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A. v. Hartford Board of Education

United States District Court, D. Connecticut

July 19, 2016

A., by his Parent and Next Friend Mr. A., and MR. A., Plaintiffs,
v.
HARTFORD BOARD OF EDUCATION and NEW BRITAIN BOARD OF EDUCATION, Defendants. NEW BRITAIN BOARD OF EDUCATION, Plaintiff,
v.
J.A., a Student, and MR. A., Parent and Next Friend of J. A., Defendants.

          OPINION AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFFS' MOTION TO SUPPLEMENT (DOCS. 126, 128, 129, 198)

          GWC GEOFFREY W. CRAWFORD, JUDGE.

         Plaintiffs A. ("Student"), a special education student, and his parent Mr. A. ("Parent"), bring this suit under 20 U.S.C. § 1415(i)(3)(B) and 42 U.S.C. § 1983 against Defendants Hartford Board of Education (HBOE) and New Britain Board of Education (NBBOE) (collectively, "the boards"). (Doc. 19, Second Am. Compl.)[1] Plaintiffs claim that they are the prevailing parties in A v. Hartford Board of Education et al, No. 11-0154 (Conn. Dep't of Educ.) (the "due process case"), and are therefore entitled to fees and costs under § 1415(i)(3)(B) and § 1983. Plaintiffs further claim that the August 2, 2011 Final Decision and Order ("hearing decision") in the due process case should he reversed insofar as it declined to provide Student with an in-home program.[2]

         Consolidated with Plaintiffs' case is NBBOE's case against Student and Parent, docketed No. 3:1 l-CV-01431, in which NBBOE seeks reversal of the hearing decision to the extent it was adverse to NBBOE. In their Amended Answer to NBBOE's Complaint, Plaintiffs assert counterclaims against the hoards for violating the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act, and for failing to implement the hearing decision. (Doc. 67 at 16-23.) For relief on those counterclaims, Plaintiffs seek compensatory and punitive damages, fees and costs, and injunctive relief. (Id. at 23-24.)

         All parties have filed motions for summary judgment. (Docs. 126, 128, 129.) In their Motion, Plaintiffs argue that (1) the court should reject NBBOE's request for reversal of the hearing decision; (2) Plaintiffs are entitled to summary judgment on their Amended Counterclaim; and (3) Plaintiffs are prevailing parties and should be awarded costs, expenses, and fees in the amount of $439, 915.88. (Doc. 126-1.) In its Motion, HBOE seeks summary judgment as to all claims against it, and argues that Plaintiffs' request for fees should be denied or reduced. (Doc. 128.) For its part, NBBOE seeks summary judgment on: (1) the portion of NBBOE's Complaint seeking reversal of the hearing decision insofar as it determined NBBOE had failed to provide a free and appropriate public education during the 2009-2010 and 2010-2011 school years; (2) Plaintiffs' counterclaims; and (3) Plaintiffs' demand for attorneys' fees and costs. (Doc. 129.) Finally, Plaintiffs move to supplement their request for attorneys' fees, costs, and expenses, adding an additional $188, 000 for a total request of $627, 915.88. (Doc.198.)

         Background

         The parties have supplied extensive Local Rule 56(a)(1) statements with exhaustive details regarding numerous aspects of Student's educational and other history. Based on the parties' statements and the court's review of the record, the court presents a relatively brief factual introduction here. Additional facts included in the analysis below as necessary.[3]

         I. Student's Early Education and Evaluations

         Student was born in 1998 and lives with his father and other family members in New Britain, Connecticut. Parent was awarded sole custody of Student by the Connecticut Superior Court as a result of a marriage dissolution on March 29, 2005. At all times relevant, NBBOE has identified Student as a child in need of special education and related services under the Individuals with Disabilities Education Improvement Act ("IDEA") under the disability category "Autism."

         In 2001, Student commenced his education in NBBOE's schools in the Head Start program. (See P-l at 1.) A Planning and Placement Team (PPT)[4] meeting was convened at the commencement of Student's Head Start program and evaluations were ordered. The PPT found that Student demonstrated significant delays in all developmental areas. Student was initially classified as Developmentally Delayed.

