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Doe v. East Lyme Board of Education

United States District Court, D. Connecticut

June 29, 2017

JOHN DOE, by and through his parent, JANE DOE Plaintiffs,
v.
EAST LYME BOARD OF EDUCATION, Defendant.

          MEMORANDUM OF DECISION ON REIMBURSEMENT OF PLAINTIFFS' OUT-OF-POCKET EXPENSES AND COMPENSATORY EDUCATION

          JANET BOND ARTERTON, U.S.D.J.

         This case, brought by Plaintiff John Doe, by and through his parent Jane Doe, (together "Plaintiffs") against the East Lyme Board of Education ("the Board" or "Defendant") for violations of the Individuals with Disabilities Education Act (the "IDEA" or the "Act"), is before the Court on remand from the Second Circuit to conduct further proceedings and craft a remedy consistent with the Circuit's opinion. This Court held a nonconsecutive three-day bench trial September 22, 2016, December 12, 2016, and January 6, 2017, during which the parties called witnesses and introduced evidence.

         In summary, and for the reasons discussed in the Memorandum of Decision (the "Judgment" or the "Decision") that follows, the Board must reimburse Plaintiffs in full for Ms. Doe's out-of-pocket expenses plus interest and place $203, 478.10[1] for compensatory education into an escrow account for John Doe, to remain open for six years or until John graduates college, whichever occurs first.

         This compensatory education award is equivalent to the value of the covered services which were never provided him by either the Board or Ms. Doe, at the fair market rates available to Ms. Doe, not the rates the Board would pay. Since the Court finds that John's educational needs will continue through college and that he will continue to benefit from services analogous to those in the Stay-Put IEP ("individualized education plan"), an escrow account shall be opened for the benefit of John Doe as soon as practicable after all calculations have been finalized and shall remain open until John completes college or six years have passed, whichever occurs first. All expenses consistent with this decision shall be reimbursed upon submission of documentation to an independent escrow agent and any funds remaining in the escrow account at its close shall be refunded to the Board.

         I. Background

         A. Procedural History

         As detailed in Magistrate Judge Margolis's Recommended Ruling [Doc. # 71] on the parties' cross-motions for summary judgment and the Second Circuit's ruling, Doe v. East Lyme Bd. of Educ, 790 F.3d 440, 445 (2d Cir. 2015), John Doe is a child (originally) diagnosed with autism[2]who requires special education services. Until the 2009-2010 school year, the parent and the Board were able to agree on IEPs for John, which the Board would provide and fund. However, the parent and the Board were unable to reach such an agreement for the 2009-2010 school year, and as a result, the parent placed John in a private school outside the District and continued to privately obtain some of the related services previously funded by the Board.

         Plaintiff brought suit under the IDEA, claiming that Defendant had failed to provide John with a free and adequate public education ("FAPE"), as required by the IDEA, by offering John an inadequate IEP for the 2009-2010 school year and by failing to offer him any IEP for the 2010-2011 and subsequent school years.

         This Court, largely adopting Magistrate Judge Margolis's Recommended Ruling, found [Doc. # 79] that the Board had provided John with a FAPE for the 2009-2010 school year, and that although the Board had violated the IDEA by failing to offer the student an IEP for the 2010-2011 and subsequent school years, Plaintiffs were not entitled to relief because the private school at which the parent had placed the child was an inappropriate placement. (See Ruling on Objs. to Rec. R. Summ. J. at 8-15). The Court further found, however, that the Board had violated the "stay-put" provision of the IDEA, 20 U.S.C. § l4l5(j), which requires that "during the pendency of any proceedings conducted pursuant to this section . . . the child shall remain in the then-current educational placement of the child, " by failing to fund the services described in the 2008-2009 IEP after the parties reached an impasse on June 17, 2009. (Id. at 3-6.) The Court therefore ordered Defendant to reimburse Plaintiffs for expenses the parent incurred from June 17, 2009 through the date final judgment in this case is entered.[3] (Id. at 6.) The Court later determined that amount to be $97, 445. (Ruling on Objs. to Rec. R. Stay-Put at 10.) Defendant paid that sum to Plaintiff in June 2015.[4]

         Both parties appealed the Court's decision. On appeal, the Second Circuit affirmed the Court's judgment in most respects but vacated the award of reimbursement, holding that: (1) the parent should have been reimbursed for the full value of the services the Board was required to fund under the 2008-2009 IEP, not for the (lesser) amount that the parent actually expended in obtaining some of the services provided for by the IEP, East Lyme BOE, 790 F.3d at 445; and (2) the stay-put obligation was triggered on April 27, 2010, when the parent initiated the administrative due process proceedings, not on June 17, 2009, when the parties reached an impasse, id. at 455.

