UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
PLAINVILLE BOARD OF : EDUCATION,
Plaintiff, : CASE NO. 3:09-CV-241(RNC) V. :
R.N., BY HIS PARENT AND NEXT : FRIEND, MRS. H.,
Defendant. :
RULING AND ORDER
The Plainville Board of Education (“the Board”) brings this
action under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400, et seq., challenging the decision of
an independent hearing officer (“IHO”) that the Board failed to
provide a free appropriate public education (“FAPE”) to a
student, R.N., as required by the IDEA, during the 2007-2008 and
2008-2009 school years, and that it must reimburse R.N.’s parent,
Mrs. H., for the cost of his attendance at a private residential
school during the 2008-2009 school year. Cross motions for
summary judgment have been filed. For reasons that follow, I
affirm the IHO’s decision. The defendant’s motion for summary
judgment is therefore granted and the plaintiff’s motion for
summary judgment is denied.1
1 R.N. has also filed a motion for partial judgment on the pleadings. That motion is granted in part and denied in part as discussed below.
1
Background
R.N.’s Educational History: 2003-2006
At all relevant times, R.N. was a public school student in
Plainville, Connecticut. In November 2003, when R.N. was in
second grade, his mother, Mrs. H., gave the Board the results of
a private psychiatric evaluation diagnosing R.N. with childhood
onset bipolar disorder. In February 2004, a Planning and
Placement Team (“PPT”) identified R.N. for special education and
related services under the category of Emotional Disturbance.
The PPT established an initial Individualized Education Program
(“IEP”) to address R.N.’s educational needs. See 20 U.S.C. §
1414(d) (2006). Even with this program, R.N. had trouble
throughout the 2004-2005 school year, including one suspension
and a stay in a psychiatric hospital.
In the fall of 2005, the PPT adjusted R.N.’s program by
adding more services. Following a behavioral episode at school
in December 2005, R.N. was diagnosed with Attention Deficit
Hyperactivity Disorder (“ADHD”) and bipolar disorder. Mrs. H.
retained Dr. Steven Mattis, a neuropsychologist, to evaluate R.N.
R.N’s condition deteriorated between December 2005 and January
2006 leading Dr. Mattis to recommend that R.N. be placed in a
therapeutic school until his condition stabilized. A doctor at
Wheeler Clinic agreed. As a result, the PPT recommended a change
of placement to a therapeutic day school.
2
In February 2006, Dr. Demitri Papolos, a child pyschiatrist,
evaluated R.N. and identified his aggressive behavior in the
school setting as a serious problem. Dr. Papolos cautioned that
using restraint and seclusion to deal with R.N.’s problematic
behavior could result in aggression due to greater fearfulness in
the child and that R.N. should not be left alone in a timeout
room because he could bang his head and injure himself.
In March 2006, R.N. was placed at the Northwest Village
School (“NVS”), a therapeutic day school that is part of the
Wheeler Clinic. In response to R.N.’s at times verbally and
physically abusive behavior, NVS staff sometimes used “Level III
interventions,” including therapeutic holds and closed door time-
outs. As R.N. adjusted to NVS, however, his behavior improved.
Throughout 2005 and 2006, the Board attempted to get a
release from Mrs. H. to speak with R.N.’s private care providers.
Mrs. H. granted limited releases, but indicated a preference to
facilitate communication between the Board and the providers.
She also declined the Board’s request for an evaluation by Dr.
Irene Abramovich.
2006-2007 School Year
R.N. spent the 2006-2007 school year at NVS, where his
behavior continued to fluctuate. Mrs. H. complained about
several disciplinary practices at NVS, including locking R.N. in
a timeout room with concrete walls, even though he was known to
3
bang his head, and forcing R.N. to clean up after himself if he
urinated or vomited in the timeout room.
In January 2007, Mrs. H. transferred R.N.’s psychiatric care
to Dr. Papolos. At the same time, R.N.’s triennial evaluation
was concluded.2 Psychological testing placed R.N.’s overall
performance at the borderline range of intellectual functioning.
In April 2007, the PPT met to review the results of the
triennial evaluation and revise the IEP as necessary. Mrs. H.
requested an independent neuropsychological exam. The Board
agreed to an independent exam, but Plainville’s Director of
Special Education, Maureen Schiffer, strongly objected to the
testing on the basis that R.N. does not like to be tested and
further testing would be harmful to him. Ms. Schiffer urged
Mrs. H to reconsider her request for an independent evaluation.
In May 2007, the PPT conducted an annual review. The PPT
agreed to change R.N.’s identified disability to Other Health
Impaired, although the category of Serious Emotional Disturbance
was believed to be more appropriate. The PPT found that R.N. had
not mastered any of the goals or objectives listed in the IEP and
that with regard to many of the goals and objectives only minimal
progress had been made. The PPT noted that R.N. had variable
attention and effort, was easily overwhelmed, and had poor work
2 The IDEA mandates that students be assessed every three years.
4
completion and engagement.
