P. v. Greenwich Bd. of Educ.

• Decision Date: 14 March 2013
• Docket Number: Case No. 3:12CV387(AWT).
• Citation: 929 F.Supp.2d 40
• Court: U.S. District Court — District of Connecticut
• Parties: Mr. and Mrs. “P.”, Parents of “R.P.”, a Minor Child with Disabilities, Plaintiffs, v. The GREENWICH BOARD OF EDUCATION, Defendant.

929 F.Supp.2d 40

Mr. and Mrs. “P.”, Parents of “R.P.”, a Minor Child with Disabilities, Plaintiffs,

v.The GREENWICH BOARD OF EDUCATION, Defendant.

Case No. 3:12CV387(AWT).

United States District Court, D. Connecticut.

March 14, 2013.

Jennifer D. Laviano, Erin O'Brien Duques, Law Offices of Jennifer Laviano, LLC, Sherman, CT, for Plaintiffs.

Abby R. Wadler, Town of Greenwich Law Department, Greenwich, CT, Andreana R. Bellach, Gwen J. Zittoun, Shipman & Goodwin, Stamford, CT, for Defendant.

RULING ON MOTION TO DISMISS

ALVIN W. THOMPSON, District Judge.

Plaintiffs Mr. and Mrs. P., who are the parents of minor child R.P., have brought this action pursuant to the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) against the Greenwich Board of Education (the “Board”) of the Greenwich Public School District. The Board has moved to dismiss Count One to the extent that it is based on alleged violations of the IDEA's Child Find provision during school years prior to the 2009–2010 school year and Count Two, which asserts violations of Section 504. For the reasons set forth below, the motion is being granted.

I. FACTUAL ALLEGATIONS AND BACKGROUND

“The complaint, which [the court] must accept as true for purposes of testing its sufficiency, alleges the following circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.1997).

The student, a thirteen year old with disabilities who requires special education, resides in Greenwich, Connecticut and currently attends Eagle Hill School (“Eagle Hill”), a special education school approved by the Connecticut Special Education Department. The student attended Riverside Elementary School (“Riverside Elementary”), in the Greenwich Public School System, for kindergarten (2004–2005), first grade (2005–2006) and fourth grade (2008–2009). In kindergarten, the student's teacher referred him for early intervention based on concerns with his lack of attention and difficulty following directions and task completion. While the student was a first grader, the parents expressed numerous concerns about the student's ability to learn and focus to numerous Board employees, including teachers, related services providers and administrators. They also expressed these concerns to Board employees when the student was in fourth grade. The parents obtained several private evaluations of the student, beginning in his preschool years, and provided them to the Board on several occasions over the years. In addition, the Board conducted its own evaluations of the student in October 2004, January 2005, April 2006, March 2009 and May 2009. The majority of these evaluations noted the difficulties the student was having and recommended that school-based occupational therapy services be provided to the student due to his difficulty in completing written work and with other fine motor activities.

In 2009, the Board identified the student as being eligible for special education and related services pursuant to the IDEA category of “specific learning disability” at the end of the student's fourth grade year. The Board offered the student an Individual Education Program (“IEP”) with a totalof 1.5 hours per week of special education services. At the end of the April 2009 IEP meeting, the Board provided the parents with a “Consent for Special Education Placement” form to sign. The parents allege that the form provided by the Board was written in such a manner as to indicate, if it was signed, that the parents: 1) consented to the placement of their child in special education, and 2) agreed with the IEP offered to the student. Mrs. P. returned the signed form to the Board with the following handwritten note: “I consent that my son is eligible for special education under the learning disability category. I do not consent to the placement described in this IEP, because it is not appropriate to his needs.” Compl. ¶ 22. The parents allege that because they did not agree to the placement described in the IEP and instead requested an “out of district placement” at public expense, the Board offered an IEP that included a total of 6.5 hours per week of special education services.

The parents unilaterally enrolled the student at Eagle Hill, a special education school with a low student to teacher ratio, for the 2009–2010, 2010–2011 and 2011–2012 school years and sought reimbursement from the Board. After the parents placed the student at Eagle Hill for the start of the 2009–2010 school year, the Board failed to observe, evaluate and provide educational services to the student. Moreover, the Board did not offer an IEP or an IEP meeting to the parents, and did not provide any educational services to the student, for the 2010–2011 school year.

