CHARLES S. HAIGHT, Jr., Senior District Judge.
Plaintiffs, Mr. and Mrs. A (together, "Parents"), parents of Z.A. ("the "Student"), bring this action against Defendant Greenwich Board of Education ("the Board"). Parents bring suit pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 ("IDEA"), to appeal a decision and order (the "Order") of an independent hearing officer (the "IHO") of the State of Connecticut's Department of Education. Specifically, Parents filed suit under § 1415(i)(2) of the IDEA, which grants the right to bring a federal civil action to certain parties claiming to have been aggrieved by the IDEA's dispute resolution process. The parties have cross-moved for summary judgment. Docs. 25-29, 33. This Ruling resolves both motions.
Z.A. is a fifteen-year old student at the Eagle Hill School ("Eagle Hill") in Greenwich, CT, a special education facility as determined by the Connecticut State Department of Education. Z.A. first matriculated at Eagle Hill for the 2013-14 school year following Parents' decision to move the family from New York City to Greenwich in 2013. Z.A. had spent the previous four academic years at the Summit School ("Summit") in New York City, which is also a private school designed for students with special educational needs. Parents' decision to send Z.A. to Eagle Hill, rather than a public school within the Greenwich Public School ("GPS") system and under the jurisdiction of the Defendant Board, is the focus of the instant dispute.
Parents initially became concerned about Z.A.'s abilities while Z.A. was in preschool. Mrs. A. Tr. (7/24/14) at 49.
B-5, at 1. In light of these difficulties, Parents decided to send Z.A. to Manhattan Country School, a private school in New York City. Dr. Farber conducted further psychological evaluation of Z.A. in December 2007 and March 2008, specifically diagnosing Z.A. with "mixed receptive-expressive language disorder," and determining that he "meets criteria for a diagnosis of learning disability in the areas of processing speed, graphomotor coordination, and expressive writing." B-5, at 7. Dr. Farber further stated that Z.A. "needs to be in a school for children with language and learning disabilities." B-5, at 7.
While attending the Manhattan Country School Z.A. began to struggle socially, which concerned Parents enough to enroll Z.A in New York City public school for second-grade for the 2008-09 school year. Mrs. A. Tr. (7/24/14) at 51. In fact, Parents removed Z.A. from the Manhattan Country School after a safety issue arose during Z.A.'s first day of second grade. Id.; B-6, at 1 ("He left Manhattan [Country School] abruptly after the first day of his third year there when his mother, who attended a school picnic with him, saw how cruelly he was being picked on by the other boys"). However, Parents were unsatisfied with Z.A.'s experience in New York City public school because Z.A. "just couldn't get consistency of support." Id. On the recommendation of Dr. Farber, Parents chose to send Z.A. to Summit in New York City for third grade during the 2009-10 academic year. Payment for the Summit tuition was paid for by the New York City Department of Education and the New York State Education Department in light of their finding that Z.A. was disabled pursuant to the IDEA and that the New York City Department of Education "is not able to provide the special education services recommended for [Z.A.]." P-20.
At some point in 2010, Z.A. began to visit board certified psychiatrist Dr. Roger Rahtz, who has since then continuously and regularly treated Z.A. Dr. Rahtz Tr. (9/4/14) at 6; Mrs. A. Tr. (7/24/14) at 66-67. Additionally, in August of 2011, Parents retained the services of Dr. Andrew Morrel to conduct another psychological evaluation of Z.A. B-6. Ultimately, Dr. Morrel's summary of Z.A. was as follows:
B-6, at 8.
Z.A. attended Summit for the third through sixth grades, spanning the academic years of 2009-10, 2010-11, 2011-12, and 2012-13. Present in the record are two Individual Education Plans ("IEPs") crafted by the New York Committee on Special Education that were created while Z.A. was at Summit. One, dated March 6, 2012, was operative for Z.A.'s sixth-grade year at Summit during 2012-13. The second, dated May 24, 2013, was to be operative for Z.A.'s seventh-grade year during 2013-14.
Z.A.'s May 2013 IEP, created for implementation during the following 2013-14 school year, would not go into effect at Summit because at this time Parents were planning to move the family from New York City to Greenwich. Parents decided to move for several reasons, one related to the struggles and stresses faced by Z.A. in New York City generally and at Summit specifically, but also due to adverse changes in Mr. A.'s employment situation.
Parents had been planning to move to Greenwich for some time, and had owned a house in the town since 2002. Mrs. A. Tr. (10/21/14) at 31. One reason Parents decided on Greenwich was the quality of the school system. Id. At some point in 2012, Mrs. A. toured Greenwich's Central Middle School ("CMS"), the school which Z.A. would have attended if he were to attend a school under the Board's jurisdiction. Id. at 31-2. Mrs. A testified that she toured CMS with the intention that Z.A. would eventually attend school there. Id. Around this time, however, Parents were also considering Eagle Hill, which was recommended to them by Dr. Morrel when Z.A. was initially struggling at Summit. Mrs. A. Tr. (7/24/14) at 52. At some point in 2012, Mrs. A. even called Eagle Hill, but never followed up. Id. at 52-53.
Once Mr. A.'s financial setback occurred near the end of that year, 2012—or, as testified to by Mrs. A., once "all hell broke loose"—Parents began to consider moving in earnest, and Eagle Hill came up again. Id. at 53. In February of 2013, Z.A. and Mrs. A. took a tour of Eagle Hill, with Z.A. taking part in an interview the same day. Shortly thereafter,
On May 28, 2013, Z.A. had his first of four evaluation sessions with Dr. Timothy Heitzman, a pediatric neuropsychologist at the Southfield Center for Development in Darien, CT. B-7. One of the principal reasons that Parents obtained the services of Dr. Heitzman was to "help them to find an appropriate school placement for [Z.A.]." B-7, at 1. Z.A. met again with Dr. Heitzman on June 4, June 5, and June 7, 2013. Ultimately, Dr. Heitzman issued a Neuropsychological Evaluation of Z.A., dated August 14, 2013. B-7.
