N.F. v. Chariho Regional School District, No. 1:2011cv00177 - Document 23 (D.R.I. 2012)
Court Description: MEMORANDUM AND ORDER denying Plaintiff's' 8 Motion for Summary Judgment; granting Defendant's 16 Motion for Summary Judgment. The Hearing Officer's Decision is affirmed. So Ordered by Chief Judge Mary M. Lisi on 3/1/2012. (Duhamel, John)
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N.F. v. Chariho Regional School District Doc. 23 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND N.F. by his parents Plaintiff, v. C.A. No. 11-177-ML CHARIHO REGIONAL SCHOOL DISTRICT Defendant MEMORANDUM AND ORDER This case is brought by N. F., through his parents 1 , Mr. and Mrs. F. (together with N.F., "Plaintiffs"), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). Decision (the The Plaintiffs seek reversal of the Administrative "Decision") of an Officer (the "Hearing Officer") . School District the Hearing Impartial Process Hearing On its part, the Chariho Regional (the "School District") Officer's Due determination seeks an order upholding that the School District proposed an appropriate clinical placement for N.F. "to address his unique needs in the areas of sensory processing skills, behavioral skills, and emotional issues, in addition to his academic needs." Decision 2. The matter is now before the Court on the parties'· cross- It is evident from the administrative record and the filings and pleadings that N.F.'s mother (hereinafter referred to as the "Parent") has been the primary driving force and active participant in this case. 1 Dockets.Justia.com motions for summary judgment on the complaint. For the reasons that follow, the Plaintiffs' motion for summary judgment is DENIED and the School District's motion for summary judgment is GRANTED. I. Factual Background2 N.F. was placed into foster care with Mr. and Mrs. F. shortly after his traumatic birth to a woman with a history of drug and alcohol use. F. At age three months, N.F. was adopted by Mr. and Mrs. Initially, N. F. achieved developmental milestones on time, although he had some gross motor delays and he had difficulties being as an infant. Decision 18. N. F. attended preschool, where he demonstrated some behavioral difficulties, including aggressive outbursts. kindergarten at Kingston Hill Academy He then attended Hill"), during which time he was treated by Psychiatrist Dr. Robin with Risperdal for aggressive outbursts. N.F. at Memorial The Parent also sought an evaluation of which Hospital, consisted of observations . . . a neurological evaluation, and development tests in the cognitive arid theory of mind assessment areas." 18. Decision Memorial Hospital concluded that N.F. had strong cognitive and memory skills, but that he had difficulties with motor 2 This summary is based primarily on the Hearing Officer's Findings of Fact as supported by the transcripts of the due process hearing and the exhibits submitted by the parties. Any significant disagreements by either party in their respective statements of undisputed facts are noted. Neither party has submitted a statement of disputed facts pursuant to Local Rule LR Civ 56(a) (3). 2 restlessness, impulse control, and expressive language. diagnosed with ADHD combined type, speech/language counseling. N. F. (Attention Deficit which Memorial for evaluation, Hyperactivity Hospital appropriate N.F. was Disorder) recommended medication, and parent Decision 19. completed kindergarten return for first grade. at Kingston Hill but did not The Hearing Officer noted in her Decision that, although the Parent denied that N.F. was asked not to return to Kingston Hill, other evidence in the record suggested that the school felt it could no longer meet N.F.'s needs. Decision 19-20. With the School District's approval, the Parent home-schooled N.F. during the '08/'09 school year in order to have him evaluated and stabilized. During that time, N. F. was evaluated by Dr. Monarch at Gershon Psychological Associates. In addition, reviews were conducted of Memorial Hospital's Speech/Language evaluation, Kingston Hill's behavior assessment and progress education observations by the School District. evaluation showed that N.F. behavioral diagnosis regulation, was and Decision 20. The had difficulties with emotional and oppositionality, Oppositional reports, Defiant N. F.'s and aggression. Disorder ("ODD") with possibility of an undiagnosed sensory processing disorder. the It was noted that, because N.F.'s health might have been compromised by the biological factors were mother's unknown. drug/alcohol abuse, Recommendations 3 his included genetic risk occupational therapy ("OT") and physical therapy ("PT") evaluations, continued speech therapy, monitoring by a neurologist, in-home services for the parents with a family therapist, special education services, additional classroom accommodations, skills training, moni taring individual or group social symptoms of a mood disorder, and assistance for the parents to address N.F.'s sleep difficulties. Decision 21. In March the '09, Parent had N.F. evaluated at the Southeastern Connecticut Therapy and Wellness Center, where it was recommended that N.F. receive six weeks of PT to increase overall balance, strength, activities. coordination and advanced gross motor No standardized testing was done on that occasion, however. Id. Around that time, the Parent contacted the School District to discuss a possible return of N.F. to public school the following Fall. The School District referred N.F. for clinical psychological evaluation, which was Cantor ("Dr. Cantor"). completed in April '09 by Dr. Elizabeth Dr. Cantor concluded that N.F. did not meet the criteria for Pervasive Developmental Disorder or ODD, but that his mood difficulties disorder. positive should be moni tared for a possible mood Decision 22. Her recommendations included developing a behavior accommodations regarding his for plan in N.F.'s transitions and sensory functioning, 4 new, structured changes, using classroom, information and moni taring his symptoms through ongoing communication with the home, prescribing physician, and school. Id. After a meeting of the Parent with the School District staff, N. F. was found eligible for special education and related services. The School District also agreed to let N.F. repeat the first grade, as the Parent had requested. In September 2009, N.F. began attending Charlestown Elementary School in a regular classroom. Because the Parent wanted to wait until N.F.'s classroom teacher had been assigned, an IEP (Individualized Education Program) was not developed until October 2009. Decision 23. The IEP, to which the Parent consented, included regular classroom placement with language special education consul tat ion and other therapy, accommodations. OT, N.F. also