Fetto v. Sergi, CIV.A.3:94CV771(CFD).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Citation181 F.Supp.2d 53
Decision Date28 December 2001
Docket NumberNo. CIV.A.3:94CV771(CFD).,CIV.A.3:94CV771(CFD).
PartiesJohn FETTO, Plaintiff, v. Theodore SERGI, Commissioner of the Connecticut Department of Education, and Kristine D. Ragaglia, Commissioner of the Connecticut Department of Children and Families, Defendants.<SMALL><SUP>1</SUP></SMALL>
181 F.Supp.2d 53
John FETTO, Plaintiff,
Theodore SERGI, Commissioner of the Connecticut Department of Education, and Kristine D. Ragaglia, Commissioner of the Connecticut Department of Children and Families, Defendants.1
No. CIV.A.3:94CV771(CFD).
United States District Court, D. Connecticut.
December 28, 2001.

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David C. Shaw, Law Offices of David C. Shaw, Hartford, CT, for plaintiff.

Richard J. Buturla, Marsha Belman Moses, Brian A. Lema, Gregory B. Ladewski, Michelle Claire Laubin, Berchem, Moses & Devlin, P.C., Milford, CT, for defendants.


DRONEY, District Judge.

This is an action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.; § 504 of the Rehabilitation Act, 20 U.S.C. § 794; the Americans With Disabilities Act, 42 U.S.C. § 12132 ("ADA"); and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, actionable under 42 U.S.C. § 1983. The plaintiff is a disabled individual who, while a student in the West Haven public schools, filed for administrative due process to challenge the individualized education plan formulated pursuant to the IDEA by his planning and placement team. Dissatisfied with certain decisions of the state hearing officer, the plaintiff brought this action against the West Haven Board of Education ("the Board"); Theodore Sergi, Commissioner of the Connecticut Department of Education ("the DOE"); and Kristine D. Ragaglia, Commissioner of the Connecticut Department of Children and Families ("DCF"). The

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plaintiff eventually reached a settlement with the Board, which is no longer a party.

The plaintiff alleges that the DOE violated the IDEA by: (1) failing to provide procedures that would have enabled him to pursue his IDEA claims against the DOE and other state agencies; and (2) failing to establish an interagency agreement or procedure with the DCF whereby certain services would be provided by the DCF to the plaintiff in school and at home. He also claims that the DOE violated the ADA by conditioning the availability of certain services on the plaintiff's placement in a school that exclusively services children with disabilities, rather than in one that offers a regular education environment.

The plaintiff claims that the DCF violated the IDEA by: (1) failing to establish procedures and provide him with certain related services under the IDEA in the community and in "the least restrictive environment;" (2) retaliating against the plaintiff for filing for administrative due process; and (3) failing to participate in planning and placement team meetings. The plaintiff further claims that the DCF's termination of benefits violated the Rehabilitation Act, and that its failing to provide certain services violated the ADA. He also makes various due process allegations against the DCF concerning the discontinuance of benefits.

According to the revised amended complaint ("the complaint"), dated October 15, 1999, the plaintiff seeks several forms of relief against the DOE and the DCF,2 including the following:

(1) a reversal of the decision of the hearing officer to the extent that it denied the plaintiff certain individualized in-home services, referred to by the plaintiff as "wrap around" services;3

(2) an order directing the DCF to provide the "wrap around" services to the plaintiff in a regular education environment and at home;

(3) an order directing the DCF to provide the plaintiff compensatory services to make up for the lack of such "wrap around" services, including the period of time following the appeal of the termination of his benefits by DCF; and

(4) an order directing the DOE to establish various procedures to: (a) develop and implement individual educational plans allowing disabled students to remain in their regular educational environment, (b) provide students in an IDEA administrative action the ability to join in the action any state agency that may have the responsibility under the IDEA to provide educational services, and (c) ensure that students need not be transferred to a state facility in order to be provided with individualized education and treatment services.4

The parties tried the case to the Court for five days. At the conclusion of the trial the Court directed the parties to file proposed findings of fact and conclusions

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of law. Pursuant to Fed.R.Civ.P. 52(a), the Court makes the following findings of fact and conclusions of law.

I. Findings of Fact

Based upon the testimony and other evidence presented at the trial, the Court finds the following facts:

A. Background Facts

The plaintiff, John Fetto, was born on November 29, 1979. At nearly all times relevant to the complaint, he attended the West Haven public schools and received special education services there.

