Mr. G and M s . K v s . Timberlane Sch D . CV-04-188-PB 1/4/2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mr. G. and M s . K.

v. Case N o . 04-cv-188-PB Opinion No.

Timberlane Regional School District

MEMORANDUM AND ORDER

Plaintiffs, M r . G. and M s . K., (the “Parents”) are the

parents of “EG,” a 15-year-old student who qualifies for special

education and related services under the Individuals with

Disabilities Education Act (“IDEA”),

et seq.

They filed this action against Timberlane Regional School

District (the “District”) on May 1 8 , 2004 1 appealing four due

process hearing decisions pertaining to EG’s Individualized

Education Program (“IEP”) and placement during the 2003-04 and

2004-05 school years. EG’s parents claim that the District

failed to provide EG with a free appropriate public education

1 Plaintiffs filed amended complaints on December 2 1 , 2004 (Doc. N o . 19) and January 1 3 , 2005 (Doc. N o . 2 1 ) . (“FAPE”) as required by the IDEA. More specifically, they allege

that the District violated their procedural rights to participate

in EG’s education and failed to properly implement EG’s IEP.2

They seek an order reversing the hearing officers’ decisions

regarding parental involvement and the District’s implementation

of the IEP, awarding prospective payment for placement in a

private school, awarding compensatory education for a two-year

period, and awarding litigation costs and expenses. Because I

determine that the District satisfied the IDEA’s procedural

requirements and implemented the parent-approved IEP in a manner

reasonably calculated to allow EG to receive educational

benefits, I affirm the decisions below.

2 It is extremely difficult to discern the scope of plaintiffs’ complaint and supporting briefs. According to M s . K.’s testimony at a preliminary injunction hearing on April 1 9 , 2006, she has prepared her court submissions using dictation software. The software’s output, to put it mildly, is far from perfect. After thoroughly reviewing plaintiffs’ submissions and the transcript of a November 1 8 , 2004 scheduling conference during which I endeavored to clarify with plaintiffs the scope and contours of their arguments (Doc. N o . 2 0 ) , I have attempted, to the best of my ability, to characterize and address each of plaintiffs’ arguments. To the extent plaintiffs contend that I have either neglected or misconstrued any of their arguments, I deem such arguments to be waived because they are indecipherable.

-2- I. BACKGROUND3

EG was born on June 1 , 1991. (Vol. 1 , p . 11000). She has a

nonverbal learning disability (NVLD), Attention Deficit

Hyperactivity Disorder (“ADHD”), and diabetes. (SD Finding of

Fact #1– Granted; Vol. 5 , p p . 17007, 17060). Between May 2000

and November 2002, the time period representing the end of the

fourth grade, all of the fifth grade and part of the sixth grade,

the Parents home-schooled EG. (Vol. 1 , p p . 11021, 11022; Vol. 5 ,

p p . 17007, 17056, 17059, 17060; Vol. 4 , pg. 13856). In November

2002, EG began attending Timberlane Regional Middle School on a

diagnostic IEP that ran from November 6, 2002 until January 2003.

(Vol. 1 , p p . 15086-087).

A. The IEP

Plaintiffs approved and signed an IEP for EG that covered

the period from January 1 4 , 2003 to January 1 4 , 2004. (Vol. 1 ,

p p . 15097-117). Both of EG’s parents, as well as the appropriate

teachers and administrators, attended the January 9, 2003 IEP

meeting at which the District drafted the plan. The IEP

3 Much of the background is taken from the parties’ joint statement of material facts (Doc. N o . 1 2 7 ) .

-3- identifies EG as a student with disabilities that effect all

areas of academic performance and indicates that EG is easily

distracted. Achievement test scores support these findings.

(Id. at 15095). The IEP identifies specific goals, including

increasing functional math, reading, writing, and overall

everyday skills. It states that EG needs either small group

instruction or mainstreaming with assistance from a

paraprofessional in classwork, social interactions, and

assimilation. The IEP proposes numerous modifications to the

regular education curriculum including, but not limited t o ,

extended time to complete tasks, alternative assessments,

individualized grading based on quality rather than quantity of

homework, constant reinforcement and reassurance, preferential

seating, attendance allowances and waiver of the tardy policy due

to EG’s diabetes, and use of modified or parallel curricula

materials as necessary for academic achievement. (Vol. 1 , pg.

15102). The IEP requires the District to provide EG’s parents

with progress statements through regular report cards and half-

year objective reports. The IEP provides for special education

in reading, math, and language arts in the Resource Room for 12

hours per week, modified mainstream education in other courses

-4- for 16 hours per week, and special education therapy.

B. Hearing One

On November 2 1 , 2003, approximately one year after returning

EG to the public school system, the Parents filed a request for a

due process hearing (“Hearing One”) with the New Hampshire

Department of Education (the “Department”). The Department then

assigned the case to Hearing Officer LeBrun. (Vol. 1 , p p .

11000-02). At the time of the hearing, EG was a seventh-grade

student. (Id. at 11088). On January 9, 2004, the Parents and

District attended a pre-hearing conference. (Vol. 1 , p p .

12001-16). The Parents submitted a list of issues (Id. at

11016-17) which the hearing officer concluded were sufficient.