had a behavior plan. In February 2010, behavioral issues, Decision 23. after N.F. was suspended from school for the Parent asked for another IEP meeting to discuss her request for an individual teacher assistant ("TA"). The IEP team decided to gather behavioral data for six weeks - an individual TA would be assigned to perform this task - making a determination regarding the Parent's request. before The Parent, convinced that her own data collection was sufficient, complained to the Superintendent of Schools about the IEP Team's decision, as well as the perceived demeanor of Special Kathleen Perry ("Mrs. Perry") towards her. On March 3, 2010 Education Director Decision 23. (before the six weeks evaluation could be 5 conducted}, the Parent withdrew N.F. from school to home-school him again for the remainder of the school year. In her written request to the Superintendent of Schools to homeschool N.F., expressed her opinion that N.F.'s which she considered the Parent integration issues" to his academic progress," never be addressed through Chariho School District." Decision 23, Plft.'sEx. 46. the Parent visited the RYSE School. 3 In the Spring of 2010, According to the Parent, although she described her visit as "extraordinarily limited," she "found it to be inappropriate for elementary school children" and "not environmentally sound for my son." Tr. almost a II 66:2-12. warehouse, She also described it as "a placement, if you will, for emotionally disturbed children." Tr. II 67:16-18. While N.F. was evaluated by Dr. Children's developmental being Yvette Hospital. homeschooled, Yatchmink ("Dr. the Parent Yatchmink") Dr. Yatchmink diagnosed coordination disorder, phonological had him at Hasbro N.F. with language The Hearing Officer's Decision contains a detailed description of the RYSE [Reaching Youth through Support and Education] program. Decision 39. The RYSE program provides two separate programs in a public school setting: an alternate learning program at the middle and high school level, and a clinical day program providing special education for students in Kindergarten through Grade 12. Services include individualized programming, in-school therapeutic support, mental health service, case management, positive behavioral programming, and structured classrooms with a low pupilteacher ratio." Id. 6 disorder, a sensory processing disorder, and emotional behavioral regulation Decision disorder 24, with Pltfs.'s a possible Dr. 18. emerging mood disorder. Yatchmink noted that N. F. was receiving speech and language interventions as well as OT and PT on an outpatient basis. She further stated that "[N.F.] is currently being home schooled, but I do believe that it is essential for him to have an academic placement that is able to support his educational and emotional needs. [N.F.] needs a school program that provides therapeutic support within the academic environment." Pltfs.' Ex. 18, Page 2 of 3. Following this evaluation requested another IEP meeting. by Dr. Yatchmink, the Parent The IEP Team met with the Parent and her consultant, Dr. Kathleen O'Connor ("Dr. O'Connor"), on June 8, and Together, the parties reviewed Dr. Yatchmink's report, 2010. discussed Decision 25. various options to accommodate N.F.'s needs. No conclusion was reached and a second meeting was held on June 17, 2010. As before, the Parent requested that her concerns be included in the meeting minutes, e.g. that RYSE does not have a playground, and that N.F. was already being evaluated privately. receive It was decided that, over the summer, N.F. was to (1) compensatory AlphaSmart, 4 and (3) OT services, (2) begin "assistive be provided with an technology screening" to 4 A keyboarding device frequently used by individuals with writing disabilities. 7 identify areas of concern. Principal and special The Parent was to meet with the School education administrators to plan N. F.'s possible return to school. Decision 26-27, Pltf.'s Ex. 34, 3 of 4. Although OT was offered by RYSE, the Parent requested money to pay for privately arranged OT. The School District agreed, on condition that the services were documented and in concert with the IEP. The Parent, however, decided not to avail herself of either option and no OT was provided to N.F. during the summer. Decision 27. On August 4, 2010, N.F. was hospitalized at Bradley Hospital for "increasing aggression and out-of-control behavior." 16, 2010 letter to Mrs. Perry from Mandy Witkin An August ("Witkin"), a Clinical Social Worker at Bradley Hospital ("Bradley"), contains a number of conclusions about N.F. based on various records provided by the Parent (excluding, however, Clinical Psychological Report) . the School Witkin stated, District's 2009 inter alia, that N.F. presents complex difficulties, including learning disabilities and severe behavioral and emotional dysregulation. that, although structured N. F.'s inpatient behavior setting had at stabilized Bradley, "he function effectively in a non-clinical setting." Decision 28. Further, the letter made She also noted in is the not highlyable to Pltf.'s Ex. 16, specific suggestions regarding N.F.'s required educational needs, including the makeup and training of a multi-disciplinary 8 team to work with N. F. Decision 28. A second letter from Bradley Hospital dated September 15, 2010, nearly identical to the first correspondence, added ADHD combined type to N.F.'s diagnosis. Bradley recommended OT, PT, speech therapy, medication management, and social skills training. In addition, this letter stated that, if N.F. not provided with a placement with the high level of clinical support described [he] is at significant residential level of care." risk for requiring a placement in Pltf.'s Ex. 19, Decision 28. On September 16, 2010, the IEP Team met to review the Bradley recommendations; Hospital teleconference. services On available Bradley that occasion, at RYSE, staff the including available from Bradley Hospital. via IEP Team described the home-based services not The Parent expressed discomfort with the RYSE program and requested a School. participated referral to the Bradley It was agreed that the IEP needed revision and that the IEP team would reconvene once a date for N. F.' discharge from Bradley Hospital had been set. On October Hospital 5 • 1, 1010, N.F. was discharged from He began school at RYSE on October 7, 2010. 6 Bradley The Parent According to the Parent, the Bradley Clinical Social Worker informed her that Mrs. Perry was invited to the discharge meeting but refused to attend - a charge that was not further substantiated and which Mrs. Perry categorically denied. Decision 30-31. 6 N.F. was placed into an elementary classroom for five children staffed by a classroom teacher and a Behavior Management Assistant. 