UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
MR. AND MRS. P. ON THEIR OWN : BEHALF, AND AS NEXT FRIENDS : OF M.P., : PLAINTIFFS, :
v. : CIVIL ACTION NO. : 3:14-cv-1697 (VLB) WEST HARTFORD BOARD OF : EDUCATION , et al., : DEFENDANTS : September 29, 2016
MEMORANDUM OF DECISION DENYING PLAINTIFFS’ MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD [Doc. #32], AND GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT [DOC. #34]
The Plaintiffs, Mr. and Mrs. P. (“Parents”), on their own behalf and as next
friends of M.P. (“Student”), bring this action against the West Hartford Board of
Education, Superintendent Tom Moore, and Director of Pupil Services Glenn
McGrath (collectively, the “Board”) to appeal in its entirety an October 2, 2014
final decision, issued by a Due Process Hearing Officer (“Hearing Officer”), that
(i) the Board provided adequate Free Appropriate Public Education (“FAPE”) to
Student from the fall semester of 2011 through summer 2014; (ii) the Board failed
to propose appropriate transportation for Student for the 2014-2015 school year;
(iii) the Board’s procedure was appropriate as to (a) identifying Student in a
timely manner; (b) providing appropriate evaluations; and (c) implementing
appropriate transition planning; and (iv) the Board’s procedure was lacking, but
did not deny Student FAPE or deny Parents a meaningful opportunity to
participate, as to (a) keeping incomplete IEP documents and (b) failing to provide
consistent programming for Student. [Dkt. No. 32 (“Mot.”) at 12-13.]
1
Now Before the Court is Parents’ Motion for Summary Judgment on the
Administrative Record as to counts one and five of Plaintiffs’ Second Amended
Complaint [Dkt. No. 27 (“SAC”)], requesting that the Court reverse the decision of
the Due Process Hearing Officer and award Student compensatory education in
the form of placement in the Options program, and reasonable attorney’s fees
and costs. Mot. at 1. Also before the Court is the Board’s Cross-Motion for
Summary Judgment on the Administrative Record as to all counts of the SAC,
and for dismissal of Superintendent Thomas Moore and Director of Pupil Services
Glenn McGrath as defendants for failure to state any claims against them as
individuals. [Dkt. No. 34 (“Cross-Motion”).] Parents consent to dismissal without
prejudice of counts two, three, and four of their Complaint. [Dkt. No. 38
(“Plaintiffs’ Sur-Reply”) at 1 n.2.] Because Parents do not allege any causes of
action against Messers. Moore or McGrath in their individual capacities, the Court
also dismisses them as individual defendants, without prejudice.
I. Facts
The following statement of facts is based on the exhibits and testimony
that comprised the administrative record presented to the Hearing Officer. [Dkt.
No. 21 (“Administrative Record”)].
Student began his sophomore year at Hall High School in West Hartford in
fall 2011. 6/9/2014 Hearing Transcript (Mother’s testimony) at 63-64. Over the
course of the school year, Student’s grades declined. Id. at 66-67. In December
2011, Student was hospitalized for suicidal ideation. Id. at 66-67. Parents notified
the Board of Student’s hospitalization for suicidal ideation, and on December 8,
2
2011 the Board met with Parents to discuss reducing Student’s workload and
assisting him with organizational skills. Id. at 69-71.1
On January 31, 2012, the Board held a meeting under Rehabilitation Act
Section 504, and determined Student was eligible for accommodations due to
Attention Deficit Hyperactivity Disorder (“ADHD”). Id. at 71; Ex. B-2 (504 Meeting
record). Student’s school attendance declined in February 2012, and the Board
arranged homebound tutoring for Student. 6/9/2014 Hearing Transcript (Mother’s
testimony) at 73.
Parents referred Student for special education in March 2012, and in
response, the Board held a PPT. Ex. B-3 (3/12/2012 PPT record). The PPT
considered Student’s declining grades in the second semester of his sophomore
year, and Student’s beginning behavioral improvement due to medication. Id.
The Board determined the duration of Student’s condition was not yet prolonged
enough to qualify for special education, but scheduled a follow-up PPT for April
23, 2012. Id.
At the April 23, 2012 meeting, Parents alerted the Board that Student had
been hospitalized for aggressive ideation. Ex. B-4 (4/23/2012 PPT record). The
PPT considered Student’s hospitalization due to emotional concerns and
aggressive thoughts, Parents’ statement that Student’s psychiatric medications
were helping, and Student’s ongoing homebound tutoring. Id. The PPT decided
to increase Student’s homebound tutoring to eight hours per week, and have
Student evaluated for eligibility for special education. Id.
1 Minutes from the December 8, 2011 meeting are not provided in the record.
3
On May 9, 2012, the Hall High School psychologist evaluated Student. Ex.
B-5 (5/9/2012 Evaluation). The Hall psychologist administered BASC-2, an
evaluation which asked teachers, Parents, and Student a series of questions to
determine behavioral and emotional issues. Id. The Hall psychologist’s report
also noted Student’s hospitalizations, experiences with therapy, absences from
school, and general outlook. Id. Ultimately, the Hall psychologist found that
“given [Student’s] psychiatric diagnoses and school refusal behavior it is
recommend the PPT explore the possibility of a special education mandate under
the category of Emotional Disturbance.” Id.
On May 10, 2012, the District psychiatrist conducted a consultation
consisting of an interview with Student. Ex. B-6 (5/10/2012 Evaluation). He noted
that Student was hospitalized in December 2011 for suicidal ideation and was
diagnosed with ADHD while admitted, and was subsequently hospitalized and
medicated for homicidal ideation. Id. In addition, the District psychiatrist
considered that Student was failing four classes at the time and suffered from
panic attacks consisting of palpitations, shortness of breath, sweaty palms, and
nausea, and the panic attacks subsided when he began homebound tutoring in
January 2012. Id. The District psychiatrist concluded Student might have
Asperger’s Disorder and Reactive Attachment Disorder and recommended he
participate in STRIVE, an alternative high school special education program
(discussed further below). Id.
4
The PPT met again on May 17, 2012 to review the results of these
examinations, and at a June 11, 2012 meeting declared Student eligible for
special education. Ex. B-8 (6/11/2012 PPT record).
At a June 19, 2012 meeting, the PPT placed Student in STRIVE for the 2012-
2013 school year, Student’s junior year. B-9 (6/19/2012 PPT record). Students
enrolled in STRIVE are subject to the same graduation requirements as other
students in the West Hartford Public School System; they study modified
versions of the same academic curriculum and receive tutoring as needed to
prepare for the Connecticut Academic Performance Test (“CAPT”), passage of
which is a factor in determining all students’ eligibility to graduate. Ex. B-31
(STRIVE policy); Ex. B-39 (CAPT synopsis). STRIVE uses individualized
educational plans (“IEPs”), functional behavioral analyses, and behavioral
intervention plans designed for each student at a PPT meeting to develop
programming to meet his or her academic, social, emotional, and behavioral
needs. Ex. B-32 (STRIVE student handbook).
