to this
factor. To the extent that R.P.’s allegations that some ARD meetings were terminated early,
that voting was used to make decisions rather than seeking consensus, and that AHISD
personnel made decisions before meetings and did not consider R.P.’s parents’ input could be
construed as claims relevant to this factor, they are unavailing. For the same reasons that
these claims do not constitute procedural violations of the IDEA, they also do not demonstrate
that the educational services were not provided in a sufficiently coordinated and collaborative
manner by key stakeholders, including R.P.’s parents.
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a. Factor 1: Program individualized on the basis of the student’s
assessment and performance
R.P. alleges AHISD failed to complete a required AT evaluation by its
October 1, 2008 deadline. She also alleges AHISD did not complete a FBA before
instituting a BIP. Thus, R.P. essentially argues that AHISD failed to create an
individualized program because it did not conduct the assessments necessary to
create one. We first analyze R.P.’s AT evaluation argument.
The IDEA defines assistive technology service as “any service that directly
assists a child with a disability in the selection, acquisition, or use of an assistive
technology device.” 20 U.S.C. § 1401(2). It includes “the evaluation of the needs
of such child, including a functional evaluation of the child in the child’s
customary environment.” 20 U.S.C. § 1401(2)(A). Such services, if necessary,
are part of providing a FAPE to a child with a disability. See 20 U.S.C. §
1400(d)(1)(A).
Whether AHISD had completed an AT evaluation by October 1, 2008 was
a point of considerable discussion at the due process hearing. The hearing officer
found that “[t]he record in this case was confused by the semantic[] difference
between an ‘Assistive Technology Evaluation’ and an ‘Augmentative
Communication Evaluation.’” He concluded that “the record shows that
[AHISD] performed an AT evaluation for communication timely, in October 2008
. . . .” The hearing officer does not support his conclusion with citations to the
record. The district court did not address whether the AT evaluation was
completed by October 1, 2008.9
9
The district court assessed whether R.P. was provided an AT evaluation by October
2009. The district court noted that R.P. did not raise this as an issue at the due process
hearing and found, in the alternative that, even if it were raised, R.P. failed to demonstrate
how this delay resulted in a denial of a FAPE.
We agree with R.P. that the district court clearly erred as to the date the AT evaluation
was due.
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After reviewing the extensive record, it is unclear to us whether AHISD
completed the AT assessment by October 1, 2008. However, more important,
what is clear is that there is no evidence that AHISD personnel discussed the
evaluation at a Fall 2008 ARD meeting in order to incorporate the results into
R.P.’s 2008-2009 IEP.10 Instead, AHISD personnel presented the AT
assessment’s results at the late May 2009 ARD meeting, at which time the
committee was preparing for Fall 2009. The ARD committee requested the AT
evaluation be completed by October 2008. It is not hard to infer this date, early
in the school year, was selected so that the assessment’s results could be
incorporated into R.P.’s 2008-2009 IEP. This apparently was not done. We thus
hold that R.P.’s IEP was not sufficiently individualized because this assessment,
which the ARD committee required AHISD to complete, was not presented to the
ARD committee or incorporated into R.P.’s 2008-2009 IEP.
R.P.’s second argument is that AHISD failed to conduct an FBA before
developing a BIP. The district court found that R.P. was a “model student” who
did not require an FBA. The district court concluded in the alternative that even
if R.P. did require an FBA, she failed to establish that its absence resulted in the
denial of a FAPE.
The IDEA requires a child’s IEP team to “consider the use of positive
behavioral interventions and supports, and other strategies, to address [the]
10
In its brief, AHISD directs us to two documents in the record and an ARD meeting
tape to demonstrate it completed the AT assessment on time. The documents are from ARD
meetings held in May and June 2009, at which time there was an “update” on the AT
assessment that was allegedly presented at the October 14, 2008 ARD. There is no evidence
in the October 2008 ARD meeting minutes that the AT assessment was presented. Moreover,
on the ARD tape, AHISD personnel admit that there was no discussion of the assessment at
that Fall 2008 ARD meeting. The January 2009 e-mail from Houser, asking about the status
of the assessment, also confirms that it was not discussed at any of the Fall 2008 ARD
meetings. Thus, it is not difficult for us to conclude that AHISD never presented the AT
evaluation at a 2008-2009 ARD meeting such that it was appropriately incorporated into R.P.’s
2008-2009 IEP.
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behavior” of a “child whose behavior impedes the child’s learning or that of
others . . . .” 34 C.F.R. § 300.324(a)(2)(i); see also 20 U.S.C. § 1414(d)(3)(B)(i)
(same). An FBA is required, “as appropriate,” when a child has been “removed
from the child’s current placement” for more than ten days due to disciplinary
infractions. 34 C.F.R. § 300.530(d)(1)(ii).
