J.W. v. Contoocook CV-00-247-M 08/24/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

J.W., by and through his parents and next friends, K. and M. W . , Plaintiffs

v. Civil No. 00-247-M Opinion No.

Contoocook Valley School District, Defendant

O R D E R

Pursuant to section 1415(i)(2) of the Individuals with

Disabilities Education Act ("IDEA"),

et seq.,

J.W., by his parents, appeals an educational hearing officer's

decision in favor of the Contoocook Valley School District.

Currently before the court are the parties respective decision

memoranda and objections (document nos. 15, 20, 22, & 23), and

plaintiffs' reply to defendant's objection (document no. 31).

Neither party requested a hearing to present additional evidence.

Statutory Framework and Standard of Review

The IDEA guarantees a free and appropriate public education

("RAPE") to all children. In return for federal funding, state

educational agencies establish procedures to identify and evaluate disabled students in need of special education services.

(d), 1412. For each identified child, a team is

convened, consisting of the child's parents, teachers and a

representative of the educational agency ("the Team"). The Team

develops an individual education plan ("IEP") for the child. An

IEP consists of "a written statement for each child with a

disability that is developed, reviewed, and revised in accordance

with section 1414(d) of [the IDEA]."

(11); see

(d)(1)(B). An IEP must be "reasonably calculated

to enable the child to receive educational benefit," B d . of

Educ. v. Rowley,

(1982), and "custom tailored

to address the [disabled] child's 'unique needs,'" Lenn v.

Portland Sch. Comm.,

(1st Cir. 1993) (citing

(c)). IEP s are reviewed at least annually,

(d)(4), and any identified child must be reevaluated

at least triennially, i d . § 1414 (a) (2) .

If a parent believes that a proposed IEP will not provide an

appropriate education, or that the procedures established by the

IDEA have not been properly followed in developing the IEP, he or

she may request an administrative due process hearing to review

the matter.

. In New Hampshire, only one level

2 of administrative review exists - the due process hearing. If

either party is unsatisfied with an administrative hearing

officer's ruling, the IDEA permits a civil suit to be brought "in

any State court of competent jurisdiction or in a district court

of the United States without regard to the amount in controversy"

to obtain judicial review of the administrative resolution.

(1)(2). In reviewing an administrative hearing

officer's decision,

the court - (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (ill) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropreiate.

1 5 (i)(2)(B).

The district court's review under the IDEA has been

described as "one of involved oversight." Lenn.

(citing Roland M. v. Concord Sch. Comm..

(1st

Cir. 1990)). The applicable standard isan intermediate one

under which the district court must exercise independent

judgment, but, at the same time, accord "due weight" to the

administrative proceedings. See Rowley,

; Lenn,

. The exact degree of "due weight" is left to

3 the court's discretion, however, any deviation from the

administrative findings should be explained. See Lenn,

.

District court review is focused on two questions: (1) did

the parties comply with IDEA procedures; and (2) is the IEP

developed through those procedures reasonably calculated to

enable the disabled child to receive educational benefits? See,

e.g., Roland M . ,

(1st Cir. 1990) . The burden

of proof rests with the party challenging the administrative

decision. See Hampton Sch. Dist. v. Dobrowolski,

(1st Cir. 1992) ("The burden of proof at trial was on the school

district as the party challenging the hearing officer's

decision."); Roland M . ,

("We keep in mind that,

in cases arising under the [IDEA], the burden rests with the

complaining party to prove that the agency's decision was

w ro n g .").

Failure to comply with every procedural requirement does not

automatically render an IEP invalid. If the IEP is substantively

appropriate, procedural errors may be overlooked. See Roland M . ,

("Before an IEP is set aside, there must be some

rational basis to believe that procedural inadequacies

4 compromised the pupil's right to an appropriate education,

seriously hampered the parents' opportunity to participate in the

formulation process, or caused a deprivation of educational

benefit."). "The ultimate question for a court under the [IDEA]

is whether a proposed IEP is adequate and appropriate for a

particular child at a given point in time." I d . at 990 (internal

quotation marks and citations omitted).

The IDEA does not require that "the benefit conferred . . .

[by the IEP] reach the highest attainable level or even the level

needed to maximize the child's potential." Lenn,

; see Rowley,

. Instead, the IDEA "emphasizes

an appropriate, rather than an ideal, education; it requires an

adequate, rather than an optimal, IEP." Lenn,

.

Factual Background1

J.W. was born on June 24, 1987. He has been educated in and

out of the Contoocook Valley School District ("ConVal") since the

spring of 1993, when he was enrolled in kindergarten at

1The factual background is developed from the parties' Joint Statement of Material Facts, as supplemented from the record where necessary to clarify ambiguities (i.e., school year, date of testing, etc.). Additional record evidence will be identified as needed in the Discussion section.

5 Peterborough Elementary School ("PES"). J.W. was first

identified as a disabled child in need of special educational

services in June of 1995, at the end of his first grade year. He

was classified as learning disabled ("LD") due to a discrepancy

between his ability and his achievement in the areas of written

expression, basic reading skills, and mathematics calculation.2

That classification was later expanded to include a speech and

language component, and remains J.W.'s classification ("coding")

today. In addition to his current educational disability coding,

J.W. has a history of attentional and emotional difficulties,

including low self-esteem, poor impulse control, difficulty with

transitions, avoidance of responsibility for his behavior, and

oppositional-defiant disorder that causes him to react negatively

to confrontational situations.

2J .W . had previously been referred for an educational evaluation while attending the PES Readiness program during the 1993-94 school year. A partial evaluation was completed by the end of the 1993-94 school year, and a full evaluation completed during the beginning of J.W.'s first grade year (1994-95). Both evaluations concluded that although J.W. demonstrated some attention weaknesses, which were more pronounced in formal testing situations, his educational performance was not significantly affected and, therefore, it was unnecessary to identify him as disabled. J.W.'s parents took issue with those results, but did not pursue any form of appeal.

