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Mr. and Mrs. G. v. Canton Board of Education

United States District Court, D. Connecticut

March 11, 2019

MR. AND MRS. G., on their own behalf and as Next Friends of S.G., Plaintiffs,
v.
CANTON BOARD OF EDUCATION, KEVIN D. CHASE, JULIE AUSERE, AND PERRI S. MURDICA, Defendants.

          RULING

          Michael P. Shea, U.S.D.J.

         S.G., a student who is eligible to receive special education services, along with Mr. and Mrs. G, her parents, filed suit against the Canton Board of Education (“Board”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.[1] ECF No. 1. After an evidentiary hearing spanning several days, a Hearing Officer of the State of Connecticut Department of Education found that the Board provided a free appropriate public education (“FAPE”) during the 2014-2015 and 2015-2016 school years, but did not provide a FAPE during the 2016-2017 school year. ECF No. 1-1 at 31. She denied the Plaintiffs' request for placement at Middlebridge School (“Middlebridge”), a private school in Rhode Island, but awarded a compensatory remedy in the form of additional math instruction for the Board's failure to provide a FAPE during the 2016-2017 school year. ECF No. 1-1 at 29-31. The Plaintiffs have appealed this award and now move for summary judgment, seeking partial reversal of the Hearing Officer's decision, residential placement at Middlebridge, and reimbursement for S.G.'s tuition at Middlebridge. ECF No. 59. The Defendant cross moves for summary judgment to uphold the administrative decision issued by the Hearing Officer. ECF No. 40. For the reasons set forth below, the Defendant's motion for summary judgment, ECF No. 40, is GRANTED and the Plaintiffs' motion for summary judgment, ECF No. 59, is DENIED.

         I. Factual Background

         The following facts are taken from the parties' Local Rule 56(a) statements, supporting exhibits, and the Hearing Officer's Findings of Fact (“FF”) where supported by the record.[2]

         A. General Structure of Educational Programming

         During the 2013-2014 school year, S.G. attended Canton Intermediate School (“CIS”) as a sixth grader. ECF No. 41-3 at ¶ 1; ECF No. 54 at ¶ 1. She then attended Canton Middle School (“CMS”) during the 2014-2015 and 2015-2016 school years for seventh and eighth grade. ECF No. 41-3 at ¶ 1; ECF No. 54 at ¶ 1.

         The teachers at CMS, including the special education teacher, meet daily for approximately 45 to 50 minutes. ECF No. 41-3 at ¶ 9; ECF No. 54 at ¶ 9. The special education team-including a speech pathologist, occupational therapist, school psychologist, and special education teacher-also meets on a regular basis. ECF No. 41-3 at ¶ 9; ECF No. 54 at ¶ 9. Some of these meetings concerned S.G. ECF No. 41-3 at ¶ 9; ECF No. 54 at ¶ 9. Additionally, Mrs. G was invited to attend some of these meetings. ECF No. 41-3 at ¶ 9; ECF No. 54 at ¶ 9.

         Helen Farmer (“Ms. Farmer”) was S.G.'s occupational therapist from first through eighth grade. ECF No. 41-3 at ¶ 45; ECF No. 54 at ¶ 45. She completed an Occupational Therapy Evaluation for S.G. in 2013. ECF No. 41-3 at ¶ 46; ECF No. 54 at ¶ 46; B-5. The evaluation indicates that S.G. has difficulty with balance, bilateral coordination, fine motor skills, visual perception, and visual motor skills, but that her visual perception and visual motor functional skills are better in the school environment than her test scores indicate. B-5 at 4. Ms. Farmer worked with S.G. in both a group setting and an individual setting. ECF No. 41-3 at ¶ 47; ECF No. 54 at ¶ 47; Farmer Tr. 16-17, 21-22. When S.G. moved from elementary to middle school, her occupational therapy time was reduced by 15 minutes. ECF No. 41-3 at ¶ 47; ECF No. 54 at ¶ 47.