(Id. at 11062). These issues included challenges to the

District’s implementation of EG’s IEP in both the sixth and

seventh grades. (Id. at 11016-17). On January 1 2 , 2004, the

hearing officer issued a pre-hearing conference order

establishing, inter alia, hearing dates of January 22 and 2 7 ,

2004, dates agreed upon by the parties, and indicating that the

Parents would present their evidence first. (Id. at 11062;

12011-14). In response to a discovery order (Id. at 11062),

-5- counsel for the District outlined for the hearing officer all of

the records that the District had provided to the Parents. (Id.

at 11067-68).

On January 1 3 , 2004, the Parents filed another hearing

request (“Hearing Two”) (Id. at 11096-102). On January 2 0 , 2004,

two days before testimony was to begin in Hearing One, the

Parents requested the hearing officer to consolidate Hearings One

and Two. (Id. at 11093). The hearing officer denied the request.

(Id. at 11118). On January 2 1 , 2004, M s . K. asked the hearing

officer to postpone the hearing scheduled for the following day.

The hearing officer refused to speak with M s . K. without the

District present. (Id. at 11117). After the hearing officer left

for the day, M s . K. sent him a fax; the District received a 40-

page fax after 5:00 p.m. that same day. (Id.)

As the hearing officer had not granted a postponement of the

hearing, a request he found untimely, he allowed the hearing to

go forward on January 2 2 , 2004 with Kathleen Cotts, a case

coordinator and special education teacher, testifying on behalf

of the District. (Id., p p . 12017-43). Cotts testified that she

had experience with NVLD through students and workshops, that she

taught EG math, language and reading, and that EG performed

-6- significantly below grade level. Cotts said she met with EG’s

regular education teacher once per week, that EG did not often do

homework, and that EG received easier homework assignments

because she received little parental support. Cotts testified

that at times M s . K. returned EG’s student agenda book with a

note indicating that EG would not be doing her assigned homework.

Cotts said EG enjoyed her cooking group.

That same day, the hearing officer issued a supplemental

order, notifying the Parents that their request for a

postponement was denied, that day two of the hearing would occur

on January 2 7 , 2004, permitting the Parents to have an additional

day for testimony, and prescribing details regarding further

communications. (Id. at p p . 11117-19). The hearing officer also

concluded that the District had made all student records

available to the Parents. (Id. at 11117). On January 3 0 , 2004,

the hearing officer affirmed his order pertaining to records.

(Vol. 5 , p . 17000; Vol. 1 , p p . 17012, 17060). 4 The District made

4 The hearing officer’s January 22 and 3 0 , 2004 disposition of the allegations pertaining to the Parents’ right to access records is consistent with a July 1 5 , 2003 ruling issued by the Department pursuant to N.H. Code Admin. R. 1127.01 and

brought by the Parents alleging a similar denial of access which the Department also found to be unsubstantiated.

-7- Crotts, who testified on January 2 2 , 2004, available for cross

examination. (Vol. 5 , p . 17058). On cross examination, Crotts

indicated that the District modified EG’s curriculum on an

ongoing and as-needed basis with input from EG’s teaching

assistant and regular education teacher where appropriate. She

testified that the District taught EG a modified seventh-grade

curriculum and that EG is capable of doing the work and being

successful.

On January 2 7 , 2004, School Psychologist John Secor

testified for the District. He indicated that the approved IEP

addresses the needs of an NVLD student, that the modifications

were appropriate, and that the IEP reflected the findings and

recommendations of a neuropsychological evaluation of EG. Beth

Baddeley, a seventh-grade guidance counselor, testified that she

provides EG with the counseling services called for in the IEP.

She said EG is pleasant, quiet and cooperative, and shines with

(Vol. 5 , p p . 15182-86). On August 2 1 , 2003, the Department reaffirmed its decision, finding no substantiation to the Parents’ Complaint. However, the Commissioner of Education emphasized that even if the District had failed to copy certain materials for the Parents, a “textbook” and “curriculum” are “not educational records as it do[es] not contain information directly related to a student.” (Id. at 15215).

-8- her peers. She opined that, although progress was inconsistent,

EG made overall improvements towards her goals and objectives.

Christopher O’Callahan, the special education department head,

also testified for the District. He said he spent a lot of time

with EG and that team members engaged in ongoing discussions over

EG’s IEP and progress. He said the educators focus on EG’s

processing, writing and verbal language deficits, use untimed and

repetitive practices, access the general curriculum with

modifications, and employ a student-to-teacher ratio of

approximately 3-to-1. He said that the District issued progress

reports and made numerous unsuccessful attempts to have progress

meetings with EG’s parents. Suzanne Beaupre, EG’s science and

homeroom teacher, said that EG used a seventh-grade curriculum as

modified by the IEP, that she felt EG was making progress, and

that the District followed the IEP. She said she attended a

meeting on October 1 5 , 2003, but that EG’s parents terminated the

meeting after five minutes declaring that they “will go straight

to Due Process.”

Plaintiffs then presented four witnesses: Lisa McManus,

educational director of a private school called the Learning

Skills Academy (“LSA”); District Superintendent Douglas McDonald;

-9- Jackie Oros, sixth grade curriculum coordinator; and M s . K.

McManus testified under subpoena about LSA’s program and

generally about developing and implementing IEPs. She did not

know EG. McDonald testified under subpoena about matters

irrelevant to the implementation of EG’s IEP. Oros said she

works with teachers to align curriculum with New Hampshire

standards but that she was not involved in special education.

M s . K. then testified that in her opinion EG performed well

during home-schooling with the exception of math. The parents

believed EG needed special instruction in math and thus re-

enrolled her in public school. M s . K. indicated a willingness to

work with the IEP team, believed EG performed at grade level, and

said she received no progress reports except for regular report

cards. She said she was appalled by the limited work sample the

District provided to her and that EG expressed despair and apathy

toward school. She accused the District of having an aide answer

EG’s standardized test questions and declared that EG only needs

a modified curriculum in math.

