JOHN J. McCONNELL, JR., District Judge.
This matter is before the Court on cross-motions for summary judgment (ECF Nos. 16 and 19) that arise from the decision ("Decision") of an Impartial Due Process Hearing Officer ("Hearing Officer") (ECF No. 1-1) who ruled that the parents' ("Parents") unilateral placement of their child ("Billy"
Upon review of the voluminous record, including transcripts, extensive briefing, and lengthy oral arguments, this Court AFFIRMS the Hearing Officer's Decision for the reasons set forth below.
Billy has struggled since his birth in August of 1995 with a variety of attentional, emotional, and behavioral disabilities such that he is entitled to benefits under IDEA.
Billy's disabilities were evident from the very start of his life. In 1996 when Billy was only a year old, his mother was forced to seek help for his behavioral disabilities from neurologists. (Hearing Tr. 9-2-10 at 67-68);
Billy's Parents then sought the assistance of Dr. Rowland Barrett and Dr. Jeffrey Hunt of Bradley Hospital in East
In 1999 when he was three years old, Warwick Public Schools had Billy evaluated by Memorial Hospital of Rhode Island who determined that he had social, emotional, organizational, and behavioral needs. Memorial advised that he would be best served by a placement outside of the school system with Child, Inc. for a full-day Pre-K Program with resources for his behavioral issues. (Def. App. #2 at 8.) ("[Billy] has recently been placed in a new preschool setting at Child, Incorporated, which appears to be a more appropriate placement given his significant behavioral difficulties at school.") Warwick's own educational assessment found Billy to be inattentive, disobedient, emotional, and hyperactive. Id. at 9. The report states:
Id. at 9.
Billy and his family then moved to the Town of Coventry in 2001. Billy's IEP for first grade stated that Billy "needs a behavioral management plan." (ECF No. 1-1 at 8.) His psychological evaluation (Def. App. #3), his educational evaluation (Def. App. #4), and Coventry's Team Summary and Recommendations (Def. App. #5) all documented that Billy needed a "positive behavioral management system." (Def. App. #4 at 2).
Billy's family moved after first grade and Billy transferred to the Town of Gloucester schools ("Gloucester") for second and third grades. Billy's Gloucester IEP described his needs as "behavioral." His setting was a self-contained classroom with a special education teacher. (ECF No. 1-1 at 9.) Billy failed third grade and was not promoted to fourth grade. (Def. App. #6.) Billy was required to repeat third grade for the 2004-05 school year.
Gloucester referred Billy to the private Emma Pendleton Bradley Day School ("Bradley School") at Bradley Hospital for fourth grade. (Def. App. #8.) This was the second time a school system determined that Billy required an out-of-district school placement. His IEP in August 2005 recommended that he stay at this placement and highlighted his non-compliant behaviors. (Def. App. #9 at 3.) In addition to a self-contained classroom with a special education teacher, a therapist was assigned to Billy's home for thirty sessions to devise behavior management strategies. (ECF No. 1-1 at 10.) His classroom utilized a behavioral program. (Def. App. #9 at 3.)
Psychologists at Bradley Hospital evaluated Billy in May of 2006. The team found that his "performance on his assessment was likely negatively impacted by these attentional and behavior difficulties." (Def. App. #10 at 4.) Billy was discharged from Bradley School in August of 2006.
Billy returned to Coventry schools in the fall of 2006 to begin fifth grade in a selfcontained therapeutic classroom with a special education teacher and one-on-one services. (ECF No. 1-1 at 11.) In some core subjects, Billy did not perform well. For example, he received no grade at all for the second or third trimesters in science and received no grade for all three trimesters in social science. It appears from his report card he either did not attend, or did not receive any grade for Music, Art, or Health. He obtained passing grades in Reading, Writing and Math, but his NECAP
In the fall of 2007, Billy entered sixth grade. The social worker at Billy's school stated that "[a]t the elementary level he was in a Behavioral Self-contained class, which was his recommended placement for academic 2007-08. His class this year numbered fewer than ten students, and featured extremely consistent behavior management, with clear expectations and a level system that was applied with noteworthy consistency." (Def. App. #22.) Despite all of that effort, the teachers found that: "[o]ur concerns for [Billy] center on his conduct, and most importantly on the lack of progress we have seen in any improvement in his conduct." Id. (Emphasis added).