         In 2004, the PPT ordered evaluations of Student to identify his programming needs, identify his special education diagnosis, and address Parent's concern about Student's behavior. At that time, Student was in kindergarten and enrolled in NBBOE's school system. (See P-6 at 1.) The diagnostic evaluation found that Student was functioning in the borderline range of intelligence, The Behavior Assessment for Children showed that Student had clinically significant levels of inattention and "atypicality" across settings. The Childhood Autism Rating Scales were suggestive of moderate autism and the Vinel and Adaptive Behavior Scales revealed low levels of self-help skills in the areas of communication, daily living skills, and socialization. Student was found to be academically below grade level in all subject areas. (Id. at 7.)

         A Physical Therapy Diagnostic Evaluation was performed, (See P-7.) The evaluator found that Student continued to demonstrate an inappropriate gait pattern that had not significantly changed with formal physical therapy (PT). The evaluator reported that continued PT would not impact Student's gait pattern and that the gait pattern did not prevent Student from participating in school-based activities. The evaluator concluded that PT should be discontinued. An Occupational Therapy Diagnostic Evaluation was conducted and the evaluator recommended that occupational therapy (OT) be continued.

         A speech and language evaluation showed that Student's receptive and expressive language skills were below his age and grade equivalent peers. His language skills showed weakness in semantics, language structure, and integrative language skills. Student's speech intelligibility was moderately impaired.

         In March 2004, a PPT was convened to review the results of the evaluations. (See P-10.) The PPT changed Student's classification to Autism and found, based on the evaluation, that PT should be discontinued. In 2006, the PPT recommended a psychological evaluation because Student exhibited disruptive, off-task behaviors that were affecting his academic performance. Dr. Felicia Morgan provided a consultation summary in which she noted that NBBOE had no consistent behavior plan. She recommended that a behavior plan needed to be developed with the focus on off-task behaviors, being appropriate with others, and following directions.

         II. Plans for Student's Fifth Grade Year

         On or about March 18, 2008, the PPT met in order to plan Student's 2008-2009 (fifth grade) school year. The PPT established detailed goals and objectives to address Student's reading deficits, math deficiencies in computation, reasoning skills, and written language skills. A Board Certified Behavior Analyst (BCBA) was not involved in Student's program. Parent requested an independent educational evaluation. The speech and language pathologist drafted Student's speech and language goals and objectives for the 2008-2009 school year. The speech and language goal was written to address Student's deficits in receptive and expressive language and improve Student's ability to comprehend class instructions and thereby increase his class participation. Student's goals and objectives were developed to reduce Student's impulsivity.

         Parent requested a one-to-one special education teacher at a PPT meeting held on June 12, 2008. The team agreed to have the special education teacher work with Student on a one-to-one basis for one hour each week in the resource room. The team agreed to provide Student with speech and language services during the summer of 2008.

         III. Fifth Grade at Gaffney Elementary School in New Britain

         During the 2008-2009 school year, Student was in a mainstream classroom with non-disabled peers with modifications. Student's paraprofessional worked with him one-to-one with the intent of making him independent. According to Student's teacher, he had improved in the fifth grade and was in fact functioning more independently. In the classroom, Student received instruction from the special education teacher, the regular education teacher, and a paraprofessional.

         On or about July 2008, Student had a psychological evaluation performed by Erik A, Mayville, Ph.D., of the Institute for Educational Planning (IEP). (See P-51a.) Dr. Mayville found a marked difference between Student's reading decoding and reading comprehension abilities. In mathematics and oral language Student performed in the extreme low range. In his written language Student was only capable of completing one subtest. He performed in the high average range in spelling. In sentence and paragraph subtests his scores were below the level required for a norm-based score of these subtests. In the Peabody Picture Vocabulary Test, 3rd Edition, Student performed at a 5-year, 2-month age equivalent.

         In the Vineland Adaptive Behavior Scales, 2nd Edition, Parent and his teacher completed the forms from which the scores were calculated. Parent scored Student as low in all domains while his special education teacher scored him as falling at moderately low adaptive levels. In the maladaptive behavior scale Student's level was clinically significant. The evaluator gave Parent and the special education teacher the Social Response Scale to complete. Parent reported that Student had social difficulties at home; the special education teacher reported the same was true in the school setting. Parent's rating demonstrated severe impairment in contrast to the teacher's mild-to-moderate ratings.