On March 2 5 , 2004, the hearing officer issued a decision.

(Vol. 5 , p p . 17054-60). He concluded that the Parents had failed

to establish that the District had committed any procedural

-10- violations that constituted a denial of FAPE. (Id. at 17060).

He concluded that the Parents had failed to establish that the

District had improperly or inappropriately implemented the IEP,

which the Parents had signed, or denied the child FAPE in any

way. (Id.) He also concluded that the staff working with EG were

adequately trained and prepared and that the District had not

withheld documentation or information from the Parents. (Id.)

The hearing officer granted all of the District’s requests

for Rulings of Law and all but four requests for Findings of

Fact. (Id. at 17060, 17003-06, 17007-13). Among the District’s

relevant Findings of Fact the hearing officer granted include the

following: (1) M s . K. signed the IEP running from January 2003 to

January 2004 (Vol. 5 , p p . 15097-117, 17008; Finding of Fact # 1 3 ) ;

(2) EG receives a modified curriculum but one that follows the

general curriculum used with other students (Findings of Fact #s

1 8 , 2 0 , 2 1 , 2 2 , 25 and 2 7 , Vol. 5 , p p . 17008-10); (3) EG is

educated in a self-contained classroom for reading, math and

language arts for a total of 12 hours per week (Finding of Fact

#16, Vol. 5 , p p . 17008, 15115); (4) EG takes part in modified

mainstream social studies and science courses and is fully

mainstreamed in unified arts classes (Finding of Fact # 2 0 , Vol.

-11- 5 , p p . 17009, 15098); (5) EG’s IEP contains measurable

percentages, portfolio review ,and regular testing as objective

means to measure her progress (Finding of Fact #15, Vol. 5 . p .

17008); (6) Progress may be measured using observations, notes,

portfolios and tests (Finding of Fact #30; Vol. 5 , p . 17010); (7)

On a trimester basis, the District notifies the Parents as to

EG’s progress via progress reports, a regular report card, and an

IEP report card, which, along with team meeting notes, document

compliance with EG’s IEP (Finding of Fact # 4 0 , Vol. 5 , p .

17011); (8) Mid-trimester reports are generated from a review of

EG’s work portfolio and consultations with teaching assistants

(Finding of Fact # 4 2 , Vol. 5 , p . 17011); and (9) The District

attempted to hold regular progress meetings with the Parents on

numerous occasions. (Finding of Fact #43, Vol. 5 , p . 17011)

C. Hearing Two

As indicated above, on January 1 3 , 2004, the Parents filed a

second hearing request while the first due process hearing was

pending. (Vol. 6, p p . 21005-15). At that time, EG, age 1 2 , was

attending Timberlane Regional Middle School as a seventh-grade

student. (Vol. 1 2 , p p . M21152, M27022, M27094). Because the

-12- hearing officer in Hearing One declined to consolidate the two

hearings, on January 2 8 , 2004, the Department appointed S . David

Siff to preside over the hearing. (Vol. 1 2 , p . M21024). At the

Parents’ request, on January 3 0 , 2004, Hearing Officer Siff

issued an order rescheduling the pre-hearing conference. (Vol. 6,

p . 21080, Vol. 1 2 , p . M21079).

The District filed a Motion in Limine (Vol. 1 2 , p p .

M21095-98) and a Motion for Summary Judgment. (Vol. 1 2 , p p .

M21117-20). In its Motion in Limine, the District sought to

ensure that the hearing officer did not entertain claims being

entertained in Hearing One. (Vol. 1 2 , p p . M21095-98). On

February 2 7 , 2004, M s . K. and the District attended a pre-hearing

conference. (Vol. 6, p . 22001-98; Vol. 1 2 , p . M21150). M s . K.

represented that the three issues pending in Hearing One were:

(a) the student’s involvement in the general curriculum; (b)

failure of the District to train the student’s service providers;

and (c) failure to implement the student’s IEP. (Vol. 1 2 , p .

M21150). M s . K. agreed that she could not relitigate matters

pending before Hearing Officer LeBrun. ( I d . ) .

On February 2 7 , 2004, the hearing officer issued a pre-

hearing conference report in which he narrowed the focus of

-13- Hearing Two to three issues: (a) whether EG’s then-current

placement was appropriate; (b) whether the District failed to

implement EG’s IEP between 11/03/03 and 1/13/04 (the time between

the hearing requests in Hearing One and Hearing T w o ) , and only to

the extent the issue is not addressed in Hearing One; and (c)

whether the District inappropriately marked EG as absent and

reduced her grades between the time of the first and second

hearing requests. (Vol. 1 2 , p . M21151).

A hearing was held on March 1 6 , 2004 (Vol. 6, p p . 22099-302)

and March 2 2 , 2004. (Vol. 6, p p . 22303-451). On April 1 , 2004,

the hearing officer issued a decision. (Vol. 1 2 , p p . M27086-95).

The hearing officer placed the burden of persuasion on the

Parents “as the party challenging the status quo in the middle of

a school year covered by an agreed IEP.” (Id. at M27092). The

hearing officer granted all but four of the District’s Requests

for Findings of Fact and all but three Rulings of Law. (Id. at

M27094; M27022-30; M27036-42). He noted that the Parents did not

challenge the process for development and agreement on the

January 2003 – January 2004 IEP. (Id. at M27092). The Parents

claimed one procedural violation: the District’s decision to

convene a meeting to develop an IEP on January 7 , 2004 when the

-14- Parents had requested a five-day extension to review records.

