A.S. ex rel. S. v. Norwalk Bd. of Educ.

• Decision Date: 13 February 2002
• Docket Number: No. 3:99CV002 (SRU), 3:99CV003 (SRU).,3:99CV002 (SRU), 3:99CV003 (SRU).
• Citation: 183 F.Supp.2d 534
• Court: U.S. District Court — District of Connecticut
• Parties: A. S., by Her Parents & Next Friends Mr. and Mrs. S. v. NORWALK BOARD OF EDUCATION

183 F.Supp.2d 534

A. S., by Her Parents & Next Friends Mr. and Mrs. S. v. NORWALK BOARD OF EDUCATION

No. 3:99CV002 (SRU), 3:99CV003 (SRU).

United States District Court, D. Connecticut.

February 13, 2002.

COPYRIGHT MATERIAL OMITTED

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

Marsha Belman Moses, Michelle Claire Laubin, Berchem, Moses & Devlin, P.C., Milford, CT, for Defendant.

RULING AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

UNDERHILL, District Judge.

These consolidated cases concern a special education due process administrative hearing under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415 et seq. (the "IDEA"). Specifically, A.S. ("A."), acting through her parents, seeks to affirm the 1998 decision of an administrative hearing officer (the "Hearing Officer") holding that A.'s educational program was inappropriate, but that she should remain in regular education classes and be provided with additional supportive services. The Hearing Officer also required the Norwalk Board of Education (the "Board") to pay for the independent evaluation performed by Ruth Hamilton, Ph.D. ("Hamilton"), a consultant hired by A.'s parents. In addition to affirmance of the Hearing Officer's decision, A. also seeks an award of attorneys' fees and costs under 20 U.S.C. § 1415(i)(3) as the prevailing party in the administrative hearing. The Board seeks to overturn the decision of the Hearing Officer and argues that it should not be required to pay for the work performed by Hamilton.

Pending are the parties' cross-motions for summary judgment on all issues except A.'s claim for attorneys' fees and costs. A careful review of the record demonstrates that the Hearing Officer did not err in ordering that A. remain in the regular education environment and be provided with additional supportive services. Specifically, the Hearing Officer correctly applied the mainstreaming test set forth in Oberti v. Bd. of Educ. of the Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir.1993). In addition, the Hearing Officer did not err in requiring the Board to reimburse the costs of Hamilton's evaluation. Accordingly, A.'s motion for summary judgment is granted and the Board's motion for summary judgment is denied.

FACTS

A. has been diagnosed as neurologically impaired and visually handicapped.¹ She is, therefore, eligible for special education with supplemental aids and services under the IDEA. A. participated in the Board's Developmental Handicapped program (the "DH Program"), a segregated setting for disabled students, until she reached the fourth grade. After a 1991 due process hearing, A. was placed in a mainstream fourth grade class with an aide and an independent consultant. A. successfully remained in that regular education setting through fifth and sixth grade. A.'s seventh grade year was also successful, although she had begun to exhibit behavioral problems. Although A. made some progress towards her IEP goals during eighth grade, most of her goals were not mastered and had to be continued to the next school year. A. also exhibited behavioral problems during that year, however, strategies were developed throughout the year that significantly reduced the problems.

In anticipation of A.'s first year of high school, the Board recommended that she be placed back in the DH Program. Under the Board's proposal, A. would have participated in vocational training outside the school, focused on life skills training, and be mainstreamed only in selected non-academic classes. A.'s parents objected to the Board's proposed change. A. was, therefore, placed in a regular education setting with Independent Education Plan ("IEP") goals unchanged from the prior school year. She was provided with several supportive services and modifications were made to the regular education curriculum.

At a January 1997 Planning and Placement Team ("PPT") meeting, the Board renewed its argument that A.'s placement in the regular education environment was not appropriate. The Board maintained that A. should be placed in the DH Program and be mainstreamed only in selected non-academic classes.² A.'s parents again objected to the proposed change.

The Board and A.'s parents thereafter filed separate requests for a due process hearing. The requests were consolidated and an administrative hearing was held on twenty-one separate days over the course of twenty-two months. The hearing addressed the following four issues: (1) was A.'s 1996-1997 program appropriate; (2) was the program proposed by the Board appropriate; (3) should the Board be required to pay for the independent evaluation done by Hamilton; and (4) did the Board violate, the IDEA's mainstreaming requirement, 20 U.S.C. § 1412(a)(5)(A),³ with respect to the 1996-1997 school year?

