UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
R.H., individually and on behalf of C.H., a student with a disability,
Plaintiffs, 1:16-CV-551 v. (GLS/CFH)
BOARD OF EDUCATION OF SAUGERTIES CENTRAL SCHOOL DISTRICT,
Defendant.
APPEARANCES: OF COUNSEL:
Office of Benjamin J. Hinerfeld BENJAMIN J. HINERFELD, ESQ. 2 Penn Center, Ste. 1020 1500 JFK Boulevard Philadelphia, Pennsylvania 19102 Attorneys for plaintiffs
Gina DeCrescenzo, P.C. GINA M. DECRESCENZO, ESQ. 180 South Broadway, Ste. 302 White Plains, New York 10605 Attorneys for plaintiffs
Thomas, Drohan Law Firm 2517 Route 52 Hopewell Junction, New York 12533 DAVID H. STRONG, ESQ. Attorneys for defendant
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION & ORDER
Presently pending before the Court is plaintiff R.H.’s motion in support of the
admission of additional evidence not contained within the administrative record. Dkt.
Nos. 9-11. Defendant Board of Education of Saugerties Central School District
(“District”) opposed. Dkt. No. 12-13. Plaintiff filed a reply. Dkt. No. 14. For the
reasons that follow, plaintiff’s motion to admit the additional document in question is
denied.
I. Background
Plaintiff commenced this action on May 11, 2016 pursuant to 20 U.S.C. §
1415(i)(2)(B) on behalf of his minor son, C.H., a student who has been diagnosed with
high-functioning autism. Dkt. No. 1. (“Compl.”). A brief review of the facts underlying
the administrative proceedings is helpful for the review of the presently-pending motion.
Plaintiff seeks reversal of an administrative decision by the New York State Review
Officer (“SRO”),1 dated January 11, 2016, concluding that he failed to demonstrate the
appropriateness of C.H.’s private placement to entitle him to tuition reimbursement for
the 2014-2015 academic school year. See generally id. Plaintiff determined that
C.H.’s placement in a BOCES classroom – a placement determined pursuant to C.H.’s
Individualized Education Program – was not proper for C.H., and enrolled him
unilaterally at The Ridge School (“Ridge”), a private school for students with high-
1 “‘Under the IDEA, school districts must formulate Individualized Education Programs (“IEP”) for disabled children, which must include special education and related services designed to meet the student's unique needs. A parent may challenge an IEP by initiating a hearing before an Impartial Hearing Officer . . . , at which point the IHO must determine whether the district has offered the student a FAPE. If the IHO finds that a student has been denied a FAPE, he or she may direct the school district to fund that student's tuition at an appropriately specialized school. An IHO's decision may be appealed to a State Review Officer . . . , and a party aggrieved by an SRO's determination may bring an action challenging that determination in a district court.” M.B. v. N.Y. City Dep't of Educ., 14-CV-3455 (LTS/JCF), 2015 WL 6472824, at *1 (S.D.N.Y. Oct. 27, 2015) (internal quotation marks and internal citation omitted).
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functioning autism, for the remainder of the 2014-2015 school year. See Dkt. No. 10 at
1-2. The Independent Hearing Officer (“IHO”) decided in favor of plaintiff. Compl. at
13-14.
The SRO, following the District’s appeal, vacated the IHO decision in part,
concluding that there was
insufficient evidence in the record to conclude that Ridge provided the student with specially designed instruction designed to address the student’s social/emotional needs, as opposed to providing a different environment than the one in which he had experienced anxiety . . . Without further evidence, a determination cannot be made regarding whether the services the student received at Ridge addressed the students needs . . . .
Id. at 1 (quoting SRO Dec at 26); SRO Dec at 26. Addressing this matter further, the
SRO noted that
the hearing record does not indicate that Ridge provided services to affirmatively address the student’s anxiety, and thus did not correct the deficiencies in the district’s proposed program . . . . Rather, Ridge provided the student with the types of advantages – including a small class size, with instruction provided at a pace which permitted the student to feel more comfortable – “that might be preferred by the parents of any child, disabled or not.”
