Yibing Dong v. Board of Education of the Rochester Community Schools

197 F.3d 793
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 17, 1999
DocketNo. 98-2186
StatusPublished
Cited by2 cases

This text of 197 F.3d 793 (Yibing Dong v. Board of Education of the Rochester Community Schools) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yibing Dong v. Board of Education of the Rochester Community Schools, 197 F.3d 793 (6th Cir. 1999).

Opinion

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiffs, Yibing Dong and Huizong Lin (the Dongs), as next friend of their daughter Lisa, appeal from the entry of judgment in favor of defendants, the Board of Education of the Rochester Community Schools and Angelynn Martin, the supervisor of a program for autistic impaired children operated by the Birmingham Public Schools. Plaintiffs challenged the individualized education program (IEP) developed for Lisa for the 1996-97 school year as failing to provide a free appropriate public education (FAPE) and sought to recover the costs of providing one-on-one education for her at home.

Plaintiffs argue that the district court erred in granting partial summary judgment to defendants on their claims arising under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1415, by (1) applying an incorrect summary judgment standard; (2) placing the burden of proof upon plaintiffs; (3) finding that defendants had substantially complied with the procedural requirements of the IDEA; and (4) concluding that the IEP offered Lisa an FAPE.1 Plaintiffs also claim that the district court erred in denying their motion for leave to file an amended class action complaint alleging “systemic violations” of the rights of other autistic impaired children. After a review of the record and the arguments presented on appeal, we affirm.

I.

Lisa Dong was bom November 1, 1991, and resides with her parents in the Rochester Hills Community School District (District). Lisa was evaluated at age three by a Multidisciplinary Evaluation Team (MET), an IEP was agreed to, and she was enrolled in a special education early intervention program. In May 1995, an IEP placed Lisa in a pre-primary impaired classroom. Lisa was evaluated for suspected autism by the Central Evaluation Team (CET). As a result of the evaluation, the CET recommended that Lisa be certified for special education services as autistic impaired.

Based on the evaluation, an Individualized Educational Planning Committee (IEPC) met in October 1995 and redetermined Lisa’s eligibility to be classified as autistic impaired. Oakland County’s programs for autistic children are operated in several school districts. At the request of the Dongs, Lisa was enrolled in the Birmingham Public Schools’ program for autistic impaired children and began attend[797]*797ing 13 hours per week.2 The background facts following this IEP are succinctly summarized by the district court.

Lisa’s parents contemporaneously began a home program for Lisa on their own. They contacted Patricia Meinhold, Ph. D., a psychologist with experience in the area of “Lovaas-style” methodology, and Rebecca Lepak, a speech therapist. The Lovaas intervention method is a behavior therapy method. It has been widely modified over the years by professionals and parents, but common characteristics include intensive training one-on-one, 30-10 hours per week, discrete trial therapy (DTT), and an in-home component (as opposed to therapy in a professional setting). Beginning in November 1995, Lisa was receiving 10 hours of one-on-one home training in the DTT format. That was increased to 18 hours/week, and then to 20 hours/week by May 1996. This was in addition to the 13 hours of school she was attending each week. Plus, Lisa was meeting at home weekly with speech therapist Rebecca Lepak, who used the DTT method with her speech therapy.
The Dongs repeatedly advised Lisa’s teacher and other staff of their intensive work with Lisa. They also grew increasingly concerned about what they observed to be less one-on-one work by school staff than they had been led to expect at the October 1995 IEPC. The Dongs requested a new IEPC in the Spring of 1996 to request more one-on-one instruction for Lisa.
On May 15, 1996, an IEPC was convened to consider educational programming for Lisa for the 1996-97 school year. In attendance were Lisa’s parents, Defendant Angelynn Martin, Patricia Zahra (Lisa’s teacher during the 1995-96 year), Christina Vedder (the school psychologist for the preschool autistic program), Susan Dilgard (the program speech pathologist who worked extensively with Lisa), and Deborah O’Neill (Project Find Coordinator for the Rochester Community Schools). Dr. Meinhold and speech therapist Rebecca Lepak were not invited to attend.
The May 15, 1996 IEPC continued Lisa’s eligibility as autistic impaired. Following a preliminary discussion of goals and objectives, the Dongs requested that Lisa receive more “one-on-one” time in the school program. The IEPC was adjourned and reconvened on June 21, 1996, where the goals and objectives were reviewed. Lisa had made substantial improvements in virtually every skill area from November 1995 to June 1996. Ms. Lepak submitted a report that recommended continuation of intensive one-on-one speech and language therapy. The Dongs prepared a memo for this IEPC which requested more one-on-one time. The Dongs intended the request to be for a 40 hour per week DTT program, although they did not mention DTT or Lovaas in the memo. Defendant Martin, the autistic program supervisor, did not read the memo as a request for 40 hours of DTT.
The IEPC recommended that Lisa participate in a 27.5 hour per week school TEACCH2 program as of August 1996. The school district would only commit to 9.5-10 hours of individualized instruction. When asked, some of the [798]*798staff stated that the program offered to Lisa was typical of those offered to other students of her age with her disability; although Ms. Martin claimed that Lisa’s plan included more one-on-one instruction than the typical program for autistic impaired preschoolers.
After the June 21, 1996 IEPC, the Dongs sent Ms. Martin a letter which clarified that they were requesting a 40 hour per week DTT program. Martin did not reconvene the IEPC team. She rejected this proposal, and chose to support the IEP which she signed on June 21, 1996. The Dongs signed the IEP in disagreement. Negotiations with the district were unsuccessful, and the district accepted the IEP on July 18, 1996. Rather than follow the IEP plan for the 1996-97 school year, the Dongs chose to remove Lisa from school and she began a 30-40 hour home based DTT program. Lisa has continued to make progress.

The Dongs’ letter of June 27, clarifying that they wanted 30 to 40 hours per week of one-on-one behavioral therapy, also requested a due process hearing.

Six days of hearings were held at the end of 1996 before a local hearing officer, who concluded that the proposed IEP offered Lisa an FAPE and that the District had complied with the procedural requirements. The Dongs appealed the decision to a State Hearing Review Officer (SHRO), whose decision is reviewed by this court. The SHRO reviewed the evidence and found that the District did not violate the procedural requirements of the IDEA in any of the ways alleged by the Dongs and that the IEP for the 1996-97 school year provided Lisa with an FAPE designed to maximize her potential.3

Plaintiffs promptly filed this action in federal court alleging federal and state claims, including claims under the IDEA.

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197 F.3d 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yibing-dong-v-board-of-education-of-the-rochester-community-schools-ca6-1999.