Klein Independent School District v. Hovem (745 F. Supp. 2d 700, 2010)

OPINION AND ORDER

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, grounded in the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2)(A), appealing Texas Education Agency (“TEA”) Special Education Hearing Officer Tomas Ramirez, Ill’s decision that Klein Independent School District (“KISD”) failed to provide student Per Hovem with a free appropriate public education and ordering Plaintiff/Counter-Defendant KISD to reimburse the Hovems for past and future educational expenses incurred by them at a private residential facility located in Massachusetts, are (1) KISD’s motion for summary judgment (# 17) and (2) the Hovems’ motion for judgment upon the administrative record (# 39).

After careful review of the administrative record, the parties’ briefs, and the applicable law, and after considerable thought, the Court finds from a preponderance of the evidence in the administrative record, for reasons explained below, that the Hearing Officer’s Decision should be affirmed in part and reversed in part and the Hovems’ motion for judgment should be granted with regard to KISD’s failure to provide Per with a FAPE and to reimbursement for educational expenses, but not for residential expenses, incurred by Per at Landmark School.

Standard of Review

Summary Judgment Under the IDEA: Review of Hearing Officer’s Decision

When addressing a summary judgment under the IDEA appealing a hearing officer’s decision, the court reviews the administrative record of the due process hearing and examines new evidence at the request of any party. HISD v. V.P. ex rel. Juan P., 582 F.3d 576 (5th Cir.2009), cert, denied, — U.S.—, 130 S.Ct. 1892, 176 L.Ed.2d 365 (2010); Cypress-Fairbanks ISD v. Michael F., 118 F.3d 245, 252 (5th Cir.1997) (citing Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)), cert, denied, 522 U.S. 1047, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998). When no new evidence is presented to the district court in an IDEA suit, ... “the motion for summary judgment is simply the procedural vehicle for asking [the judge] to decide the case on the basis of the administrative record.” El Paso ISD v. Richard R., 567 F.Supp.2d 918, 927 (W.D.Tex.2008), citing Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir.1997). See also D.C. v. Klein ISD, 711 F.Supp.2d 739, 743-44 (S.D.Tex. 2010), citing Loch v. Edwardsville School Dist. No. 7, 327 Fed.Appx. 647, 650 (7th Cir.2009); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995) (“Though the parties [in an IDEA action] may call the procedure ‘a motion for summary judgment’ ... the procedure is in substance an appeal from an administrative determination, not a summary judgment.”). “Thus even though it is termed ‘summary judgment,’ the district court’s decision is based on the preponderance of the evidence.” Loch, 327 Fed. Appx. at 650. Therefore the existence of a disputed issue of material fact will not defeat such a motion for summary judgment. 20 U.S.C. § 1415(i)(2)(C). The parties here have not submitted any new evidence, so this Court’s review of the Hearing Officer’s decision will therefore be based on the administrative record below.

While the court must give the hearing officer’s findings “due weight,” it must make an independent, “virtually de novo ” decision based on preponderance of the evidence before it. 20 U.S.C. § 1415(i)(2)(C); Michael F., 118 F.3d at 252. In applying the “due weight” standard, “the hearing officer’s findings are not conclusive and the court may take additional evidence and reach an independent conclusion based on the preponderance of evidence.” Teague ISD v. Todd L., 999 F.2d 127, 131 (5th Cir.1993). Furthermore the district court does not have to defer to the hearing officer’s findings “when its own review of the evidence indicates that the hearing officer erroneously assessed the facts or erroneously applied the law to the facts.” Id. The Teague appellate panel quoted Rowley:

“Congress expressly rejected provisions that would have ... severely restricted the role of reviewing courts. In substituting the current language of the statute [20 U.S.C. § 1415(e)(2)] for language that would have made state administrative findings conclusive if supported by substantial evidence, the Conference Committee explained that courts were to make ‘independent decision[s] based on a preponderance of the evidence.’ ”

999 F.2d at 131, quoting Rowley, 458 U.S. at 205, 102 S.Ct. 3034 (quoting S. Cong. Rec. 37416 (1975) (remarks of Sen. Williams)). Nevertheless this preponderance-of-the-evidence standard is not “an invitation to the courts to substitute their own notion of sound educational policy for those of the school authorities which they review.” Rowley, 458 U.S. at 206, 102 S.Ct. 3034. “The primary responsibility for formulating the education to be accorded to a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” Id. at 207, 102 S.Ct. 3034.

While the court reviews a mixed question of fact and law de novo, “the underlying fact-findings, ‘such as finding that a disabled student obtained educational benefits under an [individualized education program (“IEP”) ], are reviewed for clear error.’ ” HISD v. Bobby R., 200 F.3d 341, 347 (5th Cir.2000) (quoting Cypress-Fairbanks, 118 F.3d at 252), cert, denied, 531 U.S. 817, 121 S.Ct. 55, 148 L.Ed.2d 23 (2000). “A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court based on all the evidence is left with the definitive and firm conviction that a mistake has been committed.” Houston Exploration Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir. 2004).

The IDEA

The Fifth Circuit has held that the IDEA creates a presumption in favor of the school district’s IEP. White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir.2003). Therefore the party challenging the appropriateness of an IEP during the due process hearing bears the burden of showing why the IEP and resulting placement were inappropriate under the statute. Id.; Schaffer v. Weast, 546 U.S. 49, 57-58, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (In an administrative hearing under the IDEA, the burden of persuasion is properly placed on the party seeking relief, the plaintiff); Bobby R., 200 F.3d at 347. See also White, 343 F.3d at 377, citing Teague ISD v. Todd L., 999 F.2d 127, 132 (5th Cir.1993); Michael F., 118 F.3d at 252. The Fifth Circuit has further held that “at the district court level, as at the administrative level, the party challenging the IEP bears the burden of showing that the IEP and the resulting placement are inappropriate under the IDEA.” Richardson ISD v. Michael Z., 580 F.3d 286, 292 n. 4 (5th Cir.2009). Thus the Hovems still bear the burden of persuasion here.