SRO Dec at 26 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d
Cir. 2007) and citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451-52 (2d Cir.
2015)). Addressing C.H.’s progress at Ridge, the S.R.O. concluded that, “given the very
limited amount of objective information contained in the hearing record documenting the
student’s progress, the evidence does not support the conclusion that Ridge was
appropriate solely based on the progress that the student made there during the 2014-
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15 school year.” Id. at 27.
In the present motion before the Court, plaintiff seeks the Court to consider
documentary evidence from outside of the administrative record – a letter from Monica
Meyer, M.D., C.H.’s pediatrician, dated May 9, 2016 ("May 2016 letter”). Dkt. No. 10 at
8-9.
II. Legal Standard
The Second Circuit has not yet addressed whether a district court may
supplement the administrative record of an Individuals with Disabilities in Education Act
(“IDEA”), 20 U.S.C. § 1415(i)(2)(c), appeal with evidence that post-dates the hearing.
Dkt. No. 10 at 3. However, several courts in this Circuit have relied on a First Circuit
case, Town of Burlington v. Dep’t of Educ. for Comm. of Mass. where the court
assessed whether the IDEA permits parties to submit “additional evidence” and under
what parameters. 736 F.2d 773 (1 st Cir. 1984), aff'd sub nom. Sch. Comm. of Town of
Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985); see, e.g., Eschenasy
v. N.Y.C. Dep't of Educ., 604 F. Supp.2d 639, 649 (S.D.N.Y. 2009); Jordan S. v.
Hewlett-Woodmere Union Free Sch. Dist., 08-CV-1446 (LDW /AKT), 2009 WL 910804
(E.D.N.Y. Mar. 31, 2009); Handleman v. Board of Educ. of Penfield Cent. Sch. Dist.,
07-CV-6021, 2007 WL 3076970, at *3 (W.D.N,Y. Oct. 19, 2007); Mavis v. Sobol, 839 F.
Supp. 968 (N.D.N.Y. 1999) (allowing record to be supplemented in order to “bring the
court up to date” on the student’s progress since the due process hearing). Further,
“[s]everal Circuits have adopted the Burlington standard or cited it with approval” and
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“the Circuits generally agree that ‘the question of what additional evidence to admit in
an IDEA judicial review proceeding, as well as the question of the weight due to the
administrative findings of fact, should be left to the discretion of the trial court.’” M.S. v.
New York City Dep’t of Educ.,13-CV-3719 (RRM/VMS), 2013 WL 6028817, at *3-4
(E.D.N.Y. Nov. 13, 2013); Handleman, 2007 WL 3076970, at *3 (discussing the
approaches taken in various circuits).
In Burlington, the court references Section 1415 of the IDEA, which provides,
“[i]n any action brought under its paragraph, the court . . . shall hear additional evidence
at the request of a party . . . .” 20 U.S.C. § 1415(e)(2). The Burlington court concluded
that “additional evidence,” as set forth in the statute, meant “supplemental” evidence.
736 F.2d at 790. However, the court cautioned that this “does not authorize witnesses
at trial to repeat or embellish their prior administrative hearing testimony; this would be
entirely inconsistent with the usual meaning of ‘additional.’” Id. The Court further
provided
[t]he reasons for supplementation will vary; they might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing. The starting point for determining what additional evidence should be received, however, is the record of the administrative proceeding.
Burlington, 736 F.2d at 790. The Court further set forth that the admission of evidence
requires a rebuttable presumption: “a court should weigh heavily the important concerns
of not allowing a party to undercut the statutory role of administrative expertise, the
unfairness involved in one party’s reserving its best evidence for trial, the reason the
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witness did not testify at the administrative hearing, and the conservation of judicial
resources.” Id. at 791; A.W. v. Board of Educ. of the Walkill Cent. Sch. Dist, 14-CV-
1583 (DNH/RFT), 2015 WL 1579186, at *2 (N.D.N.Y. Apr. 9, 2015). Although
recognizing that the IDEA “contemplates that the source of evidence generally will be
the administrative hearing record, with some supplementation at trial”; the court
tempered this finding by indicating that it would reject a rigid rule that would “unduly
limit” the trial court’s discretion. Burlington, 736 F.2d at 790-91. The trial court must
keep in mind that “a relaxed approach to admitting additional evidence undercuts one of
the purposes of the due process hearing – developing a complete factual record.”
