UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
SHKELQESA DERVISHI on behalf : 3:11cv1018 of T.D., : Plaintiff, :
v. :
STAMFORD BOARD OF EDUCATION, : Defendant. :
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Shkelqesa Dervishi proceeding In Forma Pauperis (“IFP”), brings this
action on behalf of her minor son, T.D., to appeal the decision of a due process
administrative hearing officer pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1415. Plaintiff also claims that defendant Stamford Board of
Education breached a settlement agreement. For the following reasons, defendant’s
motion for summary judgment will be granted.
Factual Background
The administrative record and the supporting exhibits reveal the following factual
background.
T.D. is a student who has been identified as eligible for special education and
related services under the category of autism. In November 2009, the School Board
and T.D.’s parents [“Parents”] entered into a settlement agreement, which set forth a
plan to have independent consultants evaluate T.D. and recommend a program. The
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parties agreed that they would be bound by the recommendation of three independent
consultants regarding an appropriate special education program and placement.
Dr. Bridget Taylor was identified in the settlement agreement as the jointly-
agreed upon consultant to conduct an evaluation of T.D. However, the settlement
agreement provided that if Dr. Taylor was unable to complete the evaluation, the
Parents would submit a list of five consultants with the qualifications and experience
required to conduct the pycho-education evaluation.
During the implementation of this agreement and the development of T.D.’s
program, the School Board agreed to fund T.D.’s home-based program.
Despite many scheduling difficulties, the parties did proceed with Planning and
Placement Team (“PPT”) meetings to develop an Individualized Education Plan (“IEP”)
for T.D. in May, June, July, August 2010.
In August 2010, the IEP for T.D. for the 2010-2011 school year was finalized. It
included ten goals and objections; placement at the School Board’s Roxbury school
where T.D. would have special education supports readily available to him; and a
transition plan for T.D.’s placement at the school.
In late August, the Parents rejected the IEP and sought a “stay put” of T.D.’s
current home program. The School Board reconvened a PPT on November 22, 2010,
at which time the Parents requested placement at the McCarton School, a public school
in New York. The School Board denied this request.
In November 2010, the Parents requested a due process hearing seeking
reimbursement for a home program and placement of T.D. at the McCarton School. In
a Final Decision and Order dated May 13, 2011, a Hearing Officer (“H.O.”) found that
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the Stamford Board of Education had offered T.D. an appropriate program for the 2010-
2011 school year at one of the Stamford Board of Education schools. Accordingly, the
H.O. held that the School Board had not denied T.D. a free appropriate public
education [“FAPE”]; that the parent should not be reimbursed for their home program;
and that the School Board was not responsible for the plaintiff’s proposed placement of
T.D. at the McCarton School.
Discussion
A motion for summary judgment must be granted if the pleadings, discovery
materials before the court and any affidavits show that there is no genuine issue as to
any material fact and it is clear that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A dispute regarding a material fact is genuine if there is sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to
demonstrate the absence of any material factual issue genuinely in dispute. Am. Int’l
Group, Inc. v. London Am. Int’l Corp., 664 F. 2d 348, 351 (2d Cir. 1981).
If a nonmoving party has failed to make a sufficient showing on an essential
element of the case with respect to which that party has the burden of proof, then
summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving
party submits evidence which is “merely colorable,” legally sufficient opposition to the
motion for summary judgment is not met. Liberty Lobby, 477 U.S. at 24. The mere
existence of a scintilla of evidence in support of the nonmoving party’s position is
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insufficient; there must be evidence on which the jury could reasonably find for that
party. See Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the court resolves all ambiguities and draws all
permissible factual inferences in favor of the nonmoving party. See Patterson v.
County of Oneida, 375 F.3d 206, 218 (2d Cir. 2004). If there is any evidence in the
record from which a reasonable inference could be drawn in favor of the opposing party
on the issue on which summary judgment is sought, summary judgment is improper.
See Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d
Cir. 2004).
Summary judgement is a pragmatic procedural mechanism in the federal rules
for resolving IDEA actions. Lillibask v. Connecticut Dept. of Educ., 397 F.3d 77, 84 (2d
Cir. 2005). The Court’s inquiry is not directed to discerning whether there are disputed
issues of fact, but rather, whether the administrative record, together with any additional
evidence, establishes that there has been compliance with IDEA's processes and that
the child's educational needs have been appropriately addressed. A.E. v. Westport Bd.
of Educ., 463 F. Supp. 2d 208, 215 (D. Conn. 2006)
Under IDEA, when a federal court reviews the findings and conclusions reached
in a state administrative proceeding, it must base its decision on the preponderance of
the evidence, after reviewing the administrative record and any additional evidence
presented. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122-123 (2d Cir.