During the first week of June 2013, Parents closed on their new house and physically relocated to Greenwich. Parents thereafter registered Z.A. at CMS on June 7, 2013. Parents did so even though, as discussed, Z.A. was at the time enrolled at Eagle Hill and the June 1, 2013 date had passed by which they were contractually obligated to pay Eagle Hill the entire 2013-14 academic year's $60,750 tuition. Also on June 7, 2013, Mrs. A. took a short tour of CMS, led by CMS guidance counselor Colleen Alfano. Mrs. A. did not bring Z.A. on this visit to CMS. Z.A. was in school that day at Summit, where he was set to finish the 2012-13 academic year. Mrs. A. Tr. (10/12/14) at 43.
At some point after June 7, 2013, Parents requested that the Defendant Board convene a Placement and Planning Team ("PPT") to create an IEP for Z.A. Prior to the PPT meeting, Parents provided to the Board the Summit New York IEPs from March 6, 2012 and May 24, 2013, as well as the 2008 report of Dr. Farber and the 2011 report of Dr. Morrel. Parents did not inform the Board that they had already enrolled Z.A. at Eagle Hill, or that they were even considering a private placement for Z.A. Parents also did not inform the Board that Z.A. had just a few weeks prior spent four sessions with Dr. Heitzman or that Dr. Heitzman would soon be issuing a comprehensive neuropsychological evaluative report. This is despite the fact that the express purpose of that report was to assist with finding a proper school placement for Z.A.
The Board convened the PPT meeting on June 26, 2013. Present at the meeting were: (i) Assistant Principal Dr. Jo Frame, the administrator of the PPT; (ii) special education teacher Carolyn Hoette; (iii) general education teacher Kevin Krois; (iv) school psychologist Dr. Scott McCarthy; (v) speech/language pathologist Julie Webster; (vi) guidance counselor Colleen Alfano; and (vii) Mrs. A. Sherri Bordoff, the Clinical Director at Summit, also participated by telephone.
The PPT determined that Z.A. was disabled, specifically, that he suffered from an "Emotional Disturbance." B-3, at 2. The PPT therefore determined that Z.A. was "[e]ligible as a student in need of Special Education," and that "[t]he child is evaluated as having a disability, and needs special education and related services." B-3, at 2. However, the PPT did not create an IEP for Z.A. Rather, "[t]he team agreed to a diagnostic placement," pursuant to which Z.A. would be enrolled at CMS and evaluated during the beginning of the school year, prior to the school creating and implementing an IEP. B-3, at 2. The PPT determined the goals of the diagnostic placement to be three-fold: (i) "gather current level of academic, cognitive behavior need"; (ii) "provide education in [least restrictive environment] available to best suit [Z.A.]'s needs"; and (iii) "draft a new IEP for the 2013-2014 school year." B-3, at 4. The specific services to be provided during the diagnostic placement were to be: (i) daily 45 minute collaborative group meetings with a special education academic monitor, Carolyn Hoette; (ii) weekly 45 minute meetings with Julie Webster, CMS's speech/language pathologist; and (iii) weekly 45 minute counseling meetings with school psychologist Dr. Scott McCarthy. A PPT was to be convened every two weeks between the start of the school year and October 8, 2013 to address Z.A.'s progress through the diagnostic placement. The diagnostic placement made no reference to Z.A.'s Summit IEP, nor the contents thereof.
Alfano testified that the purpose of the diagnostic placement in the mainstream setting accompanied with bi-weekly meetings was so that the school could "repeatedly review whether or not [Z.A.] was in the least restrictive environment and his needs were being met." Alfano Tr. (9/11/14) at 62. She also testified that the diagnostic placement is
Id. at 66. The purpose of collecting that data was to form a baseline from which the PPT could ultimately create an IEP. Hoette Tr. (10/17/14) at 132-33.
CMS school psychologist and PPT member Dr. Scott McCarthy testified why he thought that a diagnostic placement was most appropriate for Z.A.:
Dr. McCarthy Tr. (10/27/14) at 71; see id. at 15 ("our focus was on providing the services within Central Middle School"). Dr. McCarthy also stated: "the purpose of a diagnostic placement was to determine whether the goals that had been developed in that May [Summit] IEP could be accessed. . . with the services that we were providing." Dr. McCarthy Tr. (10/21/14) at 109. Alfano testified that a motivation for the diagnostic placement at CMS was that "Ms. [A] expressed that [Z.A.] wanted to be in typical mainstream classes and wanted to not feel different and separate. And we considered that." Alfano Tr. (9/11/14) at 67; see also Dr. McCarthy Tr. (10/27/14) at 15 ("the people who knew him best were saying that a mainstream setting was going to be the most appropriate for him"); but see Dr. Rahtz Tr. (9/4/14) at 33 ("I believe that the possibility of [Z.A.] being in a mainstream setting [in June 2013] would have significant disadvantages").
In addition to the goal of the diagnostic placement—to gain data on how Z.A. would perform during the regular-year mainstream program—PPT members made an offer at the PPT meeting to visit Z.A. over the summer, either at home or at Z.A.'s summer camp.
Mrs. A. did not sign the consent form as to the diagnostic placement, stating that she wanted to take it home and discuss it with Mr. A. first. Doc. 27 ¶ 33; Alfano Tr. (9/11/14) at 50. However, Mrs. A did sign an authorization form allowing GPS to obtain information from Dr. Rahtz.
B-9, at 2.
On July 10, 2013, Dr. Frame responded to Mrs. A.'s June 30 e-mail—after first contacting the GPS special education department
B-9, at 3. This is the first time that Parents notified anyone at GPS that they were obtaining an evaluation from Dr. Heitzman. This is despite the fact that Dr. Heitzman had already met with Z.A. four times, with the ultimate meeting having taken place more than a month prior to Mrs. A.'s July 11 e-mail.