6 Following his first grade year, J.W.'s parents removed him

from public school, and enrolled him in the Well School, where he

completed the second and third grades. The Well School is a

small private school in Peterborough, New Hampshire. It is not

certified or approved as a special education school. J.W.'s

parents also arranged for him to be tutored privately, but did

not request special educational services until December of 1996

(third grade), when J.W.'s first IEP was developed. J.W. made

little academic progress while attending the Well School.

J.W. returned to ConVal as a fourth grade student at Hancock

Elementary School ("Hancock") in the fall of 1997, where he

demonstrated progress for the first time. A reevaluation

planning meeting was convened on September 9, 1997, at which time

J.W.'s parents informed ConVal that J.W. had been diagnosed as

suffering from Attention Deficit Disorder ("ADD"). ConVal

requested a copy of the report of that diagnosis and agreed to do

additional informal assessments and observations.

During his first two months at Hancock, J.W. was evaluated

by a ConVal special education teacher and diagnostician who

concluded that J.W.'s attention weaknesses were impacting his

academic performance, and "strongly recommended that [his]

7 parents seek out a physician trained to diagnose and treat

Attention Deficit Disorder." She also recommended maintaining

J.W.'s LD code, that consideration be given to adding a speech

and language component, and that J.W. be allowed extra time to

complete standardized tests. J.W.'s evaluation team adopted

those recommendations and prepared an IEP for J.W.'s fourth grade

year, which his parents approved on November 18, 1997.

When the team met again on January 29, 1998, K.W., J.W.'s

mother, remarked that J.W.'s transition to Hancock had been "OK,

but not great," and expressed concern over the amount of time he

spent in large groups. School records indicate he was in small

groups or receiving one-on-one instruction for reading, writing,

and math, and that his teachers reported progress in all areas.

J.W.'s parents also informed the team that J.W. would begin

taking medication for his ADD, and that they were considering

private school for the following school year. At the end of the

meeting, the Team agreed J.W. would continue with the IEP

approved by his parents in November.

Two weeks later, at K.W.'s request, another meeting was held

and J.W.'s parents informed ConVal that because they were

concerned about J.W.'s behavior at home, and because they thought J.W. needed more individual instruction, they had decided to re­

enroll him at the Well School, which they did the following day.

Despite the parents' expressed concerns about individual

instruction, a report prepared upon J.W.'s departure indicates

that he had progressed in all areas during the six months he was

at Hancock, particularly reading and spelling, in which he

advanced by approximately a year.

During the summer of 1998, J.W. was hospitalized twice. On

July 9, 1998, J.W. was treated at the Cheshire Medical Center

("Cheshire") for suicidal ideation, homicidal threats towards his

family and his (then) treating psychiatrist. Dr. Joseph Lebenzon,

and verbally abusive behavior. Hospital records reveal that Dr.

Lebenzon diagnosed J.W. as suffering from multiple psychiatric

disorders.3 Dr. Lebenzon also identified J.W.'s parents'

inability to set and enforce limits as contributing to J.W.'s

problems, and interfering with his treatment. J.W.'s mother

removed him from the hospital against medical advice on July 16,

because she had promised him he could come home after seven days

3 The following clinical diagnoses were listed on J.W.'s discharge report: major depressive disorder; separation anxiety disorder, early onset; generalized anxiety disorder; obsessive compulsive disorder; mathematics disorder; parent-child relational problem; and sibling relational problem.

9 and was concerned about the effect a broken promise would have on

their relationship and his ability to trust her in the future.

Two months later, J.W. was hospitalized a second time. On

September 16, 1998, J.W. was admitted to the Charter Behavioral

Health System of Brookside in Nashua, New Hampshire ("Charter-

Brookside"). By that time, J.W. had stopped seeing Dr. Lebenzon

and was being treated by Dr. Robert Kaladish (his current

treating psychiatrist). Charter-Brookside records show that

J.W.'s second hospitalization was precipitated by a series of

events, including: J.W. asking his mother if she wanted him to

kill himself; threatening his family; striking his mother with a

ski pole; and "accidentally" opening the car door while the car

was moving at approximately fifty miles per hour. The records

also disclose that J.W. told a physician he had not yet started

school that year, on Dr. Kaladish's advice, because he needed

time to "get [his] mind off the Cheshire thing and relax." He

was discharged from Charter-Brookside on September 23, 1998.

Following his discharge from Charter-Brookside, J.W. was

enrolled at the Mountain Shadows School (another small private

school) in a fifth grade class with eight other students. The

school year was already in progress when J.W. enrolled, and, on

10 Dr. Kaladish's recommendation, he only attended school part-time.

Like the Well School, Mountain Shadows is not certified or

approved as a special needs school.

On October 30, 1998, M.W., J.W.'s father, contacted ConVal,

raising an issue about J.W.'s coding. Specifically, J.W.'s

parents believed he should be identified as seriously emotionally

disturbed ("SED"). A new team was convened4 and, between

November 9 and December 14, 1998, three meetings were held to

discuss the parents' concerns and to begin investigating the

propriety of adding codes. The Team decided additional testing

was unnecessary because K.W. said she had reports for five

psychological evaluations of J.W. performed during the previous

six months, and they did not want to subject J.W. to additional

testing. Instead, the Team agreed to review the reports and to

have Dr. David Maleski, a ConVal school psychologist, observe

J.W. at Mountain Shadows and consult with Dr. Kaladish.