The faculty at STRIVE each have between 16 and 30 years’ experience
working with socially and emotionally troubled youth. STRIVE’s program
coordinator, Michael Davis, has a Master of Arts in Special Education and 16
years’ experience teaching students with severe social and emotional disabilities.
Ex. B-32 (Davis resume). Edward Dillon, STRIVE’s supervisor, has a Master’s in
Special Education, has been recognized for excellence in teaching, and has
approximately 30 years’ experience educating or developing programming for
socially and emotionally maladjusted students, including collaborating with
5
paraprofessionals. B-27 (Dillon resume). STRIVE teacher Jamie Urso also has a
Master’s in Special Education and 16 years’ teaching special education. B-25
(Urso resume). Lorri Fitzsimmons, the social worker for STRIVE and ACHIEVE
(discussed below), has a Master’s of Social Work and over 20 years’ experience
providing crisis prevention, intervention, and treatment. B-28 (Fitzsimmons
resume). Neil Cummings, the transition coordinator for both STRIVE and
ACHIEVE, has over 30 years’ experience providing vocational training and
counseling to people with mental illness or social instability. B-29 (Cummings
resume).
On September, 20, 2012, a PPT reviewed Student’s initial progress in
STRIVE and reviewed an independent neuropsychological evaluation Parents
obtained over the summer.2 Ex. B-12 (6/20/2012 PPT record). Based on that
2013 school year. Id.
In March 2013, Student successfully took the state-wide CAPT required of
all Connecticut public school students before graduation. Ex. B-39 (Student’s
CAPT scores and test information).3 Student scored at the “proficient” level in
math and reading and the “goal” level in science and writing. Id. A score of
proficient “demonstrate[s] an adequate understanding of the . . . concepts and
skills expected of Connecticut high school students.” Id. A score of “goal”
2 The PPT meeting minutes indicate the Board considered the neuropsychological evaluation, which found Student emotionally disturbed and possibly Autistic, but there is no record of what the discussion entailed. 3 Student sat unsuccessfully for the CAPT his sophomore year, failing to finish the test and receiving no scores. Ex. B-22 (Student’s nullified 2012 test scores).
6
“demonstrate[s] a strong understanding of the . . . concepts and inquiry skills
expected of Connecticut high school students.”4 Id.
On May 22, 2013, at the end of Student’s junior year, the Board held
another PPT and determined that, based on Student’s performance in STRIVE,
Student should rejoin regular education classes at Hall High School for his senior
year. B-13 (5/22/2013 PPT record).
Student’s reentry into regular education was not successful, and he was
placed back in the STRIVE program after an October 28, 2013 PPT meeting. B-14
(10/28/2013 PPT record). In December 2013, while in the STRIVE program,
Student experienced a severe violent outburst, punching another student until he
broke his hand, and was suspended for one week. 6/9/2014 Hearing Transcript
(Mother’s Testimony) at 140-141.
On February 4, 2014, the PPT met to discuss transitional programming to
prepare Student for vocational pursuits. Ex. B-15 (2/4/2014 PPT record). The PPT
determined Student should attend half-days at STRIVE and spend afternoons with
a job coach. Id. Parents declined the vocational training proposed with the
STRIVE program, and instead requested an alternative transitional program called
Options. Id. Student was ultimately enrolled in the STRIVE program through the
remainder of his senior year, without afternoon vocational training. Id.
4 Although there is no record that the statistics were provided to the Hearing Officer, it is noteworthy that the year Student successfully took the CAPT, 78.6% of Connecticut students scored as proficient on the math portion, 81% scored proficient on the reading portion, 49% scored goal on the science portion, and 62.1% scored goal on the writing portion. CAPT Data, available at http://solutions1.emetric.net/CAPTPublic/CAPTCode/Report.aspx.
7
On May 19, 2014, Student was again hospitalized, for 9 days, due to a
homicidal outburst. 6/9/2014 Hearing Transcript (Mother’s Testimony) at 180-81.
The hospital sent the Board Student’s discharge summary, indicating the dates
he was admitted and that he was no longer deemed a danger to self or others.
Ex. B-45. Parents also notified the Board of Student’s hospitalization before he
was discharged, and provided further records of the hospitalization to the Board
at an unspecified later date, when Parents received them from the hospital.
6/9/2014 Hearing Transcript (Mother’s Testimony) at 181.
On June 2, 2014, a PPT determined that Student had met the course
requirements to graduate, and developed plans to transition Student to post-
secondary education. Ex. B-52 (record of 6/2/2014 PPT). The PPT recommended
that Student enroll in ACHIEVE, a post-secondary program run by the West
Hartford Public Schools for students requiring additional training to prepare to
join the workforce. Id.
ACHIEVE teaches daily living skills such as cooking and maintaining
personal finances, and sends students to job sites three to four days per week to
develop employability, interpersonal skills, and experience. Ex. B-46 (ACHIEVE
policy and mission statement). In students’ first year at ACHIEVE, they work
three days per week with full staff support. Id. In their second year, they work
three days per week with staff support as necessary. Id. In their third year, they
work four days per week with the goal of independence from on-site staff
support. Id. Student’s June 2, 2014 PPT indicated that ACHIEVE would provide
Student the opportunity to receive individual or group counseling and a one-on-
8
one job coach. Ex. B-52 (6/2/2014 PPT record). 82% of ACHIEVE graduates go on
to secure full-time employment, part-time employment, or to take college courses.
Ex. B-49 (ACHIEVE graduate data).
ACHIEVE employs a small staff with 14 to 30 years’ experience working
with students with emotional and social needs. Beth Pettinelli, who teaches at
ACHIEVE, develops programming, trains support staff, serves as a job coach, and
evaluates students, has a Master’s in Special Education and has worked at
ACHIEVE since 1998. Ex. B-26 (Pettinelli resume). ACHIEVE employs two
paraprofessionals who have worked with ACHIEVE for 14 years and 25 years,
respectively. 7/7/2014 Hearing Transcript (Pettinelli testimony) at 64. Ms.
Fitzsimmons and Mr. Cummings, STRIVE’s social worker and transition
coordinator, also work with ACHIEVE students. Exs. B-28 (Fitzsimmons resume)
and B-29 (Cummings resume).
Parents expressed concern that ACHIEVE would not be sufficiently
individualized for Student, and that ACHIEVE staff would not be sufficiently
equipped to meet Student’s social and emotional needs. 6/9/2014 Hearing
Transcript (Mother’s Testimony) at 173-74. Parents instead requested Student be
placed at Options, a private special education program approved by the state of
Connecticut. Id. at 175; Ex. B-52 (6/2/2014 PPT record).