At some point between Mrs. A.'s July 11, 2013 e-mail and August 1, 2013, CMS Assistant Principal Mabee learned that Z.A. was enrolled at Eagle Hill for the upcoming school year. Mabee learned this not through Parents, but when Eagle Hill contacted CMS about arranging transportation for Z.A. to Eagle Hill for the 2013-14 academic year. On an August 1, 2013 telephone call, Mabee informed Parents that she learned Z.A. had been enrolled at Eagle Hill. B-12. It was Parents' unrebutted understanding that, during that call, GPS, through Mabee, expressed its intent not to schedule a second PPT in light of Z.A.'s Eagle Hill enrollment. B-12.
In a letter dated August 9, 2013, Parents gave notice to the Board that they were "privately placing [Z.A.] at Eagle Hill School," and that they "will be seeking tuition reimbursement and related expenses from the Greenwich School Board." B-10.
On August 16, 2013, Parents transmitted via e-mail the completed Heitzman report to Dr. Frame.
The Board responded to the Parents' August 9, 2013 letter on August 19, 2013. B-11. The Board expressed the school's desire to conduct another PPT and told Parents to contact the school regarding its scheduling. The letter also provided details as to how Z.A. could formally withdraw from CMS. On August 27, 2013, Parents contacted GPS indicating their desire to schedule a follow-up PPT. P-8. August 27, 2013 was also the first day of school at CMS. HO-2 ¶ 21.
A second PPT was convened on September 17, 2013, after Z.A. had begun classes at Eagle Hill. Present at this PPT were: (i) Mabee, the PPT administrator; (ii) regular education teacher Dr. Frame; (iii) special education teacher Hoette; (iv) school psychologist Dr. McCarthy; (v) speech/language pathologist Webster; (vi) program coordinator Jeffrey Libby; and (vii) Mrs. A. Z.A.'s psychologist, Dr. Rahtz, participated by telephone. In light of the additional findings in the Heitzman report, the PPT agreed that additional services were warranted beyond those called for in the first PPT. See Dr. McCarthy Tr. (10/21/14) at 116 ("this 2013 report was very, very different and suggested that [Z.A.] needed a small instruction and highly supported setting"). However, like the first PPT, this PPT also did not culminate in an IEP, but again in a diagnostic placement. This was despite Dr. Rahtz's statement at the meeting that a diagnostic placement was not appropriate for Z.A. Dr. Rahtz Tr. (9/4/14) at 48-49 ("the placement even for a relatively short time . . . in a mainstream setting would be deleterious to [Z.A.]'s self-esteem"). Although the PPT again did not incorporate Z.A.'s Summit IEP, it did dictate that "[t]he team will implement the Summit School IEP goals, 5/24/2013, during the Diagnostic Placement." B-4, at 2. This diagnostic placement would be similar in nature to the one called for during the first IEP, with the addition of: (i) a daily check-in service for Z.A.; (ii) paraprofessional support; (iii) a once weekly social skills group; (iv) a once weekly small group speech session; (v) twice weekly occupational therapy; and (vi) a BCBA consultation during the diagnostic placement.
Parents received the diagnostic placement plan emanating from the second PPT on September 28, 2013. On October 3, 2013, they wrote as follows in response:
P-11. Mrs. A. testified as to the deficiencies she saw in the diagnostic placement, such as too large of a class size, insufficient student-to-teacher ratio, lack of structure throughout the entire day, including lunch, the lack of appropriate emotional support from properly trained individuals, as well as the lack of having one point person formally assigned to Z.A. Mrs. A. Tr. (10/8/14) at 108-11, (10/21/14) at 6-8.
On May 2, 2014, Parents petitioned for a due process hearing to challenge the Board's diagnostic placement approach with respect to Z.A. After a failed attempt at mediation, the parties scheduled a hearing in front of the IHO. The hearing extended over seven days, on July 24, September 4, September 11, October 8, October 14, October 27, and November 24, 2014. Testifying at the hearing were: (i) Mrs. A; (ii) Dr. Rahtz; (iii) Rosenberg; (iv) Alfano; (v) Dr. McCarthy; (vi) Hoette; (vii) Mabee; and (viii) Dr. Frame. The issues for resolution were: (i) "Did the Board offer an appropriate program to Student by requesting a Diagnostic Placement?"; (ii) Did the Board have sufficient information to develop an [IEP] for Student?"; (iii) "Is Eagle Hill School an appropriate placement for Student?"; and (iv) "If Eagle Hill is an appropriate placement for Student, should the Parents be reimbursed for the costs of tuition and education related expenses?" The parties submitted post-hearing briefing on December 10, 2014.
On December 30, 2014, the IHO issued her decision, ruling in favor of the Board. In summary, the IHO determined that: (i) the diagnostic placement was appropriate; (ii) the Board lacked sufficient information to develop an IEP for Z.A. in the mainstream setting; and (iii) in light of those findings, it was unnecessary to address the issues as to Eagle Hill. Parents filed the instant action challenging the IHO's determination on February 13, 2015.
IDEA appeals are generally resolved in full via cross-motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. However,
M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 226 (2d Cir. 2012) (internal quotations, citations, and alterations omitted). The "preponderance of the evidence" standard comes directly from the IDEA itself. 20 U.S.C. § 1415(c)(2) ("basing its decision on the preponderance of the evidence, [the district court] shall grant such relief as the court determines is appropriate"). Accordingly, "`a motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact. Rather, the motion serves a pragmatic procedural mechanism for reviewing a state's compliance with the procedures set forth in [the] IDEA.'" Id. at 225-26 (quoting Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)).
Finally, in determining whether a state agency's decision as to a local education agency's compliance with the IDEA is supported by a preponderance of the evidence, the court should keep in mind that
C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 77 (2d Cir. 2014).
The process of review of a state agency's determination as to parents' entitlement to reimbursement for a private placement under the IDEA is a familiar one:
J.C. v. New York City Dep't of Educ., ___ F. App'x ____, 2016 WL 1040160 (2d Cir. Mar. 16, 2016) (quoting C.F., 746 F.3d at 73).