A central goal of the IDEA is to make sure that children with disabilities “receive a ‘free appropriate public education [“FAPE”] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’ ” Houston ISD v. V.P. ex rel. Juan P., 582 F.3d at 583. KISD, as “ ‘a local educational agency responsible for complying with the IDEA as a condition of the State of Texas’ receipt of federal education funding’ ... must ‘(1) provide each disabled child within its jurisdictional boundaries with a ‘free appropriate public education’ tailored to his unique needs, and (2) assure that such education is offered ... in the least restrictive environment consistent with the disabled student’s needs.’ ” Id., citing Michael F., 118 F.3d at 247. The school district does not have to “provide its disabled students with the best possible education, nor one that will maximize the student’s educational potential.” Id., citing Michael F., 118 F.3d at 247 (citing Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034). “ ‘Nevertheless, the educational benefit to which the Act refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be likely to produce progress, not regression or trivial educational advancement’ in other words, KISD must provide its disabled students with “ ‘meaningful’ educational benefit.” Id., citing Michael F., 118 F.3d at 248. The decision whether a local district’s IEP was appropriate under the IDEA is a mixed question of law and fact. Michael F., 118 F.3d at 252.

The IEP is the centerpiece of and the primary vehicle for effecting Congressional goals under the IDEA. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IEP “sets out the disabled child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Id., citing § 1401(9). It must be reviewed at least annually and revised where necessary to ensure that the school district tailors the statutorily mandated FAPE to the child’s unique needs. Id., citing § 1414(a)(5). Parental participation is essential in the development and subsequent assessments of the IEP’s effectiveness. Id. Therefore the Act establishes procedural safeguards to guarantee parents the opportunity for meaningful input into all decisions about their child’s education and the right to request review of any decisions they consider inappropriate. Id. Examples include the right to examine all relevant records relating to the identification, evaluation and educational placement of the child; participation in meetings concerning the child’s educational placement; right to obtain an independent educational evaluation of the child; prior written notice of any agency proposal to change the child’s placement or program; an opportunity to make any complaints about the agency’s actions; and the right to an impartial due process hearing for any such complaints. 20 U.S.C. § 1415(b); Id. at 311-12, 108 S.Ct. 592. If issues still have not been resolved, the educational agency and the parents each have the right to seek further administrative review, and subsequently if still necessary, file a civil action in state or federal court. Id. at 312, 108 S.Ct. 592, citing §§ 1415(c) and (e)(2).

When a parent contests the appropriateness of an IEP, or whether the school district provided the student with disabilities a FAPE, the district court should follow a two-step review, the first procedural, the second substantive: (1) it must determine whether the state complied-with the IDEA’s procedural requirements, and (2) decide whether the IEP was “ ‘reasonably calculated to enable the child to receive educational benefits.’ ” Juan P., 582 F.3d at 583-84, citing Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034.

For the substantive prong of the Rowley test, the Fifth Circuit considers four factors as “indicators of whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA”: whether “(1) the program is individualized on the basis of the student’s assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key ‘stakeholders’; and (4) positive academic and non-academic benefits are demonstrated.” Juan P., 582 F.3d at 584, citing Michael F., 118 F.3d at 253. “[T]hese factors are ... intended to guide a district court in the fact-intensive inquiry of evaluating whether an IEP provided an educational benefit,” and the court does not err in affording more or less weight to one than the other. Michael Z., 580 F.3d at 294.

A party challenging implementation of the IEP must show that the “school board or other authorities failed to implement substantial or significant provisions of the IEP”; the failure of the local education agency “to provide all the services and modifications in an IEP does not constitute a per se violation” of the statute. Bobby R., 200 F.3d at 349. Nor is it necessary for the handicapped student to improve in every area to obtain educational benefit from his IEP. Id. at 350. School districts are not required to cure or erase the differences between disabled and non-disabled children, but only to develop an individualized program capable of providing an educational benefit to the child. D.B. ex rel. C.B. v. Houston ISD, No. Civ. A. H-06-354, 2007 WL 2947443, *11 (S.D.Tex. Sept. 29, 2007), citing Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1047 (5th Cir.1989); Rowley, 458 U.S. at 200-01, 102 S.Ct. 3034 (“the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”). Moreover while the school district and experts may disagree over the diagnosis of a student’s disability, “[t]he IDEA charges the school with developing an appropriate education, not with coming up with a proper label with which to describe [the child’s] multiple disabilities.” Heather S. v. Wisconsin,. 125 F.3d 1045, 1055 (7th Cir.1997).

Eligibility under the IDEA terminates with the earlier of high school graduation or the student’s twenty-first birthday. 20 U.S.C. § 1412(l)(a) (2005).

The statute of limitations for a parent or school district to file for a due process hearing under the IDEA is found in 20 U.S.C. § 1415(f)(3)(C) [emphasis added by the Court]:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

There are two exceptions under 20 U.S.C. § 1415(f)(3)(D):

The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to-

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local education agency’s withholding of information from the parent was required under this subchapter to be provided to the parent.

The IDEA limitations period, with its express exceptions, is not subject to equitable tolling. D.C. and AC. v. Klein ISD, 711 F.Supp.2d 739, 746-47 (S.D.Tex.2010) (and cases cited therein).

Nevertheless, the State of Texas has expressly established a shorter limitations period than that in the IDEA. Under Texas law, 19 Tex. Admin. Code § 89.1151, there is an explicit one-year time period for requesting a due process hearing:

A parent or public agency must request a due process hearing within one year of the date the complainant knew or should have known about the alleged action that serves as the basis for the hearing request.