By December 14, the Team was unable to make a decision about

J.W.'s coding because Dr. Maleski had been unable to observe J.W.

at Mountain Shadows or speak with Dr. Kaladish. J.W. was absent

on the two occasions Dr. Maleski attempted to observe him, and

4J.W.'s elementary school team was no longer appropriate because he was now considered a middle school student.

11 D r s . Maleski and Kaladish could not connect. The team agreed to

reconvene after Dr. Maleski had accomplished his two tasks, but,

before he could. Mountain Shadows asked J.W. not to return

following the winter holidays because they were unable to handle

his behavior or address his needs.

On January 11, 1999, J.W. re-enrolled in the ConVal School

District as a fifth grader at Great Brook Middle School ("Great

Brook"). He was in a class with twenty other students, taught by

Janet Pietrovito, a certified special education teacher, who was

assisted by a full-time aide, also a state certified teacher.

Although a new IEP had not been developed yet due to the need to

investigate the coding issue, J.W.'s teacher began implementing

classroom modifications to help J.W. focus and feel comfortable

in her class. J.W. also met with an after-school tutor.

On January 18, 1999, K.W. sent a letter to ConVal's director

of special education describing J.W.'s medical history and other

concerns. She stated that she and her husband would be visiting

residential schools regarding a possible future placement of J.W.

Apparently not aware that Dr. Maleski observed J.W. for an hour

in the classroom on January 21, J.W.'s parents sent another

letter on January 23, this time to Dr. Maleski, complaining that

12 J.W.'s evaluation was not proceeding in a timely fashion, and

demanding that Great Brook "act without further delay." As of

January 23, J.W. had only been in attendance at Great Brook for

four days.5

The Team met on February 1 and decided not to add an SED

code. They agreed J.W. suffered from clinically diagnosed

emotional and attention problems that were seen in the classroom

but, with the supports in place, those difficulties were not

interfering with his educational performance. J.W.'s parents,

who were both present at the meeting, concurred in the decision.

But, three days later they notified ConVal that they objected to

the decision, and sought an appeal while continuing to work with

ConVal. They later abandoned the appeal.

The Team revisited the coding issue on March 26 and again

declined to add an SED code. Dr. Maleski, who had observed J.W.

in class for another hour on March 18, 1999, reported that he

still saw no signs of J.W.'s emotional issues interfering with

his educational performance. J.W.'s teacher also reported that

he was able to work more independently than he had been when he

5According to attendance records, J.W. was absent one day between January 11 and 23, and school was closed on five days - three for snow days, one for a holiday, and one for a teacher's conference.

13 first arrived at Great Brook, and that when J.W. got upset, he

was able to pull himself together if given time to do so. ConVal

concluded that J.W. was testing the school's disciplinary system

by acting out to see if the prescribed punishment would be

imposed. When he realized it would, he generally got himself

under control and followed the process. J.W.'s parents signed

the evaluation team report demonstrating their approval of the

decision.

On March 28, 1999, upon returning from a family ski trip,

J.W. had trouble settling down, even after taking his

medications. K.W. took him to the emergency room at Monadnock

Community Hospital ("Monadnock") after J.W. told her he wanted to

kill himself. He was released the same evening with instructions

to follow up with Dr. Kaladish the next day at a previously

scheduled appointment, and not to miss school. By letter dated

March 29, 1999, Dr. Kaladish advised the school that J.W. should

be placed on an abbreviated school schedule (no more than four

hours a day), and that he needed more support and supervision

during unstructured times. The next day, J.W. began attending

school only in the morning, returning late in the afternoon two

14 days a week for tutoring. Great Brook staff noticed a marked

decline in J.W.'s behavior following the schedule change.

At a team meeting on April 7, concerns about J.W.'s

deteriorating behavior were discussed, and M.W. said J.W. would

be "back in class next week." J.W.'s IEP for the remainder of

the year was discussed and K.W. requested that ConVal provide

J.W. with an extended school year ("ESY") or summer school

program. She said he would be harmed without one, but there is

no evidence about what "harm" she anticipated. J.W. told the

team that he did not wish to take part in an ESY program.

Determining that, based on academic issues, J.W. had not

previously experienced regression over the summer, the team

decided ESY programming was unnecessary.

J.W. was suspended for two days on April 9 (a Friday) after

he was verbally abusive and physically aggressive towards

students and staff, including Great Brook's DARE officer, and

destroyed school property. A meeting was set for April 14 (the

day J.W. was scheduled to return) to discuss J.W.'s suspension

and how to control his behavior, as well as to continue

development of an IEP for the remainder of the school year. Dr.

Kaladish attended the April 14 meeting and recommended counseling

15 support be added to J.W.'s IEP, to which the Team agreed. A

weekly relaxation group was also added at the parents' request,

however, ConVal declined to provide a full-time one-to-one aide

because J.W. had access to one-to-one help whenever he needed it.

Dr. Kaladish also informed the team that J.W. needed the

reduced day because he could tolerate a six hour day but then he

would "decompensate" at home. He did not advise the Team that he

was concerned about J.W. participating in the school-wide

disciplinary system, or his returning to Great Brook, although

K.W. said J.W. might enroll in Mountain Shadows the next day.

J.W. never returned to Great Brook.

In a letter addressed to J.W.'s parents, dated April 26,

1999, hand delivered to ConVal on April 29, 1999, Dr. Kaladish

recommended J.W. not return to Great Brook until further planned

evaluations were completed and he was able to review and discuss

the clinical implications with "other identified professionals."

No reason was given for J.W.'s removal from Great Brook. ConVal

also received a written request from plaintiffs' counsel for

tutorial services at ConVal expense in the interim.