         In seventh and eighth grade, Christina Olsen (“Ms. Olsen”) served as S.G.'s case manager and provided her direct instruction. ECF No. 41-3 at ¶ 26; ECF No. 54 at ¶ 26. Ms. Olsen has a master's degree in Special Education, a Sixth-Year Degree in Educational Leadership, and training in assistive technology. ECF No. 41-3 at ¶ 26; Olsen Tr. 133-34. In eighth grade, Elizabeth Zagata (“Ms. Zagata”) taught S.G. math and academic skills while Ms. Olsen continued as her case manager and resource room teacher. ECF No. 41-3 at ¶ 29; ECF No. 54 at ¶ 29. Ms. Zagata is a certified special education teacher, has two master's degrees in education, and is a certified Wilson dyslexia practitioner. ECF No. 41-3 at ¶ 30; Zagata Tr. 61-62, 65.

         At CMS, there were between 2 and 5 students in S.G.'s academic skills classes and 20 to 22 students in her general education classes. ECF No. 41-3 at ¶ 34; ECF No. 54 at ¶ 34. There was also a paraprofessional in all her classes. ECF No. 41-3 at ¶ 34; ECF No. 54 at ¶ 34. Throughout her time at CMS, her instructional team used “scaffolding” techniques. ECF No. 41- 3 at ¶ 32; Olsen Tr. 163. This included the use of note-cards to break down assignments into individual steps, written instructions to accompany verbal instructions, a glossary of examples and definitions for math, and brainstorming sessions. ECF No. 41-3 at ¶ 32; Olsen Tr. 163-65. As her case manager, Ms. Olsen testified that she would facilitate any modifications and accommodations that were needed, coordinate communication with Mr. and Mrs. G, and meet daily with the team of teachers. ECF No. 41-3 at ¶¶ 28, 33; Olsen Tr. 134-35, 138-39. However, S.G.'s tests and quizzes were not always modified, and Ms. Olsen testified that she often encouraged S.G. to try some tests without modifications first. ECF No. 54 at ¶¶ 28, 33; Olsen Tr. 214. She explained that students are “very self-conscious if they're taking a modified test in the regular ed. classroom” and that she would sometimes “say try this in the classroom, see how you do, and you'll have a modified version available to you in the resource room.” Olsen Tr. 213-14. She explained that this approach was “more for their own self-esteem and feeling - not wanting to feel separate or different.” Olsen Tr. 213-14. S.G. would sometimes take tests in the resource room. ECF No. 41-3 at ¶ 34; ECF No. 54 at ¶ 34.

         A child who receives special education services must have an Individualized Education Program (“IEP”). These IEPs contain broad goals that are comprised of objectives, or smaller steps, to help meet those goals. S.G. either mastered or made satisfactory progress on 91% of her IEP objectives in sixth, seventh, and eighth grades. ECF No. 41-3 at ¶ 50. As Mr. and Mrs. G note, however, she only mastered one of seven overarching goals in sixth grade, three of seven in seventh grade, and none in eighth grade. ECF No. 54 at ¶ 50.

         B. S.G.'s Diagnoses

         In 2014, Dr. Jessica Lord-Bean (“Dr. Lord-Bean”) conducted a neuropsychological evaluation and recommended that S.G.'s primary exceptionality be changed from Learning Disabled to Multiple Disabilities. ECF No. 41-3 at ¶ 8; ECF No. 54 at ¶ 8. This change was implemented at the December 8, 2014 Planning and Placement Team (“PPT”) meeting. ECF No. 41-3 at ¶ 8; ECF No. 54 at ¶ 8; B-15 at 3.

