United States District Court, D. Connecticut
NANCY GENN, On her behalf and on behalf of her daughter, SARAH ELIZABETH KATIE GENN Plaintiffs,
NEW HAVEN BOARD OF EDUCATION; REGINALD MAYO, SUPERINTENDENT OF SCHOOLS; TYPHANIE JACKSON, DIRECTOR OF SPECIAL SERVICES; PATRICIA MOORE, SUPERVISOR OF SPECIAL SERVICES; and KATHRYN CARBONE, PUBLIC HEALTH NURSE DIRECTOR Defendants.
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
CHARLES S. HAIGHT, JR. Senior United States Judge
Nancy Genn (the "Parent") and Sarah Elizabeth
(Katie) Genn (the "Student"), together bring this
action against the Defendant New Haven Board of Education and
several individuals who were a part of the New Haven school
system. Plaintiffs bring suit pursuant to several statutes,
including the Individuals with Disabilities Education Act, 20
U.S.C. §§ 1400-1482 ("IDEA"); the Civil
Rights Act, 42 U.S.C. § 1983; the Americans with
Disabilities Act, 42 U.S.C. § 12117 ("ADA"),
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794; and several Connecticut Statutes, to appeal a
decision and order of an independent hearing officer (the
"IHO") of the State of Connecticut's Department
of Education. Both parties have cross-moved for summary
judgment. (Doc. 36 and Doc. 37). This Ruling resolves both
Student was born in 1995. B-2. Beginning at a young age, she
suffered a myriad of serious symptoms that were initially
diagnosed as bipolar disorder, attention deficit disorder,
asthma, and several other serious medical conditions.
Id. As a result of these medical conditions, the New
Haven Board of Education (the "Board") determined
that the Student was in need of a special education at a
Placement and Planning Team meeting ("PPT") on
January 4, 2006. B-14. 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). At that meeting, the Student
was designated to receive special education services, as the
result of having an Other Health Impairment
several PPT meetings were held to formulate and adjust the
Student's Individual Education Program ("IEP").
On May 10, 2006, a PPT was convened to review her IEP. B-16.
During that PPT meeting, an assistive technology
("AT") evaluation was arranged for June 19, 2006.
B-19. The recommendations included access to special computer
software to help the Student with her work. Id. On
June 20, 2006, another PPT meeting was convened to approve
the assistive technology software and to revise the
Student's reading goal. B-20.
December 19, 2006, a PPT meeting was held to discuss the
Student's progress with academic and emotional issues.
B-24. She was then in a regular education classroom and
receiving counseling. Id. Another PPT meeting was
not convened until September 25, 2007, where the team
re-evaluated the Student's academic and socialization
goals. B-27. Increased support was added for her reading and
organizational skills, and her counseling was continued.
Id. On October 23, 2007, the Student's IEP was
modified to address her anxiety related to testing. B-30.
Additionally, the Student received another AT consultation in
October 2007, which resulted in a recommendation of
additional software and training for the Student and the
school staff. B-31. These AT recommendations were implemented
in a PPT meeting held on November 19, 2007. B-35. Her IEP was
also updated during that meeting. Id. During the
month of November, a review also took place showing that the
Student had made progress on her organization and reading
goals, and that her self-image was increasing. Id.
January 2008, the Student underwent a Triennial Psychological
evaluation. B-37. The evaluation produced numerous
recommendations, including: continued instruction to increase
reading fluency, increased feedback to make the Student feel
more encouraged, frequent checks to ensure the Student
understood the instruction, stress management, the assignment
of a supportive partner for group activities, a "keep
calm" activity, and regular communication between the
school staff, the parent, and the Student's psychiatrist.
Id. At a follow up PPT meeting on January 29, 2008,
the Student's IEP was revised after reviewing the
Triennial Psychological evaluation. B-38. Her weaknesses were
identified as written expression and mathematical
calculations. Id. The Student also reported having
social difficulties with forming friendships. Id.