"A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education ("FAPE")." R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012); 34 C.F.R. § 300.101(a) (a FAPE "must be available to all children residing in the State between the ages of 3 and 21"). The "centerpiece" of the provision of a FAPE is "`the individualized education program,' or `IEP.'" Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)); see also R.E., 694 F.3d at 186 ("the adequacy of the IEP . . . creates considerable reliance interests for the parents"). An IEP "is a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." M.H., 685 F.3d at 224. Given the centrality of the IEP to the IDEA scheme, "[a]t the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in § 300.320." 34 C.F.R. § 300.323(a); K.L. ex rel. M.L. v. N.Y.C. Dep't of Educ., 2012 WL 4017822, at *16 (S.D.N.Y. Aug. 23, 2012) ("The IDEA . . . requires that a school district have an IEP in effect at the beginning of the applicable school year."). Where a school board fails to have an IEP in effect for a disabled child at the beginning of the school year, the board fails to offer that student a FAPE. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 450 (2d Cir. 2015) ("`[W]hen a child requires special-education services, a school district's failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under the IDEA as a failure to provide an adequate IEP'" (quoting Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-389 (2009)).
Here, it is undisputed that the Board determined Z.A. to be disabled and in need of special education services at the June 26, 2013 PPT meeting. B-2; see also Dr. McCarthy Tr. (10/27/14) at 69 ("I don't think there was any question on our team as to whether he was eligible."). It is also undisputed that the Board did not have in place an IEP for Z.A. at the beginning of the 2013-14 school year. Therefore, unless there is a sufficient and acceptable reason why the general IDEA requirements for the creation of an IEP for disabled students do not apply to Z.A., the Board failed to offer him a FAPE for the 2013-14 school year. See Plainville Bd. of Educ. v. R.N., 2012 WL 1094640, at *11 (D. Conn. Mar. 21, 2012) ("an IEP was never developed for the . . . school year. Unless the Board provides an adequate defense, then, a finding that plaintiff failed to provide FAPE for that school year is proper").
The Board offers several arguments as to why its failure to offer Z.A. a day one IEP was defensible: (i) its approach was authorized by IDEA procedure applicable to students who transfer from out-of-state with an existing IEP; (ii) the Board's approach was authorized by a Connecticut regulatory procedure allowing for diagnostic placements pending the creation of an IEP; and (iii) Parents' refusal to consent to an evaluation bars their claim. The Court addresses these in turn.
In defending the Board's action, the IHO relied heavily on 34 C.F.R. § 300.323(f), a regulatory provision governing the process by which a disabled student with an IEP relocates to a new school district in another state during the school year.
(1) Conducts an evaluation pursuant to §§ 300.304 through 300.306 (if determined to be necessary by the new public agency); and
(2) Develops, adopts, and implements a new IEP, if appropriate, that meets the applicable requirements in §§ 300.320 through 300.324.
Section 300.323(f) therefore states that school districts are not obligated to put into effect an IEP that was operative in an out-of-state district when a student transfers into their district during the school year. In such a situation, the Board must only adhere to its general obligation to provide FAPE, while providing "services comparable" to those offered in the out-of-state IEP pending its initial evaluation of the student.
The IHO viewed the Board's action in light of § 300.323(f). Specifically, she concluded that Z.A. was offered a FAPE because, pursuant to § 300.323(f), "FAPE is provided by offering services comparable to those services provided in the Student's previous IEP until the receiving public agency's IEP team has completed this initial evaluation." Doc. 29-1, at 10. The IHO therefore held that the Board was not obligated to provide Z.A. an IEP on day one of the 2013-14 school year because it was allowed an opportunity to place Z.A. in a diagnostic placement given his status as a transfer student with an out-of-state IEP. Therefore, the IHO held that "GPS did provide FAPE as defined by 34 CFR §323(f) by matching services to those contained in Student's previous Summit School IEP during the period of the diagnostic placement." Doc. 29-1, at 10.
The IHO erred in its reliance on § 300.323(f), which cannot apply to the case at bar. By its very terms, it applies only to students transferring from out-of-state who "enroll[] in a new school within the same school year." 34 C.F.R. § 300.323(f) (emphasis added); see also 20 U.S.C. § 1414(d)(2)(C)(i)(II) (applicable only to children "with a disability who transfer school districts within the same academic year"); Maynard v. District of Columbia, 701 F.Supp.2d 116, 123-24 (D.D.C. 2010) ("Given the facts of this case, the Court finds [§ 300.323(f)] inapposite because . . . G.M. transferred schools during the summer, not `within the same school year.'"). While Parents registered Z.A. with the GPS system during the tail end of the 2012-13 school year, it is undisputed that Z.A. was to finish the school year at Summit and that he would not enroll in a GPS school until the 2013-14 academic year. Such is acknowledged in the Board's motion papers. Doc. 29, at 37 n.31 ("the Student was not enrolling in the Greenwich Public Schools until September 2013"). In this instance, where Z.A. was transferring schools during the summer, § 300.323(f) is not applicable.
The Third Circuit has applied the IDEA's intrastate transfer provision—20 U.S.C. § 1414(d)(2)(C)(i)(I)—to facts somewhat analogous to the case at bar, even though that provision also only applies for transfers "within the same academic year." In J.F. v. Byram Township Board of Education, the court held that "although the transfer here took place between school years, we will apply the test in § 1414(d)(2)(C)(i)(I) because the transfer post-dated the creation of the IEP for the new school year," and therefore "[t]he situation . . . resembles a mid-year transfer." 629 F. App'x 235, 238 n.2 (3d Cir. 2015). However, for the reasons that follow, that analysis is inapplicable to the interstate transfer provision of 20 U.S.C. § 1414(d)(2)(C)(i)(II) and actually demonstrates well why the Board cannot invoke it in the instant case.
The IDEA's intrastate transfer provision neither requires or allows for an initial disability evaluation because an intrastate transfer student has already been determined to be disabled under that state's standards. In other words, "the child's educational placement has already been determined in accordance with state procedures . . . and his or her IEP bears the imprimatur of that state." Michael C. ex rel. Stephen C. v. Radnor Tp. School Dist., 202 F.3d 642, 651 n.7 (3d Cir. 2000). Therefore, for an intrastate transferor, when an IEP for the forthcoming year has already been put in place, there is no distinction for the school board evaluators between the summer months and the school year. In both situations, neither an initial evaluation or a reevaluation—for purposes of determining disability—need (or may) be conducted.