         In early 2016, Dr. Cristina Ciocca (“Dr. Ciocca”) conducted a neuropsychological evaluation of S.G. Ciocca Tr. 10. She did not contact any school staff to seek their input, B-43 at 6, and the background information for the evaluation was based on conversations with S.G. and Mrs. G, B-42 at 7. Dr. Ciocca stated that S.G.'s “profile was very concordant or consistent with what we see in the nonverbal learning disability.” Ciocca Tr. 47. Dr. Ciocca explained that nonverbal learning disability is “not in the [Diagnostic and Statistical] Manual, but it is a recognized disorder.” Id. at 90-92. She further stated that S.G. had unspecified anxiety disorder and that it was a “subset” of the nonverbal learning disability. ECF No. 54 at ¶ 17; B-42 at 36; Ciocca Tr. 53-54. Dr. Ciocca also diagnosed S.G. with a pragmatic social communication disorder. Ciocca Tr. 116. Vicki Holbrook-Duran (“Ms. Holbrook-Duran”), a speech and language pathologist who worked with S.G for 3.5 years, testified that she did not agree with this diagnosis. ECF No. 41-3 at ¶¶ 2, 23; ECF No. 54 at ¶¶ 2, 23; Holbrook-Duran Tr. 41-42, 94-95.

         C. Assistive Technology

         Ms. Farmer testified that the Board “explor[ed] a lot of assistive technology” for S.G. ECF No. 41-3 at ¶ 36; Farmer Tr. 26. When S.G. was younger, they used highlighter strips, colored overlays, and large font because of her visual difficulties, and as she got older they started using text-to-speech and other computer technology. ECF No. 41-3 at ¶ 36; Farmer Tr. 26-27.

         At the March 26, 2015 meeting, the PPT discussed additional assistive technology options, including Bookshare, which provided S.G. with electronic access to books. ECF No. 41- 3 at ¶ 38; Olsen Tr. 156. The Board also used different add-ons to the Google Docs platform, including an online thesaurus, grammar check, grammar usage, online writing organizers, and programs that helped S.G. with writing and organization prior to writing. ECF No. 41-3 at ¶ 38; Olsen Tr. 156-57. All students, including S.G., were provided with an e-reader. ECF No. 41-3 at ¶ 39; ECF No. 54 at ¶ 39.

         Dr. Lord-Bean and Dr. Ciocca recommended that S.G. undergo an assistive technology evaluation, but the Board did not conduct such an evaluation. ECF No. 54 at ¶ 36; B-14 at 11; B-42 at 38; Murdica Tr. 241.

         D. Speech and Language Ms. Holbrook-Duran evaluated S.G. in June 2012 and began working with her at the start of the 2012-2013 school year. ECF No. 41-3 at ¶ 2; ECF No. 54 at ¶ 2. She had thirty years of experience as a public school speech and language pathologist. ECF No. 41-3 at ¶ 2; ECF No. 54 at ¶ 2. She drafted and implemented S.G.'s goals and objectives related to speech and language; she also worked with S.G. in a small group. ECF No. 41-3 at ¶ 3; ECF No. 54 at ¶ 3.

         When S.G. started seventh grade, her speech services were reduced from 60 to 45 minutes because the transdisciplinary meetings at CMS added levels of involvement to her programming that eliminated the need for the additional fifteen minutes. ECF No. 41-3 at ¶ 11; ECF No. 54 at ¶ 11; Holbrook-Duran Tr. 93. In assessing S.G.'s progress during seventh grade, Ms. Holbrook-Duran noted that S.G. made satisfactory progress in learning to answer inferential questions and mastered how to answer literal questions. ECF No. 41-3 at ¶ 10; B-18 at 35. She further noted that S.G. fell in the low average range for flexible word use and listening for details in listening comprehension; and that she fell in the below average range for synonyms, semantic absurdities, antonyms, and definitions. ECF No. 54 at ¶ 10; B-16 at 1-2. Further testing showed that S.G. scored in the poor range for phonological awareness and elision; the below average range for blending words, phonological memory, and nonword repetition; and the average range for phoneme isolation, memory for digits, and rapid digit and letter naming. B-16 at 3.

