UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
M.K., by and through his Mother : and Next Friend, MRS. K.,
Plaintiffs,
vs. No. 3:96cv00482(WIG)
THEODORE SERGI, et al.,
Defendants.
-----------------------------------X
RULING ON DEFENDANT SERGI’S MOTION FOR SUMMARY JUDGMENT [# 231]1
Mrs. K., on behalf of and as next friend of her son, M.K.,
(collectively “plaintiffs”), has brought this action alleging
that the defendants violated the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, the Americans
With Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et
seq., § 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794, and her rights under the Due Process Clause of the
Fourteenth Amendment to United States Constitution, made
actionable under 42 U.S.C. § 1983. Named as defendants are
Theodore Sergi, the former DOE Commissioner, who is sued in his
official and individual capacities; Darlene Dunbar, the
Commissioner of the Connecticut Department of Children and
1 The original motion for summary judgment [Doc. # 226] was superceded by a corrected motion for summary judgment [Doc. # 231].
1
Families (“DCF”); Karl Kemper, the Regional Administrator for the
Eastern Region of DCF; Carissa Lebrun, Kemper’s subordinate; the
Putnam Board of Education (“Putnam”); John Shea, the former
Director of Student Services for Putnam; and Patricia Kline, his
successor.
Plaintiffs’ consolidated complaint2 sets forth seven counts.
The first count alleges that, as prevailing parties in the
special education due process proceedings, plaintiffs are
entitled, under 20 U.S.C. § 1415, to an award of attorney’s fees
and costs against Putnam and DCF. The second count appeals
certain aspects of the hearing officer’s decisions in the due
process proceedings, No. 03-087 and No. 95-353. Plaintiffs’
third, fourth, fifth, and seventh counts are expressly directed
at defendants other than defendant Sergi. The sixth count, the
only count directed at the DOE Commissioner, alleges that
defendant Sergi violated M.K.’s rights secured by the IDEA by
failing to put in place a hearing process that would enable
hearing officers to enter orders against state agencies, such as
DCF, which provide services that might impact the provision of a
free appropriate public education (“FAPE”) under the IDEA.3
2 Plaintiffs’ complaint has been amended four times since 1996, culminating in the last complaint filed November 18, 2003, which the parties refer to as the “consolidated complaint.” 3 A “free appropriate public education” is defined as:
special education and related services that –
2
(Consol. Compl. ¶ 137.) More specifically, plaintiffs allege
that at all times relevant to the complaint, defendant Sergi was
aware that hearing officers were not joining other state
agencies, such as DCF, in hearings under the IDEA and were not
entering orders requiring the provision of community residential
and professional services necessary for a child to benefit from a
FAPE. (Id. at ¶ 7.) On information and belief, plaintiffs allege
that despite defendant Sergi’s awareness that M.K. claimed that
he had been unable to live in his home community of Putnam and
attend the local Putnam schools because neither DCF nor Putnam
would provide the necessary services, Sergi failed to act to
provide these individualized services or to put in place an
administrative process that would enable individuals, such as
M.K., to obtain this relief through the administrative hearing
process. (Id.)
Most of plaintiffs’ prayers for relief are directed at all
defendants generally. As to defendant Sergi, plaintiffs ask the
(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(9); see also 34 C.F.R. § 300.17.
3
Court to enter an injunction permanently requiring him
to establish such safeguards as will enable parents of disabled children to join state agencies and local school boards in a single IDEA hearing in which the hearing officer has the authority to order the respondents to provide appropriate relief under the IDEA or the ADA.
(Id. at 45, ¶ 8.)
Defendant Sergi has moved for summary judgment in this case
on the grounds that he is not a proper defendant to this special
education appeal and that Connecticut’s special education due
process hearing system fully complies with all applicable legal
requirements of the IDEA. For the reasons discussed below, the
Court finds that Sergi was properly named as a defendant in Count
VI, which raises a systemic challenge to the hearing process
established by DOE. The Court finds, however, that the hearing
process established by DOE complied with the legal requirements
of the IDEA and, therefore, defendant Sergi is entitled to
summary judgment on plaintiffs’ claims against him.
SUMMARY JUDGMENT STANDARD
The standard governing motions for summary judgment is well-
settled. A motion for summary judgment may not be granted unless
the court determines that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). The court must resolve
all ambiguities and draw all inferences in favor of the
4
non-moving party. Id. at 255. If there is any evidence in the
record from which a reasonable inference could be drawn in favor
of the non-moving party on a material issue of fact, summary
judgment is improper. See Chambers v. TRM Copy Centers Corp., 43
F.3d 29, 37 (2d Cir. 1994).
Summary judgment has been described as the “most pragmatic
procedural mechanism in the Federal Rules for resolving IDEA
actions.” A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 539
(D. Conn. 2002) (internal quotation marks and citations omitted).
The IDEA provides that “[a]ny party aggrieved by the findings and
decision” made by a hearing officer “shall have the right to
bring a civil action with respect to the complaint presented . .
. in a district court of the United States.” 20 U.S.C. §
1415(i)(2)(A). The district court “(i) shall receive the records
of the administrative proceedings; (ii) shall hear additional
evidence at the request of a party; and (iii) bas[e] its decision
on the preponderance of the evidence.” 20 U.S.C. §
1415(i)(2)(B); see 34 C.F.R. § 300.512. The district court must
give “due weight” to the findings and decision of the hearing
officer. See Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458
U.S. 176, 206 (1982). This deference seeks to ensure that
district courts do not “substitute their own notions of sound
educational policy for those of the school authorities which they
review.” Id.; see also Mrs. B. v. Milford Bd. of Educ., 103
5
F.3d 1114, 1120 (2d Cir. 1997). Thus, in reviewing the findings
and decisions of the hearing officer, the Court must afford
deference and due weight to a hearing officer’s findings of fact.