1998). This is not an invitation to the courts to substitute "their own notions of sound
educational policy for those of the school authorities which they review." Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). Federal
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courts do not "rubber stamp" administrative decisions but must accord "due weight" to
these proceedings. Walczak, 142 F.3d at 129.
In Cerra v. Pawling Cent. School Dist., 427 F.3d 186, 191 (2d Cir. 2005), the
Second Circuit emphasized that district courts should pay deference to administrative
judgments on matters of educational policy. Deference is particularly appropriate where
the state hearing officer’s review has been thorough and careful. Walczak, 142 F. 3d at
122.
However, in matters of statutory interpretation or mixed issues of law and fact,
the district court is not bound by a rule of deference but may apply a de novo standard
of review. Muller v. Committee on Special Educ. of East Islip Union Free Sch. Dist.,
145 F.3d 95, 102 (2d Cir. 1998).
IDEA
IDEA provides federal grants to states so that they may in turn provide disabled
children with a free appropriate public education [“FAPE”] in the least restrictive,
appropriate environment. See 20 U.S.C. §§ 1400(d)(1)(A), 1401(8), 1411(a)(1) &
1412(a)(5)(A).
When a child is identified as potentially requiring special education services, the
local education agency [“LEA”] has a duty to complete an evaluation process; failure to
complete this process constitutes a denial of a FAPE. 20 U.S.C. § 1414(b)(2)(A)(i); see
N.G. v. Dist. of Columbia, 556 F. Supp. 2d 11, 16 (D. D.C. 2008). The LEA must
evaluate the student within a reasonable time after notice or suspicion of a disability.
30 C.F.R. § 300.301(c)(1); El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d
918, 950 (W.D. Tex. 2008).
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To conduct the evaluation, the LEA “shall use a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic information,
including information provided by the parent, that may assist in determining” whether
the child is disabled under the Act. 20 U.S.C. § 1414(b)(2)(A)(i). Section
1412(a)(10)(iii) directs the LEA to ensure a “timely and meaningful consultation” with
the private school representatives and parents of a student with disabilities placed at a
private school during the design and development of special education services.
Once the student is determined to be eligible, the student’s educators and
parents meet and jointly develop an IEP for each year of the child’s education. See 20
U.S.C. §§ 1401(11), 1414(d); Polera v. Bd. of Educ. of the Newburgh Enlarged
Stamford Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002); see also P.J. v. Conn. Bd. of
Educ., 788 F. Supp. 673, 676 n.1 (D. Conn. 1992) (“The IEP is produced by what is
known as the planning and placement team, which must include a qualified special
education representative of the school board, the child's teacher, and one or more of
the child's parents, and may also include individuals who evaluate the child or provide
special education services to the child.”). The IEP must provide personalized
instruction with sufficient support services to permit the child to benefit educationally.
Rowley, 458 U.S. at 203. It is through the IEP that the school may monitor the student
and her progress. Polera, 288 F.3d at 482.
IDEA provides for procedural safeguards through which a parent can ensure her
child’s education. 20 U.S.C. § 1415(a). These procedural safeguards include the rights
“to examine all records relating to [the] child and to participate in meetings with respect
to the identification, evaluation, and educational placement of the child, and the
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provision of a free appropriate public education to such child and to obtain an
independent educational evaluation of the child,” 20 U.S.C. § 1415(b)(1); written notice
prior to any changes in the child's identification, evaluation or educational placement,
20 U.S.C. § 1415(b)(3); "an opportunity to present complaints with respect to" such
matters, 20 U.S.C. § 1415(b)(6); and, whenever any such complaint is made, the right
to "an impartial due process hearing ... by the State educational agency or by the local
educational agency," with corresponding rights to be accompanied and advised by
counsel, to present evidence and cross-examine witnesses, to receive a written record
of proceedings, and to receive written findings of fact and decisions. 20 U.S.C. §
1415(f)(1) & (h).