         Dr. Mayville recognized that developing an educational program for Student is a complex task. He made sixteen recommendations, including the following: (1) Student's program should be "overseen by a behavior specialist with experience designing behavior change programs for persons with [autism]" (P-51 at 17); (2) Student "should have access to a 1:1 teaching assistant" (id. at 18); (3) teaching staff should demonstrate competency in behavior analytic procedures; (4) behavior programs needed to be developed so as to reduce prompting; (5) a home-based program was needed; (6) carefully planned and sequenced language-comprehension and expression programming was needed; (7) the areas of Student's programming central to his social needs needed to be sequentially addressed.

         IV. Plans for Sixth Grade and Transition to the Classical Magnet School in Hartford

         The PPT met on March 16, 2009 to plan for Student's 2009-2010 (sixth grade) school year. Student had not mastered any of his goals from the 2008-2009 school year. A PPT meeting was held on April 27, 2009 to review Dr. Mayville's evaluation and Parent's request for evaluations. Dr. Mayville attended the meeting via telephone conference; Parent's request for an occupational therapy evaluation was denied as unwarranted "due to current evaluations & observations already conducted." (P-61 at 3.) Regarding Parent's request for a full PT evaluation, the team recommended "PT observation of [Student's] running, jumping, gross motor skills, [and] stair climbing." (Id. at 2.) The team granted Parent's request for 90 minutes per week of direct speech and language services. (Id.) Parent did not request due process hearings to the extent his requests were denied.

         Parent entered Student into the Choice Lottery for the 2009-2010 school year. Student was selected for a slot at the Classical Magnet School ("Classical"). Classical is one of twelve regional magnet schools operated by HBOE pursuant to a Stipulated Agreement between the State of Connecticut and the plaintiffs in Sheff v. O'Neill, 678 A.2d 1267 (Conn. 1996). The overall purpose of magnet schools is to allow students to be educated in an ethnically and racially diverse educational setting. Approximately 50% of the seats at Classical are reserved for suburban students. The other 50% are for HBOE students. Parents who wish their children to attend any inter-district magnet school must place their names in a state-run lottery. Students are chosen at random. The parent must actively accept the seat that is offered. Classical does not have the right to refuse a seat to any student who has been accepted through the lottery system, even based on the student's special education needs. Classical does not have a BCBA on staff. Classical is closed for summer vacation and staff are not available.

         On April 25, 2009, Parent signed a form authorizing Gaffhey to release Student's records to Classical. (P-60.) Parent completed the Home Language Survey and signed the Classical Magnet School Compact. Parent indicated on the enrollment form that he wanted Student to be mainstreamed for special education. The special education teacher at Classical, Sharon McCutcheon, requested that Parent set up a PPT meeting with NBBOE school staff so that she could attend and facilitate Student's transition to Classical.

         A PPT meeting was held on June 15, 2009 at the request of Parent to conduct a program review because of Student's proposed attendance at Classical. Two Classical special education teachers, including Ms. McCutcheon, attended the meeting. They attended in order to "have an opportunity to view the IEP and also to hear from the people who are currently implementing the IEP to have a better understanding of the child and the services that need to be put in place when school starts." (Tr. Mar. 14, 2011 (McCutcheon), at 111.) Parent informed the PPT that Student was receiving outside services from physical and occupational therapists. Ms. McCutcheon told the team that Classical had available "all pieces" to implement the IEP. (Id. at 115.) Ms. McCutcheon explained to the PPT that students at Classical are fully included and participate in all core classes including English, history, science, math, and Latin. (Id. at 114.)

         NBBOE had planned to enroll Student at a middle school within the New Britain public school system. On July 20, 2009, Parent met with NBBOE personnel and signed an agreement to change Student's IEP without convening an PPT meeting.[5] Parent was represented by an advocate at the meeting. Staff from Classical were not invited to the meeting, nor did any Classical staff attend. According to a note in the "summary" of the changes, Parent "requested] for [Student] to attend Classical Magnet School in Hartford." (P-68 at 4.)

         The agreed-upon modifications to the IEP required that Student have a one-to-one paraprofessional, and that speech and language services would be increase to 1.5 hours each week. A note in the "accommodations and modifications" section of the plan indicated that Student would also receive "[b]ehavioral consultant support by an agency that has BCBA on staff for a minimum of 5 hrs a week to begin with, with time adjusted depending on progress/need." (Id. at 6.)