See Lillbask v. Sergi, 193 F. Supp. 2d 503, 508 (D. Conn. 2002).
Legal issues, however, regarding the IDEA, other federal and
state statutes, and due process issues under the United States or
state constitutions are reviewed de novo, the rationale being
that hearing officers do not have greater experience or expertise
than the courts on such matters. See Id.; see also Mrs. B. v.
Milford Bd. of Educ., 103 F.3d at 1122.
FACTUAL BACKGROUND
M.K. was born on August 31, 1985. It is undisputed that he
is a “child with a disability” within the meaning of the IDEA, 20
U.S.C. § 1401(3). (Def.’s Local Rule 56(a)1 St. ¶ 1, admitted by
Pls.) Over the years, M.K. has been diagnosed with a number of
psychological and emotional difficulties, including Attention
Deficit Disorder with Hyperactivity (“ADHD”), Oppositional
Defiant Disorder, and Dysthymic Disorder. (Id. at ¶ 2, admitted
by Pls.)
Early in his school career, M.K. was identified as
“disabled” by his responsible public school system, Putnam.
(Id., admitted by Pls.) At all relevant times – with the
exception of a relatively brief period when M.K. was placed in
Riverview, DCF’s psychiatric hospital for children, which is part
6
of Unified School District # 2 (“U.S.D. #2”) – Putnam has held
planning and placement team meetings (“PPTs”) and has developed
and implemented M.K.’s individualized educational programs
(“IEPs”).4 (Id., admitted by Pls.)5 Since approximately 1990,
M.K. has received a variety of services through Putnam, through
DCF and its contractors, and through a variety of private
facilities and hospitals. (Id. at ¶ 3, admitted by Pls.)
Services provided through DCF have included such things as the
provision of a mentor for M.K., family and individual counseling,
psychiatric hospitalization, respite care, therapeutic foster
care, evaluations and assessments, family team support,
behavioral support and training, and on-call emergency support.
(Id., admitted by Pls.)
Neither Sergi nor DOE has provided any services to M.K. or
4 The IEP has been described by the Second Circuit as “[t]he centerpiece of the IDEA’s educational delivery system.” Murphy v. Arlington Cent. Sch. Dist. Bd. of Ed., 297 F.3d 195, 197 (2d Cir. 2002). It is a written statement developed in a meeting involving a local or State special education representative, the teacher, and the child's parents, that “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.” Honig v. Doe, 484 U.S. 305, 311 (1988); see also 20 U.S.C. § 1414(d)(1)(A) (defining “IEP”). 5 Plaintiffs deny that these PPT meetings held by Putnam complied with the holdings in Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 (2d Cir. 1997), and Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998). That issue, however, is not relevant to this particular motion for summary judgment.
7
to his family, other than the appointment of an independent
special education due process hearing officer, who presided over
both due process hearings that are the subject of this lawsuit.
(Id. at ¶ 5, admitted by Pls.)
M.K. currently resides in an apartment in West Springfield,
Massachusetts, and recently completed all course work required
for graduation from West Springfield High School. (Id. at ¶ 4.)
According to plaintiffs, although M.K. participated in the
graduation ceremonies, he did not receive his diploma and will
not actually “graduate” until the independent consultant
determines that all of M.K.’s goals have been met, including his
transition goals, at which time he will be exited from special
education. (Pls.’ Local Rule 56(a)2 St. ¶ 4; Pls.’ Mem. at 15.)
M.K. continues to receive certain school-to-post-school
transition services through Putnam. (Def.’s Local Rule 56(a)1
St. ¶ 4, admitted by Pls.)
DISCUSSION
I. Count II – Appeal of Hearing Officer’s Decisions
Count II of plaintiffs’ consolidated complaint appeals the
two decisions of the DOE hearing officer. Plaintiffs do not
specifically name any defendants in this count.
Defendant Sergi maintains that he is not a proper party to
plaintiffs’ appeal of the special education due process hearing
officer’s decisions, citing Perreault-Osborne v. New Milford Bd.
8
of Educ., No. 3:01cv1251(EBB), Slip Op. at 5 (D. Conn. Mar. 7,
2002). (Def.’s Mem. at 4.) Plaintiffs do not contest this
point. (Pls.’ Mem. at 2.)
This Court has previously held that neither the Commissioner
of DOE nor DOE is a proper or necessary party to an appeal of a
hearing officer’s decision under the IDEA. See Fetto v. Sergi,
181 F. Supp. 2d 53, 71 (D. Conn. 2001); Perreault-Osborne, Slip
Op. at 5. As this Court held in Fetto, “State Defendants are not
liable for the decision, even though erroneous, on the part of an
independent, impartial hearing officer. Liability may not flow
from decisions over which State Defendants have no control and
cannot legally influence.” 181 F. Supp. 2d at 72 (quoting
Lillbask v. Sergi, 117 F. Supp. 2d at 192 (internal quotation
marks omitted)); see also Renollett v. Minn. Dept. of Educ., No.
Civ. 03-6452, 2004 WL 1576716, at *6 (D. Minn. July 13, 2004);
DeMerchant v. Springfield School Dist., No. 1:05CV316, 2006 WL
2260057, at *2 (D. Vt. Aug. 7, 2006); M.T.V. v. Purdue, No.
Civ.A. 1:03CV0468-CA, 2004 WL 3826047, at *10 (N.D. Ga. Feb. 3,
2004).
Based on these holdings, to the extent that plaintiffs are
attempting to join Sergi as a defendant in their appeal of the
hearing officer’s decisions, this Court holds that Sergi may not
be named as a defendant to these appeals in either his individual
or official capacity. Therefore, summary judgment is granted in
9
favor of defendant Sergi on Count II of plaintiffs’ consolidated
complaint.
