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A. v. Greenwich Board of Education

United States District Court, D. Connecticut

July 21, 2016




         Plaintiffs, Mr. and Mrs. A (together, "Parents"), parents of Z.A. ("the "Student"), bring this action against Defendant Greenwich Board of Education ("the Board"). Parents bring 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, Parents 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. 25-29, 33. This Ruling resolves both motions.

         I. Background

         Z.A. is a fifteen-year old student at the Eagle Hill School ("Eagle Hill") in Greenwich, CT, a special education facility as determined by the Connecticut State Department of Education. Z.A. first matriculated at Eagle Hill for the 2013-14 school year following Parents' decision to move the family from New York City to Greenwich in 2013. Z.A. had spent the previous four academic years at the Summit School ("Summit") in New York City, which is also a private school designed for students with special educational needs. Parents' decision to send Z.A. to Eagle Hill, rather than a public school within the Greenwich Public School ("GPS") system and under the jurisdiction of the Defendant Board, is the focus of the instant dispute.

         Parents initially became concerned about Z.A.'s abilities while Z.A. was in preschool. Mrs. A. Tr. (7/24/14) at 49.[1] Parents retained Dr. Ellen A. Farber to conduct an evaluation of Z.A. in February 2006, when Z.A. was five and a half years old. B-5, at 1. Dr. Farber summarized the results:

During that evaluation, [Z.A.] demonstrated average intellectual abilities with impoverished language. He tired quickly and became frustrated. On language measures he had difficulty interpreting spoken sentences when the language increased in structural complexity and in idea density.

B-5, at 1. In light of these difficulties, Parents decided to send Z.A. to Manhattan Country School, a private school in New York City. Dr. Farber conducted further psychological evaluation of Z.A. in December 2007 and March 2008, specifically diagnosing Z.A. with "mixed receptive-expressive language disorder, " and determining that he "meets criteria for a diagnosis of learning disability in the areas of processing speed, graphomotor coordination, and expressive writing." B-5, at 7. Dr. Farber further stated that Z.A. "needs to be in a school for children with language and learning disabilities." B-5, at 7.

         While attending the Manhattan Country School Z.A. began to struggle socially, which concerned Parents enough to enroll Z.A in New York City public school for second-grade for the 2008-09 school year. Mrs. A. Tr. (7/24/14) at 51. In fact, Parents removed Z.A. from the Manhattan Country School after a safety issue arose during Z.A.'s first day of second grade. Id.; B-6, at 1 ("He left Manhattan [Country School] abruptly after the first day of his third year there when his mother, who attended a school picnic with him, saw how cruelly he was being picked on by the other boys"). However, Parents were unsatisfied with Z.A.'s experience in New York City public school because Z.A. "just couldn't get consistency of support." Id. On the recommendation of Dr. Farber, Parents chose to send Z.A. to Summit in New York City for third grade during the 2009-10 academic year. Payment for the Summit tuition was paid for by the New York City Department of Education and the New York State Education Department in light of their finding that Z.A. was disabled pursuant to the IDEA and that the New York City Department of Education "is not able to provide the special education services recommended for [Z.A.]." P-20.

         At some point in 2010, Z.A. began to visit board certified psychiatrist Dr. Roger Rahtz, who has since then continuously and regularly treated Z.A. Dr. Rahtz Tr. (9/4/14) at 6; Mrs. A. Tr. (7/24/14) at 66-67. Additionally, in August of 2011, Parents retained the services of Dr. Andrew Morrel to conduct another psychological evaluation of Z.A. B-6. Ultimately, Dr. Morrel's summary of Z.A. was as follows:

[Z.A.] is a boy of superior intellectual ability who was only intermittently able to function at the level of his potential owing to his uneven attention, motivation and frustration tolerance[.] His greatest cognitive strengths lie in his reasoning and his visual spatial problem-solving abilities, while relevant vulnerabilities were noted in his expressive language, his graphomotor facility and his attentional/executive skills.