Options’ “goal is to improve students’ academic skills for completion of
high school graduation requirements and to increase their competitive abilities
for employment, independent living, and post-secondary education” through
“one-to-one, guided programs.” Ex. P-43 (Options brochure). Scott Wells,
9
Options’ Owner and Director, has a Masters in Counseling Psychology and 22
years of experience providing transitional training to special education students,
including three years with West Hartford Public Schools. Ex. P-42 (Wells
resume). Options professes its teachers and counselors “have extensive
experience in a range of educational and vocational fields.” Ex. P-43 (Options
brochure).
Parents ultimately rejected the PPT’s plan to place Student in ACHIEVE
rather than Options. Ex. B-52 (6/2/2014 PPT record). Parents also requested two
years of compensatory education at the June 2, 2014 PPT, which they attended
with legal counsel. Id. The hearing in this matter, which Parents requested on
March 24, 2014, took place over seven days from June 9, 2014 through August 26,
2014. [Dkt. No. 1 (Complaint), Ex. 1 (Hearing Officer’s Decision) (“HO Decision”)
at 2].
II. Legal Standard
Parents move for this Court to overrule the final decision of the Due
Process Hearing Officer and find the Board in violation of 20 U.S.C. § 1400
(“IDEA”) and regulations thereunder. Mot. at 1; SAC at 45. IDEA “‘represents an
ambitious federal effort’ to ensure that all children are given access to a public
education regardless of any disabilities they may suffer.” A.S. v. Trumbull Bd. of
Educ., 414 F. Supp. 2d 152, 169 (D. Conn. 2006) (quoting Bd. of Educ. v. Rowley,
458 U.S. 176, 179 (1982)). Under IDEA, states receive federal funding to “develop
educational plans that are ‘reasonably calculated’ to ensure that all children with
disabilities receive a FAPE.” Id. at 169. “A party dissatisfied with a proposed
10
education plan may challenge it in an administrative hearing, in which the
[challenging] party bears the burden of proving the plan to be inadequate.” Id.
If a party is dissatisfied with the findings and decision of the administrative
hearing officer, the party may bring a civil action in “any State court of competent
jurisdiction or in a district court of the United States without regard to the amount
in controversy.” Rowley, 458 U.S. 176 at 204-05 (quoting 20 U.S.C. § 1415). The
civil action may concern “any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free appropriate public
education to such child.” Id. at 204-05 (quoting 20 U.S.C. § 1415). The reviewing
court “shall receive the record of the [state] administrative proceedings, shall
hear additional evidence at the request of a party, and basing its decision on the
preponderance of the evidence, shall grant such relief as the court determines is
appropriate.” Id; see also Hardison v. Bd. of Educ. of Oneonta City Sch. Dist., 773
F.3d 372, 386 (2d Cir. 2014) (“The district court must engage in an independent
review of the administrative record and make a determination based on a
preponderance of the evidence.”).
Courts reviewing administrative decisions under IDEA must determine
whether they are “reasoned and supported by the record.” Galiardo v. Arlington
Cent. Sch. Dist., 489 F. 3d 105, 114 (2d Cir. 2007). Courts apply a “preponderance
of the evidence” standard to the inquiry. 20 U.S.C. § 1415(i)(2)(C)(iii); Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003). The Court’s review
should be “independent, but deferential [to the] hearing officer’s decision.” A.E.
v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 215 (D. Conn. 2006). Courts
11
determine how much weight to give an administrative decision under IDEA based
on the “quality and thoroughness of the reasoning, the type of determination
under review, and whether the decision is based on the administrative body’s
familiarity with the evidence and the witnesses.” Haridson, 773 F.3d at 386; see
also P. ex rel Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 118 (2d Cir.
2008).
Where the administrative ruling hinges on a question of education policy,
the Court must show “substantial deference.” A.E., 463 F. Supp. 2d at 215. “The
Supreme Court has cautioned that courts should not substitute their own notions
of sound educational policy for those of the school authorities which they
review.” Id. Courts are to be “mindful that the judiciary generally lacks the
specialized knowledge and experience necessary to resolve persistent and
difficult questions of educational policy.” Cerra v. Pawling Central School
District, 427 F.3d 186, 192 (2d Cir. 2005); see also Hardison, 773 F.3d at 386.
Conversely, “a hearing officer’s interpretations of statutes or the federal
constitution are afforded no deference.” Trumbull Bd., 414 F.Supp.2d at 173
(quoting Lillbask ex rel. Mauclaire v. Conn. Dept. of Educ., 397 F.3d 77, 82 (2d Cir.
2005)).
Lastly, the burden of proof in an IDEA context differs from that of a
traditional summary judgment motion:
Courts that decide summary judgment motions on IDEA appeals are not dealing with summary judgment in its traditional setting. Summary judgment in IDEA actions is the most pragmatic procedural mechanism for resolving IDEA actions. When deciding a summary judgment motion in the IDEA context, a court’s inquiry is not directed to discerning whether there are disputed issues of fact, but rather
12
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. Therefore, it matters not, in the context, who initiates the motion.
Westport Bd. of Educ., 463 F. Supp. at 214-15. Therefore, in reviewing the claims
the Court is not focusing on the presence or absence of issues of material fact,
but instead contemplates whether the record establishes that the hearing
officer’s decision comports with applicable legal standards.
III. Analysis
Parents allege the hearing officer incorrectly found the Board committed
only minor procedural violations of IDEA which did not deny Student FAPE.
A. The propriety of the Board’s procedure under IDEA
While procedural flaws do not automatically constitute a denial of FAPE,
“procedural flaws that result in the loss of an educational opportunity, or that
seriously infringe the parents’ opportunity to participate in the IEP formulation
process . . . ‘clearly result in the denial of a FAPE.’” A.E., 463 F.Supp.2d at 216
(quoting W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 (D. Conn. 2001)). A
procedural error warrants relief if it “(I) impeded the child’s right to a [FAPE]; (II)
significantly impeded the parents’ opportunity to participate in the decision-
making process regarding the provision of [a FAPE] to the parents’ child; or (III)
caused a deprivation of educational benefits.” M.H. v. N.Y. City Dep’t of Ed., 685
F.3d 217, 245 (2d Cir. 2012) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).
In this case, Parents argue the Board failed to meet its duty to identify
Student’s special needs in a timely manner (the “child find” obligation), and
inappropriately evaluated Student.
