UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT --------------------------------------------------------------- x V.B., as Conservator of S.B., :
Plaintiff, : : MEMORANDUM & -against- : ORDER
MONROE BOARD OF EDUCATION, : 3:22-CV-00174 (VDO)
Defendant. : --------------------------------------------------------------- x VERNON D. OLIVER, United States District Judge:
Plaintiff, V.B., conservator and parent of disabled child S.B., brings this action against
the Monroe Board of Education (the “Board”) for violations of the Individuals with Disabilities
Education Act (“IDEA”). Before the Court are Plaintiff’s and Defendant’s Cross-Motions for
Summary Judgment (ECF Nos. 82 and 83, respectively, together the “Motions”). The Court
has reviewed the briefing on the Motions, the Administrative Record, and the record in this
matter. After careful review, and for the reasons that follow, the Court GRANTS Plaintiff’s
Motion for Summary Judgment and DENIES Defendant’s Motion for Summary Judgment.
I. BACKGROUND
A. Statutory Background
Because the facts relevant to the Motions involve decisions made pursuant to the IDEA,
the Court begins with a brief overview of that statute. The Second Circuit has characterized
IDEA as part of “an ambitious federal effort to promote the education of handicapped
children.” Lillbask v. Conn. Dep’t of Educ., 397 F.3d 77, 81 (2d Cir. 2005) (cleaned up). As
part of IDEA, Congress “offers federal funds to states that demonstrate, inter alia, that they
have developed plans to assure ‘all children with disabilities residing in the state’ a ‘free
appropriate public education’” (hereinafter “FAPE”). Id. (quoting Mackey v. Board of Educ.,
386 F.3d 158, 159–60 (2d Cir. 2004) and 20 U.S.C. § 1412(a)(1)(A)). IDEA “expresses a
strong preference for disabled children to be educated, to the maximum extent appropriate,
together with their non-disabled peers and, accordingly, requires special education and related
services to be provided in the least restrictive setting consistent with a child’s needs.” Id.
(cleaned up).
“The centerpiece of the IDEA’s education delivery system is the ‘individualized
education program,’ or ‘IEP.’” Murphy v. Arlington Cent. Sch. Dist. Board of Educ., 297 F.3d
195, 197 (2d Cir. 2002) (cleaned up); see also 20 U.S.C. § 1414(d) (defining and describing
the development, review, and revision of an IEP). “The IEP, the result of collaborations
between parents, educators, and representatives of the school district, sets out the child’s
present educational performance, establishes annual and short-term objectives for
improvements in that performance, and describes the specially designed instruction and
services that will enable the child to meet those objectives.” Murphy, 297 F.3d at 197 (cleaned
up). In Connecticut, each child eligible for special education under the IDEA is assigned a
Planning and Placement Team (“PPT”), which is responsible for evaluating the child and
developing their IEP. See Conn. State Regs. § 0-76d-10. Connecticut thus also refers to IEP
meetings as PPT meetings.
IDEA requires a comprehensive initial evaluation to develop the IEP and reevaluations
at least once every three years (the “Triennial Reevaluation” or, simply, the “Triennial”). D.S.
By & Through M.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 157 (2d Cir. 2020) (citing 20
U.S.C. § 1414). A school district can forego the Triennial if a student’s PPT agrees that new
evaluations are not needed to determine appropriate services for the student’s IEP. Id. “As a
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procedural safeguard,” including in situations where a parent of a child with a disability
disagrees with a school district’s failure to perform such reevaluations, that parent “has an
absolute right to obtain an [independent educational evaluation (“IEE”)] of their child….” Id.
at 157–58 (quoting 34 C.F.R. § 300.502(a)(1)). “The school must consider that IEE ‘in any
decision made with respect to the provision of FAPE to the child.’” Id. (quoting 34 C.F.R. §
300.502(c)(1); see also Conn. State Regs. 10-76d-9(a).
When a dispute arises, an organization or individual may file a “state complaint”
alleging a violation of any Part B requirement by a public agency. See 34 C.F.R. §§ 300.151–
53. The state educational authority must investigate the complaint, provide an opportunity to
submit additional information, and issue a final written decision containing findings of fact,
conclusions, and reasons. See 34 C.F.R. § 300.152. The written decision may include
procedures for the effective implementation of the decision, potentially including corrective
actions. See 34 C.F.R. § 300.152(b). Under the procedure established by the Connecticut State
Department of Education (“CSDE”), the final decision on such a complaint cannot be
appealed. See CSDE, Special Education Complaint Resolution Process,
https://www.portal.ct.gov/-/media/sde/special-education/complaint-resolution-process.pdf,
(last visited Mar. 29, 2026).
Alternatively, parents and school districts may request a “due process hearing” relating
to a proposal or refusal to change a child’s identification, evaluation, educational placement,
or the provision of FAPE. See 20 U.S.C. § 1415(b)(6), (f), (h); 34 C.F.R. §§ 300.507–15; Conn.
Gen. Stat. § 10-76h. The hearing request must allege a violation that occurred not more than
two years before the date the parent or public agency knew or should have known about the
alleged action. 20 U.S.C. § 1415(b)(6)(b). An impartial hearing officer must conduct a hearing
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at which the parties are entitled to introduce testimony and written evidence. 34 C.F.R.
§§ 300.511–12. The hearing officer then must issue a written final decision, and any aggrieved
party may appeal to state or federal court. See 20 U.S.C. § 1415(i)(2); Conn. Gen. Stat. 10-
76h(d)(4).
Parties wishing to challenge the findings of a hearing officer in an IDEA hearing are
entitled to bring a civil action in federal court pursuant to 20 U.S.C. § 1415(i)(2)(A). See M.H.
v. N.Y.C Dep’t of Educ., 685 F.3d 217, 224 (2d Cir. 2012). IDEA appeals are typically resolved
via cross-motions for summary judgment. In substance, the procedure is an appeal from an
administrative determination. Id. at 226; see also R.R. v. Greenwich Bd. of Educ., No. 21-CV-
873 (JCH), 2023 WL 3737714, at *7 (D. Conn. May 31, 2023) (“The motion [for summary
judgment] serves as a pragmatic procedural mechanism for reviewing a state’s compliance
with the procedures set forth in the IDEA and determining whether the challenged IEP is
reasonably calculated to enable the child to receive educational benefits…The court must grant
such relief as it determines is appropriate, based on a preponderance of evidence.”) (cleaned
up).