B-6, at 8.

         Z.A. attended Summit for the third through sixth grades, spanning the academic years of 2009-10, 2010-11, 2011-12, and 2012-13. Present in the record are two Individual Education Plans ("IEPs") crafted by the New York Committee on Special Education that were created while Z.A. was at Summit. One, dated March 6, 2012, was operative for Z.A.'s sixth-grade year at Summit during 2012-13. The second, dated May 24, 2013, was to be operative for Z.A.'s seventh-grade year during 2013-14.[2] These IEPs, fifteen and seventeen pages respectively, contain detailed information including, but not limited to, Z.A.'s then present level of performance and needs, specific annual goals, and recommended special educational programs and services. B-1; B-2. The latter consists of: (i) a special education class with a staffing ratio maximum of 12:1:1.5[3]; (ii) speech-language therapy twice per week for thirty minutes; (iii) occupational therapy twice per week for thirty minutes; (iv) individual occupational therapy once per week for thirty minutes; and (v) group occupational therapy once per week for thirty minutes. B-1, at 9-10; B-2, at 11. The May 2013 IEP also stated that Z.A.'s "[p]rogram setting precludes participation" in "regular class, extracurricular and other nonacademic activities." B-2, at 14. It also stated that Z.A. requires a "specialized school '12:1, ' because "[Z.A.] requires a highly specialized program with support services not available in public school to meet his educational needs." B-2, at 16.

         Z.A.'s May 2013 IEP, created for implementation during the following 2013-14 school year, would not go into effect at Summit because at this time Parents were planning to move the family from New York City to Greenwich. Parents decided to move for several reasons, one related to the struggles and stresses faced by Z.A. in New York City generally and at Summit specifically, but also due to adverse changes in Mr. A.'s employment situation.

         Parents had been planning to move to Greenwich for some time, and had owned a house in the town since 2002. Mrs. A. Tr. (10/21/14) at 31. One reason Parents decided on Greenwich was the quality of the school system. Id. At some point in 2012, Mrs. A. toured Greenwich's Central Middle School ("CMS"), the school which Z.A. would have attended if he were to attend a school under the Board's jurisdiction. Id. at 31-2. Mrs. A testified that she toured CMS with the intention that Z.A. would eventually attend school there. Id. Around this time, however, Parents were also considering Eagle Hill, which was recommended to them by Dr. Morrel when Z.A. was initially struggling at Summit. Mrs. A. Tr. (7/24/14) at 52. At some point in 2012, Mrs. A. even called Eagle Hill, but never followed up. Id. at 52-53.

         Once Mr. A.'s financial setback occurred near the end of that year, 2012-or, as testified to by Mrs. A., once "all hell broke loose"-Parents began to consider moving in earnest, and Eagle Hill came up again. Id. at 53. In February of 2013, Z.A. and Mrs. A. took a tour of Eagle Hill, with Z.A. taking part in an interview the same day. Shortly thereafter, [4] Z.A. was accepted by Eagle Hill for the 2013-14 school year. Mrs. A. Tr. (10/21/14) at 36. On March 12, 2013, Parents paid a $6, 075 deposit to Eagle Hill, securing Z.A.'s enrollment at the school for the 2013-14 academic year. The contract signed by Mrs. A. stated that she would be required to pay the entire year's tuition of $60, 750 if she were to withdraw Z.A. after June 1, 2013. Mrs. A. testified that she was willing to risk forfeiting that entire payment if Z.A. were not to attend Eagle Hill.[5] Id. at 41.

         On May 28, 2013, Z.A. had his first of four evaluation sessions with Dr. Timothy Heitzman, a pediatric neuropsychologist at the Southfield Center for Development in Darien, CT. B-7. One of the principal reasons that Parents obtained the services of Dr. Heitzman was to "help them to find an appropriate school placement for [Z.A.]." B-7, at 1. Z.A. met again with Dr. Heitzman on June 4, June 5, and June 7, 2013. Ultimately, Dr. Heitzman issued a Neuropsychological Evaluation of Z.A., dated August 14, 2013. B-7.

