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A.R. v. School Administrative Unit 23

United States District Court, D. New Hampshire

October 12, 2017

A.R., Jamie Riley and Alan Riley, on behalf of their son, Plaintiffs
v.
School Administrative Unit #23, Defendant

          ORDER

          STEVEN J. MCAULIFFE, UNITED STATES DISTRICT JUDGE.

         Plaintiffs, A.R., and Jamie Riley and Alan Riley, on behalf of their son, A.R., filed suit on April 29, 2015, asserting violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”) by defendant School Administrative Unit #23 (the “District”).[1]

         A.R. is a student at Woodsville Elementary School who has been diagnosed with developmental delays, hypotonia, hearing loss, dysphagia, epilepsy, and cortical blindness. A.R., who is non-verbal, suffers from frequent seizures of multiple types (drop, grand mal, temporal lobe). Those seizures impact A.R's independent mobility, and he requires significant support to be safe, to be mobile within his classroom and on the school campus, to care for his personal needs, and to communicate those needs to others.

         A.R. receives special education and related services from the District pursuant to his individualized education plan (“IEP”). Those services include instruction from a special education teacher, a teacher of the deaf, and a teacher of the visually impaired, as well as related services of speech, physical therapy and occupational therapy. Since June of 2012, A.R. has also been accompanied by a one-on-one aide who, currently, is a registered nurse. The aide's responsibilities include: wiping his mouth to prevent skin irritation, feeding A.R., treating A.R.'s multiple seizures (by monitoring his breathing, placing him a safe location during seizures, and checking for ill effects resulting from the seizures), assisting A.R. with walking from place to place, and, on some days, providing instructional support.

         A.R. has a service dog named Carina. Carina was trained by 4 Paws for Ability (“4 Paws”) as a multipurpose service animal. Carina alerts for seizures by licking A.R.'s face. While Carina is trained to go through the school day without needing to be walked, eat or relieve herself, she requires a service animal handler during the school day. Because of A.R.'s cognitive, sensory and physical limitations, he is not in a position to act in that capacity. After some initial resistance, the District allows Carina to accompany A.R. at school. However, the District requires that A.R.'s parents provide and pay for a handler to supervise Carina during the school day. Plaintiffs contend that, by refusing to provide and pay for a service dog handler for Carina while A.R. is at school, the District has failed to reasonably accommodate A.R.'s disability.

         Upon filing suit, plaintiffs moved for a preliminary injunction. The Magistrate Judge held a hearing on that motion on November 12, 2016, and issued her Report and Recommendation on December 22, 2016, (document no. 39), recommending that plaintiffs' motion be denied. Neither party objected to the Magistrate Judge's recommendation, and, on January 13, 2016, the court approved that Report and Recommendation, denying plaintiffs' motion for injunctive relief.

         The IDEA: Background

         In opposing plaintiffs' motion for preliminary relief, the District argued, in part, that plaintiffs were unlikely to succeed on the merits because they were required, but failed, to first exhaust their administrative remedies under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). As our Supreme Court has explained, the IDEA:

ensures that children with disabilities receive needed special education services. One of its provisions, § 1415(l), addresses the Act's relationship with other laws protecting those children. Section 1415(l) makes clear that nothing in the IDEA “restrict[s] or limit[s] the rights [or] remedies” that other federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law “seek[s] relief that is also available under” the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures.

Fry v. Napoleon Cmty. Sch., U.S., 137 S.Ct. 743, 748, (2017).

         The IDEA “offers federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education' - more concisely known as a FAPE - to all children with certain physical or intellectual disabilities.” Id. at 748 (citing 20 U.S.C. §§ 1412(a)(1)(A) and 1414(3)(A)(i)). “[A] FAPE comprises ‘special education and related services' - both ‘instruction' tailored to meet a child's ‘unique needs' and sufficient ‘supportive services' to permit the child to benefit from that instruction.” Id. at 748-49 (quoting 20 U.S.C. § 1401(9), (26), (29) (additional citations omitted).

         The scope of “related services” under the IDEA is fairly broad. As the Supreme Court observed, “related services, ” as defined by the IDEA, “broadly encompass[] those supportive services that ‘may be required to assist a child with a disability to benefit from special education.'” Cedar Rapids Community Sch. Dist. v. Garret F. by Charlene F., 526 U.S. 66, 73 (1999). “A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned.” Irving Independent School Dist. v. Tatro, 468 U.S. 883, 891 (1984). “Services . . . that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter or exit the school.” Id.

         An “individualized education program, called an IEP for short, serves as the ‘primary vehicle' for providing each child with the promised FAPE.” Fry, 137 S.Ct. at 749 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). In addition to documenting “the child's current ‘levels of academic achievement, '” and specifying “measurable annual goals, ” the IEP also “lists the ‘special education and related services' to be provided so that” the child may “advance appropriately toward [those] goals.” Id. (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa)).

         The IDEA “establishes formal procedures for resolving disputes” between parents and school representatives when they “cannot agree on such issues, ” and requires exhaustion of those procedures before seeking judicial review. Id. A plaintiff asserting claims arising “under the ADA, the Rehabilitation Act, or other similar laws, must in certain circumstances” exhaust the IDEA's administrative procedures prior to filing. Id. at 750. Our court of appeals has “recognized that exhaustion is mandatory in such cases, even though a party might seek relief that ‘is not available in the administrative venue.' Mandatory exhaustion in such cases is both consistent with the legislative intent of the IDEA and practical because it ‘facilitate[s] the development of a useful record.'” S.S. by S.Y. v. City of Springfield, Mass., 146 F.Supp.3d 414, 418 (D. Mass. 2015) (quoting Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 62 (1st Cir. 2002)). However, before the Supreme Court's February, 2017, opinion in Fry v. Napoleon ...


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