         According to Ms. McCutcheon, at some point after the July 20, 2009 meeting, the New Britain public schools sent her a copy of the changes to the IEP. (Tr. Mar. 14, 2011 (McCutcheon), at 126.) Ms. McCutcheon discussed those changes with New Britain personnel; she was concerned about the addition of the BCBA requirement because Classical did not have a behavior consultant as part of its regular staff. (Id.) Based on a conversation with New Britain special education coordinator Meg Walsh, Ms. McCutcheon understood that the BCBA services were to be put in place only if Student remained at the New Britain schools. (Id.)

         V. Sixth and Seventh Grades at Classical

         At the beginning of Student's attendance at Classical there was no problem with his behavior. Beginning hi late January 2010, staff began seeing a change in Student's behavior. (Tr. Mar. 14, 2011 (McCutcheon), at 188.) Staff became concerned about Student's behavior after a February PPT meeting. (Id. at 189.) Beginning in March 2010, Student was removed from class because of disruptive behavior that impeded his learning and also affected his peers. Student was calling out and giggling out loud during classes.

         After the February PPT meeting, there was a decline in Student's performance and he was being removed from class to be refocused. The November 2009 progress report for Student's communication goals showed that he was making satisfactory progress, but the February 2010 progress report showed his progress as unsatisfactory. Despite the July 20, 2009 amendment to the IEP adding the BCBA requirement, it is undisputed that a BCBA was not retained by NBBOE or by HBOE to manage Student's behavior. The circumstances relating to that failure are discussed in greater detail below.

         Ultimately, a PPT meeting was held on May 21, 2010. The notes from that meeting indicate that Classical staff would develop a behavior plan to address Student's problematic behaviors. (P-88 at 3.) The notes also indicate that Parent would visit the autism class at NBBOE's Slade Middle School, but that the program at Classical would remain in place pending exploration of the program at Slade. (Id.) In a note to the PPT dated August 17, 2010, Parent stated that he visited and observed Slade's autism program, and that he did not believe that Slade was the right placement for Student. (P-91.) Parent asserted that, until Dr. Mayville could evaluate Slade's program, Parent would "insist that the right placement is the Connecticut Center for Child Development [CCCD] in Milford, Ct" (Id.)

         On or about September 13, 2010, Dr. Mayville completed a (second) psycho-educational evaluation of Student. (See P-96.) Dr. Mayville concluded that Student's school program was "not yet. . . appropriate, " and issued sixteen recommendations. (Id. at 12-17.) Dr. Mayville reviewed the behavior plan that Classical had developed; he concluded that it was lacking in several respects (see Id. at 3-4), and recommended a six-point behavior plan (see Id. at 13-14), Dr. Mayville also concluded that Student "and his family are in desperate need of home-based programming." (Id. at 14.) Dr. Mayville also presented findings from his review of the program at Slade as a "prospective program" for Student. He found that Slade's program was based on the "SCERTS" model (id. at 7), which Dr. Mayville did not recommend as an educational model for Student (id. at 15-16). It is undisputed that Student remained at Classical for the 2010-2011 (eighth grade) school year.

         Procedural History

         Parent filed a hearing complaint with the Connecticut State Department of Education (CSDE) on October 7, 2010, asserting that the boards had failed to provide Student with a free and appropriate public education (FAPE) as required by the IDEA, and requesting an administrative hearing under 20 U.S.C. § 1415. (See 7-111.) Hearing Officer Justino Rosado heard thirteen days of testimony before issuing the 21-page August 2, 2011 Final Decision and Order.[6] The Hearing Officer identified the following 12 issues for resolution (referring to NBBOE as the "Board"):

1. Was the program provided by the Board for the 2008-2009 school year appropriate and did it provide the Student with a free and appropriate education (FAPE) in the least restricted environment (LRE)?
2. Was the program provided by the Board for the 2009-2010 school year appropriate and did it provide the Student with FAPE in the LRE?
3. Is the program provided by the Board for the 2010-2011 school year appropriate and does it provide the Student with FAPE in the LRE? If not; 4. Should the Student be placed at CCCD for the 2010-2011 school year- in a year round program at the Board's expense?
5. Should the Board provide transportation to CCCD for the 2010-2011 school year?
6. Should the Board pay for an in-home program coordinated by a BCBA provided by CCCD?
7. Should the Board pay for OT and PT evaluations of the Student by an evaluator chosen by the Parent?
8. Should the Board provide Compensatory Education for the denial of FAPE for the 2008-2009 school year?
9. Should the Board provide Compensatory Education for the denial of FAPE for the 2009-2010 school year?
10. Should the Board provide Compensatory Education for the speech and language services that were in the IEP and not provided?
11. Should the Board reimburse the Parent for therapeutic services provided by the Parent?
12. Should the Board reimburse the Parents for the IEE performed by Dr. Mayville?