The Special Education case manager for Billy stated:
(Def. App. #21) (Emphasis added).
On December 19, 2007, Coventry convened an IEP Team and prepared a new IEP for Billy. (Def. App. #17.) Despite a long history of behavior issues impeding his academic progress, Billy's IEP for sixth grade contained no goals, objectives, or statements of present levels of performance for social, emotional, or behavioral functioning. It contained only four goals and those were for basic academics only — reading (2), writing, and math. Id. The absence of social, emotional, and behavioral goals was clearly not the result of any dramatic improvement in Billy's social emotional or behavioral functioning. The IEP itself acknowledged that he needed a consistent, structured behavior system with well-understood consequences. Id. at 9. Coventry Special Education Director Sue Lyons admitted that the IEP should have contained behavioral and social skills goals. She said "if I wrote that IEP ... and I knew about some of his needs, would I include a behavioral goal and a social skills goal? Yes, I would." (Hearing Tr. 1-25-11, at 109.)
Despite the sixth grade teachers' many and varied efforts to enable Billy to make any progress, the evidence appears to
In light of the lack of academic progress and the lack of behavioral goals in his IEP, Billy's mother began to investigate out-of-district placements for him. She turned again to Dr. Roland Barrett, the Chief of Psychology at Bradley Hospital, for advice on Billy's educational setting. (Hearing Tr. 9-2-10 at 182.) Dr. Barrett had treated Billy for a number of years. Id. Based on Dr. Barrett's recommendation, and after consulting two other medical professionals and visiting the school, Billy's Parents decided to enroll him at the Stone Mountain School ("Stone Mountain") in Black Mountain, North Carolina. Id. Stone Mountain is a residential school for teenage boys with behavioral and learning difficulties.
After making the decision concerning Billy's educational setting and believing that the IEP did not provide a FAPE for Billy, his mother wrote to Coventry on June 17, 2008 notifying them that she was removing Billy from the Coventry system and enrolling him in a private residential school. She also informed them that it was her intent that such placement would be at public expense. The letter stated that the reasons included Billy's difficulties in school, his lack of improvement, lack of goals in the IEP and lack of a current evaluation. (Def. App. #24.) Coventry's Director of Special Education responded by letter dated June 24, 2008, asserting that Coventry believed that the December 2007 IEP "clearly defines his strengths, needs, goals and objectives." (Def. App. #25.) It rejected the out-of-district placement. Id. Coventry did not schedule or convene another IEP meeting concerning Billy.
Billy enrolled in Stone Mountain on July 8, 2008. (Hearing Tr. 10-5-10 at 3-4.) Behavioral issues and lack of academic progress continued and Billy withdrew from Stone Mountain in September 2009 upon the school's recommendation. Id. at 22-23. He then enrolled in an eight week wilderness camp program with SUWS of the Carolinas Wilderness Camp, but he did not complete the program and returned home to Rhode Island in the fall of 2009. Id. at 25-26.
Billy's Parents notified Coventry in writing on December 30, 2009 that he was no longer enrolled in Stone Mountain and that he would be enrolling in the Chamberlain School.