The same day the letters were hand delivered, ConVal sent

J.W.'s parents a proposed IEP which had been developed through

16 the meetings held since February ("the April IEP"). Plaintiffs

rejected the April IEP at the next IEP meeting, on May 7, and

renewed their request for private tutorial services at ConVal

expense. ConVal declined.

At his parents' expense, J.W. began attending David Parker's

Tutoring and Instructional Services, Inc., in Concord, New

Hampshire ("Parker Tutoring"), in early May of 1999. His

attendance at Parker Tutoring was sporadic in May and June of

1999, he was regularly tardy during the first month of the 1999-

2000 school year, and he continued to have behavioral problems

both at home and at Parker Tutoring. He was removed from a small

group setting and worked with a tutor individually in an

otherwise empty classroom. Parker Tutoring employs a discipline

system based on allowing a child to calm down and then discuss

his or her behavior with an adult.

On June 5, J.W. was evaluated by Dr. Harvey Botman, Ph.D.,

Chief of Assessment Services at Wediko Children's Services in

Boston, Massachusetts. Dr. Botman concluded that J.W.

demonstrated many of the clinical diagnoses previously

identified, in addition to a language based learning disability.

He opined that J.W. was eligible for the SED, otherwise health

17 impaired ("OHI"), and multiple handicapped ("MH") codes, and made

several recommendations for services. In general, he recommended

a "specialized day-program that offers both direct instruction to

low-functioning students and intensive therapeutic services to

emotionally-disturbed students." Dr. Botman also made specific

recommendations that included setting limits, behavior and stress

management, preferential seating, help starting assignments,

frequent check-ins during individual work, and social training.

The Team received a copy of Dr. Botman's final evaluation at

a July 15, 1999, IEP meeting, when J.W.'s 1999-2000 IEP and his

parents' renewed request for ESY programming were scheduled to be

discussed. Plaintiffs' counsel also renewed the request to

reassess J.W.'s coding. His parents wanted an SED code, an OHI

code based on J.W.'s ADD, and, due to the proposed additional

codings, an MH code. ConVal again found it unnecessary to add

the additional codes because, to the extent J.W.'s attention and

emotional issues surfaced in the classroom, they were already

being adequately addressed, or were not interfering with his

educational performance. ESY programming was also denied because

"his test scores indicated little to no regression in . . .

18 academic performance over the past year despite inconsistent

school attendance."

The parties continued to try to work together to develop an

IEP for the upcoming school year. On July 2 9 ,plaintiffs' attorney submitted a list of concerns J.W.'s parents had

following the previous meeting. ConVal agreed to make some

changes to the draft IEP based on the parents' concerns, but

recommended a full day of school because members of the Team

believed anything less would be insufficient to provide J.W. with

the array of services he needed (and his parents requested), and

would be inappropriate given the decline in J.W.'s behavior when

his school day was previously reduced. ConVal also recommended

placement in Great Brook's Alternative Learning Team Program

("ALT Program"), a self-contained, highly structured program,

team taught by Deborah Parker (a special education teacher and

J.W.'s case worker at Great Brook) and a special education

certified aide. The ALT Program incorporates an array of

services including life skills, academic and emotional support,

peer mediation and conflict resolution, communications skills,

and individual attention. J.W.'s parents did not agree to the

19 proposals but agreed to meet again to continue discussing the IEP

and placement. Another meeting was scheduled for August 6 , 1999. Two days later, ConVal sent J.W.'s parents written prior

notice proposing adoption of the draft IEP and recommendations

discussed at the July 29 meeting. J.W.'s parents rejected the

proposal through counsel on August 3 and requested a due process

hearing to appeal ConVal's refusal to recode J.W. as SED, OHI,

and MH, the proposed IEP and placement following J.W.'s April 9

suspension, and ConVal's denial of an ESY program. The parties

continued to try to work things out, requesting several

continuances of the due process hearing. During that time,

ConVal received letter-reports from Dr. Kaladish expressing his

concerns about the Great Brook programs and placement, as well as

his own recommendations. The letter-reports often arrived

indirectly, provided little explanation for the recommendations,

and were sometimes in the form of responses to specific

hypothetical scenarios posed by plaintiffs' counsel. J.W. was

also evaluated (again) by another psychologist. Dr. Melissa

Farrall, who found J.W. demonstrated a significant speech-

language impairment and recommended many of the same services as

Dr. Botman.

20 At the hearing officer's request, a final IEP and placement

meeting was held on October 25, 1999. ConVal presented an IEP

substantially similar to the IEP proposed in July ("October

IEP"), incorporating many of Dr. Botman's recommendations, and

recommending a full day in the Great Brook ALT Program. J.W.'s

parents' rejected this proposal. A due process hearing was held

over four days in November of 1999 to address the following

issues :

(1) Whether J.W. should be coded OH, SED, and MH, in addition to the current specific learning disability and speech language impaired codes;

(2) Whether the April IEP was appropriate;

(3) Whether the October IEP was appropriate;

(4) Whether J.W.'s placement in ConVal's ALT Program at Great Brook would provide J.W. with an appropriate education in the least restrictive environment; and

(5) Whether ConVal was correct in deciding J.W. did not require ESY programming.

Parker Tutoring is J.W.'s current educational placement. As

of the November 1999 hearing, J.W. was attending the Parker

Tutoring Program for three hours a day. He also participates in

an outdoor self-esteem program. After a transition period, J.W.

is showing progress at Parker Tutoring and at home. His father

testified that he and his wife have been enforcing a behavioral

21 program at home that allows a cooling-off period and focuses on

discussing consequences and possible causes of behavior. He also

testified that he has learned to be less confrontational with

J.W. in reaction to inappropriate behavior.

The hearing officer's final order issued on January 24,

2000. The order included findings of fact, credibility

determinations, and conclusions of law ("Final Order"). She

found all of ConVal's witnesses credible on issues relevant to

her decision. See Final Order at 31-32. While acknowledging Dr.