The revised IEP contained several accommodations and
modifications intended to help the Student meet her IEP
goals, including several software programs, testing
modifications such as open notes and extra time,
organizational help, and daily feedback. Id. The PPT
met again on October 14, 2008, and added a plan to help meet
the organizational goal already in the IEP. B-41.
next PPT meeting was on January 27, 2009, when the team
conducted an annual review. B-43. Noted areas of concern
included her completion of homework, her ability to focus for
long periods of times, emotional outbursts, and tests.
Id. Her strengths included her creative ability,
enthusiasm, and her computation skills. Id. The team
also changed the Student's social and behavioral goals to
help her deal with her frustration and anxiety. Id.
19, 2009, a PPT meeting was held to plan the Student's
transition to high school at Cooperative Arts &
Humanities ("CO-OP"). B-44. The meeting covered
what accommodations would continue while she was in high
school and how the staff at CO-OP could be trained and
prepared for the Student's transition. Id. A
second PPT meeting was convened on June 16, 2009 to further
discuss what accommodation would be provided at CO-OP and
what training would be provided to the staff there. B-45.
August of 2009, the Parent exchanged emails with CO-OP staff
members concerning the Student's scheduled courses, along
with several other issues concerning the Student's
education. B-47. The Parent was concerned that Spanish and
Social Studies had been left off of her daughter's
schedule, and that no counseling had been scheduled.
met on October 27, 2009 to discuss further accommodations for
testing and to set a goal to encourage increased attendance.
B-46. The Parent also agreed to furnish medical documentation
to the PPT. Id. The Student's attendance goal
was set up in monthly stages, and was aimed at achieving 95%
attendance. Id. On October 29, 2009, the Parent
emailed Andrea Sauerbrunn, a school administrator, and noted
that the IEP changes should not be implemented and no
district wide assessments should be given to the Student
before the Parent could consult the Student's doctors.
B-47. The Parent, in this email, and in several prior emails,
laid out her frustration with the implementation of the
Student's IEP at CO-OP. Id.
November 1, 2009, the Parent emailed the PPT Chair to request
help in gathering the Student's possessions from the
school and to discuss transferring the Student to a different
high school. Id. The Parent also noted that the
Student would be staying home due to illness, and reiterated
her desire to have the Student's assignments submitted by
email. Id. On November 2, 2009, Dr. Dolores
Garcia-Blocker emailed to note that the Student's
teachers would not be sending or receiving assignments via
email, and that the Student would be marked absent.
Id. Dr. Garcia-Blocker also noted that paperwork
would be filed with "the court" regarding the
number of times the Student had been absent from school.
Id. The Parent responded that the Student was ill,
and she had called her daughter in as sick each day that she
had missed class. B-47. The Parent continued to note her
frustrations with the school's implementation of her
daughter's IEP. Id. The Parent also alleged that
Dr. Garcia-Blocker had thrown a testing booklet at the
Student and humiliated the Student in front of her
classmates. Id. The same day, Patricia Moore, the
Student Services Supervisor, responded to several of the
Parent's emails to inquire as to whether the Parent was
refusing the IEP. Id.
meeting was convened shortly thereafter, on November 5, 2009.
B-48. The Parent stated that she was not refusing the IEP,
and also brought an attorney to the meeting. Id. The
PPT meeting was adjourned until the Board could also be
represented by counsel. Id. Some areas of concern
noted at the PPT before the adjournment were the
Student's attendance and ability to complete assignments
due to her emotional state. Id.
PPT meeting was convened on December 22, 2009. B-49. Before
the PPT meeting, the Student transferred to High School in
the Community (HSC). Id. The Student was offered a
modified day schedule beginning around 9:30 a.m. Id.
The Student was also to be provided with social work services
when available. Id. The Parent agreed to provide
more information about the Student's health after a
medical consultation at Massachusetts General Hospital.
January 11, 2010, the Student's pediatrician, Dr.
