Plainville Bd. of Educ. v. R.N.

PLAINVILLE BOARD OF EDUCATION, Plaintiff,

v.R.N., BY HIS PARENT AND NEXT FRIEND, MRS. H., Defendant.

CASE NO. 3:09-CV-241(RNC)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DATED: March 31, 2012

RULING AND ORDER

The Plainville Board of Education ("the Board") brings this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq., challenging the decision of an independent hearing officer ("IHO") that the Board failed to provide a free appropriate public education ("FAPE") to a student, R.N., as required by the IDEA, during the 2007-2008 and 2008-2009 school years, and that it must reimburse R.N.'s parent, Mrs. H., for the cost of his attendance at a private residential school during the 2008-2009 school year. Cross motions for summary judgment have been filed. For reasons that follow, I affirm the IHO's decision. The defendant's motion for summary judgment is therefore granted and the plaintiff's motion for summary judgment is denied.¹

Background

R.N.'s Educational History: 2003-2006

At all relevant times, R.N. was a public school student in Plainville, Connecticut. In November 2003, when R.N. was in second grade, his mother, Mrs. H., gave the Board the results of a private psychiatric evaluation diagnosing R.N. with childhood onset bipolar disorder. In February 2004, a Planning and Placement Team ("PPT") identified R.N. for special education and related services under the category of Emotional Disturbance. The PPT established an initial Individualized Education Program ("IEP") to address R.N.'s educational needs. See 20 U.S.C. § 1414(d) (2006). Even with this program, R.N. had trouble throughout the 2004-2005 school year, including one suspension and a stay in a psychiatric hospital.

In the fall of 2005, the PPT adjusted R.N.'s program by adding more services. Following a behavioral episode at school in December 2005, R.N. was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and bipolar disorder. Mrs. H. retained Dr. Steven Mattis, a neuropsychologist, to evaluate R.N. R.N's condition deteriorated between December 2005 and January 2006 leading Dr. Mattis to recommend that R.N. be placed in a therapeutic school until his condition stabilized. A doctor at Wheeler Clinic agreed. As a result, the PPT recommended a change of placement to a therapeutic day school.

In February 2006, Dr. Demitri Papolos, a child pyschiatrist, evaluated R.N. and identified his aggressive behavior in the school setting as a serious problem. Dr. Papolos cautioned that using restraint and seclusion to deal with R.N.'s problematic behavior could result in aggression due to greater fearfulness in the child and that R.N. should not be left alone in a timeout room because he could bang his head and injure himself.

In March 2006, R.N. was placed at the Northwest Village School ("NVS"), a therapeutic day school that is part of the Wheeler Clinic. In response to R.N.'s at times verbally and physically abusive behavior, NVS staff sometimes used "Level III interventions," including therapeutic holds and closed door time-outs. As R.N. adjusted to NVS, however, his behavior improved.

Throughout 2005 and 2006, the Board attempted to get a release from Mrs. H. to speak with R.N.'s private care providers. Mrs. H. granted limited releases, but indicated a preference to facilitate communication between the Board and the providers. She also declined the Board's request for an evaluation by Dr. Irene Abramovich.

2006-2007 School Year

R.N. spent the 2006-2007 school year at NVS, where his behavior continued to fluctuate. Mrs. H. complained about several disciplinary practices at NVS, including locking R.N. in a timeout room with concrete walls, even though he was known tobang his head, and forcing R.N. to clean up after himself if he urinated or vomited in the timeout room.

In January 2007, Mrs. H. transferred R.N.'s psychiatric care to Dr. Papolos. At the same time, R.N.'s triennial evaluation was concluded.² Psychological testing placed R.N.'s overall performance at the borderline range of intellectual functioning.

In April 2007, the PPT met to review the results of the triennial evaluation and revise the IEP as necessary. Mrs. H. requested an independent neuropsychological exam. The Board agreed to an independent exam, but Plainville's Director of Special Education, Maureen Schiffer, strongly objected to the testing on the basis that R.N. does not like to be tested and further testing would be harmful to him. Ms. Schiffer urged Mrs. H to reconsider her request for an independent evaluation.

In May 2007, the PPT conducted an annual review. The PPT agreed to change R.N.'s identified disability to Other Health Impaired, although the category of Serious Emotional Disturbance was believed to be more appropriate. The PPT found that R.N. had not mastered any of the goals or objectives listed in the IEP and that with regard to many of the goals and objectives only minimal progress had been made. The PPT noted that R.N. had variable attention and effort, was easily overwhelmed, and had poor workcompletion and engagement.