II. Count VI - Systemic IDEA Violations in the Hearing Process
On the other hand, this Court has held that the “state
education agency is a proper party to actions involving claims of
systemic violations of the IDEA.” Fetto, 181 F. Supp. 2d at 72;
see also D.D. v. New York City Bd. of Educ., No. CV-03-2489, 2004
WL 633222, at *22 (E.D.N.Y. Mar. 30, 2004), vacated in part on
other grounds, 465 F.3d 503 (2d Cir. 2006). “A systemic claim is
one which ‘implicates the integrity of the IDEA’s dispute
resolution procedures themselves, or requires restructuring of
the education system itself in order to comply with the dictates
of the [IDEA].’” Fetto, 181 F. Supp. 2d at 72 (quoting Mrs. M. v.
Bridgeport Bd. of Educ., 96 F. Supp. 2d 124, 133 n.12 (D. Conn.
2000)). In Count VI, plaintiffs have charged Sergi, as DOE
Commissioner, with failing to establish a hearing process that
would enable hearing officers to enter orders against state
agencies, such as DCF, which provide services that might impact
the provision of a FAPE under the IDEA. (Pls.’ Consol. Compl. ¶
137.) Because this latter claim is of a systemic nature, the
Court finds that Sergi has been properly named as a defendant in
Count VI. See J.B. v. Killingly Bd. of Educ., 990 F. Supp. 57,
69 (D. Conn. 1997) (holding that the Connecticut Department of
Mental Health was a proper party to an action under the IDEA
10
which, in part, challenged the DCF-DMH interagency agreement as
failing to comply with the requirements of the IDEA).
Turning to the substantive merits of Count VI, Sergi argues
that he is entitled to judgment as a matter of law because
Connecticut’s due process hearing procedures fully comply with
the law.6 He maintains that it is not necessary for the due
process hearing officers to join agencies such as DCF as parties
to the IDEA due process hearings since under Connecticut’s
approved system the local education agencies (the “LEAs”) alone
are responsible for providing special education and related
services7 under the IDEA, regardless of whether a state agency,
6 Alternatively, he argues that, to the extent he has been sued in his individual capacity, he is entitled to qualified immunity on plaintiffs’ Count VI. Plaintiffs, however, are not seeking an award of money damages against defendant Sergi and, therefore, this issue of qualified immunity need not be addressed. See Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2003). 7 The term “related services” is defined by the IDEA as
transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpretive services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be
11
such as DCF, has initiated the provision of such services.
(Def.’s Mem. at 5-10.)
Initially, plaintiffs assert that this Court must give “due
weight” to the administrative findings, in which the hearing
officer found that significant problems existed in the
coordination of special education services provided by Putnam and
DCF. In light of these problems, plaintiffs argue that DOE has
not fulfilled its oversight obligations of ensuring that hearing
officers have the authority to issue “appropriate” relief,
including the joinder of DCF as a party to due process hearings,
in cases where both an LEA and DCF provide services necessary to
a FAPE. (Pls.’ Mem. at 4-6, 9.) They assert, “A hearing system
that does not permit a parent to confront and obtain orders
against an agency that is undermining a child’s right to special
education cannot be consistent with 20 U.S.C. § 1415.” (Pls’.
Mem. in Support of Pls.’ Mot. for Summ. Judg. at 72.)
A. The Statutory Scheme
In order to address plaintiffs’ systemic claims challenging
the due process hearing procedures, a brief overview of the
for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.
20 U.S.C. § 1401(26)(A); see also 34 C.F.R. § 300.34.
12
statutory scheme of the IDEA and implementing State statutes is
warranted.
The IDEA is a federal educational statute. Its purpose is,
inter alia, “to ensure that all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for employment and
independent living.” 20 U.S.C. § 1400(d)(1)(A). To achieve that
goal, the IDEA requires states that receive federal funds to
designate a state educational agency (often referred to as an
“SEA”) charged with responsibility for supervising that state’s
compliance with the IDEA, including administering funds, setting
up policies and procedures to ensure local compliance with the
IDEA, and filling in for the LEAs by providing services directly
to students in need where the LEA is either unable or unwilling
to establish and maintain the programs that comply with the IDEA.
20 U.S.C. §§ 1412(a)(11) & (12).
The LEAs are responsible for the direct provision of
services under the IDEA, including the development of an IEP for
each disabled student, the expenditure of IDEA funds to establish
programs in compliance with the IDEA, and the maintenance of
records and information that will enable the State educational
agency to function effectively in its supervisory role under the
IDEA. 20 U.S.C. § 1413.
13
Although the State educational agency’s role is primarily
supervisory, the IDEA places the ultimate responsibility on the
State educational agency for ensuring that the requirements of
the IDEA are met and that “all educational programs for children
with disabilities in the State, including all such programs
administered by any other State or local agency – (I) are under
the general supervision of the individuals in the State who are
responsible for the educational programs for children with
disabilities; and (II) meet the educational standards of the
State educational agency.” 20 U.S.C. § 1412(a)(11)(A)(i) &
(ii)(emphasis added). The statute further states that this
provision shall not limit the responsibility of agencies other
than the State educational agency to provide or pay for some or
all of the costs of a FAPE for any child with a disability. 20
U.S.C. § 1412(a)(11)(B). The legislative history indicates that
this section was included to “assure a single line of
responsibility with regard to the education of handicapped
children.” S. Rep. No. 94-168, at 24 (1975), as reprinted in
1975 U.S.C.C.A.N. 1425, 1448.
The Committee considers the establishment of single agency responsibility for assuring the right to education of all handicapped children of paramount importance. Without this requirement, there is an abdication of responsibility for the education of handicapped children. Presently, in many States, responsibility is divided, depending upon the age of the handicapped child, sources of funding, and type of services
14
delivered. While the Committee understands that different agencies may, in fact, deliver services, the responsibility must remain in a central agency overseeing the education of handicapped children, so that failure to deliver services or the violation of the rights of handicapped children is squarely the responsibility of one agency.
Id.