The IEP that resulted from the annual review called for
small group or individualized instruction for all academics,
small group instruction throughout the school day, and a
behavioral management plan that included time out. The PPT
planned to provide R.N. with extended school year (“ESY”)
services in the summer of 2007.
During that summer, the Board arranged for an evaluation of
R.N. by Leanne Gmeindl, M.S., who administered a variety of
academic tests. She concluded that a multisensory approach to
learning would be best for R.N. Over the summer, Dr. Timothy
Belliveau, a neuropsychologist, performed the independent
evaluation previously requested by Mrs. H. In his September
report, Dr. Belliveau concluded that R.N. had regressed in
intellectual functioning and had an adjustment disorder. Dr.
Belliveau found that while R.N. had made poor progress up to that
time, he was capable of making significant academic progress.
2007-2008 School Year
R.N. began the 2007 school year at NVS at a new grade level.
Although R.N. adjusted positively overall, he had problems with
some of his new teacher’s policies, including strictly enforced
discipline for incomplete homework. On September 25, 2007, R.N.
was sent to the emergency room when his behavior escalated. Mrs.
H. believed that the new discipline system in R.N.’s classroom
5
had escalated his behavior, so she requested a change of
placement. While Mrs. H. investigated placement options, R.N.
received one to two hours per day of homebound instruction.
The PPT ultimately agreed to place R.N. at the Intensive
Education Academy (“IEA”). In order to make sure that IEA would
be an appropriate fit, IEA conducted a three week intake process,
during which R.N. attended the school with his mother for about
two hours per day.
On November 19, 2007, following an auditory processing
evaluation and a review of Dr. Belliveau’s full report, the PPT
recommended that R.N. enroll in IEA full time. The PPT
determined that IEA staff would use R.N.’s existing IEP
(established in May 2007) and that the PPT would reconvene in
January to revise the IEP.
On January 3, 2008, the PPT convened to review the IEP.
R.N. had been hospitalized in December due to a psychiatric
episode. In light of this recent hospitalization, the PPT
recommended that R.N. return to school on a shortened academic
day until he remained stable for five consecutive days. IEA
indicated that further acts of physical aggression by R.N. would
lead to discussion of another placement.
The PPT noted that R.N. required intensive direct
instruction in a number of areas. It found that R.N. had not
been exposed to grade level social studies and science for
6
several years. R.N.’s progress was declining on the goals and
objectives in his IEP, and he had not mastered any. Mrs. H. did
not register an objection to R.N.’s programming prior to this
meeting nor at the meeting itself.
At this time, the IEP provided for 30.75 school hours per
week. However, from January 5 to May 13, 2008, per the PPT’s
decision, IEA did not instruct R.N. in science, social studies,
or specials, and he was dismissed at 11:00 AM. His counseling
was reduced to fifteen minutes and his services were reduced. He
did not receive homebound instruction.
In March 2008, R.N. began taking Cynthroid for a thyroid
deficiency. He was noted to be off task at school during this
time. Attempts to return him to a full day schedule were not
successful. He was hospitalized again in April for psychiatric
issues. Despite these difficulties, Mrs. H. notified the Board
that she wanted R.N. to continue at IEA for the 2008-2009 school
year.
On May 14, 2008, the PPT revised R.N.’s programming to
include a one-to-one paraprofessional, additional behavior
tracking, and full days. He was performing below grade level in
all areas. At this meeting, Mrs. H. presented letters from Dr.
William Corson – R.N.’s treating psychiatrist – and Dr. Papolos
7
recommending residential placement.3
On June 5, 2008, R.N.’s behavior escalated at IEA and he
struck two staff members. IEA suspended R.N. then discharged him
due to safety concerns.4
At a PPT meeting on June 11, 2008, Mrs. H. was informed of
IEA’s action. The PPT discussed possible alternative placements.
The Board proposed High Road School, starting with summer ESY
programming. Mrs. H. disagreed with this recommendation because
High Road, like NVS, used restraint and seclusion. Mrs. H.
suggested residential placement, but the Board disagreed because
they believed residential placement would be too restrictive.
The Board sought to have R.N. evaluated by Dr. Abramovich,
the Board’s consulting psychiatrist. Dr. Abramovich believes
residential programs are generally harmful and had never
recommended one to the Board.5 Ultimately, Mrs. H. agreed to
3 While treating R.N., Dr. Papolos found that R.N. had poorly regulated attention focus, which leads to significant academic difficulties. R.N. had particular difficulty making transitions between different contexts, which causes problems with transport to and from school and between classes. At times R.N. exhibited uncontainable violent behavior. The use of restraint or seclusion to address his behavior tended to exacerbate the problem. Dr. Papolos believed that R.N.'s condition required residential placement in order for him to learn. 4 Because IEA does not use physical restraint, they were unable to handle a child as physically aggressive as R.N. 5 The Board attempted to secure Mrs. H’s consent for an evaluation by Dr. Abramovich on multiple occasions starting in June 2008. Mrs. H. did not give her consent, stating that the
8
visit High Road. The next scheduled PPT was postponed in order
to give her time to make this visit, and she requested that R.N.
not be placed elsewhere until after the visit.
