ATLANTA — The U.S. Court of Appeals for the 11th Circuit has affirmed a lower court’s ruling in an Individuals with Disabilities Education Act case that has traversed the state’s court system for more than a decade.
U.S. District Judge Robert W. Titus wrote the Jan. 19 opinion. The panel also included Circuit Judges Charles Wilson and Robin S. Rosenbaum. Titus, a district judge for the District of Maryland, was sitting by designation.
Two sets of parents had filed individual complaints on behalf of their children against the School Board of Broward County to ensure their children received the specific therapy they believed the children should have.
One appellant, a mother of triplets, asked the court to force the school board to include applied behavioral analysis therapy in her children’s individual education plans. Parents of a separate child sought the same therapy.
The children all were diagnosed with autism at a young age, according to the opinion.
Both appellants argue that the school board’s refusal to include the desired therapy in the education plans reflects its predetermined policy of never including any ABA-based method or strategy in a child’s IEP, which they maintain violates Individuals with Disabilities Education Act (IDEA), according to the opinion.
“But as much as Appellants want to overturn their children’s original education plans based on impermissible predetermination, they do not have standing to challenge the policy that they allege exists,” Titus wrote. “While they argue to the contrary, an ABA-based therapy was, in fact, included in their children’s IEPs, albeit not the specific one that they desired, thus defeating their standing to challenge an alleged policy that was not applied to them.”
The court records describe the IDEA as a “comprehensive statute that sets forth the intent of Congress that children with disabilities be entitled to a free appropriate public education (FAPE)," according to court records. Moreover, the IDEA also requires that states provide disabled children between age 3 and 21 with the opportunity to "receive a FAPE by offering each student special education and related services under an IEP."
The IDEA’s outline also acknowledges that it is unlikely that everyone with a vested interest in a child’s education is going to agree entirely on an education plan.
Titus noted that the statute provides for mechanisms to enable a child’s parents to challenge an education plan if they believe it doesn’t comply with the IDEA.
The cases have been in litigation since 2005. The complaints allege multiple violations of the IDEA, including an assertion that the Broward school board offered improper predeterminations regarding the inclusion of ABA therapy in the education plan.
“In essence, Appellants argued that the school board subjected them to a predetermined policy of always denying ABA services,” Titus wrote.
The initial complaints by both parents were dismissed with summary judgment in favor of the school board, and both parties then agreed to consolidate the cases for subsequent trial.
On Sept. 7, 2016, the district court entered its findings of fact and conclusions of law.
According to court records, the district court found for the school board on all counts except one, which noted the board excluded the triplets’ parents from attending the initial child study meeting.
Ruling that the procedural violation was harmless, the court only awarded nominal damages of $1, according to the opinion.
The children’s parents appealed the decision, with the appeals court charged with determining whether they were harmed by the alleged policy of never including ABA services in an education plan.
Ultimately, the court wasn’t persuaded by the parents’ arguments and agreed with the district court that each child’s education plan included an ABA-based intervention strategy.
“Therefore, the School Board’s inclusion of an ABA-based service in the children’s IEPs in this case, regardless of how it was intended to be used or whether it matched the specific services requested by the parents, refutes appellants’ argument that they were denied meaningful participation,” Titus wrote. “Appellants simply were not denied any ABA-based service in their children’s IEPs.”
In affirming the district court’s decision, Titus noted the appeals panel concluded that the parents lacked the standing to challenge the policy because it wasn’t applied to them.