In order to ensure that all services necessary to a FAPE are
provided, the IDEA requires an interagency agreement or other
mechanism for interagency coordination between the public
agencies described above and the State educational agency. 20
U.S.C. § 1412(a)(12)(A). In addition to a method for defining
the financial responsibility of each agency, the statute requires
the agreement to address the conditions, terms, and procedures
under which the LEA shall be reimbursed by other agencies, 20
U.S.C. § 1412(a)(12)(A)(ii); procedures for resolving interagency
disputes, including a procedure for the LEAs to initiate
proceedings to secure reimbursement from other agencies or
otherwise implement the provisions of the agreement, 20 U.S.C. §
1412(a)(12)(A)(iii); and policies and procedures for agencies to
determine and identify the interagency coordination of
responsibilities of each agency and to promote the coordination
and timely and appropriate delivery of services. 20 U.S.C. §
1412(a)(12)(A)(iv).
In terms of the obligations of public agencies other than
the LEAs, the statute provides that if any public agency is
15
obligated under state or federal law, or assigned responsibility
under state policy or pursuant to an interagency agreement, to
provide or pay for any services that are also considered special
education or related services that are necessary to ensure the
provision of a FAPE to a child with a disability, such public
agency shall fulfill that obligation “either directly or through
contract or other arrangement.” 20 U.S.C. § 1412(a)(12)(B)(i).
If that public agency fails to provide or pay for the special
education and related services, the LEA shall provide or pay for
them and then seek reimbursement from the public agency that
failed or refused to provide or pay for such services. 20 U.S.C.
§ 1412(a)(12)(B)(ii). The public agency shall then reimburse the
LEA pursuant to the terms of the interagency agreement, according
to the procedures established in that agreement. Id. These
requirements can be met through a state statute or regulation or
a signed agreement between the respective agency officials, or
other appropriate written method. 20 U.S.C. § 1412(a)(12)(C).
The IDEA also contains a comprehensive set of procedural
safeguards. 20 U.S.C. § 1415. It requires the State educational
agency or LEA that receives federal funding to establish and
maintain procedures in accordance with this section “to ensure
that children with disabilities and their parents are guaranteed
procedural safeguards with respect to the provision of a free
appropriate public education by such agencies.” 20 U.S.C. §
16
1415(a).
Relevant to this action are the requirements concerning a
due process hearing. The State educational agency or LEA must
put in place procedures that include an opportunity for a parent
to present a complaint “with respect to 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.” 20 U.S.C. § 1415(b)(6); see also 34 C.F.R. §
300.508. After notice to the State educational agency or LEA of
a complaint, the statute requires that the parents must have the
opportunity for an impartial due process hearing, conducted by an
independent hearing officer who is not an employee of the State
educational agency or the LEA which is involved in the education
or care of the child. 20 U.S.C. § 1415(f)(3). Any party
aggrieved by the findings and decision made at the due process
hearing may bring a civil action in any State court of competent
jurisdiction or in a United States district court, without regard
to the amount in controversy. 20 U.S.C. § 1415(i)(2)(A).
In Connecticut, the State Board of Education has been
designated by statute as the State coordinating agency.8
(a) The State Board of Education shall provide for the development and supervision of the educational programs and services for children
8 The State Board of Education has promulgated regulations implementing the laws concerning children requiring special education. See Conn. Agencies Regs. §§ 10-76a-1, et seq.
17
requiring special education9 . . .
(c) Said board shall be the agency for cooperation and consultation with federal agencies, other state agencies and private bodies on matters of public school education of children requiring special education, provided the full responsibilities for other aspects of the care of such children shall be reserved for such agencies.
Conn. Gen. Stat. § 10-76b (emphasis added). The state statute
then places responsibility on the local or regional boards of
education to provide the professional services necessary to
identify school-age children requiring special education, to
prescribe suitable educational programs for eligible children,
and to provide special education for those children. Conn. Gen.
Stat. §§ 10-76d(a)(1), (b). To meet its statutory obligations,
the local or regional board of education may make arrangements
with another board, private school, or public or private agency
9 “Special education” is defined by statute as
specially designed instruction developed in accordance with the regulations of the commissioner, subject to approval by the State Board of Education offered at no cost to parents or guardians, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings and instruction in physical education and special classes, programs or services, including related services, designed to meet the educational needs of exceptional children.
Conn. Gen. Stat. § 10-76a(4). The statute further defines “child” as any person under the age of twenty-one. Conn. Gen. Stat. § 10-76a(2).
18
or institution, including a group home, to provide the necessary
programs or services. Conn. Gen. Stat. § 10-76d(d); Conn.
Agencies Regs. § 10-76d-1. If a public agency, other than a
local or regional board of education, the State DOE, or the
Superior Court, places a child in a foster home, a hospital, or
any other residential or day treatment facility, and such child
requires special education, the local or regional board of
education under whose jurisdiction the child would otherwise be
attending school must provide the special education and related
services and is responsible for the costs thereof. Conn. Gen.
Stat. § 10-76d(e)(2).
In Connecticut, the State Plan includes, inter alia, an
interagency agreement between DOE and DCF (Pls.’ Ex. 4,
Interagency Agreement Between Connecticut State Department of
Education and the Department of Children & Families § A),10 which
sets forth the circumstances under which DCF assumes the
responsibilities of the LEA under the IDEA. These are generally
limited to children residing within a DCF facility and attending
one of the schools in Unified School District # 2. See Fetto,
10 Under the interagency agreement between DOE and DCF, a child residing within a DCF facility and whose needs require that his or her educational program be provided within that facility on either a full-time or part-time basis is within the jurisdiction of Unified School District #2 (U.S.D. #2). U.S.D. #2 is responsible for the cost of educational services provided to children within the facility. The agreement also provides for coordination between the LEA and DCF in terms of educational planning when non-educational residential placements are made.