Flaherty Hewitt, wrote to HSC to request homebound
instruction for the Student. B-50. The note from Dr. Hewitt
described her medical history, and included a new movement
disorder, which was being investigated by Massachusetts
General Hospital. Id. The movement disorder was
resulting in prolonged periods of blindness, coughing,
trouble swallowing, among other serious symptoms.
Id. The Student was admitted to the Hospital of
Saint Raphael in New Haven on January 20, 2010, and was
discharged on February 1, 2010. B-53.
held a meeting on January 26, 2010 with the Board's
Counsel. B-54. The Parent requested homebound instruction for
the Student. Id. She also consented to a Triennial
Psychological evaluation of the Student. Id. At the
meeting, the PPT also discussed the Student's
"Present Levels of Academic Achievement and Functional
Performance." Id. The Student's strengths
were identified as her interest and ability and her ability
to learn quickly. Id. Her weaknesses were identified
as the length of lessons, her absenteeism, and her ability to
manage stressful situations. Id.
met again on February 23, 2010. B-56. During this meeting,
the PPT approved homebound instruction and counseling for the
Student. Id. The Parent also declined to release the
Student's medical records from her hospitalization and
from her pediatrician's office. Id. Instead, the
Parent offered to provide all relevant medical documentation
to the PPT. Id. The Parent also provided an unsigned
"protocol" document regarding the Student's
diagnosis of a mitochondrial disease. Id. The
protocol describes in detail the challenges faced by the
Student as a result of this disease, and made specific
recommendations for ways that the Student could conserve
energy at school or on homebound instruction. Id. On
April 29, 2010, the Student's pediatrician followed up
with the school to note that the Student had success with
homebound instruction and to ask that it continue through the
summer. B-59. The PPT continued to request that the Parent
release the Student's medical records to the school, and
the Parent continued to rebuff those requests. B-60. The
Parent stated several times that she would pass along any
pertinent information, but that she was declining to release
the Student's further records. Id.
met again on June 8, 2010. B-65. Both the Parent and the
Board had counsel present at the meeting. Id. The
PPT concluded that homebound instruction would cease at the
end of the year, and the Student would be required to return
to HSC the following fall. Id. The Student's
pediatrician's request that she have summer homebound
instruction was also denied. Id. In order for the
Student to continue on homebound instruction for the next
fall, the PPT noted that the Parent would have to produce
medical documentation. Id. The PPT also requested
again that the Parent release the Student's records.
August 17, 2010, the Parent submitted a letter from a
pediatrician, Dr. Liesel Gould, requesting homebound
instruction. B-71. The
physician noted that "[i]t would be unsafe for her to be
at school without medical supervision." Id.
Defendant Moore responded to Dr. Gould's letter by noting
that it did not meet the requirements of state regulations
because it did not include a diagnosis, a statement of when
the Student would likely be cleared to return to school, and
a statement that the Student is medically unable to attend
school at the present time. B-72. Ms. Moore noted that the
statement that it would be unsafe for the Student to return
to school without medical supervision was inadequate because
the school has a nurse on staff. Id. Ms. Moore
further requested that the Parent sign medical release forms
for the Student. Id.
September 21, 2010, the PPT met, and again denied homebound
placement for the Student. B-77. The Parent signed medical
release forms for the Student's pediatrician and her
psychiatrist. B-79. The Parent then submitted several letters
from physicians requesting homebound services for the Student
because of her fatigue. B-87; B-93. On November 9, 2010, the
PPT met and approved homebound instruction, including
physical therapy, occupational therapy, and assistive
technology evaluations. B-94. The Student received PT and AT
evaluations in late January of 2011. Id. The PT
evaluation noted several areas of concern, including her
endurance, mobility, and her sleep pattern. Id. The
AT evaluation included a list of recommended equipment.
developing facts were intertwined with several statutory due
process hearings before the Connecticut IHO concerning the
Student's proper placement. The first due process hearing
was requested by the Parent on September 29, 2010. B-88. In
her request, the Parent asked that the Student be left on
homebound services pursuant to the "stay put"
provision of Connecticut State Law. Id. The IHO was
appointed on October 7, 2010, and hearings were held over the
course of several months. Final Decision and Order 11-0144,
Apr. 20, 2011.