13
1. The Child Find Obligation
a. Timeliness of Parents’ child-find claim
The parties dispute when the statute of limitations on Student’s “child-find”
IDEA claim begin to run. The Defendants assert that the statute of limitations
began to run on March 24, 2012. Opp. at 20; Reply at 3. Under IDEA, a party may
request a hearing up to two years after the school board “declines to make the
educational change desired by the parents or at the time it proposes an
educational change that the parents deem unsuitable.” M.D. v. Southington Bd.
of Ed., 334 F.3d 217, 221 (2d Cir. 2003); see also Conn. Agencies Regs. § 10-76h-
4(a) (regulation governing enforcement of IDEA claims in Connecticut). If the
parent or guardian does not receive actual notice of IDEA’s procedural
safeguards, the two-year limitation period “shall be calculated from the time
notice of the safeguards is properly given.” Id. at 220 (noting the two-year statute
of limitations for IDEA claims begins when the party has actual notice that a
period of limitation is running against it, even if the party gains actual notice from
a source other than the school board); Conn. Agencies Regs. § 10-76h-4(a).5
Here, Parents received actual notice of IDEA’s procedural safeguards at the
January 31, 2012 504 meeting. Administrative Record, Ex. B-2 (1/31/2012 504
record); 6/17/14 Hearing Transcript (Father’s testimony) at 55. On March 24, 2014,
Parents signified their dissatisfaction with the change the School proposed for
5 The Court looks to Connecticut state court decisions interpreting Section 10- 76h(a)(3) as it is an equitable tolling provision, and federal courts “borrow state equitable tolling rules.” M.D., 334 F.3d at 223; see also Hardin v. Straub, 490 U.S. 536, 539 (1989) (stating federal courts must borrow a state’s equitable tolling rules unless doing so “would defeat the goals of the federal statute at issue”).
14
Student by requesting an IDEA hearing on March 24, 2012. HO Decision at 2.
Accordingly, the Hearing Officer correctly determined that any evidence
preceding March 24, 2012 was barred by the limitations period. Id. at 13.
b. The merits of Parents’ child-find claim
As to the merit of Parents’ child-find allegation, IDEA imposes on the Board
an obligation to “have in effect policies and procedures that ensure that . . . [a]ll
children with disabilities . . . who are in need of special education and related
services, are identified, located and evaluated.” 34 C.F.R. § 300.111(a) (2006).
The child-find obligation extends to “[c]hildren who are suspected of being a
child with a disability . . . even though they are advancing from grade to grade.”
Id. at § 300.111(c); see also M.A. v. Torrington Bd. of Ed., 980 F. Supp. 2d 245, 264
n.22 (D. Conn. 2013); A.P. ex rel. Powers v. Woodstock Bd. of Ed., 572 F. Supp. 2d
221, 224–25 (D. Conn. 2008).
To establish a procedural violation of the child-find obligation, “the school
officials must have overlooked clear signs of disability, [been] negligent in failing
to order testing, or have no rational justification for not deciding to evaluate.
Regional Sc. Dist. No. 9, No. 3:07-cv-1484 (WWE), 2009 WL 2514064, *11 (D. Conn.
Aug. 7, 2009). Once the Board identifies a student who may qualify for special
education and secures parental approval to conduct an evaluation, the initial
student evaluation “must be conducted within 60 days of receiving parental
consent for the evaluation or, [i]f the State establishes a timeframe within which
the evaluation must be conducted, within that timeframe.” 34 C.F.R. §
300.301(c)(1). After an initial PPT, Connecticut has instituted a 45 school day
timeline for executing an IEP. Conn. Agencies Regs. § 10-76d-13(a)(1).
15
Events preceding March 24, 2012 are untimely but may provide evidence of
a child-find violation from March 24, 2012 through June 11, 2012, when Student
was deemed eligible for special education. Conn. Agencies Regs. § 10-76h-4
(stating the two-year statute of limitations to request a FAPE hearing does not
apply to evidence); see also M.D. v. Southington Bd. of Ed., 334 F.3d 217, 221 (2d
Cir. 2003); P. v. Greenwich Bd. of Ed., 929 F. Supp. 2d 40, 48 (D. Conn. 2013).
Between Student’s first hospitalization, in December 2011, and the Board’s award
of special education in June 2012, the Board held six meetings with Parents and
two additional school psychological evaluations. The first meeting was on
December 8, 2011, during which the Board met with Parents to discuss reducing
Student’s workload and assisting him with organizational skills. HO Decision at 4
(referencing December 2011 meeting). On January 31, 2012, the Board held a
meeting under Rehabilitation Act Secion 504. Administrative Record, Exs. B-2
(1/31/2012 504 Meeting Record). In February, the Board arranged for home
tutoring after Student’s school attendance declined. Id. at B-16 (homebound
instruction progress report). The Board conducted a PPT in March, after Parents
referred Student for special education. Id. at B-3 (3/12/2012 PPT Record). At that
third meeting, the Board determined Student’s condition was not of sufficient
longevity to qualify him for special education and scheduled a follow-up PPT for
April 23, 2012. Id. At that fourth meeting, the Board learned that Student had
been hospitalized again and decided to continue homebound tutoring. Id. at B-4
(4/23/2012 PPT Record). On May 9, 2012, the Hall High School psychologist
evaluated Student, administered the BASC-2, and based on that assessment
16
recommended a special education mandate. Id. at B-5 (5/9/2012 Evaluation). On
May 10, 2012, the District psychiatrist conducted a consultation and noted that
Student’s symptoms declined while being tutored at home, and recommended
that Student be enrolled in STRIVE. Id. at B-6 (5/10/2012 Evaluation). The PPT
met again on May 17, 2012, and again on June 11, 2012, at which later meeting the
Board declared Student eligible for special education. Id. at B-7 (5/17/2012 PPT
Record); B-8 (6/11/2014 PPT Record).
The sequence of events between December 2011 and March 24, 2012
establish that the Board attentively monitored Student’s developing special
needs. The Board’s decision to continue monitoring Student from March 24 until
April 23 to determine whether Student’s condition was long lasting as required
for special education eligibility, and then to initiate the evaluation process, was
supported by a preponderance of the evidence. See, e.g., Mr. N.C. v. Bedford
Cent. Sch. Dist., 300 F. App’x 11, 13 (2d Cir. 2008) (finding denial of special
education eligibility appropriate where student displayed depression, declining
grades, and a single major depressive episode); R.E. v. Brewster Cent. Sch. Dist.,
15 cv 4562 (RMB), 15 Civ. 4562 (RMB), 2016 WL 2606535, at *4 (S.D.N.Y. Mar. 30,
2016) (finding preponderance of the evidence supported board’s decision not to
evaluate student in the fall semester when student’s grades dropped and student
was diagnosed with ADHD, but to evaluate student months later when student’s
condition had more clearly deteriorated). Even if the Board had reason to
suspect Student had a disability on March 24, less than a month is a “reasonable
time” to wait before initiating an evaluation. Murphy v. Town of Wallingford, No.