(Id. at M27087). The hearing officer concluded that the District

had made reasonable attempts to secure the Parents’ participation

but they had elected not to participate in the meeting. (Id.) He

found that although the District had offered the Parents nine

dates to participate in an IEP meeting, the Parents never

responded to the District’s offered dates. (SD Finding of Fact

#38 – Granted;

at M27027, M27094). The Parents consistently

refused mailings and insisted upon preconditions for their

participation. (Id. at M27093). He agreed that the Parents had

“failed to cooperate with the special education process.” (SD

Ruling of Law #31 – Granted;

at M27041, M27094).

The hearing officer concluded that the Parents did not

establish that the District denied them the opportunity to

inspect EG’s records. He found that on June 1 7 , 2002, the

District produced a copy of the student’s special education file

and further, that the Parents could inspect educational records

during normal business hours. (Id. at M27087). He found that the

Parents had signed the student’s IEP, which indicated that

academic testing would be done and thus no further consent was

required. (SD Rulings of Law #s 1 9 , 20 – Granted:

at M27039,

-15- M27094). The hearing officer further found no reasonable basis

to conclude that the agreed-upon placement was inappropriate

between November 1 3 , 2003 and January 1 3 , 2004. (Id. at M27093).

The hearing officer also rejected the Parents’ assertion that the

District had failed to implement the IEP during the two months in

question. (Id.) He agreed that EG had made progress in

occupational and speech therapies (SD Finding of Fact #s 1 1 , 17 -

Granted;

at M27023, M27024, M27094), and concluded that the

student was making reasonable progress despite the Parents’

refusal to encourage EG to do her homework. He stated that the

“Parent is deliberately hindering Student’s participation in the

educational program by refusing to permit Student to complete

homework.” (SD Finding of Fact #s 2 5 , 27 – Granted;

at

M27094, M27025).

He agreed that standardized test results demonstrate that EG

had made progress in Broad Reading, Broad Math, Broad Written

Language and Written Expression and that she had not regressed in

any area. (SD Finding of Fact #s 2 8 , 30 – Granted;

at M27025,

M27026, M27031, M27094; SD Ruling of Law #12 – Granted;

at

M27038, M27094). The hearing officer found that the service

providers and special education teacher reported on EG’s progress

-16- on a trimester basis. (SD Finding of Fact #s 1 0 , 1 4 , 1 5 , 1 6 , 26 -

Granted; Vol. 1 2 , p p . M27023, M27024, M27025, M27094). He agreed

that the Parents produced no evidence that EG’s grades were

reduced or that she was penalized for lack of homework production

when medical issues were present. (SD Finding of Fact # 3 1 , Ruling

of Law #13 – Granted; Vol. 1 2 , p p . M27026, M27038, M27094). The

hearing officer also found that there was no credible evidence

that the student’s absences, even if for medical reasons,

rendered the District’s placement inappropriate. (Vol. 1 2 , p .

M27094).

D. Hearing Three

On March 1 5 , 2004, one day before testimony was to begin in

Hearing Two, the Parents filed another hearing request. (Vol. 9,

p p . 31000-14). On March 2 6 , 2004, the Department appointed S .

David Siff to preside over the hearing. (Vol. 9, p . 31015). The

District filed a Motion to Dismiss (Vol. 1 2 , p p . M31019-32), an

Addendum to its Motion to Dismiss (Vol. 1 2 , p p . M31065-67) and a

counterclaim seeking an order affirming the appropriateness of

its proposed IEP running from January 2004 to January 2005 to

which it had attempted to secure parental consent and its

-17- placement. (Vol. 1 2 , p M31035). The Parents had repeatedly

rejected the January 2004-05 proposed IEP and placement. (Vol. 9,

p p . 31084-100).

On April 8 , 2004, Hearing Officer Siff held a pre-hearing

conference, seven days after rendering his decision in Hearing

Two. (Vol. 9, p . 32000). The Parents did not appear for the pre-

hearing conference nor did they seek a continuance. (Id.; Vol.

1 2 , p . M31070). M r . G. and M s . K. were at Timberlane Middle

School that morning, wherein M s . K. was wearing a sign and

picketing to protest EG’s educational conditions. (Vol. 9, p .

32000; Plaintiffs’ Amended Complaint ¶148). The Parents sent

their daughter to school with a note on her bag saying something

to effect of “why are you stealing my child’s education.” The

Parents went into the principal’s office and had a heated

discussion.

The hearing officer noted that the Department’s hearing

technician had denoted the issues in Hearing Three to be IEP,

placement, testing and compensatory education. (Id. at 31015,

32001). The hearing officer opined that it appeared as if “most

of these issues if not all of these issues are a rehash of the

issues from 2002/2003 and into 2004.” (Id. at 32001; Vol. 1 2 , p .

-18- M31070). The hearing officer allowed the Parents 10 days to

submit an Objection to the District’s Motion to Dismiss. (Id.)

Assuming that he did not dismiss the Parents’ hearing request, he

ordered the Parents to present their case first on April 2 7 ,

2004. (Vol. 9, p . 32003; Vol. 1 2 , p . M31070). As there was some

concern about the ripeness of the proffered IEP and placement,

the District withdrew its counterclaim and decided to file its

own hearing request (Hearing Four). (Vol. 9, p p . 32001-04; Vol.

