Mrs. J. v . Strafford School CV-03-228-SM 06/28/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mrs. J., Plaintiff

v. Civil N o . 03-228-SM Opinion N o .

Strafford School District, Defendant

O R D E R

Pursuant to the Individuals with Disabilities Education Act

(“IDEA”),

et seq., Mrs. J., mother of

Christopher J., appeals an educational hearing officer’s decision

which was, at least in part, in favor of the local school

district. See

(i)(2). She claims that the

hearing officer “erred by failing to order extended school day

programming [for Christopher] for approximately 11 hours per day,

five days per week.” Plaintiff’s Stipulation Regarding Issues

Plaintiff Plans to Raise on Appeal (document n o . 31) at para. 1 .

She also seeks a judicial declaration that she is the “prevailing

party” and, therefore, entitled to an award of attorney’s fees

and costs. In its counterclaim, the School District challenges the hearing officer’s determination that Christopher is entitled

to direct, one-on-one occupational therapy.

The parties have filed a “certificate of completion,” as

well as their respective decision memoranda. See Local Rule

9.3(b) and ( e ) . Neither party requested a hearing to present

oral argument or additional evidence. The parties have, however,

agreed to postpone any ruling on plaintiff’s request for

attorney’s fees, pending resolution of their substantive

challenges to the hearing officer’s decision. See Stipulation to

Bifurcate the Issues (document n o . 1 8 ) .

Background

The administrative record in this case consists of eight

bound volumes containing approximately 4,400 pages (document nos.

8 and 1 4 ) . And, under Local Rule 9.3(d), the parties have filed

a statement of stipulated facts (document n o . 2 8 ) . The facts

relevant to the disposition of this matter are discussed as

appropriate, and are drawn from the stipulation and

administrative record.

2 Standard of Review

Congress enacted the Individuals with Disabilities Education

Act “to ensure that all children with disabilities have available

to them a free appropriate public education that emphasizes

special education and related services designed to meet their

unique needs and prepare them for employment and independent

living.”

(d)(1)(A). Under the scheme

established by the IDEA, and in return for federal funding, state

educational agencies establish procedures to identify and

evaluate disabled students in need of special education services.

See

. For each identified child, a team

comprised of the child’s parents, teachers, and a representative

of the educational agency develops an individualized 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). It must be “reasonably calculated to enable the child

to receive educational benefits,” Bd. of Educ. v . Rowley,

(1982), and “custom tailored to address the

3 [disabled] child’s ‘unique needs,’” Lenn v . Portland Sch. Comm.,

(1st Cir. 1993) (citing

(c)).

Importantly, however, neither the IDEA nor New Hampshire law

requires the IEP to “maximize” a child’s educational benefits.

See, e.g., Lenn,

(holding that, under the IDEA,

“the benefit conferred [by the IEP] need not reach the highest

attainable level or even the level needed to maximize the child’s

potential.”). Instead, the IDEA establishes more modest goals

and imposes upon states and local school districts an obligation

to provide a program that is “sufficient to confer some

educational benefit upon the handicapped child.” Rowley,

.

We therefore conclude that the “basic floor of opportunity” provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

.

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

appropriate education, or that the procedures established by the

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

she may request an administrative due process hearing to review

the matter. See

(f). If a parent, or the

affected school district, is dissatisfied with the administrative

hearing officer’s ruling, that party may seek judicial review in

either state or federal court.

(i)(2).

A district court’s review of state educational

administrative proceedings has been described as “one of involved

oversight.” Lenn,

(citing Roland M . v . Concord

Sch. Comm.,

(1st Cir. 1990)). The applicable

standard is an intermediate one under which the district court

must exercise independent judgment, but, at the same time, give

“due weight” to the administrative proceedings.

The required [judicial review] must, at one and the same time, be thorough yet deferential, recognizing the expertise of the administrative agency, considering the agency’s findings carefully and endeavoring to respond to the hearing officer’s resolution of each material issue. Jurists are not trained, practicing educators. Thus, the statutory scheme binds trial courts to give ‘due weight’ to the state agency’s decision in order to prevent judges from imposing their view of preferable educational methods upon the States.

5 Roland M.,

(citations and internal punctuation

omitted). See also T.B. v . Warwick Sch. Comm.,

0 , 83-

84 (1st Cir. 2004).

