United States District Court, D. Connecticut
RULING ON PARTIES' CROSS-MOTIONS FOR SUMMARY
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
the Greenwich Board of Education (the "Board"),
brings this action against Defendants G.M. and J.M.
("Parents"), individually and as next friends of
their daughter, K.M. ("Student"). The Board brings
suit pursuant to the Individuals with Disabilities Education
Act, 20 U.S.C. §§ 1400-1482 ("IDEA"), to
appeal a decision and order (the "Order") of an
independent hearing officer (the "IHO") of the
State of Connecticut's Department of Education.
Specifically, the Board filed suit under § 1415(i)(2) of
the IDEA, which grants the right to bring a federal civil
action to certain parties claiming to have been aggrieved by
the IDEA's dispute resolution process. The parties have
cross-moved for summary judgment. Docs. 43-50. This Ruling
resolves both motions.
a student at the Windward School ("Windward"), a
specialized instruction private school in White Plains, NY.
K.M. began at Windward in the second-grade in the 2012-13
academic year. For kindergarten and first-grade, K.M.
attended Riverside Elementary School ("Riverside"),
a Greenwich, CT public school falling under the jurisdiction
of the Plaintiff Board. K.M.'s transition from Riverside
to Windward is the focus of the instant dispute.
K.M.'s kindergarten year at Riverside, Parents became
concerned about K.M.'s ability to "follow multi-step
instructions, " a concern that arose mostly in light of
a family history of learning disabilities. J.M.
at 18-19. In August of K.M.'s first-grade year at
Riverside, Parents expressed concerns to K.M.'s teacher,
Sheri McGowan, through a "getting to know you
interview" form. J.M. Tr. at 21. Parents mentioned to
McGowan their worries given a family history of learning
disabilities, and asked McGowan to monitor closely K.M.'s
progress. McGowan Tr. at 178-89.
October of first-grade, Parents began to notice that reading
simple books was "an enormous struggle" for K.M.
J.M. Tr. at 21. On November 7, 2011, Parents expressed these
concerns to McGowan in an e-mail and requested an in-person
meeting. P-11. At that meeting, on November 9, 2011,
McGowan indicated to Parents that she had referred K.M. to
the school's Student Assistance/Response to Intervention
Team ("SAT/RTI"). J.M. Tr. at 25; P-25; P-33.
McGowan testified as to why she referred K.M. to the SAT/RTI
The SAT team is a team of teachers and administrators that
are there to help come up with other strategies that you can
use and additional ways of going about teaching things and
ways of assessing and collecting data and so forth. So I
brought [K.M.] to this SAT team knowing that there were
parent concerns and learning disabilities in the past,
wanting to make sure there were more eyes and everyone was -
you know, on that team was aware of what I was doing and able
to suggest anything if they saw the need to do so.
Tr. at 68. Although McGowan testified that had J.M. not
expressed concerns, she "probably [would] not [have
referred K.M. to SAT/RTI] so soon, " she made clear that
K.M. would likely have nevertheless been referred to SAT/RTI
at some point. McGowan Tr. at 180, 200-01. However, McGowan
testified that "the history of learning disability which
[J.M.] shared . . . was the major factor" for her
referral. McGowan Tr. at 183.
SAT/RTI Team met on November 21, 2011 to craft an
"intervention plan" for K.M. B-5, at 22. The plan
was modeled as a "scientific research-based
intervention, " or "SRBI, " and was structured
pursuant to Connecticut's "Using Scientific
Research-Based Interventions: Improving Education for All
Students; Connecticut's Framework for Response to
Intervention." Doc. 44, at 6; Supp.-8. The initial
objectives of the SAT/RTI Team's SRBI plan were two-fold:
(i) "To increase [K.M.]'s consistent use/recognition
of sight words"; and (ii) "To go up one
level through direct strategy instruction." B-5, at 22.
The plan included K.M.'s meeting with Lynn Sterner,
Riverside's Reading Specialist, three times a week for
thirty minute sessions,  and for daily sight word practice three
times daily. B-5, at 22. After the meeting, Parents followed
up with Marianne McCullough, Riverside's Assistant
Principal, about the details of the intervention plan.
McCullough informed Parents that K.M. "is in the
expected range for her grade level and [that] we are
intervening early in light of the concerns you raised to
support [K.M.]." B-6, at 1. Parents were also informed
that they would be updated by letter following each SAT/RTI
Team meeting. P-14; J.M. Tr. at 39.
met with Sterner for the first time on November 28, 2011.