However, for an interstate transferor, the previous IEP carries no imprimatur of correctness in the new state and therefore an initial evaluation must be conducted, even if, as here, the previous IEP was created for a forthcoming school year. In this situation, the distinction between the school year and the summer has significance. During the school year, the receiving school requires the leeway offered pursuant to § 1414(d)(2)(C)(i)(II) because there is little to no gap in time between the operation of the old and the new IEP (if one is determined to be necessary). During the summer months, however, where, as here, the receiving school has months to assess the transfer student prior to the beginning of the school year, no leeway is required and the general IEP obligations operate as usual.
The non-applicability of the interstate mid-year transfer provisions is starkly apparent in the case at bar, where the Board had already determined Z.A. to be disabled pursuant to Connecticut's standards months before Z.A. was to begin school. The Board had more than sufficient time to create an IEP and needed no stop-gap measure. Viewed in this light, the issue at bar thus is not whether the Board was obligated to put the Summit IEP in effect. In fact, it is quite clear that the Board was not so obligated. See Michael C., 202 F.3d at 651 ("the IDEA's overall scheme and the precedent interpreting that scheme leads inexorably to the conclusion that when a student moves from State A to State B, any prior IEP in effect in State A need not be treated by State B as continuing automatically in effect"). Nor is the issue whether the Board offered Z.A. "comparable services" as to the Summit IEP pending an initial evaluation. Rather, because the Board already determined Z.A. to be disabled and in need of special education and related services under Connecticut's own standards, the issues are simply whether the Board conducted a meeting within thirty days of its determination that Z.A. was disabled, 34 C.F.R. § 300.323(c), and whether the Board had an IEP in effect for Z.A. at the beginning of the school year, 34 C.F.R. § 300.323(a). The Board failed to satisfy both obligations.
The Court understands the dilemma such a scheme imposes on school board's conducting initial evaluations over the summer for disabled transfer students. Pursuant to statute, any initial evaluation of a student must involve "determin[ing] the educational needs of [the] child." 20 U.S.C. § 1414(a)(1)(C)(i)(II). However, as discussed, the IDEA also requires IEPs to be in effect on the first day of the school year for any student determined to be disabled. 34 C.F.R. § 300.323(a). Accordingly, where a school board initially determines a student to be disabled over the summer months, it will generally have to determine the educational needs of that child without ever being able to evaluate the student within its own school-year program: the purpose of the so-called "diagnostic placement." However, such is the statutory scheme in effect. Further, the Second Circuit has stated forcefully that Parents of disabled children have a "considerable reliance interest[]" in an IEP being created prior to the start of the school year because "[a]t the time the parents must choose whether to accept the school district recommendation or place the child elsewhere, they have only the IEP to rely on." R.E., 694 F.3d at 186. In line with this authority, the Board was obligated to do its best to evaluate Z.A.'s educational needs over the summer and create an IEP prior to the start of the school year. In other words, as in Maynard, where § 300.323(f) was not applicable due to a disabled student's interstate summer transfer, the Board was "required to develop its own IEP for [the student] prior to the start of [the following] school year." 701 F. Supp.2d. at 124.
In light of the foregoing, Z.A.'s status as an interstate transfer student could have no effect on the Board's requirement that it have an IEP prepared for Z.A. on day one of the 2013-14 school year.
The Board argues that a Connecticut regulation, RCSA § 10-76d-14, allowed it to forestall imposition of an IEP pending a "diagnostic placement" of Z.A. That regulation states in relevant part:
RCSA § 10-76d-14 (emphases added). Relying on a reading focused on the language emphasized above, the Board makes the following argument: it was entitled to delay creation of an IEP and impose a temporary diagnostic placement, despite the fact that it had sufficient data to determine that Z.A. was disabled, because without evaluating Z.A. in its mainstream school-year program, it had insufficient data "to develop . . . [Z.A.]'s individualized education program."
The IHO accepted this argument, finding the Board's process of review permissible because "RCSA 10-76d-4 [sic]
In any event, the Board's argument that RCSA § 10-76d-14 allowed it wait to conduct a diagnostic placement of Z.A. during the school year, with no IEP in place, cannot be reconciled with the language of the IDEA and its implementing regulations.
R.E., 694 F.3d at 186 (internal citations omitted).
In the face of this forceful expression, RCSA § 10-76d-14 cannot be read to provide a school board a general right to make parents of a disabled child forego the creation of an IEP for a student that it determines to be disabled well prior to the start of a school year, and instead offer that student a temporary placement, even for seemingly salutary "diagnostic" purposes. To hold otherwise would force parents of disabled children, such as Plaintiffs here, to make a placement decision without the benefit of having any knowledge as to how their disabled child would be dealt with throughout the substantial majority of the entire school-year to follow. In fact, this was the precise concern shared by Mrs. A. at the due process hearing when she was asked by the Board's counsel: "if [the school] felt that . . . a support [Z.A.] had during the diagnostic placement was appropriate, they could keep that support is that correct?" Mrs. A. Tr. (10/21/14) at 85). Mrs. A. responded: "Right, but I couldn't risk them not." Mrs. A. Tr. (10/21/14) at 85. Forcing Mrs. A. to take that risk contrasts with the approach of the IDEA and binding case law.
The Board next argues that Parents' refusal to allow it to evaluate Z.A. blocks Parents' claims. In essence, the Board argues that it was unable to meet its obligation to have an IEP for Z.A. on day one of the school year because of Parents' refusal to allow it to evaluate Z.A.
