THE STATE OF NEW HAMPSHIRE
DEPARTMENT OF EDUCATION
IDPH FY-04-05-095
/Timberlane Regional School District
ORDER ON ASSENTED-TO MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This is a due process proceeding requested by the parents of Student ("Parents") regarding Student's placement for the 2004-2005 school year. A prehearing conference was scheduled for May 20, 2004, and the hearing was scheduled for May 26 and June 1, 2004. [2] On May 14, 2004, the Timberlane School District ("District") submitted an Assented-To Motion for Summary Judgment, [3] obviating the need for a prehearing conference and hearing.
II. FACTS
The following facts are agreed upon by the parties, [4] and found by the Hearing Officer:
1. Student's date of birth is [ ].
2. Student is diagnosed with a specific learning disability. Most recent cognitive assessment (December 5, 2002) revealed a Verbal I.Q. of 126 and a Performance I.Q. of 63. The 63-point spread between the verbal and performance areas is remarkable for significant perceptual and motor difficulties. While verbal abilities fall within the superior range, nonverbal reasoning abilities fall in the intellectually deficient range. Outside evaluations secured by the Parents during Student's public school placement support neurological signs of a substantial and significant right hemisphere syndrome.
3. Student attended private kindergarten during the 1995-1996 school year. Student was enrolled in the District from 1996 (first grade) through December of 1999 (midway through fourth grade). Prior to entering first grade, Student was identified as Other Health Impaired; an identification of Specific Learning Disability was added on January 7, 1997, during the first grade year. Related services of speech therapy and occupational therapy were recommended as part of Student's special education program.
4. In November of 1999, during Student's fourth grade year, the Parents believed that Student was overwhelmed in the then current public school placement; Student was confused by the layout of the school and frequently got lost. Student's level of anxiety impacted Student academically, physically and emotionally. The Parents requested an out-of-district placement; they withdrew Student in December of 1999 and made a unilateral placement. The District and the Parents informally mediated a settlement regarding this placement, and Student continued in the placement until February 22, 2002.
5. A unilateral placement in a private parochial school was made and Student continued in this placement for the seventh grade year. The District and the Parents agreed to an Individual Service Plan for this placement. Continuing in this private parochial environment was not an option for the 2003-2004 school year as the school is not able to accommodate Student's learning disabilities.
6. The Parents completed the application process for the [out-of-state school] in early January of 2003. Student was accepted into the [out-of-state school] on January 28, 2003. The Parents made the unilateral placement, signed the enrollment agreement and filed for an Administrative Due Process Hearing. An agreed-upon statement of facts was submitted, and an Assented-to Motion for Summary Judgment was filed by the parties referencing the unilateral placement. Both the District and the Parents agreed that the [out-of-state school] was an appropriate placement in the least restrictive environment for the 2003-2004 school year.
7. Student has completed three quarters at the [out-of-state school]. Student has adjusted to the program, and the teachers report that the level of effort and diligence has been consistent in academic classes. In addition to meeting the academic requirements, Student has met the cultural requirements for the first two terms and has also earned 3.5 hours of community service. Student has grown both academically and socially; the independence and responsibility Student has demonstrated is impressive.
8. The [out-of-state school] is accredited by the NEASC and awards diplomas for high school graduation. While [out-of-state school] has previously been approved as a special education program in the Commonwealth, the administration at the school has chosen not to apply for continued approval from the Massachusetts Department of Education. The [out-of-state school] serves students in grades 6-12 who are identified with specific learning disabilities and attention deficit disorders. Fifteen to twenty percent of the student population have learning profiles similar to Student's. The school offers a variety of curriculum levels from remedial to advanced which would challenge Student's strong verbal abilities while accommodating and remediating deficits in the nonverbal areas. The school provides a structured, challenging and safe learning environment, and offers individual instruction, counseling services, speech and language therapy, special education support, a pragmatics program for personal growth and extracurricular activities.
9. After extensive research, a full day observation of the [out-of-state school] and review of Student's success in the program this year, the District has determined that the educational program at the [out-of-state school] continues to be the only program that can provide Student with a free appropriate public education.
III. DISCUSSION
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As the undisputed facts in this case demonstrate, Student has a specific learning disability which manifests in severe deficits in nonverbal reasoning skills. After previous placements, including placement in the District, proved unsuccessful, Student was placed at the [out-of-state school], where Student is making progress that school's structured, supportive learning environment. The parties agree that [out-of-state school] continues to be the only program that can provide Student with a free appropriate public education ("FAPE").
Every educationally handicapped student is entitled to a FAPE, which is reasonably calculated to meet his or her unique needs. E.g., Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982). When a FAPE is not available and a unilateral placement made by parents is found to be appropriate, the parents may be reimbursed for expenditures related to the private placement. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Further, a Hearing Officer may find a parental placement to be appropriate even if that placement does not meet the state standards that apply to the local educational agency, and may require the school district to reimburse the parents for that placement. 20 U.S.C. § 1412(a)(10)(C); 34 C.F.R. § 300.403(c); Ed 1132.02(b)(2); Florence County School District Four, et al. v. Carter, 510 U.S. 7 (1993). In this case, although the [out-of-state school] is not currently approved by the Massachusetts Department of Education, it is nonetheless appropriate to meet Student's unique needs, and, under the circumstances delineated above, it is the only program that can provide Student with a FAPE.
IV. CONCLUSION
Student's unique educational needs and the appropriate placement in which those needs can be met are factual issues which are material in this case. Since there is no dispute as to these issues, it is proper to conclude that there is no genuine issue of fact in dispute and that summary judgment should be awarded as a matter of law. Cf. [Student]/[ ] School District, IDPH FY-03-08-02 (NH Dept. of Ed. 2002).
V. ORDERS
In accordance with the above, the following is ordered:
A. The Assented-to Motion for Summary Judgment is granted;
B. The District will reimburse the Parents in the amount of four-thousand fifty dollars and forty cents ($4,050.40) per month for a period of time from September 1, 2004 through June 30, 2005, for Student's attendance at the [out-of-state school] in [ ]. The District may make those payments in monthly installments directly to the [out-of-state school], which shall credit those payments the Parents owe for the 2004-2005 school year.
So ordered.
Date: June 8, 2004
_______________________________________
Amy B. Davidson, Hearing Officer
[1] File Exhibit 1 [2] File Exhibit 2 [3] File Exhibit 3 [4] See Agreed Upon Statement Of Facts (File Exhibit 4)