Sterner Tr. (10/24/12) at 137. In a letter dated December 5,
2011, Sterner formally notified Parents that K.M.
has been selected to participate in Leveled Literacy
Intervention, or LLI. He will have daily thirty-minute lessons
during which he will read, write and learn about phonics. The
LLI lessons are given in addition to the regular reading
instruction your child receives in the classroom.
1. Sterner testified that she viewed K.M.'s referral to
LLI as unusual because K.M. "was on grade level, and I
don't usually see children on grade level." Sterner
Tr. (10/24/12) at 89. In fact, Sterner testified that the
usual criterion for LLI is "[t]wo levels below the
benchmark reading level, " and that K.M. was selected
nonetheless purely "due to parental concern."
Sterner Tr. (11/28/12) at 22. Sterner sent Parents periodic
updates regarding K.M.'s progress in the LLI program.
P-2, at 2-17. It was Sterner's position that K.M. was
progressing properly through LLI. Sterner Tr. (10/24/12) at
127 ("what we were doing was working").
end of December, Parents hired a private reading tutor for
K.M., whom K.M. met with regularly through the end of her
first-grade year and into the summer. P-1. Parents informed
Riverside that they had hired such tutor, and were also in
regular contact with the school throughout the year sharing
their concerns of K.M.'s lack of reading progress.
January 30, 2012, John Grasso, principal of Riverside at the
time, sent a letter to Parents updating them on K.M.'s
SAT/RTI intervention plan. The letter stated that K.M.
"has shown inconsistency in her ability to recognize
sight words and high frequency words, " and that
"[t]o help her we will increase the amount of times she
practices these words in school. She will have three
opportunities each day to practice with: the teacher, a peer,
and with the whole class." P-34.
clear that Parents did not believe Riverside's
intervention with K.M. was eliciting sufficient
progress. In light of this concern, Parents hired
Dr. Jill Greenberg, a private psychologist with a Ph.D. in
school psychology and an undergraduate degree in special
education, to assess K.M. Greenberg Tr. at 84. J.M. explained
why Parents hired Dr. Greenberg:
We felt, throughout the entire school year, that [K.M.] was
receiving additional support, but we didn't feel like she
was getting the support she needed, because we did not see
any progress, and we felt like we needed a diagnosis, in
order to correctly help [K.M.]. . . . We didn't feel
[K.M.] was getting the help that was going to help [her]
going forward, so we felt like we needed a diagnosis to find
out what exactly was wrong, or why she couldn't read.
J.M. Tr. at 80.
March 27, 2012, Parents authorized Dr. Greenberg to receive
from Riverside "any evaluations, assessments or other
paperwork necessary for Dr. Greenberg to complete her
evaluation" of K.M. B-2, at 1. Dr. Greenberg then
evaluated K.M. between April and May 2012, meeting with her
for six private test sessions, performing a multitude of
tests, and observing her in school and at home. Dr. Greenberg
then issued a comprehensive twenty-page psychological report
of K.M. In short, Dr. Greenberg determined that
K.M.'s "current functioning meets the diagnosis of
Specific Reading Disorder, ADHD-combined type, and
generalized anxiety." B-3, at 18. The report stated that
demonstrates clear signs of a specific reading disorder as
well as signs of ADHD. Despite strong, evenly developed
cognitive functioning, including memory functioning and
processing speed functioning, intensive intervention at
school and tutoring at home, [K.M.]'s reading skills fall
well below the expected level for her age.
15. In fact, Dr. Greenberg testified that, given her testing
results, K.M.'s reading disorder was "just standing
there yelling at me." Greenberg Tr. at 28; see
Id. at 27 ("[s]he was way below average. Below end
of low average. She was way low"). Dr. Greenberg also
expressly disagreed with what she viewed to be
"atypically positive" reviews of K.M. given by
K.M.'s teacher. Greenberg Tr. at 36, 102 ("this
teacher's responses don't make sense to me").
She then testified that "we should intervene intensively
now because it won't get better by itself."