Handleman, 2007 WL 3076970, at *5.
The Court agrees with approach set forth in Burlington and applied by many
district courts in this Circuit:
a court should receive additional evidence that the judicial review stage of an IDEA proceeding only if the movant provides a particularized and compelling justification for doing so. This showing should include an explanation both as to why the evidence was not presented at the administrative level and why it is probative of the issues before the court. The probative value of the proposed evidence will of course depend upon the nature of the dispute before the court.
Handleman, 2007 WL 3076970, at *5; Eschenasy, 604 F. Supp. 2d at 649 (holding that,
in order to be admissible, “additional” evidence must be “‘relevant, non-cumulative, and
useful.’”) (quoting Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995)).
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III. Analysis
As the availability of the May 2016 letter is not in dispute, the Court must assess
whether the May 2016 letter is cumulative, relevant, useful, and necessary.2
Eschenasy, 604 F. Supp. 2d 649; A.S. v. Trumbull Bd. of Educ., 359 F. Supp.2d 102,
103 (D. Conn. 2004). The District argues that the letter is cumulative because there are
five of Dr. Meyer’s earlier letters in the hearing record, in addition to Dr. Meyer’s
detailed hearing testimony. Dkt. No. 12 at 7. Thus, the District contends that the letter
“is not new, but is simply a repackaging of various points from her prior letters and
testimony[.]” Id. The District argues that “[t]he only new information in the letter
pertains to matters not relevant to this proceeding, i.e., the time when C.H. was home
schooled during the 2015-2016 school year, the circumstances of his subsequent return
to Ridge School for 2015-2016, and other anecdotal comments about Ridge School.”
Id. at 8. Plaintiff contends that the May 2016 letter is relevant because it speaks to
C.H.’s progress at Ridge, which bolsters his argument that Ridge was an appropriate
placement. Dkt. No. 10 at 3-6. Plaintiff argues that the letter is not duplicative of
material already in the record because it demonstrates post-hearing developments –
C.H.’s success at Ridge in the 2015-2016 school year. Id.
The Court agrees with the District that the May 2016 letter is cumulative. See
2 Although a usual consideration is availability, the District does not appear to dispute that the May 2016 letter was unavailable at the time of the hearing. See Dkt. No. 12 at 5. However, even if the District had argued as to availability, the Court would conclude that the letter was unavailable, as it post- dates the hearing, and refers to a period of time after the hearing.
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Dkt. Nos. 13-1, 13-2, 13-3, 13-4, 13-5. The earlier letters also detail C.H.’s diagnosis,
and his difficulties in various social and school and home-school settings. Dkt. No. 13-5
at 2-3; Dkt. No. 10 at 8-9. The November 2014 letter discusses C.H.’s allegedly failed
placement through the District in its BOCES program, indicates Dr. Meyer’s belief of an
appropriate program for C.H., provides a brief background of the program at Ridge, and
details C.H.’s experience and apparent success at Ridge following the first two months
of his attendance. Id. Further, the November 2014 letter sets forth C.H.’s “enthusiasm”
to attend school at Ridge, examples of methods used by C.H.’s teacher at Ridge; the
apparent improvement in C.H.’s physical appearance, hygiene, confidence level; and
his new, positive attitude toward school. Id. at 2-3. The November 2014 letter also
provides C.H.’s comments that Ridge was welcoming, relaxing, felt like a community
and a home, and that he believed those at Ridge were “nice” and “know what they are
doing.” Id. at 3.