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

whether the parties complied with the procedural requirements of

the IDEA; and (2) whether the IEP developed through those

procedures was reasonably calculated to enable the disabled child

to receive educational benefits. See, e.g., Rowley,

. The burden of proof rests with the party challenging the

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

8 , 54 (1st Cir. 1992); Roland M.,

.

With those principles in mind, the court turns to the

parties’ respective challenges to the hearing officer’s decision,

dated January 2 8 , 2003.

Discussion

I. Non-residential Placement of Christopher.

The hearing officer concluded that placement of Christopher

in a day program at Wediko Children’s Services was appropriate.

6 Record at 3776. Plaintiff challenges that decision, claiming

that, in order to receive adequate “educational benefit” from the

Wediko program, Christopher needs “extended school day

programming 11 hours per day.” Plaintiff’s stipulation, at para.

3. Given the duration of Christopher’s daily commute to Wediko,

such programming would, in effect, require a residential

placement. The School District, on the other hand, contends that

the hearing officer correctly determined that a residential

placement is not appropriate for Christopher, and would prove

unnecessarily restrictive.

At the time of the administrative due process hearing,

Christopher was 15 years old and in tenth grade. While he has an

above-average intellect, Christopher suffers from fairly

substantial disabilities (primarily affecting his ability to

control moods, express emotions, and understand unspoken verbal

ques, such as facial expressions), all of which make identifying

an appropriate educational placement for him quite difficult.

That problem has been exacerbated by his somewhat “chaotic” home

life, record at 3767, see also id. at 232-42, his parents’

inconsistent methods of instructing and disciplining him, and the

7 parents’ (primarily Mrs. J.’s) substantial lack of cooperation

with the School District - all of which is well-documented in the

record and addressed in the hearing officer’s decision. Among

other things, the hearing officer noted:

It is also clear that the District was not provided with all available information in developing the IEP and that the parent gave virtually no prior notice to the District nor facilitated a cooperative atmosphere in creating the proposed IEP. The parent’s two witnesses never made any recommendation to the District for residential placement prior to their testimony at the hearing. The Occupational Therapy Report was never made available to the District. The District was never given information regarding [Christopher] being in counseling with D r . Weaver. In addition, the District was not told prior to the hearing about problems that [Christopher] was experiencing at home in the fall of 2002. . . . It is clear to the undersigned that [Christopher’s] parents will not cooperate in determining whether the Seacoast Learning Collaborative is the appropriate placement for [Christopher].

Id. at 3775-76.

Notwithstanding the hurdles created by Mrs. J., the hearing

officer concluded that, while not optimal, placement in the

“Wediko Day program is appropriate.” Record at 3776. He

specifically concluded that a residential placement, such as that

sought by Mrs. J., would be “unnecessarily restrictive.” Id.

8 Testimony from Wediko’s witness indicated that if [Christopher’s] curriculum were modified, then therapy during the school day could be included into [Christopher’s] program. That is appropriate for [Christopher] and should be done forthwith. . . . The Hearing Officer is concerned about the amount of time [Christopher] is forced to spend on the bus each day. However, given the parent’s unwillingness to explore Seacoast Learning Collaborative as an option and given the agreement by the parties that the other proposed placements are not appropriate, there appears to be no other viable alternative.

Id. As suggested by the hearing officer, the most viable

alternative educational placement for Christopher would appear to

be the Seacoast Learning Collaborative, which is located closer

to his home. If Christopher were to attend that school, not only

would his daily commute be significantly shorter, but he would

also be able to travel on the bus with other students from his

district. But, Mrs. J. refused to allow Seacoast’s

administrators to interview Christopher.1

1 It is not entirely clear why Mrs. J. refused to permit Seacoast to meet with Christopher. There i s , however, evidence in the record suggesting that if Seacoast had been seriously explored as a placement for Christopher, and if it had been determined to be an appropriate placement for him, the School District could not obtain approval to place Christopher at Wediko (because, unlike Seacoast, Wediko is not approved to treat Christopher’s primary disability). Record at 488-89. In other words, Wediko was approved as Christopher’s placement only because no other viable alternatives were deemed available. Had the IEP team determined that Seacoast was an appropriate