1 0 , p p . 41000-02).

On April 1 2 , 2004, the Parents filed an Objection to the

District’s Motion to Dismiss along with an Affidavit. (Vol. 1 2 ,

p p . M31072-80). On April 1 3 , 2004, Hearing Officer Siff issued

an order dismissing the Parents’ hearing request. (Vol. 9, p p .

37000-02). The hearing officer pointed out that M s . K. had

previously acknowledged to this same hearing officer that she was

barred from relitigating issues that had already been entertained

in a previous hearing. (Id. at 37000). He found that except for

one claim — the assertion that on or about January 5 , 2004 the

District had conducted testing of EG without parental consent —

all of the Parents’ allegations had been addressed in Hearings

One and Two. (Id.) He also concluded that the Parents were

-19- seeking compensatory education in the form of an order placing EG

at Learning Skills Academy, the same placement the hearing

officer rejected in Hearing Two. (Id. at 37001). The hearing

officer concluded that even if the District had not given the

Parents proper notice of testing, such a failure would not

justify an award of compensatory education in light of the

progress the student had been making. (Id.) Under the doctrines

of res judicata and collateral estoppel, the hearing officer held

that the Parents were barred from bringing forth any claims that

either were raised or could have been raised in Hearings One and

Two. (Id. at 37002).

E. Hearing Four

On April 1 5 , 2004, the District filed a hearing request

seeking an order affirming its proposed IEP and placement. (Vol.

1 0 , p p . 41000-02). The District alleged that EG’s IEP had

expired on January 1 3 , 2004. The District had made repeated

attempts to schedule meetings with the Parents to discuss IEP

and placement. A meeting was scheduled for April 5 , 2004, but

the Parents rejected the proposed IEP and placement prior to the

meeting and refused to discuss the IEP and placement at the

-20- meeting. (Id. at 41001, 45089-192).

On April 1 9 , 2004, the Department appointed S . David Siff to

preside over the hearing. (Id. at 41003). The scheduling notice

set forth a pre-hearing conference for May 7 , 2004 at 9:00 a.m.

and hearing dates of May 20 and 2 1 , 2004. (Id.) On May 5 , 2004,

the Parents called the hearing officer demanding a continuance

due to multiple medical appointments for the student scheduled on

that day. (Id.) The hearing officer advised the Parents that

they must contact the District and ask for its view of a

continuance, and if they agreed, the Parents needed to provide

alternative agreed upon dates. (Id.) The Parents advised the

hearing officer that they do not talk with the District’s

attorney or staff. (Id.) The hearing officer advised the Parents

that he would not grant a continuance over the phone, without

hearing from the District and without alternative agreed upon

dates. (Vol. 1 0 , p . 42001; Vol. 1 2 , p . M41050). The hearing

officer noted for the record that the Parents have sought

continuances in the past and that the hearing officer had given

the same conditions to them at that time, consistent with the

information provided in the Department’s scheduling notice. (Vol.

1 0 , p p . 42002, 41005; Vol. 1 2 , p . M41050). The Parents advised

-21- that they would put their request in writing, which was received

on May 6, 2004. However, the request did not indicate that the

Parents had consulted with the District, nor did it include

alternative pre-hearing and hearing dates. The only dates

offered were “after June 5th.” (Vol. 1 0 , p . 42002; Vol. 1 2 , p p .

M41041-43, M41050).

The Parents did not appear for the pre-hearing conference.

(Vol. 1 0 , p . 42000; Vol. 1 2 , p . M41050). At the pre-hearing

conference, the District advised the hearing officer that the

Parents had not discussed a continuance with the District and the

District objected to a continuance. The District represented

that the student’s IEP expired on January 1 3 , 2004, and the

school year was rapidly coming to a close. The District asserted

that the Parents had failed to cooperate in scheduling and

meeting to discuss the IEP. (Vol. 1 2 , p . M41050). The hearing

officer reviewed the Parents’ request to dismiss the hearing

initiated by the District and substitute it with a parental

request for a hearing. He advised that if the Parents intended

to assert any new claims, not already previously litigated in

Hearings One and Two, they would need to put their claim in

writing by May 1 1 , 2004. (Id. at M41051). In particular, the

-22- hearing officer stated that if the Parents prefer some

alternative IEP, they must put their request in writing. (Vol.

1 0 , p . 42005).

Based on the Parents’ repeated assertions of harm to the

student, the District filed a Motion to Compel Production of

Information, in particular, the release of medical information to

substantiate their claims of harm. (Vol. 1 0 , p p . 41007-09). The

hearing officer granted the request and directed the Parents to

indicate in writing by May 1 1 , 2004 the “medical or psychological

providers who have been consulted in connection with any harm

claimed caused by the District, and provide copies of the office

records and any written information provided by such provider

relative to the claim of harm.” If the Parents failed to produce

such information, the hearing officer ruled that they would be

barred from introducing such evidence during the hearing, either

in the form of direct or cross examination testimony. (Vol. 1 0 ,

p p . 42003-04; Vol. 1 2 , p . M41051).

The hearing officer directed that the District present its

case first, on May 2 0 , and the Parents on May 2 1 , 2004. (Vol. 1 0 ,

p . 42006; Vol. 1 2 , p . M41052). The hearing officer ordered that

any changes to the hearing schedule must be made by May 1 1 , 2004,

-23- and directed the Parents to contact the District’s counsel to

make such arrangements. (Id.) On May 2 0 , 2004, the District came

prepared to present its case in chief, but the Parents did not

appear. (Vol. 1 0 , p p . 42010-11; 47000). The District filed a

Motion for Summary Judgment. (Vol. 1 0 , p p . 41059-65; Vol. 1 2 , p p .