9 picked him up at lunch time, in accordance with her own plan." Decision 31. When the RYSE Social Worker contacted the Parent the ("Mrs. Cronin") following day to discuss RYSE mental health services, the Parent refused to have Mrs. Cronin come to the house and insisted on meeting at a she had an The Parent Dunkin Donuts. explained that acrimonious relationship with the District. At the meeting, the Parent told Mrs. Cronin that she did not want RYSE home-based services because she was already getting them from an outside provider. Decision 31. While between N. F. the was attending Parent, the the RYSE classroom Program, teacher, and communication the Behavior Management Assistant occurred daily, first by telephone, later, at the suggestion of the Parent, via a daily log. Decision 31. On October 22, 2010, N.F. had to be restrained at school. Although he had been restrained before at Bradley Hospital and at Butler Hospital, this was the first time he had been restrained in a school setting. disagreement about The the Parent, length who of had previously voiced her "time-outs" at RYSE, called various RYSE administrators to inform them that she intended to pull N.F. back out of school. With the Parent's consent, RYSE staff immediately developed a protocol for time-outs to be used until the next IEP meeting. N.F. good days Decision 32, Pltfs.' Ex. 27. returned to school on October 26, 2010. at school, N. F. had another time-out 10 Following two and had to be restrained for disruptive behavior. On October 31, N. F. was hospitalized for a "major meltdown," and he remained at Butler Hospital for a month. Decision 32. On November 5, 2010, the RYSE Team met to develop the annual IEP for N. F. 7 reviewed. The student's academic strengths and needs were The Parent provided a list of services she wanted to be included in the new IEP, including her own Behavior Plan. consultation was to be continued. OT The team developed N.F.'s goal in the area of coping skills and noted that he had received five time-outs in three weeks of school. N. F. was also to receive language therapy on a twice weekly basis. Pltf.'s Ex. 37. N.F.'s Behavior Plan was to consist of his "daily documentation sheet and the time-out protocol." Decision 33. The 11/05/10 team meeting minutes reflect that the Parent "has indicated that she is not interested in receiving clinical services through the RYSE program. She has outside providers and does not want to address these services at this time." Pltf.'s Ex. 36. 8 7 In her Statement of Undisputed Facts ("SUF"), the Parent alleges that "[t]he IEP had been prepared prior to the meeting, and at the conclusion of the meeting the parents were told that the IEP as presented would be implemented." Pltf.' s SUF <J[ 71. This assertion is entirely unsubstantiated and in direct conflict with the Hearing Officer's Findings of Fact and the 11/05/10 meeting notes, which set forth, in some detail, the development of the IEP. The Parent asserted at the due process hearing that she did, in fact, indicate that she was interested in receiving those clinical services. Decision 34. It is undisputed that no consent form was ever signed and that the Parent's assertions were 11 Disagreement existed with respect to time-out procedures. The Parent requested that a psychologist and nurse monitor N.F. during time-outs, whereas the team took the position that N.F. was adequately monitored by the trained Behavior Management Assistant. Id. The Parent refused to give copies of documents she used during the meeting to Mrs. Perry and she rejected Mrs. Perry's offer to attend the discharge planning meeting at Butler Hospital. Decision 34. As a result, the School District was not represented at the discharge planning meeting. A synopsis the Parent received from Butler Hospital at that meeting was not provided to the School District until the due process hearing had begun. Id. On November 30, 2010, N.F. was discharged from Butler Hospital with a primary Coordination diagnosis Disorder, of Mood Developmental Specified Childhood Psychoses, and ADHD. treated with various medications, Disorder, Language Developmental Disorder, Decision 34-35. but continued Other N.F. was to have difficulties and aggressive outbursts. He was discharged on four medications and with recommendations for home-based services, psychiatric follow-up and a return to school on a gradual basis. Id. 36. On December 2, 2010, N.F. returned to school part-time with a inconsistent with testimony by Mrs. meeting notes. 12 Perry and with the 11/05/10 transition plan provided by the Parent, 9 who also specified that any time-outs should be limited to no more than 20 minutes. Id. On December 23, 2010, a Physical Therapy Evaluation was performed pursuant Physical to the 6/17/10 Therapist IEP conference concluded that recommendation . 10 N. F.'s needs could The be accommodated and addressed by the Physical Education Teacher and that no direct physical therapy was recommended. Id. After three full days at school, N. F. behavior. Decision 37. had to be restrained for disruptive N.F. returned to RYSE after the holidays, but had to be restrained again on January 4 and 6, 2011. Id. According to the Plaintiffs' SUF, N.F. was repeatedly hospitalized in 2011. He is currently residing at the Exeter House in Exeter and is attending school in the Exeter-West Greenwich School System in a therapeutic small classroom setting. II. Procedural History On November 15, 2010, the Parent filed a request for a due process hearing pursuant to the Rhode Island Regulations Governing the Education of Children with Disabilities (2010) (the "Rhode Island Regulations"), Sections 300.507-511, 300.521, 300,525.-526, and 300.528 (providing for Procedural Safeguards Due Process 9 The Parent placed her transition plan into N.F.'s backpack for RYSE staff to follow. Decision 36. 10 The delay was explained as the result of N. F.'s repeated absences from the school setting, where such evaluation had to be performed. 13 Procedures for Parents and Children) . Decision 9. The Parent alleged that the School District was not providing a FAPE [Free Appropriate Public Education] to address N.F.'s unique needs and she sought public funding for the cost of education placement in either a clinical, residential or day treatment out-of-district facility. Ex. 1. Following a pre-hearing conference on Pltfs.' December 14, 2010, eleven days of hearings were held before the Hearing Officer between January 20, 2011 and February 18, 2011. Id. On April 5, 2011, the Hearing Officer issued a written decision in favor of the School District. 