         In eighth grade, Ms. Zagata taught S.G.'s academic skills class, which had only one other student, in which she primarily addressed literacy goals around reading and writing. ECF No. 41-3 at ¶ 30. Ms. Zagata regularly met with S.G.'s eighth grade English teacher to ensure that the academic skills class supported her work in English. Id. at ¶ 31. Both Ms. Zagata and Ms. Olsen collaborated with S.G.'s English teacher to identify questions ahead of time and prepare S.G. to answer them when called on in class. ECF No. 41-3 at ¶ 35; Olsen Tr. 148-50. Mrs. G testified that she would ask S.G. whether she participated in class and estimated that “over the course of the year there was maybe four or five questions done.” ECF No. 54 at ¶ 35; Mrs. G Tr. 59.

         In early 2016, Ms. Holbrook-Duran assessed S.G.'s language and phonological processing skills as they related to her reading. ECF No. 41-3 at ¶ 21; ECF No. 54 at ¶ 21. This included a formal observation of S.G. analyzing To Kill a Mockingbird with a group of other students in her English class. ECF No. 41-3 at ¶ 21; ECF No. 54 at ¶ 21. Ms. Holbrook-Duran determined that S.G. successfully handled this assignment. ECF No. 41-3 at ¶ 21; Holbrook-Duran Tr. 40; B-37 at 5. She noted that S.G.'s overall language skills “fell in the below average range.” B-37 at 5. More specifically, S.G. “demonstrated listening comprehension skills that generally fell in the average range, ” her “vocabulary skills ranged from average to below average, ” and her “phonological processing skills indicated phonological awareness skills that were slightly below average.” B-37 at 5. Although still below average, her phonological processing skills had improved from the last assessment. B-37 at 5. S.G.'s conversation skills were judged to be adequate with regard to topic initiation, maintenance, and closure. ECF No. 41-3 at ¶ 22; Holbrook-Duran Tr. 41. And her strengths included synonym naming, associations, and flexible word usage. B-37 at 5.

         E. Social Skills and Anxiety

         A 2012 assessment indicated that S.G. did not have anxiety. ECF No. 41-3 at ¶ 17; B-15 at 7. Ms. Olsen testified that S.G. seemed to experience only an average level of anxiety. Olsen Tr. 143. However, S.G.'s IEPs from seventh grade onward document anxiety as a concern on the “Present Level of Performance” pages, and she was diagnosed with an unspecified anxiety disorder by Dr. Ciocca in 2016. ECF No. 54 at ¶ 17; B-18 at 7; B-19 at 7; B-26 at 7; B-39 at 5; B-43 at 10; B-42 at 36.

         CMS school psychologist Amy Nadeau was responsible for drafting S.G.'s social and emotional goals; she introduced one goal in seventh grade and this goal continued in eighth grade. ECF No. 41-3 at ¶ 14; ECF No. 54 at ¶ 14. After the December 2014 PPT meeting, which took place during S.G.'s seventh grade year, Ms. Nadeau began working with S.G. in individual and group settings. ECF No. 41-3 at ¶ 12; ECF No. 54 at ¶ 12. In the group meetings, they worked on being assertive, responding to peer pressure and using constructive rather than deconstructive comments and judgments, stress management, coping skills, and dealing with everyday stressors. ECF No. 41-3 at ¶ 12; ECF No. 54 at ¶ 12. This social skills group was not included in S.G.'s IEPs, but students did not require an IEP to participate in the social skills group as it was a regular-education intervention. ECF No. 41-3 at ¶ 13; ECF No. 54 at ¶ 13-14; Nadeau Tr. 28, 108. Ms. Nadeau testified that she recommended this group to S.G. because she thought “there might be some misunderstanding or some underlying anxiety” that was preventing S.G.'s participation in classes. ECF No. 54 at ¶ 13; Nadeau Tr. 28. Near the end of S.G.'s eighth-grade year, Ms. Nadeau testified that her participation in the group sessions “was strong.” ECF No. 41-3 at ¶ 20; Nadeau Tr. 45-46. S.G. was also participating in a small group speech and language session with two other students with whom she interacted in a “[v]ery positive, very engaged” manner. ECF No. 41-3 at ¶ 20; Holbrook-Duran Tr. 43.