December 6, 2010, January 19, 2011, and February 9, 2011,
another triennial psycho- educational evaluation was
performed. B-115. The Student performed at grade level and in
the average range for most things, including mathematics
calculation and reasoning, written expression, and IQ.
Id. However, her reading comprehension and fluency
and writing skills were in the below average range, and her
math skills were "low average." Id.
January 25, 2011, the PPT met to review the PT and OT
evaluations. B-109. At this point, the AT and psychological
evaluations were not yet completed. Id. The PPT
continued to approve of homebound instruction and noted that
there were concerns with her endurance as it related to her
fine and gross motor skills. Id.
March 15, 2011, the PPT met again to review the Student's
most recent psycho-educational evaluation, PT consultation,
and the AT assessment. B-114.The PPT also heard from the
Student's homebound tutor, who reported that the Student
was sick six of the twenty-nine days since the last report
and had been excused for three days to attend the
psycho-educational evaluation. Id. The tutor noted
ongoing fatigue and endurance issues with the Student. The
PPT agreed to allow the Student to continue homebound
services. Id. Furthermore, the School Nurse
summarized Dr. Gould's report noting that the Student has
medical issues, potentially due to a mitochondrial
March 18, 2011, the Parent emailed a request for an
evaluation in reading and writing skills. B-118. The Parent
noted that the Student's skills were below average.
Id. The Parent also requested that Spanish be taught
on homebound instruction. Id. The Parent further
requested that another PPT or two be scheduled to address
these issues. Id.
in the first due process hearing rendered a decision on April
20, 2011. Final Decision and Order, 11-0144, Apr. 20, 2011.
The decision and order held that the disagreement over
homebound placement was moot because the PPT ultimately
agreed to the placement; that the Student was entitled to
Spanish instruction on homebound placement; and that the
Board should create an extended year placement for 2011 to
make up for the missed Spanish instruction. Id.
Furthermore, the IHO held that the PPT must consult with the
Student's pediatrician regarding further homebound
instruction, must consider the Student's testing
accommodations at each PPT, and must explore options to
connect the Student to one class electronically. Id.
The IHO found the issues related to AT, OT, and PT moot,
because of the recent evaluations and the provision of the
equipment that was recommended. Id. Additionally,
the IHO found that the Student's IEP at the time was
2011, the Student changed pediatricians from Dr. Gould to Dr.
Maddox, who had previously been her pediatrician in Spring
2009 through Spring 2010. B-125. Referring to a report
prepared by Dr. Gould, the School Nurse summarized the
Student's health status the on March 17, 2011. B-133. The
Nurse noted eleven physicians involved with the Student's
care, either as primary physicians or consulting physicians.
Id. Also noted were eight allergies, eight
medications, and six supplements for the Student.
Id. The nurse noted that some physicians had
expressed concerns of polypharmacy,  which could have contributed
to the Student's symptoms. Id. The Student's
pediatrician also agreed to provide the school with the
results of the various consultations that were scheduled for
the Student. Id.