Summer 2008
Upon visiting High Road in July 2008, Mrs. H. found that it
employed restraint and seclusion comparable to NVS, and that R.N.
would have to work independently for two-thirds of the day. For
these reasons, she rejected the placement.
That month, Dr. Mattis reevaluated R.N. His evaluation
found that R.N.’s academic skills were poorer than they had been
in 2005. He concluded that R.N. needed a predictable, structured
environment to feel safe and therefore recommended residential
placement for R.N.
On August 26, 2008, the PPT met to discuss the issue of
placement. Mrs. H. was represented by counsel. She provided the
Board with the updated report from Dr. Mattis. On the basis of
his recommendation, as well as those of Dr. Papolos and Dr.
Corson, Mrs. H. requested placement for R.N. at the F.L.
Chamberlain School (“Chamberlain”), a residential school in
Massachusetts that provides year-round special education and
therapeutic treatment.6
Board had failed to provide her with information she needed to make an informed decision. 6 Chamberlain serves approximately 110 students and has a staff of over 150 people, including qualified clinicians and
9
The Board disagreed that residential placement was necessary
and recommended a diagnostic placement at the Manchester Memorial
Clinical Day School (“MMCDS”). The Board said it needed more
appropriate. Mrs. H. rejected the Board’s proposed diagnostic
placement.
Fall 2008 - Enrollment at Chamberlain
On September 8, 2008, Mrs. H. wrote a letter to the Board
indicating that she intended to enroll R.N. at Chamberlain right
away. She stated that she would not allow the Board to speak
with Chamberlain unless she was present. She also refused to
allow the Board to conduct evaluations unless they were conducted
by Chamberlain staff or during school breaks. The Board
responded with offers to have Dr. Marshall Gladstone evaluate
R.N. at Chamberlain, and to have Dr. Abramovich evaluate him
during a school holiday. Mrs. H. requested information about the
qualifications of these evaluators and the tests they would
administer. She refused to consent to these evaluations without
the requested information and the Board did not provide it.
On September 22, 2008, Mrs. H. and her husband met with Kay
Tapper, the Program Director at MMCDS. Ms. Tapper told them that
R.N. would not be a candidate for MMCDS because his academic
psychiatrists. The school does not have timeout rooms. Students are provided opportunities to interact with non-disabled peers.
10
performance was so low and his avoidant behaviors were so
intense.
As of late December 2008, R.N. was the lowest functioning
student at Chamberlain, and did not have devoted one-to-one
support. He received his classes in one classroom, and there was
no occupational therapy room with equipment for him to use. His
teachers were not certified in special education. R.N. received
therapy with Ms. Emily Lannigan, who was not certified to deliver
cognitive behavioral therapy, and with an unlicensed clinician
who was an intern. Ms. Schiffer had visited Chamberlain and did
not feel it was an appropriate placement for R.N.
However, R.N. was taking core academic courses, as well as
electives. He spent 7.5 hours per day in class. He had seven
classmates and two teachers. Since enrolling at Chamberlain, he
had not missed any school days. Nor had he been physically
restrained. Accounts of R.N.’s adjustment to Chamberlain
indicated he was doing very well and making academic progress.
Procedural History
On December 26, 2008, the IHO issued a detailed written
decision. The IHO found that the Board failed to provide FAPE to
R.N. for the 2007-2008 school year. She also found that the
Board did not propose a plan that would provide FAPE to him for
the 2008-2009 school year. Finally, she found that the Board was
obligated to reimburse Mrs. H. for R.N.’s year at Chamberlain.
11
In February 2009, the Board brought this action challenging
the IHO’s decision. The amended complaint asked the Court to do
the following: (1) enter a preliminary injunction requiring Mrs.
H to consent to a psychiatric evaluation of R.N. by a qualified
professional chosen by the Board; (2) reverse the IHO’s decision
with regard to the rulings against the Board; (3) find that the
2007-2008 IEP was appropriate, that the Board met R.N.’s needs,
and that the Board therefore is not required to reimburse Mrs. H
for the costs of R.N.’s 2008-2009 placement at Chamberlain; (4)
find that the Board’s proposed diagnostic evaluative placement at
MCDS was appropriate and necessary in order to devise an
appropriate educational program for R.N. for the 2008-2009 school
year and that the Board met its legal obligations when it made
this recommendation; (5) find that the Board should be reimbursed
for the costs of tuition paid to Chamberlain and Mrs. H. pursuant
to the IHO’s order; and (6) declare that Mrs. H. should not
recover an award of attorney’s fees under the IDEA.
The parties’ filed cross-motions for summary judgment.
In September 2010, the parties reached a settlement agreement
resolving several aspects of this case (“the 2010 agreement”).
The parties agreed on a 2010-2011 placement for R.N. In
addition, Mrs. H. agreed to allow the Board to evaluate R.N. in
order to draft a prospective IEP. The agreement states that it
does not affect this litigation.