B. Factual Background
S.B. is a student who, at the time of events relevant to the instant matter, was residing
in the Defendant’s school district.1 During the time of the underlying proceedings and at the
1 ECF No. 55-2 at 665–78. The Court draws the following facts largely from the Administrative Record (“A.R.”) in this matter, as well as transcripts of the underlying agency proceedings. The A.R. consists of what was filed at ECF Nos. 55-1 and 55-2. It was latter supplemented by exhibits at ECF Nos. 39-5, 39-6, 39-7, 39-9, and 39-10, pursuant to this Court’s order at ECF No. 57, as well as ECF No. 100, per this Court’s order at ECF No. 94. The relevant transcripts appear at ECF No. 53. When citing to the A.R. or transcripts, the Court refers to ECF pagination. The Board’s request to supplement the administrative record with ECF No. 103-1, Exhibit A, is denied. See ECF No. 103 at 4. The letter, seemingly from S.B.’s current educational placement,
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commencement of the instant action, he was a minor, and this action was brought by his
parents, V.B. and R.B. as his next friends. 2 Following S.B.’s eighteenth birthday, the Court
permitted his mother, V.B., to proceed with the suit as S.B.’s conservator. 3
S.B. is eligible for special education with a primary disability of specific learning
disabilities and dyslexia. He is also diagnosed with autism, attention deficit-hyperactivity
disorder, auditory processing disorder, generalized anxiety disorder, obsessive compulsive
disorder, and depression. 4 S.B. attended Southport School for fifth and sixth grade (the 2018–
19 and 2019–20 academic years, respectively), completing the sixth grade in June of 2020. 5
S.B. was then enrolled in the Easton Country Day School for seventh grade, for the 2020–21
academic year. 6
indicates that he is set to graduate from 12th grade in May 2026. But the Board itself states that “This Court must decide the case exclusively on the basis of the record compiled before the State Board of Education hearing officer. 5 U.S.C. §§ 556, 706. Federal Rule of Appellate Procedure 16 defines the record on review as the agency order, findings, pleadings, evidence, and other materials from the agency proceeding, and treats the record before the agency and the record on review as the same. The reviewing court does not build a new factual record but evaluates the agency’s action against the record that was before the agency when it acted.” ECF No. 103 at 2 (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) and Camp v. Pitts, 411 U.S. 138 (1973)). Accordingly, the Court declines to consider a letter issued years after the relevant events in this case transpired—a letter, the Court notes, that was surely unavailable to the hearing officer in the underlying proceedings. 2 Id.; see also Am. Compl., ECF No. 20 at 1. 3 See ECF No. 104. Based on the Court’s decision to permit the substitution of the plaintiff in this matter, it rejects as moot any arguments made by the Board in its papers based on the previous plaintiff’s lack of standing. 4 ECF No. 55-2 at 322–42; 368–70. 5 Id. at 421. 6 Id. at 526.
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1. Relevant IEPs
During the two-year period eligible for review by the hearing officer (December 8,
2018, to December 8, 2020), there were seven IEPs in place, dated: November 20, 2018; April
9, 2019; October 4, 2019; February 3, 2020; June 30, 2020; August 20, 2020; and October 8,
2020. The Court also considers an amendment to the October 8, 2020 IEP, dated January 26,
2021.
a. 2018 IEP
The November 20, 2018, IEP outlined various goals and objective for S.B. It noted, in
relevant part, that S.B. experienced some transitional issues with rigidity and “deficits in
phonetic awareness and phonological processing,” which led to issues with reading and
communication. 7 As part of the IEP the Board agreed to the following conditions:
a. One hour per week of counseling with the school counselor;
b. Speech and language services once per week for 45 minutes, as well as making up 10 sessions that were not yet provided to S.B during the 2018–19 academic year;
c. Evaluation of S.B. in the areas of speech and language by the Board’s speech pathologist; and
d. Developing a plan for S.B. to attend a social skills group, after continuing with the individual counseling that he was receiving. 8
V.B. and R.B., at the 2018 IEP meeting, expressed concerns that evaluations planned
at a prior PPT had not yet been conducted. 9 However, when they requested a speech and
language IEE, counsel for the Board explained that there was no existing evaluation
7 Id. at 102, 110. 8 Id. at 102–03. 9 Id. at 108, 103.
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prescription with which the Board disagreed. The Board stated it would conduct its planned
speech and language evaluation and advised S.B.’s parents that they could ask for an IEE
should they disagree with results.10
b. 2019 IEPs
The record reflects two IEPs issued in 2019, dated April 9 and October 4, respectively.
On April 9, 2019, S.B.’s PPT conducted an annual review of the child’s progress.11 The
Southport staff reported that S.B. was making progress in all areas, including social/emotional
goals, and that his academic scores had all improved. 12 However, the IEP also noted that S.B.’s
phonological deficits impacted his ability to read and to communicate, as in November 2018. 13
The meeting participants discussed the provision of services for behavioral/academic
instruction (30.75 hours per week), counseling (1 hour per week), and speech and language
(45 minutes per week). 14 The PPT agreed on continued placement at Southport for the 2019-
20 academic year, and, in the updated IEP, recommended, in relevant part, the following:
a. Extended School Year (“ESY”) at Southport for July 2019, plus tutoring by the Board for two weeks in August for math and reading; and
b. A weekly social skills group for the summer and fall of 2019. The Board also agreed to reimburse V.B. and R.B. for weekly social group sessions to take place from April 9, 2019, through May 9, 2019. 15
10 Id.at 103. 11 Id. at 152–186. 12 Id. at 153. 13 Id. at 162. 14 Id. at 153. 15 Id.
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On October 4, 2019, the Board issued another IEP, which indicated that the Board
would provide S.B. with weekly speech and language services and continued counseling and
social skills sessions. 16 As part of the October 2019 IEP, the Board also agreed to provide S.B.
with a neuropsychological evaluation, a speech language IEE, and a central auditory
processing (“CAP”) IEE. 17 As to S.B.’s progress, the October IEP also included reporting by
S.B.’s counselor, who wrote that while S.B. continued to progress, gain self-confidence, and
“[was] starting to feel success academically,” he still struggled with rules and expectations and
being a very rigid thinker. 18 Though the IEP noted that S.B. made good growth academically,
that growth, with respect to math, was inconsistent, and S.B.’s phonological delays continued
to impact his reading and communication. 19
c. 2020 IEPs
The Board issued four 2020 IEPs, on February 3, June 30, August 20, and October 8.