41066-108). In accordance with the hearing officer’s suggestion

(Vol. 1 0 , p . 42007), the District drafted Affidavits of its

witnesses which it submitted in lieu of testimony, given the

Parents’ decision not to participate. (Vol. 1 2 , p p . M41094-108).

On May 2 1 , 2004, the hearing officer rendered a decision.

(Vol. 1 0 , p p . 47000-04). He noted the many efforts that the

District had made to secure parental participation in the

development of the IEP, but that M s . K. had returned the draft

IEP prior to the meeting with the notation: “We reject your IEP

and your placement.” (Id. at 47002-03). Although the Parents

attended the meeting on April 5 , 2004, they refused to discuss

the IEP or anything but their desire to have EG attend an

out-of-district placement. (Id.) The Parents did not identify

any changes to the IEP they wished to see. (Id.) The hearing

officer granted the District’s request to amend the IEP to

specify the dates in which it runs: April 5 , 2004 to June 1 7 ,

-24- 2004 and August 3 1 , 2004 to April 4 , 2005. (Id. at 47002). The

hearing officer upheld the proposed IEP and concluded that it

could continue to be appropriately implemented in the Timberlane

Middle School. (Id. at 47003-04; 45074-88; 45257). The hearing

officer also affirmed the appropriateness of the Nursing Plan

and Health Plan (Vol. 1 0 , p . 47001), and dismissed the Parents’

counterclaims as they chose not to attend the pre-hearing

conference or hearing and explain their positions. (Id. at 47000,

47003-04).

II. ANALYSIS

Plaintiffs have appealed all four hearing decisions,

asserting a broad and often difficult to decipher array of

procedural and substantive challenges. In addressing their

appeal, I first discuss the IDEA and then consider their

challenge to each hearing decision in turn.

A. The IDEA

i. Purpose

The purpose of the IDEA is to “ensure that all children with

disabilities have available to them a free appropriate public

-25- 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).5

A disabled child’s right to a free and appropriate public

education is assured by the development and implementation of an

IEP. See Honig v . Doe,

(1988).

ii. Procedural Safeguards

The IDEA provides children with disabilities and their

parents with a number of important procedural safeguards. See

(a). A disabled child’s parents must be included as

part of the team that develops and reviews a child’s IEP. See

§ 1414(d)(1)(B). Parents are also entitled t o : (1) examine

all records relating to the child; (2) participate in meetings

concerning the child’s educational placement; (3) obtain an

independent educational evaluation of the child; (4) receive

written notice of any proposal to alter or to refuse to alter the

child’s educational placement; and (5) present complaints with

5 New Hampshire implements the IDEA through its special education law,

-C, and adopts by reference the federal regulations as to special education for disabled students in private schools. N.H. Admin. Rules, Ed. 1117.03 (2003).

-26- respect to any matter relating to the identification, evaluation

or educational placement of the child. See

§ 1415(b).

I will set aside an IEP based on a procedural deficiency

only if I find “‘some rational basis to believe that procedural

inadequacies 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 benefits.’” Hampton Sch. Dist. v . Dobrowolski,

8 , 54 (1st Cir. 1992) quoting Roland M . v . Concord Sch.

Comm.,

(1st Cir. 1990). See also L t . T.B. v .

Warwick Sch. Comm.,

0 , 84-85 (1st Cir. 2004).

iii. Adequacy and Implementation of the IEP

An IEP is considered appropriate if it “provides instruction

and support services which are reasonably calculated to confer

educational benefits to the student” in the least restrictive

environment. Dobrowolski, 976 F.2d at 5 0 . An IEP must contain

both a statement of the child’s “present levels of performance”

and “a statement of the special education and related services

and supplementary aids and services to be provided to the child.”

(d)(1)(A). IEPs must be revised not less than

-27- annually. See

§ 1414(d)(4)(A).

While parents are always free to seek optimal educational

opportunities for their children, under federal law “the benefit

conferred [by the IEP] need not reach the highest attainable

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

potential.” Lenn v . Portland Sch. Comm.,

(1st Cir. 1993). An IEP can provide FAPE even though it “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,” Amann v . Stow Sch. Sys.,

4 4 , 651 (1st Cir.

1992) (emphasis in original) (internal quotations omitted). The

IDEA, however, does require FAPE, which courts have interpreted

to mean that the school must provide “instruction and support

services sufficient ‘to permit the child to benefit educationally

from that instruction.’” Roland M.,

(quoting Bd.

of Educ. v . Rowley,

(1982)).

Parents challenging the adequacy of an IEP must show that

there was no reasonable probability that their child could

benefit from i t . I review the record to see if a preponderance

of the evidence supports the hearing officer’s decision that the

IEP was appropriate and that the District could implement i t .

-28- See Roland M.,

. Because educational policy is

the particular expertise of the local educational authority, I

will ordinarily find a school-proposed IEP acceptable if it is

based upon an “accepted, proven methodology.”

