Greenland School District v. N. CV-02-136-JD 03/18/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Greenland School District

v. Civil No. 02-136-JD Opinion NO.

Amv and Robert N., as next friends of Katie C.

O R D E R

Greenland School District seeks judicial review under the

Individuals with Disabilities Education Act ("IDEA"),

(i)(2), of the decision of the New Hampshire

Department of Education issued by a hearing officer on

February 20, 2002. Amy and Robert N. are the parents of Katie

C., a learning disabled child. The hearing officer concluded

that Greenland School District should have found Katie to be

eligible for special education services during the 1999-2000

school year and ordered the District to reimburse her parents

for the tuition they paid for Katie's private school during

the school year of 2001-2002 and the spring semester of 2001.

The District appeals that decision. Background

Katie C. was born on March 5, 1990, and lives with her

family in Greenland, New Hampshire. She attended grades one

through four at Greenland Central School. While there, she

was taught in regular classrooms by regular education

teachers. She was never held back in a grade, and she

received passing grades in all subjects. No one at the school

ever referred Katie to be evaluated for special education, and

her parents did not request evaluation while she was enrolled

at the Greenland Central School.

Katie's mother is a special education teacher at

Portsmouth High School, which is in the same school district

as Greenland Central School. She has served as the liason

between Greenland's middle school and Portsmouth High School

for the transition of special education students. She has a

professional relationship with Michelle Langa, the assistant

superintendent for the supervisory administrative unit serving

Greenland, and the special education staff.

In first grade, Katie had difficulty at times maintaining

focus. Her first grade teacher used "classroom interventions"

to help Katie and discussed her "distractibility" with her

parents. Jt. St. of Facts at 9. On her report card, her

teacher noted that Katie usually performed well but had a hard

2 time finishing her own work. Between first and second grade,

Katie's parents had her evaluated by a psychologist. Dr.

Dawson, who diagnosed Attention Deficit Hyperactivity Disorder

("ADHD"). Dr. Dawson recommended environmental modifications

for instruction, behavior management strategies, and

medication. Katie's pediatrician prescribed Ritalin and

substituted Adderall in April of 1998.

In second grade, Katie was grouped with students having

better reading skills but needed extra support in math. She

exhibited some organizational issues and had difficulty

staying on task. Her teacher used behavior modification

techniques which she routinely used with her students in the

classroom. Katie received passing grades in all subjects. At

the end of second grade, in June of 1998, Katie took the

California Achievement Test. Her scores were in the average

to above average range except language mechanics where she

ranked at grade 9.7.

Katie's third grade teacher also used intervention

techniques to help Katie stay on task. For example, she used

Garfield stickers as an incentive. Katie's grades were above

average. She achieved a "basic" score on a standardized test

for third graders. Her teacher noted that Katie could perform

very well when she focused on her work. Her teacher also

3 noted that Katie's only behavior issues occurred when her

father picked her up at the end of the day.

In fourth grade, Katie's teacher moved her desk to the

front of the classroom to offset her distractibility. She had

difficulty completing her work, following instructions, and

keeping on task. Without the help of her parents and an out-

of-school tutor, Katie would not have been able to complete

her work. Her teacher had students work in pairs to learn to

work together. Katie did well with some partners and had

difficulty with others. Her teacher found that Katie was

hypersensitive and would personalize things that happened in

the classroom. He also noted that she displayed negative

conduct toward her father at the end of the day. She earned

above average grades. She achieved average and above average

scores on the California Achievement Test at the end of the

year.

Before Katie entered fifth grade in 2000, her parents

removed her from the public school and enrolled her at Mont

Blanc Academy. The new school asked Katie's mother not to

help her with her homework. Katie received a failing grade in

math that fall. Thereafter, her mother resumed helping her

with homework, and Katie's grades rose to all As and Bs. Mont

Blanc asked Katie's parents to withdraw her from the school,

4 but no reason is provided in the parties' factual statement.