12
After the settlement was executed, R.N. filed a motion for
partial judgment on the pleadings urging that many of the items
of relief sought by the Board in the amended complaint can no
longer be granted in light of the settlement (doc. 88). R.N.
contends that the Board’s request for a preliminary injunction
requiring Mrs. H. to consent to a psychiatric evaluation is moot
because Mrs. H. has agreed to an evaluation. The Board responds
that there is still a live controversy because the Court can
enter an injunction requiring Mrs. H. to comply with future
evaluation requests. The amended complaint, however, requested
only “a preliminary injunction requiring Mrs. H. to consent to a
psychiatric evaluation, and other evaluations as may be necessary
at this time.” Compl. (doc. 9) at 24, ¶ 1. Since Mrs. H. has
agreed to allow an evaluation, and the Board has not sought an
injunction regarding hypothetical future evaluations, the request
for a preliminary injunction is moot. To the extent R.N.’s
motion seeks judgment on the Board’s request for a preliminary
injunction, it is granted.
The Board’s other claims for relief ask the Court to reverse
the IHO’s rulings that the 2007-2008 IEP was not appropriate,
Chamberlain was an appropriate placement, and the Board must pay
the cost of R.N.’s 2008-2009 attendance at Chamberlain. In his
motion for partial judgment, R.N. argues for the first time that
the Board cannot obtain reimbursement from Mrs. H. for R.N.’s
13
placement at Chamberlain because he was placed there pursuant to
the IHO’s order, which is equivalent to a “stay put” pendency
provision. See 20 U.S.C. § 1415(j) (2006); C.G. ex rel. B.G. v.
N.Y.C. Dep’t of Educ., 752 F. Supp. 2d 355, 361 (S.D.N.Y. 2010).
The Board responds that Mrs. H. unilaterally placed R.N. at
Chamberlain. Because this argument was not raised previously and
does not relate to the 2010 agreement, I decline to reach it.
Accordingly, there remains a live controversy as to whether the
Board provided FAPE to R.N. during the 2007-2008 and 2008-2009
school years, and whether the Board is required to pay for R.N.’s
placement at Chamberlain during the 2008-2009 school year. With
regard to those issues, R.N.’s motion for partial judgment on the
pleadings is denied. However, I conclude that the IHO’s rulings
on these issues should be affirmed.
Standard of Review
Courts do not use the usual summary judgment standard when
reviewing administrative determinations under the IDEA. Lillbask
ex rel. Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77,
83 n.3 (2d Cir. 2005). Instead of looking for disputes of
material fact, a court reviews the administrative record and any
further evidence presented under a preponderance of the evidence
standard. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380
(2d Cir. 2003) (citing 20 U.S.C. § 1415(i)(2)(B)). Under the
IDEA, judicial review of IHO decisions is “independent” but
14
“circumscribed”; courts must give “due weight” to the factual and
educational determinations of the hearing officer, “mindful that
the judiciary generally lack[s] the specialized knowledge and
experience necessary to resolve persistent and difficult
questions of educational policy.” Lillbask, 397 F.3d at 82
(citation and internal quotation marks omitted, alteration in
original). Courts do not, however, defer to an IHO’s conclusions
of law. Id.
Whether Mrs. H. is entitled to reimbursement for R.N.’s
placement at Chamberlain involves a three-step inquiry.
First, we examine whether the state has complied with the procedures set forth in the IDEA. Second, we consider whether the IEP developed through the Act’s procedures [is] reasonably calculated to enable the child to receive educational benefits. . . . If . . . the IEP is procedurally or substantively deficient, we proceed to the third step and ask whether the private schooling obtained by the parents is appropriate to the child’s needs.
Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.
2005) (internal quotation marks and citations omitted). The
first two steps in the analysis focus on whether the Board has
provided FAPE to R.N.; the third focuses on whether Mrs. H.
should be reimbursed.
Procedural Violations
R.N. alleges four procedural violations. He contends that
the Board: (1) predetermined placement at High Road without
considering evaluations by R.N.’s independent doctors in
violation of 34 C.F.R. §§ 300.501(a), 300.502 (c) (2006); (2)
15
unilaterally discharged R.N. from IEA without parent input in
violation of 34 C.F.R. §§ 300.501(a), (c) (2006); (3) failed to
provide information requested by the parent regarding its
proposed evaluations in violation of 34 C.F.R. § 300.503 (2006);
and (4) failed to consider private evaluations in violation of 34
C.F.R. § 300.502(c) (2006). The IHO did not ground her decision
against the Board in procedural violations. Even so, I examine
each of R.N.’s allegations in turn.
Placement at High Road
The IDEA requires a Board to give parents the opportunity to
review all education records with respect to the placement of
their children and the provision of FAPE to their children. 34
C.F.R. § 300.501(a) (2006). In her Conclusions of Fact, the IHO
found that “it is not clear what information the Board relied
upon in making this recommendation [to place R.N. at High Road]
or what factors were considered in determining how placement at
High Road would meet the Student’s needs and provide FAPE.” This
does not, however, constitute a violation of Section 300.501(a).