         During the first week of June 2013, Parents closed on their new house and physically relocated to Greenwich. Parents thereafter registered Z.A. at CMS on June 7, 2013. Parents did so even though, as discussed, Z.A. was at the time enrolled at Eagle Hill and the June 1, 2013 date had passed by which they were contractually obligated to pay Eagle Hill the entire 2013-14 academic year's $60, 750 tuition. Also on June 7, 2013, Mrs. A. took a short tour of CMS, led by CMS guidance counselor Colleen Alfano. Mrs. A. did not bring Z.A. on this visit to CMS. Z.A. was in school that day at Summit, where he was set to finish the 2012-13 academic year. Mrs. A. Tr. (10/12/14) at 43.[6]Mrs. A. did not have a positive reaction to what she saw on the tour of CMS. She testified that although "it looked like a nice school, . . . it was not going to be appropriate for [Z.A.]." Mrs. A. Tr. (7/24/14) at 58. She specifically identified "the bustling in the hallways, the sounds, the sensory experience, " as well as "[m]ultiple people in the classrooms, large class sizes, lots of voices, the acoustics, the smells." Id. at 58; Mrs. A. Tr. (10/21/14) at 8.

         At some point after June 7, 2013, Parents requested that the Defendant Board convene a Placement and Planning Team ("PPT") to create an IEP for Z.A. Prior to the PPT meeting, Parents provided to the Board the Summit New York IEPs from March 6, 2012 and May 24, 2013, as well as the 2008 report of Dr. Farber and the 2011 report of Dr. Morrel. Parents did not inform the Board that they had already enrolled Z.A. at Eagle Hill, or that they were even considering a private placement for Z.A. Parents also did not inform the Board that Z.A. had just a few weeks prior spent four sessions with Dr. Heitzman or that Dr. Heitzman would soon be issuing a comprehensive neuropsychological evaluative report. This is despite the fact that the express purpose of that report was to assist with finding a proper school placement for Z.A.

         The Board convened the PPT meeting on June 26, 2013. Present at the meeting were: (i) Assistant Principal Dr. Jo Frame, the administrator of the PPT; (ii) special education teacher Carolyn Hoette; (iii) general education teacher Kevin Krois; (iv) school psychologist Dr. Scott McCarthy; (v) speech/language pathologist Julie Webster; (vi) guidance counselor Colleen Alfano; and (vii) Mrs. A. Sherri Bordoff, the Clinical Director at Summit, also participated by telephone.

         The PPT determined that Z.A. was disabled, specifically, that he suffered from an "Emotional Disturbance." B-3, at 2. The PPT therefore determined that Z.A. was "[e]ligible as a student in need of Special Education, " and that "[t]he child is evaluated as having a disability, and needs special education and related services." B-3, at 2. However, the PPT did not create an IEP for Z.A. Rather, "[t]he team agreed to a diagnostic placement, " pursuant to which Z.A. would be enrolled at CMS and evaluated during the beginning of the school year, prior to the school creating and implementing an IEP. B-3, at 2. The PPT determined the goals of the diagnostic placement to be three-fold: (i) "gather current level of academic, cognitive behavior need"; (ii) "provide education in [least restrictive environment] available to best suit [Z.A.]'s needs"; and (iii) "draft a new IEP for the 2013-2014 school year." B-3, at 4. The specific services to be provided during the diagnostic placement were to be: (i) daily 45 minute collaborative group meetings with a special education academic monitor, Carolyn Hoette; (ii) weekly 45 minute meetings with Julie Webster, CMS's speech/language pathologist; and (iii) weekly 45 minute counseling meetings with school psychologist Dr. Scott McCarthy. A PPT was to be convened every two weeks between the start of the school year and October 8, 2013 to address Z.A.'s progress through the diagnostic placement. The diagnostic placement made no reference to Z.A.'s Summit IEP, nor the contents thereof.