Katie was enrolled at Learning Skills Academy in March of

2001 to complete fifth grade. Learning Skills Academy is a

private special education school that serves children with

learning disabilities and ADHD. Katie is still a student at

Learning Skills Academy.

Also in March of 2001, Katie's mother, Mrs. N., asked

about having Dr. Secor, a neuropsychologist on contract with

the Greenland and Portsmouth schools, test Katie. A meeting

was scheduled to be held on April 6, 2001, about Mrs. N.'s

request for a referral. Three District special education

specialists, two representatives from Learning Skills Academy,

a learning disabilities teacher, and a program coordinator

attended the meeting. The team concluded that it lacked

sufficient information to determine whether Katie should be

coded as learning disabled. They recommended that Katie's

parents agree to have her evaluated. The team members and

Mrs. N. agreed on which evaluations should be done.

Katie's evaluations were done in April and May of 2001.

Dr. Secor administered fourteen tests and interviewed Katie.

The parties disagree as to the meaning of the results. In his

conclusion. Dr. Secor wrote that Katie is an intelligent young

girl whose performance is limited by weakness in "skills

5 associated with executive functioning." SD at 44. He also

wrote that Katie's deficits in functioning skills "profoundly

interact with the press of dsyphoric emotion she experiences

to color her affective world and influence her thinking

(especially when dealing with people)."

He found it

unsurprising that Katie had experienced teasing and had felt

harassed by other students in public school because of her

limited cognitive flexibility and vulnerability to emotion.

Dr. Secor concluded that Katie's "social fears and feelings of

vulnerability made her particularly susceptible to intense

feeling[s] of anxiety which interfere with her ideational and

behavioral control." SD 45. Katie also took a variety of

achievement tests administered by the Learning Skills Academy

and the District. She generally achieved average results on

the tests.

The District convened an evaluation team meeting on May

23, 2001, to review the results of the tests and assessments.

The consensus of the team was that although Katie had ADHD and

an anxiety disorder, which caused some functioning deficits,

her limitations did not adversely affect her academic

performance. The team ruled out a learning disability due to

the lack of discrepancy between Katie's test scores and her

performance. The school officials in the group concluded that

6 Katie did not require special education services. Katie's

mother did not sign the team summary which included the

determination that Katie did not qualify for special

education. The team offered to design a "504 plan" for Katie

"to address some organizational weaknesses and to offer

additional classroom strategies to assist Katie in improving

her organizational skills." Jt. St. of Facts at 25.

Mrs. N. told Michelle Langa, the Assistant

Superintendent, that she was going to pursue an independent

evaluation for Katie. On May 29, 2001, Mr. and Mrs. N. sent

Michelle Langa a letter informing her that they disagreed with

the District's decision that Katie was not eligible for

special education.

Dr. Ilene Spitzer, a physician specializing in

psychiatry, met Katie in May of 2001. On August 15, 2001, Dr.

Spitzer sent the District a letter in which she confirmed the

prior diagnosis of ADHD but also added the diagnosis of

Asperger's Syndrome. Dr. Spitzer found that Katie has

"language based deficits that include deficits in social

pragmatics." Jt. St. Facts at 29. Dr. Spitzer also changed

Katie's medication. Assistant Superintendent Langa knew that

the diagnosis of Asperger's Syndrome was serious and advised

the Greenland Central School principal that the District would

7 need to have another evaluation meeting.

On September 12, 2001, the District held another meeting

of the evaluation team to reconsider Katie's eligibility for

special education in light of Dr. Spitzer's diagnosis. Dr.

Spitzer attended the meeting. Dr. Secor and Dr. Spitzer

strongly disagreed as to Katie's diagnosis. Although the team

did not believe that Katie was then showing any adverse

educational performance, they were concerned about the future

impact of Asperger's Syndrome. Assistant Superintendent Langa

agreed to code Katie for special education. The team decided

not to code Katie as "autistic," because of their concerns

about that label, and instead coded her as "other health

impaired," based on her diagnoses of ADHD, anxiety disorder,

and Asperger's Syndrome.