On February 3, 2020, the PPT and the Board convened another meeting at V.B. and
R.B.’s request due to an allegation of bullying, and to discuss recommendations for S.B.’s
upcoming reevaluation. 20 This meeting resulted in the first 2020 IEP. The team addressed
S.B.’s parents’ concerns about the bullying incident by adding a second weekly session of
social skills training. 21 Otherwise, the February 2020 IEP remained largely the same as the
16 Id. at 241–42. 17 Id. at 241. 18 Id. 19 Id. at 245–46. 20 Id. at 292–320. 21 Id. at 293–94.
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October 2019 IEP with respect to noting S.B.’s progress, again describing phonetic deficit
affecting reading and communication and now noting S.B.’s social isolation and bullying. 22
Shortly after the February 2020 IEP, schools across the country, including Southport,
were shut down due to the onset of the COVID-19 pandemic. As a result, Southport
experienced reduced staffing and services, and S.B. did not receive services between February
and June of 2020. 23 The PPT meeting originally scheduled for March 24, 2020, was cancelled
and not held until June 30, 2020, at which time it was held virtually. During the June 30, 2020,
meeting, the Board and PPT reviewed S.B.’s progress reports, the completed evaluations,24
and the evaluators’ recommendations. 25 The IEP provides for speech and language services,
expanded to include more reading and language support, and counseling and social skills
training. 26
The August 20, 2020 IEP, “held to review occupational therapist evaluation, discuss
placement and make necessary revisions to IEP,” resulted in S.B.’s placement being changed
to the Easton Country Day School and the addition of occupational therapy. 27
The October 8, 2020 IEP largely continued the same services as outlined in the August
2020 IEP. 28
22 Id. at 296. 23 ECF No. 53 (Hearing Tr., Vol. I T92:18-T94:17; Vol. II T67). 24 These evaluations are discussed in Section I.B.2, infra. 25 ECF No. 55-2 at 420–51. 26 Id. at 420–22. 27 Id. at 477–512. 28 Id. at 532–66.
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All four 2020 IEPs noted phonological deficits, which affected reading and
communication, just as prior IEPs indicated. 29
On January 26, 2021, S.B.’s latest IEP (dated October 8, 2020) was amended to reflect
implementation of auditory processing interventions. 30
2. Triennial Reevaluation and IEEs
In 2017 and mid-2018, S.B.’s PPT, with V.B. and R.B.’s consent, agreed that
evaluations were needed for his Triennial Reevaluation for speech and language, central
auditory processing, and academic achievement. 31 These evaluations were to be completed by
June 7, 2018, when the Triennial was due. 32 However, by November 2018, the Board had still
not performed any of the Triennial Reevaluations. As a result, V.B. and R.B. requested IEEs.33
The Board failed to agree to fund the IEEs or to file for a due process hearing to determine that
their actions were appropriate. Plaintiffs thus filed for an administrative due process hearing
to obtain the IEEs on December 20, 2018. On April 17, 2019, the Board agreed to provide the
IEEs. 34 As a result, the hearing officer in the due process hearing requested by V.B. and R.B.
dismissed that case with prejudice, noting that the Board confirmed it would not pre-empt the
IEEs with its own evaluations. 35
29 Id. at 296, 426, 483, and 537. 30 ECF No. 39-10. 31 ECF No. 39-5 at 2, 4–5. 32 ECF No. 55-2 at 101. 33 Id. at 218. 34 Id. at 190–94. 35 Id.
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Shortly after the Board agreed to provide the IEEs, in email exchanges with the Board’s
administrators, V.B. and R.B. asked for an explanation of the procedure to engage independent
evaluations and identified the evaluators they intended to use. 36 By October 2019, the IEEs
had yet to be provided, and V.B. and R.B. brought these delayed IEEs up during a PPT
meeting. 37 The Board insisted that these IEEs would now be part of S.B.’s next Triennial,38
and insisted that they would thus not be completed and considered until March 2020, nearly
three years after S.B.’s parents first consented to the Triennial. 39 As a result, S.B.’s speech and
language and central auditory processing IEEs were not completed until February 2020, ten
months after they were granted and five years after the last such evaluations of the student.40
The academic IEE was never conducted, as the Board took the position that its
neuropsychological evaluation (which was not an IEE) took its place since it contained an
academic achievement component. 41
a. Speech and Language IEE
The speech and language IEE, conducted by Dr. Nancy Schwartz, concluded that S.B.
required more extensive speech services than those that had been provided to him by the
Board. 42 Dr. Schwartz further concluded that S.B. had weaknesses in comprehension,
maintaining cohesiveness in his extended language tasks, language organization, and word
36 ECF No. 55-1 at 243. 37 Id. at 256, 258; ECF No. 55-2 at 241. 38 ECF No. 55-1 at 277; ECF No. 55-2 at 241. 39 ECF No. 53 at 618–19. 40 ECF No. 55-2 at 322–42, 344–54. 41 Id. at 241. 42 Id. at 322–342.
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finding. 43 She further found that S.B.’s language deficits contributed significantly to his
problems interpreting social scenarios and his interpretation of nonverbal communication. 44
And S.B.’s cognitive rigidity also contributed to his social struggles, as he had difficulties
accepting other points of view or changing his plan. 45 Dr. Schwartz recommended, among
other things, the following:
e. Individual speech and language services thirty minutes per week and speech services in a dyad twice per week for thirty minutes per session, for a total of 1.5 hours weekly;
f. Two twenty-minute individual social skills training sessions per week preceding two thirty-minute social skills dyad sessions, and one forty-five-minute small-group social skills session, for a total of 2.75 hours weekly; and
g. Auditory processing intervention twice per week for 15 minutes in addition to the interventions recommended by the central auditory processing evaluator. 46
b. Central Auditory Processing IEE
The CAP IEE, conducted by Dr. Donna Geffner, established that S.B. required auditory
processing services 47 that had never been provided to him despite earlier evaluations reaching
the same conclusion. 48 She recommended a hearing aid device, as well as other interventions,
to help with his auditory processing disorder. 49 The parents also privately retained audiologist
43 Id. at 338–40. 44 Id. 45 Id. 46 Id. at 340. 47 Id. at 344–354. 48 ECF No. 55-1 at 574–75; ECF No. 55-2 at 42–43. 49 ECF No. 55-2 at 350–53.
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and speech and language pathologist Elizabeth D’Souza, who conducted her own assessment
and reviewed Dr. Geffner’s assessment to come up with a plan of necessary interventions. 50
At the June 20, 2020 PPT meeting, the Board denied S.B.’s request for auditory
processing services and requested more information about these services. 51 The Board again
denied the request for auditory processing services at the August 20, 2020 PPT meeting, based
on an alleged lack of information received about the services since the June meeting. 52 The
October 8, 2020 IEP once again denied the request and indicated that the Board needed more
proposal of necessary interventions put forth by Dr. D’Souza. The proposal recommended an
hour per week of direct service, as well as collaboration with the speech and language provider:
recommendations that were the same as those made by Dr. Geffner. 53
The October 8, 2020, IEP noted that the Board agreed to contact Dr. Geffner and Ms.