If the court determines that a school district met procedural requirements and implemented an appropriate IEP reasonably calculated to enable the child to receive educational benefits, the District has no further responsibility. Rowley, 458 U.S. at 207, 102 S.Ct. 3034; Michael Z., 561 F.Supp.2d at 598. If not, where a “suitable or ‘appropriate’ public educational placement is not available for a disabled child within a state or local school district, the district must pay the costs of sending the child to an appropriate private institution.” Michael Z., 561 F.Supp.2d at 598-99, citing Michael F., 118 F.3d at 248, and School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (concluding that the IDEA authorizes courts to “reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act”).

Then IDEA does not expressly provide parents with a private right of action for reimbursement of tuition, but in Burlington, the Supreme Court held that the broad grant of authority and discretion to a federal court under the statute to “grant such relief as the court determines is appropriate” includes “the power to order school authorities to reimburse parents for them expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.” 471 U.S. at 369-70, 105 S.Ct. 1996. It further held that parents who think that their child’s IEP fails to meet IDEA requirements may, at their own financial risk, unilaterally remove the child from public school and place the child in private school and then seek retroactive reimbursement of tuition from the state. 471 U.S. at 370, 105 S.Ct. 1996.

Moreover, where the public school fails to design an IEP that would provide a FAPE for a disabled student, parents in selecting a private school are exempt from the statutory requirement imposed on public schools to “provide[ ] at public expense under public supervision and direction” or that the IEP be designated by a representative of the local educational agency and reviewed by that agency because it would effectively eliminate the parents’ unilateral right to withdraw their child, established in Burlington, and defeat the IDEA’S goal of ensuring disabled students would receive a FAPE. Florence County School District Four v. Carter by and through Carter, 510 U.S. 7, 13-15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993). That the school chosen by the parents is not approved by the state does not by itself preclude reimbursement. Id. at 14, 114 S.Ct. 361. As explained in Carter, because parents who unilaterally withdraw their child and place him in a private facility bear a risk that a hearing officer or court might later decide that the child’s IEP was appropriate or the private facility is not appropriate, and because the state education agency and school district is unlikely to cooperate where it disagrees with a private placement, the Supreme Court requires only that the parental placement be “otherwise proper” and not subject to strict IDEA standards for parents to receive reimbursement. Id. at 9, 12-15, 114 S.Ct. 361; Michael Z., 580 F.3d at 295-96.

In amendments to the IDEA in 1997, if the local education agency has failed to make a FAPE available to the disabled child and the parents choose to place the child in a private school, reimbursement is available under certain conditions:

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

20 U.S.C. § 1412(a)(10)(C)(ii). Despite the provision, “who previously received special education and related services under the authority of a public agency,” the United States Supreme Court recently held that when the student is unilaterally placed by the parents in a private institution, even if the student has never received special education services at the public institution such services were entitled to be reimbursed under the IDEA if the public institution did not provide the student with a FAPE. Forest Grove School Dist. v. T.A., — U.S. —, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009).

In the wake of Forest Grove, the Fifth Circuit has adopted its own two-prong test, which is binding on this Court, to detennine whether the cost of a unilateral private residential placement is reimbursable under the IDEA: the placement “must be 1) essential in order for the disabled child to receive a meaningful educational benefit, and 2) primarily oriented toward enabling the child to obtain an education.” Michael Z, 580 F.3d at 299. Under the first prong, “if a child is able to receive an educational benefit without the residential placement, even if the placement is helpful to a child’s education, the school is not required to pay for it under IDEA.” Id. at 300. The test is in accord with the statute’s goal to enable a child with a disability to receive a meaningful educational benefit. Id. It also meets the implementing regulation, 34 C.F.R. § 300.302, which states that “[i]f placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.”

Under 20 U.S.C. § 1415(i)(3)(A)-(B)(i)(I), “In any action or proceeding brought under this section [§ 1415], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs — to a prevailing party who is the parent of a child with a disability.” Thus the threshold question in an action for attorney’s fees is whether the party seeking fees is a prevailing party. El Paso ISD v. Richard R., 591 F.3d 417, 421 (5th Cir.2009) (citing Jason D.W. ex rel. Douglas W. v. Houston ISD, 158 F.3d 205, 209 (5th Cir.1998)), cert, denied, — U.S. —, 130 S.Ct. 3467, 177 L.Ed.2d 1055 (2010). The Fifth Circuit defines a “prevailing party” as one “that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA.” Richard R., 591 F.3d at 421-22 (holding that under the IDEA “a litigant must attain some judicial imprimatur on a material alteration of the legal relationship in order to be a prevailing party”), citing Jason D.W., 158 F.3d at 208; Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“[Plaintiffs may be considered ‘prevailing parties’ ... if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”); and Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 603-04, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (a prevailing party is one that has obtained a judgment on the merits, a consent decree, or some form of judicially sanctioned relief). In the administrative proceeding, the Hearing Officer’s decision provides the necessary “judicial imprimatur” for a party to be a “prevailing party” for purposes of a subsequent attorney’s fee award by a court. Richard R., 591 F.3d at 422 n. 4. A prevailing party may seek attorneys’ fees under the IDEA for both the administrative due process proceedings and for subsequent litigation in court. Id.; Ruben A. v. El Paso ISD, 657 F.Supp.2d 778, 789 (W.D.Tex.2009). Nevertheless, “ ‘[a] finding that a party is a prevailing party only makes him eligible to receive attorneys’ fees under the IDEA; it does not automatically entitle him to recover the full amount that he spent on legal representation.’ ” Richard R., 591 F.3d at 421, quoting Jason D.W., 158 F.3d at 209.

transportation, and such developmental, corrective, and other supportive services (including speech-language, pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

If the Court finds that a party is a prevailing party, the fees can be calculated by identifying a lodestar (reasonable fee multiplied by hours expended by the attorney on the case) and then considering if the figure should be adjusted in light of the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1994). Ruben A, 657 F.Supp.2d at 789-90.