Kaladish's concern for J.W., and crediting his clinical

diagnoses, the hearing officer gave "little credence to his

testimony regarding the appropriateness of the Great Brook School

program, the Mountain Shadows School or David Parker's

program[.]" I d . at 32-33. Her credibility finding was based on

the fact that Dr. Kaladish never visited any of the programs,

admittedly knew nothing about the ALT Program, appeared to be

trying "to keep the door open for possible residential care for

[J.W.]," and indicated in clinical notes that the professionals

retained by J.W.'s parents "were to work in tandem to provide a

united front on [J.W.'s] needs for the purpose of [the] hearing."

I d . at 32. The hearing officer also found that Dr. Kaladish's

22 "testimony that he was alarmed at the level of counseling

services offered by [ConVal] as being grossly inadequate is

discredited as there is no persuasive evidence that he suggested

to the IEP team on either occasion . . . he met with them, that

[J.W.] needed more."

She also noted her belief in ConVal

testimony that Dr. Kaladish was adversarial during the IEP

meetings, "seeking to blame the school for [J.W.'s] problems."

The hearing officer also discredited the testimony of K.W.

and M.W., concluding that although they were both acting in what

they perceived to be the best interests of their son, they "to

some extent have 'set up' [ConVal] in an effort to get public

funding for a private need." Final Order at 33. She also found

K.W. unable to directly answer any question, and thus of little

help.

The hearing officer's twelve separate conclusions of law

were all in ConVal's favor. While she did find that some of the

IEP goals were not measurable, nor properly linked to the general

curriculum, she concluded that there was no substantive violation

because "these inadequacies have not and will not compromise

[J.W.'s] right to an appropriate education, seriously hampered

23 Parents' opportunity to participate in the formulation process,

or caused a deprivation of educational benefits." Final Order at

35. She also found that the October IEP6 adequately addressed

J.W.'s needs, including his emotional and attention issues, that

Great Brook's ALT Program was capable of providing the necessary

services, and ESY programming was not necessary. Because she

concluded the April and October IEPs were appropriate, she denied

plaintiffs' request for reimbursement for J.W.'s private

placements.

Discussion

Plaintiffs characterize the dispute between the parties as

essentially medical — i.e., J.W.'s inability to respond to the

IEPs and proposed placement — and contend the hearing officer

improperly discredited Dr. Kaladish's medical opinions. Their

complaints fall into six areas: (1) coding; (2) credibility; (3)

propriety of Great Brook's disciplinary system; (4) potential

harm to J.W. occasioned by the proposed placement; (5) ESY

6Plaintiffs' challenges to the April IEP were limited to the goals and description of how J.W.'s needs related to the general curriculum.

24 programming; and (6) reimbursement for J.W.'s private placements

since leaving Great Brook.

Coding

Plaintiffs contend the hearing officer erred in finding "LD

with a speech-language component" to be J.W.'s primary

educational disability, and in declining to identify him as SED,

OHI, and/or MH. The plea for additional codes stems from

plaintiffs' disagreement with ConVal regarding the role J.W.'s

emotional and attention problems play in his learning process.

The hearing officer agreed with ConVal that although J.W.'s

emotional and attention problems did manifest themselves in

school, they were not interfering with his ability to learn.

Accordingly, she ruled that J.W. did not qualify for the desired

codes. David Parker's testimony and Dr. Farrall's evaluation

both support her conclusion.

More importantly, however, the hearing officer found "the

'code war' to be unhelpful. If there were components of [J.W.'s]

IEP that Parents could demonstrate do not exist and would not

exist but for the code, this debate would have more meaning."

25 Final Order at 41. The court agrees completely with the hearing

officer's determination.

The IDEA does not "require[] that children be classified by

their disability so long as each child who has a disability

listed in section 1401 of this title and who, by reason of that

disability, needs special education and related services is

regarded as a child with a disability under [the IDEA]."7

(3) (B); see Heather S. v. Wisconsin,

(7th Cir. 1997) ("The IDEA charges the school with

developing an appropriate education, not with coming up with a

proper label with which to describe [the child's] multiple

disabilities");

(d) (restating

(3) (B)) . There is no question that J.W. is "regarded as a

child with a disability under [the IDEA]," and everybody

(including plaintiffs' evaluators and David Parker) agrees that

Parenthetically, state law establishes a duty to report the "number of students in each disability category," apparently implicating some need to "classify children by their disability." See N.H. Rev. Stat. Ann. (RSA) ch. 186-C:3-a (Il-a) . Plaintiffs do not address that duty, and, in any event, there is no evidence to suggest that that administrative requirement has any bearing on the propriety of the lEPs proposed for J.W., or that plaintiffs would have standing to raise any related claim. Accordingly, the state's potential administrative duty does not affect this court's analysis of the issues presented.

26 he has a specific learning disability with a speech and language

component.

So, the real question is not whether J.W. is eligible for

SED, OKI, and/or MD codes, but whether his emotional and

attention problems cause learning difficulties, requiring

services not being delivered by or not available in ConVal, thus

constituting unique needs not addressed by the lEPs. See Town of

Burlington v. Dept, of Educ.,

, 793 (1st Cir. 1984),

aff'd by

(1985) (requiring understanding of nature

of learning difficulties); see also Roland M . ,

.