         The Second Circuit noted, however, that "an award of damages to make up the difference is impermissible under the IDEA." Id. at 456. Compensatory education ("prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education"), on the other hand, is permissible. Id. (internal quotation marks omitted). Therefore, the court remanded the case to this Court to

calculate the total value of the related services specified in the amended 2008-2009 IEP for the period from April 27, 2010, to the (as yet undetermined) date of the new final judgment; order the Board to reimburse the Parent for out-of-pocket expenses incurred on covered services during that period; and direct the Board to provide (with the parent's requisite participation) the remainder of the total value as compensatory education to commence at the conclusion of litigation.

Id. at 457 (internal citations omitted).

         The East Lyme panel found that "[a]lthough [it had] typically endorsed compensatory education as a remedy for substantive FAPE claims ... there is no reason why the remedy should not be equally available for stay-put violations." E. Lyme Bd. of Educ, 790 F.3d at 456. Consequently, this appears to be the first time a district court in the Second Circuit has been asked to craft a compensatory education award for violation of the stay-put provision.

         B. The 2016-17 Bench Trial

         At trial, Plaintiffs offered testimony from John Doe's mother, Ms. Jane Doe, as well as Dr. Robert Kemper, a speech and language pathologist and psycholinguist who is familiar with John Doe's disability and his progression.

         Dr. Kemper's particular areas of expertise include how children understand and process oral and written language; reading disabilities, including dyslexia; disorders of written expression; social communicative disabilities; and syntax disorders. (Bench Trial Transcript ("Tr.") I at 213:2-214:9; PL's Ex. 1 (Dr. Kemper Curriculum Vitae).) Dr. Kemper first encountered John in 2008 at age eight, when he was initially asked to perform a psycholinguistic evaluation of John. (See PL's Ex. 18 (10/2/08 Report of Psycholinguistic Evaluation).) He subsequently evaluated John in 2009, 2010, and 2011, (see PL's Ex.'s 19 (5/15/09 Report of Modified Psycholinguistic Evaluation); Ex. 20 (4/8/10 Report of Psycholinguistic Reevaluation; Ex. 21 (4/28/11 Report of Psycholinguistic Reevaluation)), conducted a school observation of John at the Schechter Academy in 2010 (tr. II at 256:3-10), and most recently met with John in 2016 (see PL's Ex. 22 (7/7/16 Report of Progress for [John Doe]); Tr. I at 140:11-13).

         Defendant called the former Assistant Superintendent for Special Education and Pupil Services, Ms. Donna Gittleman, who began at East Lyme in 2014. (Tr. II at 410:7-8.) As its second witness, the Board presented Interim Special Services Director, Ms. Kimberly Davis, whose tenure began July 1, 2016.

         John Doe is now entering his senior year of high school at Lyme-Old Lyme High School and is on track to graduate at the conclusion of the 2017-2018 school year. (Tr. I at 15-16; Tr. I at 191:21-23.) John intends to pursue a bachelor's degree beginning in the 2018-2019 school year. (Tr. II at 317:19-318:4.)

         The Court's findings of fact are integrated into the "Discussion" section below because a significant portion of what this Court must now decide involves factual determinations.

         II. Discussion

         In any action brought under the IDEA, the court "shall grant such relief as the court determines is appropriate." 20 U.S.C. § l4l5(i)(2)(C)(iii). In turn, "the only restriction is that 'the relief is to be appropriate in light of the purpose of the Act.'" E. Lyme Bd. of Educ, 790 F.3d 440, 454 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 374 (1996)).[5] The Supreme Court has emphasized that IDEA relief depends upon "equitable considerations" and that "the court enjoys 'broad discretion'" in crafting the remedy. Florence Cty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 16 (1993) (quoting Burlington, 471 U.S. at 374).

         Here, the Second Circuit held "that the appropriate equitable relief for a stay-put violation is reimbursement or compensatory education (or both) for the full value of services that the educational agency was required to fund, not the (lesser) value of services the Parent was able to afford." E. Lyme Bd. of Educ., 790 F.3d at 445.

