United States District Court, D. Connecticut
MR. AND MRS. G., on their own behalf and as Next Friends of S.G., Plaintiffs,
CANTON BOARD OF EDUCATION, KEVIN D. CHASE, JULIE AUSERE, AND PERRI S. MURDICA, Defendants.
Michael P. Shea, U.S.D.J.
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
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.
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.
General Structure of Educational Programming
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.
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.
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.
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.
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
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 ¶
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.
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.
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.
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
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.
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.
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.
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.
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
Social Skills and Anxiety
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.
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.
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.
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.
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.
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.
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.
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.
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 ¶
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.
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.
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 ...