(noting that real question is adequacy, not procedure).8

8 Plaintiffs suggest that ConVal should have adopted Dr. Botman's conclusion that J.W. was eligible for SED, OKI, and MD codes because ConVal "did not perform their own evaluations." Plaintiffs' argument ignores the process and requirements dictated by both the IDEA and the relevant state regulations. In addition to evaluations like the formal tests performed by Dr. Botman, the IDEA requires review of "current classroom-based assessments and observations, and teacher and related services providers observation." See 20 U.S.C. 1414 (c) (1) (A) . Moreover, while Dr. Botman was qualified to conduct the tests, he was not part of J.W.'s Team and, therefore, not the proper party to determine whether J.W.'s emotional and attention problems constitute educational disabilities. See N.H. Code Admin. R. Ed 1107.05(d) ("Qualified examiners shall not determine the educational disability of any student. Determination of educational disabilities shall be made only by the special education evaluation team." (emphasis added)).

27 The hearing officer ruled that J.W.'s emotional and

attention problems are unique needs, even if they do not rise to

the level of educational disabilities. But, she also found that

the classroom modifications outlined in the April and October

lEPs implicitly recognize that J.W. needs more attention and

positive support than some children, as well as specific

attention to behavioral and stress management. The record amply

supports the hearing officer's findings.

Plaintiffs also say, however, that the proposed lEPs are not

enough because, due to J.W.'s emotional and attention problems.

Great Brook's disciplinary system, a full day of school, and the

ALT Program at Great Brook, are inappropriate. Each of these

issues will be discussed in turn. However, because plaintiffs'

arguments are almost completely dependant upon Dr. Kaladish's

testimony, and, to some extent the parents', the credibility

issue must be addressed first.

Credibility

A district court should give due weight to a hearing

officer's credibility findings "unless the non-testimonial,

extrinsic evidence in the record would justify a contrary

28 conclusion or unless the record read in its entirety would compel

a contrary conclusion." See Carlisle Area Sch. v. Scott P . ,

, 529-30 (3d Cir. 1995). Neither situation is present in

this case.

1. D r . Kaladish

Plaintiffs accuse the hearing officer of "disregard[ing] Dr.

Kaladish's clinical findings and recommendation about his patient

and mak[ing] different clinical findings." See J.W.'s decision

memorandum at 14. They claim "[t]here is no other, current

medical or psychiatric testimony in the record but Dr.

Kaladish's. His opinions find support in the psychiatric and

psychological records. They are entitled to more weight than was

given them by the hearing officer." Id.

Plaintiffs are incorrect. The hearing officer plainly did

not "disregard Dr. Kaladish's clinical findings." In fact, she,

like ConVal, wholly accepted his clinical findings regarding the

existence and nature of J.W.'s emotional disorders. See Final

Order at 32. She "[gave] little credence to his testimony

regarding the appropriateness of the Great Brook School program,

the Mountain Shadows School, or David Parker's program," because

29 she determined that his testimony was influenced by inappropriate

factors, including a desire to "keep the door open for

residential care" and to "present a united front." She also

accepted the testimony of ConVal witnesses that Dr. Kaladish

seemed to assume the role of advocacy, seeking to blame ConVal

for J.W.'s problems, and found Dr. Kaladish's opinions to be

inadequately supported because he never observed J.W. at Great

Brook, never discussed J.W.'s performance or behavior with Great

Brook personnel who actually observed it, and was uninformed

regarding J.W.'s programs and the supports in place for him. In

other words, she "disregarded" his opinions concerning

appropriate ways to address J.W.'s educational problems, not his

medical opinions regarding J.W.'s medical problems. Neither the

hearing transcript nor the six binders of exhibits, support

plaintiffs' challenge; the court accepts the hearing officer's

credibility findings.

Plaintiffs characterize Dr. Kaladish's opinions as "medical

evidence," and heavily rely on it because they view J.W.'s

problems as primarily medical. Dr. Kaladish is a psychiatrist,

and therefore qualifies as a medical expert. But, plaintiffs'

reliance on the absence of any competing medical or psychiatric

30 testimony is unpersuasive. Although plaintiffs are correct that

no other medical doctor testified at the hearing, and that there

is no medical evidence to contradict Dr. Kaladish since the March

28 Monadnock emergency room visit, earlier medical evidence

exists in the form of another psychiatrist's opinion contained in

hospital records. See Fed. R. Evid. 803(6) (allowing medical

records, including opinions, to be admitted as evidence).

Furthermore, the record is replete with observational evidence by

J.W.'s teacher, the Great Brook principal, and the ConVal school

psychologist (all of whom have extensive professional experience

in serving educationally disabled children), all of which

supports different opinions than those held by Dr. Kaladish.

Moreover, as the hearing officer noted, the educational

recommendations of plaintiffs' independent evaluators, Drs.

Botman and Farrall, are consistent with the proposed lEPs.

In the end, as discussed infra, in most of the relevant

areas, the evidence, both medical and nonmedical, substantially

contradicts Dr. Kaladish's testimony. All of these factors, in

addition to the fact that the hearing officer had a better

vantage point, and particular expertise, counsel against

31 upsetting her decision to afford Dr. Kaladish's testimony, beyond

his clinical diagnoses, little weight.

2. K.W. & M.W.

The testimony of K.W. and M.W. is likewise problematic. The

hearing officer described K.W. as being unable to directly answer

questions, and the record supports that conclusion. There can be

little doubt that J.W.'s parents have always vigorously pursued

the best possible education and medical treatment for J.W., which

is admirable. But the IDEA does not guarantee the best possible

education; it guarantees an appropriate education. See Lenn,

. ConVal's educational proposals fit well within the

IDEA'S mandate.

Propriety of the Disciplinary System

Great Brook's school-wide disciplinary system employs a

"positive approach" in addressing inappropriate behavior. A

misbehaving child is first given a warning; if the behavior

continues, the child completes a "think sheet" in the classroom;

and if the behavior still continues, regardless of the severity,

the child is sent to the principal's office to complete a "pink

32 sheet." The child is required to discuss the reasons for his

behavior, the impact of the behavior on himself and others, and

means by which inappropriate behavior might be controlled in the

future.