D’Souza to discuss plans to incorporate interventions. Yet the Board also stated, prior to the
October 8 PPT meeting, that the audiologist’s presence was not needed at that meeting. 54 On
November 3, 2020, the Board indicated in email correspondence to V.B. that it was still
“researching the services and specific recommendations [Dr. Souza] made at the [October 8]
PPT, as well as the revisions to her original recommendations which she provided…following
50 ECF No. 100 at 11. 51 Id. at 420–25; ECF No. 53 at 302–04. 52 ECF No. 55-2 at 477–82; ECF No. 53 at 651–53, 805. 53 ECF No. 55-2 at 39. 54 Id. at 43.
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the PPT” and that the Board was “awaiting additional information.” 55 On November 10, 2020,
V.B. again indicated to the Board that she was unclear as to “what additional information” the
Board needs to discuss auditory processing services. 56
The Board finally agreed to provide auditory processing services as part of S.B.’s IEP
by a written amendment dated January 2021, including thirty minutes per day of the
CAPDOTS 57 program and one hour per week of auditory processing intervention. 58
c. Neuropsychological Evaluation
As part of the October 2019 IEP, as mentioned the Board agreed to provide S.B. with
a neuropsychological evaluation. 59 In order for the evaluation to proceed, V.B. signed a
consent form for a neuropsychological evaluation to be conducted by Dr. Stacey Aronson. The
consent specified that Dr. Aronson would complete a comprehensive evaluation including
cognitive, achievement, executive functioning, and social emotional testing. 60
In March 2020, S.B. underwent a neuropsychological evaluation by Dr. Stacey
Aronson. She found that S.B.’s general cognitive functioning in the verbal and nonverbal are
in the average range but working memory and processing speed were in the below-average
range. 61 The evaluation also revealed functional communication difficulties and weaknesses
55 ECF No. 55-1 at 575. 56 Id. at 574. 57 CAPDOTS™ is an on-line auditory training system for the treatment of Central Auditory Processing Disorders. See https://www.capdots.com (last visited March 29, 2026). 58 ECF No. 39-10. 59 Id. at 241. 60 Id. at 268. 61 ECF No. 55-2 at 356–77.
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in phonological skills. Dr. Aronson found that, though S.B. made great gains at Southport,
reading and spelling remained difficult. 62 She also found that, though S.B.’s math skills were
solidly in the average range, he was slower on math fluency tasks. 63
d. Private Math Evaluation
In light of the Board’s refusal to provide an academic IEE, V.B. and R.B. also elected
to conduct a private math evaluation of S.B. in August 2020. 64 The evaluation, completed by
Dr. Randy Ewart, concluded that the math section of S.B.’s IEP was inappropriate and would
not result in progress.65 The Board did not reimburse V.B. and R.B. for this evaluation. 66
3. Provision of Speech and Language Services
Due to S.B.’s language-based disability and difficulty with social skills, speech therapy
had historically been an important component of his educational program. 67 Going into the
2018–19 school year, among other accommodations, S.B.’s IEP required that the Board
provide him with weekly 45-minute speech and language services. 68 But as of November 20,
2018 IEP meeting date, a few months into the school year, the Board had failed to provide any
of the 10 speech therapy sessions to which S.B. was entitled. 69 Additionally, the Board failed
62 Id. 63 Id. 64 ECF No. 55-2 at 1–34. 65 Id. at 24–26. 66 ECF No. 102 at 10. 67 ECF No. 55-2 at 322–25. 68 Id. at 103. 69 Id.
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to provide any speech and language services during the summer of 2019. 70 During the 2019–
20 school year, the Board delivered only seven speech and language sessions. 71 The Board
delivered no such services once the COVID-19 pandemic began. 72 It provided no
compensatory speech and language services to make up for the missed sessions. 73 In sum,
Plaintiff alleges that “[d]uring the [seventy] weeks of instruction from the beginning of the
limitations period to when speech services commenced – December 2018 to June 2020 – SB
should have received [seventy] sessions of speech and language therapy,” but he received only
seven. 74
4. Underlying Administrative Hearings
V.B. and R.B. filed their request for a due process hearing on December 8, 2020, and
were unrepresented in the administrative due process hearings before the State of Connecticut
Department of Education, proceeding pro se. 75 Hearings took place on February 16, 2021,
March 31, 2021, April 23, 2021, May 20, 2021, June 9, 2021, June 29, 2021, July 30, 2021,
and August 3, 2021. 76
The Court notes that tone is difficult to assess from a written transcript, and it therefore
does not determine whether the hearing officer’s comments toward the parents rose to the level
70 Id. at 183; ECF No. 55-1 at 263–67, 284–88. 71 ECF No. 55-1 at 263–64, 604, 642–44, 646–67. 72 ECF No. 53 at 251–52. 73 ECF No. 55-1 at 263–67, 284–88. 74 ECF No. 102 at 4. 75 ECF No. 100. 76 ECF No. 55-2 at 666.
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of animosity claimed by Plaintiff in their brief. 77 The record does reflect, however, that the
hearing officer was at times impatient, curt, and dismissive in her exchanges with V.B. and
R.B. Regardless of whether that demeanor motivated the rulings at issue, the transcript
demonstrates that the hearing officer excluded relevant evidence and curtailed the parents’
ability to present probative testimony bearing directly on the issues before the agency.
At the outset, V.B. disclosed that she had a learning disability requiring additional
processing time. Nevertheless, the hearing officer cut short her opening statement as improper
testimony and prohibited her from using notes during her own testimony, warning that doing
so could result in her testimony being stricken. 78 The hearing officer did not allow V.B. to use
an outline or notes for her testimony, and cautioned her that if the hearing officer caught V.B.
reading her notes, her testimony would be stricken. 79 She further precluded the admission of a
document in which R.B. and V.B. summarized some concerns they had going into S.B.’s June
2020 IEP meeting, characterizing it as hearsay and irrelevant. 80 Meanwhile, the hearing officer
allowed counsel for the Board to read off of “documents,” stating that counsel could “refer to
the evidence that [was] being brought into this case,” though the documents counsel was
reading from had not yet been admitted into evidence. 81
77 ECF No. 82-1 at 8. 78 ECF No. 53 at 11–12, 59–60. 79 Id. at 440. 80 Id. at 629–39. 81 Id. at 486.
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The hearing officer also limited discussion of S.B.’s IEEs, characterizing V.B.’s efforts
to obtain them as “an awful lot of back and forth.” 82 She stated that the state complaint
dismissed with prejudice upon the Board’s commitment to provide IEEs was “not important
anymore because it sounds like the [speech and language] evaluation at least was conducted,”
despite V.B.’s repeated attempts to make clear that the academic IEE, which the Board had
agreed to conduct, was never conducted. 83 When V.B. sought guidance on how to present her
case as a pro se parent, the hearing officer declined to provide any practical direction beyond
stating that only what was permissible “under the rules”—presumably the Regulations of
Connecticut State Agencies, which govern special education proceedings—would be
allowed. 84 But V.B. responded that those rules did not, in fact, provide the procedural guidance
she was seeking. 85
The hearing officer issued her final decision on December 15, 2021. 86 She made eight
conclusions, discussed in further detail below. The hearing officer concluded that the Board
did not commit procedural violations and generally offered S.B. a FAPE, but found a limited
denial of FAPE between February 2020 and June 2020 due to the Board’s failure to provide
all required speech and language services during COVID-19 school closures. As a remedy, the
hearing officer awarded compensatory education in the form of twenty-four speech and
language sessions of an undetermined length and denied all other requested relief, including