         On remand the parties, true to character, take diametrically opposing positions on nearly every issue before this Court. Rather than acknowledging what is a relatively clear directive from the Second Circuit, Defendant continues to resist its obligations under the IDEA, contesting every dollar to which Plaintiffs claim entitlement. Specifically, Defendant maintains Ms. Doe is not entitled to reimbursement for the full amount she expended on out-of-pocket Covered Services and contends that John Doe should not receive any compensatory education at all. Accordingly, the Court will first decide the amount Defendant is required to reimburse Plaintiffs for out-of-pocket expenses for covered services privately funded by Ms. Doe and will then proceed to the issue of compensatory education, including the value of that which is owed John, as well as the logistics and structure of the award.

         A. The Reimbursement of Covered Out-of-Pocket Expenses[6]

         1. Plaintiffs are Entitled to Reimbursement for the Full Amount Expended on Covered Services

         The Board agrees that Ms. Doe's expenditures on related services specified in the Stay-Put IEP ("Covered Services") total $121, 441.25 for the period from April 27, 2010 through September 7, 2016[7] (Def.'s Post Trial Mem [Doc. # 234] at 9.) Plaintiffs submitted a supplemental affidavit [Doc. # 236] of Jane Doe, updating this figure by providing information on her out-of-pocket expenditures from September 8, 2016 through January 11, 2017, which totaled $8, 155.40. Defendant did not object to this updated sum in its Reply Memorandum [Doc. #238].

         However, Defendant disputes that it is required to reimburse the full amount of Ms. Doe's out-of-pocket expenses. Defendant first maintains that, because on December 7, 2016 Ms. Doe rejected the services of Nicole Burke, the teacher that the Board had offered to provide to tutor John Doe in reading instruction, the Board is responsible only for reimbursement at the rate of $37.56 per hour after that point, the amount it would have paid for Ms. Burke's services. Similarly Defendant maintains that the Board is responsible only for reimbursement of speech language services at the rate it would have paid a qualified provider after it notified Ms. Doe on January 20, 2016 of this intention. Defendant reasons that "a school district cannot be required to bear whatever additional cost was incurred as a result of the parent's decision to keep the student with his private service providers, rather than, for example, accepting the same services directly from the school district" because the IDEA does not permit parents to select their providers. (Tr. I at 26:22-27:5.)[8]

         a. Plaintiffs are not Entitled to Reimbursement for the 12.2 Hours of Physical Therapy Ms. Doe Provided

         It is undisputed that Ms. Doe never provided John with any occupational therapy services (Tr. I at 58:3-4), but she did take him to Lawrence Memorial Hospital for 12.2 hours of physical therapy, which Plaintiffs have included in their calculation of the reimbursement for out-of-pocket expenses. (See PL's Post Trial Mem. at ¶ 2-3.) Defendant has stipulated and maintained on several occasions its agreement with Plaintiffs calculation of Ms. Doe's out-of-pocket expenses. (See e.g., Def.'s Supp. Trial Memo [Doc. # 209] at 4-5.) Notwithstanding this stipulation, the Court will not award Plaintiffs reimbursement of the physical therapy costs because the parties appear to have overlooked the Court's prior determination that those hours were paid by insurance. Indeed, Ms. Doe's third affidavit [Doc. # 82] from October 12, 2012 states as much: "[t]he cost of that physical therapy [she was able to provide] was covered by insurance." (Doe Aff. ¶ 6.) The Magistrate Judge therefore did not award any reimbursement for physical therapy (see Recommended Ruling on Stay-Put Reimbursement [Doc. # 92] at 13), which decision this Court adopted (see Ruling on the Parties' Objections to the Recommended Ruling [Doc. # 101] at 9).[9] Accordingly the Court will reduce Plaintiffs calculation for Ms. Doe's reimbursement expenses by $2, 340.00, the amount claimed for services which were paid for by insurance. (See PL's Post Trial Mem. at ¶ 2-3.)

         b. Ms. Burke was not an Appropriate Provider o/Orton-Gillingham Reading Instruction Under John Doe's Stay-Put IEP[10]

         In John Doe's Stay-Put IEP, the parties agreed that his reading instruction would consist of the O/G methodology and that John's O/G instruction would be provided by a "Tutor" and would be "Community-Based." (Def.'s Ex. A (Stay-Put IEP) at 2.1, 10.1.) Accordingly, John is entitled to continue receiving reading instruction using this method and under these conditions. See T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist, 752 F.3d 145, 171 (2d Cir. 2014) (the stay-put provision of the IDEA "requires a school district to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete."); Mackey v. Board of Educ.for the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004) (stay-put analysis looks to the IEP that was "most recently implemented, " "actually functioning, " or "previously implemented, " as of the time the dispute arose.") (internal quotation marks and citations omitted). At its core, the dispute between the parties regarding reimbursement is whether Ms. Burke was qualified to provide the O/G reading instruction to which John Doe was entitled and from which he was continuing to benefit.[11]

