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Greenwich Board of Education v. G.M.

United States District Court, D. Connecticut

June 22, 2016

GREENWICH BOARD OF EDUCATION, Plaintiff,
v.
G.M. and J.M., individually and as next friends of K.M., Defendants.

          RULING ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         I. Background

         K.M. is 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.

         During 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. Tr.[1] 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.

         By 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.[2] 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 team:

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.

         McGowan 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.

         The 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.[3] 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 F/P[4] 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, [5] 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.

         K.M. met with Sterner for the first time on November 28, 2011. Sterner Tr. (10/24/12)[6] 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[7] 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.

         P-2, at 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").

         At the 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.[8] 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. See P-3.

         On 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.

         It was clear that Parents did not believe Riverside's intervention with K.M. was eliciting sufficient progress.[9] 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.

         On 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.[10] 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 K.M.

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.

         B-3, at 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.

         In 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.

         On June 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;[11] (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.

         Following 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 IDEA.

         B-1, at 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.

         McCullough 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 information.

         McCullough 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.").

         Parents 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.[12]

         J.M. 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.[13]

         Riverside 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.[14] 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.

         Windward 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.

         After 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, at 2.

         The due 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.

         On 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.

         II. Standard of Review

         IDEA 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)).

         Finally, 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).

         III. Discussion

         A. Burlington/Carter

         The 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)).[15] The Court turns to the Burlington/Carter elements now.

         1. IHO's Determination That the Board Failed to ...


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