82 Id. at 488. 83 Id. at 488. 84 Id. at 502, 504. 85 Id. at 506. 86 ECF No. 55-2 at 665.
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reimbursement and additional compensatory services. Plaintiff challenges numerous findings
of fact as well as seven of the hearing officer’s eight conclusions. 87
II. DISCUSSION
The standard for determining whether a Board has provided FAPE is set forth in a two-
part inquiry: first, whether the Board complied with the procedural requirements in the IDEA,
and second, whether the IEP is “reasonably calculated to enable the child to receive educational
benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 208 (1982). The Board has the burden of
proving the appropriateness of the program and placement they have offered by a
preponderance of the evidence. See R.S.A. § 10-76h-14(a); see also Walczak v. Fla. Free
Union Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998).
“Federal courts reviewing administrative decisions must give due weight to these
proceedings, mindful that the judiciary generally lacks the specialized knowledge and
experience necessary to resolve persistent and difficult questions of educational policy.” Mr.
P v. W. Hartford Bd. of Educ., 885 F.3d 735, 748 (2d Cir. 2018) (quoting Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, 113 (2d Cir. 2007)) (cleaned up). “Deference to the
administrative decision is particularly appropriate when the administrative officer’s review has
been thorough and careful, and when the court’s decision is based solely on the administrative
record. Id. (citing M.H., 685 F.3d at 241). While this Court “do[es] not simply rubber stamp
administrative decisions,” Walczak, 142 F.3d at 129, review of the administrative decision “is
by no means an invitation to the courts to substitute their own notions of sound educational
policy for those of the school authorities which they review.” Rowley, 458 U.S. at 206.
87 ECF No. 20 at 2–3.
19
But when an administrative opinion in an IDEA due process hearing “is not supported
by a preponderance of the relevant evidence…the Court does not defer to [the hearing
officer’s] analysis.” Mr. O. v. Glastonbury Bd. of Educ., No. 20-CV-690 (VAB), 2021 WL
6134691, at *10 (D. Conn. Dec. 29, 2021) (citing E.H. v. N.Y.C Dep’t of Educ., 164 F. Supp.
3d 539, 553 (S.D.N.Y. 2016) (“In light of the fact that the [hearing officer] failed to analyze
the record to answer the relevant question of whether the Parent was denied meaningful
opportunity to participate with respect to her concern that [the student] required a more
restrictive setting…the [hearing officer’s] finding is not supported by a preponderance of the
relevant evidence….”)); see also C.F. ex rel. R.F. v. N.Y.C Dep’t of Educ., 746 F.3d 68, 77 (2d
Cir. 2014) (holding that courts need not defer to a decision that is “insufficiently reasoned”);
J.M. v. N.Y.C Dep’t of Educ., No, 12-CV-8504, 2013 WL 5951436, at *17 (S.D.N.Y. Nov. 7,
2013) (holding that a hearing officer’s opinion “does not warrant deference from the Court” if
it is not “analytically intensive,” even if it is “long in its recitation of the testimonial
evidence.”).
Here, the Court concludes that the hearing officer’s decision is not supported by a
preponderance of evidence and thus does not defer to it. The Court finds numerous
contradictory findings of fact, as well as those that are unsupported or contrary to the record.
For example, the hearing officer concluded that the services listed in the November 2018 IEP,
including speech and language services and the provision of a speech and language IEE, “were
agreed to by the PPT team and implemented during the 2018–19 school year.” 88 The hearing
officer made a similar statement about services, including speech and language, “being
88 ECF No. 55-2 at 668 ¶ 9.
20
provided and continuing to be provided” at the April 2019 IEP. 89 But as the parents alleged in
the underlying proceeding, no speech language services had been provided during the 2018–
19 school year, and the speech and language IEE was not conducted until over a year later. A
few paragraphs later, in fact, the decision concedes that the pandemic affected the provision of
speech and language services to S.B. “which had just begun.” 90 Further, the findings of fact
overlook any distinction between Board-ordered evaluations and the IEEs requested by the
parents. 91
The Court also finds the hearing officer’s conclusions of law were not supported by a
preponderance of the evidence. These conclusions consist largely of boilerplate language and
three general paragraphs, seemingly tailored to S.B.’s case. But these three paragraphs lack
any analysis and ties to the evidence presented. Thus, the Court does not defer to the hearing
officer’s decision and relies entirely on the A.R.
Plaintiff argues that the hearing officer’s decision should be reversed because the Board
committed various procedural violations, that ultimately resulted in substantively inadequate
IEPs. Based on the procedural violations and the substantively inadequate IEPs, plaintiffs
argue that the Board failed to provide S.B. with a FAPE for the 2018–19, 2019–20, and 2020–
21 academic years. The Court thus undertakes a two-level review: first, it analyzes whether
the Board has complied with IDEA’s procedural requirements; second, it determines whether
the IEPs at issue are “reasonably calculated to enable [S.B.] to make progress appropriate in
89 Id. at 668–69 ¶ 14. 90 Id. at 669 ¶ 21. 91 Id. at 669 ¶ 15.
21
light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE–
1, 580 U.S. 386, 387 (2017).
A. Procedural Violations
A Court’s “procedural inquiry is no mere formality.” Walczak, 142 F.3d at 129. “A
procedural violation of the IDEA entitles a plaintiff to relief only if it: ‘(I) impeded the child’s
right to a [FAPE]; (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.’” Mr. P, 885 F.3d at 748 (quoting 20 U.S.C. §
1415(f)(3)(E)(ii) and citing A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
“That is, parents must articulate how a procedural violation resulted in the IEP’s substantive
inadequacy or affected the decision-making process.” A.M., 845 F.3d at 535 (quoting M.W. ex
rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 139 (2d Cir. 2013)). “Multiple procedural
violations…may cumulatively result in the denial of a FAPE even if the violations considered
individually do not.” Id. (quoting L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 123 (2d Cir.
2016)) (cleaned up).
Accordingly, the Court reviews the hearing officer’s challenged conclusions, which,
according to Plaintiff, rejected most of the parents’ procedural challenges, and, in holding that
any procedural violations did occur, provided for insufficient relief. 92 Plaintiff alleges that the
92 The hearing officer’s eighth conclusion, that the “Board did not change [S.B.’s] placement and/or IEP without PPT discussion” is not challenged by Plaintiff. ECF No. 55-2 at 667.