(Doc. 19-1 at 1-2, ¶¶ 1-12.) The Hearing Officer then made 50 paragraphs of factual findings and 19 paragraphs of legal conclusions. (Id. at 3-19.)

         Finally, the Hearing Officer issued the following 10-paragraph order (referring to Classical as the "Magnet School"):

1. The program provided by the Board for the 2008-2009 school year was appropriate and provided the Student with FAPE in the LRE.
2. The program provided by the Board and the Magnet School for the 2009- 2010 school year was not appropriate and did not provide the Student with FAPE in the LRE.
3. The program offered by the Board and the Magnet School for the 2010- 2011 school year was not appropriate and would not provide the student with FAPE in the LRE.
4. The program at CCCD is not appropriate.
5. There was insufficient evidence to show that the Student would benefit from an in-home program coordinated by a BCBA.
6. The Board shall provide independent occupational therapy and physical therapy evaluations of the Student. These evaluations shall be done by Connecticut Children Medical Center staff and their recommendations incorporated in the Student's IEP.
7. The Board shall hold a planning and placement team meeting within two weeks of the mailing of the decision.
a. The Board shall invite Dr. Erik Mayville to the PPT and Dr. Mayville shall consult with the PPT in developing and implementing an appropriate special education program for the Student. If Dr. Mayville is not available the Institute for Professional Practice will be an adequate replacement.
b. The program will be at the Board's Middle School.
c. The program shall include a BCBA that shall work with the Student 5 hours per week. The BCBA shall do a functional behavior assessment of the Student and write a behavior management plan for the Student.
8. The Student is entitled to 90 school days of compensatory education in the form of after school speech and language therapy with a private speech and language pathologist chosen by the Board and the Magnet School for 2 hours each school day or 180 hours. The compensatory education shall be provided according to a schedule developed by the speech and language pathologist in consultation with the Parent. The compensatory education shall be provided during the 2011-2012 school year. The cost shall be divided equally by the Board and the Magnet School. The Board and the Magnet School shall provide transportation to and from the speech and language pathologist they have chosen. This compensatory education is for the denial of FAPE during the 2009-2010 school year for which both the Board and the Magnet School were responsible. If the Board and the Magnet School cannot agree on a pathologist, the Parent shall chose the pathologist and the Board and the Magnet School shall pay for transportation up to a 40 mile round trip limit.
9. The Board shall reimburse the Parent only for the IEE evaluation performed by Dr. Mayville on or about September 13, 2010 to the extent that the Parent incurred out of pocket expenses. The Parent shall provide the Board with a copy of the receipt or the cancelled check for his out of pocket payment.
10. The Board does not have to reimburse the Parent for the therapeutic services provided by the Parent as there was no evidence of any cost incurred.

(Doc. 19-1 at 19-20, ¶¶ 1-10.)

         Plaintiffs filed their Complaint in this court case on September 2, 2011. (Doc. 1.) In November 2011, the court consolidated the action with NBBOE's case, No. 3:11-CV-01431. (Doc. 23.) On October 8, 2013, trie court issued a 57-page ruling which, among other things, granted HBOE's motion to dismiss Plaintiffs' claims for punitive damages, but denied HBOE's motion to dismiss in all other respects. A. ex rel, A. v. Hartford Bd. of Educ, 976 F.Supp.2d 164 (D. Conn. 2013).[7]

         All parties filed motions for summary judgment on March 4, 2014. (Docs. 126, 128. 129.) On October 31, 2014, as briefing on the motions was nearing completion, Plaintiffs filed a Motion to Supplement their request for attorneys' fees. (Doc. 198-1.) Briefing on that motion as well as the summary judgment motions was complete on January 26, 2015. The case was transferred to the undersigned on June 29, 2015. (Doc. 219.) The court heard oral argument on the summary judgment motions on February 18, 2016. (Doc. 221.) The parties filed post-hearing memoranda, the most recent of which was filed on May 5, 2016. (See Docs. 222, 229, 232-1.)