60-page The Hearing Officer found that the District proposed an appropriate clinical placement for N.F. She also determined that N.F. required additional evaluation and that the current program was providing adequate communication with N.F.'s parents. Further, the Hearing Officer deemed the RYSE facility appropriate for N.F.'s needs and she concluded that, under the circumstances, the clinical program at the Bradley School was not appropriate for N.F. Decision 2. On May 2, 2011, the Plaintiffs filed a complaint against the School 11 District pursuant to 20 U.S.C. § 1415 (i) (2) (A) . 11 The 20 U.S.C. § 1415(i) (2) (A)provides: Any party aggrieved by the findings and decision made under subsection (f) [impartial due process hearing] . who does not have the right to an appeal under subsection (g), and any party aggrieved by the findings and decision made under this subsection, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a 14 Plaintiffs stated that they appealed from the Hearing Officers' Decision because it was not supported by the evidence presented and that they wished "to supplement the record with additional evidence of diagnosis, need and treatment subsequent to the hearing dates." Complaint In a 7, 8. Rule 16 conference on September 7, 2011, the Court informed the parties that it would not permit supplementation of the administrative record with evidence related to events that occurred prior to the due process hearing which had not been submitted to the Hearing Officer and considered by her in arriving at the Decision. On November 7, 2011, motions for summary judgment. the Court's instruction, the parties filed cross- The Plaintiffs, in contravention of submitted supplemental evidence of what appears to be a transcript from a partial recording of the November 5, 2010 IEP meeting. response in November 25, On November 23, opposition 2011, the to the School School opposition to the Plaintiffs' 2011, District's District motion. Plaintiffs filed a filed a motion. response On in Both parties filed reply memoranda on December 5, 2011. district court of the United States, without regard to the amount in controversy. The Court notes that the School District, in responding to the complaint, initially asserted that N. F.'s claims "are barred by the doctrine of exhaustion of administrative remedies." This argument, however, is not further developed in the School District's motion. 15 III. Standard of Review In considering an appeal from a Hearing Officer's Decision under IDEA, the Court reviews the administrative record and "makes an 'independent evidence.'" 80, 83 Educ., based on the preponderance of the Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d (1st Cir. 736 ruling 2004) (quoting Town of Burlington v. F.2d 773, 790 (1st Cir. 1984)); Dep't of Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 24 (1st Cir. 2008) ("In reviewing the hearing officer's decision, the district court is tasked with determining the IEP's appropriateness on the basis of the preponderance of the evidence."). In its determination, the Court is required to give "due weight" to the findings by the Hearing Officer. F.3d at 83 Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 (quoting Bd. of Educ. of Hendrick Hudson Cent. Dist., Westchester Cnty. v. Rowley, 3034, 73 L.Ed.2d 690 (1982)). trained pedagogues, "they 458 U.S. 176, 207, Sch. 102 S.Ct. Because judges, generally, are not must accord deference to agency's application of its specialized knowledge." the state Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d at 24. "As a result, judicial review falls somewhere between the highly deferential clear-error standard and the non-deferential de novo standard." Id. See also Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) (quoting G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 946 (1st Cir. 1991)) (noting that, 16 "[while the court must recognize the expertise of an administrative agency, that of school officials, findings, as well as and consider carefully administrative the precise degree of deference due such a finding is ultimately 'left to the discretion of the [examining] court.'"). 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. See e.g. Linda E. v. Bristol Warren Regal Sch. Dist., 758 F.Supp.2d 75, Sch. 910 F. 2d 983, Comm., 87 (D.R.I. 2010); Roland M. v. Concord 991 (1st Cir. 1990) (noting that "the burden rests with the complaining party to prove that the agency's decision was wrong.") The submitted administrative record in this case consists of (1) the Hearing Officer's lengthy written Decision, together with rulings on various motions submitted to her by the parties prior to, or in the course of, the due process hearing; (2) the transcripts of the proceedings before the Hearing Officer, (3) the parties' post-hearing briefs, and (4) the parties' exhibits that were admitted by the Hearing Officer. IV. Discussion A. IDEA Overview The purpose of the IDEA is appropriate public education [FAPE] ." 17 "to guarantee a free and Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 23 {1st eir. 2004). The IDEA provides funding to the states in order "to assist them to provide special education and related services to children with disabilities." 1411(a) (1); 20 u.s.e. § Mr. I. ex rel. L.I. v. Maine Sch. Admin. Dist., F.3d 1, 4 (1st eir. 2007). To qualify for such funding, 480 a State must ensure that "[a] free appropriate public education [FAPE] is available to all children with disabilities residing in the State between the ages of 3 and 21. .. " 20 U.S.e. § 1412 (a) (1) {A). A FAPE is defined as "special education and related services" that, inter alia, are "provided at public expense . . . without charge," 20 U.S.e. § 1401(9), and it encompasses "specially designed instruction at no cost to the parents to meet the unique needs of a child with a disability, including . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings." 20 U.S.e. § 1401{29) {A). Because, IDEA, mainstreaming is preferred, "the goal under the is to find the least restrictive educational environment that will accommodate the child's legitimate needs." e.G. ex rel. A.S. v. Five emty. Sch. Dist., 513 F.3d 279, 285 (1st eir. 2008). School systems are required "to identify children who may qualify as disabled, evaluate each such child to determine his or eligibility for statutory benefits, and develop a customized IEP designed to insure that the child receives a level of educational benefits commensurate with a FAPE." 18 e.G. ex rel. A.S. v. Five Cmty. Sch. Dist., 513 F.3d at 285) (citing 20 U.S.C. §§ 1412(a) (3)(4), 1414(a)-(b)). If a disabled child is not provided with a FAPE through placement at a public school, the school system may be responsible for reasonable costs of a private placement. Id. at 284-285. The IDEA contains certain procedural safeguards if the state or local educational agency does not follow the procedures forth in the IDEA. 22 (1st Cir. 2005). set Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 