19
181 F. Supp. 2d at 69. “However, apart from children in its
residential facilities, DCF does not have ultimate responsibility
under the IDEA for the education of other children simply because
it provides certain services to them.” Id. at 70. Generally,
other than those situations where a student is enrolled in a
unified school district, the LEA is responsible under the IDEA
for providing a student with disabilities with a FAPE. Id.
The State statute further provides for special education
hearing and review procedures. A parent or guardian of a child
requiring special education may request in writing a hearing
whenever the local board or district responsible for providing
special education services refuses to initiate or change the
educational placement or provision of a FAPE. Conn. Gen. Stat. §
10-76h(a)(1); Conn. Agencies Regs. §§ 10-76h-2(a), 10-76h-3(a).
Additionally, the Commissioner of DCF or a “public agency”11 may
request a hearing. Conn. Agencies Regs. §§ 10-76h-2(b), (c).
Upon receipt of a request for a hearing, the State DOE appoints
an impartial hearing officer, Conn. Gen. Stat. § 10-76h(c)(1),
who will hear testimony relevant to the issues in dispute. Conn.
Gen. Stat. § 10-76h(c)(3). The party who requested the due
11 “Public agency” is defined by the regulations as “a local or regional board of education, the state vocational- technical school system, a unified school district, or the Department of Mental Health and Addiction Services or any other state agency to the extent such agency is responsible for the provision of special education and related services to children eligible for such services.” Conn. Agencies Regs. § 10-76h-1(j).
20
process hearing has the burden of going forward with the
evidence, although the public agency always has the burden of
proving the appropriateness of the child’s placement or program.
Conn. Agencies Regs. § 10-76h-14.
The hearing officer has the authority, inter alia, to
confirm, modify, or reject the identification, evaluation, or
educational placement or the provision of a FAPE to a child or to
prescribe alternate special educational programs for the child.
Conn. Gen. Stat. § 10-76h(d)(1). Neither the state statute nor
the regulations address the hearing officer’s jurisdiction over
other agencies, such as DCF, in a due process hearing.
The hearing officer must then, in writing, inform the
parents or guardians and the LEA of his or her decision. Id. If
the LEA does not take action on the findings or prescriptions of
the hearing officer within fifteen days, the State DOE must take
appropriate action to enforce the findings or prescriptions of
the hearing officer. Conn. Gen. Stat. § 10-76h(d)(2). Appeals
from the decision of the hearing officer may then be taken to the
State Superior Court pursuant to Conn. Gen. Stat. § 4-183 or to
the federal district court. Conn. Gen. Stat. § 10-76h(d)(4);
Conn. Agencies Regs. § 10-76h-16(a).
B. The Due Process Hearing Decisions and Orders
In this case, two due process hearings were held. The first
hearing in 1995, held at a time when M.K. was residing in DCF’s
21
Unified School District #2, addressed the issues of (1) whether
Putnam and/or DCF were responsible for providing certain services
to M.K. in the home, school, and community, including but not
limited to an in-home mentor, 24-hour on-call crisis response
personnel, case management, an inter-agency family team, respite
care, and individual and family therapy; (2) whether the hearing
officer had jurisdiction over DCF with regard to the provision of
such services; and (3) whether Putnam provided a FAPE in the
least restrictive environment. Plaintiffs moved to join DOE and
DCF as parties, and Putnam also moved to add DCF as a party to
the hearing. The hearing officer ultimately joined DCF as a
party but refused to join DOE. The hearing lasted twelve days,
following which the hearing officer rendered her final decision
and order.
Relevant to this motion are her findings that:
(1) she had limited jurisdiction over DCF, i.e. when DCF had
M.K. under its supervision and when it provided services that
impacted upon or interfered with M.K.’s ability to benefit from
his special education (Final Decision & Order 95-353, Concl. of
Law ¶ 20);
(2) although DCF was serving as the LEA while M.K. was in
Unified School District #2, certain services provided by DCF were
not “related services” for purposes of the IDEA and, therefore,
were beyond the authority of the hearing officer to order (Id. at
22
¶ 23.) Specifically, a 24-hour crisis plan with an on-call
person for in-home support, respite care for the family, and an
in-home mentor were not related educational services (Id.);
(3) that she did not have the authority to order DCF to make
changes to its policy regarding the time-limits on intensive in-
home services (Id. at ¶ 25); and
(4) that she did not have the authority over decision-making
in a psychiatric hospital concerning whether to use mechanical
restraints and locked seclusion (Id. at ¶ 26.)
The hearing officer did order DCF to provide on-going
representation to Putnam’s PPTs to ensure that there was
consistency and non-duplication of services between home and
school. DCF was also ordered to cooperate and provide input to
the PPT in planning for M.K.’s transition back to the Putnam
school district. (Final Decision & Order 95-353, Decision & Order
¶ 1.) Additionally, she ordered Putnam to send a representative
to M.K.’s family team or such other DCF-constituted team to
maintain communication and consistency between the home and
school. (Id. at ¶ 2.)
In 2003, the same hearing officer held a second hearing at
the request of Mrs. K. Prior to the hearing, Mrs. K. had moved
for an order joining DCF as a party. The motion was argued on
23
the record12 and DCF was joined as a party. (Pls.’ Ex. 1,
Hearing Transcript(sealed).) DCF ultimately sent a letter to the
hearing officer refusing to participate in the hearing. At the
time of the hearing, M.K. was approaching his eighteenth birthday
and had been living in a therapeutic foster placement in West
Springfield, Massachusetts, for three years. This placement,
along with therapy and other support services, had been funded by
DCF, which planned to withdraw all funding and support services
on M.K.’s eighteenth birthday. The services provided by DCF to
M.K. were also the subject of a probate court order, which
required DCF to continue the provision of services or placement
and reunification efforts until M.K.’s eighteenth birthday and to
develop, with the parent and child, a school-to-work transition
plan. (Final Decision & Order 03-087, Findings of Fact ¶ 28.)