         Alfano testified that the purpose of the diagnostic placement in the mainstream setting accompanied with bi-weekly meetings was so that the school could "repeatedly review whether or not [Z.A.] was in the least restrictive environment and his needs were being met." Alfano Tr. (9/11/14) at 62. She also testified that the diagnostic placement is

a very intentional period of data collection and sharing and reviewing of the student's progress and placement and support services in order to collaboratively determine whether or not the student is in an appropriate placement.

Id. at 66. The purpose of collecting that data was to form a baseline from which the PPT could ultimately create an IEP. Hoette Tr. (10/17/14) at 132-33.

         CMS school psychologist and PPT member Dr. Scott McCarthy testified why he thought that a diagnostic placement was most appropriate for Z.A.:

I think the biggest questions were regarding behavioral responses to things. How would [Z.A.] do in a mainstream setting, with a mainstream teacher and a collaborative teacher. Would he be able to access the academic curriculum within that setting, and what level of support would he require.

         Dr. McCarthy Tr. (10/27/14) at 71; see Id. at 15 ("our focus was on providing the services within Central Middle School"). Dr. McCarthy also stated: "the purpose of a diagnostic placement was to determine whether the goals that had been developed in that May [Summit] IEP could be accessed . . . with the services that we were providing." Dr. McCarthy Tr. (10/21/14) at 109. Alfano testified that a motivation for the diagnostic placement at CMS was that "Ms. [A] expressed that [Z.A.] wanted to be in typical mainstream classes and wanted to not feel different and separate. And we considered that." Alfano Tr. (9/11/14) at 67; see also Dr. McCarthy Tr. (10/27/14) at 15 ("the people who knew him best were saying that a mainstream setting was going to be the most appropriate for him"); but see Dr. Rahtz Tr. (9/4/14) at 33 ("I believe that the possibility of [Z.A.] being in a mainstream setting [in June 2013] would have significant disadvantages").

         In addition to the goal of the diagnostic placement-to gain data on how Z.A. would perform during the regular-year mainstream program-PPT members made an offer at the PPT meeting to visit Z.A. over the summer, either at home or at Z.A.'s summer camp.[7] The parties describe Mrs. A.'s response to these offers in contrasting fashions. Dr. McCarthy testified that Mrs. A. "declined" this offer. Dr. McCarthy Tr. (10/21/14) at 111. Hoette testified that she did not "know exactly . . . why we didn't go to his summer camp." Hoette Tr. (10/27/14) at 87. However, at the due process hearing, Parents' counsel played a recording of the PPT meeting in which Mrs. A. stated "I love the idea, " but that she had to "ask [Z.A.'s] psychiatrist" first. Dr. McCarthy Tr. (10/27/14) at 11. Nothing in the record shows that either party followed up on the Board's request to observe Z.A. over the summer. The IHO characterized this exchange as Mrs. A. providing a "noncommittal response to the school psychologist and special education teacher's request to observe the Student over the summer." Doc. 29-1, at 7-8.[8]

         Mrs. A. did not sign the consent form as to the diagnostic placement, stating that she wanted to take it home and discuss it with Mr. A. first. Doc. 27 ¶ 33; Alfano Tr. (9/11/14) at 50. However, Mrs. A did sign an authorization form allowing GPS to obtain information from Dr. Rahtz.[9] After Mr. and Mrs. A. subsequently discussed the PPT's proposed diagnostic placement, they became convinced it was not an appropriate way forward for Z.A. Mrs. A testified that "it seemed like we would be starting from scratch, as opposed to continuing support off of the Summit experience, " and that "what was being proposed was more of a trial and error let's get to know him, and I think that's well meaning, and I understand it, but I didn't think it was appropriate for [Z.A.] in light of where he was." Mrs. A. Tr. (10/8/14) at 95-96. On June 30, 2016, Mrs. A. e-mailed Dr. Frame the following:

My husband and I are very concerned that a diagnostic placement, in particular, the one identified in the document you provided to us at the PPT meeting is not an appropriate placement for [Z.A.]. [Z.A.] cannot enter Greenwich Public Schools in the fall without an appropriate program in place.
As you know from the information we and The Summit School provided at the PPT meeting, [Z.A.] has been in a 12:1 specialized out of district placement for the last several years. Even in such a restrictive placement, he has struggled to make educational progress.

