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P. v. West Hartford Board of Education

United States District Court, D. Connecticut

September 29, 2016



          Hon. Vanessa L. Bryant United States District Judge.

         The Plaintiffs, Mr. and Mrs. P. (“Parents”), on their own behalf and as next friends of M.P. (“Student”), bring this action against the West Hartford Board of Education, Superintendent Tom Moore, and Director of Pupil Services Glenn McGrath (collectively, the “Board”) to appeal in its entirety an October 2, 2014 final decision, issued by a Due Process Hearing Officer (“Hearing Officer”), that (i) the Board provided adequate Free Appropriate Public Education (“FAPE”) to Student from the fall semester of 2011 through summer 2014; (ii) the Board failed to propose appropriate transportation for Student for the 2014-2015 school year; (iii) the Board's procedure was appropriate as to (a) identifying Student in a timely manner; (b) providing appropriate evaluations; and (c) implementing appropriate transition planning; and (iv) the Board's procedure was lacking, but did not deny Student FAPE or deny Parents a meaningful opportunity to participate, as to (a) keeping incomplete IEP documents and (b) failing to provide consistent programming for Student. [Dkt. No. 32 (“Mot.”) at 12-13.]

         Now Before the Court is Parents' Motion for Summary Judgment on the Administrative Record as to counts one and five of Plaintiffs' Second Amended Complaint [Dkt. No. 27 (“SAC”)], requesting that the Court reverse the decision of the Due Process Hearing Officer and award Student compensatory education in the form of placement in the Options program, and reasonable attorney's fees and costs. Mot. at 1. Also before the Court is the Board's Cross-Motion for Summary Judgment on the Administrative Record as to all counts of the SAC, and for dismissal of Superintendent Thomas Moore and Director of Pupil Services Glenn McGrath as defendants for failure to state any claims against them as individuals. [Dkt. No. 34 (“Cross-Motion”).] Parents consent to dismissal without prejudice of counts two, three, and four of their Complaint. [Dkt. No. 38 (“Plaintiffs' Sur-Reply”) at 1 n.2.] Because Parents do not allege any causes of action against Messers. Moore or McGrath in their individual capacities, the Court also dismisses them as individual defendants, without prejudice.

         I. Facts

         The following statement of facts is based on the exhibits and testimony that comprised the administrative record presented to the Hearing Officer. [Dkt. No. 21 (“Administrative Record”)].

         Student began his sophomore year at Hall High School in West Hartford in fall 2011. 6/9/2014 Hearing Transcript (Mother's testimony) at 63-64. Over the course of the school year, Student's grades declined. Id. at 66-67. In December 2011, Student was hospitalized for suicidal ideation. Id. at 66-67. Parents notified the Board of Student's hospitalization for suicidal ideation, and on December 8, 2011 the Board met with Parents to discuss reducing Student's workload and assisting him with organizational skills. Id. at 69-71.[1]

         On January 31, 2012, the Board held a meeting under Rehabilitation Act Section 504, and determined Student was eligible for accommodations due to Attention Deficit Hyperactivity Disorder (“ADHD”). Id. at 71; Ex. B-2 (504 Meeting record). Student's school attendance declined in February 2012, and the Board arranged homebound tutoring for Student. 6/9/2014 Hearing Transcript (Mother's testimony) at 73.

         Parents referred Student for special education in March 2012, and in response, the Board held a PPT. Ex. B-3 (3/12/2012 PPT record). The PPT considered Student's declining grades in the second semester of his sophomore year, and Student's beginning behavioral improvement due to medication. Id. The Board determined the duration of Student's condition was not yet prolonged enough to qualify for special education, but scheduled a follow-up PPT for April 23, 2012. Id.

         At the April 23, 2012 meeting, Parents alerted the Board that Student had been hospitalized for aggressive ideation. Ex. B-4 (4/23/2012 PPT record). The PPT considered Student's hospitalization due to emotional concerns and aggressive thoughts, Parents' statement that Student's psychiatric medications were helping, and Student's ongoing homebound tutoring. Id. The PPT decided to increase Student's homebound tutoring to eight hours per week, and have Student evaluated for eligibility for special education. Id.