In this second hearing, the hearing officer found that
Putnam had not provided the appropriate transition services for
M.K. to move from high school to post-high school life. (Final
Decision & Order 03-087, Conclusions of Law ¶ 8.) She outlined
the transition services that needed to be provided at least
through the 2003-04 school year. (Id. at ¶¶ 11-12.) With
respect to DCF, she concluded that, because she had jurisdiction
under Conn. Gen. Stat. § 10-76h(d)(1) to determine whether a FAPE
12 DCF argued that it had been involved with M.K. not because of educational issues but instead because it was not appropriate for him to live in his home environment. (Tr. at 11.)
24
had been provided, she had limited jurisdiction over DCF because
the services it had been providing for many years had affected
M.K.’s ability to receive a FAPE, and because DCF had been
ordered by the Probate Judge to develop a transition plan, which
is part of a FAPE. (Id. at ¶ 16.) She then ordered DCF to
coordinate its school-to-work transition plan with that of the
school district to ensure consistency, non-duplication of
services, and, ideally, a more appropriate and comprehensive
plan. (Id. at ¶ 17.) Additionally, once DCF ceased funding
services provided to M.K. after his eighteenth birthday, she
ordered the school district to provide transition services, which
she found were properly the responsibility of the school
district. See 20 U.S.C. § 1414(d)(5).13
Mrs. K. also requested that the hearing officer issue an
order prohibiting DCF from terminating the services that were
then being provided to M.K. The hearing officer held that she
did not have jurisdiction to issue an order concerning DCF’s
provision of services other than to the extent that she had
already ordered DCF to cooperate with the school district
concerning transition planning. As to any other area of service,
13 The IDEA, 20 U.S.C. § 1414(d)(5), provides that if a participating agency, other than the LEA, fails to provide the transition services, the LEA must reconvene the IEP (“individualized education program”) team to identify alternative strategies to meet the transition objectives for the child set forth in his or her IEP.
25
she stated that an “[a]ppeal must be made directly to DCF through
their own hearing procedures.” (Id. at ¶ 20.)
C. The Hearing Officer’s Jurisdiction Over DCF and Other State Agencies
Apparently frustrated by what plaintiffs perceive to be a
lack of coordination in the special education services being
provided to M.K. by Putnam and DCF, plaintiffs have asked this
Court to order DOE to put in place a hearing process whereby the
hearing officer can enter orders against State agencies such as
DCF where the services provided by the State agency might impact
the provision of a FAPE.14
The Supreme Court has held that “a court’s inquiry in suits
brought under § 1415(e)(2) [now § 1415(i)(2)] is twofold. First,
has the State complied with the procedures set forth in the Act?
And second, is the individualized educational program developed
through the Act’s procedures reasonably calculated to enable the
child to receive educational benefits? If those requirements are
met, the State has complied with the obligations imposed by
Congress and the courts can require no more.” Rowley, 458 U.S.
at 206-07 (footnotes omitted). The Supreme Court, emphasizing
14 This is the relief sought in Count VI (Pls.’ Consol. Compl. ¶ 137.) In their prayer for relief, plaintiffs’ request is significantly broader. They seek an order requiring DOE to establish procedures that will enable parents to join state agencies and LEAs in a single due process hearing “in which the hearing officer has the authority to order the respondents to provide appropriate relief under the IDEA and ADA.” (Pls.’ Consol. Compl. Relief ¶ 8.)
26
the importance Congress placed on “procedural safeguards” in the
IDEA, held that with respect to the first prong of inquiry, the
reviewing court must satisfy itself that the State has adopted
the state plan, policies, and assurances required by the Act, as
well as an IEP for the child in question which conforms with the
requirements of the Act. Id. at 206 n.27. Plaintiffs’ claim
against defendant Sergi implicates the first prong, that is,
whether the State has adopted hearing procedures that comply with
the requirements of the IDEA.
Plaintiffs argue that DOE has not fulfilled its oversight
responsibilities with respect to the IDEA hearing process, citing
the provisions of the IDEA, 20 U.S.C. § 1412(a)(12)(A) and
(B)(i), which require DOE to establish through “interagency
agreements or other mechanism for interagency cooperation” a
procedure to ensure that the services necessary for a FAPE are
provided and the procedures to resolve disputes over payment for
such services. (Id. at 7.) Defendant, relying primarily on
three decisions, Fetto v. Sergi, 181 F. Supp. 2d 53 (D. Conn.
2001), Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114 (2d Cir.
1997), and Naugatuck Bd. of Educ. v. Mrs. D., 10 F. Supp. 2d 170
(D. Conn. 1998), argues that under Connecticut’s approved IDEA
system, the locus of responsibility for full compliance with the
special education laws rests with the LEA and, thus, it is not
necessary for the other state agencies to be joined in the due
27
process hearings in order to fully vindicate a disabled student’s
rights under the IDEA. Rather, parents and students need only
pursue one respondent, their LEA. In its reply brief, defendant
asserts somewhat inconsistently that the hearing officer’s
assertion of limited jurisdiction over DCF was in keeping with
these decisions.
Initially, the Court would note that the “due weight” that a
reviewing court must ordinarily give to a hearing officer’s
findings is not implicated here, for plaintiffs’ claim concerns a
question of law; namely, whether the hearing process put in place
by DOE comports with the requirements of the IDEA. See Mrs. B.
v. Milford Bd. of Educ., 103 F.3d at 1122.
From a practical standpoint, plaintiffs’ position has much
appeal, for it would allow a hearing officer to assert
jurisdiction over any and all state or local agencies providing
services that impact a disabled student’s ability to receive a
FAPE. As the hearing officer discussed, the needs of children
requiring special education services are not neatly
compartmentalized into educational and non-educational needs, nor
do the responsibilities of the local school board (the LEA) and
DCF start and stop precisely at the doors to the student’s school
and home. Thus, the joinder in one hearing of all agencies
providing services to a child that in any way impacted his or her
ability to receive a FAPE would seem to promote judicial economy
28
and would allow a hearing officer to provide all-encompassing
relief.