22
Board committed several procedural violations that denied S.B. a FAPE, including (i) the
failure to conduct a timely Triennial Reevaluation; and (ii) the delay in IEEs.93
1. Triennial Reevaluation
First, Plaintiff alleges that the Board violated the IDEA’s Triennial Reevaluation
requirement by failing to conduct the reevaluation due in 2018 in a timely manner.
The Triennial Reevaluation, as implied by its name, and per the IDEA, must be
conducted at least once every three years, unless the parent and PPT agree it is unnecessary.
20 U.S.C. § 1414(a)(2)(B); 34 C.F.R. § 300.303(b)(2). As recounted above, the Student’s
Triennial Reevaluation was due in June 2018, with his last Triennial having been conducted in
2015. Both his parents and PPT agreed. In March and September 2017 and in July 2018, V.B.
provided signed consent forms for a speech and language evaluation, an academic evaluation,
and a central auditory processing evaluation. 94 By November 2018, five months after the
Triennial was due and four months after V.B. signed the last of the consent forms, the Board
did not undertake any of the evaluations.
Because of the Board’s inaction, in November 2018, V.B. and R.B. requested IEEs in
speech and language, auditory processing, and academic achievement. The Board took no
93 In reviewing whether procedural violations of the IDEA occurred, the Court notes the following procedural conclusions drawn by the hearing officer:
• One: “The Board did not commit procedural violations during the school years 2018–19, 2019–20, and 2020–21 which would have denied him a [FAPE].”
• Four: “The board conducted evaluations in a reasonable timeframe after [V.B. and R.B.] signed consent for [S.B.] to be evaluated in the areas of speech and language social, auditory processing and academic achievement.” ECF No. 55-2 at 676–77. 94 ECF No. 39-5 at 2, 4–5.
23
action. In December 2018, V.B. and R.B. filed a due process complaint. That complaint was
dismissed in April 2019, when the Board issued a letter agreeing to provide the requested IEEs.
That letter did not result in the prompt provision of IEEs. Instead, over the ensuing months,
V.B. repeatedly sought the Board’s IEE criteria and asked the Board to contract with approved
evaluators and filed a State Complaint when the Board failed to respond. The Board finally
agreed to provide the IEEs only after this State Complaint was filed; the Complaint was
dismissed, in fact, only based on the Board’s agreement. Yet, even after agreeing to do so, the
Board still did not engage the Parent’s chosen evaluators and instead attempted to fold one of
the requested IEEs into a Board-conducted reevaluation.
Thus, evaluations essential to the 2018 Triennial Reevaluation were not completed until
February 2020, or, in the case of the academic evaluation, not at all. And as of 2021, the
recommendations that came out of these evaluations were still being implemented. The
Board’s failure to complete the required evaluations by the June 2018 deadline constitutes a
clear and significant procedural violation of the IDEA’s three-year reevaluation mandate. The
delay of over a year and a half was not a harmless procedural misstep. As addressed in further
detail below, when the evaluations were ultimately completed, they revealed significant,
unaddressed educational needs, demonstrating that the Board’s procedural violation impeded
S.B.’s right to a FAPE and caused a deprivation of educational benefits throughout the 2018–
19, 2019–20, and 2020–21 school years.
2. IEE Provision
Plaintiff next contends that the Board failed to provide IEEs in an appropriate manner
by failing to conduct two requested IEEs in a timely manner and by failing to conduct a third
IEE altogether.
24
Federal regulations dictate that “[i]f a parent requests an [IEE]…the public agency may
not require the parent to provide an explanation and may not unreasonably delay either
providing the independent educational evaluation at public expense or filing a due process
complaint to request a due process hearing to defend the public evaluation.” 34 C.F.R. §
300.502(b)(4) (emphasis added).
The Board sets forth no facts explaining why the delay between when V.B. and R.B.
requested the IEEs—November 2018—and when the speech and language and CAP IEEs were
finally conducted—February 2020—was reasonable. The Court finds the delay in providing
S.B. with IEEs to be particularly unreasonable given that the Triennial Reevaluation was due
in June 2018. The November 2018 PPT had agreed that evaluations in speech and language,
academic achievement, and CAP were necessary, and the Board’s refusal to conduct those
evaluations was the sole reason V.B. and R.B. requested IEEs in the first place. 95 The delay
was further compounded when, after V.B. and R.B. filed a due process complaint in December
2018, the Board secured dismissal of that complaint by agreeing to provide the IEEs, only to
later withhold them and attempt to defer evaluation until the next triennial cycle—an approach
that would have left S.B. without required evaluations for approximately six years, from 2015
to 2021. Even setting aside the initial delays, the Board’s failure to act for ten months after
formally agreeing to provide the IEEs in April 2019 was, in and of itself, plainly unreasonable.
Further, the Board’s explanation as to the lack of provision of an academic IEE is
unavailing. The Board claims that the neuropsychological evaluation conducted by Dr.
Aronson contained an academic achievement component. But even assuming this academic
95 ECF No. 55-2 at 102–03.
25
component was comparable to that of an academic achievement IEE, the fact of the matter
remains the same: the Board unequivocally agreed to perform an academic achievement IEE
and Dr. Aronson’s evaluation was simply not an IEE. And the Board has not attempted to
show, in any serious manner, that the academic component of the neuropsychological
evaluation was, in fact, comparable to a full-on reading, writing, and math academic IEE. Nor
does the Court find the Board’s conclusory assertion that “it complied with its agreement to
fund an IEE in the areas of central auditory processing disorder, academic achievement
(reading, writing, and math) and speech and language” persuasive. 96 Indeed, the Board cites
to no such evaluation, and instead proceeds to discuss the math evaluation conducted by Randy
Ewart, who the parents privately retained.
Thus, the Court finds that the Board indeed failed to provide S.B. with IEEs in an
appropriate manner. As explained below, the belated evaluations revealed substantial,
unaddressed needs that had persisted for years, demonstrating that the Board’s procedural
violation impeded S.B.’s right to a FAPE and deprived him of educational benefits throughout
the 2018–19, 2019–20, and 2020–21 school years.
3. Cumulative Effect
There are multiple procedural violations present, as discussed, in the IEPs spanning the
2018–19, 2019–20, and 2020–21 academic years. The Court concludes that the Board violated
the procedural requirements of the IDEA by failing to conduct a timely Triennial Reevaluation,
by failing to provide two IEEs in an appropriate manner, and by failing to provide the academic
IEE at all. The Court further determines that these violations—both individually and
96 ECF No. 103 at 7.
26
collectively—denied S.B. a FAPE during those academic years. In particular, the violations,
taken together, resulted in plans based on outdated and incomplete data, which ultimately
deprived S.B. of a FAPE.