         Analysis

         I. Summary Judgment Standard

         As to the portions of these consolidated cases that seek review of the hearing decision, the summary judgment standard is modified. In reviewing the administrative proceedings in an IDEA case, the summary judgment procedure "involves more than looking into disputed issues of fact; rather, it is a 'pragmatic procedural mechanism' for reviewing administrative decisions." M.O. v. New York City Dep't of Educ., 793 F.3d 236, 243 (2d Cir. 2015) (per curiam) (quoting AC. ex ret. M.C. v. Bd. of Educ, 553 F.3d 165, 171 (2d Cir. 2009)). "While the district court must base its decision on the preponderance of the evidence, it must give due weight to the administrative proceedings, mindful that the judiciary lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy." Id. (quotingA.C, 553 F.3d at 171). The Hearing Officer's decision receives no deference, however, on questions of interpretation of law. See Mrs. B. v. MilfordBd. Of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997).

         With respect to the other claims in this case, the ordinary summary judgment standard applies. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a genuine dispute of material fact, "[a]ll reasonable inferences must be construed in the nonmoving party's favor." Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011). Initially the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion has been made, the burden shifts to the nonmoving party to set out specific facts showing a genuine issue for trial. Cifarelli v. Vill. of Babylon, 93 F, 3d 47, 51 (2d Cir. 1996). When addressing cross-motions for summary judgment, the court "evaluate[s] each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 216 (2d Cir. 2015) (quoting Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010)).

         II. Review of the August 2, 2011 Final Decision and Order

         In their summary judgment motion, Plaintiffs seek reversal of the hearing decision only insofar as it declined to grant Student an in-home program. (Doc. 1264 at 93.) NBBOE seeks summary judgment on its argument that the hearing decision should be reversed to the extent that it attributes to NBBOE any responsibility for Student's program during the 2009-2010 and 2010-2011 school years. (Doc. 136 at 33.) Alternatively, NBBOE seeks summary judgment reversing the portion of the hearing decision that concluded NBBOE had committed violations warranting compensatory education, (Doc. 136 at 43-48.) HBOE has not appealed the hearing decision. (See Doc. 152 at 2 n.1.)

         A. Decision to Hold NBBOE Liable

         The Hearing Officer concluded that, for the 2009-2010 and 2010-2011 school years at Classical, the program provided by both NBBOE and HBOE "was not appropriate and did not provide the Student with FAPE in the LRE." (Doc. 19-1 at 19, ¶¶ 2-3.) According to the Hearing Officer, both NBBOE and HBOE "interfered with the Parent's right to fully participate in PPT decisions by failing to call a PPT meeting when it became clear to [Classical] that the services added by the July 20, 2009 Amendment to the IEP would not be implemented." (Id. at 17, ¶ 12.) The Hearing Officer concluded:

Given the level of maladaptive behavior, the proper course was for [Classical] to notify [NBBOE] of the need for a PPT meeting and for [NBBOE] to convene a PPT so that the requirement of a skilled behavior specialist be used in conjunction with the Student's program as was added by the July 20, 2009 Amendment, but not implemented at [Classical],

(Id.)

         The Hearing Officer acknowledged that Classical had failed to implement the behavioral-specialist requirement, but that both boards were responsible for the violation because they both failed to request a PPT meeting to discuss the deficiency and target Student's unique needs. (Id.)The Hearing Officer found that neither board called a PPT to discuss developing a behavior plan until the May 21, 2010 PPT meeting. (Id.) The Hearing Officer indicated that that discussion was too late (see Id. (May 21 PPT meeting occurred "four months after the teaching staff concluded that the Student's behavior was impeding his education")), and concluded that the behavior plan that was finally created was "inadequate" (id.).

         The Hearing Officer also concluded that both boards failed to have the PPT determine whether Classical had an appropriate program for Student, and failed to recognize Student's "downward spiral, " thereby improperly continuing his placement at Classical for the 2010-2011 school year. (See Id. at 18, ¶ 13.) According to the Hearing Officer, the boards did not have to continue a placement that was not providing Student with minimal benefit, and "could have filed for due process and challenged the requested placement of the Student as not providing FAPE in the LRE." (Id.)