         On May 9, 2012, the Hall High School psychologist evaluated Student. Ex. B-5 (5/9/2012 Evaluation). The Hall psychologist administered BASC-2, an evaluation which asked teachers, Parents, and Student a series of questions to determine behavioral and emotional issues. Id. The Hall psychologist's report also noted Student's hospitalizations, experiences with therapy, absences from school, and general outlook. Id. Ultimately, the Hall psychologist found that “given [Student's] psychiatric diagnoses and school refusal behavior it is recommend the PPT explore the possibility of a special education mandate under the category of Emotional Disturbance.” Id.

         On May 10, 2012, the District psychiatrist conducted a consultation consisting of an interview with Student. Ex. B-6 (5/10/2012 Evaluation). He noted that Student was hospitalized in December 2011 for suicidal ideation and was diagnosed with ADHD while admitted, and was subsequently hospitalized and medicated for homicidal ideation. Id. In addition, the District psychiatrist considered that Student was failing four classes at the time and suffered from panic attacks consisting of palpitations, shortness of breath, sweaty palms, and nausea, and the panic attacks subsided when he began homebound tutoring in January 2012. Id. The District psychiatrist concluded Student might have Asperger's Disorder and Reactive Attachment Disorder and recommended he participate in STRIVE, an alternative high school special education program (discussed further below). Id.

         The PPT met again on May 17, 2012 to review the results of these examinations, and at a June 11, 2012 meeting declared Student eligible for special education. Ex. B-8 (6/11/2012 PPT record).

         At a June 19, 2012 meeting, the PPT placed Student in STRIVE for the 2012-2013 school year, Student's junior year. B-9 (6/19/2012 PPT record). Students enrolled in STRIVE are subject to the same graduation requirements as other students in the West Hartford Public School System; they study modified versions of the same academic curriculum and receive tutoring as needed to prepare for the Connecticut Academic Performance Test (“CAPT”), passage of which is a factor in determining all students' eligibility to graduate. Ex. B-31 (STRIVE policy); Ex. B-39 (CAPT synopsis). STRIVE uses individualized educational plans (“IEPs”), functional behavioral analyses, and behavioral intervention plans designed for each student at a PPT meeting to develop programming to meet his or her academic, social, emotional, and behavioral needs. Ex. B-32 (STRIVE student handbook).

         The faculty at STRIVE each have between 16 and 30 years' experience working with socially and emotionally troubled youth. STRIVE's program coordinator, Michael Davis, has a Master of Arts in Special Education and 16 years' experience teaching students with severe social and emotional disabilities. Ex. B-32 (Davis resume). Edward Dillon, STRIVE's supervisor, has a Master's in Special Education, has been recognized for excellence in teaching, and has approximately 30 years' experience educating or developing programming for socially and emotionally maladjusted students, including collaborating with paraprofessionals. B-27 (Dillon resume). STRIVE teacher Jamie Urso also has a Master's in Special Education and 16 years' teaching special education. B-25 (Urso resume). Lorri Fitzsimmons, the social worker for STRIVE and ACHIEVE (discussed below), has a Master's of Social Work and over 20 years' experience providing crisis prevention, intervention, and treatment. B-28 (Fitzsimmons resume). Neil Cummings, the transition coordinator for both STRIVE and ACHIEVE, has over 30 years' experience providing vocational training and counseling to people with mental illness or social instability. B-29 (Cummings resume).

         On September, 20, 2012, a PPT reviewed Student's initial progress in STRIVE and reviewed an independent neuropsychological evaluation Parents obtained over the summer.[2] Ex. B-12 (6/20/2012 PPT record). Based on that information, the PPT confirmed STRIVE was appropriate for Student for the 2012-2013 school year. Id.

         In March 2013, Student successfully took the state-wide CAPT required of all Connecticut public school students before graduation. Ex. B-39 (Student's CAPT scores and test information).[3] Student scored at the “proficient” level in math and reading and the “goal” level in science and writing. Id. A score of proficient “demonstrate[s] an adequate understanding of the . . . concepts and skills expected of Connecticut high school students.” Id. A score of “goal” “demonstrate[s] a strong understanding of the . . . concepts and inquiry skills expected of Connecticut high school students.”[4] Id.