Factual Background

Per Hovem, born on November 28, 1989 and now twenty years old, moved from Norway to Texas with his father and mother, Knut Hovem and Signe Hovem, in the summer of 2000, when Per was to enter fifth grade in KISD. Per was bilingual, speaking Norwegian and English. His parents requested special education services from KISD for Per because of his poor language skills. After a comprehensive evaluation, Per was diagnosed with mild to moderate Attention Deficit Disorder (“ADD”), for which Ritalin was prescribed, but he did not qualify as a student with a disability. Admin. Rec., Vol. I, Petitioners’ Ex. 2 at p. 534 (Comprehensive Individual Assessment Report). Thus his ARD Committee recommended an English as a Second Language (“ESL”) program for one year, rather than implementing special education services. Id. at 536.

Per transferred to intermediate school at the beginning of the 2001-02 school year. A highly intelligent boy with an IQ of 142, Per did well in social studies and math, but in language arts he had severe problems with writing and copying from the board. Admin. Rec., Vol. I, p. 1105. When Per was in sixth grade, KISD’s educational diagnostician Carolyn Bartemeyer found that Per qualified for special education services as Otherwise Health Impaired (“OHI”) due to ADD and to a Learning Disability. Id., Petitioners’ Ex. 4 at pp. 586-95. On October 29, 2001, after determining that Per’s writing skills were extremely limited, that his spelling and handwriting skills were very poor, and that he had difficulty in transferring information to paper, his ARD Committee concluded that Per was eligible for special education services, effective December 3, 2001. Id., Petitioners’ Ex. 3 at pp. 567-68. The ARD Committee recommended and provided him with a resource English Language Arts class for two periods each day and co-teaching support in his social studies and science classes. Id. at 587.

On October 30, 2003 KISD Occupational Therapist Dawn McDonald issued an Assistive Technology Assessment Report (Admin. Rec. Vol. I, Petitioners’ Ex. 5, at pp. 615-17) (also Respondent’s Ex. 13), which counseled modification of Per’s special education services to address his spelling errors, illegible handwriting, and difficulty in using a dictionary to correct spelling: it recommended providing Per with study guides and hard copies of notes, access to a class computer for compositions, in particular essay questions, use of a portable speller, and allowing Per to correct spelling errors to improve scores. Reports came back in the following years from a number of Per’s teachers that he was not using the portable speller or the computer in class. See, e.g., Admin. Rec., Vol. I, p. 1096; Vol. II, Transcript of Due Process Hearing, pp. 281 and 288-89 (testimony of English teacher Lauri Marek); p. 396 (KISD Occupational Therapist McDonald testified that she became aware that he was not using the speller in 10th or 11th grade). McDonald further stated during the Due Process Hearing (Id., Transcript at 394-97) that the portable speller she recommended in 2003 was the same device provided to Per for the next five years, that the choice whether to use it was up to Per, that there was nothing she could do if he chose not to use it, and that although she thought about trying other devices, the one given to him in 2003 was the best one for his disability.

In ninth grade, Per entered Klein Collins High School for the 2004-05 school year. Following extensive testing, id., Educational Diagnostician Hilda Castagnos found that a significant discrepancy existed between Per’s potential and current achievement in the areas of written expression and basic reading skills and that he had a learning disorder in reading and written language, requiring special education and related services. Id., Petitioners’ Ex. 7 at pp. 632-39, KISD’s Ex. 9 at p. 117. In a re-evaluation letter dated October 13, 2005, Dr. Stephanie Wong stated that the diagnosis of ADD no longer fit Per and the OHI label was removed as the basis of his eligibility for special services. Id., Petitioners’ Ex. 7, at p. 641 and 642. However, Per continued to be eligible for special education services under the Learning Disability category. Admin. Rec. Vol. 1, KISD’s Ex. 9, p. 111.

At the ARD Committee meeting held on September 13, 2006 to plan for the 2006-07 school year, when Per would be in eleventh grade (Petitioners’ Ex. 8 at 651-66; KISD’s Ex. 4), the ARD Committee decided to mainstream Per completely in general education classes, and it specified Per’s annual goal and objective, which remained the same for each IEP through the 2007-08 school year. The recurring annual goal was that “Per will advance one grade level in all classes with 70% mastery as measured by grades. (With or without use of technology, portable spelling device, OT [Occupational Therapy] supported goal).... Continue to use current speller in all classes.” Admin. Rec., Vol. 1, KISD Ex. pp. 162-66. The Objective/Benchmark is also described as “Per will advance one grade level in all classes with 70% mastery as measured by grades. (With or without use of technology, portable spelling device, OT supported goal).... Continue to use current speller in all classes.” Id. Listed modifications included extra time to complete assignments, opportunity to respond orally, copy of class notes, and use of the portable spelling device.

Per passed the written portion of the TAKS test in tenth grade in 2007, but that was the last time; he failed it in three more attempts during the next two years. Per did not pass the written portion of the English Language/Arts TAKS test in the eleventh grade. Therefore in his senior year he was placed in Greer’s Practical Writing class for all students who have failed the written TAKS exam to teach them how to pass the test. For the rest of his time at KISD, Per passed all of his mainstream general education classes and all TAKS tests except the English Language/Arts. KISD offered Per tutorial sessions with writing instructor Thomas Greer, but after a few sessions Per stopped coming.

During the 2006-07 school year, the ARD Committee discussed dismissing Per from special education services, but his parents disagreed and asked that the special education services be provided until Per took the exit TAKS test. In the ARD Committee Meeting held on September 14, 2007 (Petitioners’ Ex. 9 at 679; Respondent’s Ex. 3 at p. 100) for the 2007-08 school year, Per’s senior year, McDonald recommended dismissal of the Occupational Therapy services, and the Committee agreed.

Per was eighteen years old on November 28, 2007, at which point all rights accorded to his parents under the IDEA were transferred to him. Tex. Admin. Code § 89.1049(a); 34 C.F.R. § 300.520(a).