(recognizing that judges should give “due weight” to a state

agency’s decision in order to “prevent judges from imposing their

view of preferable educational methods upon the States”)

(internal quotations omitted). See also L t . T.B.,

(“courts are ill-equipped to second-guess reasonable choices that

school districts have made among appropriate instructional

methods”). In assessing the adequacy of the IEP, I do not

consider whether another program would have been “better” but

only whether the District’s IEP was reasonably calculated to

provide EG with some educational benefit, and whether Timberlane

Middle School could implement i t . See

Plaintiffs go one

step further and argue that — regardless of whether the District

could implement the IEP — it failed to do s o . Here my review is

one of “involved oversight.” Roland M.,

.

iv. Private Placement

The IDEA does not require school districts to pay for

-29- tuition at private schools except under limited circumstances.

See Greenland Sch. Dist. v . Amy N.,

5 0 , 157 (1st Cir.

2004). A court or a hearing officer may, however, require a

school district to pay for private school tuition if it finds

that the school district is unable to provide FAPE or did not

make FAPE available in a timely manner prior to the private

school placement. See

(A)(10)(b), (c)(I)-(ii).

Parents who place their children in private school without the

prior consent of a School District do so at their own financial

risk. See Sch. Comm. of Burlington v . Dep’t of Educ.,

(1985). I review the denial of private placement in

Hearing Two to see if the weight of evidence supports the hearing

officer’s determination that the District provided FAPE at

Timberlane.

B. Hearing One

Plaintiffs challenge the Hearing One decision on substantive

grounds. Specifically, they argue that the hearing officer erred

in rejecting their claims that the School District failed to

implement the IEP, failed to teach EG the general curriculum, and

employed improperly or inadequately trained teachers.

-30- In making these assertions, plaintiffs rely solely on their

own opinions and observations. Aside from M s . K.’s subjective

opinion that EG performed well during home-schooling, that her

work declined upon attending Timberlane, and that EG was unhappy

at school, plaintiffs offered no evidence to bolster their case.

Apart from commenting on her daughter’s apparent unhappiness at

school, there is no evidence that M s . K. possess the educational

qualifications or credentials to credibly assess EG’s schoolwork

or progress. Conversely, the District provided credible

testimony from numerous sources, all of which support the hearing

officer’s ruling that the District properly implemented the IEP

and the modified curriculum plaintiffs agreed to in approving the

IEP.

The hearing officer found credible the testimony of Kathleen

Cotts, EG’s case coordinator and special education teacher, Beth

Baddeley, EG’s guidance counselor, Christopher O’Callahan, the

special education department head, and Suzanne Beaupre, EG’s

science and homeroom teacher. Each of these witnesses testified

that they taught EG using the special education and modified

regular education methods described in the IEP. Like the hearing

officer, I find the testimony of those who taught EG valuable in

-31- determining whether the District implemented the IEP and agree

with his decision.

Lastly, plaintiffs’ doubts about the abilities and training

of District staff are not supportable given the evidence produced

at the hearing concerning their training and experience.

C. Hearing Two

Plaintiffs challenge the Hearing Two decision on both

procedural and substantive grounds.

I. Procedural Violations

In their procedural challenge, plaintiffs contend that the

District improperly held a team meeting without them on January

7 , 2004 and failed to provide EG’s school records to them as

required and requested. The hearing officer rejected these

claims, finding no procedural violations of any kind. Upon

review of the record, I agree with his assessment.

Parents have a right to participate in the IEP process.

Roland M.,

. If their allegations of exclusion

are true, this could potentially be violation of the IDEA’s

procedural requirements. The District must provide a reasonable

opportunity for parental participation in IEP meetings, but may

-32- conduct such meetings without parental participation if it is

unable to convince a parent to attend and has made reasonable

attempts to gain parental participation.

(d)(1)

(B)(I);

(d).

Here, the record shows that the District satisfied these

obligations. Plaintiffs attended the January 9, 2003 IEP

development meeting and signed off on the IEP. Then, after

agreeing to the terms of the IEP, plaintiffs time and again

neglected to attend team meetings of which they were informed and

to which they were invited. When they did attend meetings, M s .

K. often made sweeping and unqualified declarations of what she

felt EG needed and refused to engaged in a dialogue with the

District regarding EG’s education. Instead, she withdrew from

the meetings and threatened immediate appeal to a Due Process

hearing. I conclude that the District made all reasonable

efforts to secure plaintiffs’ participation and reasonably

proceeded without them in the best interests of EG.

As for requested documents, the District stated that it had

complied with all document requests and requirements for

documents in its possession. A signed receipt dated June 1 7 ,

2003 reveals that EG’s parent received a copy of her special

-33- education file. Testimony indicated that her file was also open

to plaintiffs for review at any time during regular business

hours and that plaintiffs had made not made any requests that

were denied. Despite plaintiffs’ unsupported allegations to the

contrary, I have no reason to disbelieve the District’s

representation and thus affirm the hearing officer’s ruling on

this matter.

ii. Private Placement

Plaintiffs also challenge the decision in Hearing Two

denying EG private placement. Both at the hearing and now,

plantiffs unilaterally declared that EG required private

placement prior to the expiration of the agreed IEP. EG’s

parents insisted that she required an out-of-district placement

solely based on their own observations and opinions. M s . K.

testified that EG’s work performance was on par for her grade

level during home-schooling, but that it declined once she

returned to public school. M s . K. offered no evidence that she

possesses any training or qualifications to accurately assess

EG’s student performance. She apparently based her opinion on

EG’s answers to questions from typical 6th grade textbooks which

-34- M s . K. asked her. The remainder of testimony presented by

plaintiffs failed to demonstrate the absence of FAPE at

Timberlane. If anything, it bolstered the District’s position

that EG’s placement at Timberlane was adequate and appropriate.