In the spring of 2011, the parents worked with the staff at Central Middle School, a public school within the Greenwich Public School District, to assess the student and discuss programs that might be appropriate for the 2011–2012 school year. The parents considered Central Middle School's proposed IEP, which included a total of 8.25 hours per week of special education and counseling services, and discussed it with the educators at Eagle Hill. Eagle Hill recommended not returning the student to a less restrictive setting until he had completed an additional year of support and transition at Eagle Hill.

The parents filed a hearing request with the Connecticut Department of Education's Special Education Due Process Unit on April 21, 2011. Paragraph 4 of the hearing request stated “[t]he nature of the dispute is the issue of FAPE for the 2009–2010, and 2010–2011 school years,” and then described in 33 subparagraphs the events that had occurred with respect to R.P. beginning in 2004. Compl. Attach. 1 at ¶ 4. The hearing request then stated:

5. The Greenwich Board of Education violated the IDEA by failing to meet its Child–Find obligations for all school years in which R. resided in Greenwich through the 2008–2009 school year. The Greenwich Board of Education further violated R. and his Parents' procedural safeguards by failing to properly and timely evaluate R. in all areas of suspected disability.

6. The Greenwich Board of Education denied R. a FAPE for the 2009–2010 and 2010–2011 school years, including ESY and related services, because it did not offer a program with a high enough level of intensity or structure to adequately address his academic and emotional needs and to confer meaningful educational benefit.

7. The Parents' proposed resolution is that the Board immediately be ordered to reimburse the Parents for all costs associated with R.'s attendance at the Eagle Hill School for the 2009–2010 and 20101–2011 school years, including but not limited to tuition and transportation costs. In addition, they request reimbursement for all expenses they incurred as a result of the Board's failure to offer or provide a FAPE for the school years in question including but not limited to the cost of the psychological evaluation conducted by Christopher M. Bogart, Ph.D. In addition, the Parents request any compensatory services the Hearing Officer deems just and equitable for the deprivation of FAPE and for the Board's failure to timely identify R. as a child in need of special education and to provide in a timely manner the services necessary to remediate his learning disability.

Id. at ¶¶ 5, 6 and 7.

The hearing proceeded over several months. The parents offered documentary and testamentary evidence, including three expert witnesses not employed by the Board. The Board presented witnesses who are or were employed by the Board during the time periods in question. The witnesses for the parents and the Board were able to describe the significant progress the student made with the highly structured, specialized instruction he received at Eagle Hill. Thereafter, the parties submitted post-hearing briefs.

On January 30, 2012, the Hearing Officer issued her Final Decision and Order (the “Decision”). At the beginning of the Decision, the Hearing Officer stated the issues presented:

ISSUES: (as agreed at the prehearing conference, May 9, 2011):

1. Did the Board offer a free appropriate public education to the Student for the school years 2009–2010 and 2010–2011?

2. If not, is placement at Eagle Hill School appropriate to the Student's special education needs in the least restrictive environment?

3. If placement at Eagle Hill School is appropriate, is the Board responsible for reimbursement to the Parents for documented costs of the placement for school years 2009–2010 and 2010–2011?

ISSUES: (as added by agreement of the Parties, August 9, 2011):

4. Is the proposed Individualized Education Program (IEP) for the 2011–2012 school year appropriate to the Student's special education needs?

5. If not, is placement at Eagle Hill School appropriate to the Student's special education needs in the least restrictive environment?

6. If placement for 2011–2012 at Eagle Hill is appropriate, is the Board responsible for funding that placement?

Compl. Attach. 3 at 1.

As the conclusion of the Decision, the Hearing Officer wrote:

The IEPS and placements developed by the School for the Student for school years 2009–2010 and 2011–2012, were appropriate to his identified special education needs.

Because Student was not enrolled in the Board's school during 2010–2011 and there was no contact suggesting he would re-enroll during that school year, the Board was not required to prepare an IEP for 2010–2011.

Because the Board's programs have been found appropriate, it is not necessary to address the appropriateness of the programs provided at Eagle Hill School.

Because the Board's programs have been found appropriate, no reimbursementof the Eagle Hill School placement by the School District is ordered.

Id. at 23.

The plaintiffs bring two causes of action against the Board. Count One appeals the Decision. The...