The May 2016 letter reiterates C.H.’s diagnoses and his struggles in the BOCES
setting, briefly mentions his difficulties with home schooling between September 2015
and March 2016, sets out comments C.H. shared about his experience at Ridge from
March 2016 through May 2016, and touches on C.H.’s goals and aspirations for his
future. Dkt. No. 10 at 8-9. The letter sets forth C.H.’s statements that he was able to
“follow almost all of the work” at Ridge and ask questions, enjoyed being in a small
environment, felt he was more compatible with his Ridge classmates, and felt that there
was “more civility” at Ridge than at BOCES. Id. at 9. It includes C.H.’s statem ents that
Ridge “made [him] like math,” and Dr. Meyer’s belief that Ridge “has given him
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motivation to take care of himself.” Id. Although the May 2016 letter arguably refers to
C.H.’s experience at Ridge during the subsequent school year, the anecdotal
comments contained within are substantially similar to those in th November 2014
letter. For example, insofar as the May 2016 letter expresses C.H. near-immediate
ability “to return to the school routine” upon transitioning from home-schooling back to
Ridge, his quick and positive transition to Ridge is reflected in the November 2014 letter
(Dkt. No. 13-5 at 2) (“His father persuaded him to go, saying that he would not force him
to stay there. [C.H.] went that first day and has been going every since.”). Similarly, the
November 2014 letter, like the May 2016 letter, also reflects: (1) C.H.’s great
enthusiasm for school while attending Ridge (“he now gets up in the morning with
enthusiasm for the day ahead.”), (2) the fact that he was more confident (“his head was
held high and he made good eye contact.”), (2) that he took better care of himself after
being at Ridge (“[t]his time, he was well kempt”), (3) that he felt comfortable at Ridge
and enjoyed it (“It’s a house . . . very welcoming”), and (4) that he liked the people there
(“people there are nice.”). Dkt. No. 13-5; Dkt. No. 10 at 8-9.
The fact that May 2016 letter comes a year and a half after the statements
reflected in the November 2014 and refers to C.H.’s second admission at Ridge does
not, without more, render the May 2016 statement substantially distinguishable the
November 2014 letter. Although portions of the May 2016 letter shine additional light
into C.H.’s enjoyment of math and his career motivations, something not discussed in
the November 2014 letter, it is largely reflective of the same point made in the
November 2014 letter – that C.H. enjoys, feels comfortable, is excited about going to
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school at Ridge, and experiences increased confidence when compared to his
experience at BOCES. Id.; Dkt. No. 13-5. 3 That C.H. continued to experience these
benefits at Ridge following his return in the following school year does not provide the
Court with new or different evidence about his 2014-2015 placement at Ridge.
Although evidence of a student’s progress at a unilateral placement is relevant to a
determination of whether the unilateral placement is appropriate, see, e.g., Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007), the apparent prog ress C.H.
experienced in Ridge reflected in the May 2016 letter is already appropriately included
within the record. Because the May 2016 letter would serve this same purpose, it does
not add any significant information not already in the record and is of little probative
value.
Further, admission of the letter could cause further delay in proceeding forward
with this case. See generally, Plainville Bd. of Ed. v. R.N., 09-CV-241(RNC), 2009 WL
2059914, at *2-3 (D. Conn. July 10, 2009) (denying the school district’s motion to admit
additional evidence after concluding the evidence was of “limited probative value” and
could cause delay due to discovery on the issue). Unlike the evidence in the record
that can provide context to the November 2014 letter, see SRO Dec at 27, there is no
context for the May 2016 letter. Should the Court admit the May 2016 letter, unless the
3 As the District points out, the May 2016 letter does not provide “standardized assessments” of C.H.’s progress or any other statements addressing his progress beyond C.H.’s own statements about his continued positive association with Ridge. Dkt. No. 12 at 10 (citing Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)); see also Frank G., 459 F.3d at 364-65. Plaintiff is correct that test scores and similar objective evidence are not the only methods of evidence that can be used to demonstrate progress or success at a placement, the Court is not denying the letter because of its subjective nature but because it would serve the same purpose as evidence already in the record.