Greenberg Tr. at 80. However, Dr. Greenberg acknowledged that
her report represented a snapshot of K.M. and that she did
not consider K.M.'s progress throughout her first-grade
year. Greenberg Tr. at 88, 141-42. Dr. Greenberg also
acknowledged that she did not meet with K.M.'s teacher
despite the fact that she would do so "in the ideal
setting." Greenberg Tr. at 90-91, 103; see also
Id. at 140 ("Normally I work pretty closely with
the school and the teacher if I can. I don't know why I
didn't in this case."). Dr. Greenberg also did not
meet with K.M.'s reading specialist or the school
psychologist, nor did she observe K.M. during her specialized
reading group. Greenberg Tr. at 90-91, 111.
light of Dr. Greenberg's findings, on June 12, 2012,
Parents sent then-Principal Grasso a Referral to Determine
Eligibility for Special Education and Related Services with
respect to K.M. Parents requested that a "referral PPT
be scheduled prior to the end of the school year." B-6,
at 36. A "PPT, " or a "planning and placement
team, " is a body comprised of school officials and
others structured pursuant to Connecticut law (and the IDEA)
to make determinations with respect to the special
educational needs of students. Regs. Conn. State Agencies
§ 10-76a-1(14). The referral request documented three
specific areas of concern: (i) reading struggles; (ii)
anxiety and self-confidence issues; and (iii) attention and
focus issues. B-6, at 37. J.M. testified that Parents
referred K.M. for a special education eligibility
determination because "[a]fter we got a diagnosis that
was more accurate for [K.M.], we wanted to get a more
specific instruction for her to meet her needs." J.M.
Tr. at 102.
19, 2012, the PPT met to consider Parents' referral.
Present at the meeting were: (i) Parents; (ii) Assistant
Principal McCullough; (iii) regular education teacher
McGowan; (iv) special education teacher Diane Rasweiler; (v)
school psychologist June Gold; (vi) Diane Anison (referred to
as "Speech/Lang" on the meeting minutes); (vii)
Director of Special Education Mary Forde; (viii) Riverside
reading specialist Sterner; (ix) Dr. Greenberg; and (x)
Parents' Attorney Gerry McMahon. B-1, at 2. The PPT had
before it Dr. Greenberg's evaluation, information from
SAT/RTI, K.M.'s Fountas and Pinnell results, sight word
documentation, and report cards. McCullough Tr. at 31-32. At
the meeting, "[e]ach team member gave input on their
specific area with [K.M.]." McCullough Tr. at 32. Dr.
Greenberg and Parents also gave their input at the meeting.
McCullough Tr. at 32-33.
the PPT meeting, and without conducting any further
evaluation, the PPT deemed K.M. ineligible for special
education and related services because she "has
responded to the current level of interaction." B-1, at
3. The PPT's analysis, reflected in the meeting minutes,
is reproduced in full below:
Introductions were made. Parent received procedural
rights/safeguards. Parents signed 5-Day Waiver and Notice and
Consent to Conduct an Evaluation. The purpose of the meeting
was to review the parent referral for special education
eligibility and consider the initiated private evaluation. -
Classroom teacher described [K.M.]'s reading performance
to date. Currently [K.M.] is reading independently at a
Fountas & Pinnell level H (benchmark range at this time of
year is I, J, K). [K.M.] began the year reading independently
at level B. Classroom teacher reported that [K.M.] knew 100
out of 110 first grade sight words - grade level benchmark is
88. Reading specialist described her sessions with [K.M.].
She gave parents a list of books for [K.M.] to practice for
fluency over the summer. School psychologist reported that
[K.M.] demonstrates strong social skills at school and was
selected as a model for a snack group. - Parents described
[K.M.] as anxious at home and very stressed about reading.
They shared that [K.M.] has a tutor from Windward twice a
week. The private evaluator reported that [K.M.] presents as
a cognitively intact child with executive functioning issues
who shows herself differently at home than at school. She
noted a weakness in far point copying, reversals, and
negative emotions around reading. School based team
recommended that [K.M.] attend GPS Summer School to maintain
her skills in a more relaxed thematic based learning
environment. Parents were encouraged to contact the assistant
principal if they wanted to visit summer school. - Team
agreed that [K.M.]'s performance would be monitored as
she enters second grade. A parent meeting will be scheduled
early in September. Progress monitoring data will be graphed
and shared regularly with parents. The school members of the
team considered the private evaluation, her response to
intervention, and current functioning and determined that
[K.M.] does not meet the criteria for disability under the
3. Assistant Principal McCullough, the PPT administrator,
testified as to why she personally believed that K.M. was
ineligible for special education services:
Looking at all of the information in front of the team, her
response to intervention was part of the decision-making and
her performance throughout the course of the year in
conjunction with the report and everybody's input. . . .