Billy enrolled in the Chamberlain School in February of 2010. (Hearing Tr. 10-5-10 at 27.) He was fourteen years-old at the time. Dr. Barrett of Bradley Hospital, who had treated Billy since he was four years old, concluded that his "behavior has always greatly exceeded the challenges presented by the vast majority of children with ADHD and ODD [oppositional defiance disorder] * * * [Billy's] psychiatric presentation was unique, not necessarily in terms of its profile and characteristics, but rather in its intensity and recalcitrance." (Def. App. #32 at 2.) He went on that "it is abundantly clear that [Billy] requires a unique special education setting, such as the F.L. Chamberlain School ... [that] will allow him to make the behavioral gains necessary to ensure reasonable academic progress." Id. Dr. Barrett predicted a dire forecast for Billy if he were not placed in a therapeutic residential setting such as the Chamberlain School. (Hearing Tr. 11-18-10 at 88-89.) He said Billy needed a "full court press, 24 hours a day and, you know, let's take it for a couple of years and see if we can't get him back into the public school system at that point in time." Id. at 138.
Bonnie Glickman, an educational consultant and nationally certified counselor observed Billy at the Chamberlain School in two different classrooms and during group therapy. Her opinion was that Billy "was at an extreme end of the behavior and lack of compliance." (Hearing Tr. 10-18-10 at 46.) She stated that his behavior was unrelenting. Id. at 46-47. It was her opinion that the Chamberlain School was an excellent match for Billy's educational, social, and emotional needs. (Def. App. #31 at 3.)
The Chamberlain School formulated an IEP for Billy in April 2010 together with a treatment plan. They prescribed a variety of behavior goals and controls. Debbie Winston, the lead special education teacher at the Chamberlain School described Billy as having significant behavioral issues with disruptive and destructive behavior and improper language. He is a "very challenging student. He's one of our most challenging students. I mean, we're able to handle him, but he takes a lot of effort." (Hearing Tr. 10-6-10 at 77.) During his first year at the Chamberlain School Billy began to show some academic growth, with his 2010 test results on the Woodcock Diagnostic reading battery going from the 6th percentile to the 17th percentile. Id. at 80-82.
Jill Sayward is a licensed clinical social worker at the Chamberlain School. (Def. App. #30.) She describes Billy as having academic, social, and residential environment impairments, who exhibits oppositional, disruptive, and defiant behavior with significant anxiety disorder. This serious diagnosis requires intensive services just short of hospitalization. She testified:
(Hearing Tr. 10-6-10 at 142-143.) Ms. Sayward noticed some improvement in Billy's social interactions with a group of his peers at the Chamberlain School and noted that his behavior in the residence has improved. Id. at 144. Anita Offley, Billy's dorm house manager said that since October 2010 Billy has learned to connect with others and has acquired better social skills. (Hearing Tr. 2-18-11 at 146.)
Billy's Parents filed a Request for an Impartial Due Process Hearing pursuant to 20 U.S.C. § 1415(f) in June of 2010 wherein they sought to have Coventry held responsible for the costs of Billy's out-of-district placement.
A Hearing Officer was appointed pursuant to 20 U.S.C. § 1415. After a pre-hearing conference, the hearing commenced in September of 2010. There were twelve hearing sessions over a period of five months. The parties presented twenty-two witnesses and 108 exhibits, and the hearings produced 1,852 pages of transcript. The Hearing Officer issued his decision on May 29,2011. (ECF No. 1-1.)
Coventry convened two IEP meetings during the pendency of the administrative hearings, on October 27, 2010 and November 3, 2010. Billy's Parents attended both of these meetings. However, Coventry never proffered a completed IEP as a result of either of these meetings, presenting instead a "Draft IEP" (Def. App. #34) that Special Education Director Lyons acknowledged, was incomplete.
(ECF No. 1-1 at 34-36.)
The Hearing Officer found that Coventry failed to provide Billy with a FAPE "due to the absence of clearly delineated behavior goals and clearly delineated behavior modification methods for [Billy] in light of his lengthy history of behavior disorder and its negative impact upon his potential for academic progress." Id. at 35. He concluded that "[t]he evidence is clear and convincing that a therapeutic residential placement * * * is necessary." Id. at 31. He ordered Coventry to provide for the room, board, tuition, and associated costs of Billy at the Chamberlain School and for Coventry to reimburse his Parents for those expenses already incurred. Id. at 37.