The meeting to develop an "individualized education

program" ("IEP") for Katie was held on November 2, 2001. The

District then had three additional team meetings before

finalizing an initial IEP for Katie on December 5, 2001. The

IEP was based on Katie returning to the Greenland schools.

Mrs. N. agreed with the goals and plans in the IEP except for

placement in the Greenland schools. She did not think that

Katie would feel safe in the Greenland schools because of her

reactions to past teasing and harassment, and wanted her to stay in the Learning Skills Academy. The Learning Skills

Academy has served students with Asperger's Syndrome in the

past but does not have special expertise in that area. Mrs.

N. believes that Katie is doing wonderfully at the Academy and

notes that her recent report card was her best, that Katie has

friends, and that she does not have the anxiety that she used

to ha v e .

In the meantime, Mr. and Mrs. N. filed a request for a

due process hearing on November 15, 2001. In their letter

requesting the hearing, Katie's parents stated that they

appreciated the school's efforts in working with them to draft

an IEP for Katie. They explained that they were seeking a due

process hearing to address reimbursement for Katie's tuition

at the Learning Skills Academy and that they were concerned

that the time allowed by law for a hearing would run out.

A prehearing conference was held by the hearing officer

on January 15, 2002. The District raised several grounds to

dismiss the parents' request for a due process hearing. The

hearing officer fixed the date of November 15, 2001, as the

last date of actions that would be considered at the hearing.

The parents expressed some disagreement with the District's

IEP and also stated that they were challenging the District's

failure to identify Katie as eligible for special education in

9 May of 2001. The District filed a second motion to dismiss on

January 16, the day after the prehearing conference. The

parents filed objections to the District's motions to dismiss.

The due process hearing was held on January 28, 29, and

31, 2002. During the course of the hearing, the following

witnesses testified: Katie's mother, Katie's teachers at

Greenland Central School and the principal, the special

education coordinator in Greenland, a District learning

disabilities teacher, two District special education teachers,

the assistant superintendent, the program coordinator at

Learning Skills Academy, a speech/language pathologist from

Massachusetts General Hospital, and a District speech/language

pathologist.

The hearing officer issued his decision on February 20,

2002. He denied the District's motions to dismiss. He

concluded that the District should have found that Katie was

eligible for special education services for the 1999-2000

school year and had sufficient information to code her in May

of 2001. The decision ordered the District to reimburse

Katie's parents for her tuition at the Learning Skills Academy

for the spring semester of 2001 and for the 2001-02 school

year. The District filed its complaint seeking judicial

review of the decision on March 25, 2002.

10 Discussion

A hearing officer's factual findings are reviewed under

an intermediate standard which " '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.'" Rafferty v. Cranston Pub. Sch. Comm..

(1st Cir. 2002) (quoting Lenn v. Portland Sch.

Comm..

(1st Cir. 1993)). In contrast, a

purely legal question is reviewed de novo. See Manchester

Sch. Dist. v. Crisman.

(1st Cir. 2002) . The

burden of proof rests with the party challenging the agency

decision, which is the District in this case. See Hampton

Sch. Dist. v. Dobrowolski.

(1st Cir. 1992) .

The District raises nine issues on appeal. The issues

are stated somewhat differently in the issue statement section

of the District's memorandum and in the individual headings in

the discussion section. In general terms, the District

contends that the hearing officer erred in finding that the

District violated the IDEA by failing to code Katie before

September of 2001, that the IEP developed by the District was

inadequate and could not be implemented by the District, and

in awarding the parents reimbursement for tuition and for the

independent evaluation. The District also contends that the

11 Hearing Officer erred in accepting jurisdiction to consider

the adequacy of the District's proposed IEP because of Katie's

placement in private school.