“[T]he Act defines ‘education records’ as those records that
‘contain information directly related to a student’ and ‘are
maintained by’ the school district.” Cerra, 427 F.3d at 194
(quoting 20 U.S.C. § 1232g(a)(4)(A)). No evidence indicates that
the decision to recommend High Road was based on district records
related to R.N. that were not made available for Mrs. H’s review.
16
The Board did not violate § 300.501(a).
To the extent defendant wishes to claim that the Board
violated §§ 300.501(b)-(c) by failing to afford Mrs. H. an
opportunity to participate in meetings and placement decisions,
his allegations again fail. Despite the Board’s strong
preference for High Road, it still discussed the placement
decision with Mrs. H. and listened to her input. See K.L.A. v.
Windham Southeast Supervisory Union, 371 Fed. Appx. 151, 154 (2d
Cir. 2010). Further, because Mrs. H. would not accept the
program, R.N. ultimately avoided placement at High Road. The
Board’s actions in advocating for High Road while involving Mrs.
H. in the process did not violate the IDEA.
The IDEA also requires the Board to consider any independent
educational evaluation that a parent provides in any decision
made with respect to the provision of FAPE to the child, as long
as the evaluation meets agency criteria. 34 C.F.R. § 300.502(c).
This issue is addressed below.
Unilateral Discharge from IEA
R.N. alleges that the Board also violated the requirement
that an agency involve the parent in placement decisions by
unilaterally discharging R.N. from IEA. The record shows that
IEA staff made the decision to terminate R.N. from the program
due to safety concerns. IEA is a private institution and its
decision to terminate R.N. was beyond the control of the Board or
17
the PPT. The Board had no obligation to involve the parents in
this decision in which it was not itself involved. Accordingly
R.N.’s discharge from IEA did not violate the procedural
safeguards of the IDEA.
Failure to Provide Information Regarding Evaluations
The IDEA requires that parents be provided with written
notice of a proposed evaluation. 20 U.S.C. § 1415(b)(3) (2006);
34 C.F.R. § 300.503 (2006). In and after June 2008, the Board
sought to have Mrs. H. consent to an evaluation of R.N. by Dr.
Abramovich. Mrs. H. requested information from the Board
regarding the purpose of the evaluations and the nature of the
tests that would be done. In response to those requests, the
Board provided some information about Dr. Abramovich and the
testing. The IHO found that the information provided was
insufficient to satisfy the informed consent requirement.
The Board has not shown by a preponderance of the evidence
that the IHO’s conclusion is erroneous. The record indicates
that the Board provided Mrs. H. with only general information
about Dr. Abramovich. The Board did not explain exactly what
medical or behavioral conditions it sought to discover and did
not specifically describe the methods of evaluation that would be
used. Failure to provide adequate written notice may violate the
procedural safeguards of the IDEA even when the parent is
involved in the overall decisionmaking process. Scruggs v.
18
Meriden Bd. of Educ., No. 3:03-CV-2224 (PCD), 2007 WL 2318851, at
*10 (D. Conn. Aug. 10, 2007).
Failure to Consider Private Evaluations
Under 34 C.F.R. § 300.502(c) (2006), the Board is required
to consider independent educational evaluations (“IEEs”) in
making decisions regarding provision of FAPE. The IHO determined
that the Board failed to consider reports of IEEs by Drs.
Papolos, Mattis and Corson that Mrs. H. provided to the Board.
The Board contends that the IHO erred because § 300.502(c)
requires an agency to consider an IEE only when the IEE meets
agency criteria and the evaluations provided by Mrs. H. did not
meet those criteria. The Board points to its IEE policy, Ex. B-
115, arguing that it requires an IEE to include classroom
observation and formal meetings between the evaluator and Board
personnel. The IEEs provided by Mrs. H. did not meet these
requirements.
The requirements listed in the Board’s IEE policy document
appear to apply only when a parent is seeking an IEE at public
expense. The policy states, “If the District agrees to finance
an IEE, it will pay only for an IEE that is conducted by an
individual who . . . complies with the criteria set forth
herein.” Ex. B-115, at 14. The policy then lists the criteria
described above. In addition, it states: “The District will
consider all evaluations by qualified evaluators as part of the
19
planning and placement team process.” Id. (emphasis added). Mrs.
H. did not request funding for the IEEs. Rather, she obtained
them at her own expense then presented them to the PPT.
Accordingly, the Board has not shown by a preponderance of the
evidence that the evaluations provided by Mrs. H. failed to
comply with its IEE criteria. The Board was thus required to
consider the evaluations under § 300.502(c).
Plaintiff, then, committed two procedural violations: it
failed to provide adequate notice of its proposed evaluations,
and it failed to consider R.N.’s IEEs. However, violations of
procedural safeguards result in a denial of FAPE only if they
“(I) impeded the child’s right to a free appropriate public
education; (II) significantly impeded the parents’ opportunity to
participate in the decisionmaking process regarding the provision
of a [FAPE] to the parents’ child; or (III) caused a deprivation
of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii) (2006).