         On May 22, 2013, at the end of Student's junior year, the Board held another PPT and determined that, based on Student's performance in STRIVE, Student should rejoin regular education classes at Hall High School for his senior year. B-13 (5/22/2013 PPT record).

         Student's reentry into regular education was not successful, and he was placed back in the STRIVE program after an October 28, 2013 PPT meeting. B-14 (10/28/2013 PPT record). In December 2013, while in the STRIVE program, Student experienced a severe violent outburst, punching another student until he broke his hand, and was suspended for one week. 6/9/2014 Hearing Transcript (Mother's Testimony) at 140-141.

         On February 4, 2014, the PPT met to discuss transitional programming to prepare Student for vocational pursuits. Ex. B-15 (2/4/2014 PPT record). The PPT determined Student should attend half-days at STRIVE and spend afternoons with a job coach. Id. Parents declined the vocational training proposed with the STRIVE program, and instead requested an alternative transitional program called Options. Id. Student was ultimately enrolled in the STRIVE program through the remainder of his senior year, without afternoon vocational training. Id.

         On May 19, 2014, Student was again hospitalized, for 9 days, due to a homicidal outburst. 6/9/2014 Hearing Transcript (Mother's Testimony) at 180-81. The hospital sent the Board Student's discharge summary, indicating the dates he was admitted and that he was no longer deemed a danger to self or others. Ex. B-45. Parents also notified the Board of Student's hospitalization before he was discharged, and provided further records of the hospitalization to the Board at an unspecified later date, when Parents received them from the hospital. 6/9/2014 Hearing Transcript (Mother's Testimony) at 181.

         On June 2, 2014, a PPT determined that Student had met the course requirements to graduate, and developed plans to transition Student to post-secondary education. Ex. B-52 (record of 6/2/2014 PPT). The PPT recommended that Student enroll in ACHIEVE, a post-secondary program run by the West Hartford Public Schools for students requiring additional training to prepare to join the workforce. Id.

         ACHIEVE teaches daily living skills such as cooking and maintaining personal finances, and sends students to job sites three to four days per week to develop employability, interpersonal skills, and experience. Ex. B-46 (ACHIEVE policy and mission statement). In students' first year at ACHIEVE, they work three days per week with full staff support. Id. In their second year, they work three days per week with staff support as necessary. Id. In their third year, they work four days per week with the goal of independence from on-site staff support. Id. Student's June 2, 2014 PPT indicated that ACHIEVE would provide Student the opportunity to receive individual or group counseling and a one-on- one job coach. Ex. B-52 (6/2/2014 PPT record). 82% of ACHIEVE graduates go on to secure full-time employment, part-time employment, or to take college courses. Ex. B-49 (ACHIEVE graduate data).

         ACHIEVE employs a small staff with 14 to 30 years' experience working with students with emotional and social needs. Beth Pettinelli, who teaches at ACHIEVE, develops programming, trains support staff, serves as a job coach, and evaluates students, has a Master's in Special Education and has worked at ACHIEVE since 1998. Ex. B-26 (Pettinelli resume). ACHIEVE employs two paraprofessionals who have worked with ACHIEVE for 14 years and 25 years, respectively. 7/7/2014 Hearing Transcript (Pettinelli testimony) at 64. Ms. Fitzsimmons and Mr. Cummings, STRIVE's social worker and transition coordinator, also work with ACHIEVE students. Exs. B-28 (Fitzsimmons resume) and B-29 (Cummings resume).

         Parents expressed concern that ACHIEVE would not be sufficiently individualized for Student, and that ACHIEVE staff would not be sufficiently equipped to meet Student's social and emotional needs. 6/9/2014 Hearing Transcript (Mother's Testimony) at 173-74. Parents instead requested Student be placed at Options, a private special education program approved by the state of Connecticut. Id. at 175; Ex. B-52 (6/2/2014 PPT record).