The IEP that resulted from the annual review called for small group or individualized instruction for all academics, small group instruction throughout the school day, and a behavioral management plan that included time out. The PPT planned to provide R.N. with extended school year ("ESY") services in the summer of 2007.

During that summer, the Board arranged for an evaluation of R.N. by Leanne Gmeindl, M.S., who administered a variety of academic tests. She concluded that a multisensory approach to learning would be best for R.N. Over the summer, Dr. Timothy Belliveau, a neuropsychologist, performed the independent evaluation previously requested by Mrs. H. In his September report, Dr. Belliveau concluded that R.N. had regressed in intellectual functioning and had an adjustment disorder. Dr. Belliveau found that while R.N. had made poor progress up to that time, he was capable of making significant academic progress.

2007-2008 School Year

R.N. began the 2007 school year at NVS at a new grade level. Although R.N. adjusted positively overall, he had problems with some of his new teacher's policies, including strictly enforced discipline for incomplete homework. On September 25, 2007, R.N. was sent to the emergency room when his behavior escalated. Mrs. H. believed that the new discipline system in R.N.'s classroomhad escalated his behavior, so she requested a change of placement. While Mrs. H. investigated placement options, R.N. received one to two hours per day of homebound instruction.

The PPT ultimately agreed to place R.N. at the Intensive Education Academy ("IEA"). In order to make sure that IEA would be an appropriate fit, IEA conducted a three week intake process, during which R.N. attended the school with his mother for about two hours per day.

On November 19, 2007, following an auditory processing evaluation and a review of Dr. Belliveau's full report, the PPT recommended that R.N. enroll in IEA full time. The PPT determined that IEA staff would use R.N.'s existing IEP (established in May 2007) and that the PPT would reconvene in January to revise the IEP.

On January 3, 2008, the PPT convened to review the IEP. R.N. had been hospitalized in December due to a psychiatric episode. In light of this recent hospitalization, the PPT recommended that R.N. return to school on a shortened academic day until he remained stable for five consecutive days. IEA indicated that further acts of physical aggression by R.N. would lead to discussion of another placement.

The PPT noted that R.N. required intensive direct instruction in a number of areas. It found that R.N. had not been exposed to grade level social studies and science forseveral years. R.N.'s progress was declining on the goals and objectives in his IEP, and he had not mastered any. Mrs. H. did not register an objection to R.N.'s programming prior to this meeting nor at the meeting itself.

At this time, the IEP provided for 30.75 school hours per week. However, from January 5 to May 13, 2008, per the PPT's decision, IEA did not instruct R.N. in science, social studies, or specials, and he was dismissed at 11:00 AM. His counseling was reduced to fifteen minutes and his services were reduced. He did not receive homebound instruction.

In March 2008, R.N. began taking Cynthroid for a thyroid deficiency. He was noted to be off task at school during this time. Attempts to return him to a full day schedule were not successful. He was hospitalized again in April for psychiatric issues. Despite these difficulties, Mrs. H. notified the Board that she wanted R.N. to continue at IEA for the 2008-2009 school year.

On May 14, 2008, the PPT revised R.N.'s programming to include a one-to-one paraprofessional, additional behavior tracking, and full days. He was performing below grade level in all areas. At this meeting, Mrs. H. presented letters from Dr. William Corson - R.N.'s treating psychiatrist - and Dr. Papolosrecommending residential placement.³

On June 5, 2008, R.N.'s behavior escalated at IEA and he struck two staff members. IEA suspended R.N. then discharged him due to safety concerns.⁴

At a PPT meeting on June 11, 2008, Mrs. H. was informed of IEA's action. The PPT discussed possible alternative placements. The Board proposed High Road School, starting with summer ESY programming. Mrs. H. disagreed with this recommendation because High Road, like NVS, used restraint and seclusion. Mrs. H. suggested residential placement, but the Board disagreed because they believed residential placement would be too restrictive. The Board sought to have R.N. evaluated by Dr. Abramovich, the Board's consulting psychiatrist. Dr. Abramovich believes residential programs are generally harmful and had never recommended one to the Board.⁵ Ultimately, Mrs. H. agreed tovisit High Road. The next scheduled PPT was postponed in order to give her time to...