21Students and their parents are entitled under the IDEA to request an impartial due process hearing by the local educational authority ("LEA"), 20 U.S.C. § 1415(b) (6), (f) (1), to appeal a decision by the LEA to the state educational agency, and to file a suit against school departments. Doe v. Boston Pub. Sch., 358 F.3d 20, 23 (1st Cir. 2004); 20 U.S.C. § 1415(i) (2). B. The Hearing Officer's Decision The Hearing Officer, after requesting from the Parent a more specific delineation of the issues, framed five agreed upon issues, which she analyzed and decided separately. First, the Hearing Officer concluded that "[t]he District did propose an appropriate clinical placement for the Student, to address his unique needs in the areas of sensory processing skills, behavioral academic skills, needs." and emotional The Hearing issues, Officer in addition explained that to his "[t]he proposed program does include coordinated instruction and support 19 by adequately trained personnel in all areas of diagnosed need, e.g., psychological, and academic." sensory-motor, Decision 2, i gross and fine motor, social 1. Second, the Hearing Officer concluded that "[t)he Student does require additional evaluation, i.e., Functional behavioral assessment with a concomitant behavioral intervention plan." i 2. Id., Both parties appear to be in agreement that, when restraints are used for N.F., a Behavior Intervention Plan is required. Third, the Hearing Officer found that "[t]he current program Id., i is providing adequate communication with the parents." 3. Fourth, the Hearing Officer concluded that the RYSE facility "is appropriate for Student." Id. i the provision of the program needed by the 4. Fifth, the Hearing Officer ruled in favor of the District on the question of whether "the clinical program at the Bradley School [is an) appropriate program for the Student." Id., i 5. The Hearing Officer also noted that a November 2010 Progress Report "indicates that the Student is making progress achieving his annual goals in language, writing and coping/social skills (R-24), and despite his behavior issues, level in reading and math." is achieving at or near grade Decision 48. C. The Plaintiffs' Position Essentially, the Plaintiffs disagree and take issue with every aspect of the Hearing Officer's 20 Decision. They allege, inter alia, that the Hearing Officer's summary of facts contains legal errors as well as important errors of fact and emphasis. Mem. 18. They suggest that parental advocacy as anger; parties rather than the the Hearing Officer Pltfs.' misconstrued focused on the personality of the needs of N. F.; emphasized the wrong evaluations; failed to address the substance of the 11/05/10 IEP; neglected to address the District's alleged failure to implement several elements of the 11/05/10 IEP; improperly discounted the expertise of mental health professionals at Hasbro, Bradley, and Butler Hospitals; incorrectly testimony of the parents' and arbitrarily discounted other expert witnesses; the and unfairly charged the parents with being uncooperative and hostile. Apart from this fundamental disagreement with all parts of the Decision, (1) the Plaintiffs make the following discrete assertions: the finding that the mother refused clinical services per se for N.F. at the RYSE school is not accurate. (2) The ruling that the 11/05/10 IEP was erroneous. Id. at 20-21. 19. Pltfs.' Mem. not a final IEP was (3) The 11/05/10 IEP fails to address N.F.'s psychiatric, psychological, social, or emotional needs. at 22. (4) The Hearing Officer dismissed N.F.'s Sensory Disorder diagnosis and his need for sensory activities. Hearing Id. Officer's finding that the Id. at 23. Bradley appropriate for N.F. is unsupported by the record. School (5) The is not Id. at 28. The Plaintiffs seek a determination by this Court that the School District "has failed to provide an adequate 21 IEP and an appropriate placement for N.F., that N.F. has therefore been denied FAPE, and that N.F. should be entitled to an appropriate out-of- district clinical requested." D. day or residential as Id. at 29. The School District's Position The School District argues that IEP program/placement process, Defs.' Mem. technically deficient, educational benefits. at it was 42; (1) and (2) reasonably Id. at 47. the Parent thwarted the even if the calculated to IEP was deliver With respect to the former, the School District points out that the Parent refused to let Mrs. Perry attend discharge meetings from Bradley Hospital and Butler Hospital. As a result, Chariho lacked information that could have helped N.F. transition to the RYSE School. Id. at 42. The School District also cites several examples where the Parent is alleged to have withheld information from the IEP Team. The School District also maintains that N.F. did not receive clinical mental health services as part of his program because the Parent refused in-school mental health services (by not providing signed informed consent required by the providers of such clinical services}. Id. at 43-44. With respect to the alleged lack of the Parent's preferred Behavior Plan, the School District notes that there was a data driven behavior plan based on N.F.'s IEP goals, which would have been modified if N.F. had continued to attend the RYSE School and/or if the Parent had accessed clinical services for N.F. Id. at 46. Regarding the Parent's insistence on sensory 22 integration therapy, the School District argues that IDEA does not afford parents the right to dictate that certain methodologies be used to educate their children. The School District also agrees with the Hearing Officer's view of the ll/05/10 IEP as incomplete, particularly when the Parent refused mental health services and repeatedly removed N.F. from school even when he was not hospitalized. Defs.' Mem. 47. E. Discussion The decision is Court's (1) task in an appeal from a Hearing Officer's to determine whether the IEP development process complied with the IDEA's procedures, substance provided the and student with a (2) whether the IEP' s Bd. FAPE. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206-207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). must contain "information about the child's An IEP disabilities, a statement of educational goals, a description of the measures that will be used to determine whether the child has met those goals, and a compendium of special education and related services that will be furnished to the child." C.G. and B.S. v. Five Town Cmt'y Sch. Dist., 513 F.3d at 285; 20 U.S.C. § 1414 (d) (1) (A). However, even if an IEP does not comply with all of the IDEA's procedural requirements, a student is only entitled deficiency results in the denial of a FAPE. Lyndeborough Coop. Sch. Dist., to relief if that Lessard v. Wilton- 518 F.3d at 23 (noting that "the obligation to devise a custom-tailored IEP does not imply that a 23 disabled child is entitled to the maximum educational benefit possible."). The requirement to provide a FAPE is met as long as the program offered by the District is "reasonably calculated" to offer "educational benefits." Dist., 513 F.3d at e.G. 284). It and B.S. is well v. Five Town Cmt'y Sch. established that "[t] he development of an IEP is meant to be a collaborative project." Id. at 285. Cir. Roland M. v. Concord Sch. Comm., 1990) (noting to a an obstructionism). reviewing incomplete court's IEP 910 F.2d 983, inquiry resulting from 995 should the not (1st be parents' See also MM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 535) (4th Cir. 2002). In concluding that the School District proposed an appropriate clinical placement for N.F., the Hearing Officer addressed separately 12 those issues which had been identified as the Parent's "most critical issues:" integration therapy; and ( 3) ( 1) Sensory Disorder, requiring sensory (2) lack of a Positive Behavior Report Plan; lack of clinical services by adequately trained staff. Decision 40-41. ( 1) With respect to Sensory Disorder, the Hearing officer correctly pointed out that Rhode Island Regulations 300.8(c)do not recognize "Sensory Disorder" as a disability and that "there are no 12 A significant part of the Decision is devoted to describing and analyzing the primary objections which the Parent raised in her challenge of the November 5, 2010 IEP. Decision 41-54. 24 peer-reviewed articles in the psychiatric literature which recognize sensory-integration therapy as being an activity that is used with emotionally educational disturbed outcomes." Id. 41. children to improve their In her determination of this issue, the Hearing Officer noted that she gave high credibility to statements by Dr. Dumas, a Clinical Psychologist with the RYSE program. The record reveals that Dr. Dumas's opinion was based on years relevant experience, of including serving as Director of Evidence-Based Services at Psychological Centers and Director of the ADHD Clinic at Bradley Hospital, and teaching at Brown University School of Medicine in the Department of Psychiatry and Human Behavior. Decision 41. In contrast, the Hearing Officer gave little or no weight to the three witnesses presented by the Parent: ( "Costanineau") , Chelsea Constanineau an Autism Spectrum Disorder Clinician; Debra Dixon ("Dixon"), a Physical Therapist in private practice; and Dr. Kathryn 0' Connor ("Dr. 0' Connor"), College Children's Program. Director of the Connecticut The Hearing Officer's reluctance to credit the testimony by those three witnesses was well supported by the evidence in the record. Costantineau, who provided home-based family therapy to N.F. and his parents, had not observed N.F. in a school setting, and her work in a school based setting was limited to an internship. Moreover, Constanineu's resume did not include any education courses dealing with sensory issues, and there was nothing in her testimony or her Treatment Plan that indicated that 25 anything she did with N.F. at home had been successful. Id. 42. Dixon did not observe N.F. in the classroom (nor did she contact anyone at the school}, but observed him at home on one occasion. Although Dixon provided an impressive resume, the Hearing Officer found "her testimony and report to be very theoretical, and her protocols and recommendations not to be evidence-based." Id. at 43. Rhode Island Regulations, however, require that aids and services contained in IEPs must be :based on peer-reviewed research. Dr. O'Connor is a friend of the Parent and has previously acted as a consultant and advocate on her behalf. Dixon as a consultant. She also employs The Hearing Officer's conclusion that she was completely biased and could not be regarded as credible, was based, in part, on Dr. O'Connor's testimony that she considered the Parent to be the expert. Moreover, Dr. O'Connor acknowledged that she held a bias toward using interventions that address sensory needs and sensory dysregulation. Id. at 44. In addition, Dr. O'Connor was not familiar with Rhode Island Regulations and had only reviewed records provided to her by the Parent. Id. As the Hearing Officer pointed out, "'[a]ctivities that help students to improve their ability to perform tasks for independent functioning if functions are impaired or domain of the Occupational Therapist." Regulations 300.34 [Related Services], lost' fall under the Id., quoting Rhode Island ( 6} (ii} (B). The Parent, however, did not present the testimony of an Occupational Therapist 26 but sought, instead, to introduce information about peer-reviewed methodologies from other witnesses. Id. at 44. (2) With respect to the alleged lack of a Positive Behavior Support Plan, the RYSE staff took the position that it already provided a such a plan in the form of daily updated data collection sheets containing specific goals identified for N.F. at Charlestown Elementary School. The Hearing Officer acknowledged that this was "not in the format the Parent wanted." Id. at 45. The Hearing Officer also noted that, although the Rhode Island Regulations only require Behavior Support Plans (Behavior Intervention Plans) when a student is removed from school, it is not unusual for students with mental health needs or placed in special education programs, to have such a plan. I d. The Parent did not agree with the methods used by RYSE staff, e.g. for time-outs, and produced her own modified behavior 11/05/10 IEP. plan, which she wanted included in the As the Hearing Officer correctly stated: "IDEA does not ensure that a FAPE will consist of the precise plan that the parent desires." Id. at 46 (citing Shaw v. Dist. of Columbia, 238 F.Supp.2d 127, 139 (D.D.C. 2002)). Perry supported the School Moreover, the testimony by Mrs. District's contention that, if the Parent were to consent to clinical services provided by RYSE, a behavioral intervention plan would be made part of N.F.'s treatment plan. Id. (3) services Regarding the Parent's allegation that the RYSE clinical staff were inadequately 27 trained, the Hearing Officer listed the RYSE respective clinical staff qualifications, and noted including Dr. the staff Dumas members' (President of Behavioral Health Solutions and a Ph.D. Psychologist), Jane Cronin (Master's Level Clinician, Mental Health completing her license as a Licensed Counselor), another doctoral level clinical psychologist, another master's level clinician, a bachelor's level case manager, and trained behavior management assistants. The Hearing Officer's conclusion that the staff members were "adequately trained classroom teacher and supervised and other