         Ms. Nadeau testified that S.G. would continue to need someone to work with her on social skills in high school, but social skills were not included in the IEP for the next year. ECF No. 54 at ¶ 20; Nadeau Tr. 45, 95. However, her ninth grade IEP did include a counseling goal with two objectives: requesting assistance when needed and identifying three strengths and weaknesses in her learning process. ECF No. 54 at ¶ 14; B-43 at 19; Nadeau Tr. 94. Ms. Nadeau explained that S.G. would be implementing as well as naming coping strategies as part of this goal. Nadeau Tr. 117.

         Mrs. G testified that S.G. had trouble socially. She explained that S.G. did not have friends; that a group of peers did not invite S.G. to go trick-or-treating with them in seventh grade; that there was a particular student in some of S.G.'s classes who bullied her; and that S.G. was coerced by her peers into creating a fake Instagram account that later got her suspended. ECF No. 54 at ¶¶ 15, 43; Mrs. G Tr. 18-20, 70-71, 76. Ms. Nadeau testified that S.G. exhibited some anxiety related to a fieldtrip and a community day. ECF No. 54 at ¶ 19; Nadeau Tr. 81-82, 99.

         However, in school, Ms. Nadeau testified that she saw S.G. on a regular basis in the hallways and in the cafeteria and witnessed her interacting with other students. ECF No. 41-3 at ¶ 14; ECF No. 54 at ¶ 14; Nadeau Tr. 15. She further testified that S.G. and her friends would come into her office and talk about their texting, and that one of these students stated that she FaceTimed with S.G. on a nightly basis. ECF No. 41-3 at ¶ 15; Nadeau Tr. 15-16. Ms. Nadeau also stated that S.G. was part of a group of 8-10 students who would sit together at lunch. ECF No. 41-3 at ¶ 15; Nadeau Tr. 16. Ms. Holbrook-Duran also testified that she always saw S.G. with peers, rather than isolated, at school. ECF No. 41-3 at ¶ 16; Holbrook-Duran Tr. 44. Ms. Zagata testified that when she saw S.G. around the school, she was “happy and being socially appropriate in the hallways, engaged with her peers.” ECF No. 41-3 at ¶ 43; Zagata Tr. 88. Ms. Olsen noted that S.G. “always had a group of kids, girls, that she would walk through the hallways with” and that she “generally had three or so close friends that she was typically seen with in the morning before school.” ECF No. 41-3 at ¶ 43; Olsen Tr. 151.

         F. Memory

         Following a February 2013 psychoeducational evaluation, school psychologist John Pierce reported that S.G.'s memory skills fall in the borderline range of functioning and she would have significant difficulty recalling new information, regardless of how novel it is, unless it is repeated to her. ECF No. 41-3 at ¶ 4; ECF No. 54 at ¶ 4; B-4 at 4-5. Ms. Olsen also testified that “if things weren't repeated consistently, sometimes she might forget them” and that S.G. “presented with weak memory skills, so it was a little more complex to work with her sometimes, . . . and she would remember, but she wouldn't always know how to apply skills that she had learned.” ECF No. 41-3 at ¶ 6; ECF No. 54 at ¶ 6; Olsen Tr. 142-43. In a September 2014 neuropsychological evaluation report, Dr. Lord-Bean noted that S.G. learns best “when information is presented in a repetitive and sequential fashion.” ECF No. 41-3 at ¶ 5; ECF No. 54 at ¶ 5; B-14 at 10. Ms. Holbrook-Duran explained that, in practice, it is “like a spiral therapeutic approach where you're constantly moving forward, but you may have to go back and revisit a previously taught concept to make sure that it is - there's a solid foundation in place as you're - as you're continuing to move forward.” ECF No. 41-3 at ¶ 5; Holbrook-Duran Tr. 29-30.