         NBBOE asserts that it was error to find NBBOE liable, arguing that, after Parent "unilaterally" decided to place Student at Classical, the responsibility for providing an education program to Student in the 2009-2010 and 2010-2011 school years belonged solely to Classical (and by extension, HBOE). (Doc. 136 at 33; see also Doc. 181 at 5.) NBBOE relies upon the following provision of Connecticut law, which appears in a section regarding the operation of interdistrict magnet schools:

In the case of a student identified as requiring special education, the school district in which the student resides shall: (1) Hold the planning and placement team meeting for such student and shall invite representatives from the interdistrict magnet school to participate in such meeting; and (2) pay the interdistrict magnet school an amount equal to the difference between the reasonable cost of educating such student and the sum of the amount received by the interdistrict magnet school for such student pursuant to subsection (c) of this section and amounts received from other state, federal, local or private sources calculated on a per pupil basis. Such school district shall be eligible for reimbursement pursuant to section 10-76g. If a student requiring special education attends an interdistrict magnet school on a full-time basis, such interdistrict magnet school shall be responsible for ensuring that such student receives the services mandated by the student's individualized education program whether such services are provided by the interdistrict magnet school or by the school district in which the student resides.

Conn. Gen. Stat. § 10-264/(h) (emphasis added). NBBOE argues that, under § 10-264/(h), it had no legal obligation to ensure the provision of Student's IEP services and no right to override HBOE. (Doc. 136 at 42; see also Doc. 181 at 1.)

         A Connecticut court interpreting § 10-264/(h) would seek to give effect to the intent of the legislature, and would begin by considering the text of the statute and its relationship to other statutes. In re Nevaeh W., 120 A.3d 1177, 1182 (Conn. 2015); see also Conn. Gen. Stat. § l-2z (plain meaning rule). Here, the plain text of § 10-264/(h) required NBBOE to hold the PPT meetings for Student. The provision requiring HBOE to ensure that Student received the services mandated by his IEP does not withdraw NBBOE's responsibility to hold the PPT meetings. For the reasons described below, the Hearing Officer's conclusions are consistent with§10-264/(h).

         The Hearing Officer found that NBBOE improperly failed to call a PPT meeting when it became clear to Classical that the services added by the July 20, 2009 Amendment to the IEP would not be implemented. NBBOE argues that it had no reason to call the meeting earlier, because Classical never informed NBBOE of the need for an earlier meeting. (Doc, 181 at 10- 11.) According to NBBOE, the Hearing Officer "expressly acknowledged that Classical Magnet did not inform New Britain of the need for a PPT meeting." (Id. at 10.) In support, NBBOE cites the Hearing Officer's statement quoted above:

Given the level of maladaptive behavior, the proper course was for [Classical] to notify [NBBOE] of the need for a PPT meeting and for [NBBOE] to convene a PPT so that the requirement of a skilled behavior specialist be used in conjunction with the Student's program as was added by the July 20, 2009 Amendment, but not implemented at [Classical],

(Doc. 19-1 at 17, ¶ 12.)[8]

         The Hearing Officer's 50-paragraph "Findings of Fact" do not include explicit findings on whether or when-after the February 25, 2010 PPT but before the May 21, 2010 PPT- Classical notified NBBOE of the need for another PPT to address Student's maladaptive behavior. However, the Hearing Officer's statement about the "proper course" fairly suggests that he found that Classical failed to timely notify NBBOE of the need for a PPT meeting. The Hearing Officer's decision holding HBOE liable suggests that same thing. Nevertheless. Plaintiffs and HBOE both assert that Classical did notify NBBOE. (See Doc. 196 at 16-18; Doc. 197 at 34.)

         The record reveals some evidence that, after the February 25, 2010 PPT, Classical did attempt to schedule another PPT to address Student's behavior. HBOE logged attempts to seek Parent's participation in a PPT after February 25, 2010, beginning with a March 8, 2010 phone call from NBBOE. (P-104A at 7.) The additional PPT was initially scheduled to address "extended-year services." (Tr. Mar. 14, 2011 (McCutcheon), at 177.) HBOE's log shows multiple communications after March 8-through April and early May-attempting to find dates that worked for all of the PPT participants, including Parent and his advocate. (See P-104A at 7-8.) MS. McCutcheon testified that she was involved in attempting to schedule a further PPT for dates in late April and in May. (Tr. Mar. 14, 2011 (McCutcheon), at 177-80.) She also testified that, at some point during the process to schedule the additional PPT, she notified Nancy Hasbani of NBBOE that Classical had noticed a decline in Student's behavior after the February 25, 2010 PPT. (See Id. at 178.) Given that attempts to schedule another PPT began on March 8, 2010, it seems unlikely that the PPT could have occurred earlier than May 21, 2010- even if Classical had notified NBBOE of the concern about behavior earlier.