The Supreme Court has stated that “adequate compliance with the procedures
prescribed in IDEA would in most cases assure much if not all of what Congress wished
in the way of substantive content in an IEP.” Rowley, 458 U.S. at 206. Thus, the
Court’s procedural inquiry is “no mere formality.” Walczak, 142 F.3d at 122. However,
procedural defects do not constitute denial of a FAPE unless they result in the loss of
educational opportunity. Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811-12 (5th
Cir. 2003).
Parents who object to their child’s identification, evaluation or educational
placement are entitled to an impartial due process hearing. 20 U.S.C. § 1415(f).
Parties aggrieved by a hearing officer’s decision at the due process hearing may bring a
civil action. 20 U.S.C. § 1415(i)(2).
Upon review of an administrative decision, a district court retains authority to
“grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii).
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Such relief includes the power to order reimbursement to parents for their expenditures
on private education for their child if (1) the school district failed to provide a FAPE and
(2) the private education services were appropriate for the child’s needs. Forest Grove
Sch. Dist. v. T.A., 527 U.S. 230, 247 (2009).
Review of Hearing Officer’s Decision
Generally, a court reviewing a hearing officer’s decision relevant to the IDEA
should consider whether the school board complied with the procedures set forth in the
IDEA; and then determine whether the IEP developed through the IDEA’s procedures
was reasonably calculated to enable the child to receive educational benefits. Rowley,
458 U.S. at 206-207. Where the parents of a disabled child have placed the child in a
private educational setting, reimbursement of educational services is appropriate when
a school district has failed to provide a FAPE and a child's private placement is
appropriate, without regard to the child's prior receipt of services. Forest Grove School
Dist. 557 U.S. at 243. A reviewing court must examine the record for any objective
evidence indicating whether the student was “likely to make progress” under the school
board’s proposed plan. Walczak, 142 F.3d at 130.
Here, the hearing officer held that the School Board complied with IDEA’s
procedural safeguards by offering PPT meetings that satisfied the Parents’ schedules
or providing the Parents with the opportunity to participate telephonically or through
videoconferencing.
The Parents complained that the School Board violated IDEA’s procedural
requirements by holding two Planning and Placement Team (“PPT”) meetings for
development of the IEP during the summer months while they were out of the country.
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The School Board was obliged to ensure that one or both parents were present at the
IEP meetings or were afforded the opportunity to participate. Cerra, 427 F.3d 186 at
192. The regulations provide that “[i]f neither parent can attend an IEP Team meeting,
the public agency must use other methods to ensure parent participation, including
individual or conference telephone calls.” 34 C.F.R. § 300.322(a)-(c). Where the
school district is unable to convince the parents that they should attend, the School
District may conduct an IEP meeting without a parent in attendance but must keep a
record of its attempts to arrange a mutually agreed on time and place. 34 C.F.R. §
300.322(d).
The H.O. noted that the Parents had not availed themselves of the opportunities
to participate in the two summer meetings. The School Board had offered numerous
dates to the Parents for IEP meetings and offered alternative means of telephone or
videoconferencing to participate in the meetings while out of the country. The Parents
did not accept the offer to participate by telephone or videoconferencing while out of the
country, and the father did not attend the noticed PPT that was held after he had
returned to Connecticut.
Courts have recognized that no procedural violation occurs for failure to have
parents at an IEP meeting where parents have demonstrated intransigence in availing
themselves of participation in the meetings. See Hjortness v. Keenan Joint Sch. Dist.,
507 F.3d 1060, 1066 (7th Cir. 2007); Board of Educ. of the Toledo City School Dist. v.
Horen, 2010 WL 3522373, *16 (N.D. Ohio). Accordingly, the H.O. found that the
Parents had been provided with a meaningful opportunity to participate in the
development of the IEP. The Court agrees with the hearing officer. The School Board
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made significant efforts to involve the Parents in the IEP development. The Court notes
that, after the Parents did not participate in the two summer PPT meetings, the School
Board apprised the Parents of the development of the IEP by recording the meetings
and providing the Parents with transcripts.
Further, the Parents fault the School Board for failing to consider the parent
initiated evaluation by Dr. McCarton. The PPT reconvened on November 22, 2010, at
which time the Parents disclosed the McCarton evaluation. At a hearing in January
2011, Wayne Holland, the School Board’s director of special education, explained that
the evaluation was reviewed and found to be substantively no different from the other
evaluations already reviewed by the PPT, that the McCarton evaluation had not been
considered to be part of the independent evaluations as set forth by the settlement
agreement, and that settlement agreement had provided that the parties agreed to
accept the recommendations of the independent consultants in developing the IEP.