The Board is correct that it had not just a right, but an obligation, to evaluate Z.A. prior to providing him special education services. See 20 U.S.C. § 1414(a)(1)(A) (a "local educational agency shall conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability."). The Board is also correct that reimbursement for a private placement may be forfeited where parents refused to make their child available for evaluation by the reviewing school board. See P.S. v. Brookfield Bd. of Educ., 353 F.Supp.2d 306, 314-15 (D. Conn. 2005) ("Because the Board was entitled to perform the requested evaluation, P.S.'s parents lost their right to reimbursement by failing to make P.S. available for that evaluation").
However, the Board's argument fails on this record. At the outset, the record demonstrates that Parents did not refuse consent for any relevant evaluation apart from the diagnostic placement itself. As testified to by CMS school psychologist Dr. McCarthy, the PPT did not offer to conduct any evaluations of Z.A. prior to the start of the school year. Dr. McCarthy Tr. (10/27/14) at 13; see also id. at 130 (agreeing that "[a]t the June PPT meeting . . . none of the Greenwich members of the team recommended that any evaluations be conducted of [Z.A.]"). Nor does the June PPT meeting's "Action Proposed" section identify any type of evaluation of Z.A. that would occur prior to the start of the school year. B-3. And, because the diagnostic placement was only to begin at the start of the school year, Parents' refusal to consent to that placement cannot, as a matter of law, have constituted an obstacle to the Board's ability to draft a compliant IEP. As discussed above, any compliant IEP needed to be in effect prior to the start of the school year.
Moreover, any refusal on the part of the Parents to allow the Board to evaluate Z.A. during the summer—including the Parents' supposed refusal to allow Board members to visit Z.A. at home or at summer camp—was not the reason that there was no IEP in place for the start of the school year. Rather, the record makes clear that the animating purpose of the diagnostic placement was to determine whether Z.A. could operate in a mainstream setting, which, as a matter of course, would be determined only by placing him in such a setting at the beginning of the school year. Given this reality, it was the Board's position that there was no information that an evaluation could have elicited that would have led it to alter its diagnostic placement approach:
Dr. McCarthy Tr. (10/17/14) at 13; see also id. at 22 ("Q: . . . [Y]ou felt the team believed that it had enough information about [Z.A.] so it wasn't necessary to conduct further evaluations, correct? A: Correct."). Dr. McCarthy reiterated his position, making it more than clear that the PPT saw no benefit to a further evaluation prior to the start of the school year:
Dr. McCarthy Tr. (10/27/14) at 24 (emphasis added).
Parents' actions therefore played no role in the Board's failure to meet its statutory obligation to have an IEP prepared for Z.A. on day one of the 2013-14 school year. This bars the Board's argument. The Board itself acknowledges that "`it would be improper to hold [the] School District liable for the procedural violation of failing to have the IEP completed and signed, when that failure was the result of [the parents'] lack of cooperation.'" Doc. 29, at 29 (quoting M.M. v. Sch. Dist., 303 F.3d 523, 535 (4th Cir. 2002)) (alteration by the Board, emphasis by the Court). Here, as discussed, the failure to have an IEP on day one was a result of the Board's inflexible commitment to evaluating Z.A. in a mainstream setting only at the start of the school year. That is to say: even assuming, arguendo, Parents' failure to fully cooperate with the Board's evaluative process, the Board's claim fails on this record. The Board has not shown that any manifestations of Parents' failure to cooperate impacted its ultimate decision to forego creating an IEP for the start of the school year. The Board's argument with respect to Parents' alleged refusal to consent to an evaluation is without merit.
In light of the foregoing, the Board has offered no defense to its failure to meet its obligation to have an IEP for Z.A., an undisputedly disabled child, in effect on day one of the 2013-14 school year. Accordingly, the Board failed to offer Z.A. a FAPE for that year. The first element of the Burlington/Carter test is met.
To be eligible for reimbursement under the IDEA, Parents must have established that Eagle Hill was an appropriate placement for Z.A.:
RCSA § 10-76-14(c). A unilateral private placement is only appropriate if the "placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.'' C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014) (internal citations and quotations omitted). "In making this determination, courts look to the `totality of the circumstances' and `[n]o one factor is necessarily dispositive.'" M.B. ex rel. L.C. v. Minisink Valley Cent. Sch. Dist., 523 F. App'x 76, 78 (2d Cir. 2013) (quoting Frank G., 459 F.3d at 364). In short, the "parents' placement of the child must be reasonably calculated to enable the child to receive educational benefits." C.L., 744 F.3d at 836. Finally, "`the test for the parents' private placement is that it is appropriate, and not that it is perfect.'" Regional Sch. Dist. No. 9 Bd. of Educ. v. Mr. and Mrs. M., 2009 WL 2514064, at *14 (D. Conn. Aug. 7, 2009) (quoting Warren G. v. Cumberland Cnty Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)).
Given her finding that the Board offered Z.A. a FAPE for the 2013-14 school year, the IHO found "no need to address the issues related to [the appropriateness of Parents' private] placement." Doc. 29-1, at 10. For the reasons stated supra, that finding was erroneous. Having no agency decision with which to defer, the Court makes this determination de novo.
The Board argues that Parents failed to meet their burden of proving the appropriateness of Eagle Hill. It argues principally that "the record is devoid of any evidence regarding the specific individualized programming, other than one social skills class per week, provided to the Student at Eagle Hill School." Doc. 29, at 24. It contends that evidence regarding Eagle Hill generally is insufficient to demonstrate Eagle Hill's appropriateness specifically with respect to Z.A. The Board also argues that the record demonstrates Z.A. actually regressed at Eagle Hill, further evincing Eagle Hill's inappropriateness for Z.A.