I need not consider whether these procedural violations, in
themselves, resulted in a denial of FAPE because I find that
R.N.’s IEP was not reasonably calculated to provide benefits, and
as a result, FAPE was not provided to him.
Substantive Violations
To provide FAPE to a child, the Board not only must comply
with the IDEA’s procedural safeguards, it must also craft an IEP
that is “reasonably calculated to enable the child to receive
20
educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207
(1982). This does not mean that a school district must furnish
“every special service necessary to maximize each handicapped
child’s potential.” Id. at 199. Instead, “a school district
fulfills its substantive obligations under the IDEA if it
provides an IEP that is likely to produce progress, not
regression, and if the IEP affords the student with an
opportunity greater than mere trivial advancement.” Cerra v.
Pawling Cent. Sch. Dist, 427 F.3d 186, 195 (2d Cir. 2005)
(internal quotation marks omitted).
The IHO found that R.N.’s programs for 2007-2008 and 2008-
2009 were not appropriate. The Board urges that the program for
2007-2008 was appropriate, and that Mrs. H. prevented the
formation of a program for 2008-2009 by placing R.N. at
Chamberlain. Accordingly, it is necessary to decide whether
these IEPs were reasonably calculated to confer educational
benefits on R.N.
In reviewing an IHO’s ruling, the officer’s conclusions
about the educational appropriateness of an IEP are entitled to
substantial deference in view of his or her “special expertise in
making judgments concerning student progress.” Cerra, 427 F.3d
at 195. The IHO’s findings in this area may not be overturned
“absent objective evidence in the record suggesting that the
[IHO] has reached an erroneous conclusion.” Id. At 196. Under
21
this standard, the IHO’s determination that the IEPs for 2007-
2008 and 2008-2009 were inadequate must be affirmed.
The 2007-2008 School Year
The IHO found that the Board failed to provide FAPE during
the 2007-2008 school year. In other words, she found that the
Board failed to provide an IEP reasonably calculated to enable
R.N. to receive educational benefits. The record supports this
conclusion. While attending NVS, R.N. had to be forcibly
transported to school by Wheeler Clinic staff, and Mrs. H.
complained about the school’s disciplinary tactics. R.N. had
sufficient trouble at NVS to alert the Board that the placement
was inappropriate. Between September and October 2007, R.N.
received only one to two hours per day of homebound tutoring with
no related services. After the January 2008 PPT meeting, R.N.
returned to school for shortened academic days. A two-hour
school day with no additional services was not sufficient to
provide R.N. with a reasonable chance of making academic
progress, especially in view of the PPT’s determination that he
should be in school 30.75 hours per week. R.N. did not receive
ESY services during the summer of 2008 to make up for this
deficiency.7
7 The Board contends that Mrs. H. specifically requested that R.N. not receive ESY, or at least that she gave the PPT the impression that she did not want ESY. The record reflects that Mrs. H. asked that R.N. not be given a new placement until she had a chance to visit High Road (the Board’s placement
22
In her ruling, the IHO concluded that R.N. declined during
the 2007-2008 school year, and this finding contributed to her
ultimate determination that the Board failed to provide FAPE to
R.N. that year. The Board challenges the IHO’s determination as
“Monday morning quarterbacking.” It is true that the adequacy of
an IEP must be evaluated in light of the information available to
the PPT when the IEP is created. See B.L. v. New Britain Bd. of
Educ., 394 F. Supp. 2d 522, 537 (D. Conn. 2005). And the Second
Circuit has declined to rule on whether courts may look to a
child’s actual progress to determine whether an IEP was
reasonably calculated to allow a child to progress. See T.P. ex
rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 251
n.1 (2d Cir. 2009) ("This Court has never ruled on whether
district courts may consider retrospective evidence in assessing
the substantive validity of an IEP[;] . . . [and] [w]e need not
do so here."). But the Court of Appeals has allowed
retrospective evidence to show that placement in a private school
was appropriate. See Frank G. v. Bd. of Educ., 459 F.3d 356,
362, 367 (2d Cir. 2006). I conclude that while retrospective
evidence must be appropriately discounted to avoid hindsight
bias, it is relevant and may therefore be evaluated: a failed
plan is more consistent with an unreasonably calculated IEP than
with a reasonably calculated one. Therefore, I consider R.N.’s
recommendation), not that she declined ESY services.
23
progress during the 2007-2008 school year in my evaluation of
whether the IEP for that year was appropriate.
Ample evidence shows that R.N. did not make progress during
the 2007-2008 school year. As of the spring of 2008, he was
found to be making no progress toward his goals and objectives
although he had made “satisfactory” or “limited” progress the
previous year. R.N. had numerous psychiatric episodes during the
school year that required hospitalization and prevented him from
attending school full-time. Dr. Papolos opined that R.N. had
deteriorated to the extent that he required a residential
placement in order to achieve educational benefit.