The Board classified the plaintiff as emotionally maladjusted and as suffering from several behavioral disorders. He has been diagnosed with, among other things, Attention Deficit-Hyperactivity Disorder, Conduct Disorder, Oppositional Defiant Disorder, and Dysthymia. The parties do not dispute that, in light of these conditions, the plaintiff was a student with serious emotional problems in need of special education and related services under the IDEA.

While in the West Haven public school system, the plaintiff was given annual behavioral objectives in the form of individualized education plans ("IEPs") which were formulated each year by a planning and placement team ("PPT"). The plaintiff's PPT met regularly to discuss the plaintiff's educational progress and difficulties. The plaintiff's mother, Sheila Fetto, and occasionally the plaintiff, attended these meetings.

During the 1992-93 school year, the plaintiff experienced several behavioral difficulties, which eventually led to hospitalization at Elmcrest5 and an extended evaluation by the Child and Adolescent Psychiatric Service at Mount Sinai Hospital in Hartford.

On May 24, 1993, Mrs. Fetto attended a PPT meeting during which the plaintiff's IEP for the 1993-94 school year was formulated. It recommended an out-of-district placement in a day program at one of three area schools.6 The plaintiff's family objected to this suggestion, and Mrs. Fetto instead requested that the Board provide what she termed "wrap around" services to obviate the need for the suggested placements.7 The Board first suggested that she contact the DCF.8 In addition, the possibility of the Board providing social work services and counseling was discussed, but no conclusion was reached. Thereafter, Mrs. Fetto applied to the DCF's Non-Committed Treatment Program ("NCTP"), described in more detail in Section I.B.

The plaintiff's parents did not agree to the IEP and instead requested a due process hearing pursuant to the IDEA and Connecticut law, though during an August 22, 1993 meeting the PPT withdrew its recommendation for out-of-district placement

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and agreed to place the plaintiff in the West Haven public schools with full-time paraprofessional support and behavior modification programs. As a result, the scope of related services under the IDEA-or "wrap around services," as the plaintiff characterizes them-became the principal focus of the due process hearing.

The due process hearing began on October 8, 1993, and was held over the course of six days. During the hearing, the hearing officer dismissed the DCF as a party and declined to join the DOE as a party over the plaintiff's objections. This left the Board as the sole defendant. The hearing officer also issued an interim order which provided some of the relief sought by the plaintiffs, including a full-time paraprofessional (which apparently had not yet been provided), an individual to assist the plaintiff in getting ready for school in the morning, and family counseling services.9 She ruled that certain other forms of relief-the so-called "wrap around" services-such as the hiring of a mentor, were not related services that must be provided under the IDEA.

The hearing officer issued a final decision on March 30, 1994, which held that the plaintiff required "a highly structured, individualized special education program." She found that "the Board's current IEP and placement in regular classes with full paraprofessional support is an appropriate program in the least restrictive environment," but only provided that the plaintiff did not become a danger to himself or to others. While she continued some of the services she had ordered in the interim, the hearing officer also found that several of the "wrap around" services requested by the plaintiff were not educational support services, and thus the Board was not required to provide them. In particular, she ruled that "[t]he Board is not responsible for providing respite care in the home, or programs in the community such as a mentor for J."

The plaintiff filed this action appealing the decision of the hearing officer on May 11, 1994. From 1994 to 1997, the DCF provided many services to the plaintiff, including some that were ordered to be provided by the Board to the plaintiff in the hearing officer's interim and final decision. During this same period, the Board did not provide many additional services to him outside the school.

On July 1, 1999, the plaintiff reached a settlement with the Board with respect to another IEP. As a result of that settlement, the Board agreed to provide the plaintiff with educational services through the Area Cooperative Educational Services ("ACES") Adolescent Transitional Services program from September 30, 1999 until September 30, 2000, and also agreed to provide the plaintiff with counseling services. In October 1999, the Board and the plaintiff entered into a second settlement agreement which superceded the first. The second agreement pertained to the claims made against the Board in the...

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    ...in New York, a better action is suit against the state education agency, not the Valley Central School District. See Fetto v. Sergi, 181 F.Supp.2d 53, 72 (D.Conn.2001). Without the proper defendants before the Court, the Court can do nothing about any alleged violations of the IDEA present ......
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