17
3:10–cv–278 (CFD), 2011 WL 1106234, at *3 (D. Conn Mar. 23, 2011); Reg'l Sch.
Dist. No. 9, 2009 WL 2514064 at *8 (explaining Courts generally find an
“unreasonable delay” when a board waits six months or more between having
reasonable suspicion and initiating an evaluation). Here, the Board gathered and
evaluated the evolving facts and structured and restricted educational services
for Student in a procedurally responsive, methodical, progressive and timely
manner. The Hearing Officer correctly determined that there was no child-find
violation. HO Decision at 13.
2. Sufficiency of the Board’s Evaluation
Parents allege the Board failed to follow the appropriate procedure for
evaluating Student in a number of ways, each of which is addressed below.
Once a school identifies a student requiring special education, the school
district must convene a Planning and Placement Team Meeting (“PPT”). 20
U.S.C. § 1414(d)(1)(A); 34 C.F.R. § 300.320(a). At the PPT, the student’s parents or
guardians, regular and special education personnel, and any other individuals
with relevant expertise invited by the parents or guardians, conduct an
individualized inquiry into the student’s needs. 20 U.S.C. § 1414(d)(1)(A); 34
C.F.R. § 300.320(a). Participants in the PPT develop an Individualized Education
Program (“IEP”), which identifies a student’s level of educational performance,
measurable goals, and the educational program and services and
accommodations that are to be provided. 20 U.S.C. § 1414(d)(1)(A); 34 C.F.R. §
300.320(a). The IEP must be reviewed at least once per year, and it should be
periodically revised in response to information provided by the parents and staff
as well as ongoing evaluations of the child’s progress. See 20 U.S.C. § 1414(d);
18
34 C.F.R. §§ 300.320 – 300.324; Conn. Agencies Regs. §§ 10-76d-10 – 12.
a. Failure to base the special education determination on a thorough evaluation
Parents contend that the Board failed to conduct an appropriate evaluation
of Student, specifically by failing to conduct a writing evaluation or other
cognitive testing. Mot. at 23. The Board counters that they were only obligated to
evaluate Student’s suspected disability, which was an emotional disturbance.
Opp. at 24-25.
A board is required to assess all areas related to the suspected disability
when determining a Student’s special education eligibility. 34 C.F.R. §
300.304(c)(4). In doing so, a board may not rely on only one evaluation tool to
assess a student, but instead must “use a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic information
about the child, and must not use any single measure or assessment as the sole
criterion for determining whether a child is a child with a disability.” Id. at (b).
Student’s suspected disability was emotional disturbance; Parents
informed the Board of Student’s psychiatric hospitalizations, suicidal and
homicidal ideations, which led to the decision to evaluate him. See
Administrative Record, Ex. B-4 (4/23/2012 PPT record) (indicating PPT decided to
evaluate Student based on suspected emotional disturbance). Appropriately, the
Hall psychologist conducted a BASC-II evaluation and interview of Student, and
the District psychiatrist conducted an additional consultation. Administrative
Record, Ex. B-5 (5/9/2012 Evaluation), Ex. Ex. B-6 (5/10/2012 Evaluation). The
Board ultimately determined, based on multiple evaluations, that Student was
19
eligible for special education on that basis. Administrative Record, Ex. B-5
(5/9/2012 Evaluation), Ex. Ex. B-6 (5/10/2012 Evaluation); Ex. B-8 (6/11/2012 PPT
record). The Hearing Officer’s determination that the PPT’s assessment was
sufficiently thorough is supported by a preponderance of the evidence.
b. Failure to include a regular education teacher at the May 22, 2013 PPT
Parents assert the May 22, 2013 PPT was procedurally improper because it
did not include a regular education teacher. Mot. at 23. Parents are correct that
an IEP team must include “not less than one regular education teacher of the
child (if the child is, or may be, participating in the regular education
environment).” 20 U.S.C. § 1414(d)(4)(B)(ii). The regular education teacher “shall,
to the extent appropriate, participate in the development of the IEP of the child.”
Id. at (d)(4)(C).
Holding a PPT without a regular education teacher is not a per se
procedural violation of IDEA. K.L.A. v. Windham Southeast Supervisory Union,
371 F. App’x 151, 154 (2d Cir. 2010). In this case, Student was not participating in
regular education. Student was enrolled in STRIVE at the time of the May 22,
2013 meeting and had received homebound tutoring prior to his enrollment in
STRIVE. Administrative Record, Ex. B-13 (5/22/2013 PPT record). Further,
Student’s special education teacher, David Volpe, was present. Id. The facts
support the Hearing Officer’s determination that the absence of a regular
education teacher from the May 22, 2013 PPT did not constitute a procedural
IDEA violation.
20
c. Failure to address Parents’ third-party psychologist’s report at the October 28, 2013 PPT
Parents also allege the Board impermissibly disregarded a psychological
evaluation conducted by Dr. Isenberg, Student’s psychologist, when conducting
the September 20, 2012 PPT. Mot. at 24.
An independent evaluation “must be considered by the public agency, if it
meets agency criteria, in any decision with respect to the provision of FAPE to
the child.” 34 C.F.R. § 300.502(c)(1). The record indicates that the PPT
considered Dr. Isenberg’s evaluation on September 20, 2012. Administrative
Record, Ex. B-12 (9/20/2012 PPT record) (stating the PPT was convened to
“review a neuropsychological evaluation administered by Dr. Isenberg”), 6/9/2014
Hearing Transcript at 106 (stating the September 20, 2012 PPT reviewed Student’s
independent neurological evaluation).
The Board was not required to implement all of Dr. Isenberg’s suggestions,
but rather to consider his evaluation. 34 C.F.R. § 300.502(c)(1). The Hearing
Officer accurately concluded the Board fulfilled this obligation; there was no
procedural violation of FAPE on this ground.
d. Failure to allow Parents meaningful participation throughout the relevant period
Parents also assert they were denied meaningful participation in Student’s
special needs procedure when the Board failed to provide the Parents with a copy
of the May 22, 2013 IEP until after November 2013 and failed to provide specific
21
paraprofessionals that would work with Student.6 Mot. at 25.
Parents possess an unquestionable right to notice and an opportunity to
attend and participate in “meetings with respect to the identification, evaluation
and educational placement of the child, and the provision of a free appropriate
public education to such child.” Cerra, 427 F.3d at 192 (quoting 20 U.S.C. §
1415(b)(1)). Parental “participation means something more than mere presence;
it means being afforded the opportunity to be an equal collaborator, whose views
are entitled to as much consideration and weight as those of other members of
the team in the formulation and evaluation of their child’s education.” Pascarella,
153 F. Supp. 2d at 154 (quoting V.W. v. Favolise, 131 F.R.D. 654, 659 (D. Conn.
1990)).