She responded very positively to intervention. That she had
started the year at a level B and was ending the year at a
level H, which is seven levels.
Tr. at 33. McCullough then acknowledged that level H was
below grade level, but that this was not a concern meriting a
determination that K.M. was disabled:
It factored in because it was the first time they are
monitoring that she hadn't made the range and at the
meeting it was described that there was a jump from H to I
and that as such, while it was going to be something closely
monitored with [K.M] in second grade, we didn't know if
it was the beginning of a trend or just one piece of
Tr. at 34; see also Sterner Tr. (11/28/12) at 29.
McCullough made clear her view that it was K.M.'s
progress that demonstrated her ineligibility for special
education services. McCullough Tr. at 36 (testifying that
K.M.'s case was different from other PPTs in which a
disability was found because K.M. "was making measurable
consistent progress throughout the year.").
elected not to enroll K.M. in the summer program recommended
by the PPT. J.M. Tr. at 129. J.M. explained this decision:
"[W]e thought it would be more of the same instruction,
and we didn't believe that that instruction was helpful
for [K.M.], and we needed something that was more specific to
her needs." J.M. Tr. at 130. Rather, immediately after
the PPT meeting, Parents began efforts to transition K.M.
from Riverside to Windward. In fact, the day of the meeting,
J.M. authorized Riverside to release K.M.'s information
to Windward. P-12; J.M. Tr. at 125.
initially became familiar with Windward through the
experience of her niece, who had previously been a student at
Windward. J.M. Tr. at 136. Windward was also recommended by
Dr. Greenberg. J.M. Tr. at 136, 161. Although Dr. Greenberg
did not have much of a relationship with Windward, she
"know[s] many people who have sent their children there,
" meaning that she "just know[s] of it by
reputation." Greenberg Tr. at 59-60. She opined that
"[i]t's a great school for kids who do not have
behavior problems, who are bright and really struggling to
learn to read." Greenberg Tr. at 60. In short, Dr.
Greenberg testified that Windward is "a great choice for
K.M." Greenberg Tr. at 60. She testified why this is so:
Not only is [K.M.] bright and lively minded, she is
struggling to learn to read, and she's very anxious about
that. And my hope would be that in a small group setting
where there's lots of reinforcement all day long in
literacy, because that's the focus all day long. . . . At
the same time, they're really focusing on the emotional
piece because they know kids who are - who have learning
disabilities have emotional vulnerabilities as well, so their
program is nicely set to address that throughout the day. . .
. [T]here's a concerted effort at Windward to teach kids
not just self-advocacy skills, but to know who they are as
learners with a learning disability.
Greenberg Tr. at 60-61.
school psychologist June Gold, a participant in the PPT
meeting, testified that she disagreed with certain of Dr.
Greenberg's diagnosis. Specifically, she testified that
K.M. had a positive attitude towards school, that she did not
detect any anxiety (nor did any school staff report to her
any anxiety), and that K.M. was "focused, very much on
task, " and demonstrated no signs of ADHD or attention
issues. Gold Tr. at 8-10. However, Gold
acknowledged she conducted no evaluations of any type of K.M.
Gold Tr. at 16. In fact, she testified that "we
didn't see the need [to evaluate K.M.] at the school
level [because] [s]he was responding to intervention."
Gold Tr. at 26.
performed an initial educational screening of K.M. on June
22, 2012. P-13. Windward's testing found K.M. to be below
grade level in rate, accuracy, fluency, and comprehension,
and informed Parents that it would accept K.M. for the
2012-13 academic year. J.M. Tr. at 127-28; P-19. Parents
executed a Windward enrollment contract on July 1, 2012.
P-10; J.M. Tr. at 128. On July 12, 2012, Parents, through
counsel, notified the Connecticut State Department of
Education that they were filing for a due process hearing
pursuant to the IDEA to challenge the PPT's
determination. A-1. On August 13, 2012, Parents informed
Riverside Principal Christopher Weiss that K.M. would be
attending Windward instead of Riverside for the 2012-13
academic year. B-6, at 46. K.M. began at Windward on
September 10, 2012. J.M. Tr. At 128.
beginning second-grade at Windward, Parents retained the
services of Dawn Matera, a reading specialist with a
master's degree in special education, to evaluate K.M.