         As evidenced by Ms. Doe's rejection of Ms. Burke, Plaintiffs vehemently contest that Ms. Burke is appropriately qualified to provide reading instruction to John. They argue, based upon Dr. Kemper's testimony, that in order for a provider to be appropriate to provide O/G instruction to John, "that individual must have completed a rigorous course of training overseen by the nonprofit Academy of Orton-Gillingham Practitioners and Educators ("AOGPE")." (PL's Post Trial Mem at 6-7 (citing Tr. II at 238:11-240:19).) Plaintiffs urge that John Doe's "stay-put guarantee to [O/G] instruction would be vitiated ... if the Board were permitted to use an individual such as Ms. Burke, who ... lacks sufficient grounding in that method." (PL's Reply at 3.)

         Defendant asserts that "[a]ccording to 34 CFR 300.15, 'qualified' means 'that a person has met [the state educational agency's] approved or recognized certification, licensing, registration or other comparable requirements that apply to the area in which he or she is providing special education or related services.'" (Def.'s Post Trial Mem. at 10.) Defendant then proffers that because Ms. Burke is certified by the Connecticut Department of Education to teach reading for students grades 7-12, has a Bachelor's degree in English, has a Master's degree in Reading, is trained in O/G principles and has tutored other students with dyslexia, she "is qualified to provide reading instruction to the Student using O/G principles." (Def.'s Post Trial Mem. at 10.)[12]

         However, as Plaintiff points out, 34 CFR 300.15 does not contain the language quoted by Defendant and is irrelevant.[13] Although the Court was unable to identify the exact language Defendant cites in any regulation or statute, the relevant section of the IDEA appears to be Section l4l2(a)(l4), titled "Personnel qualifications."[14] That section states with respect to "Related services personnel and paraprofessionals, " that "[t]he qualifications under subparagraph (A) include qualifications for related services personnel and paraprofessionals that-(i) are consistent with any State-approved or State-recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing . . . related services . . . ." 20 U.S.C.A. § l4l2(a)(l4)(B)(i) (emphasis added).[15] Thus, the focus is on state-approved certification that applies to the area in which services are being provided. Here, the "professional discipline" is specifically the instruction using the O/G methodology, which does not appear to have a specific state certification program, but rather there are several organizations which provide varying types of certifications. (See Tr. II at 244:22-245:1.)

         Ms. Doe testified that the original provider under the Stay-Put IEP, Theresa Ackerman, was certified by the AOGPE (Tr. I at 172:5-8.) Dr. Kemper testified that "[b]ecause of the severity of dyslexia that John presented, [he] determined right off the bat he really needed a pure Orton-Gillingham approach from a highly qualified person through the Orton-Gillingham board of practitioners."[16] (Tr. II at 329:18-20.) The evidence adduced at trial revealed that Ms. Burke had only limited training in O/G instruction, having taken a single introductory course through a group called the Institute for Multi-Sensory Education ("IMSE"). (Tr. II at 386:2-4.) This program consists of only 30 hours of classroom instruction, with no practicum. (Tr. II at 386:2-16.) After Ms. Burke attended this program, IMSE's own materials state that she was trained only to work with students in kindergarten through grade three. (Tr. II at 245:18-22.) At the time the Board proposed her as an instructor for John, he was a sophomore in high school. Dr. Kemper agreed that for these reasons Ms. Burke was not an appropriate provider for John Doe. (Id. at 246:18- 247:14.) Moreover, even Donna Gittleman acknowledged that an individual may be certified but may not be an appropriate provider for a particular student.

         The Court also credits Ms. Doe's testimony that during the Stay-Put IEP period, the Board's then-Director of Special Education, Steve Buck, instructed her to locate community-based providers for the O/G services, for which the Board ultimately paid. (Tr. I at 122:6-13.) The Board did not introduce any evidence to the contrary. Where the very terms of the Stay-Put IEP specify community-based tutors, the Court will not now require that instruction be provided instead by a certified public school teacher.