The Board contends that R.N. did in fact make academic
progress during the 2007-2008 school year. It argues that the
IHO failed to take into account the effects of R.N.’s behavioral
condition on his progress. See Mrs. B. v. Milford Bd. Of Educ.,
103 F.3d 1114, 1122 (2d Cir. 1997)(“[A] child’s academic progress
must be viewed in light of the limitations imposed by the child’s
disability.”). The record indicates the opposite. The IHO was
keenly aware of R.N.’s behavioral and medical impairments. She
concluded, however, that they were so severe as to prevent him
from being educated in a nonresidential setting. The Board also
cites statements by Jill O’Donnell, IEA’s Director of Education,
that R.N. made demonstrable progress there. The Court must defer
to the IHO on matters of credibility and issues of educational
24
policy, and so I defer to the IHO’s determination that R.N. did
not make progress.
While it is true that no particular level of achievement is
mandated by the IDEA, and while there may be some indications of
progress by R.N. during the 2007-2008 school year, a
preponderance of evidence in the record indicates that he
regressed rather than progressed during that year.
The Board argues that Mrs. H’s close involvement with all
the decisions regarding R.N.’s program essentially immunizes them
from any failure to provide FAPE. A parent’s involvement with
the IEP process is relevant in determining whether an agency has
complied with the procedural requirements of the IDEA. The
substantive requirement, however, is an objective test that
examines the adequacy of the plan itself. See Walczak, 142 F.3d
at 130 (district court “must examine the record for any
‘objective evidence’ indicating whether the child is likely to
make progress or regress under the proposed plan”). It is true
that a parent may not ask a school district to accede to her
wishes and then try to punish it for doing so. See MM v. Sch.
Dist., 303 F.3d 523, 333 n.14 (4th Cir. 2002). The Board, then,
may not be punished for accepting Mrs. H’s request that R.N.
return to shortened school days in late March 2008. However,
Mrs. H’s participation in, and agreement with, the PPT’s other
decisions do not immunize the Board.
25
Cases cited by the Board in support of its position are
inapposite. In Gregory M. v. State Bd. of Educ., 891 F. Supp.
695, 700-01 (D. Conn. 1995), the Court held that the parents’
involvement in planning their child’s IEP undermined their claim
of a procedural violation of the IDEA. Whether Mrs. H. approved
the Board’s programs for R.N. would no doubt be relevant to a
procedural claim that the Board did not sufficiently involve her
in decisions, but that is not at issue here. Cerra, 427 F.3d at
195, holds that a district court must defer to the hearing
officer and educational experts in determining whether an IEP is
reasonably calculated to make progress.8 Devine v. Indian River
Cnty. Sch. Bd., 249 F.3d 1289, 1292 (11th Cir. 2001), finds that
a parent bears the burden of proof when he or she challenges an
IEP, and deference must be paid to educators who develop the IEP.
The Eleventh Circuit opinion does not address whether a parent’s
acquiescence to a program bears on its substantive
reasonableness. Finally, the Board cites my prior decision in
Mr. & Mrs. M. v. Ridgefield Bd. of Educ., No. 3:05-CV-584 (RNC),
2007 U.S. Dist. LEXIS 24691, at *22 (D. Conn. Mar. 30, 2007).
That case involved a procedural violation for failure to develop
an IEP. I affirmed the IHO’s finding that “the parents’ own
choices were intertwined with the Board’s decisions in such a way
8 At a different point, Cerra notes that parental involvement fulfills a procedural, not a substantive, obligation. See 427 F.3d at 192.
26
as to break the chain of causation between the Board’s actions
and any prejudice to [the student]’s education.” Id. The
parents in Mr. & Mrs. M. had delayed testing that was necessary
to completing the IEP. In this case, the parent did not prevent
the Board from taking steps necessary to completing the IEP. It
is clear from the record that Mrs. H. was indeed closely involved
in the IEP process.9 But the Board has not established that it
is entitled to an exemption from this requirement because of her
involvement.
As the IHO observed, the Board made many laudable efforts to
help R.N. succeed. However, as Dr. Papolos testified, R.N.’s
behavioral problems were simply too severe to allow him to
receive a meaningful education in the settings provided by the
Board.10 The record indicates that this fact was clear early on
9 Most relevant is the fact that Mrs. H. approved R.N.’s shortened school day when he was not stable enough to attend the IEA full time. The IHO found that R.N. did not receive a large number of the services listed in his IEP during this time period. However, the Board also agreed to this shortened day. Moreover, the fact that R.N. required a shortened day highlights the inadequacy of his program in light of his serious behavioral problems. 10 The Board argues that the IHO deprived it of its due process rights through several evidentiary rulings: The IHO allowed Dr. Papolos to testify when he had not complied with her instruction to bring relevant records to the hearing, and she allowed Ms. Lannigan to testify via telephone without a notary consistently present. The Board has not demonstrated how these rulings prejudiced it and thereby rose to the level of a due process violation. It had a full opportunity to cross-examine both witnesses while they were sworn in.