9 Perhaps not surprisingly, Mrs. J points to Christopher’s

lengthy daily commute to Wediko as one factor supporting her view

that the hearing officer erred in approving placement for

Christopher in Wediko as a day student, rather than as a

residential student. See Plaintiff’s decision memorandum

(document n o . 32) at 19 n . 1 4 . But, if Christopher’s commute

posed a serious concern for his parents, it is difficult to

explain Mrs. J.’s lack of cooperation with the School District in

exploring the possibility of a placement closer to home -

particularly at Seacoast, which appears to offer comparable (if

not superior) services to those available at Wediko. See, e.g.,

Record at 480-90. Mrs. J. cannot now be heard to complain that

Wediko is so distant that the School District should be required

to fund Christopher’s residential placement there - not when

there are seemingly viable alternatives much closer to home,

placement, that determination would have eliminated any possibility of sending Christopher to Wediko, which is where Mrs. J. wanted Christopher placed.

There is also evidence indicating that because Christopher was experiencing problems at home with his mother, step-father, and half-siblings, D r . Weaver, plaintiff’s expert and “advocate,” sought a residential placement for Christopher, at least in part, to “give the parents a break.” Record at 539.

10 which have yet to be fully explored due to her own uncooperative

conduct.

As further support for her assertion that the IDEA mandates

a residential placement at Wediko for Christopher, plaintiff says

that only a residential placement will adequately address all of

Christopher’s needs - not just academically, but also in the

areas of socialization, adaptive behavior, emotional well-being,

etc. While a residential placement at Wediko might well provide

additional benefit and structure for Christopher, the record

amply supports the hearing officer’s determination that

Christopher can receive meaningful and appropriate educational

benefit from his placement in Wediko as a day student, provided

his curriculum is modified to allow therapy during the day and a

behavior modification plan is developed and implemented at home.

The record plainly reveals that Christopher requires a great deal

of structure and an established daily routine. There does not,

however, appear to be any reason that he cannot receive the

necessary structure and routine in the home environment, provided

his parents fully cooperate with the School District and D r .

11 Pierce-Jordan, in implementing the proposed behavior modification

plan.

Although a non-residential placement at Wediko may not be

“optimal” for Christopher, Mrs. J has artificially limited the

options available. More to the point, however, the School

District is not required to provide special education services

designed to maximize Christopher’s potential. Rather, it is

obligated to deliver services that “confer some educational

benefit” upon him. Rowley,

. As the court of

appeals for this circuit has observed:

Since Rowley’s construction of the EHA, a [free appropriate public education or “FAPE”] has been defined as one guaranteeing a reasonable probability of educational benefits with sufficient supportive services at public expense. Following Rowley, courts have concluded that a FAPE may not be the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice. Barring higher state standards for the handicapped, a FAPE is simply one which fulfills the minimum federal statutory requirements.

G.D. v . Westmoreland Sch. Dist.,

4 2 , 948 (1st Cir.

1991) (emphasis in original). See also Walczak v . Florida Union

Free Sch. Dist.,

(2d Cir. 1998) (“IDEA does not

12 require states to develop IEPs that maximize the potential of

handicapped children. What the statute guarantees is an

‘appropriate’ education, not one that provides everything that

might be thought desirable by loving parents.”) (citations and

internal quotation marks omitted).

Mrs. J has failed to carry her burden of demonstrating that

the hearing officer erred when he concluded that a non-

residential placement at Wediko was appropriate for Christopher,

nor has she shown that the IDEA mandates that Christopher receive

a residential placement at Wediko. Mrs. J. has not shown (nor

does the record support) that Christopher “is properly educable

only through a residential placement.” Plaintiff’s decision

memorandum at 2 0 , n.15 (quoting Mrs. B . v . Milford Bd. of Educ.,

, 1039 (2d Cir. 1997)).

II. One-on-One Occupational and Speech Therapy.

The School District challenges the hearing officer’s

determination that Christopher’s IEP must include “direct 1:1

Occupational Therapy and Speech Language Services.” Record at

3776. Although the hearing officer’s decision is not entirely

13 clear on this point, Mrs. J. asserts that such therapy was

ordered for 60 minutes each week. See, e.g., Plaintiff’s Reply

Memorandum (document n o . 39) at 9. The School District disagrees

and notes that the hearing officer did not specify how much

therapy should be provided.