That same fall the parents began to explore other options to KISD, which they concluded was not improving Per’s deficiencies, to help him reach his goal to go to college and live independently. They learned of the Landmark School, which specializes in remediating language problems in bright students through use of the Lindamood-Bell method. Per interviewed with a Landmark School representative, and the family met with the school’s Director of Admissions and Diagnostician. Furthermore, because Landmark School does not accept students who have graduated from another high school, in the middle of his twelfth grade year Per chose to drop a required economics class so that he could not graduate.

Moreover, the Hovems learned that Landmark required a student to function at a sixth grade reading and writing level in order to graduate. As part of the application process for admission to Landmark, the Hovems requested and Per participated in a battery of educational tests paid for by the Hovems, for a new evaluation of Per’s skills and recommendations for addressing his weaknesses. Admin. Rec., Vol. I, Ex. 9 at pp. 198-201 (Letter from Speech specialist Pamela M. Bass). Bass referred him to Joan Weltzien for a psychological evaluation, with his resulting testing scores on the WAIS-III varying from the 99th percentile (very superior) to the 25th percentile. Id. at Petitioners’ Ex. 10 at pp. 713-17, with scores on p. 717. KISD’s February 19, 2008 Reevaluation Review of Per (Id. at 722-33) incorporated the results of the evaluation performed for the Landmark School. Moreover the ARD Committee Meeting Brief (Id. at 734-35) for its meeting on February 26, 2008 reflects that KISD was informed that Per would attend Landmark School next year if he was accepted.

In addition that spring, the Hovems received from Landmark School its Admission Screening — Test Results from examiner John Hicks, dated March 28, 2008, which provided not only scores and percentiles, but also the equivalent grade levels at which Per was functioning in each area. According to these results, while Per’s comprehension score was high, 142, Per performed at a 5.1 grade equivalent in word identification, 2.0 grade in word attack, 5th grade and four months in reading, second grade fourth month in accuracy of reading, and third grade seventh month in the fluency of reading, while his score for word attack (dealing with phonetic decoding) was in the 1% level. Admin. Rec., Vol. I, Petitioners’ Ex. 11 at p. 737.

In a letter dated April 1, 2008 Per was informed that he was admitted as a boarding student to Landmark’s 2008 summer and fall programs. Id. at p. 739.

Landmark School’s screening summary for its summer program, dated March 28, 2008, diagnosed Per with “ADD, disorder understanding language — written/spoken & graphomotor/dysgraphia, and [Language Disorder] written lang/reading.” Id. at 718. The summary contained numerous test scores and an assessment of Per’s strengths and weaknesses. Id. at pp. 718-21.

On his SATS, Per scored 650 in reading, 640 in math, and 320 on the writing test. Admin. Rec. Vol. I, Petitioners’ Ex. 15, p. 431.

At the May 7, 2008 ARD Committee meeting, held at Per’s request, Per asserted that he was not ready to leave high school and go to college or to get a job because of his poor spelling and writing skills. The Hovems requested that KISD participate in providing the program at the Landmark School for Per, but other members of the Committee stated that Per had received a FAPE and was ready to graduate. Admin. Rec., Vol. I., Petitioners’ Ex. 11, at p. 746. The ARD Committee meeting ended in non-consensus. Id.

Meanwhile Mrs. Hovem sent an email to Jean Tucker and Susan Antel, assistant director of special education, pointing out that well intentioned staff members at KISD praise Per’s intelligence and ability to do things, but miss the side of him that needs help. She stated that Per hides his writing and reading problems from people who respect him for his wit and intelligence. Id. at p. 754.

Because the last meeting ended in non-consensus, the ARD Committee meeting reconvened on May 21, 2008. Admin. Rec., Vol. I., Petitioners’ Ex. 11, at p. 757. Per continued to discuss his difficulties in French and English. He expressed his frustration that he was not able to use a computer or portable speller on his college applications, claimed that he had only gotten through high school because the tests were multiple choice or short answer, and maintained that he was unable to meet college demands for essays. School officials responded that various colleges and universities offer programs to help disabled students, but they did not offer any other solutions. After the meeting, the Hovems again informed the school that they intended to seek placement in a private school for the coming school year and would seek reimbursement because KISD was unable to provide Per with a FAPE. Admin. Rec., Vol. I. pp. 764-65.

Per then attended the summer program at Landmark School and decided to remain there for the school year.

The Hovems concluded that KISD had failed to provide Per with a FAPE and that Per needed intensive remediation to prepare him for college or to function in a job after graduation. On June 27, 2008, they filed a request for a special education due process hearing after KISD refused to pay for private placement at Landmark School. The due process hearing was held December 3-5, 2008. Admin. Rec., Vol. I, p. 5.

Lauri Marek, Per’s regular-education English teacher during the spring of 2008, testified at the hearing that she only became aware of Per’s severe problems in writing when Per came to make up an in-class paper. Admin. Rec., Vol. II, Transcript at 281-82. When Marek asked KISD case manager Jean Tucker for help for Per, Tucker recommended the Kurzweil Program, and McDonald arranged for Marek to be trained on it to use with Per. Id. at 284-86. Marek also shared Kurzweil with Greer, who used it with Per in his writing skills program. Id. at 288. She reported that Per wrote a two-to-three paragraph essay in about forty minutes, but on the computer with Kurzweil he could only write six sentences at most in the same time. Id. 289. Marek reported that Per tried Kurzweil in class for his senior memory book project, but became reluctant to use it, and that Per expressed a preference for handwriting. Id. at 286, 291.

Marek also testified that she had called Per’s family and voiced her concerns that he get help with typing and working on the computer at home. Id. at 287. She stated that she may have suggested that his mother or brother might help Per get his ideas typed on paper. Id. at 287, 300-01. She further testified that at the May 7, 2008 ARD Committee meeting, Per stated that he could use his portable speller, but that it took him up to twenty tries before he could find the word he needed and thus using it was very time consuming. Id. at 288. Marek indicated that Per did not use the portable speller in her class. Id. When Marek asked Per where his speller was, he responded that he did not need it or felt more comfortable without it. Id. at 289.