S.B. was entitled to an IEP designed by the Board and “reasonably calculated to enable
[him] to make progress appropriate [to his] circumstances.” Endrew F., 580 U.S. at 403. “An
IEP based on stale information, without the benefit of any recent educational progress metrics
or evaluations, cannot be reasonably calculated to ensure appropriate progress.” Avaras v.
Clarkstown Cent. Sch. Dist., No. 15-CV-2042, 2017 WL 3037402, at *21 (S.D.N.Y. July 17,
2017) (citing E.H., 164 F. Supp. at 556 (“By using goals that were designed to expire by the
time the IEP was to implement them (for a full year thereafter), the DOE has not shown that
the IEP was likely to produce progress.”)); see also Engwiller v. Pine Plains Cent. Sch. Dist.,
110 F. Supp. 2d 236, 240 (S.D.N.Y. 2000) (noting that the IDEA requires the IEP to be
“reviewed and revised each school year”).
As noted, during the two-year period eligible for review by the hearing officer
(December 8, 2018, to December 8, 2020), there were seven IEPs in place, dated November
20, 2018; April 9, 2019; October 4, 2019; February 3, 2020; June 30, 2020; August 20, 2020;
and October 8, 2020. 97 The Court also considers an amendment to the October 8, 2020 IEP,
dated January 26, 2021. Because the CAP and speech and language evaluations were not
conducted until February 2020, the first four of these IEPs could not have possibly considered
the findings made by these IEEs. The last such evaluations of S.B. had been conducted in
97 See Section I.B.1, supra.
27
2015. 98 That means the November 20, 2018; April 9, 2019; October 4, 2019; and February 3,
2020, IEPs were crafted relying on evaluations that were anywhere between three and five
years old. Moreover, because no academic achievement IEE was ever conducted, none of these
IEPs relied on any such assessment data; at most, the final two IEPs reflected consideration of
Mr. Randy Ewart’s private math evaluation.
Under Endrew F., that is not sufficient. 580 U.S. at 387. An IEP must be grounded in a
student’s present levels of performance and reasonably calculated, at the time it is drafted, to
enable appropriate progress. See Avaras, 2017 WL 3037402, at *21. Here, the Board failed to
conduct updated evaluations despite ongoing academic and communication concerns. Thus,
the resulting IEPs necessarily lacked critical information about S.B.’s auditory processing
deficits, expressive and receptive language weaknesses, and related impact on reading and
written expression. The February 2020 CAP and speech-language evaluations confirmed
deficits that had not been meaningfully addressed in the earlier IEPs and ultimately led to the
provision of auditory processing services in 2021, along with additional speech-language and
academic supports. The fact that those services were later deemed necessary underscores that
the earlier IEPs—crafted without current evaluative data—were not reasonably calculated to
confer appropriate progress at the time they were developed.
The updated evaluations in this case revealed material, unaddressed needs that resulted
in new and intensified services—services that, had the Board complied with its reevaluation
obligations, could have been implemented as early as 2018. By relying on evaluative data that
98 ECF No. 55-2 at 323.
28
was three to five years out of date, the Board failed to design IEPs that were responsive to
S.B.’s then-current circumstances, thereby denying him a FAPE during the period at issue.
“The initial procedural inquiry in an IDEA case is no mere formality, as adequate
compliance with the procedures prescribed would in most cases assure much if not all of what
Congress wished in the way of substantive content in an IEP.” L.O., 822 F.3d at 124 (2d Cir.
2016) (cleaned up). The Court’s procedural inquiry has revealed serious deficiencies resulting
in deprivation of a FAPE to S.B. The Court further concludes that the hearing officer’s findings
as to alleged procedural violations of the IDEA by the Board, to the extent they held otherwise,
were erroneous and are reversed.
B. Substantive Violations
As to substantive violations, Plaintiff asserts that the relevant IEPs were not
implemented in a reasonable or proper manner with respect to S.B.’s auditory processing
disorder and his speech and language needs. Thus, Plaintiff argues, these violations resulted in
substantively inadequate IEPs. 99
99 The Court considers the following substantive conclusions made by the hearing officer: • Two: “The Board did not offer [S.B.] a program that would provide him with FAPE for the periods from December 2018 to December 2020 including Extended School Years because it failed to provide [S.B.] with all agreed-on sessions of Speech and Language services in 2020 due to the COVID-19 emergency. Accordingly, compensatory education is awarded in the form of 24 sessions of Speech & Language services.” • Three: “There was no evidence presented to substantiate that FAPE was denied as a result of any claimed failure to evaluate [S.B.].” • Five: “The board did not fail to timely provide [S.B.] with an appropriate accommodation, i.e., an auditory processing device.” • Six: “The Board failed to provide appropriate related services in the form of Speech and Language services, social skills services and counseling services to [S.B.] from February to June, 2020, due to the COVID-19 statewide school closures.”
29
With respect to substantive adequacy, the “IDEA does not require that an IEP furnish
‘every special service necessary to maximize each handicapped child’s potential.’” A.H. ex rel.
J.H. v. Dep’t of Educ., 394 F. App’x 718, 721 (2d Cir. 2010) (quoting Rowley, 458 U.S. at
199). Rather, “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.” Id. (quoting T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d at 254) (cleaned up); see also Cerra v. Pawling
Cent. School Dist., 427 F.3d 186, 195 (2d. Cir. 2005). But it also “cannot be the case that the
[IDEA] typically aims for grade-level advancement for children with disabilities who can be
educated in the regular classroom, but is satisfied with barely more than de minimis progress
for those who cannot.” Endrew F., 580 U.S. at 402. “The IDEA demands more. It requires an
educational program reasonably calculated to enable a child to make progress appropriate in
light of the child’s circumstances.” Id. at 403.
1. Failure to Implement IEP-Designated Services
First, by way of alleging substantive violations of the IDEA, Plaintiff alleges that the
Board failed to properly implement numerous IEPs by failing to provide required speech and
language services contained within those very IEPs.
“[F]ailure to comply with the speech-language therapy provision for students with
autism…constitutes a serious violation of the procedures of the IDEA.” L.O., 822 F.3d at 115.
• Seven: “The Board failed to implement one or more of [S.B.’s IEPs] in the school years 2018–19, 2019–2020, and 2020–2021, including [ESY] programs due to its not providing Speech and Language services to [S.B.] from February to June, 2020.” ECF No. 55-2 at 676–77.
30
“This is because central to the provision of a student’s special education is his or her
communicative functioning, including speech and language instruction.” Id.