B-9, at 2.

         On July 10, 2013, Dr. Frame responded to Mrs. A.'s June 30 e-mail-after first contacting the GPS special education department[10]-and stated that the Board "would be happy to conduct another PPT meeting to try to address your concerns. Please call the school to schedule a meeting." B-9, at 3. Mrs. A. responded by e-mail the following day, July 11, 2013, stating as follows:

Given that [Z.A.] had such a difficult year, we decided to have him evaluated again. Dr. Tim Heitzman of the Southfield Center in Darien is working on the evaluation and I'd like him to attend the PPT meeting. Dr. Heitzman is currently on vacation but I think he will be back in another week and should have availability late July so I'll be trying to coordinate around that timing.

B-9, at 3. This is the first time that Parents notified anyone at GPS that they were obtaining an evaluation from Dr. Heitzman. This is despite the fact that Dr. Heitzman had already met with Z.A. four times, with the ultimate meeting having taken place more than a month prior to Mrs. A.'s July 11 e-mail.

         At some point between Mrs. A.'s July 11, 2013 e-mail and August 1, 2013, CMS Assistant Principal Mabee learned that Z.A. was enrolled at Eagle Hill for the upcoming school year. Mabee learned this not through Parents, but when Eagle Hill contacted CMS about arranging transportation for Z.A. to Eagle Hill for the 2013-14 academic year. On an August 1, 2013 telephone call, Mabee informed Parents that she learned Z.A. had been enrolled at Eagle Hill. B-12. It was Parents' unrebutted understanding that, during that call, GPS, through Mabee, expressed its intent not to schedule a second PPT in light of Z.A.'s Eagle Hill enrollment. B-12.

         In a letter dated August 9, 2013, Parents gave notice to the Board that they were "privately placing [Z.A.] at Eagle Hill School, " and that they "will be seeking tuition reimbursement and related expenses from the Greenwich School Board." B-10.[11] Parents' letter reiterated the objections they raised in their July 11, 2013 e-mail as to the diagnostic placement that arose from the June 26, 2013 PPT. The letter makes no reference to the Board's offer to conduct a subsequent PPT. Nor does it update the Board on the status of the Heitzman evaluation-the pending nature of which Parents relied on to delay the scheduling of a second PPT-which Mrs. A. had indicated would be prepared by the end of July.

         On August 16, 2013, Parents transmitted via e-mail the completed Heitzman report to Dr. Frame.[12] B-12. The e-mail also indicated that Parents were under the impression that the Board was not planning on holding a second PPT in light of Z.A.'s enrollment at Eagle Hill. B-12. Parents again reiterated their view that the diagnostic placement offered at the June 26, 2013 PPT was inappropriate, and that "we needed to make certain that [Z.A.] had an appropriate educational placement for the start of the 2013-2014 school year." B-12. The e-mail concludes by stating that "[i]f GPS had offered an appropriate program, we would have gladly considered it." B-12.

         The Board responded to the Parents' August 9, 2013 letter on August 19, 2013. B-11. The Board expressed the school's desire to conduct another PPT and told Parents to contact the school regarding its scheduling. The letter also provided details as to how Z.A. could formally withdraw from CMS. On August 27, 2013, Parents contacted GPS indicating their desire to schedule a follow-up PPT. P-8. August 27, 2013 was also the first day of school at CMS. HO-2 ¶ 21.