Parents correctly assert the Board’s failure to provide Parents with a copy
of Student’s May 22, 2013 IEP until after November 2013 violates IDEA. Conn.
Agency Regs. § 10-76d-13(a)(6) (“a full copy of the individualized education
program shall be sent to the parents within five days after the planning and
placement team meeting to develop, review or revise the individualized education
program”). However, procedural errors alone do not necessitate relief unless
they “impeded the child’s right to a [FAPE]; significantly impeded the parents’
opportunity to participate in the decision-making process regarding the provision
of a [FAPE]; or caused a deprivation of educational benefits.” 20 U.S.C. §
6 Parents also allege refusal to evaluate Student, refusal to conduct a comprehensive assessment of Student, adequacy of homebound tutoring, and adequacy of Student’s vocational programming. Mot. at 35. Those allegations are addressed elsewhere in this Decision, and need not be re-evaluted here.
22
1415(f)(3)(E)(ii); see also M.H., 685 F.3d at 245. Parents have asserted no facts
indicating that this delay impeded Student’s right to FAPE or caused a
deprivation of educational benefits. Parents also do not assert the delay caused
a significant imposition on the parents’ opportunity to participate in the decision-
making process – Parents attended every PPT and do not allege they were not
aware of what programming was selected for Student throughout the relevant
time period, and are therefore not entitled to reversal on this basis.
Parents’ allegation that the Board failed to deliver details about
paraprofessionals’ qualifications in the ACHIEVE program also does not require
reversal. Parents have a right to meaningfully participate in meetings to develop
an appropriate IEP, but do not have a limitless right to “conversations on issues
such as teaching methodology, lesson plans, or coordination of service
provision.” 34 C.F.R. 300.501(b)(3); see also generally J.C. ex rel. C. v. New
Fairfield Bd. of Ed., 3:08-cv-1591 (VLB), 2011 WL 1322563, *16 (D. Conn. Mar. 31,
2011) (stating rights of parents to develop special education plans are “not
limitless,” and “a PPT is not required to adopt the parents’ recommendations”).
Even if the Board wrongfully withheld information about the
paraprofessionals’ qualifications, doing so is not symptomatic that ACHIEVE was
not a substantively appropriate program. ACHIEVE’s graduate data and staff
qualifications soundly support the conclusion that its paraprofessionals were
reasonably qualified to meet Student’s needs. Administrative Record, Ex. B-49
(ACHIVE graduate data); 7/7/2014 Hearing Transcript (Pettinelli testimony) at 63-
64, 42-43, 132 (stating two of the paraprofessionals who work in the ACHIEVE
23
program have over twenty-five years of experience each, two others have worked
with ACHIEVE for eight or more years, and that Ms. Pettinelli has provided
services to students who are on the autism spectrum and have psychosis while
working at ACHIEVE). The Board’s failure to notify Parents of this fact does not
render ACHIEVE inappropriate or constitute a denial of FAPE.
3. The Hearing Officer’s findings regarding procedural violations of IDEA
Parents note that the Hearing Officer found multiple procedural IDEA
violations, but concluded they did not rise to the level of depriving Student of
FAPE, and as such warranted no relief. Mot. at 26. Among the procedural
violations the Hearing Officer identified are failure to provide Student with
consistent programing, providing inaccurate IEP’s and failing to identify
evaluative data from which the IEP was created. HO Decision at 17. The Hearing
Officer also found that the June 12, 2012 IEP provided to Parents contained
inaccuracies regarding the nature of services Student would receive, and
wrongfully omitted the evaluation procedure, assessments, records or reports
used as a basis for the actions proposed. Id. at 7. The Court defers to the
Hearing Officer’s decision; even including the procedural error of failing to
provide Parents a copy of the May 22, 2013 IEP until after November 2013, a
preponderance of the evidence supports the conclusion that Student made
meaningful academic progress and was not denied FAPE due to procedural
errors.
B. Whether Student received FAPE sufficient under IDEA
In addition to procedural claims, Parents assert the programming provided
24
by the Board was insufficient, and as such substantively violated IDEA. The
Court addresses each of Parents’ allegations below.
To establish a violation of the IDEA’s substantive requirements, a party
must show that the revised “individualized education program developed through
the Act’s procedures” was not “reasonably calculated to enable the child to
receive educational benefits.” See Rowley, 458 U.S. at 206-207. In reviewing this
claim, the Court must keep in mind that a district is not required to furnish “every
special service necessary to maximize each handicapped child’s potential.” Id. at
207; Cerra, 427 F.3d at 196. “Instead, the IDEA is satisfied if the school district
‘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.’”
Trumbull Bd. of Educ., 414 F. Supp. 2d at 173.
Courts “must afford some deference to the findings of the hearing officer,
and may not substitute in place of the administrative decision the personal
education philosophy of the court.” P.J. by and through W.J. v. State of Conn.
Bd. of Ed., 788 F. Supp. 673, 679 (D. Conn. 1992).
a. Sufficiency of homebound tutoring provided to Student in February 2012
Parents allege the Board assigned Student four to six hours per week of
homebound tutoring in February 2012, which is insufficient under IDEA. Mot. at
21. Parents are correct that Connecticut requires a minimum of ten hours per
week of homebound instructional time unless an evaluation determines ten hours
is too much for the student. C.G.S. § 10-76d-16(d). As addressed in part III(a)(i)(1)
above, evidence predating March 24, 2012 will be considered only as further
25
evidence in support of a timely allegation.
The April 23, 2012 PPT increased Student’s tutoring to eight hours per
week upon determining Student’s “medications have been useful” and he “has
been very cooperative with tutoring.” Administrative Record, Ex. B-4 (4/23/2012
PPT record). On May 10, 2012, the PPT found that Student continued to do well
with tutoring, but that “recently it has been inconsistent on the part of the tutor,”
and compensatory education would be provided to Student until he completed
his tenth grade coursework. Id., Ex. B-7 (5/10/2012 PPT record).
