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Genn v. New Haven Board of Education

United States District Court, D. Connecticut

November 30, 2016

NANCY GENN, On her behalf and on behalf of her daughter, SARAH ELIZABETH KATIE GENN Plaintiffs,
v.
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

         Plaintiffs, 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 motions.

         I. BACKGROUND

         The Student was born in 1995. B-2.[1] 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 ("OHI"). B-14.

         Thereafter, 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.

         On 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.

         In 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.

         The 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.

         On May 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.

         In 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. Id.

         The PPT 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.

         On 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.

         A PPT 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.

         Another 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. Id.

         On 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.

         The PPT 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.

         The PPT 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.

         The PPT 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. Id.

         On 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.

         On 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. Id.

         These 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.

         On 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.

         On 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.

         On 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 deficiency. Id.

         On 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.

         The IHO 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 sufficient. Id.

         In May 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, [2] 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.

         On May 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.

         The PPT 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.

         After 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. Id.

         On July 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 expense. Id.

         The 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 program. Id.

         In July 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 support. Id.

         The 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. Id.

         The 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.

         On 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. Id.

         On 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.

         Over 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.

         The 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.

         II. STANDARD OF REVIEW

         Rule 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).

         IDEA 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)).

         Finally, in determining whether a state agency's decision as to a local education agency's compliance with the IDEA is supported by a preponderance of the evidence, the court should keep in mind that

'[t]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed.' Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112-13 (2d Cir. 2007) (internal quotation marks omitted). The standard of review 'requires a more critical appraisal of the agency determination than clear-error review but nevertheless falls well short of complete de novo review.' M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (internal quotation marks, ellipses, and brackets omitted). The deference owed depends on both the quality of the opinion and the court's institutional competence. Id.

C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 77 (2d Cir. 2014).

         III. DISCUSSION

         The 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.

         A. Procedural Deficiencies in Plaintiff's Motion for Summary Judgment

         Plaintiff 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.

         "A 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.

         B. Alleged Bias of the Independent Hearing Officer

         Plaintiff 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).

         Throughout the hearing, the hearing officer made comments regarding the comportment of the Plaintiff, the Plaintiff's daughter, and the attorney for the Plaintiff.[3] At one point during the hearing, the Plaintiff's attorney requested that the independent hearing officer recuse herself, which she declined to do.[4] 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 ...

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