However, as appealing as that solution sounds from the
standpoint of overall efficiency, it ignores the fact that there
is nothing in the state or federal legislation that gives the
hearing officers jurisdiction over non-educational state or local
agencies, except to the limited extent that they are acting as
the LEA. Additionally, plaintiffs’ approach thwarts the
Congressional purpose of having one local educational agency
responsible for providing an appropriate special educational
program even when a child’s educational, social, and emotional
problems are intertwined.
In Fetto, which defendant claims “most closely tracks the
factual and legal issues in this case,” (Def.’s Mem. at 8), the
plaintiff asserted claims against both DOE and DCF. As to DOE,
the plaintiff sought, inter alia, an order directing DOE to
establish procedures to provide students in an IDEA
administrative action with the ability to join in the action any
state agency that might have the responsibility under the IDEA to
provide educational services. Id. The Court (Droney, D.J.)
found that the plaintiff’s claims challenging DOE procedures were
moot since the plaintiff, who was twenty-two years of age, had
aged out of the State’s special education system. Id. at 67. As
to the plaintiff’s claim that DCF had violated the IDEA by
29
failing to provide him with certain services in the “least
restrictive environment,” by retaliating against him for filing
an administrative due process proceeding, and by failing to
participate in the PPT meetings, the Court upheld the hearing
officer’s dismissal of DCF as a party. The Court found that the
interagency agreement between DOE and DCF set forth the
circumstances under which DCF assumed the responsibilities of the
LEAs under the IDEA, which “[w]ith respect to the DCF, . . . are
limited to situations where a child attends one of the schools
that comprise USD # 2, which . . . included, [inter alia], . . .
Riverview Hospital.” Id. at 70. “However, apart from children
in its residential facilities, the DCF does not have ultimate
responsibility under the IDEA for the education of other children
simply because it provides certain services to them.” Id.
“Other than those situations where a child is enrolled in one of
the unified school districts, the school system in the town where
the child resides [the LEA] is responsible for providing a
disabled child with a free and appropriate education under the
IDEA.” Id.
Although it was not clear to the Court whether the services
provided by DCF were “related services” that must be provided
under the IDEA, the Court held that, even if they were “related
services,” DCF did not provide these services to the plaintiff in
discharge of any duties imposed on it by the IDEA. Id. at 70.
30
Moreover, the Court held
the fact that the DCF has some [state] statutory responsibility to provide home-based services to children faced with being placed in a residential facility does not necessarily lead to liability under the IDEA, a statute enacted to assure that children with disabilities receive a free and appropriate education.
Id. The Court noted that the plaintiff had not cited to any
precedent holding that the IDEA should be extended to hold
agencies and other organizations which provide related services
ultimately responsible as LEAs under the IDEA, nor did the Court
find the language of the IDEA itself to support such a
proposition. Id. at 70-71.
Finally, the Court held that the fact that DCF arranged for
services that impacted upon the plaintiff’s educational
performance did not result in its being responsible for the
child’s education under the IDEA.
Even if some of the services provided by the DCF would also qualify as “related services” under the IDEA, the fact that the DCF provided them does not make the DCF the LEA for the plaintiff, even though the [LEA] may have benefitted because it did not need to provide the services directly. Doing so would burden the DCF with the financial responsibility for providing an appropriate education to children assisted by its programs. It also may discourage state agencies like the DCF from providing support services for children whose education is subject to the IDEA.
Id. at 71.
31
Accordingly, the Court held that DCF did not violate the
plaintiff’s rights under the IDEA by refusing to provide certain
requested services, nor could it be liable under the IDEA for
providing “related services” to the plaintiff. Id. Thus, the
Court held that DCF was not a proper party to the due process
hearing and upheld the hearing officer’s dismissal of DCF as a
party. Id. In so doing, the Court noted that the dismissal of
DCF did not leave a plaintiff, who believes that the related
services provided by DCF are deficient, without a remedy. He
could pursue his remedies against his LEA, which is “ultimately
responsible for compliance with the IDEA, including assuring that
the related services are appropriate and properly delivered.”
Id.
Thus, relevant to the issues presented in this case are the
Court’s holdings in Fetto that (1) even if the services being
provided by a state agency are considered “related services,”
that does not render the state agency liable as an LEA under the
IDEA, since the responsibility for those related services lies
with the LEA; (2) a plaintiff who believes his related services
are deficient should pursue his remedies against his LEA, not the
state agency providing these services, since it is his LEA that
bears ultimate responsibility for compliance with the IDEA; (3)
the fact that DCF or another state agency may have some state
statutory responsibility to provide home-based services to
32
children being faced with placement in a residential facility
does not necessarily lead to liability under the IDEA; and (4)
the fact that a state agency arranged for services that impacted
a child’s educational performance and abilities does not result
in its being responsible for the child’s education under the
IDEA.
The other two cases cited by defendant, Naugatuck Bd. of
Educ. and Mrs. B., underscore the breadth of the local school
board’s responsibility under the IDEA in insuring that a child
receives a FAPE.
In Naugatuck Bd. of Educ. v. Mrs. D., 10 F. Supp. 2d 170,
179 (D. Conn. 1998), this Court (Nevas, D.J.) found that, despite
the fact that the child’s residential placement had been
initiated by DCF for non-educational reasons, Naugatuck, as the
LEA, was responsible for providing the child with a FAPE under
the IDEA. Naugatuck argued that it had provided the child with
adequate educational services, including intermittent residential
placements, until DCF placed the child in a residential facility
for non-educational reasons, for which DCF should bear the non-
educational costs of such a placement. Id. The Court disagreed,
reasoning that “DCF’s involvement in [the child’s] residential
placement does not lessen [the LEA’s] responsibilities under the
IDEA.” Id. The Court noted that this was a case where the
child’s emotional and educational problems intersected. Id. at
33
180-81. While the child’s academic problems were not serious,
his social and emotional problems were severe and qualified as
educational needs which warranted residential placement. Id. at
181. Thus, the Court held that the child’s “residential
placement was a necessary component of his special education
instruction,” for which the LEA was responsible. Id.
