P. ex rel. Mr. P. v. Newington Bd. of Educ.
| Citation | 512 F.Supp.2d 89 |
| Decision Date | 28 September 2007 |
| Docket Number | Civ. No. 3:06CV009 (AWT). |
| Court | U.S. District Court — District of Connecticut |
| Parties | P., by and through his parents and next friends, MR. and Mrs. P., Plaintiff, v. NEWINGTON BOARD OF EDUCATION, Defendants. |
David C. Shaw, Law Offices of David C. Shaw, Bloomfield, CT, for Plaintiff.
Mark J. Sommaruga, Sullivan, Schoen, Campane & Connon, Hartford, CT, for Defendants.
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
The plaintiff ("P.") is an intellectually disabled child who attends the Newington public schools. P.'s parents ("Mr. and Mrs. P."), acting as his next friends, brought this action against the Newington Board of Education (the "Board") seeking relief under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "IDEA" or the "Act").1 Specifically, the plaintiff challenges the finding by an administrative hearing officer that the Board's proposed program for P. for the 2005-2006 school year satisfied the requirements of the IDEA. The plaintiff also seeks an award of attorney's fees and costs under 20 U.S.C. § 1415(i)(3).
The parties have filed cross-motions for summary judgment. The court concludes that the hearing officer did not err in finding that the Board's program for P. for the 2005-2006 school year was appropriate and that the Board considered placing P. in regular classes and removing him only when he could not be educated satisfactorily with supplementary aids, supports, and modifications during the 2005-2006 school year, as required by 20 U.S.C. § 1412(a)(5)(A). Accordingly, the Board's motion for summary judgment is being granted, and P.'s motion for summary judgment is being denied. However, because the plaintiff achieved partial success at the administrative hearing on some significant issues that were not raised on appeal to this court, the Board will be required to reimburse P. for attorneys' fees and costs in an amount commensurate with the plaintiffs success.
P. was born on April 23, 1996 with a variety of medical problems that necessitated multiple surgeries before the age of three. He suffers from Down's syndrome, Hirschprung's disease, an intellectual disability, and a mild hearing impairment. In addition, P. experiences substantial behavior problems and has difficulty communicating effectively. As a result of developmental delays, P. has required intensive intervention since birth, including occupational, physical, speech, and language therapy. P. benefits from such services as part of his educational program. He also receives assistance from two paraprofessionals in addition to working with his regular classroom and special education teachers.
In the spring of 2004, the school district's behavioral consultant, Greg Smith, informed P.'s parents that it would become increasingly difficult to mainstream their child into a regular classroom as the gap in ability between P. and his peers grew wider. P.'s mother strongly disagreed with the views expressed by Smith. On May 28, 2004, towards the end of P.'s first grade year, the student's Planning Placement Team ("PPT") met to discuss the student's goals and objectives for the coming year. The parents wanted P. to be placed in a regular classroom for at least 80% of the school day and asked the Board to hire a consultant to support the student's program. In accordance with the parents' request, the Board retained Dr. Kathleen Whitbread in July 2004.
P.'s individualized education program (IEP) for the 2004-2005 school year provided that he would spend approximately 19.5 hours per week with non-disabled students and that he would receive occasional instruction in an alternate setting to increase his attention and focus. The IEP also recommended "pull-out" services for occupational therapy and speech therapy. P. received physical therapy in an adaptive physical education class with other " disabled children, although this was apparently labeled as a regular education service.
In the summer of 2004, P. was referred to the Connecticut Children's Medical Center (the "CCMC") for an evaluation. However, the psychologist at CCMC was unable to complete the cognitive testing because of the student's lack of focus. The CCMC report dated October 10, 2004 recommended a functional behavior assessment ("FBA") in order to determine the child's motivations for engaging in certain conduct. In the fall of 2004, the Board learned that the CCMC had not conducted the assistive technology evaluation ("ATE") that had been requested, but the child's parents asked that the evaluation 'be held off until the completion of the report by the inclusion consultant, Dr. Whitbread.