26, 2011, the AT Consultant visited the Student in her home
for a training and consultation. B-136. During the
consultation, the AT Consultant found that the previously
installed voice-recognition software was not receiving and
processing audio correctly. Id. The AT consultant
attempted to troubleshoot the laptop, and ultimately, it was
sent to IT for repairs. Id.
met on May 31, 2011, to discuss and implement the decision of
the IHO in the first due process hearing. B-139. The PPT
agreed to continue the IEP from the March 31, 2011 PPT until
June 24, 2011, and to provide an extended school year for
Spanish through June 6, 2011. Id. The PPT also
provided door-to-door transportation. Id. The next
PPT meeting was scheduled for September 6, 2011 to revise the
IEP. Id. At the PPT meeting, the Parent again
requested reading assessments because the Student's
reading was below average. Id. The Board denied the
request, citing the results from the psychoeducational
evaluation as sufficient. Id.
the May 31 PPT, Dr. Maddox wrote a letter to the school's
medical department regarding the Student's physical
limitations for Summer school. B-141. Dr. Maddox supported
the Student returning to school for a portion of the day,
provided that she did not have to exert herself too much, and
that she was allowed rest time during the school day.
6, 2011, the Board requested a due process hearing on several
issues. B-145. The first and second issues were whether the
Board was entitled to an order allowing the Board to proceed
with a medical and a psychiatric evaluation of the Student by
physicians designated by the Board. Id. The third
issue was whether the academic achievement evaluation
conducted by the Board was appropriate to assess the
Student's reading skills. Id. The fourth and
final issue posed this question: If the Board's
achievement evaluation was not appropriate, was the Parent
entitled to an independent reading evaluation at public
Student attended a summer program for Spanish during the
summer of 2011. B-150. She attended the summer school program
for eleven days, and was successful in keeping her stamina
and energy levels up in order to take advantage of the
and August, 2011, the Parent had Miriam Cherkes-Julkowski,
Ph.D. evaluate the Student. B-152. Dr.
Cherkes-Julkowski's educational evaluation found greater
deficits in the Student's abilities than the
psychoeducational evaluation done by the school. Id.
After extensive testing, Dr. Cherkes-Julkowski recommended
that the Student be put into a "total school
environment" which would allow her to learn at her own
pace with peers who face similar challenges. Id. She
also recommended that teaching focus on the Student's
understanding of the material, rather than repeated drilling
of the material. Dr. Cherkes-Julkowski also focused on the
Student's reading deficits, suggesting a tailored reading
program to help the Student overcome her visiospatial and
phonological problems. Id. Additionally, she
recommended a tailored program to help the Student with
reading comprehension and mathematics, including more AT
Student attended school on the first day of the new school
year, September 1, 2011. Hearing Tr., Lauren Evanovich, Feb.
8, 2012. However, she did not attend the following day.
Id. On September 6, 2011, the PPT met to revise the
Student's IEP. B-157. The PPT recommended that the
Student return to a full day program at the school.
Id. This was based on a letter from the
Student's physician, Dr. Maddox, who recommended that she
return to a full day with several accommodations, including
access to food should the Student feel weak, a low-protein
diet, and extra time to reach her classes. Id. The
PPT recommended that the Student receive "research based
reading instruction, that the nurse develop a health care
plan, and that door-to-door transportation be provided."
Id. Furthermore, the PPT planned that the Student
would receive 3.5 hours of direct reading instruction, 7
hours of resource support (including pre-teaching), 3.5 hours
of support in U.S. History II, and .5 hours of social work
support per week. Id. Additionally, the Student was
scheduled to have 5 hours per month of PT, OT, and AT.
next PPT was scheduled for the week of October 3, 2011 to
assess progress. B-157. The PPT recommended that the Student
use Read 180 and Lexia Learning software to aid in reaching
her reading goals. Id. During this PPT, Dr.
Cherkes-Julkowski was given time to review her report.
Id. Additionally, the director of Easton Country Day
School, a private school focused on students with
disabilities, was present but did not speak during the
meeting. Id. During the meeting, the Student
presented a PowerPoint presentation about her experience in
the school system. Hearing Tr., Lauren Evanovich, Feb. 8,
2012; B-158. However, she could not finish her presentation
because she became upset and began to cry. Id. At no
time during the meeting did the Parent request placement at
Easton Country Day School; however, the Parent did object to
the Student's program because she felt the Student was
unsafe at school and because she was concerned that there was
only a nurse at the school one day a week. Id.
