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T.D. v. Rutherford County Board of Education

United States District Court, M.D. Tennessee, Nashville Division

January 9, 2017

T.D., a minor student, by and through her parents, W.D. and H.D., and all persons similarly situated, Plaintiffs,


          ALETA A. TRAUGER United States District Judge

         Pending before the court is a Motion to Dismiss (Docket No. 7) filed by the defendant, Rutherford County Board of Education (“RCBOE”), to which the plaintiff, T.D., has filed a Response (Docket No. 9), RCBOE has filed a Reply (Docket No. 13), and T.D. has filed a Sur-Reply (Docket No. 16). For the reasons discussed herein, the motion will be granted.


         On June 21, 2016, T.D., by and through her parents and on behalf of all others similarly situated, filed this proposed class action against RCBOE, bringing claims for violation of the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq. (the “IDEA”) and Tennessee's special education laws, Tenn. Code Ann. § 49-10-101 et seq., and seeking declaratory and injunctive relief.[1] (Docket No. 1.) According to the Complaint, T.D. is a minor child who attends Lascassas Elementary School in Lascassas, Tennessee, and resides in Murfreesboro, Tennessee, both within Rutherford County. RCBOE is authorized to administer public schools within Rutherford County, including the school T.D. attends. T.D. was born in April of 2005. She has an intellectual disability and substantial needs in gross and fine motor control, requires directional assistance, is not toilet-trained, is non-verbal, and has limited ability to sit, stand, stomp, clap, or use school tools without hand-over-hand assistance. As a result, T.D. has an Individualized Education Program (“IEP”) that provides her with special education and related services. The Complaint explains that related services are developmental, corrective, or other support services that are mandated for children with disabilities as needed (including physical, speech, and occupational therapies, as well as other counseling and therapeutic services). According to the Complaint, “related services” include both direct services (a service provider provides the services directly to the student, through individual or small group therapy) and indirect services or “consultation” (the provider does not interact with the student but, instead, provides directives to educators in the student's school, who can then carry out the therapies with the student).

         The Complaint makes the conclusory allegation that the claims in this action arise from systemic issues within RCBOE relating to the provision of related services under the IDEA and, therefore, exhaustion of the state administrative procedures is unwarranted. In particular, the Complaint alleges that a Senior Occupational Therapist within the Rutherford County school system, Matt Barnett, placed in writing and disseminated a policy and practice for Rutherford County that aims to remove or reduce related services in order to save money for RCBOE (the “Barnett Memo”).[2] According to the Complaint, the Barnett Memo, which was given to parents, states the following with respect to the provision of related services:

1. Are the goals of the student that have been developed by the related service provider static over an extended period of time (e.g. years)? 2. Has the special education staff been trained to provide the interventions that the related service provider initiated? 3. What is the least restrictive environment for the student? If the answers to questions 1 and 2 are yes then the answer to question 3 is consultation and perhaps eventual graduation from the related service.

(Id. at ¶ 13.) The Complaint then further alleges that:

RCBOE allows children's goals to remain stagnant or “static, ” sometimes for years, rather than modifying the goals. RCBOE then uses this stagnation as justification for eliminating or reducing related service therapies. The practice is so widespread that RCBOE understaffs service providers, telling families there are not enough to go around. By using the illegal formula, RCBOE has been able to deny and deprive children, including T.D., of related services which saves RCBOE money.

(Id. at ¶¶ 7-8.)

         The Complaint does not, however, point to any examples of RCBOE's improperly determining - or influencing a service provider's determination - that a student's goals are static for an extended period. The Complaint implies that T.D.'s goals have been held static when they should not have been but does not link this to any policy or practice by RCBOE beyond the above quoted allegation that RCBOE “allows” this in order to justify a reduction in services. Nevertheless, the Complaint characterizes RCBOE's practices as a “standard policy utilizing illegal ‘static goals, ' which result in improper denial or reduction of services” for students with special needs, (id. at ¶ 6) and states that, as a result, RCBOE uses “an illegal formula for determining ‘related services' under the IDEA.” (Id. at 7.) The Complaint alleges that this type of formulaic approach violates the IDEA and Tennessee's special education laws because a student's goals should never be static over an extended period of time, citing 20 U.S.C. § 1414(d)(4)(A) and 34 C.F.R. § 300.320(a)(2)(i).

         The Complaint further alleges that RCBOE has 5, 350 students who suffer from certain enumerated primary disabilities and that RCBOE does not directly employ a physical therapist but has contracted with only four outside physical therapists. The Complaint implies that this is insufficient to serve RCBOE's student population. To further support the allegation that RCBOE provides insufficient related services to its students, the Complaint alleges that all but 137 RCBOE students have had their physical therapy services (direct or consultative) reduced or removed, and all but 303 have had their occupational services (direct or consultative) reduced or removed. The Complaint does not, however, provide any details regarding how many of those students should be receiving more services than they are (or by what standard), nor does the Complaint contain any other allegations to show that students are receiving inadequate services. Finally, the Complaint alleges that RCBOE routinely tells parents that it “‘lacks the staff' to provide the necessary related services or that existing staff is already too taxed and that ‘it is not possible' to provide needed services, ” and that RCBOE intentionally creates understaffing to justify denial of services. (Id. at ¶ 23.) The Complaint does not, however, point to any specific instances in which this has taken place, aside from (presumably) with respect to T.D., nor does the Complaint allege any details to show that this is done as a matter of RCBOE policy.

         The particular factual allegations in the Complaint center on T.D., alleging that she currently needs direct therapy services in order to continue to make reasonable academic, functional, and social progress and to avoid being stigmatized by her peers; yet, using the formula cited in the Barnett Memo, and due to the fact that T.D. currently has static goals in her IEP, RCBOE has gradually removed T.D.'s direct services. She currently receives only the following consultative services per year: four hours of speech therapy consultation (broken into eight thirty-minute sessions), forty-five minutes of physical therapy consultation (broken into three fifteen-minute sessions), and four hours of occupational therapy consultation (broken into eight thirty-minute sessions). The Complaint alleges that these services are inadequate to address T.D.'s educational needs. No other RCBOE students are identified, but the Complaint suggests that there are other similarly situated students within RCBOE, whose related services have likewise been reduced on the basis that their goals have remained static. Again, however, there are no specific factual allegations to show that goals are being improperly determined (or influenced) by RCBOE for T.D. or any other RCBOE student, nor that services provided to any student are insufficient.

         Based on these allegations, the Complaint requests a declaratory judgment that RCBOE's policies, actions, and practices violate the IDEA. The Complaint also seeks an injunction 1) prohibiting RCBOE's continued use of the policy outlined in the Barnett Memo, 2) requiring RCBOE to reevaluate all eligible children for related services, 3) prohibiting goals from remaining “static” for an extended period, 4) directing RCBOE to monitor and correct any impermissible criteria for determining direct services within Rutherford County, and 5) requiring RCBOE to provide training and resources on how to appropriately determine related services, and to provide compensatory education for impacted students.

         On July 20, 2016, RCBOE filed the currently pending Motion to Dismiss under Rule 12(b)(6), along with an accompanying Memorandum, arguing that T.D. has failed to state a claim due to failure to exhaust administrative remedies. (Docket Nos. 7 and 8.) RCBOE also argues that the allegations in the Complaint do not meet the requirements for certification of a class action. On July 21, 2016, T.D. filed a Response in opposition. (Docket No. 9.) On August 8, 2016, RCBOE filed a Reply (Docket ...

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