Coventry filed suit in this Court on June 24, 2011 seeking review of the state education Hearing Officer's Decision pursuant to 20 U.S.C. § 1415(i)(2).
Coventry is seeking to overturn the Hearing Officer's Decision, and thus bears the burden of proof in this case. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir.1990) ("in cases arising under the Act, the burden rests with the complaining party to prove that the agency's decision was wrong.") The question for this Court is whether Coventry has met its burden to prove that the Hearing Officer was wrong in finding that Billy was denied a FAPE and that Chamberlain School was an appropriate placement.
When an action is brought in District Court challenging a hearing officer's decision, the IDEA provides that the District Court:
20 U.S.C. § 1415(i)(2)(C)(i)-(iii). The Court's standard of review in this type of case "holds an intermediate position between administrative deference and de novo review," and has been deemed "involved oversight." Cranston Sch. Dist. v. Q.D., C.A. 06-538ML, 2008 WL 4145980, at *8 (D.R.I. Sept. 8, 2008); see also Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993); Roland M., 910 F.2d at 989. The Court is "not at liberty to either turn a blind eye to administrative findings or to discard them without sound reason." Lenn, 998 F.2d at 1087. Indeed, the Court's "independence is tempered by the requirement that the court give `due weight' to the hearing officer's findings," that "reflects the concern that courts not substitute their own notions of educational policy for that of the state agency, which has greater expertise in the educational
Town of Burlington v. Dep't of Edu. for Commonwealth of Mass., 736 F.2d 773, 792 (1st Cir.1984).
Moreover, "[j]urists are not trained, practicing educators. Thus, the statutory scheme binds trial courts to give `due weight' to the state agency's decision in order to prevent judges from `imposing their view of preferable educational methods upon the States.'" Roland M., 910 F.2d at 989 (quoting Rowley, 458 U.S. at 207, 102 S.Ct. 3034). "When, as in this case, the Court decides the case on the basis of the administrative record, the parties' cross-motions for summary judgment serve as a procedural device, in which the burden of proof rests with the party seeking to overturn the Hearing Officer's Decision." N.F. v. Chariho Reg'l Sch. Dist., C.A. No. 11-177-ML, 2012 WL 723124, at *6 (D.R.I. Mar. 1, 2012); see also Roland M., 910 F.2d at 991.
Before the Court delves into the case law viewed through the lens of these facts, it is important to briefly discuss the statute that drives this litigation, the IDEA. "`Congress designed the IDEA as part of an effort to help states provide educational services to disabled children.'" D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.2012) (quoting C.G. ex rel. AS. v. Five Town Cmty. Sch. Dist, 513 F.3d 279, 284 (1st Cir.2008)); see also Schaffer, 546 U.S. at 52, 126 S.Ct. 528. It is a scheme of statutes where, in exchange for federal funds, states must meet minimum standards of educational services for disabled children. Esposito, 675 F.3d at 34. "The IDEA'S central requirement is that states identify children with disabilities who need special education and prepare an `individualized education program' [] so that the child receives a `free appropriate public education' []." Cranston Sch. Dist, 2008 WL 4145980 at *4 (quoting 20 U.S.C. § 1412(a)).