The District presented a thorough and convincing case on

both direct and cross examination describing EG’s public school

experience, the manner in which the District implemented the IEP,

and statements by numerous teachers, counselors, and

administrators that EG continued to make progress at Timberlane.

Additionally, the District elicited credible testimony that EG’s

health needs could be better served at public school than at LSA.

In light of the strong evidence supporting the District’s ability

to implement EG’s IEP at the time, and the relative dearth of

evidence to the contrary, I will not disturb the hearing

officer’s decision.

Lastly, I see no evidence, as plaintiffs contend, that the

District penalized EG for medical absences or inappropriately

marked her absent or reduced her grades as a result. More

supportable is a contrary conclusion — which the hearing officer

observed — that the plaintiffs were “deliberately hindering

Student’s participation in the educational program.” (Vol. 1 2 ,

-35- p . M27094).

D. Hearing Three

In Hearing Three, the hearing officer dismissed all but one

of plaintiffs’ claims under the principles of res judicata and

collateral estoppel, and dismissed the remaining claim as seeking

an improper remedy (compensatory education) for the violation

alleged (testing without parental consent). Because I can make

out no specific identifiable argument in plaintiffs’ Decision

Memorandum with respect to Hearing Three, I will assume they

challenge the final judgments.

“The doctrine [of res judicata] precludes litigation in a

later case of matters actually litigated, and matters that could

have been litigated, in the earlier action.” Torromeo v . Town of

Fremont, N.H.,

(1st Cir. 2006). The elements

of a res judicata defense are: "(1) a final judgment on the

merits in an earlier proceeding, (2) sufficient identicality

between the causes of action asserted in the earlier and later

suits, and (3) sufficient identicality between the parties in the

two actions." Breneman v . United States,

3 , 38 (1st

Cir. 2004). Although, as the hearing officer observed,

-36- plaintiffs sought to rewrite numerous allegations to restate

their case, they cannot avoid the res judicata bar. Hearings One

and Two involved the same parties, same issue (private placement

and IEP implementation), and final judgments. Accordingly, the

officer properly barred relitigation of the same in the hearing.

Additionally, I agree with the hearing officer’s dismissal

of plaintiffs’ request for compensatory education. Compensatory

education is relief awarded under the IDEA to remedy past

violations. See Phil v . Mass. Dep’t. of Educ.,

8 4 , 188

(1st Cir. 1993). Here, I see no violation by the District where

the IEP required no prior consent to test EG, nor do I believe

compensatory education would be the proper remedy for the alleged

violation.

E. Hearing Four

Plaintiffs also challenge the decision in Hearing Four to

approve the District’s proposed IEP for the 2004-05 school year.

Because plaintiffs’ appeal of Hearing Four was untimely, I hold

that it is barred by the statute of limitations.

A party appealing a final administrative decision in a

special education due process hearing pursuant IDEA must do so

-37- within 120 days of receipt of the decision.

-C:16-b(IV). On May 2 1 , 2004, the hearing officer issued

his decision in Hearing Four. (Vol. 1 0 , p p . 47000-04). The

District received this decision on May 2 5 , 2004. (Doc. N o . 2 3 ,

Def.’s Answer to Amended Complaint at 42-43). The 120-day

statute of limitations for appealing the Hearing Four decision

thus expired on September 2 3 , 2004. On September 16 (Doc. N o . 7

at ¶¶ 3-4) and November 1 8 , 2004 (Doc. N o . 20 at 5 ) , plaintiffs

acknowledged to this court that they had not previously appealed

the Hearing Four decision, but that they intended to amend their

complaint to add such an appeal. It was not until December 2 1 ,

2004, however, that plaintiffs actually filed an Amended

Complaint, including for the first time their appeal of the

Hearing Four decision. (Doc. N o . 1 9 ) . Despite their prior

“intent” to appeal Hearing Four, they failed to do so within the

requisite statute of limitations.

In some cases, a claim asserted in an amended complaint may

“relate back” to the date of the original pleading. Fed. R. Civ.

P. 15(c). In order to do s o , the new claim must arise out of the

same conduct, transaction, or occurrence set forth in the

original pleading.

Here, plaintiffs filed their original

-38- complaint on May 1 8 , 2004 (Doc. N o . 1 ) , appealing the final

decisions rendered in Hearings One, Two, and Three. Because

Hearing Four had not yet occurred, I conclude that it did not

arise out of the same conduct, transaction, or occurrence as the

original complaint, and thus may not relate back.

Finally, I decline to apply the doctrine of equitable

tolling here. Under that doctrine, I may toll the statute of

limitations “if a plaintiff, in the exercise of reasonable

diligence, could not have discovered information essential to the

suit.” Gonzalez v . U.S.,

8 1 , 291 (1st Cir. 2002).

Equitable tolling is “appropriate only when the circumstances

that cause a plaintiff to miss a filing deadline are out of his

hands.”

(citations and internal quotations omitted).

Plaintiffs offer no explanation why they failed to appeal this

decision within the statute of limitations. Absent some showing

that this missed deadline was “out of their hands” I decline to

equitably toll the limitations period.

IV. CONCLUSION

For the reasons stated above, I affirm the decisions of the

-39- hearing officers and find that the District complied with the

procedural requirements of the IDEA and provided EG with FAPE at

all relevant periods.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

January 4 , 2007

cc: M r . G., pro se M s . K., pro se Jeanne M . Kincaid, Esq.

-40-