Here, the Board failed to meaningfully provide S.B. with speech and language services
for nearly two years, during seventy weeks of instruction. The IEPs spanning those years
reflect continued phonetic deficits which affected S.B.’s reading and communication skills.100
As in L.O., the Board’s omission concerned a service that went to the heart of S.B.’s ability to
communicate and access instruction; the deprivation was not peripheral to his program but
directly undermined his documented areas of need. L.O. dealt with a school district’s failure
to comply with a New York City law that mandated daily speech and language services for
certain children. The Second Circuit’s reasoning therein is even stronger here, when applied
to a school district that acknowledged a student’s need for speech language services, included
these services in the student’s IEP, and then failed to provide them. Thus, the Board’s
substantive violation in failing to provide required speech and language services was a serious
one, depriving S.B. of important educational benefits to which he was entitled by law and thus
depriving him of a FAPE.
The hearing officer in the underlying proceedings acknowledged only that the Board
failed to provide S.B. with the agreed-upon speech and language sessions during the onset of
the COVID-19 emergency. It thus awarded S.B. compensatory education in the form of
twenty-four sessions of speech and language services. However, the Court finds the violation
was not confined to the period surrounding the COVID-19 emergency. To the extent S.B. was
entitled to seventy sessions but only provided with seven during the relevant time period, as
100 See Section I.B.1, supra.
31
Plaintiff alleges, an award of twenty-four such sessions is inadequate, and does not remedy the
substantive violation at hand.
2. Delay in Implementing IEE-Recommended Services
Plaintiff also argues that the Board’s failure to timely implement S.B.’s CAP IEE was
an additional substantive violation resulting in a denial of FAPE to S.B.
A “school must consider an IEE in any decision made with respect to the provision of
FAPE to the child, 34 C.F.R. § 300.502(c)(1).” D.S., 975 F.3d at 157–58 (cleaned up and
emphasis added). Where a district becomes aware of a new evaluation identifying additional
disabilities and recommending corresponding classification but fails to update the student’s
IEP to reflect that information or otherwise incorporate the evaluator’s findings, the district
denies the student a FAPE because the IEP is not based on current, accurate evaluative data
and does not address all of the student’s identified needs. See Avaras, 2017 WL 3037402, at
*21 (finding that where a school district became aware of an evaluation that reflected
additional disabilities while designing an IEP and did not update the IEP to incorporate said
evaluation, this rendered the IEP deficient); See also D.S. ex rel. Clarenore S. v. Dep’t of Educ.,
Hawai’i, No. 12-CV-533, 2013 WL 6047200, at *3, 5 (D. Haw. Nov. 14, 2013) (where a school
district developed IEPs but failed to “consider the most recent information available,” “that
[s]tudent was denied a FAPE…”).
“[T]he IDEA does not require a school district to provide a specific program or employ
a specific methodology in providing for the education of children with disabilities.” H.C. v.
Katonah-Lewisboro Union Free Sch. Dist., No. 09-CV-10563, 2012 WL 2708394, at *16
(S.D.N.Y. May 24, 2012), aff’d sub nom. H.C. ex rel. M.C. v. Katonah–Lewisboro Union Free
Sch. Dist., 528 F. App’x 64 (2d Cir. 2013); see A.H. 394 F. App’x at 721 (“IDEA does not
32
require that an IEP furnish every special service necessary to maximize each handicapped
child’s potential.”). “A school district does not fail to provide a child with a FAPE simply
because it employs one assistive technology over another, so long as the technology employed
is reasonably calculated to permit the child to receive educational benefits.” L.J.B. v. N.
Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 (S.D.N.Y. 2023) (quoting H.C., 528 F.
App’x at 67).
As recounted above, S.B.’s central auditory processing IEE was finally completed in
February 2020. The CAP IEE concluded that S.B. continued to exhibit a central auditory
processing disorder, first diagnosed in 2013, with deficits in phonological processing, short-
term memory, and auditory and temporal processing, and recommended targeted auditory
processing intervention, specialized, and classroom supports. The speech-language IEE,
conducted contemporaneously, likewise identified significant expressive, receptive, and
social-pragmatic language deficits and recommended substantially increased speech-language
therapy, structured social skills instruction, and additional auditory processing intervention to
address the impact of these deficits on S.B.’s academic and social functioning.
Shortly after the IEEs occurred, COVID-19 hit. As a result, a PPT meeting for S.B.
originally scheduled for March 24, 2020 was cancelled and not held until June 30, 2020.
Although the CAP and speech and language IEEs both concluded that S.B. required auditory
processing services, the Board repeatedly denied those services at PPT meetings in June,
August, and October 2020, citing a lack of information about the services. The Board delayed
implementing the services into S.B.’s IEP until January 2021—almost a year after the IEE was
completed.
33
The Board argues that it did not ignore the February 2020 CAP IEE but instead sought
additional information from Dr. Geffner and Dr. D’Souza before incorporating auditory
processing services into S.B.’s IEP. The record does reflect repeated statements, at the June,
August, and October 2020 PPT meetings, that the Board required more information before
acting. The Board’s claim that it needed more information, however, is unpersuasive, as it
failed to articulate what information was lacking or why it took eleven months to act, all while
being aware of S.B.’s documented difficulties. It failed to do so—the Court notes—even when
V.B. repeatedly inquired as to what information the Board was missing to make its decision.
This inaction is especially unreasonable given that the Board was on notice of S.B.’s auditory
processing difficulties as early as 2013.
The IDEA requires a district to meaningfully consider an IEE in decisions regarding
FAPE. See D.S., 975 F.3d at 157–58. Here, the CAP IEE confirmed a long-standing auditory
processing disorder and recommended specific services, and by October 2020, the Board had
before it consistent written recommendations as to next steps. Yet, three successive IEPs
omitted any auditory processing intervention, without identifying alternative supports to
address that need. S.B.’s auditory processing deficits directly affected his phonological
processing, reading fluency, and communication—areas repeatedly noted in his IEPs as
ongoing concerns. By declining to implement targeted auditory processing intervention, the
Board left those deficits unaddressed, thereby impeding S.B.’s ability to access instruction and
make appropriate progress. The omission therefore resulted in a substantive denial of FAPE
during the period in which those IEPs were in effect.
34
For the foregoing reasons, the Court concludes that the Board committed substantive
violations of the IDEA which denied S.B. a FAPE. The hearing officer’s conclusions, to the
extent they found otherwise, were erroneous. The Court thus reverses these conclusions.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Summary Judgment
and DENIES Defendant’s Motion for Summary Judgment. This case is REMANDED for
further proceedings consistent with the determinations made in this order. Specifically, on
remand, the hearing officer shall determine the proper remedy consistent with the Court’s
adjudication that there were procedural and substantive violations of the IDEA in S.B.’s case.
The Clerk is directed to enter judgment in favor of Plaintiff and close this case.
SO ORDERED.
Hartford, Connecticut March 30, 2026
/s/Vernon D. Oliver VERNON D. OLIVER United States District Judge
35