and that school personnel they in a support the coordinated manner, through bi-weekly (or more often, if needed) team meetings, and daily consultation," Decision 47, was thus adequately supported by the evidence of the RYSE staff's qualification. In addition, for all students whose parents consented to the clinical services program, "families are throughout the calendar year, clinicians master's partnership." who supported on a 24/7 basis through frequent contact with the also coordinate the school-home Id. 47-48. N.F.'s classroom teacher was RIDE (Rhode Island Department of Education) services certified and staff. received Likewise, Mrs. daily Perry, support the from Special clinical Education Director, is state certified in special education administration, elementary and middle school principal, special education teacher Kindergarten school psychologist and through Grade 9, has presented peer-reviewed research and holds a bachelor's degree in 28 special education/elementary education/psychology, a Masters Degree in educational psychology, and a Certificate in Advanced Graduate Study in School Psychology. Decision 49. In sum, the evidence submitted to the Hearing Officer supported a conclusion that the proposed program for N. F. included coordinated instruction and support by adequately trained personnel in all areas of diagnosed need. Id. The Hearing Officer proposed program for N. F. also discussed did not component because there was include in a detail clinical that the services no signed consent by the Parent. Although it was made clear to the Parent that written consent was required, the Parent took the position that she gave verbal consent for clinical services in school, but not at her home, an assertion with which the staff disagreed. 13 "[a]s a matter of record, The Hearing Officer noted that the clinical services continued to be offered to the Parent, but the offer was not considered." 50. The stated personnel Decision Parent provided no evidence that Bradley Hospital's and service requirements for N. F. (with the exception of medical management services that are not required 13 At the due process hearing, the Parent claimed that the 11/05/10 IEP team meeting notes mis-stated what she had said. Although she had not corrected those notes as she had done on an earlier occasion, she claimed that she had taped the meeting, but was unable to produce the tape. The Hearing Officer inferred that the Parent's inability to produce the tape was suspect. Decision 50. The Parent now belatedly seeks to supplement the Administrative Record with what appears to be an unverified, incomplete transcript of said tape. 29 under the Rhode Island Regulations) could not also be provided in the RYSE program. Under those circumstances, it was not an unreasonable inference by the Hearing Officer that the two letters from Bradley Hospital to Mrs. Perry prior to the September 10, 2010 IEP meeting served as a "thinly veiled strategy to force a Bradley placement." The Id. at 51. Hearing Officer also spent some time detailing the differences of opinion between the Parent and staff members, which made it "difficult to establish a working relationship between the two." Decision 52. The ignored Bradley Hospital's Parent asserted that recommendations the RYSE at the staff 11/05/10 IEP meeting and she refused to agree to the program unless it contained sensory-integration therapy and other services. The RYSE staff took the position that it could provide the recommended services, provided the Parent gave signed informed consent for the clinical services. Id. The Hearing Officer correctly noted that, "[a]lthough the IDEA guarantees a FAPE, this does not mean that this education will be designed according to the parent's preference." the School District services (which it ultimate conclusion acknowledged continued to that the that N.F. offer) , 11/05/10 required the IEP Id. at 53. While clinical Hearing Officer's plan did afford an educational benefit to N.F. was also supported by the evidence in the case. See Progress Report, Defs.'s Ex. 23. With respect to a Behavior Intervention Plan for N.F., 30 the Hearing Officer noted that, while N.F.'s need for such a plan had been acknowledged by Mrs. Perry, functional behavioral assessment of N.F. still needed to be completed. The School Decision 54. District had been collecting data since N.F. began attending the RYSE program; however, the data collection was repeatedly Moreover, parental interrupted by N.F.'s many hospitalizations. consent was necessary to include the clinical services component of the process, but circumstances, that it was had not yet been provided. reasonable for the Under Hearing those Officer to conclude that the School District could not be faulted for not completing the process. Decision 55. The Hearing Officer's determination that the RYSE program provided adequate communication with the Parent was also supported by the evidence in the record. Communication between the Parent and staff included a daily log (as suggested by the Parent), telephone calls, letters, notes, and face-to-face meetings. The Hearing Officer noted that, Decision 55. while the Parent's communication with the classroom teacher appeared to be good, the relationship between the Parent and other staff described as strained and even "acrimonious." Officer also noted that the Parent "attempts Id. to members was The Hearing control the methodology of the program" and that she repeatedly complained to the Superintendent about Mrs. Perry, whom she describes as acting "cold" towards her. Those findings are all well supported by the record, and the Parent's own testimony is entirely consistent with 31 that characterization. Notwithstanding the difficulties between the Parent and staff, staff had attempted professional manner, the Hearing Officer's conclusion that the to accommodate id. at 56-57, the Parent's request in a is exemplified in the way the staff incorporated a number of the Parent's suggestions into N.F.'s program, i.e., the daily log and certain techniques to help calm N.F. down during a crisis. The Hearing Officer's determination that the RYSE facility is appropriate for N.F.'s needs is likewise supported by the evidence in the record. As the Hearing Officer pointed out, the Rhode Island Regulations have no particular requirements for facilities housing programs for children with disabilities. Decision 57. The Parent's criticism regarding use of the facility for older children for Multi-Systemic Therapy 14 was based on an erroneous assumption building. complaint that The that there are Hearing the RYSE juvenile Officer also facility did delinquents addressed not have in the the the RYSE Parent's necessary appropriate space for N.F.'s program by listing all the available