September 7, 2011, the Board withdrew its due process hearing
request, filed on July 6, 2011, because additional medical
information was made available by the parent, and an IEP was
developed. B-159. After the PPT, the Student attended school
on September 7, 2011, and was provided curriculum based
assessments to determine her placements. Hearing Tr., Lauren
Evanovich, Feb. 8, 2012. Her math assessment placed her in
Algebra I or higher, and her reading assessment put her
reading at the level of a ninth grader. Id. The
Student performed better on these assessments than she did on
the evaluation performed by Dr. Cherkes-Julkowski.
September 11, 2011, the Parent notified the Board's
supervisor that the Student would be visiting Easton Country
Day that week. B-160. The Parent noted that the Student was
visiting the private school because she was not safe in the
public school system. Id. On September 25, 2011, the
Parent requested a third due process hearing, which resulted
in the decision at issue in this case. B-166. After
requesting the hearing, the Student was assessed by a speech
and language pathologist, Meryl Aronin, who noted a written
and oral expression language disorder. P-24. Thereafter, the
Student attended at Easton Country Day, where she was
attending school two or three days a week. Hearing Tr., Nancy
Genn, Jan. 20, 2012.
several months, the IHO held nine hearings regarding several
issues identified for the due process hearing. Final Decision
and Order 12-0117, Apr. 9, 2012. The issues included whether
the Board's proposed program for the Student for the
2011-2012 school year was appropriate, and if not, whether
the Student's placement at Easton Country Day was
appropriate and should be reimbursed; whether the board
should pay for the Student's transportation to Easton
Country Day, her OT, PT, and reading specialist, and the
independent educational evaluation done by Dr.
Cherkes-Julkowski. Id. Finally, the IHO also looked
at the issues of whether the Parent was permitted to
participate in the September 6, 2011 PPT meeting, whether the
Student should be provided an auditory processing evaluation,
whether the Student should be provided an AT re-evaluation,
and whether the Student was entitled to compensatory
education. Id. At the hearing, Chris Quirk, the
director of ECDS, Shelley Lacey-Castelot, a reading
specialist, Meryl Aronin, a speech pathologist, Dr. Theodore
Zanker, the Student's psychiatrist, and Nancy Genn, the
parent, testified on behalf of the Parent. Id.
Kimberly Hartmann, an AT consultant, Laura Evangelist, an
occupational therapist, Lauren Evanovich, a special education
teacher at HSC, Jeffrey Lowell, a school psychologist, Diane
Henley, a speech and language pathologist, and Patricia
Moore, a supervisor of school services, testified on behalf
of the Board. Id.
IHO, in her Final Decision and Order, held that the
Board's program for the Student during the 2011-2012
school year was appropriate, and that the Parent was not
entitled to reimbursement for the Student's placement at
Easton Country Day School, the cost of transportation to
Easton Country Day, and the costs of reading, OT, and PT
specialists. Final Decision and Order 12-0117, Apr. 9, 2012.
Furthermore, the IHO held that the Parent would not be
reimbursed for the independent educational evaluation
performed by Dr. Cherkes-Julkowski or the speech and language
evaluation performed by Meryl Aronin. Id. The IHO
also found that the parent was allowed to participate in the
September 6, 2011 PPT meeting, and that the Board did not
commit procedural violations related to that meeting.
Id. Additionally, the IHO found that the Student was
not entitled to an auditory processing evaluation, an AT
re-evaluation, or a compensatory education. Id.
Finally, the IHO ordered visual scanning and
audiological/hearing assessments, and also overrode any lack
of parental consent to those assessments. Id.
STANDARD OF REVIEW
56(a) of the Federal Rules of Civil Procedure provides that
"[t]he court shall grant summary judgment 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). Under this standard, "the
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, 477 U.S. 242,
247-48 (1986). The burden of proof regarding the absence of
any genuine issues of material fact rests with the moving
party. Vivenzio v. City of Syracuse, 611
F.3d 98, 106 (2d Cir. 2010) (citing Rodriguez v. City of
New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995)).