The IEP is the "centerpiece" of the IDEA. Maroni v. Pemi-Baker Reg'l Sch. Dist., 346 F.3d 247, 256 (1st Cir.2003). It is the "primary vehicle" for delivery of a FAPE. Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). "The IEP must include, at a bare minimum, the child's present level of educational attainment, the short-and long-term goals for his or her education, objective criteria with which to measure progress toward those goals, and the specific services to be offered." Lessard, 518 F.3d at 23; see also Schaffer, 546 U.S. at 53, 126 S.Ct. 528. Moreover, an IEP "must target 'all of a child's special needs,' whether they be academic, physical, emotional, or social." Lenn, 998 F.2d at 1089 (citing Burlington, 736 F.2d at 788) (emphasis in original);
One of the IDEA'S procedural safeguards to ensure that states are providing a FAPE to students with disabilities is tuition reimbursement for private school placement where appropriate. See 20 U.S.C. §§ 1412(a)(10)(c)(ii), 1415. "The IDEA provides that `a court or a hearing officer may require the agency to reimburse the parents for the cost of ... enrollment [in a private school] if the court or hearing officer finds that the agency had not made a free appropriate public education [FAPE] available to the child in a timely manner prior to that enrollment.'" Cranston Sch. Dist., 2008 WL 4145980 at *5 (quoting 20 U.S.C. § 1412(a)(10)(c)(ii)). The court must also find that the private school is a proper placement in order for the tuition to be reimbursed. See Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993); see also Rhode Island Special Education ("RISE") Regs. 300.148(c). For their part, parents are required to give written notice to the public agency that "they were rejecting the placement proposed by the public agency to provide a FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" ten business days prior to the removal of the child from public school. 20 U.S.C. § 1412(a)(10)(c)(iii). Failure to provide the notice may result in denial of or reduction in tuition reimbursement.
Dissatisfied parents who unilaterally remove their child from public school and place their child in a private school may demand an administrative due process hearing before a designated state educational agency to determine if they are entitled to reimbursement for private school enrollment.
There are two prongs to the Court's consideration of this appeal — 1) was Billy denied a FAPE and 2) if so, is the Chamberlain School a "proper" placement such that Billy's Parents are entitled to be reimbursed for past costs and Coventry should be responsible for current and future tuition costs?
The first prong in determining whether Billy's Parents should be reimbursed for his private school placement
The First Circuit has held that a FAPE should provide for all of a child's special needs, not just academic, Lenn, 998 F.2d at 1089, and the Hearing Officer found Billy's IEP was not designed to do that.
Id. at 1089-1090 (citations omitted).
After a thorough and exhaustive review of the entire record, the Court finds that it is undisputed that Billy's behavioral disability hampers his academic advancement and prevents any educational benefit. This reality has been obvious since his early childhood, routinely recognized by his teachers, and diagnosed by some of our state's leading mental health experts. His teachers have stated that his "behaviors continually get in the way of his academic work" and "because of his behaviors he has missed some essential skills, which have set him back." (Def. App. #21.) (emphasis added.) Although Billy's teachers found that he was academically capable, his behavior consistently got in the way of making academic progress. In fact, two other school systems had recognized Billy's need to be educated in a specialized out-of-district placement. Dr. Barrett from Bradley Hospital stated:
(Def. App. #32 at 1.) Dr. Barrett also opined that:
Id. at 2.
As previously noted, the case law instructs that "[t]he modus operandi of the Act is the ... `individualized educational program.' ... Congress incorporated an elaborate set of what it labeled `procedural safeguards' to insure the full participation of the parents and proper resolution of substantive disagreements." Town of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Billy's December 2007 IEP contained goals and objectives for his academic deficits, i.e., reading, writing and math. However, despite the resounding chorus of agreement that Billy's obvious and predominate behavioral disability was impeding his academic progress, his sixth grade IEP did not contain "clearly delineated behavioral goals" or "behavioral modification methods." (ECF No. 1-1 at 35.)
Moreover, the IDEA mandates that "in the case of a child whose behavior impedes the child's learning" the IEP team must also consider "the use of positive behavioral interventions and supports, and other strategies to address that behavior." 20 U.S.C. § 1414(d)(3)(B)(i). Not having clear and defined behavioral goals and modifications in the IEP is tantamount to denying him any education at all. The record is abundantly clear that Billy's behavioral disabilities act like a boulder that blocks his way from making academic and educational advancements. The Coventry IEP's failure to recognize this and to provide for this is clear and convincing evidence that Coventry violated the IDEA.
The most credible evidence of whether Billy's IEP denied him a FAPE because it lacked behavioral goals came from the writings and testimony of his teachers and the staff at Coventry:
These statements demonstrate, in Coventry's dedicated staffs own words, how a failure to address Billy's behavioral needs in his IEP denied him a free appropriate public education.
