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BROWN v. WILSON CTY. SCH. BD.

April 17, 1990

BETH ANN BROWN, By and Through her parents and next friends, SHELBY and SALLY BROWN
v.
THE WILSON COUNTY SCHOOL BOARD



The opinion of the court was delivered by: HIGGINS

 THOMAS A. HIGGINS, UNITED STATES DISTRICT JUDGE

 This action was brought on September 25, 1989, by the plaintiff, Beth Ann Brown, seeking a review of the administrative finding on the issue of defendant's financial liability for the plaintiff's educational placement under the Education for All Handicapped Children Act.

 On July 16, 18, and 20, 1989, the plaintiff's parents went before Administrative Law Judge J. Randall LaFevor to contest the individualized education program offered by the defendant and to establish the defendant's financial liability for the plaintiff's educational placement in the Fresh Approach Program on the Cedarbrook campus. The judge ruled that the plaintiff's behavioral treatment program at Cedarbrook was medical, not educational, in nature. The ruling relieved the defendant of financial liability for the Cedarbrook placement because school boards are only responsible for educational programs. The judge further ordered a continuation of the homebound education offered in the defendant's individualized education program, although no legal authority was cited to support his decision.

 In the alternative, the plaintiff filed a second motion for summary judgment on the issue of officer impartiality (filed January 26, 1990; Docket Entry No. 9). The plaintiff contends that the administrative law judge was partial because he was a candidate for juvenile court judge for Metropolitan Nashville and Davidson County. In the defendant's response filed on January 31, 1990 (Docket Entry No. 14), it is asserted that the plaintiff pleaded no facts proving partiality.

 The Court's jurisdiction is based upon 20 U.S.C. ยง 1415(e)(2), which grants the district court authority to review the due process hearing decision regarding the plaintiff's educational placement.

 For the reasons discussed below, the plaintiff's motion for summary judgment on the issue of liability is granted. Because there are no facts proving officer liability, the plaintiff's motion on the issue of impartiality is denied.

 I.

 The plaintiff, Beth Ann Brown, is a twenty-one-year-old woman who suffered brain damage when she was born on March 9, 1969. She has a primary handicapping condition of serious emotional disturbance and a secondary handicapping condition of mental retardation. Her condition is aggravated by a severe behavioral disorder which causes bizarre, frightening and uncontrollable outbursts endangering both herself and others. These outbursts are unpredictable and can last for hours. The plaintiff's behavior includes ingestion of foreign objects, such as hairspray, thumbtacks and articles of clothing; head banging; public masturbation; assault; feces smearing; object throwing and window breaking.

 The plaintiff's behavior rendered placement in mainstream educational facilities provided by the defendant, Wilson County School Board, impractical. Therefore, the plaintiff's parents and the defendant's special education personnel have worked together for years to find an appropriate individualized education program. The plaintiff has received educational services from the following institutions: Cumberland House Mental Health Program, Vanderbilt In-Patient Mental Health Program, Camelot Care Centers, Inc. in Kingston, Tennessee; Ridgeway Psychiatric Hospital in Oakridge, Tennessee; Devereaux Foundation and Mapleton Psychiatric Institute in Devon, Pennsylvania; Wallace School; Parthenon Pavilion Hospital and Vocational Rehabilitation Services in Gallatin, Tennessee. Although these are all reputable programs, none were successful in meeting the plaintiff's specific educational goals or improving the plaintiff's behavior. The plaintiff was either asked to leave each program due to her uncontrollable behavior or was withdrawn by her parents due to lack of progress.

 Since an effective residential program could not be found, the plaintiff's individualized educational program from September 17, 1987, to February 14, 1989, consisted of homebound instruction. From September 17, 1987, to January 25, 1989, the defendant provided three hours of homebound instruction per week, which was to be supplemented by vocational rehabilitation training. However, the plaintiff's disruptive behavior made participation in the vocational training impossible and such training was discontinued. During the one and one-half years of homebound instruction on a three-hours-per-week basis, the plaintiff's behavior deteriorated markedly; and on January 25, 1989, the defendant modified the individualized education program to include five hours of homebound instruction per week.

 In September of 1988, the plaintiff's parents learned of Cedarbrook's Fresh Approach Program. Cedarbrook is a residential rehabilitation facility in Gallatin, Tennessee, for brain injury victims. The Fresh Approach Program addresses significant behavior problems which interfere with a client's rehabilitation. The program provides basic living skills such as getting dressed, planning the day and properly eating meals. In addition, social skills enabling the client to successfully integrate into the community are taught.

 Each client is provided an individualized care plan designed by his/her care team. The care team consists of the client, the parents, a doctor and therapists. These professionals assist the client in the areas of psychological counseling, behavior management, social skills, recreation, occupational skills, physical rehabilitation, art and speech. The care plan sets forth long and short-term goals. The ultimate program goal is to control the client's behavior so that the client may successfully function in a noninstitutional environment.

 When the plaintiff's behavior became intolerable in the family home, her parents placed her in Cedarbrook on February 15, 1989. While at Cedarbrook, the plaintiff has made substantial progress in meeting her short-term care plan goals. Significantly, in 1989 her uncontrollable outbursts decreased from eight per month in February to zero by July. Furthermore, her attention span has increased from three minutes to 25-30 minutes per session.

 In addition to behavior therapy, the plaintiff regularly sees two physicians at Cedarbrook. Dr. Clay visits for 15 to 20 minutes every two weeks. She also sees Dr. Lloyd "Roy" Brown for a "few moments" twice a month.

 The plaintiff's placement was originally paid for by the insurance carrier of her father's employer. The original request for coverage was refused on the grounds that the services provided to the plaintiff at Cedarbrook were "educational". Subsequently, the father's employer arranged for insurance to pay placement expenses for two and one-half months. The plaintiff's parents have been fully responsible for all costs since May 1, 1989, when the coverage expired.

 On May 25, 1989, the plaintiff's parents requested the Wilson County School Board to accept liability for the Cedarbrook Fresh Approach Program as an educational placement under the Education for All Handicapped Children Act. The defendant refused to pay for the program on the ground that Cedarbrook was a "medical" program for which it was not responsible. Instead, the defendant recommended a continuation of plaintiff's homebound individualized education program. At that time, the defendant further modified the individualized education program to provide homebound instruction five times per week for one and one-half hours per session.

 II.

 Summary judgment is available in litigation under the Education for All Handicapped Children Act to avoid a possible waste of the court's time and resources. Victoria L. v. District School Bd., 741 F.2d 369 (11th Cir. 1984). Rule 56(c); Fed. R. Civ. P. provides that summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The Court must view the facts in the light most favorable to the nonmoving party and hold the movants to their burden of conclusively proving that there is no genuine issue of material fact. SEC v. Blavin, 760 F.2d 706, 710 (6th Cir. 1985); Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S. Ct. 495, 62 L. Ed. 2d 415 (1979). Moreover, summary judgment "must be used only with extreme caution," since it denies the litigant his day in court. Blavin, 760 F.2d. at 710.

 The disputed facts must be material and the dispute must be genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265, 275 (1986). The nonmovant cannot rely on allegations in the pleadings but must present more than a "scintilla of evidence" in its favor so that a jury could reasonably find in its favor. In other words, the inquiry is whether the evidence discloses a sufficient disagreement to present it to ...


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