In his final order, the Hearing Officer concluded that A.'s placement during the 1996-1997 school year was not appropriate. He also found, however, that the alternative placement proposed by the Board was not appropriate. The Hearing Officer thus ordered A.'s PPT to reconvene and begin planning a new IEP for A. He ordered that A. "remain in the regular education classroom with supplementary aides and services including but not limited to direct services from the special education teacher and a paraprofessional." (AR-42 at 11.) Finally, the Hearing Officer required the Board to pay the cost of A.'s consultant, Hamilton.

STANDARD OF REVIEW

Under the IDEA, when a federal court reviews the findings and conclusions reached in a state administrative proceeding, it must base its decision on the preponderance of the evidence, after reviewing the administrative record and, at a party's request, any additional evidence presented.⁴ 20 U.S.C. § 1415(i)(2)(B); M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 (2d Cir.2000); Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1116 (2d Cir.1997). This "`is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.'" M.S., 231 F.3d at 102 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("Rowley")). Rather, the reviewing court must "give `due weight' to [the administrative] proceedings, mindful that the judiciary generally `lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Id.; see also Naugatuck Bd. of Educ. v. Mrs. D, 10 F.Supp.2d 170, 176-77 (D.Conn.1998) (This "modified de novo review contemplates an intermediate standard of review . . . [that] requires a more critical appraisal of the agency determination than clear-error review entails, but which nevertheless, falls well short of complete de novo review . . . the [district] judge is not at liberty either to turn a blind eye to administrative findings or to discard them without sound reason.") (citations omitted) (brackets in original). Reviewing courts, however, need not give due weight to conclusions of law concerning the "proper interpretation of the federal statute and its requirements." J.B. v. Killingly Bd. of Educ., 990 F.Supp. 57, 67 (D.Conn.1997) (quoting Mrs. B., 103 F.3d at 1121); see also Naugatuck Bd. of Educ., 10 F.Supp.2d at 180.

Finally, "[s]ummary judgment appears to be the most pragmatic procedural mechanism in the Federal Rules for resolving IDEA actions." Wall v. Mattituck-Cutchogue Sch. Dist., 945 F.Supp. 501, 508 (E.D.N.Y.1996) "The inquiry, however, is not directed to discerning whether there are disputed issues of fact, but rather, whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed." Id.

DISCUSSION

As the Hearing Officer succinctly stated, "[t]he parties have the best interest of [A.] at heart. Their only difference is where the student shall receive her education . . . ." (AR-42 at 8.) Specifically, the parties agree that A. was not benefitting from the educational program in place at the beginning of her freshman year. They strenuously disagree, however, as to whether A.'s lack of progress required that she be removed from her academic regular education classes and placed in a much more restrictive program, or whether she should have remained in academic regular education classes and be provided with additional supportive services. The Board sees A.'s struggles in her regular education placement as an indication that she can not receive a meaningful education there. A.'s parents see her difficulties as an indication that she has not been provided with sufficient supplemental services to make a regular education placement work.

The Hearing Officer agreed with the parties that A.'s program, as it existed during the 1996-1997 year, was not appropriate. He further found that A.'s IEP goals were "planned with little thought to [her] unique needs," and therefore ordered that the goals be revised and A. be provided with additional supplemental services in the regular education setting. (AR-42 at 11.) Finally, the Hearing Officer held that the Board should pay for A.'s expert consultant, Hamilton. For the reasons set forth below, the court finds no fault with the hearing officer's conclusions.

A. THE HEARING OFFICER APPLIED THE CORRECT LEGAL

STANDARD⁵

Under the IDEA, state educators must strive to provide special education and related services in the least restrictive environment ("LRE") consistent with a child's needs. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir.1998); J.B. v. Killingly Bd. of Educ., 990 F.Supp. at 65; 20 U.S.C. § 1412(a)(5)(A). States receiving money under the IDEA, "to the maximum extent appropriate," must educate handicapped children "with children who are not handicapped." Rowley,...