areas in schools. the building as well as access to other elementary In addition to the standard size elementary classroom, 14 Multi-Systemic Therapy, or MST, was described by Dr. Dumas as a "community-focused, ecologically-oriented service delivery model designed to provide services to children, adolescents, and their families." Tr. IX, 82:11-17. Dr. Dumas noted that MST was supported by ongoing research "showing the effectiveness of MST in general." Id. 32 which accommodates only five students, the RYSE facility includes four multi-purpose common rooms, six time-out rooms, staff offices that double as therapy rooms. playground, as well as Although there is no the students have access to fields and recreational areas and the middle school gymnasium. Decision 58. As such, the Hearing Officer's determination is well supported by the evidence in the record. Finally, the Plaintiffs argue that the Hearing Officer was mistaken in finding in favor of the School District on the question of whether the clinical program at the Bradley School would be an appropriate program for N.F. They correctly point out that the School District stipulated that, in favor of the the Hearing Officer rule Petitioner,. the Bradley School appropriate program for the Student." Decision at 59 added). is an (emphasis However, the Hearing Officer determined that, because the District the capacity to provide, and has offered an appropriate program" for N.F., the Parent's request for placement of N.F. at the Bradley School should be denied. (noting that Decision at 59 preference alone cannot be the basis for [compelling] a school district to proved a certain educational plan for a child") . As noted before, specific Decision. objections in the Plaintiffs their appeal have of raised the a Hearing number of Officer's They disagree with the Hearing Officer's finding that the Parent refused clinical services at the RYSE School 33 se." It is undisputed that the Parent did not sign a consent form and the evidence submitted to the Hearing Officer supported the School District's contention that the Parent declined clinical services offered through the RYSE Although program. there was some suggestion that the Parent was not presented with a consent form at the 11/05/10 IEP meeting, hearing indicated that, her own testimony at the due process even if she had been presented with the form, she was not sure that she would have signed it. With respect to the Hearing Officer's ruling that the 11/05/10 IEP was not final, the Hearing Officer determined that, although the parties were in agreement that clinical mental health services were needed, 11/05/10 Parent. that such services could not be provided as part of the IEP because no written consent had been given by the Moreover, the undisputed testimony by Mrs. Perry indicated the School District remained willing to provide clinical services to N.F. as part of his IEP beyond the 11/05/10 date. In other words, the IEP was incomplete because, without the Parent's written consent, a necessary component of the IEP School District was willing and able to provide - - which the could not be included. The Plaintiffs' general assertion that the 11/05/10 fails to address N. F.'s psychiatric, needs was Decision, addressed in Decision 40-54. psychological, detail by the social, Hearing or emotional Officer in her The Plaintiffs provided no convincing 34 evidence to the contrary. With respect to the Parent's focus on N.F.'s Sensory Disorder diagnosis, the Hearing Officer's reasoning why she gave witnesses was little amply weight to the supported. testimony Moreover, of the the Parent's Hearing Officer afforded the Parent an opportunity to submit testimony by an OT expert, of which she did not avail herself. Likewise, the allegation that RYSE staff Decision 41-44. is unqualified and inadequately trained is refuted by the evidence in the record. Moreover, it appears that, even with the interruption of his schooling, N.F. showed some positive attainment of skills through his attendance of the RYSE Program. Decision 36, Defs.' Ex. 23. It is correct that the School District stipulated that the Bradley School would be an appropriate placement for N.F. However, an alternative placement is indicated under the IDEA only if no such placement can be provided in a public school setting. e.G. ex rel. A.S. v. Five Cmty. Sch. Dist., 513 F.3d at 284-285. ("If a school system is unable to furnish a disabled child with a FAPE through a public school placement, it may be obliged to subsidize the child in a private program.") Because the Plaintiffs did not meet the burden of establishing that the School District denied a FAPE to N.F., placement at the Bradley School was not appropriate and the Hearing Officer correctly found for the School District on that question. 35 V. Summary Based on a thorough review of the administrative record and consideration of the parties' respective arguments, this Court finds that the Hearing Officer's Decision in favor of the School District is supported by a preponderance of the evidence. In this case, the School District agrees with the Parent that N.F. is in need of clinical mental health services as part of a complete IEP. The School District offered to provide such services as part of the 11/05/10 IEP and it also indicated its willingness to add such services at any time, written consent. to such clinical effectively the Parent gave the necessary The Parent, however, failed to give her consent services. mental provided In other health precluded words, services the School by refusing offered by District implementing a complete and appropriate IEP. the RYSE, from necessary the Parent finalizing and Moreover, the record contains numerous examples where the development of a complete IEP was frustrated by the Parents' lack of cooperation. Inter alia, the Parent withdrew N.F. from school before an assessment of his need for an individual TA could be completed; she failed to include the School District's 2009 Clinical Psychological Report for evaluation by Bradley Hospital; she refused Mrs. Perry's attendance at the discharge meeting at Butler Hospital; she refused a home visit by the RYSE social worker; and she did not provide the School District with the Butler Hospital synopsis until the due process 36 hearing was underway. In such circumstances, the Plaintiffs have not met their burden of proving that the Hearing Officer's Decision was erroneous. VI. For Conclusion the reasons stated above, summary judgment is GRANTED, the Defendants's motion the Plaintiffs' motion for for summary judgment is DENIED, and the Hearing Officer's Decision is AFFIRMED. SO ORDERED. /s/ Mary M. Lisi Mary M. Lisi Chief United States District Judge March 1, 2012 37
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