Accordingly, the Court finds that the H.O.’s treatment of the McCarton evaluation does
not constitute error.
The record shows, and plaintiff has not adduced evidence indicating otherwise,
that the PPT meetings and IEP development were procedurally compliant.
Similarly, the Court affirms the H.O.’s finding that no evidence raises an
inference that the School Board’s IEP was not appropriate or that T.D. would not likely
make progress under the program. The independent consultants participated in the
PPT process and all agreed that the IEP was appropriate for T.D. T.D.’s home
education providers also reviewed and updated the IEP relative to his abilities at the
time the IEP was developed. The IEP sought to provide T.D. with support from
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independent consultants and a school-based team; it anticipated that frequent meetings
would be scheduled to allow for collaboration and updates as to T.D.’s needs.
Additionally, the transition plan provided for T.D.’s reentry to a school setting on a
gradual basis.
The H.O. found that the IEP represented the least restrictive environment as it
allowed for T.D. to have access to special education as required and access to model
typically-developing peers. The record evidence supports the finding in this respect.
Finally, the Court also affirms the H.O.’s finding that the Parents “failed to
establish the appropriateness of the home program placement and the McCarton
placement.” The evidence at the hearing indicated that the home-based education
program had resulted in regression of T.D.’s skills and that his problematic behaviors
had increased. The Parents failed to provide evidence relevant to the program at the
McCarton School and whether it would have been appropriate for T.D.’s needs.
Summary judgment will enter in defendant’s favor on this basis.
Alleged Breach of Settlement Agreement
Plaintiff asserts that the School Board failed to comply with the agreed-upon
procedures for developing the IEP. Specifically, plaintiff alleges that the School Board
failed to timely and properly evaluate and assess T.D., failed to convene a timely PPT,
and refused to contract with the evaluator selected by the parties and those proposed
by the parties.
Settlement agreements that concern the identification, evaluation or educational
placement of the child or the provision of a FAPE are properly reviewed by an H.O. and
subject to the same deferential review afforded to an H.O.’s administrative decision
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after a due process hearing. H.C. v. Colon-Pierrepont Cent. Sch. Dist., 341 Fed. Appx.
687, 690 (2d Cir. 2009). Here, the H.O. considered plaintiff’s assertion that the School
Board had not complied with the settlement agreement due to failure to contract with
Dr. Bridget Taylor, who had been jointly agreed upon by both parties as an evaluator,
and the Parents’ proposed evaluators. The H.O. found that the School Board had not
violated the terms of the agreement as asserted by the Parents. After Dr. Taylor
indicated that she would not be available to take T.D.’s deposition, the Parents emailed
the School Board their list of five suggested consultants. The School Board selected
Dr. Robin Nuzzolo from the Parents list of consultants. Accordingly, the Court will affirm
the H.O.’s finding of no breach of the settlement agreement in this respect.
As to the assertion that the School Board failed to convene a timely PPT as forth
by the settlement agreement, the H.O. held that the School Board had taken
reasonable steps to convene the PPT and develop the IEP in light of the Parents and
consultants scheduling conflicts. The record evidence demonstrates that the PPT
meetings were cancelled by the Parents or the Parents’ selected consultant, that the
School Board offered numerous dates, and that the School Board suggested the use of
teleconferencing or Skype to facilitate the PPT. The H.O. did not err in finding no
breach of the settlement agreement in this regard.
The Parents maintain that the School Board failed to timely and properly
evaluate and assess T.D. The H.O. concluded that the School Board had satisfied its
obligation pursuant to the settlement agreement, which required the School Board to
contract with the independent consultants. The record evidence shows that the School
Board arranged for the timely evaluations fo T.D. with the consultants.
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Reimbursement for Home-Based Services
The Parents have invoked the “stay-put” doctrine in an attempt to obtain
reimbursement of the home-based schooling. IDEA provides that a child should remain
in the then-current placement during the pendency of the proceedings unless the state
or local education agency and the parents agree otherwise. 20 U.S. C. § 1415(j).
“Section 1415 requires a school district to continue funding whatever
educational placement was last made by the agency and consented to by the parent
before the parent requested a due process hearing.” T.M v. Cornwall Cent. Sch. Dist.,
752 F.3d 145, 152 (2d Cir. 2014). This stay-put provision requires that the educational
agency maintain the status quo placement even if the child would not otherwise have a
substantive right to it. Doe v. East Lyme Bd. of Educ., 2015 WL 3916265, *9 (2d Cir.