Per testified extensively during the Due Process Hearing (Transcript at 474-542). Asked to identify his learning problems, he named spelling, “true reading” (and not just guessing), inability independently to come up with ideas of his own and being able to write them down, mispronouncing words when he reads aloud, leaving out words or injecting words into his reading, inability to pronounce a word that he recognizes, inability to identify a word just by looking at it, having to use context clues to figure out what a word means, and proofreading, his own work. Id. at 475-77. Relying heavily on his mother, father, and brother to fill in his gaps, he stated that without his mother, he would have failed English long ago, and he was most concerned that he could not bring his parents with him when he goes to college or to a job. Id. at 484, 489. He explained for a long time he thought that to be prepared for college, all he had to do was graduate from high school. Id. at 489. When in the summer and fall of 2007 he saw the college applications, he realized that he could not fill them out without heavy reliance on his family and that he had to do something to prepare himself for college. Id. at 489, 513. When he asked at the May 2008 ARD Committee meeting why his deficiencies were not addressed earlier, he said the Committee was surprised — “why would they be surprised if they truly understood [my] writing and reading capabilities?” Id. at 491. He stated that he never got an answer. Id. at 492. He told the Committee how time consuming trying to write was for him, about his reliance on others, and that he was not ready to do college level work or even to graduate from high school. Id at 492, 495. He further stated that the school never gave him any kind of written proposal on goals and objectives to help him pass the TAKS ELA. Id. at 494. He had a presentation ready for the ARD meeting, but when he asked why his IEP never addressed the need to remediate his weaknesses, the Committee members responded that he had been doing fine and was ready to graduate, so why change. Id. at 495, 497. Per noted that every time he was behind on an assignment, daily or major, his teachers asked him to finish it at home, and he would have his parents or brother type it for him: “that’s one of the main— main reasons why I even passed through— got through high school at all.” Id. at 500-01. He also stated that he had never met with any KISD counselors about post school transition planning. Id. at 504-05. Per explained that it took him five hours spread over a week to fill in his one-page application for Landmark School because it took a lot of time to come up with what to say and then he had to struggle with spelling and re-reading (Respondent’s Ex. 9). Id. at 505-06. He testified that he realized “if this is just the application, imagine the course work,” and that his reliance on his parents was the main reason he sought outside assistance and discovered Landmark School. Id. at 512. Regarding Marek’s senior writing project, Per explained that he tried to do it in class, but failed, so he began taking it home and having his mother type it out, so his progress grades improved. Id. at 511. He estimated that he did about ten per cent of the writing in school and ninety per cent at home. Id. at 512.

On June 26, 2008 the Hovems filed an original complaint and a request for a due process hearing. At the Due Process Hearing, held from December 8-5, 2008, Mrs. Hovem testified that the Hovems participated in many ADR meetings, with many people telling them that Per was wonderful, bright, handsome, and respectful, and achieved good grades and TAKS test scores. They received reassurances that Per was on track for graduation, as well as praise for their involvement. Only after outside testing during his senior year provided grade equivalents to his scores, did they realize Per’s actual status. Transcript at 556-57. Nor, Mrs. Hovem testified, did she know until the spring of 2008 what the IDEA required in an IEP and how deficient Per’s IEPs were. Id. at 605-06, 624.

Hearing Officer’s Decision

On January 9, 2009, the Hearing Officer issued his opinion (Admin. Rec., Vol. I at pp. 5-27), in which he determined that KISD had failed to provide a FAPE to Per, that Landmark School did provide an appropriate educational program for his needs, and that the costs of Per’s placement at Landmark School for the school years of 2008-09 and 2009-10 should be reimbursed to the Hovems.

In addition to some of the undisputed facts this Court has summarized above, among the Hearing Officer’s findings of fact are the following. KISD has known about Per’s writing problems since at least 2002. Id. at p. 7. Per’s “IEP goals and objectives [to pass his classes and use his speller] have been virtually identical since at least 2006.” Id. at p. 8. It is undisputed that Per “is highly intelligent and has passed all of his classes while at Klein Collins High School and at Landmark School.” Id. The district was aware that Per was not using his portable speller. Id. In the fall of 2007, Per deliberately dropped his economics class so that he could not graduate in May 2008 in order to be eligible to attend the Landmark School, which does not admit any student who has already graduated from high school. Id. Landmark specializes in teaching highly intelligent children with language disabilities. Id. Landmark’s peer-reviewed, scientifically based teaching method, Linda-mood-Bell, uses a multi-sensory approach to problems with auditory processing of language, such as those which afflict Per. Id. at 8-9. While Per was in high school in KISD, he “did the vast majority of his writing work at home” by using the services of his mother or brother. Id. at 9. In eleventh and twelfth grade, Per failed the writing portion of the TAKS test, passage of which was required for graduation. Id. at 9. According to his writing teacher, Per required several hours to write a few sentences and several days to write a few paragraphs. Id. Per has lived at Landmark School, in Massachusetts, since he enrolled in the summer of 2008 and is part of the school’s residency program. Per’s ARD Committee, when notified of the placement, disagreed with it even though no evidence was presented that anyone from KISD investigated Landmark and its appropriateness for Per. Id. The only evidence on that matter was the testimony of Dr. Mary Rosenburg, KISD’s representative, that she did not know if any investigation was conducted. Id. at 10. Landmark employs a daily one-on-one tutorial session using the Lindamood-Bell method for a student with a disability. Id. Its classes are structured to use language skills during the course materials. Id. The Landmark School educational program “is appropriate to address the Learning Disability of the child in this case.” Id.