Significantly, in Naugatuck, the hearing officer had refused to
join DCF as a party to the due process hearing on the ground that
it could resolve the issues without requiring DCF’s
participation. Id. at 176.
Likewise, in Mrs. B. v. Milford Board of Educ., 103 F.3d
1114 (2d Cir. 1997), the Second Circuit emphasized the overall
responsibility of the LEA for the costs of a disabled child’s
residential placement even though the child had been placed in
the residential facility by the Department of Child and Youth
Services (“DCYS”) (the predecessor to DCF) for non-educational
reasons. The Second Circuit observed that the IDEA “clearly
contemplates the need for the support services provided by such
[residential] programs in some circumstances.” Id. at 1122; see
34 C.F.R. § 300.302. The critical issue, the Court held, in
determining whether a school district must fund the residential
placement, is “whether the child requires the residential
placement to receive educational benefit.” Id. The Court held
that, once it was determined that the residential placement was
34
necessary for the child’s educational progress, the LEA was
responsible for funding the placement, even though the child had
been placed there for non-educational reasons. Id. The Second
Circuit noted that “[t]he fact that a residential placement may
be required to alter a child’s regressive behavior at home as
well as within the classroom, or is required due primarily to
emotional problems, does not relieve the state15 of its
obligation to pay for the program under federal law so long as it
is necessary to insure that the child can be properly educated.”
Id.
In the instant case, like Fetto, the interagency agreement
between DOE and DCF, which has been approved by the United States
Department of Education,16 defines the circumstances under which
15 As the Court in Naugatuck Bd. of Educ. noted, 10 F. Supp. 2d at 180, n.14, this reference to “state” obviously referred to the defendants Milford Board of Education and the Milford Public Schools and not to the State of Connecticut. 16 The Court in Fetto found “highly persuasive” the fact that the State Plan had been approved by the United States Department of Education. 181 F. Supp. 2d at 73. The Court concluded that the Connecticut DOE
need not develop specific rules and procedures requiring the DCF (as an LEA) to provide services for children in public school where the DCF is not responsible for providing such children with an appropriate education. The fact that the state’s plan does not include an interagency agreement for students like the plaintiff who have not been placed in a residential facility does not violate the IDEA or its accompanying regulations, and the state has complied with
35
DCF acts as an LEA. Those circumstances are not implicated in
either of the due process hearings at issue in this case. The
agreement also provides for coordination between the LEA and DCF
in terms of educational planning when non-educational residential
placements are made. However, under the IDEA, it is the LEA that
bears ultimate responsibility for identifying children requiring
special education, prescribing appropriate educational programs
for these children, and providing those special education
services. Although there are instances when non-educational
agencies, such as DCF, will provide related services impacting on
the child’s ability to receive a FAPE, it is the LEA that is
responsible for a child’s special education needs, and it is the
LEA against which plaintiffs must pursue their remedies, not DCF.
Therefore, there was no error in DOE’s failing to develop
procedures for plaintiffs to join agencies like DCF in due
process hearings.
Except in those instances in which DCF acts as the LEA, the
the mandates of the federal law.
Id. at 73. The Court noted that it was not the State’s responsibility to develop interagency agreements to assure that students are kept out of residential facilities. Id. at 74. “The state’s responsibility is to assure that children receive a ‘free appropriate education’ through LEA’s, and to the extent possible, one in the least restrictive environment. This does not require the state to always seek to prevent children from being placed in residential facilities, when such a placement is otherwise appropriate.” Id.
36
proper respondent in a due process hearing is the local school
board, the plaintiff’s LEA, not DCF, even though DCF may be
providing services that impact on the provision of a FAPE.
In this case, the hearing officer’s first decision was
issued at a time when M.K. was under DCF’s supervision in Unified
School District #2. She appropriately asserted limited
jurisdiction over DCF to the extent that DCF was acting as the
LEA in providing educational services as part of M.K.’s
residential placement in Unified School District #2. (Final
Decision & Order 95-353, Concl. of Law ¶ 20.) However, at all
other times when Putnam was serving as the LEA, including at the
time of the second due process hearing, the hearing officer had
no authority to join DCF as a party to the due process hearing.
Plaintiffs’ request that the Court order DOE to put in place
a hearing process that would enable hearing officers to join any
state agency which provide services that “might impact the
provision of a free appropriate public education to a child
identified as in need of special education and related services
under the IDEA” would extend the hearing officer’s jurisdiction
to matters far beyond the reach of the IDEA (Pls.’ Consol. Compl.
¶ 137)(emphasis added); see New Hampshire Dep’t of Educ. v. City
of Manchester, Civil No. 94-573-M (D.N.H. Mar. 21, 1996) (Slip
Op.); but see J.B. v. Killingly Bd. of Educ., 990 F. Supp. at 67
(holding that the Department of Mental Health was a proper party
37
to an action under the IDEA). Thus, the Court finds that
plaintiffs are not entitled to the relief sought in Count VI
against defendant Sergi or DOE, and grants summary judgment in
favor of defendant Sergi as to Count VI.
CONCLUSION
For the reasons set forth above, defendant Sergi’s Motion
for Summary Judgment [Doc. # 231] is GRANTED.
SO ORDERED, this 30th day of March, 2007, at
Bridgeport, Connecticut.
/s/ William I. Garfinkel WILLIAM I. GARFINKEL United States Magistrate Judge
38