A preponderance of the evidence indicates the PPT assigned Student less
than ten hours per week of homebound tutoring tailored to the Student’s needs,
raised the number of hours per week when evidence showed Student could
handle it, and provided compensatory tutoring until Student finished his
coursework. The records establish that the frequency of homebound tutoring
provided to Student was largely appropriately tailored to his needs, and did not
measurably deprive Student of the educational benefits to which he was legally
entitled.
b. Sufficiency of STRIVE, specialized education provided from 2012 through 2014
Parents argue the specialized programming offered to Student for the 2012-
2013 school year, “STRIVE,” was deficient on a number of grounds. Parents
assert STRIVE was not academically challenging enough for Student because
STRIVE courses did not assign homework, were taught by only three teachers,
and used a limited curriculum whereby Student was forced to repeat two courses
he had already passed. Id. at 28. Parents also argue that STRIVE failed to meet
26
Student’s social, emotional, and behavioral needs. Mot. at 29. STRIVE required
Student to participate in group therapy, which Parents allege provided Student no
benefit. Id. at 29-30. Parents also assert STRIVE failed to improve Student’s
violent tendencies, as Student continued to make violent threats and once
punched a fellow student repeatedly with such force Student broke his hand. Id.
at 30.
The Supreme Court rejected the argument that school districts are required
to provide services “sufficient to maximize each child’s potential commensurate
with the opportunity provided other children.” Rowley, 458 U.S. at 198. IDEA
guarantees access to “some form” of “adequate, publicly supported” special
education, but does not “guarantee any particular level” of education. Id. at 192-
95; Walczak v. Fl. Union Free Sch. Dist., 142 F.3d 119, 129-133 (2d Cir. 1998); M.H.
v. N.Y.C. Dept. of Educ., 685 F.3d 217, 245-46 (2d Cir. 2012).
Parents’ allegations characterize STRIVE as a non-ideal program with
limited curriculum that did not maximize Student’s learning experience and group
therapy sessions that did not benefit Student. However, IDEA does not demand
an optimal learning environment. Rowley, 458 U.S. at 192. While enrolled in
STRIVE, Student improved his grades and passed the CAPT statewide exam.
Administrative Record, Ex. B-13 (5/22/2013 PPT record) (indicating Student
earned a 3.0 GPA at STRIVE); Ex. B-39 (Student’s CAPT scores and test
STRIVE. Administrative Record, Hearing Transcript (Urso testimony) at 102-03
(stating Student’s “social skills have grown tremendously” and that Student
27
behaved “at the highest level”). Student’s mother acknowledged that STRIVE
“was influential in assisting [Student],” and that “the environment and support he
receive[d at STRIVE] have allowed [Student] to gain self-confidence and envision
his future.” Administrative Record, 6/17/2014 Hearing Transcript (Mother
testimony) at 175-76.
The administrative record soundly supports the conclusion that STRIVE
not only constituted an adequate education under IDEA, but that Student showed
substantial academic and social improvement in the program. The Hearing
Officer correctly determined that STRIVE constituted a FAPE under IDEA.
c. Failure to provide transitional programming before student reentered regular education
Parents further assert the Board inappropriately transitioned Student from
STRIVE back to regular education classes at the main high school for the 2013-
2014 school year. Mot. at 30-31. Parents contend the Board created no plan to
transition Student back into the regular education environment, and provided
Student no case manager, counselling, or special education services while at the
main high school. Id. at 31. Parents allege that it is because of this lack of
transitional programming that Student skipped classes, began having increased
suicidal ideations, and had to reenter STRIVE. Id. at 30-31.
Parents’ allegations regarding a lack of transitional programming before
Student reentered a regular education environment in 2013 fails to constitute a
denial of FAPE. The PPT appropriately based its decision to reintroduce Student
to a regular learning environment based on Student’s progress at STRIVE and
meetings with Parents and the school guidance counsellor. Administrative
28
Record B-13 (5/22/2013 PPT record). Transitional services are not per se required
under IDEA, and the Board correctly notes that IDEA requires an IEP to be
“reasonably calculated to enable the child to receive educational benefits . . . but
it cannot guarantee totally successful results.” Walczak, 142 F.3d at 129-133.
There is ample evidence in the record to support the conclusion that the Board
did not deny Student FAPE by failing to foresee that Student would not transition
back to regular education smoothly on his own.
d. Sufficiency of transitional programming
Parents’ allegation that the Board’s failure to provide transitional training
for summer 2014, before Student entered ACHIEVE, also fails. Mot. at 38-39.
Student received introductory vocational training at STRIVE during the 2013-2014
school year, including building a list of goal careers, listening to guest speakers,
and part-time work. Administrative Record, Ex. B-52 (6/2/2014 PPT record)
(indicating Student participated in a vocational training class through STRIVE).7
In addition, ACHIEVE holds an annual orientation for new students before
beginning the program. Administrative Record, Ex. B-46 (ACHIEVE policy) (“In
May, there is a program orientation for all new incoming students. Students
spend a day in the program to learn about the program from staff and current
students.”). Student declined to participate in the ACHIEVE orientation, but his
mother toured the Achieve facility with Ms. Pettinelli, ACHIEVE’s coordinator.
7 The Career and Vocational Education class (“CAVE”) allowed Student to apply for jobs, take on supervised, part-time work, engage with guest speakers about different careers, and develop a list of goal career options. Administrative Record, Ex. B-40 (CAVE timeline of transitional activities), Ex. B-52 (6/2/2014 PPT record) (listing vocational training activities Student completed at STRIVE.
29
Administrative Record, 6/17/2014 Hearing Transcript (Mother’s testimony) at 181-
82.
In addition to the orientation, the June 2, 2014 PPT recommended extended
school year programming consisting of work experience four to five days per
week from 8:30am to 12:30pm with a one-on-one job coach. Administrative
Record, Ex. B-52 (6/2/2014 PPT record), 6/17/2014 Hearing Transcript (Mother’s
testimony) at 170-71. This transitional training, provided through ACHIEVE,
would constitute a shortened version of the daily activities ACHIEVE provides.
Administrative Record, Ex. B-52 (6/2/2014 PPT record). The Hearing Officer’s
determination that these early vocational experiences provided adequate
transitional training before Student was to begin ACHIEVE is supported by the
record.
e. Sufficiency of ACHIEVE, special education offered for 2014-2015 school year
At the end of Student’s senior year, the Board determined he required
additional training to prepare for life after graduation under IDEA. Parents allege
the program proposed, ACHIEVE, would not have constituted a FAPE. Mot. at 42-
44.
A special needs student aged sixteen or older must have an IEP
determining “appropriate measurable postsecondary goals based upon age
appropriate transition assessments related to training, education, employments,
and, where appropriate, independent living skills” and “the transition services . . .
needed to assist the child in reaching those goals.” 20 U.S.C. §
1414(d)(1)(A)(i)(VIII). A school board is required to evaluate a student and provide
30
an IEP until the student graduates with a regular diploma or exceeds the age of
eligibility for a FAPE under state law. Id. at § 1414(c)(5)(B). In Connecticut, a
student is eligible for special education until the end of the school year in which
the student turns 21. Conn. Agencies Regs. § 10-76h-1(c) (defining “child” as “an
individual under twenty-one years of age who is eligible for or may be eligible for
special education and related services”); Conn. Gen. Statute 10-186 (stating each
child between five and twenty-one years old who is not a graduate of a high
school or vocational school may attend public school). The school board has
discretion to determine whether a child has satisfied credit requirements to
graduate. Conn. Gen. Statute 10-221a(f).