The Hearing Officer rejected a number of Per’s allegations of violations of the procedural requirements of IDEA04 that denied him a FAPE. He concluded that there was no evidence that KISD failed to provide Per with highly qualified teachers or that it did not hire, train or supervise staff capable of meeting Per’s unique needs. Id. at 11. There was also no credible evidence that Per needed nonacademic services, such as counseling and social work services. Id. All Per’s teachers who were asked testified that he interacted well with other students, participated in class discussions, and was socially functional. Id. at 11-12. During the three-day Due Process Hearing, Per’s demeanor was pleasant, and he appeared to have no social issues. Id. at 12. The Hearing Officer also found that there was “no evidence that any of the ARD Committee members had collaborated prior to the ARD Committee meetings to predetermine the child’s educational plan.” Id. In addition he determined that the district had provided the Hovems with timely and objectively verifiable and understandable reports on Per’s IEP goals through report cards and progress reports sent home throughout the year. Id.

Nevertheless the Hearing Officer concluded that the district failed to create a transition plan for Per commensurate with his needs. IDEA04 requires an IEP to include, beginning when he is 16 and updated annually afterward, “(1) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills, (2) the transition services (including courses of study) needed to assist the child in reaching those goals, and (3) beginning not later than one year before the child reaches the age of majority under state law, a statement that the child has been informed of the child’s rights under this title, if any, that will transfer to the child on reaching the age of majority.” 20 U.S.C. § 1414(d)(l)(A)(VIII). Id. at 12-13. He found it undisputed that Per’s IEP did not contain postsecondary goals based upon transition assessments testified to by Dr. Rosenburg, even though a transition plan must be based upon the child’s needs in view of his strengths, preferences, and interests, pursuant to 34 C.F.R. § 300.43(a)(2). Id. at 13. It must also contain measurable goals that are results-oriented. The Transition Services Supplement and Individual Transition Plan that were made part of Per’s IEP contained only general information that did not meet these requirements. Id. at 13. It also failed to specify coordinated activities or goals for improving his academic and functional achievement to facilitate Per’s move from high school to postsecondary activities. Id.

Finally the Hearing Officer focused on Per’s learning disability in the area of written expression, which causes him problems with spelling, phonetics, legible handwriting, omitting entire words when writing, and the difficulty in transferring ideas from his mind to paper. Id. at 14. He noted that Per’s writing teacher, Thomas Greer, testified it could take Per two to four days to write one paragraph and a week and a half to write one handwritten page. Id. Mrs. Hovem testified that Per cannot take down a simple telephone message. Id. at 15. Laurie Marek also testified about Per’s severe writing problems, which concerned her so much that she called his parents, and that he did almost all of his writing at home, where he received help from his family. He noted that there is no dispute that Per is highly intelligent, reads well, and has no trouble comprehending what he reads. Id. The Hearing Officer then stated,

If this child were NOT a special education child with the rights and protections outlined in IDEA04, then this child would be required to pass all his classes and pass all portions of the state assessment exam (the TAKS) in order to graduate. In short, the child would have to pass his class like all other children by making a 70% or better grade in his classes, and he would also have to take the TAKS exam without any accommodations and achieve a passing mark in all areas. However, this child IS a special education child afforded the protections of IDEA04. Even so, the child’s IEP since 2006 has had the same goals and objectives: (1) pass all his classes with 70% mastery, and (2) use his speller .... The first goal listed in the IEP has nothing to do with the child’s Learning Disability. It is a goal that is the same for all non-special education students who desire to graduate. The second goal is designed to help the child with his spelling problem, and this goal was not being met since all of the child’s teachers had reported in an Occupational Therapy Re-Evaluation as early as 2006 that the child did not use the speller :... Furthermore, such a goal is not measurable, in violation of IDEA04, and it does not address core problems associated with this child’s Learning Disability. Thus this child went through the last two years of school at Klein ISD with essentially no goals and objectives different from a non-special education child. That being said, the child still made passing grades in his classes, but that was in spite of his IEP and not because of it. The district failed to develop and implement an IEP which was created to address the unique and individual needs of the child in order to provide the child with an educational benefit, [citations to record omitted]

Id. at 15-16.

In summary, the Hearing Officer concluded that these failures to implement a transition plan and to develop an IEP tailored to Per’s unique needs amount to procedural violations of IDEA04. Id. at 16. Therefore he examined whether the failure impeded the child’s right to a PAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE for Per, or caused a deprivation of educational benefits to the child. 20 U.S.C. § 1415(f)(3)(E)(ii). Id. Because of the procedural violations, he addressed the question whether Per’s IEP was reasonably calculated to enable Per to receive educational benefits. Id. at 16-17.

The Hearing Officer observed, as reflected in the exhibits, Per’s handwriting is barely legible and that KISD suspected he suffered from dysgraphia as far back as February 6, 2002, when the KISD Reevaluation Report (Petitioner’s Ex. 4) stated that Per “exhibits symptoms consistent with a diagnosis of dysgraphia or a significant writing disorder.” Id. at 17. This Court has summarized testimony from Marek supra that shows that “[i]nstead of dealing with the problem and its causes, the district encouraged the child to do his writing at home hoping the family would help the child.” Id., citing Hearing Transcript at 286-87. He also found that KISD knew Per wanted to go to college after high school, a goal which the Hearing Officer determined would be extremely difficult without adequate writing skills and an ability to take notes and answer essay exams. Id., citing Respondent’s Ex. # 4 at 28, Hearing Transcript at 530-31. He also concluded that there were no goals developed or implemented for Per to attain that ambition in a transition plan, nor in Per’s IEP to assist him with his numerous language problems to help him go to college. Id.