The record contains ample evidence and testimony that R.P. was a well-
liked, well-behaved student. There is no evidence that R.P. was removed from
her educational placement due to disciplinary infractions. Therefore, AHISD
complied with the federal statute. R.P. has not cited to any Texas regulations
pertaining to FBAs, so she has waived any issue that AHISD did not comply
with state law. See Fed. R. App. P. 28 (requiring briefs to contain citations to
authority). But even if she had not waived this issue, we agree with the hearing
officer that R.P.’s BIP was designed, at least in part, to comply with Texas IEP
regulations. See 19 Tex. Admin. Code § 89.1040(c)(1) (2012) (requiring “specific
recommendations for behavioral interventions and strategies” for students with
autism, like R.P.). AHISD created a BIP for R.P. in Spring 2009 based on
observations, record review, and data analysis. The BIP also contains an
antecedent list and replacement behaviors. These are all acceptable ways of
evaluating a child’s behavioral needs under Texas regulations. See 19 Tex.
Admin. Code § 89.1055 (2012) (listing “antecedent manipulation, replacement
behaviors, reinforcement strategies, and data-based decisions” as examples of
appropriate means of developing positive behavior support strategies). The
regulations suggest—but do not require—that an FBA be used to develop a BIP.
19 Tex. Admin. Code § 89.1055 (2012). Thus, it appears that AHISD complied
with both federal and state requirements in developing R.P.’s BIP.
Our above discussion leaves us with a mixed result at the conclusion of our
analysis of Michael F.’s first factor. We held that AHISD’s failure to incorporate
the required AT assessment into R.P.’s 2008-2009 IEP indicated that its program
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was not sufficiently individualized for R.P., but we also held that AHISD’s
decision not to conduct an FBA before preparing R.P.’s BIP did not demonstrate
a lack of individualization. Our analysis as to whether R.P. was denied a FAPE
does not end here. Instead, we continue to analyze R.P.’s claims under the
fourth Michael F. factor.
b. Factor 4: Positive academic and non-academic benefits are
demonstrated
Whether a student demonstrates positive academic and non-academic
benefits is “one of the most critical factors in this analysis.” V.P., 582 F.3d at
588. R.P. asserts that because AHISD did not timely complete its AT evaluation,
she was denied the use of a speech output device for over a year. This, she
asserts, delayed her educational progress. As evidence, C.P. testified that R.P.’s
vocabulary significantly expanded after R.P. began working consistently with
the DynaVox, and the record demonstrates that R.P.’s teachers noted her
progress when she used the DynaVox. We note that R.P. does not appear to
have raised any concerns related to her BIP under this factor.
The district court found that R.P.’s argument that she was deprived of an
AT device for one year is “contradicted by the record [because] R.P. was
successfully using” PECS in the classroom during this time frame. Our review
of the record shows that the district court did not clearly err in this factual
finding.11 The record contains ample evidence that R.P. demonstrated positive
academic and non-academic benefits from her use of AT devices, including
PECS, between Fall 2008 and Fall 2009, the period that elapsed before an AT
evaluation was incorporated into her IEP.
11
As an initial matter, we note that IDEA defines AT devices broadly, and the PECS
fits within its definition. At oral argument, R.P.’s counsel conceded that his argument failed
if we concluded PECS is an AT device. Even though we conclude that it is, we continue to
evaluate this claim on its merits because finding PECS is an AT device does not answer
whether R.P. was making academic and non-academic progress.
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As of Fall 2008, R.P. had been using PECS for several years and she
continued to make progress with the system. For example, R.P.’s speech
therapist testified that over the course of her third grade year, R.P. became more
independent at communicating her wants and needs to school personnel other
than her primary teacher. Under Supreme Court and circuit precedent, the
question here is not whether R.P. maximized her educational potential when she
used PECS between Fall 2008 and Fall 2009. Rather, the question is whether
she demonstrated more than de minimus positive academic and non-academic
benefits. See Michael F., 118 F.3d at 248 (citation and internal quotation marks
omitted). That R.P. made greater strides with a voice output device is an
indication that PECS was perhaps not allowing her to reach her maximum
educational potential. However, achieving one’s maximum educational potential
is not what is required by law. See Rowley, 458 U.S. at 200. We hold that R.P.
did demonstrate positive academic and non-academic benefits while using the
PECS. Based on our review of the record, we are not “left with a definite and
firm conviction that a mistake has been committed” regarding whether R.P.
received an educational benefit from her IEP with respect to her use of AT
devices. V.P., 582 F.3d at 583.
c. Summary
In summary, the only Michael F. factor weighing somewhat in favor of
concluding that R.P. was denied a FAPE is the first factor. There, we held that
AHISD had not sufficiently individualized R.P.’s educational program on the
basis of her assessment because AHISD had not discussed or incorporated a
required AT assessment into R.P.’s 2008-2009 IEP. In analyzing the same
factor, we also held that R.P.’s argument about AHISD’s failure to conduct an
FBA before designing her BIP was unavailing. Therefore, of the two arguments
R.P. raised as to the first factor, only one weighed in her favor. R.P. did not raise
any issues under Michael F.’s second and third factors. Finally, we held that
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R.P. had received an educational benefit from her 2008-2009 IEP under Michael
F.’s fourth, most critical factor. While AHISD’s handling of the Fall 2008 AT
assessment was not optimum, we hold, based on the specific facts presented
here, that when all the relevant factors are evaluated together, that R.P.
received a FAPE.
IV. Conclusion
For the above reasons, we hold that R.P. was not denied a free appropriate
public education for the issues she raised on appeal. The district court’s
judgment is AFFIRMED.
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