The IDEA "was enacted, in part, 'to assure that all

children with disabilities have available to them . . . a free

appropriate public education which emphasizes special

education and related services designed to meet their unique

needs.'" Cedar Rapids Cmtv. Sch. Dist. v. Garret F.,

(1999) (quoting

(d) (1)(A) (formerly §

1400(c))). Participating states, such as New Hampshire,

receive federal financial assistance for IDEA mandated

services. See i d .: see also Murphv v. Timberlane Rea'1 Sch.

Dist..

, 1188 at n.2 (1st Cir. 1994). New

Hampshire, therefore, "must assure all learning disabled

children the right to a "free appropriate public education,"

(d)(1) (A), by providing "access to specialized

instruction and related services . . . individually designed

to provide educational benefit to the handicapped child,' B d .

of Educ. v. Rowlev.

(1982).'" Rome Sch.

Comm. v . M r s . B ..

(1st Cir. 2001); see also

Irvina Indep. Sch. Dist. v. Tatro.

, 891 n.8

(1984) (construing predecessor to IDEA, Education of the

Handicapped A c t ) .

12 A. Effect of Katie's Enrollment in Private School

The IDEA imposes a "child find" obligation on each

participating state to implement policies and procedures to

identify, locate, and evaluate all children with disabilities

who are in need of special education and related services.

(a)(3);

(a). The "child find"

obligation is not limited to children attending public

schools, but instead also extends to children attending

private schools. See i d . Once a child is identified with a

disability, however, the IDEA imposes different obligations on

the local school districts depending on whether the child is

enrolled in public or private school. See Gary & Silvie S. v.

Manchester Sch. Dist..

(D.N.H. Jan. 16,

2 0 03) (applying

(a) (10) (C)(1)). In addition,

the IDEA exhaustion requirements operate differently depending

on the circumstances of the child's enrollment in private

school. See

(b);

; see

also Steward v. Hillsboro Sch. Dist..

, at *2

(D. Or. Mar. 1, 2001) .

When a child with a disability receives special education

and related services in a public school but the parents

dispute whether the school is providing a "free appropriate

13 public education" ("FAPE") and enroll the child in private

school, the district will not be required to pay the costs as

long as the district made FAPE available to the child. See

(a)(1);

(a). Before parents

remove a child from public school when FAPE is at issue, they

must give proper notice to the school. See

(10) (C) (ill) . Complaints about whether the district made

FAPE available and about reimbursement for the costs of

private education are subject to due process procedures.

(f);

(b) & (c).

A child who is enrolled in a private school by her

parents, when the child has not received special education and

when FAPE is not an issue in the public school, is still

subject to the "child find" requirements for identifying

children with disabilities.

(a)(10)(A)(ii);

. Disputes about the identification of a

private school child as a child with a disability are subject

to due process procedures.

(f);

(b). When a private school child is identified as a

child with a disability, the district must develop and

implement a "services plan." I d . at § 300.452; Gary S ..

(citing N.H. Admin. Code Ed. 1117.03) . The

expenditures necessary to implement a services plan are

14 provided in

. However, "[n]o private

school child with a disability has an individual right to

receive some or all of the special education and related

services that the child would receive if enrolled in a public

school."

(a). Therefore, due process

procedures do not apply to complaints that a district has

failed to provide adequate services for a private school

child, which complaints must be addressed under the complaint

process provided by the state.

(a); Gary

S ..

.

In this case, Katie was enrolled in private school, the

Mont Blanc Academy, before she was identified as a child with

a disability and before her parents raised any issue as to

FAPE. C f . Raffertv.

(discussing private school

placement of disabled child previously enrolled in public

school with IEP); James v. Upper Arlington Citv Sch. Dist..