Here, the June 2, 2014 PPT determined that Student was “on track to
graduate” at the end of the 2013-2014 school year, his senior year, with 19 credits
and a 3.0 GPA. Administrative Record B-52 (6/2/2014 PPT record). However, the
PPT determined Student required transitional career training through ACHIEVE
for the 2014-2015 school year, in accordance with IDEA. Id.; 20 U.S.C. §
1414(d)(1)(A)(i)(VIII). Parents rejected ACHIVE as inappropriate for Student.
Parents spend significant time detailing the safety concern ACHIEVE would
cause by placing Student on job sites with no supervision, without an evaluative
check-in until three to four months into the school year, and without sufficiently
individualized curriculum. Mot. at 42-44. Parents also contend the IEP developed
for Student’s time in ACHIEVE was based on the ACHIEVE curriculum rather than
an interview with Student or review of Student’s records, and was accordingly
insufficiently personalized. Id. at 33.
31
Contrary to Parents’ assertion, ACHIEVE provides “full staff support” at job
sites for all students in their first year, and as necessary in subsequent years.
Administrative Record, Ex. B-46 (ACHIEVE policy). Additionally, the June 2, 2014
PPT recommending ACHIEVE explicitly states Student would have a one-on-one
job coach to address his individual needs. Id., Ex. B-52 (6/2/2014 PPT record).
As to the goals outlined in the IEP, Ms. Pettinelli, ACHIEVE’s coordinator,
did not review Student’s records before she drafted goals for Student, however
she did research his background prior to establishing the goals. She met with
Student’s teachers at STRIVE, his case manager, and a transition coordinator
who worked directly with student. 7/7/2012 Hearing Transcript (Pettinelli
testimony) at 48-50. Further, the goals were adopted by the PPT which included
members who were intimately involved with Student’s record. Id., Ex. B-52
(6/2/2014 PPT record) (indicating Ted Dillon, David Volpe, and Lorri Fitzsimmons
participated in the PPT); 6/9/2014 Hearing Transcript at 106 (stating Mr. Volpe,
Student’s case manager, and Mr. Dillon, an administrator, participated in
Student’s PPTs as early as September 20, 2012, and reviewed Student’s
independent neurological evaluation); Ex. B-12 (9/20/2014 PPT record) (reflecting
Mr. Dillon, Mr. Volpe, and Ms. Fitzsimmons, Student’s social worker, were all
present at that PPT).
The Hearing Officer reasonably concluded the IEP adopted at that meeting
reflected each PPT participant’s understanding of Student’s condition and the
proposed program. While Parents perhaps would have preferred more
32
individualized goals for ACHIEVE, the record indicates the program and goals
developed were at least adequate under Rowley, 458 U.S. at 192. 8
i. Sufficiency of transportation provided in conjunction with ACHIEVE
Parents also assert that Student must be provided private transportation to
and from job sites, as he is at risk of violent outbursts that could cause harm to
others on public transportation. Mot. at 45. The Hearing Officer found that
Student requires private transportation through ACHIEVE until the PPT
determines he is emotionally ready to begin public bus training. Op. at 7.
Parents assert this is insufficient, as Student’s clinician stated Student will
always be at risk of hurting someone, and therefore, Parents assert, he will never
be emotionally ready for public transportation. Mot. at 45.
Parents’ concern is adequately addressed by the Hearing Officer’s
instruction that Student will transition to public transportation only if the PPT, in
which Parents participate, determines Student is ready. Op. at 7. The Hearing
Officer’s added precaution that Student would go through transitional training
before using public transportation, should the PPT ever determine he is stable
enough to do so, is adequately tailored to Student’s specific needs under IDEA.
Id.
8 Parents assert an alternative program, “Options,” would have provided better one-on-one transitional training than ACHIEVE. Mot. at 39-44. The Court need not determine whether Options, a privately run, for-profit transitional service, would be the best place for Student. The Hearing Officer’s determination that ACHIEVE provided adequate transitional education under IDEA was not clear error, and adequate educational services are all IDEA requires. Rowley, 458 U.S. at 192.
33
IV. Remedies available to Parents
Parents allege the Hearing Officer’s denial of compensatory education was
not supported by the record and should be overturned. Mot. at 45.
Compensatory education is appropriate where the student has been denied
FAPE, and should be fashioned to make up for that denial. P. ex rel Mr. & Mrs. P.
v. Newington Bd. of Ed., 546 F.3d 111, 117 (2d Cir. 2008); A. v. Hartford Bd. of
Educ., 3:11-cv-1381-GWC, 2016 WL 3950079, at *12 (D. Conn. July 19, 2016) (slip
copy).9
The Hearing Officer found the Board failed to provide adequate
transportation to and from ACHIEVE, but mandated that the Board remedy the
inadequacy in its October 2, 2014 Final Decision. HO Decision at 17. The remedy
the Hearing Officer mandated sufficiently resolved the deprivation.
The Hearing Officer also found procedural errors including “drafting
inaccuracies, incomplete IEP documents and failing to provide consistent
programming for the Student,” which the Hearing Officer found did not amount to
a denial of FAPE. Op. at 17. In addition to the Hearing Officer’s findings, with
which the Court agrees, the Court has found a procedural failure to provide a
copy of the May 22, 2013 IEP until after November 2013. See section III(ii)(4)
above. However, Parents offered no evidence establishing that the delay caused
a denial of FAPE, nor does it, even considered in conjunction with the procedural
9 Parents need not establish a “gross violation” of IDEA in order to qualify for compensatory education, as the gross violation requirement applies to students over the age of 21. P. ex rel. Mr. P., 512 F. Supp. 2d at 113 n.13; Hartford Bd. of Educ., 2016 WL 3950079 at *12. Per this Court’s records, Student is currently 20 years old.
34
violations the Hearing Officer noted. Compensatory relief is accordingly
inappropriate.
V. Conclusion
Pursuant to the foregoing analysis, Plaintiffs’ motion for judgment on the
administrative record [Dkt. 32] is DENIED and Defendants’ cross-motion for
judgment on the administrative record [Dkt. 34] is GRANTED, in accordance with
this Decision. Further, as Plaintiffs do not allege any causes of action against
Superintendent Thomas Moore or Director of Pupil Services Glenn McGrath, they
are hereby DISMISSED as defendants, without prejudice. The Clerk is directed to
close this file.
SO ORDERED.
/s/ Hon. Vanessa L. Bryant United States District Judge
Hartford, Connecticut: September 29, 2016.
35