Dr. Whitbread's report, based on her observations of the student and interviews with the staff and parents, was completed on December 13, 2004. Whitbread concluded that the child's 2004-2005 IEP was inadequate because of its overly functional focus and pessimistic outlook. Whitbread recommended that an FBA and an ATE be conducted. She believed that the child would receive substantial benefits from greater participation in the regular education curriculum, although she acknowledged that some pull-out services were appropriate, especially for literacy instruction and speech therapy. A PPT was convened on February 11, 2005 to review the report prepared by Dr. Whitbread. (Id. at 13; B-66). At this meeting, the parents reiterated their view, consistent with Dr. Whitbread's recommendation, that the child's program should be more academically-focused. Also, consistent with Whitbread's report, the PPT recommended that an ATE be conducted for the child at Southern Connecticut State University.
The PPT met again on April 15, 2005 for the child's annual review and discussion of the IEP prepared for the 2005-2006 school year. The PPT decided that both an FBA and an ATE would be completed promptly. With regard to the IEP, Dr. Whitbread again stated that the expectations it set for P. were too low and that the school district should work toward the goal of including the child in a regular classroom for 80% of the school day. Although the child's inclusion rate for 2004-2005 was approximately 60%, the 2005-2006 IEP proposed increasing it to 74%, for a total of 23.75 hours per week spent with his non-disabled peers. The proposal stated that the student would participate in all regular education activities with adult assistance unless he was receiving individual instruction in the related services room to improve his focus or he was removed due to fatigue or inappropriate behavior. In addition, the IEP outlined many supports and aids the child would receive in the regular classroom as well as modifications to the general curriculum. As of the June 3, 2005 PPT, the parents remained dissatisfied with the amount of time their child was spending in the regular classroom. The PPT agreed that a mutually agreeable consultant would be hired for work in the fall because Dr. Whitbread's contract had expired.
On June 9, 2005, P.'s parents requested an administrative hearing to challenge the appropriateness of P.'s program for the 2004-2005 and 2005-2006 school years. The plaintiffs in this litigation presented testimony from Mrs. P and Dr. Whitbread regarding the benefits of inclusion for P. and the school district's failure to provide certain modifications and supports that would have enabled P. to participate more fully in the regular education curriculum. (Id.). The Board offered the testimony of several school officials, including the child's teachers and therapists, in an effort to show the efforts made by the Board to accommodate P. in a regular classroom to the maximum extent possible given his need for occasional pull-out services.
The parties submitted the following five issues for resolution by the hearing officer: (1) whether the Board's program for the student for the 2004-2005 year was appropriate; (2) whether the Board's proposed program for the student for the 2005-2006 school year was appropriate; (3) whether during the 2004-2005 school year the Board placed the student in regular classes and removed him from that environment only when he could not be educated satisfactorily in regular classes with supplementary aids and supports and modifications to the general curriculum as required by 20 U.S.C. § 1412(a)(5)(A); (4) whether during the 2005-2006 school year the Board considered placing the student in regular classes and removing him from that environment only when he could not 'be educated satisfactorily in regular classes with supplementary aids and supports and modifications to the general curriculum as required by 20 U.S.C. § 1412(a)(5)(A); and (5) whether the hearing officer could override the parents' refusal to consent to a psychiatric evaluation, consultation and observation by a teacher of the hearing impaired and a mutually agreeable consultant who has experience and expertise as a behavioral specialist.
The hearing officer found in favor of the plaintiffs on the first, third, and fifth issues, and found in favor the defendants on the second and fourth issues. The hearing officer's conclusion that the Board's program and actions for the 2004-2005 year were not appropriate was based on the school district's inability to properly address the student's behavior problems and its failure to give sufficient consideration to mainstreaming the student for more than 60% of the week. However, the hearing officer found that the 2005-2006 IEP provided appropriate modifications and adaptations to enable the student to participate in the regular education environment to the maximum extent appropriate. On the final issue, the hearing officer concluded that the Board's view that a psychiatric evaluation was justified as a means of providing greater information about the student was...
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