Coventry has encouraged this Court to look at Billy's grades over the course of his educational career and to view the various ups and downs as proof that he received
Because the Court has found that Billy was denied a FAPE, it must next consider whether to require Coventry to reimburse Billy's Parents for the Chamberlain School tuition. That decision is based on a determination of whether the Chamberlain School is a "proper" placement. See Florence, 510 U.S. at 15, 114 S.Ct. 361; Cranston Sch. Dist., 2008 WL 4145980, at *5.
For a private school to be "proper," the child's enrollment must be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. That does not mean, however, that the private school must meet all state standards to be considered proper, or be included on the state's list of approved schools. Florence, 510 U.S. at 14, 114 S.Ct. 361. As the Supreme Court in Florence noted, "`it hardly seems consistent with the Act's goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child's needs in the first place.'" Id. (quoting Carter ex rel. Carter v. Florence Cnty. Sch. Dist. Four, 950 F.2d 156, 164 (4th Cir.1991), aff'd, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)). "The court must focus instead on the substance of the private school's teaching and services." Cranston Sch. Dist., 2008 WL 4145980 at *12 (citing Florence, 510 U.S. at 11, 14, 114 S.Ct. 361).
School districts are obligated to place a child in a residential school when, due to the complexity of the child's disabilities, the child needs consistent instructional and therapeutic interventions throughout his or her waking hours in order to make meaningful educational progress. In such cases, a therapeutic residential placement is deemed necessary for educational reasons, and the school district must provide such a placement. Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983); Linda E. v. Bristol Warren Reg'l Sch. Dist., 758 F.Supp.2d 75, 92 (D.R.I. 2010).
The Hearing Officer, as fact-finder, made credibility findings as to the experts and evidence presented at the hearing with which this Court, after reviewing the entire record, independently agrees. The Court's reasoning is best summed up by the Hearing Officer's decision where he ruled "[t]he evidence is clear and convincing that a therapeutic residential placement where [Billy] has a continuing contact with his parents to abate his anxiety issue is necessary and to allow him to attend to his peer relationship and his academic progress." (ECF No. 1-1 at 31.) The Hearing Officer concluded that:
(ECF No. 1-1 at 36.) The record reveals that the Chamberlain School was, and remains, appropriate for Billy, whose behaviors were at an extreme level rarely found in other children.
Billy's Parents also claim that Coventry's procedural violations constitute a further denial of FAPE. They allege that when Coventry's Director of Special Education in her letters of June 24, 2008 and December 31, 2009 (Def. App. #25, #27) summarily dismissed the Parents' concerns about Billy's education and advised the Parents that Billy's current IEP and placement were appropriate, Coventry effectively predetermined his placement without any input from either the Parents or an IEP Team. In so doing, the Parents assert that Coventry deprived the Parents of their fundamental right to be full participants in the decision-making process regarding their child's special education, and also deprived Billy himself of his right to have his needs determined, and his educational program developed collaboratively by a duly-constituted IEP Team.
This Court need not address these procedural issues because of its ruling upholding the Hearing Officer's order that Billy continue at the Chamberlain School and that Coventry reimburse Billy's Parents for his therapeutic residential placement.
This Court is fully aware of the implications of its Order. As the United States Supreme Court expressed:
Florence, 510 U.S. at 15, 114 S.Ct. 361. IDEA's mandate in this case is for Billy to receive an appropriate education that allows him some educational benefit. This Court, after an extensive review of the entire record holds that the Hearing Officer was correct that Billy was denied a FAPE and that the Chamberlain School is an appropriate placement for which Coventry should be financially responsible.
Because this Court affirms the decision of the Hearing Officer, Plaintiffs Motion for Summary Judgment (ECF No. 16) is DENIED and the Defendants' Motion for Summary Judgment (ECF No. 19) is GRANTED.
The Defendants shall present an appropriate order and judgment.
IT IS SO ORDERED.