27
in the 2007-2008 school year, and that the measures taken were
simply stopgaps designed to manage his behavior rather than
provide him educational benefit. Accordingly, I affirm the IHO’s
conclusion that R.N. was denied FAPE during the 2007-2008 school
year.
The 2008-2009 School Year
It is undisputed that an IEP was never developed for the
2008-2009 school year. Unless the Board provides an adequate
defense, then, a finding that plaintiff failed to provide FAPE
for that school year is proper. The Board argues that it was
unable to formulate a program for 2008-2009 year because Mrs. H.
was unwilling to consent to a necessary evaluation. After Mrs.
H. refused to consent to an evaluation by Dr. Abramovich, the
Board sought a diagnostic evaluative placement at MMCDS. Mrs. H.
placed R.N. at Chamberlain instead.
Mrs. H.’s unwillingness to consent to a reevaluation does
not insulate the Board from liability for two reasons. First,
the IHO determined that the Board did not give Mrs. H. sufficient
Second, the IHO found that the Board, which already had extensive
new information that would be discovered through another
evaluation. Deference is owed to the IHO on these matters
because they involve educational policy.
28
The Board contends that it had a right to reevaluate R.N.
Under existing case law, the Board is entitled to evaluate a
child before the first IEP is created, see P.S. v. Brookfield Bd.
of Educ., 353 F. Supp. 2d 306, 314, 314 n.5 (D. Conn. 2005); when
there is a question whether a child should receive special
education at all, see Dubois v. Connecticut State Bd. of
Education, 727 F.2d 44, 49 (2d Cir. 1984); M.L. v. El Paso Indep.
Sch. Dist., 610 F. Supp. 2d 582, 599 (W.D. Tex. 2009); and when a
required reevaluation, such as the triennial reevaluation, is
scheduled, see Patricia P v. Bd. of Educ., 203 F.3d 462, 468 (7th
Cir. 2000); Andress v. Cleveland Indep. Sch. Dist., 64 F.3d 176,
178 (5th Cir. 1995); M.S. v. Mullica Twp. Bd. of Educ., 485 F.
Supp. 2d 555, 568 (D.N.J. 2007), aff’d, 263 Fed. Appx. 264 (3d
Cir. 2008). The case law does not establish that a board has a
right to insist on an ad hoc reevaluation. The IHO determined
that R.N. did not require reevaluation and her decision is one of
educational policy to which I defer.
Because the Board proposed no program for 2008-2009 beyond
the MMCDS diagnostic, the IHO’s conclusion that FAPE was denied
for that school year is affirmed.
Appropriateness of Chamberlain
Mrs. H. has established that the Board denied R.N. a FAPE
for the 2008-2009 school year; therefore, it is necessary to
determine whether the private educational services the parents
29
obtained for R.N. were appropriate. In making this assessment, I
apply “the same considerations and criteria that apply in
determining whether the School District’s placement is
appropriate,” except that “[a]n appropriate private placement
need not meet state education standards or requirements,” and
parents may not be required to educate their children with non-
disabled peers to the maximum extent appropriate. Frank G. v.
Bd. Of Educ., 459 F.3d 356, 364 (2d Cir. 2006).
The Board urges that Chamberlain was not an appropriate
placement due to several alleged deficiencies in its staffing and
programming and because Drs. Mattis and Papolos were not
specifically familiar with it. The IHO determined that, although
Chamberlain was not perfect, it was appropriate.11 I agree with
the IHO’s conclusion. The record reflects that R.N. made
significant progress during his time at Chamberlain. He was able
to attend classes for full days, and he developed a more positive
self-image. Factors beyond R.N.’s progress confirm that
Chamberlain was an appropriate placement. See Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007)(“[A]
child’s progress is relevant to the court’s review. But such
progress does not itself demonstrate that a private placement was
11 The Board argues that the IHO erroneously disregarded the testimony of its experts and credited the testimony of Dr. Mattis and Dr. Papolos though they were not familiar with Chamberlain. I defer to the IHO’s evaluation of the conflicting testimony.
30
appropriate.) The record shows that R.N. required a residential
placement because he had difficulty making transitions and needed
therapeutic intervention throughout the day.
When a child’s behavioral and emotional problems are so
closely intertwined with his educational difficulties that he
requires residential placement, the school board must pay for
that placement as long as it is appropriate. Mrs. B., 103 F.3d
at 1122. That is the case here. Accordingly, Mrs. H. is
entitled to reimbursement from the Board for the 2008-2009 school
year.
III. Conclusion
For the foregoing reasons, plaintiff’s motion for summary
judgment (doc. 36) is denied and defendant’s motion for summary
judgment (doc. 61) is granted as to liability. Defendant’s
motion for partial judgment on the pleadings (doc. 88) is granted
in part and denied in part as discussed above.
Defendant’s motion for summary judgment includes a request
for attorneys’ fees. The fee request will be referred to
Magistrate Judge Martinez.
So ordered this 31st day of March 2012.
/s/ RNC Robert N. Chatigny United States District Judge
31