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Court allows for discovery not previously contemplated, the District will be unable to
cross examine Dr. Meyer regarding these statements or otherwise obtain additional
evidence relating to the 2015-2016 school year, such as whether C.H. still experienced
work refusal at Ridge during the 2015-2016 school year, whether C.H. had altercations
with his classmates at Ridge during the 2015-2016 school year. See SRO Dec. at 27.
Thus, although plaintiff argues that the letter is relevant regardless of the fact that it
addresses the 2015-2016 school year because C.H. is not a “fundamentally different
boy” from who he was during the 2014-2015 school year and Ridge is not a
“fundamentally different school” than it was, Dkt. No. 15 at 3, this argument misses the
mark. Were the Court to admit the letter, it would be entirely without context: there is
no evidence presented, nor is there any in the record, addressing C.H. during the 2015-
2016 year beyond Dr. Meyer’s accounts of C.H.’s anecdotal comments of his
experience at Ridge.
Although a few courts have admitted evidence from subsequent school years in
order to show a student’s progress most of that evidence was in the form of objective
evidence, such as report cards, progress reports, assessment and diagnostic test
results, and psychiatric reports discussing the student’s “condition and treatment.”4 See
Jordan S., 2009 WL 910804, at * 2; R.N., 2009 W L 2059914, at *2-3 (allowing for
admission of updated psychiatric report and assessment test results, but denying the
Board of Education’s request to admit as additional evidence behavioral reports – some
4 Although the Jordan S. court found several of the documents requested to be submitted as additional evidence to be admissible, the undersigned observes that Jordan S. contains almost no analysis on this issue. 2009 WL 910804, at * 2-3.
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of which pre-dated the relevant school year at issue – because, although they showed
the student’s continued behavioral problems and the school’s tactics to address those
problems, “they appear to shed little light on how the student is doing at his new school
. . . .”). While evidence such as report cards or standardized test results are not the
only evidence that is to be considered when assessing whether a unilateral placement
is appropriate, Frank G., 459 F.3d at 364, the May 2016 letter does not provide such
useful and noncumulative evidence to assist the Court in assessing whether Ridge was
an appropriate placement for C.H. in the 2014-2015 school year.5 To be clear, the
undersigned is not concluding that evidence post-dating the hearing in question that
relates to a school year different from the one under review can never be relevant, but
that such information would be relevant only insofar as it contains information not
already reflected elsewhere in the record. Had the May 2016 letter added evidence that
was distinguishable from that already contained in the record – i.e., different from C.H.’s
positivity, enthusiasm, and apparently reduced anxiety about his school setting – the
undersigned may have found differently.
Accordingly, as the undersigned finds that plaintiff has not overcome the
5 Although plaintiff contends that the May 2016 letter “concisely and directly answers the SRO’s concern that there is insufficient evidence concerning the appropriateness of Ridge for C.H,[,]” Dkt. No. 10 at 5, the undersigned observes that the SRO acknowledged evidence in the record that C.H. enjoyed certain aspects of Ridge, such as small class size, but noted that the record the hearing record
does not indicate that Ridge provided services to affirmatively address the student’s anxiety, and thus did not correct the deficiencies in the district’s proposed program . . . . Rather, Ridge provided the student with the types of advantages – including a small class size, with instruction provided at a pace which permitted the student to feel more comfortable – “that might be preferred by the parents of any child, disabled or not.”
SRO Dec at 26.
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rebuttable presumption of foreclosing additional evidence, insofar as plaintiff has failed
to demonstrate that the evidence is noncumulative, useful, relevant, and necessary, the
motion to admit the May 2016 letter is denied. See Burlington, 736 F.2d at 791.
IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby ORDERED
that plaintiff’s motion to admit the May 2016 letter, Dkt. No. 10, is DENIED; and it is
ORDERED, that the Clerk of the Court serve this Memorandum-Decision and
Order on parties in accordance with Local Rules.
IT IS SO ORDERED.
Dated: January 30, 2017 Albany, New York
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