         Options' “goal is to improve students' academic skills for completion of high school graduation requirements and to increase their competitive abilities for employment, independent living, and post-secondary education” through “one-to-one, guided programs.” Ex. P-43 (Options brochure). Scott Wells, Options' Owner and Director, has a Masters in Counseling Psychology and 22 years of experience providing transitional training to special education students, including three years with West Hartford Public Schools. Ex. P-42 (Wells resume). Options professes its teachers and counselors “have extensive experience in a range of educational and vocational fields.” Ex. P-43 (Options brochure).

         Parents ultimately rejected the PPT's plan to place Student in ACHIEVE rather than Options. Ex. B-52 (6/2/2014 PPT record). Parents also requested two years of compensatory education at the June 2, 2014 PPT, which they attended with legal counsel. Id. The hearing in this matter, which Parents requested on March 24, 2014, took place over seven days from June 9, 2014 through August 26, 2014. [Dkt. No. 1 (Complaint), Ex. 1 (Hearing Officer's Decision) (“HO Decision”) at 2].

         II. Legal Standard

         Parents move for this Court to overrule the final decision of the Due Process Hearing Officer and find the Board in violation of 20 U.S.C. § 1400 (“IDEA”) and regulations thereunder. Mot. at 1; SAC at 45. IDEA “‘represents an ambitious federal effort' to ensure that all children are given access to a public education regardless of any disabilities they may suffer.” A.S. v. Trumbull Bd. of Educ., 414 F.Supp.2d 152, 169 (D. Conn. 2006) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)). Under IDEA, states receive federal funding to “develop educational plans that are ‘reasonably calculated' to ensure that all children with disabilities receive a FAPE.” Id. at 169. “A party dissatisfied with a proposed education plan may challenge it in an administrative hearing, in which the [challenging] party bears the burden of proving the plan to be inadequate.” Id.

         If a party is dissatisfied with the findings and decision of the administrative hearing officer, the party may bring a civil action in “any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” Rowley, 458 U.S. 176 at 204-05 (quoting 20 U.S.C. § 1415). The civil action may concern “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” Id. at 204-05 (quoting 20 U.S.C. § 1415). The reviewing court “shall receive the record of the [state] administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” Id; see also Hardison v. Bd. of Educ. of Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014) (“The district court must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence.”).

         Courts reviewing administrative decisions under IDEA must determine whether they are “reasoned and supported by the record.” Galiardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 114 (2d Cir. 2007). Courts apply a “preponderance of the evidence” standard to the inquiry. 20 U.S.C. § 1415(i)(2)(C)(iii); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003). The Court's review should be “independent, but deferential [to the] hearing officer's decision.” A.E. v. Westport Bd. of Educ., 463 F.Supp.2d 208, 215 (D. Conn. 2006). Courts determine how much weight to give an administrative decision under IDEA based on the “quality and thoroughness of the reasoning, the type of determination under review, and whether the decision is based on the administrative body's familiarity with the evidence and the witnesses.” Haridson, 773 F.3d at 386; see also P. ex rel Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 118 (2d Cir. 2008).

         Where the administrative ruling hinges on a question of education policy, the Court must show “substantial deference.” A.E., 463 F.Supp.2d at 215. “The Supreme Court has cautioned that courts should not substitute their own notions of sound educational policy for those of the school authorities which they review.” Id. Courts are to be “mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005); see also Hardison, 773 F.3d at 386.

         Conversely, “a hearing officer's interpretations of statutes or the federal constitution are afforded no deference.” Trumbull Bd., 414 F.Supp.2d at 173 (quoting Lillbask ex rel. Mauclaire v. Conn. Dept. of Educ., 397 F.3d 77, 82 (2d Cir. 2005)).

         Lastly, the burden of proof in an IDEA context differs from that of a traditional summary judgment motion:

Courts that decide summary judgment motions on IDEA appeals are not dealing with summary judgment in its traditional setting. Summary judgment in IDEA actions is the most pragmatic procedural mechanism for resolving IDEA actions. When deciding a summary judgment motion in the IDEA context, a court's inquiry is not directed to discerning whether there are disputed issues of fact, but rather whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed. Therefore, it matters not, in the context, who initiates the motion.

Westport Bd. of Educ., 463 F.Supp. at 214-15. Therefore, in reviewing the claims the Court is not focusing on the presence or absence of issues of material fact, but instead contemplates whether the record establishes that the hearing officer's ...

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