Regardless of how much occupational therapy the hearing

officer intended for Christopher, the School District says he

erred in ordering any one-on-one therapy. In support of that

view, the School District first asserts that “[t]here is no

evidence that Christopher would fail to benefit from special

education without one-on-one occupational therapy.” Defendant’s

Decision Memorandum (document n o . 33) at 2 4 . That reasoning is

unpersuasive. Developing an appropriate IEP is more art than

science. Accordingly, in preparing an IEP, the relevant parties

must often rely upon the educated opinions (and, to some degree,

speculation) of trained experts as to how they believe a

particular student is likely to react to a particular program.

Suggesting that plaintiff must demonstrate that the absence of

direct occupational therapy has proved a hindrance to

14 Christopher’s progress is a bit like requiring plaintiff to prove

a negative.

The School District’s second argument is more compelling.

While it appears that Christopher has never received direct, one-

on-one therapy in the past (at least in the context of a school

setting), he did receive occupational therapy in a small group

setting when he attended the Lighthouse School, in Chelmsford,

Massachusetts. That therapy proved to be less beneficial than

anticipated.

After Christopher enrolled at Lighthouse, Mrs. J. asked that

his IEP be modified to provide for one hour each week of small-

group therapy. In light of Christopher’s progress (both

academically and behaviorally), Lighthouse did not believe such

therapy was necessary. It did, however, agree to implement the

change to Christopher’s IEP. Scott Bartis, the Director of

Applied Services at Lighthouse, described the small-group

therapy, and Christopher’s reaction to i t , as follows:

Christopher was initially a willing participant in that small group. As the year went o n , conflicts arose when he went to [occupational therapy], because he would

15 rather play or use other equipment, such as the swing, rather than performing his prescribed OT exercises. As the year went o n , Christopher refused to attend those OT sessions. The OT sessions were designed to teach Christopher strategies to use during the regular day to regulate his sensory motor functioning. Christopher was provided with OT strategies and demonstrated that he could perform them. But Christopher refused to consistently apply those strategies outside of the OT sessions.

Record at 2247, Affidavit of Scott Bartis, at para. 2 0 . Thus, it

appears that removing Christopher from regular class programming

so that he might attend small-group occupational therapy was not

a productive aspect of his IEP.

Despite the lack of progress noted in small-group therapy,

it appears that Christopher progressed well under the IEP

implemented at Lighthouse. D r . Bartis reported:

Academically, Christopher made slow but steady progress and passed all of his course. He did not work up to his full potential academically and seldom went beyond basic expectations academically. However, given his disabilities, which were primarily in the social/emotional/behavioral domain, Lighthouse School focused less on academics and more on the social/emotional/behavioral domain. Hence, the clinical approach.

In the social, behavioral and emotional domains, Christopher made substantial progress. Examples include: developing trusting relationships with staff;

16 reduced need for physical intervention such as restraints[;] reduced time in the crisis room[;] and improved ability to express his needs and feelings in a socially appropriate manner. When he first arrived at Lighthouse, he would often be out of control, while insisting that he was in control, and could not tell us how he felt or what he needed. As time went o n , his behavior, emotional status, and social skills improved. There were fewer social conflicts with adults and peers and his ability to resolve social conflicts with adults and peers improved.

Id. at 2445-46. Of additional significance are the following

observations made by D r . Bartis:

As the year went o n , disagreement arose between Lighthouse and the school district on one hand, and Christopher’s parents on the other hand, regarding Christopher’s needs and how they should be addressed. This led to a number of long team meetings. As a consequence, during the spring of 2002, a consensus emerged that Christopher should attend another school for the following school year. However, Lighthouse never concluded that Christopher required a more restrictive program. My staff and I agreed that Lighthouse was an appropriate program for Christopher, but for his parents’ dissatisfaction. Given his profile, we anticipated during the 2001-2002 school year that Christopher would be ready to return to a public school by the 2003-2004 school year. We certainly did not believe that he required a residential placement or an extended school day.

Id. at 2446. Given the substantial progress that Christopher

made while at the Lighthouse School (notwithstanding the lack of

tangible benefits from the small-group therapy sessions) -

17 progress that was so significant that staff and administrators at

Lighthouse expected that, if it continued, he would soon be able

to return to a public school setting - and given Christopher’s

history of resistance to therapy that requires him to be absent

from the main classroom, the court concludes that the hearing

officer erred in ordering direct, one-on-one therapy for

Christopher each week. A less restrictive educational plan has

proved successful in the past (and the more restrictive

alternative has proved less than successful). See generally

(b)(2). And, there is no indication that

Christopher would not respond in an equally meaningful way at

Wediko, with occupational therapy being imbedded into his

classroom services, as the School District has proposed.