         In any case, the Hearing Officer's conclusion on this issue was broader than a concern that no PPT was called quickly enough after February 25, 2010 to address Student's declining behavior in winter and early spring 2010. Instead, the Hearing Officer found that NBBOE failed to call a PPT meeting "when it became clear to [Classical] that the services added by the July 20, 2009 Amendment to the IEP would not be implemented." (Doc. 19-1 ¶ 12.) The July 20, 2009 Amendment included a requirement of a "[b]ehavioral consultant support by an agency that has BCB A on staff for a minimum of 5 hrs a week to begin with, with time adjusted depending on progress/need." (P-68 at 6.) It is undisputed that NBBOE informed Classical that a behavioral consultant had been added to the IEP. New Britain special education coordinator Meg Walsh testified that Classical was informed because the amendment was sent to Classical. (Tr. Mar. 9, 2011 (Walsh), at 202.) Ms. McCutcheon from Classical testified that she received a copy of the changes to the IEP from NBBOE. (Tr. Mar 14, 2011 (McCutcheon), at 126.)

         There was apparently some confusion as to whether the BCBA requirement applied to Classical. Classical did not have a behavior consultant as part of its regular staff. Ms. McCutcheon testified that she "understood from a conversation with Ms. Walsh that the behavioral consultant was to be provided only if Student attended Slade. (See id.; see also Tr. Mar. 15, 2011 (McCutcheon), at 141.) In contrast, Ms. Walsh testified that she never told Ms. McCutcheon that the behavioral consultant was only relevant if Student attended Slade, (Tr. Apr. 6, 2011 (Walsh), at 109.) In any case, it is undisputed that a PPT meeting was never called to discuss the issue. It is also undisputed that a BCBA was not retained by either NBBOE or by Classical to manage Student's behavior.

         Here, it is unnecessary to determine whether the July 20, 2009 Amendment in fact only required a BCBA if Student attended Slade. It is also unnecessary to resolve the dispute over whether Classical took "no action" to address the issue.[9] Even assuming that the boards attempted to schedule a PPT in fall 2009, and assuming that the issue of the BCBA would have been on the agenda, [10] it does not appear that any further attempts were made to resolve the issue after Parent canceled the meeting scheduled for October 29, 2009. (See P-104 at 100, 108.)[11]Moreover, it does not appear that the issue of the BCBA was addressed or resolved even at the February 25, 2010 PPT.[12] The record supports the Hearing Officer's conclusion that both boards failed to take up and resolve the issue presented by the BCBA requirement that appeared in the IEP when Student began attending Classical.

         The Hearing Officer also found that NBBOE improperly failed to have the PPT determine whether Classical had an appropriate program for Student. The Hearing Officer did not fault NBBOE for failing to successfully change or override Student's placement at Classical at a PPT meeting. The fault was for failing to have a PPT consider that issue, which, in turn, meant the neither board invoked the due process procedure to resolve any impasse at the PPT.

         NBBOE asserts that the PPT lacked authority to change Student's placement at Classical and that only Parent had that authority. (Doc. 136 at 42.) NBBOE cites Student v. Winchester Board of Education, Case No. 10-0069 (Feb. 4, 2010), noting that that decision affirms that a PPT could decide to change a student's placement. (See Doc. 181 at 9-10.)[13] It is true that, since Parent was a member of the PPT, as long as he opposed withdrawing Student from Classical, the PPT could not achieve consensus on that issue. See A.S. ex rel. P.B.S. v. Bd. of Educ. for Town of W. Hartford, 47 Fed.App'x 615, 616 (2d Cir. 2002) (student's father's disagreement prevented the required consensus for PPT to decide placement). However, such an impasse may be resolved at a due process hearing. See Id. (after PPT was unable to reach consensus regarding placement, school board requested ...


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