2015). [P]arents who unilaterally change their child’s placement during the pendency
of review proceedings, without the consent of state or local school officials, do so at
their own financial risk.” Burlington v. Department of Edu. of Mass., 471 U.S. 359, 373
(1985). To determine a child’s “then current educational placement,” a court looks to
the placement described in the child’s most recently implemented IEP; the operative
placement actually functioning at the time when the stay put provision of the IDEA was
invoked; or the placement at the time of the previously implemented IEP. Mackey v.
Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004). Generally,
the pendency placement is the last unchallenged IEP; however, if there is an
agreement between the parties relative to placement during the proceedings, the
agreed upon placement can supercede the prior unchallenged IEP as the then current
placement. Gabel v. Board of Educ. of the Hyde Park Central School District, 268 F.
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Supp. 2d 313, 324 (S.D.N.Y. 2005). When a parent rejects a stay-put placement by
unilaterally placing the student elsewhere, retroactive reimbursement for that placement
is available, if at all, only through a FAPE claim. Doe, 2015 WL 3916265, at *9.
Defendant asserts that T.D.’s home-based education resulted from a settlement
agreement between the parties and cannot be considered a pendency placement.
Defendant’s argument relies upon the holding in Zvi D. v. Ambach, 694 F.2d 904, 907
(2d Cir. 1982) that an agreement as to payment for a private school, was not entitled to
treatment as a stay-put placement, although an agreement as to placement at a private
school would be considered a stay-put placement. The Second Circuit has more
recently questioned its holding distinguishing between reimbursement payments and
placement in light of more recent versions of the IDEA regulations and the Supreme
Court’s decision in Burlington v. Dep’t of Educ., 471 U.S. 359 (1985). See Doe, 2015
WL 3916265, at *13 n.12; Board of Educ. of Pawling Central School Dist. v. Schutz,
290 F.3d 476, 483 n.7 (2d Cir. 2002). Both Doe and Schutz appear to limit Zvi’s holding
to the context of payments stemming from a settlement agreement rather than an
obligation to fund services arising from an IEP or a hearing officer’s order.1
In the instant case, the settlement agreement contemplates that the funding for
home-based funding is temporary pending T.D.’s review and recommendation by
independent consultants, by which the Parents and School Board agreed to be bound.
1 In Zvi, the settlement agreement required the school district to pay for Zvi’s private school education for one year with the stipulation that a review of Zvi’s “classification would be conducted at the end of the current year with a view toward placing him in an appropriate public school program” the following year. Thus, the payment for private school was conditioned on the contemplation that Zvi would be returned to the public school system.
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The settlement agreement stated explicitly that the payments were conditioned (1) upon
the Parents agreement not to seek additional reimbursement for additional costs related
to T.D.’s educational program through the 2009-2010 school year and (2) upon T.D.’s
attendance at the program selected by the independent consultants during the
applicable portion of the 2009-2010 school year. Further, the settlement agreement
provided that the School Board made the payments for the home-based education
“solely as an accommodation to the Parents and in order to avoid the costs of
protracted litigation.”
Regardless of whether Zvi’s holding remains intact, the settlement agreement to
reimburse for home-based education does not constitute the prior placement for
purposes of triggering the stay-put obligation. It was expressly limited in duration,
conditioned upon the Parents agreement to accept the recommendations of the
independent consultants, and had not been approved by the School Board or ordered
by a hearing officer as an appropriate placement. Further, the School Board’s
contractual duty to reimburse for home-based education ceased after the Parents
rejected the independent consultants’ recommended IEP for T.D.
The School Board’s obligation to provide stay-put services was triggered when
the Parent’s administrative complaint was filed in November 2010. See Doe, 2015 WL
3916265, *11. Thus, the IEP approved by the School Board in August 2010 constitutes
the current placement for purposes of the stay-put obligation.
The Court will grant defendant’s motion for summary judgment.
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Conclusion
For the foregoing reasons, defendant’s motion for summary judgment [doc. #80]
is GRANTED. The Court hereby affirms the hearing officer’s decision. The clerk is
instructed to enter judgment in favor of defendant and to close this case.
Dated at Bridgeport, Connecticut, this 5th day of August, 2015.
/s/ Warren W. Eginton Senior United States District Judge
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