P-20. Matera performed a "one-hour curriculum-based
assessment [of K.M.] in [her] office" on September 28,
2012. Matera Tr. at 153. Matera had access to Dr.
Greenberg's report and certain of K.M.'s school
records. Matera ultimately issued a two-page report,
concluding that K.M. was in the 10th percentile for end of
first-grade readers-meaning she did not meet the first-grade
benchmark (as a second-grader)-as to "word reading"
and "fluency." Matera also concluded that
"[s]ince we know that her working memory and cognitive
processing speed are at or above grade level, we can consider
[K.M.]'s difficulties to be the result of her reading
disorder, attentional difficulties, or anxiety." P-24,
process hearing challenging the PPT's determination took
place in front of the IHO over six days on October 2, October
5, October 23, October 24, November 28, and December 4, 2012.
Testifying at the hearing were: (i) J.M.; (ii) McGowan; (iii)
Dr. Greenberg; (iv) Matera; (v) Sterner; (vi) Gold; and (vii)
McCullough. Ultimately, the issues for resolution were: (i)
"Did the Board err in concluding that the Student was
ineligible for special education?"; and (ii) "If
so, is the Parents' unilateral placement at Windward
School appropriate and reimbursable?" The parties
submitted post-hearing briefing on December 13 and 14, 2012.
January 3, 2013, the IHO issued her decision, ruling in favor
of Parents on both issues. In summary, the IHO determined
that: (i) the Board erred in summarily denying Parents'
request without evaluating K.M.; (ii) K.M. is eligible for
special education under the category of "specific
learning disability, " 34 C.F.R. § 300.8(c)(10),
and thereby the Board failed to offer K.M. a
"free-appropriate public education" as required by
the IDEA; and (iii) Windward was an appropriate unilateral
placement entitling Parents to reimbursement. The Board moved
for clarification on January 30, 2013, which the IHO
summarily denied on February 4, 2013. On February 21, 2013,
the Board filed the instant Complaint in this Court to appeal
the IHO's determination.
Standard of Review
appeals are generally resolved in full via cross-motions for
summary judgment brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. However,
Though the parties in an IDEA action may call the procedure
'a motion for summary judgment, ' the procedure is in
substance an appeal from an administrative determination, not
a summary judgment motion. . . . Basing its decision on the
preponderance of the evidence, the court is required to grant
such relief as the court determines is appropriate.
M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 226
(2d Cir. 2012) (internal quotations, citations, and
alterations omitted). The "preponderance of the
evidence" standard comes directly from the IDEA itself.
20 U.S.C. § 1415(e)(2) ("basing its decision on the
preponderance of the evidence, [the district court] shall
grant such relief as the court determines is
appropriate"). Accordingly, "'a motion for
summary judgment in an IDEA case often triggers more than an
inquiry into possible disputed issues of fact. Rather, the
motion serves a pragmatic procedural mechanism for reviewing
a state's compliance with the procedures set forth in
[the] IDEA.'" Id. at 225-26 (quoting
Lillbask es rel. Mauclaire v. State of Conn. Dep't of
Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)).
in determining whether a state agency's decision as to a
local education agency's compliance with the IDEA is
supported by a preponderance of the evidence, the court
should keep in mind that
'[t]he role of the federal courts in reviewing state
educational decisions under the IDEA is circumscribed.'
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 112-13 (2d Cir. 2007) (internal quotation marks
omitted). The standard of review 'requires a more
critical appraisal of the agency determination than
clear-error review but nevertheless falls well short of
complete de novo review.' M.H. v. N.Y.C.
Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012)
(internal quotation marks, ellipses, and brackets omitted).
The deference owed depends on both the quality of the opinion
and the court's institutional competence. Id.
C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746
F.3d 68, 77 (2d Cir. 2014).
process of review of a state agency's determination as to
parents' entitlement to reimbursement for a private
placement under the IDEA is a familiar one:
When parents unilaterally enroll their child in a private
school, we apply the three-part Burlington-Carter
test to determine whether they should be reimbursed. Under
the test, we look at '(1) whether the school
district's proposed plan will provide the child with a
free appropriate public education [("FAPE")]; (2)
whether the parents' private placement is appropriate to
the child's needs; and (3) a consideration of the
equities.' J.C. v. New York City Dep't of
Educ., ___ F.App'x ___, 2016 WL 1040160 (2d Cir.
Mar. 16, 2016)
(quoting C.F. ex rel. R.F. v. New York City Dep't of
Educ., 746 F.3d 68, 77 (2d Cir. 2014)). The Court
turns to the Burlington/Carter elements now.
IHO's Determination That the Board Failed to ...