(6th Cir. 2000) (discussing district's

obligation to prepare IEP for private school child previously

enrolled in public school with IEP); Amann v. Stow Sch. Svs.,

(1st Cir. 1992) (same). Therefore, FAPE

was not at issue when Katie left public school. Katie's

parents did not give notice to the District that they were

enrolling her in private school. In fact, Katie's parents

15 were not seeking special education services when they enrolled

Katie at Mont Blanc Academy. Katie's mother only requested

that Katie be evaluated after she was enrolled in private

school, and then only after her experience at Mont Blanc

Academy was unsuccessful.

While she was enrolled in private school, Katie was

subject to the "child find" process. Once she was identified

as disabled, however, she was not entitled to the same

services that she would have been had she been enrolled in

public school. As a result, her parents' complaints relating

to the services to be provided by the District should have

been brought through the state complaint process, not through

the due process procedure. The IDEA requires an aggrieved

party to exhaust administrative remedies under the procedures

provided.

(1); Frazier v. Fairhaven Sch.

Com..

(1st Cir. 2002). The hearing officer

erred in considering Katie's parents' complaint about the

adequacy of the services the District proposed for Katie in

the IEP and their request that the District reimburse them for

the costs of her private school tuition.1 See Gary S .. 2003

1The District raises an issue as to whether the parents had standing to bring their claims to a due process hearing. It appears that they did not as to the claim challenging the sufficiency of the services the District proposed, and that

, at *3. The Hearing Officer also erred in using the

standard applicable to a child in public school as to the

parents' complaints.2 Therefore, that part of the decision

that found the District's proposed IEP was inadequate and that

required the District to reimburse Katie's parents for the

cost of private school for the spring semester of 2001 and for

the school year of 2001-2002 is vacated.

B. Identification and Coding - "Child Find"3

The hearing officer held that the District should have

they failed to use the proper administrative procedure to address that claim. Although the IDEA imposes an exhaustion requirement that implicates this court's subject matter jurisdiction, exceptions also exist to the exhaustion requirement. See, e.g.. Tavlor v. V t . Dep't of Educ..

, 789 (2d Cir. 2002); Weber v. Cranston Sch. Comm..

(1st Cir. 2000) . Here, where the parents' claims were presented, considered, and decided in the administrative context, albeit the wrong forum, the parents are deemed to have exhausted their claims for purposes of judicial review.

2The Hearing Officer appears to fault the District's proposed IEP in part because the District had not hired an aide, who would be required to implement the IEP if Katie were to return to a District school. It would be unusual to require a District to hire personnel to provide services at a school for a child who is not enrolled there.

3Complaints that a school district has failed to comply with the requirements of "child find" are subject to the due process procedures.

(b).

17 identified Katie as a child with a disability in fourth grade,

which was the school year of 1999 to 2000. Katie's parents,

however, only challenged the District's failure to code Katie

as of the May 23, 2001, decision on their referral request.

The Hearing Officer also found that the District had

sufficient information to code her at that time.

The IDEA defines a "child with a disability" as one:

(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . ., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

(3)(A); see also

. Included

within "other health impairments" is a condition of "having

limited . . . alertness, including a heightened alertness to

environmental stimuli, that results in limited alertness with

respect to the educational environment that (i) Is due to . .

. attention deficit disorder or attention deficit

hyperactivity disorder . . . and (ii) Adversely affects a

child's educational performance."

(c)(9).

The New Hampshire Department of Education regulations

require a local school district to "contact representatives of

18 private school children within its jurisdiction to advise them

of the [district's] responsibility to identify and evaluate

all children who are suspected of or known to be children with

a disability and who are enrolled in such schools. . . ."

N.H. Code Admin. Rule Ed. 1103.02(c). The regulations also

permit anyone to refer a child under the age of twenty-two for

evaluation and list four possible, but not exclusive, reasons

for referral. I d . Ed. 1103.02(b). Once a child is referred,

the school district must conduct the evaluation and

determination under the standards provided by state and

federal regulations. I d . Ed. 1107.01-03.