The system also incorporates the value of praise. If a

child does something commendable, he is sent to the principal's

office to receive a "white card," which can be entered into a

drawing for student of the week.

Relying on Dr. Kaladish, plaintiffs argue that the school-

wide discipline system, explicitly incorporated in the October

IEP, is inappropriate for J.W. The hearing officer dismissed

plaintiffs' complaint since it challenged the choice of

methodology for controlling behavior, noting that "[t]he fact

that they do not reflect Parents' wishes, does not make them

improper," so long as the child was provided a FAPE. Final Order

at 47; see Lenn,

. She rejected the notion that

ConVal's disciplinary system operated to deny a free and

appropriate education to J.W., finding that plaintiffs' position

"seemed to strictly rely on numbers . . . rather than reviewing

(1) the underpinnings of the disciplinary program (2) the

specifics of each incident and (3) the overall effectiveness of

33 the method." Final Order at 48. The hearing officer's

conclusions are also supported by: Dr. Botman's recommendation

that a behavior management program be included in any IEP for

J.W. that incorporated "self-talk" and understanding the

precursors and consequences of behavior; M.W.'s testimony that

J.W.'s behavior improved through a similar program used at home;

David Parker's testimony describing a similar disciplinary

process used at Parker Tutoring; and Great Brook's observations

that J.W. was responding to the program before his schedule was

reduced. J.W.'s written responses on the pink slips support

ConVal's observations, and further undermine plaintiffs' position

that the process employed would undermine J.W.'s ability to

benefit from the education provided. Accordingly, the court

finds the hearing officer's determination that Great Brook's

disciplinary system is appropriate for J.W. to be fully supported

by the record and not subject to modification.

Potential Harm of Recommended Placement

ConVal recommended that J.W. attend school for a full day

under both lEPs. In the October IEP, ConVal recommended that

J.W. participate in the ALT Program. Plaintiffs contend both of

34 those recommendations are potentially harmful to J.W. and, thus,

constitute inappropriate placements.

1. Full School Day

Plaintiffs claim J.W. cannot attend a full day of school due

to his emotional difficulties - the related stress apparently

causes him to "decompensate" at home. The hearing officer

relieved ConVal of any responsibility for J.W.'s behavior at home

that did not have a corresponding infraction at school.

Plaintiffs object to that approach, but, their objection is based

on a faulty premise. In their complaint, plaintiffs alleged

"[t]hat the Hearing Officer erred, as a matter of law, when she

concluded that the School District was not legally responsible,

under the IDEA, for the effect the School District's educational

programs and placements would have on J.W.'s emotional well being

and/or his emotional functioning in his home or outside of

school." Complaint at 15-16. The hearing officer did not make

such a finding. On the contrary, while she did find that ConVal

was not legally responsible for J.W.'s behavior at home, see

Final Order at 57, she also stated, in connection with a related

issue, that she was "unpersuaded that the nature of the public

35 school offerings in any way exacerbated [J.W.'s] emotional

problems," see i d . at 61. The record supports the hearing

officer's decision.

J.W.'s history of violent, out-of-control behavior at home

predates his enrollment at Great Brook, including while he was

attending Mountain Shadows on a reduced schedule and during

summer vacation (his hospitalizations at Cheshire and Charter-

Brookside were based on out-of-control behavior which occurred

during summer vacation). Everyone who actually observed J.W.

while he was attending Great Brook on a full-time basis testified

that his behavioral problems were minor, and that he was

improving. It was when his day was reduced that he became much

more difficult to manage at school, leading eventually to a

suspension after he became violent. And, after leaving Great

Brook, J.W. continued to demonstrate violent, uncontrollable

behavior, even at Parker Tutoring, where he had to be separated

from the rest of the children. Plaintiffs' statement that "[t]he

kind of behaviors J.W. exhibited, at school on April 9, 1999,

when he assaulted a student, destroyed school property and was

physically aggressive towards the DARE officer, was similar to

the out-of-control, or as Dr. Kaladish described, the

36 decompensating behaviors, the parents witnessed at home," J.W.'s

Objection to Defendant's Memorandum at 11 n.3, is inconsistent

with the proffered theory that the home behavior was caused by

the stress of a full day of school. Under plaintiffs' theory,

J.W.'s behavior should have improved when his school day was

shortened. Plaintiffs offer no explanation for J.W.'s generally

worse behavior after his school day was shortened. In any event,

the record fully supports the hearing officer's finding that a

full day of school is appropriate for J.W.

2. Great Brook's ALT Program

Plaintiffs do not challenge the hearing officer's finding

that the ALT Program is capable of providing the services

required by the October IEP. Instead, they claim it is

potentially harmful to J.W. because it separates him from his

peers, and because J.W. equates Great Brook with failure after

his suspension. Plaintiffs allege J.W. is hostile toward Great

Brook, rendering any program there inappropriate.

The IDEA requires state educational agencies to place

children with disabilities in the least restrictive environment

37 ("LRE") . See

(a) (5) (A).9 But, "[ujnless the IEP

of a child with a disability requires some other arrangement, the

child is educated in the school that he or she would attend if

nondisabled."

(c); accord N.H. Code Admin. R.

Ed 1115.06(b) (state version). Preference is also given to

placing disabled children in a classroom with non-disabled

children, often referred to as a "mainstream" classroom. See i d .

A child's fear or hostility towards a particular placement can

render the placement inadequate if it is sufficiently severe to

interfere with the child's ability to receive educational

benefits. See, e.g., Greenbush Sch. Comm, v. Mr. and Mrs. K . ,

(D. Me. 1996). Moreover, "[i]n

selecting the LRE, consideration is given to any potential

harmful effect on the child or on the quality of services that he

920 U.S.C. 1412(a) (5) (A) provides:

To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

38 or she needs."

