Gonzalez v. Puerto Rico Dept. of Educ., Civil No. 95-2284(HL).

969 F.Supp. 801

Hector GONZALEZ, et al., Plaintiffs, v. PUERTO RICO DEPARTMENT OF EDUCATION, Defendant.

Civil No. 95-2284(HL).

United States District Court, D. Puerto Rico.

June 11, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Orlin P. Goble, Hato Rey, PR, Robert F. Blackmore, Dunn, Carney, Allen, Higgins & Tongue, Portland, OR, for Plaintiffs.

Hjalmar Flax, Dept. of Justice, Federal Litigation Div., San Juan, PR, Leigh M. Manasevit, Washington, DC, Karen S. Lovitch, Brustein & Manasevit, Washington, DC, John P. Sherman, Brustein & Manasevit, Washington, DC, for Defendant.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiffs brought this action pursuant to the Individuals with Disabilities Education Act ("the IDEA").¹ Plaintiffs are Hector Gonzalez, his wife Gricelle Nazario Gonzalez ("Nazario"), and their son Gabriel Gonzalez. Gabriel's parents bring this action on his behalf. Defendant is the Puerto Rico Department of Education ("the Department"). Plaintiffs seek reimbursement from the Department for their expenses in educating Gabriel at private schools. The Court held a four-day bench trial on Plaintiffs' claims, and it is now ready to rule.²

FINDINGS OF FACT

The parties stipulated to the following facts:³

1. Gabriel was born on December 21, 1982. He has been diagnosed as having autism, mental retardation, cerebral dysfunction syndrome and elective mutism. He is a child with a disability, as defined by the IDEA. See 20 U.S.C.A. § 1401(a)(1).

2. Gabriel was initially placed in a private school in Puerto Rico. That school closed after the 1987-88 school year. His parents then placed him in the Carmen Gomez Tejera School, a public school, for the 1988-89 and 1989-90 school years.

3. Gabriel's parents withdrew him from the public school and placed him in a private school in Puerto Rico for the 1990-91 and 1991-92 school years. Starting in the 1992-93 school year, he has been placed in the Higashi School in Boston.

Based on all the evidence and testimony presented at trial, the Court makes the following findings of fact:

1. When Gabriel was two years old he began to have an excessive number of tantrums. His parents became concerned and took him to doctors. It was then that Gabriel was diagnosed as having autism.⁴

2. The tantrums continued and became worse during the time that Gabriel was placed in public schools in the 1988-89 and 1989-90 school years.⁵ While Gabriel was placed in public schools, his mother Gricelle Nazario Gonzalez participated in the meetings to prepare Gabriel's individualized education program ("IEP"). She signed each IEP as a participant.⁶ She also signed on April 19, 1989, a document entitled "Parents' Rights" which listed in Spanish the rights of parents of children with disabilities.⁷ Nazario is a native Spanish speaker. During the IEP meetings Nazario told school officials of her concerns and complaints regarding Gabriel's education. She also met with Gabriel's teachers and principal. In these meetings she complained to them that Gabriel's behavior was not improving; rather, his tantrums were becoming prolonged and more intense. She also complained to the school officials that she often had to drive Gabriel to school herself because the public school was unable to provide the transportation that it was supposed to provide. Gabriel's parents were not satisfied with the education that Gabriel was receiving, and they withdrew him from the public schools after the 1989-90 school year.

3. The Higashi School is a private residential school. Its students live at the school's residential facilities. The school also has day students. It specializes in the education of autistic children with a system developed in Japan. The system attempts to provide the autistic child with structure, and from that structure the child's daily living and social skills are developed. The Higashi School emphasizes the use of physical education, art, music, and academics to achieve its goals.

4. Since he was placed at Higashi, Gabriel's behavior has improved. He is less aggressive, and his tantrums are much less common.