In sum, the Hearing Officer concluded that Per did not receive an educational benefit from his IEP, including its lack of a proper transition plan, because it failed to address Per’s unique disabilities. Id. Per did pass and receive an educational benefit from his general education classes because of his high intelligence and family support, not because of his IEPs. Per failed the writing portion of the TAKS test three times, and under his IEP he could not have graduated high school without passing it. Id. By 2002 the ARD Committee should have modified Per’s IEP to provide services, goals and objectives to meet his needs, though no relief can be granted to remedy this failure that far back because of the two-year statute of limitations. Id. at 19. In January 2004 the ARD Committee recognized the need for “a significant modification in curriculum and methods.” Id.; Petitioner’s Ex. 6 at 122. In 2005, Per’s teachers reported that he was not making adequate progress in writing (Petitioner’s Ex. 7 at 131). In 2006 his teachers continued to report that Per was not using his speller, which was his second IEP goal. Petitioner’s Ex. 8 at 164; Hearing Transcript at 59, 395-98. The ARD Committee should have met to attempt to find another solution to Per’s spelling problems. As noted in the December 6, 2006 Occupational Therapy ReEvaluation, some of his teachers pointed out that his handwriting was not legible. Petitioner’s Ex. 8. Again the IEP should have been modified to address the continuing problem. Then in Spring 2007, Per failed the writing portion of the TAKS exam, and did so twice more, yet throughout this period the ARD Committee did not modify his curriculum, the teaching methods, or his goals or objectives. At the February 26, 2008 ARD Committee Reevaluation, KISD stated that Per “is doing very well in school.” Petitioner’s Ex. # 10 at 229. While passing from grade to grade is an important factor in determining if a child’s IEP is providing him with a FAPE, the IEP must be examined in light of his individual disabilities. Here Per continued with essentially the same IEP, which did not address Per’s unique Learning Disability, from the Fall of 2006 through May 2008. Thus Per did not receive an educational benefit that was meaningful and likely to produce progress. Cf. the continuing and substantial efforts and modifications made by the ARD Committees to address a student’s disabilities in Michael F., 118 F.3d 245; Bobby R., 200 F.3d 341; Adam J. ex rel. Robert J. v. Keller ISD, 328 F.3d 804 (5th Cir.2003).

Having determined that Per succeeded in overcoming the presumption that the IEP developed by KISD was appropriate, the Hearing Officer examined whether placement at Landmark School, a private institution, is appropriate for Per. Dr. Rosenburg, KISD’s representative, admitted that she was unaware of any investigation of Landmark School made by KISD after it was notified by Per that he wanted to enroll; thus KISD offered virtually no evidence on the issue. Per presented evidence in the testimony of his expert, Dr. Shumsky. The Hearing officer questioned the credibility of portions of Shumsky’s testimony because of speculation, conclusory statements, exaggeration, and a lack of knowledge about the latest regulations concerning the identification of Learning Disabilities under IDEA04; nevertheless the Hearing Officer did find Shumsky’s testimony about the Lindamood-Bell methodology of teaching believable. Hearing Officer’s Decision at 23. Also testifying about the appropriateness of the Landmark School program for Per were its case manager Brett Hall (Hearing transcript at 314-16) and special-education-certified teacher and Per’s one-on-one tutor at Landmark, Marie Mirandi (Hearing transcript at 367-69, 311-12, 347-48, 333, 342-44, 339-40.) Per’s 2008 summer session consisted of two forty-five minute one-on-one tutorials on a daily basis and small classes. The Hearing Officer determined from the testimony of Hall and Mirandi and from Landmark documentation that Per made good progress and continues to do well. Hearing Officer’s Decision at 24, citing Hearing Transcript at 328-30, 367-68, 370, and Petitioner’s Ex. # 12 at 26-68, 351. As part of Landmark’s residential program, Per lives on campus in the dormitories, participates in a daily evening study hall (with staff available to assist the student in any way), a onee-a-month, mandatory Saturday school program, structured activities in the afternoons, and community service. Id., citing Due Process Hearing Transcript at 260-68, 351-53. The Hearing Officer decided that evidence about Per’s social skills did not indicate a need for social skills training. Id. The Hearing Officer also stated that because Landmark is in Massachusetts, Per had to reside there to attend the school. Id. at 25. He further found no evidence that the residential program was excessive. In sum, he found the program and placement at Landmark School were appropriate for Per. Id.

As testified to by Dr. Shumsky, in the only evidence on the issue, only two Houston area schools offered the LindamoodBell methodology and placement at either was inappropriate for a child with a high IQ. Id., citing Hearing Transcript at 214-15.

In sum, the Hearing Officer granted the relief requested by Per, ordered reimbursement for tuition, books, fees and the residential component of Per’s placement at Landmark School from June 2008 through the time the child completes the program, although KISD will not be liable for any costs for the program beyond May 2010. Id. at 27.

KISD’s Motion for Summary Judgment (# 17)

KISD’s motion for summary judgment challenges the “correctness of the hearing officer’s decision at the time it was issued,” which KISD characterizes as “a radical departure from the legal standards adopted by the Fifth Circuit in cases arising under the IDEA.” # 17 at 1-2.

KISD represents that the Hearing Officer found that KISD denied Per Hovem a FAPE because KISD failed to develop Per’s writing skills to a level that would guarantee him success in college. KISD points out that Per’s severe qualifying learning disability is in the area of written expression and causes him to have problems transferring his thoughts and ideas to the printed page. Admin. Rec., Yol. 1, at p. 7, ¶ 1. KISD insists that the IDEA does not require a school district to provide an optimal education designed to remediate Per’s disability, nor does it require KISD to provide an education designed to make sure that a student excels in college. The school district emphasizes that Per passed the state-mandated assessments of adequate educational achievement for non-disabled students and passed all of his regular education classes with minimal special education support. In the spring of 2008, as an 18-year-old student at Klein Forest High School, Per was on track to receive a high school diploma until he dropped a required economics course during his senior year so that he could participate in a private school program designed to remediate his disability. KISD describes Per as a highly intelligent person, who received significant educational benefits in regular education cl