         A second PPT was convened on September 17, 2013, after Z.A. had begun classes at Eagle Hill. Present at this PPT were: (i) Mabee, the PPT administrator; (ii) regular education teacher Dr. Frame; (iii) special education teacher Hoette; (iv) school psychologist Dr. McCarthy; (v) speech/language pathologist Webster; (vi) program coordinator Jeffrey Libby; and (vii) Mrs. A. Z.A.'s psychologist, Dr. Rahtz, participated by telephone. In light of the additional findings in the Heitzman report, the PPT agreed that additional services were warranted beyond those called for in the first PPT. See Dr. McCarthy Tr. (10/21/14) at 116 ("this 2013 report was very, very different and suggested that [Z.A.] needed a small instruction and highly supported setting"). However, like the first PPT, this PPT also did not culminate in an IEP, but again in a diagnostic placement. This was despite Dr. Rahtz's statement at the meeting that a diagnostic placement was not appropriate for Z.A. Dr. Rahtz Tr. (9/4/14) at 48-49 ("the placement even for a relatively short time . . . in a mainstream setting would be deleterious to [Z.A.]'s self-esteem"). Although the PPT again did not incorporate Z.A.'s Summit IEP, it did dictate that "[t]he team will implement the Summit School IEP goals, 5/24/2013, during the Diagnostic Placement." B-4, at 2. This diagnostic placement would be similar in nature to the one called for during the first IEP, with the addition of: (i) a daily check-in service for Z.A.; (ii) paraprofessional support; (iii) a once weekly social skills group; (iv) a once weekly small group speech session; (v) twice weekly occupational therapy; and (vi) a BCBA consultation during the diagnostic placement.[13] Like the initially offered diagnostic placement, Z.A. would receive his general educational services as part of CMS's "mainstream" curriculum.

         Parents received the diagnostic placement plan emanating from the second PPT on September 28, 2013. On October 3, 2013, they wrote as follows in response:

My husband and I are confused as to why the PPT didn't offer this placement back in June since it is merely a transfer of the services set forth in the Summit IEP we provided to the PPT at the June meeting. Also, a Summit representative attended the June PPT by telephone to provide additional information. There is much more to his individualized education program and his unique educational needs than service hours.
We are rejecting the Diagnostic Placement Plan because it is not appropriate for Zachary.

P-11. Mrs. A. testified as to the deficiencies she saw in the diagnostic placement, such as too large of a class size, insufficient student-to-teacher ratio, lack of structure throughout the entire day, including lunch, the lack of appropriate emotional support from properly trained individuals, as well as the lack of having one point person formally assigned to Z.A. Mrs. A. Tr. (10/8/14) at 108-11, (10/21/14) at 6-8.

         On May 2, 2014, Parents petitioned for a due process hearing to challenge the Board's diagnostic placement approach with respect to Z.A. After a failed attempt at mediation, the parties scheduled a hearing in front of the IHO. The hearing extended over seven days, on July 24, September 4, September 11, October 8, October 14, October 27, and November 24, 2014. Testifying at the hearing were: (i) Mrs. A; (ii) Dr. Rahtz; (iii) Rosenberg; (iv) Alfano; (v) Dr. McCarthy; (vi) Hoette; (vii) Mabee; and (viii) Dr. Frame. The issues for resolution were: (i) "Did the Board offer an appropriate program to Student by requesting a Diagnostic Placement?"; (ii) Did the Board have sufficient information to develop an [IEP] for Student?"; (iii) "Is Eagle Hill School an appropriate placement for Student?"; and (iv) "If Eagle Hill is an appropriate placement for Student, should the Parents be reimbursed for the costs of tuition and education related expenses?" The parties submitted post-hearing briefing on December 10, 2014.

         On December 30, 2014, the IHO issued her decision, ruling in favor of the Board. In summary, the IHO determined that: (i) the diagnostic placement was appropriate; (ii) the Board lacked sufficient information to develop an IEP for Z.A. in the mainstream setting; and (iii) in light of those findings, it was unnecessary to address the issues as to Eagle Hill. Parents filed the instant action challenging the IHO's determination on February 13, 2015.

         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(c)(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 ex 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 ...

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