5. Dr. Dennis Russo, Plaintiffs' autism expert, evaluated Gabriel in 1994, 1995, and 1996. In making his evaluation he also reviewed a previous evaluation done by the University of Miami in 1991 and another evaluation done by Dr. Ann Roberts in 1996.⁸

6. In 1994, after Gabriel had been placed at the Higashi School, Plaintiffs sent two requests for a due process hearing to the Department. Plaintiffs requested a hearing on whether Gabriel's IEPs were adequate, whether the public schools followed IDEA's procedural safeguards, and whether Gabriel's placement at the Higashi School was appropriate. The first request was sent on August 31, 1994, and the second was sent on October 28, 1994.⁹ The Department received, but did not respond to, the August 31, 1994, request.¹⁰ After Plaintiffs sent their second request, the Department responded and appointed a hearing officer for their case.¹¹ A hearing was scheduled on January 19, 1995, but was continued until February 27 and 28, 1995, at the request of Plaintiffs' attorney.¹² On February 23, 1995, the Department moved for a continuance of the hearing; the motion was granted and the hearing was continued until April 4 and 5, 1995.¹³ The hearing was subsequently rescheduled to April 25 to 28, 1995. By an order dated April 18, 1995, the hearing officer disqualified himself from the case without a reason.¹⁴ On April 25, 1995, the new hearing officer vacated the hearing date but did not set a new date.¹⁵ The officer did order the parties to submit legal briefs on the question of whether Plaintiffs' unilateral withdrawal of Gabriel from the public school system precluded them from seeking reimbursement for their subsequent educational expenses. No new hearing date was ever set for Plaintiffs. On October 18, 1995, they filed the present claim in this Court.

7. In response to this litigation, the Department developed a preliminary individualized educational program to educate Gabriel in Puerto Rico public schools.¹⁶ Under this plan, the Department would assign a case manager to Gabriel. This case manager would coordinate the educational services provided to him, assist his parents in becoming involved in his program, and keep the Department informed of his progress. Gabriel would be placed in one of three schools. The students at each one of the schools are primarily non-disabled, but each school has facilities for disabled children. Under the proposed plan, Gabriel would spend part of his day in classes with non-disabled students. The plan was developed by Maria Morales, the Assistant Secretary for Special Education in the Puerto Rico Department of Education; Dr. Nicolas Linares, the Department's autism expert; and Nydia Bou, a speech pathologist and the proposed case manager for Gabriel. Gabriel's parents did not participate in the development of the plan.

Plaintiffs seek reimbursement for their educational expenses of Gabriel after the 1989-90 school year. They claim that the Department violated the IDEA by failing to provide Gabriel with an appropriate public education in the 1988-89 and 1989-90 school years. They also make two claims of violations of the IDEA's procedural safeguards. First, they allege that during the time that Gabriel was placed in Puerto Rico public schools the Department did not comply with its duty to advise Plaintiffs of their rights under IDEA. Second, they allege that the Department failed to provide them with a due process hearing in 1994. Plaintiffs also seek a declaratory judgment that Gabriel requires a residential placement in order to receive a free appropriate public education ("FAPE"); that his present placement at the Boston Higashi School is appropriate; and that the Department is liable for his future educational costs until the Department is able to provide him with a FAPE. As an alternative to this declaratory relief, Plaintiffs seek a declaration that in order to provide Gabriel with a FAPE, the Department must provide him with a heightened level of educational services, including an extended school day, an extended school year, speech therapy, family therapy, family education, and respite care. Plaintiffs also seek an award of attorney's fees.

The Department contests Plaintiffs' request for reimbursement of past educational expenses. The Department also contests the appropriateness of Gabriel's placement at the Higashi School. The Department agrees that Gabriel requires a heightened level of educational services, and it claims that it has an individualized educational program for Gabriel that will provide him with a FAPE. Plaintiffs dispute the appropriateness of the educational program proposed by the Department.

APPLICABLE LAW

The IDEA provides state¹⁷ and local educational agencies with federal funding for the education of handicapped and disabled children. The parties have stipulated that the Puerto Rico Department of Education receives federal funding.¹⁸ In order to qualify for this finding, a state must have a policy to ensure that all disabled children have a right to a free appropriate public education. 20 U.S.C.A. § 1412(1); Amann v. Stow School System, 982 F.2d 644, 646 (1st Cir.1992). A FAPE consists of "special education and related services" that (1) have been provided at public expense and under public supervision and direction; (2) meet the standards of the state's educational agency; (3) include an appropriate preschool, elementary, or secondary school education in the state; and (4) are provided in conformity with the individualized education program required under section 1414(a)(5) of the IDEA. 20 U.S.C.A. § 1401(a)(18). A FAPE must guarantee a reasonable probability that the child will receive educational benefits with support services provided at public expense. Carter v. Florence County School Dist. Four, 950 F.2d 156, 160 (4th Cir.1991), aff'd 510 U.S. 7, 114...