The Board is wrong in claiming that Parents offered no evidence of Z.A.'s specific programming at Eagle Hill. Parents submitted two "advisor reports" from Eagle Hill, one from December 2013 and the other from June 2014. P-12; P-13. Eagle Hill explained to Parents the content of these advisor reports as follows:
Following that summary sent to Parents is a detailed and lengthy document regarding the specifics of Z.A.'s program at Eagle Hill. Specifically, the report breaks down in detail Z.A.'s program and performance separately as to his tutorial, math, writing, science, literature, and study skills classes, as well as his "collaborative speech and language program." P-12, at 1. Parents then offered the testimony of a former Eagle Hill speech and language pathologist, who spent seven years at Eagle Hill and who testified in detail as to the specific programming identified in the advisor reports, followed by an identification of Z.A.'s specific programming. Rosenberg Tr. (10/8/14) at 7-8, 11-38, 45-47. Mrs. A. also testified as to other aspects of Eagle Hill's program specifically in relation to Z.A. For example, she testified that Z.A.'s program at Eagle Hill is structured (i.e., monitored by an adult) throughout the entire school day and that Eagle Hill offers Z.A. a support person available for him on an as-needed basis. Mrs. A. Tr. (10/21/14), at 75, 97. It is hard to imagine more detailed evidence as to Z.A.'s specific programming at Eagle Hill.
Moreover, Parents also offered significant testimony that the programming at Eagle Hill is appropriate to address Z.A.'s specific learning disabilities. For example, Mrs. A. testified that Eagle Hill was initially recommended to her by Dr. Morrel, who had intimate knowledge of Z.A.'s learning disabilities and needs and was familiar with Eagle Hill. Id. at 33. Further, Dr. Rahtz came to the following conclusion after speaking with Eagle Hill representatives specifically with respect to Z.A. prior to Parents' decision to enroll him there:
Dr. Rahtz Tr. (9/4/14) at 17. It was Dr. Rahtz's "overall impression . . . that [Eagle Hill] made significant efforts to prepare their curriculum, their support techniques, prior to [Z.A.] arriving at the school." Id. at 30. In fact, Dr. Rahtz testified that Eagle Hill
Id. at 18-19. Similarly, Dr. Heitzman reported that Eagle Hill "seems to best match [Z.A.'s] level of need based on the findings of this evaluation." B-7, at 13. Mrs. A. also testified that Dr. Anne McBride, a psychopharmacologist at New York Presbyterian hospital "felt [that Eagle Hill] was an appropriate place for [Z.A.]. She has other patients that have gone there and she felt like it was a really good fit for him." Mrs. A. Tr. (9/4/14) at 68. Moreover, Eagle Hill's then speech and language pathologist testified as to her heart-warming reaction upon initially realizing that Eagle Hill was a fit and proper placement for Z.A.:
Rosenberg Tr. (10/8/14) at 69-70. Mrs. A. also testified that "everything is better with [Z.A.] after this year at Eagle Hill in ways that I hoped it would be." Mrs. A. Tr. (7/24/14) at 62. This is confirmed by Eagle Hill's advisor reports, which stated that Z.A. "continues to benefit greatly from the small class size, structure and nurturing environment here at Eagle Hill School." P-12, at 2.
It may not be surprising to learn that Eagle Hill administrators think Eagle Hill is a fine placement for Z.A. Nonetheless, the record evidence from several sources establishes that Parents demonstrated by a preponderance of the evidence that Eagle Hill is reasonably designed to meet the specific special educational needs of Z.A. Further, the Court notes that the Board offered no credible evidence that Eagle Hill is for any reason inappropriate to Z.A.'s needs.
The third prong of the Burlington/Carter test has the Court assess whether Parents can properly show that "equitable considerations favor reimbursement." T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014). A "district court enjoys broad discretion in considering equitable factors relevant to fashioning relief." Gagliardo, 489 F.3d at 112. Relevant here and "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA." C.L., 744 F.3d at 840.
As discussed below, the Board argues that Parents were determined from the beginning to send Z.A. to Eagle Hill and, in line with that intent, interfered with the Board's evaluative process. It then argues that Parents' lack of cooperation precludes reimbursement.
Given her mistaken finding that the Board offered Z.A. a FAPE, the IHO made no ultimate decision as to whether the equities bar Parents from reimbursement. However, she did make certain findings evincing her position on the issue. Most notably, she stated as follows:
Doc. 29-1, at 8.
However, the Court notes that such considerations, on their face, should have little impact on the equitable analysis authorized by the IDEA. In short, Parents' subjective intent as to whether they "ever intended for the Student to attend a Board school," untethered to a relevant manifestation of that intent, is irrelevant. As discussed by the Second Circuit:
C.L., 744 F.3d at 840. The Court of Appeals' declaration makes eminent sense (if I may say so with due respect). When considering the equities in an IDEA dispute, the adjudicator has already determined that a school board violated parents' statutory rights. Here, that violation meant that Z.A. was denied a FAPE by the Board, which would generally require the Board to cover the costs of Parents' privately secured education. There is no discernible reason why parents' internal unexpressed wishes or intent about the outcome of the IDEA process should preclude them from that statutory remedy. Rather, those wishes or intent should carry relevance as to the equitable analysis only where they accompany or cause overt acts or omissions that hindered the Board from meeting its statutory obligation in the first place. See Warren G. ex rel. Tom G. v. Cumberland Cnty Sch. Dist., 190 F.3d 80, 86 (3d Cir. 1999) (reversing a denial of reimbursement where it was "undisputed that the District failed to come forward with appropriate IEPs and there is no finding that the parents' conduct obstructed its ability to do so"). For example, in Bettinger v. N.Y.C. Board of Education, Judge Crotty rejected reimbursement on equitable grounds because the "IDEA does not allow parents to unilaterally select a school of preference for their child, enroll him, and then frustrate the City's placement system in order to gain tuition reimbursement for their school of choice from the courts." 2007 WL 4208560, at *9 (S.D.N.Y. Nov. 20, 2007) (emphasis added); see also M.S. v. Mullica Twp. Bd. of Educ., 485 F.Supp.2d 555, 568 (D.N.J. 2007) (holding reimbursement to be inappropriate where parents "refused to cooperate with the [local education agency] to such an extent that the [agency] was unreasonably prevented from creating an IEP"). The remaining cases cited by the Board discussing whether parents' obstructive actions warrant a reduction of relief on equitable grounds likewise involved actions that in some way hindered the Board in meeting its statutory obligation.