         G. Math

         In both the seventh and eighth grades, S.G.'s IEP provided for 45 minutes of math instruction per day in a special education small group setting. ECF No. 1-1 at (FF) ¶¶ 14, 38. In seventh grade, her IEP included two math-related objectives and she mastered both. ECF No. 1-1 at 32. The Hearing Officer also found that she made significant progress in math in seventh grade. ECF No. 1-1 at FF ¶ 26. In eighth grade, S.G.'s IEP reflected mastery of one math-related objective and satisfactory progress on two math-related objectives. ECF No. 1-1 at 37. However, the Hearing Officer found that “the evidence presented at the hearing was inconclusive” as to whether S.G. actually progressed in math in eighth grade. ECF No. 1-1 at FF ¶ 68. Ms. Olsen testified that S.G.'s math profile was complicated and that it was “not fair to put her in a [particular] grade level, because she could do some things that were on grade level or above grade level . . . and then there were things that she continued to struggle with.” Olsen Tr. 195.

         H. Ninth Grade

         For the most part, S.G.'s ninth grade IEP continued to recommend similar instructional and related service delivery as was used in the previous two grades. ECF No. 1-1 at FF ¶ 98. However, there were two changes. First, the ninth grade IEP eliminated specialized instruction in math. ECF No. 1-1 at FF ¶ 100. Instead, S.G. would be placed in an algebra class co-taught by a special education teacher and a regular education teacher. ECF No. 1-1 at FF ¶ 101; Olsen Tr. 232. The class would cover only one half of the year's algebra curriculum, would review some concepts from the previous year, and would only include 13 students. Olsen Tr. 231. Second, the ninth grade IEP reduced S.G.'s occupational therapy time. ECF No. 1-1 at FF ¶ 103; ECF No. 41-3 at ¶ 48.

         In 2016, Dr. Ciocca administered a neuropsychological evaluation; Mr. and Mrs. G retained Dr. Ciocca and the Board funded the evaluation. ECF No. 41-3 at ¶ 54; ECF No. 54 at ¶ 54; Ciocca Tr. 73-74; B-42. On the basis of her evaluation, Dr. Ciocca recommended Middlebridge School and a few other educational programs for S.G. Ciocca Tr. 63; ECF No. 41-3 at ¶ 54; ECF No. 54 at ¶ 54. At the June 3, 3016 PPT, Mr. and Mrs. G rejected the proposed ninth grade IEP and requested placement at a private school. ECF No. 1-1 at FF ¶ 107; B-43 at 6. The school staff disagreed with the request for a private school placement. ECF No. 1-1 at FF ¶ 107; B-43 at 6. Mr. and Mrs. G then unilaterally placed S.G. at Middlebridge School for the 2016-2017 school year. ECF No. 41-3 at ¶ 51, 55-57; ECF No. 54 at ¶ 51, 55-57.

         Middlebridge did not apply to be on the state of Rhode Island's list of approved special education schools. ECF No. 54 at ¶ 52; Leventhal Tr. 56-57. The primary instructional contacts at Middlebridge are tutors who must have a bachelor's degree. ECF No. 41-3 at ¶ 53; ECF No. 54 at ¶ 53; Leventhal Tr. 46. In addition, the tutors are working toward an associate's level in Orton Gillingham reading instruction; however, the tutor working with S.G. had not obtained the certification despite having sought it for four years. ECF No. 41-3 at ¶ 53; ECF No. 54 at ¶ 53; Leventhal Tr. 47, 49.

         I. Administrative Decision

         On September 16, 2016, Mr. and Mrs. G requested an administrative special education due process hearing from the State of Connecticut Department of Education. ECF No. 41-3 at ¶ 58; ECF No. 54 at ¶ 58. The hearing began on April 7, 2017 and continued over five subsequent days; the last day of the hearing was held on July 12, 2017. ECF No. 41-3 at ¶ 58; ECF No. 54 at ¶ 58. Over the course of the hearing, ten witnesses testified, the Plaintiffs introduced 95 exhibits, and the Board introduced 56 exhibits. ECF No. 41-3 at ¶ 58; ECF No. 54 at ¶ 58.

         On November 1, 2017, the Hearing Officer issued a 47-page, single-spaced final decision and order, including findings of fact, conclusions of law, and additional addenda in which she summarized S.G.'s goals and ...


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