(d); accord N.H. Code Admin.

R. Ed 1115.06(c) (state version).

Great Brook is J.W.'s neighborhood school. So, unless J.W.

"requires some other arrangement," see

(c)

(emphasis added), he should be educated there. ConVal initially

recommended J.W. continue in a mainstream classroom because he

previously demonstrated progress in that setting, and it would

provide more opportunities to develop peer relationships, a

specific concern of plaintiffs. But, acquiescing in plaintiffs'

desire for more individual attention and smaller class size, the

Team recommended J.W. be placed in the ALT Program.

The allegation that J.W. would be "harmed" by attending

Great Brook and being separated from his peers is primarily

supported by Dr. Kaladish. The hearing officer did not find his

opinions with regard to appropriate educational placement

credible. She, therefore, did not directly address the

likelihood of "harm." For reasons already discussed, the court

accepts the hearing officer's credibility finding. Moreover,

specific to this issue. Dr. Kaladish's claim that J.W.'s

anxieties are so severe that he will likely suffer harm if

separated from peers is, again, substantially undermined by

39 plaintiffs' other arguments. For example, plaintiffs urge the

court to find Parker Tutoring an appropriate placement for J.W.,

yet he was also separated from his peers at Parker Tutoring - for

out-of-control behavior. At least in the ALT Program, J.W. would

be able to interact with other children in the program, with

mainstreaming readily available as and when appropriate.

The hearing officer's finding that the placement proposals

were appropriate for J.W. is supported by the record and

affirmed.

ESY

Finally, plaintiffs object to ConVal's denial of an extended

school year for J.W., claiming that ConVal applied an incorrect

standard when it considered academic issues alone. They also

assert that the hearing officer erred in "[upholding] the

District's reliance on 'academic regression' as the sole

criterion for measuring J.W.'s entitlement to an extended school

year." See J.W.'s objection to the School District's decision

memorandum 5 1, at 2-3 (emphasis in original) .

It does not appear that plaintiffs objected to ConVal's

reliance on an academic standard in denying extended school year

40 services at the administrative level. ConVal says in its

decision memorandum that plaintiffs "base[d] their argument for

extended year services, at the administrative level, on the

simple fact that J.W. is behind his academic peers." Defendants'

Decision Memorandum at 22. Plaintiffs have not disputed ConVal's

characterization of their prior position. Parenthetically, being

academically behind is not a valid basis for requiring a school

district to provide ESY programming. See N.H. Code Admin. Ed

1111.01. The documents submitted at the administrative level and

the hearing officer's decision support the conclusion that

plaintiffs did not object to ConVal's reliance on academics in

denying ESY programming. Plaintiffs cannot argue here that

ConVal relied on incorrect or unduly limited factors in denying

extended school year services if they did not first do so at the

administrative level. See David D. v. Dartmouth Sch. Comm.,

, 424 (1st Cir. 1985) ("[W]e have previously held that

for issues to be preserved for judicial review they must first be

presented to the administrative hearing officer."); Valerie J. v.

Derry Co-op. Sch. Dist.,

(D.N.H. 1991)

(citing David D .).

41 In any event, plaintiffs have failed to meet their burden of

showing that J.W. would be entitled to an ESY program if other

appropriate factors had been, or are considered now. See

Dobrowolski,

(placing burden of proof in judicial

review on party challenging administrative ruling); Roland M . ,

(same).

To be entitled to an ESY program, it must be "demonstrated

by a preponderance of evidence that interruption of the student's

special education program or educationally related services would

have the effect of negating the benefits of the student's

standard school year program." N.H. Code Admin. R. Ed.

1111.01(a) (emphasis added); see RSA 186-C:15. When determining

the duration of an ESY program, the Team must "base its

recommendations upon reliable and comprehensive information about

the student and the likelihood that the student will suffer harm

or regression significant enough to negate the benefits of the

student's school year special education program." N.H. Code

Admin. R. Ed. 1111.01(e)(2) (emphasis added). Other than

pointing to a single, conclusory statement by K.W. at the April

7, 1999, team meeting that J.W. "would be harmed without summer

support," plaintiffs have made no attempt to show how failure to

42 provide J.W. with summer programming would "have the effect of

negating the benefits of [his] standard school year program."

Accordingly, there is insufficient evidence from which to

conclude J.W. was entitled to ESY programming for the summer of

1999, and, consequently, he is not entitled to compensatory

education.

Reimbursement for Private Placement

"[PJarents who unilaterally change their child's placement

during the pendency of review proceedings, without consent of the

state or local school officials, do so at their own financial

risk. If the courts ultimately determine that the IEP proposed

by the school officials was appropriate, the parents would be

barred from obtaining reimbursement . . . ." Sch. Comm, of

Burlington v. Dept, of Educ.,

(1985); see

Kathleen H. v. Dept, of Educ.,

(1st Cir. 1998) .

Because the April and October lEPs, as well as the recommended

placement, were appropriate, plaintiffs are not entitled to

reimbursement for unilaterally placing J.W. at Parker Tutoring or

in the outdoor self-esteem program.

43 Conclusion

For the reasons set forth above, the April and October lEPs

and placement in Great Brook's ALT Program were reasonably

calculated to enable J.W. to receive educational benefit, and did

not pose any meaningful risk of harm to J.W. Accordingly, the

hearing officer's Final Order of January 24, 2000, is affirmed,

and plaintiffs' request for reimbursement and compensatory

education is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 24, 2001

cc: Michael R. Chamberlain, Esq. Grant C. Rees, Esq.

44