Although Katie C. was diagnosed with ADHD, a condition

included within § 1401(3) (A) as constituting an "other health

impairment," after first grade, she was not referred for

evaluation until the spring of her fifth grade year, April of

2001. After considering the results of the evaluation and

Katie's average and above average performance in her class

work and on standardized tests, the IEP team concluded that

Katie did not need special education because her educational

performance was not adversely affected by ADHD.

Neither the IDEA nor federal regulations define

"adversely affects a child's educational performance" within

the meaning of § 300.7. C f . J.D. ex rel. J.D. v. Pawlet Sch.

19 Dist. ,

, 66-68 (2d Cir. 2000) (discussing

definition under Vermont Department of Education Rules).

Despite the District's argument to the contrary, the New

Hampshire Department of Education Regulations do not define

the term.4 The federal regulations, incorporated by the New

Hampshire Department of Education, require that a disability

determination be made based on "information from a variety of

sources, including aptitude and achievement tests, parent

input, teacher recommendations, physical condition, social or

cultural background, and adaptive behavior," suggesting that

grades and test results alone are not the proper measure of a

child's educational performance.

(a)(1);

N.H. Code. Admin. R. Ed. 1107.01. Courts, including this

court, have interpreted the adverse effect requirement to be

satisfied if the child's educational performance would have

4N.H. Admin. Rule Ed. 1107.02(c), cited by the District, provides as part of the process for providing a "free and appropriate education" under the IDEA that after a child is referred for evaluation, the IEP team must determine whether the concerns about the child can be "addressed utilizing pupil support services available to all children, whether additional information is required, and what testing, if any, is needed to address any unresolved concerns raised by the referral." The rule does not define "[a]dversely affects a child's educational performance" for purposes of

and does not appear to mean that if generally available services will meet a child's needs, the child will not be considered disabled under § 300.7.

20 been adversely affected but for specialized instruction that

the child was receiving. See, e.g.. Weixel v. Bd. of Educ..

, 150 (2d Cir. 2002); Yankton Sch. Dist. v.

Schramm.

(8th Cir. 1996); Kevin T. v.

Merrimack Valiev Sch. Dist.. Civil No. 96-485-B, at 25 (D.N.H.

M a r . 5, 1998).

Based on the Hearing Officer's findings, which are

supported by the record, Katie was able to perform at average

and above average educational levels because she was receiving

individualized and personalized instruction. While she was in

public school, her classroom teachers modified her environment

and her assignments based on the effects of ADHD on her

performance. Her mother provided individualized instruction

at home, and in fourth grade her parents provided a tutor for

Katie. When Katie's mother stopped providing special help in

math while Katie was enrolled at the Mont Blanc Academy during

the first semester of fifth grade, her math grade fell to

failing. During the second semester of fifth grade, Katie

received special education at the Learning Skills Academy.

Therefore, because Katie's educational performance would have

been adversely affected by ADHD but for the specialized

instruction she was receiving, she met the requirements to be

identified as a child with a disability by May 23, 2001.

21 The Hearing Officer's decision is affirmed to the extent

it found that Katie should have been identified as a child

with a disability on May 23, 2001. The remedy, however,

reimbursement for the cost of Katie's tuition at the Learning

Skills Academy, is not appropriate as is discussed above.

Since Katie's parents do not appear to seek any other form of

relief, none is considered.

Conclus ion

For the foregoing reasons, the decision of the New

Hampshire Department of Education is vacated as to the

adequacy of the proposed IEP and reimbursement of private

school expenses. The decision is affirmed as to the lack of

timeliness of the Greenland School District's identification

of Katie as a child with a disability under its "child find"

obligation, except for the remedy of reimbursement. Given the

nature of this decision, an award of attorneys' fees pursuant

to

(1) (3)(B) is not appropriate.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

22 March 19, 2003

cc: Jeanne M. Kincaid, Esquire Scott F. Johnson, Esquire

23