Finally, summary judgment is only proper where no reasonable
inference could be drawn in favor of the nonmoving party from
the evidence in the record. Vivenzio, 611 F.3d at
106 (citing Howley v. Town of Stratford, 217 F.3d
141, 151 (2d Cir. 2000)) ("It is not the province of the
court itself to decide what inferences should be
drawn.") Additionally, a moving party "may obtain
summary judgment by showing that little or no evidence may be
found in support of the nonmoving party's case."
Gallo v. Prudential Residential Services, Ltd.
Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994).
appeals are frequently resolved by cross-motions designated
as motions for summary judgment 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(i)(2)(C) ("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.'" M.H., 685 F.3d 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)).
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).
parties in the case at bar purported to file their motions in
accordance with Rule 56 practice as described in the Federal
Rules and the Local Rule of this Court. Part III.A. of this
Ruling adopts that approach.
Procedural Deficiencies in Plaintiff's Motion for Summary
Nanycy Genn failed to file a Local Rule 56(a)(1) statement
together with her self-styled Motion for Summary Judgment.
According to the District of Connecticut's Local Rules of
Civil Procedure, "[t]here shall be annexed to a motion
for summary judgment a document entitled 'Local Rule
56(a)(1) Statement, ' which sets forth in separately
numbered paragraphs . . . a concise statement of each
material fact as to which the moving party contends there is
no issue to be tried." Loc. R. Civ. P. 56(a)(1).
Defendants request that the Court deny the Plaintiff's
Motion for Summary Judgment on this basis.
district court has broad discretion to determine whether to
overlook a party's failure to comply with local court
rules." Holtz v. Rockefeller & Co., 258
F.3d 62, 73 (2d Cir. 2001). The Court will not deny the
Plaintiff's Motion for Summary Judgment because of this
deficiency, nor will the Court consider all facts submitted
by Defendants to be undisputed, given that the Plaintiff did
file a Local Rule 56(a)(2) statement in response to
Defendants' Rule 56(a)(1) statement.
Alleged Bias of the Independent Hearing Officer
alleges that the Independent Hearing Officer was biased
against her and her attorney. The IDEA provides that
"the parents . . . shall have an opportunity [following
a complaint] for an impartial due process hearing. . .
." 20 U.S.C. 1415(f). Additionally "A hearing
officer . . . shall, at a minimum . . . possess the knowledge
and ability to conduct hearings in accordance with
appropriate, standard legal practice." 20 U.S.C.
1415(f)(3)(A)(iii). Connecticut law provides that "[t]he
hearing officer shall take reasonable measures, including the
exclusion from the hearing of parties, counsel, or any other
participant, to ensure that the parties, counsel and all
other participants comport themselves civilly and that the
hearing is conducted in a fair and orderly manner."
Conn. Gen. Stat. § 10-76h(d)(1).
the hearing, the hearing officer made comments regarding the
comportment of the Plaintiff, the Plaintiff's daughter,
and the attorney for the Plaintiff. At one point during the
hearing, the Plaintiff's attorney requested that the
independent hearing officer recuse herself, which she
declined to do. Plaintiff asserts that the hearing officer
was biased in favor of the Board of Education. In the
IHO's Final Decision and Order, the IHO commented on the
conduct of the Parent and counsel, stating
From the first day of the hearing, continuing throughout the
course of the hearing, counsel for the Parent and the Parent
were disrespectful to the hearing officer and to the
proceedings. Counsel and the Parent would make outbursts and
asides as well as comment after rulings were made by the
hearing officer. The Parent also mocked the process, refusing
to answer yes and no questions, and repeatedly responding
with uh huh and ah huh rather than yes or no. When the Board
counsel asked why she was having difficulty responding to the
questions, the Parent sarcastically responded that she had a
medical condition ...