It follows from cases such as these that, in order for equitable considerations to bar reimbursement in this case, there must have been an act or omission on the part of Parents that in some way obstructed the Board's provision of a FAPE to Z.A. The Board's attempt at this is as follows: "Parents interfered with the cooperative process by refusing to allow the Board to get to know and understand the Student's current functioning." Doc. 29, at 37. The Board's examples are as follows: (i) Parents taking Z.A. to visit Eagle Hall in February 2013 but making no effort to visit CMS; (ii) failure to inform the Board that Z.A. was being evaluated in Connecticut by Dr. Heitzman in May and June 2013; (iii) failing to accept the Board's offer to observe Z.A. at summer camp or at home; (iv) temporarily declining the Board's July 2013 offer to convene a second PPT; (v) deciding same prior to the issuance of Dr. Heitzman's report; (vi) making a non-refundable deposit to Eagle Hill and asserting it does not evince intent for Z.A. to enroll there; (vii) failing to date properly the Eagle Hill contract; and (vii) failure to consent to the diagnostic placement.
Even accepting that each of the above occurred as stated by the Board, none of those acts or omissions actually obstructed the Board in meeting its obligations to provide a FAPE. The actions with respect to Eagle Hill do demonstrate that Parents likely had a strong desire for Z.A. to attend Eagle Hill rather than CMS. This is made most clear by Parents' commitment to pay the entire year's tuition prior to registering Z.A. with GPS. Further, the Court would have to defer to the IHO's determination that Z.A.'s mother was not credible when she testified that she was genuinely amenable to Z.A. attending CMS. However, as discussed, Parents' intent is not relevant per se. Her actions with respect to Eagle Hill complied with statutory notice obligations and in no way could have hindered or did hinder the Board's ability to create an IEP for Z.A.
On the other hand, the other instances identified by the Board could, in theory, have obstructed the Board's ability to evaluate Z.A. If Parents did not allow the Board to observe Z.A. at home or at summer camp, the Board had less ability to evaluate Z.A. and determine his needs. The same might be said about Parents' failures to bring Z.A. to CMS in February 2013 and to inform the Board about the forthcoming report from Dr. Heitzmann.
However, that these acts could have hindered the Board's ability to learn about Z.A. is irrelevant in light of the Board's acknowledgment—discussed at length, supra at 27-29—that no further evaluation would have led it to implement an IEP by the start of the 2013-14 school year. In other words, none of Parents' actions had any causal role in the Board's failure to provide a FAPE. Parents' delayed disclosure of Dr. Heitzmann's evaluation is a notable example. Although Parents could have been more forthcoming about this report, when they ultimately provided said report to the Board, the Board still decided against creating an IEP, a decision contravening the IDEA for the reasons discussed, supra. In addition, there is little in the record to demonstrate that Parents refused to comply with affirmative requests from the Board. In fact, the only purported refusal of a Board request made prior to the start of the school year is what the IHO determined was a "non-committal" response to requests made at one meeting in June 2013. These one-off requests were apparently not of enough significance to the Board to be included in the "Actions Proposed" section of the PPT minutes, nor is there any evidence that the Board ever followed-up with those requests. The only other less than affirmative response to a pre-school year request was to the Board's offer to have a second PPT convened. However, Parents ultimately agreed to the second PPT, which, when convened, arrived at an outcome that again failed to comply with the IDEA. Where, as here, the Board's statutory violation stands on its own and cannot be excused or explained by any conduct of the parents, relief for that statutory violation should not be limited by equitable considerations.
In sum, it cannot be disputed (i) that Parents gave the Board all of the information that they were required to provide, (ii) that the Board acknowledges that what Parents provided was sufficient for its pre-school year evaluation purposes; and (iii) that the Board acknowledges that no other information or evaluation prior to the school year would have led it to act differently such that it complied with the IDEA. Nor does the Board assert that Parents failed to comply with any IDEA statute or regulation. In such a situation, a reimbursement award should not be limited on equitable grounds.
Parents are entitled to advocate fiercely, even overzealously, on behalf of their disabled children's interests. They are also entitled to disagree with a local education agency's determination as to how those interests would be best served. And, when that agency's process in protecting those interests contravened applicable law, those parents are generally entitled to relief. Parents should not be stripped of that entitlement as long they operate within the rules and do not hinder the agency in its performance of its statutorily-required function. Such is the case at bar. Parents' entitlement to relief for the Board's violations of the IDEA shall not be reduced in light of equitable considerations.
Parents assert in their opening brief in support of their summary judgment motion that they are entitled to relief on "the second count of their Complaint, alleging a violation by Defendant of Section 504 of the Rehabilitation Act of 1973." Doc. 26, at 2. The problem with this argument is that Parents' operative complaint contains no second count, nor does it make any reference to the Rehabilitation Act.
For the foregoing reasons, Plaintiff's Motion for Summary Judgment [Doc. 25] is GRANTED, and Defendants' Cross-Motion for Summary Judgment [Doc. 28] is DENIED in part, and GRANTED only to the extent of dismissal of any purported claim brought pursuant to the Rehabilitation Act.
Since the Plaintiffs/Parents have prevailed in this action brought under the IDEA, they may ask the Court to "award reasonable attorneys' fees as part of the costs." 20 U.S.C. § 1415(i)(c)(3); see Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006). If they are so advised, Plaintiffs will be required to file, on or before August 12, 2016, proof of their reasonable attorneys' fees. Plaintiffs should submit documentation of their contemporaneous attorneys' records detailing the legal services provided, including "for each attorney, the date, the hours expended, and the nature of the work done." New York Ass'n of Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). The parties should bear in mind that the Court is required to conduct a "`lodestar' analysis, which calculates reasonable attorneys' fees by multiplying the reasonable hours expended on the action by a reasonable hourly rate." Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 108 (2d Cir. 2014); see also Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) ("It is central to the awarding of attorney's fees . . . that the district court judge, in his or her good judgment, make the assessment of what is a reasonable fee under the circumstances of the case"). Defendant will be entitled to respond to any such submission within fourteen (14) days of its filing.