There i s , to be sure, evidence in the record suggesting that

Christopher might benefit from direct occupational therapy. See

Record at 1836-52, Occupational Therapy Evaluation prepared by

Mary C . Bamford, dated July 2 7 , 2001. In her report, M s . Bamford

opined that “Chris presents as a candidate for direct

Occupational Therapy services as part of his comprehensive

18 intervention program.” Id. at 1848. She repeated that opinion

in a more recent report dated August 1 9 , 2002. Id. at 911. 2

That Christopher would benefit from direct, one-on-one

occupational therapy is not, however, dispositive. As the court

of appeals for this circuit recently observed, the “IDEA does not

require a public school to provide what is best for a special

needs child, only that it provide an IEP that is ‘reasonably

calculated’ to provide an ‘appropriate’ education as defined in

federal and state law.” T.B. v . Warwick Sch. Comm.,

0 ,

83 (1st Cir. 2004) (citations omitted). Having reviewed the

record, and having afforded due weight to the hearing officer’s

decision,

at 8 3 , the court concludes that the School District

has demonstrated, by a preponderance of the evidence,

that

the IEP prepared for Christopher (in consultation with D r . Sandra

Pierce-Jordan), which provides extensive services for him,

2 The opinions expressed in M s . Bamford’s report dated August 1 9 , 2002, are virtually identical to those expressed in her earlier report (many are repeated verbatim) and were not based upon any new or additional testing of Christopher - all are based upon her evaluation of Christopher on July 2 7 , 2001, prior to Christopher’s enrollment at Lighthouse in September of 2001. Accordingly, it does not appear that M s . Bamford was aware of Christopher’s progress at Lighthouse o r , even if she was, that her most recent recommendations took such progress into account.

19 including one-on-one therapy “as needed” and group therapy for at

least one hour each day, is “reasonably calculated” to provide

Christopher with an “appropriate” education. See generally Bd.

of Educ. v . Rowley,

(1982). See also G.D. v .

Westmoreland Sch. Dist.,

. It must be kept in

mind that:

The IDEA does not promise perfect solutions to the vexing problems posed by the existence of learning disabilities in children and adolescents. The Act sets more modest goals: it emphasizes an appropriate, rather than an ideal, education; it requires an adequate, rather than an optimal, IEP. Appropriateness and adequacy are terms of moderation. It follows that, although an IEP must afford some educational benefit to the handicapped child, the benefit conferred need not reach the highest attainable level or even the level needed to maximize the child’s potential.

Lenn,

. The level of occupational therapy

services offered by Christopher’s IEP certainly meets (and

exceeds) minimum federal statutory requirements; the hearing

officer erred in concluding otherwise.

Conclusion

While some might argue that the services the School

District, through Wediko, provides to Christopher are not

20 sufficient to maximize his educational and developmental

potential, neither the IDEA nor New Hampshire law requires the

School District to provide an “optimal” educational environment.

Rather, the School District is obligated to offer Christopher a

learning environment and educational plan that provides

demonstrable “educational benefit.” Toward that end, the School

District has provided extensive educational and special needs

services to Christopher (along with substantial counseling

services to his family members).

Given the facts presented, the School District will

certainly meet its legal obligations to Christopher by

implementing his IEP at Wediko as a day, rather than residential,

student. With regard to the issue of one-on-one direct

occupational therapy, the court agrees with the School District

that such services are not required to provide Christopher with a

free appropriate public education, and that the hearing officer

erred in ordering the School District to provide such services.

That aspect of the hearing officer’s decision i s , therefore,

vacated. It all other respects, the decision is affirmed.

21 In light of the parties’ stipulation concerning the

resolution of plaintiff’s request for attorney’s fees, the court

will defer any ruling on that issue pending additional briefing

by the parties. As the party seeking such fees, plaintiff shall,

on or before July 1 6 , 2004, file a well-supported legal

memorandum presenting her argument(s) in favor of an award of

attorney’s fees, given the decision on the merits of her appeal.

The School District shall file a responsive memorandum within 21

calendar days thereafter.

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 2 8 , 2004

cc: Gerald M . Zelin, Esq. Gregory W . Swope, Esq. Richard L . O’Meara

22