         The Court concludes that where the Stay-Put IEP specifically requires provision of O/G tutoring, an individual who is only trained to work with students up to the third grade level was, and continues to be, an inappropriate provider of these services for John Doe. Although Ms. Burke maybe a qualified reading instructor, she does not possess the requisite expertise in O/G principles to effectively instruct John Doe using this method. The services of an inappropriate individual are hardly "the same services" as the Stay-Put IEP specified. T. M., 752 F.3d at 171. Therefore, finding the testimony of Dr. Kemper and Ms. Doe as to the reasonableness of the rates she has paid for O/G services credible, [17] the Court orders that the Board reimburse Ms. Doe for the full amount she expended on these services.

         c. Speech Language Services

         By letter dated January 20, 2016 (see Def.'s Ex. I), "the Board notified the Parent that she would only be reimbursed for any providers she used for any speech language ('S/L') or occupational therapy/physical therapy ('OT/PT') services up to the amount of the rate the Board would have had to pay qualified providers for these services." (Def.'s Post Trial Mem. at 12.) Since that time Ms. Doe has funded speech language services, but not OT/PT.

         The Board claims that the evidence established that it employs qualified personnel capable of providing the stay-put speech language services and that the speech pathologist it employs "adheres to the teacher's contract for tutoring hours worked outside the school day, and would therefore[] be paid $37.56 per hour for any such tutoring . . ." (Id.) However, as Plaintiffs point out, in that January 20 letter Ms. Gittleman conceded that the Board was unable to find qualified providers for John for S/L or OT/PT. (See Def.'s Ex. I (1/20/16 Letter From Ms. Gittleman.) Furthermore, Ms. Gittleman confirmed through trial testimony that the Board never identified a specific speech provider for John Doe, leaving Ms. Doe to locate and pay for such providers herself. Nor did the Board offer any evidence that Ms. Doe could actually obtain speech services for $37 per hour, which rate is not available to Ms. Doe, who is not a party to the Board's contract with its employees.[18]

         Consequently, again crediting the testimony of Dr. Kemper and Ms. Doe as to the reasonableness of the rates Ms. Doe actually paid, the Court finds that the Board is required to reimburse Ms. Doe for the total amount she expended on speech language services.

         2. Transportation Costs

         Plaintiffs also seek reimbursement for the cost of transporting John to and from those Covered Services which had been provided at Plaintiffs' home under the Stay-Put IEP: five hours of O/G services and one hour of speech language therapy.[19] (Tr. I at 96:10-97:16). The Stay-Put IEP indicates that transportation was "N/A" (i.e., not applicable) and, as the Board urges, it was not under any obligation to pay any transportation costs for any Covered Services that were to be provided to John. Thus, the Board asserts that "the Stay-Put IEP cannot now be re-written to require the Board to reimburse the Parent" for these transportation costs. (Def.'s Reply at 2.) On the other hand, Plaintiffs argue that "[b]ut for the Board's violation of its stay-put obligations, Ms. Doe would not have had to incur these [transportation] expenses." (PL's Post Trial Mem at 12.)

         The Court agrees with Plaintiffs that transportation costs should be borne by the Board to the extent that its violation of John's stay-put rights caused those expenses to be incurred. Ms. Doe testified that the transportation expenses for services that would have been provided in her home under the Stay-Put IEP but to which she was forced to drive John once the Board ceased providing services totaled $6, 654.84 for the period from April 27, 2010 to September 7, 2016, at the then-current IRS rates for each year. (Tr. I at 100:21-101:3.) Additionally, for the period from September 8, 2016 to January 11, 2017, those expenses total $43.20. (Doe. Aff. V [Doc. # 236] ¶ 12.) Adding these two amounts together produces a total stay-put transportation amount of $6, 698.04 for the period from April 27, 2010 to January 11, 2017.

         Accordingly, the Board shall reimburse Ms. Doe for transportation costs for travel to and from covered services which had previously taken place in her home, for a total of $6, 698.04 through January 11, 2017. This figure maybe supplemented with competent documentation by Plaintiffs within ten days of this Judgment to include any costs incurred between January 12, 2017 and the date of this Judgment.[20]

         3. Defendant Owes Interest on the Reimbursement Expenses

         In view of the length of time over which the Board knowingly persisted in its violations, the Board is ordered to pay interest to Ms. Doe on all of the items as to which this Court orders reimbursement. Interest at the rate set forth in 28 U.S.C. § 1961(a)[21] should accrue from the dates on which she paid for each service. See Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F.App'x 411, 414-15 (2d Cir. 2010) ("because the Strecks incurred these costs years before the first district court decision in this case, the interest on these expenses should run not from the date of the district court's first decision (as generally prescribed by 28 U.S.C. § 1961(a)), but from the date on which the Strecks actually paid each expense."). The parties will have twenty-one days from the date of this Judgment to submit their proposed interest calculations and methodology.

         4. Total Amount Awarded Ms. Doe as Reimbursement to ...


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