Lessard v . Wilton-Lyndeborough 05-CV-192-SM 04/23/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mark and Linda Lessard, Plaintiffs

v. Civil N o . 05-cv-192-SM Opinion N o .

Wilton-Lyndeborough Cooperative School District and The State of New Hampshire Dept. of Education, Defendants

O R D E R

Plaintiffs, Mark and Linda Lessard, appeal an administrative

decision issued by the New Hampshire Department of Education on

March 2 2 , 2005, upholding the appropriateness of the 2004-05

individualized education program (“IEP”) prepared for their

daughter, S.L. They assert that the IEP failed to provide S.L.

with a free appropriate public education, as mandated by the

Individuals with Disabilities Education Act (“IDEA”),

et seq. They also claim that the administrative hearing

itself was so fundamentally flawed and unfair that they were

deprived of due process. See Plaintiffs’ Decision Memorandum

(document n o . 95) at 2 . They seek both a judicial declaration

that S.L.’s IEP for the 2004-05 school year at Crotched Mountain

Rehabilitation Center was not appropriate and an order awarding

her compensatory educational services. Defendants, the Wilton-Lyndeborough Cooperative School

District (the “School District”) and the New Hampshire Department

of Education, assert that S.L.’s IEP was entirely adequate to

provide her with an appropriate education. Defendants also deny

that there were any procedural irregularities associated with the

due process hearing that were serious enough to call into

question the validity of S.L.’s IEP.

For the reasons set forth below, plaintiffs’ requests for

relief are denied and the decision of the hearings officer dated

March 2 1 , 2005 is affirmed.

Legal Framework

Congress enacted the IDEA “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

2 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

[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 federal law does

not require that “the benefit conferred [by the IEP] reach the

highest attainable level or even the level needed to maximize the

child’s potential.”). Instead, the IDEA establishes more modest

goals and imposes on states and local school districts an

obligation to provide a program that is “sufficient to confer

some educational benefit upon the handicapped child.” Rowley,

. Accordingly, “the ‘basic floor of opportunity’

provided by the Act consists of access to specialized instruction

3 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

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).

Factual Background

To say that substantial time, effort, and resources have

been dedicated to developing S.L.’s 2004-05 IEP would be an

understatement. The administrative record in this case includes

more than 3,100 pages, in nine volumes - the index alone is 35

pages long. There is also a volume of supplemental material

submitted by defendants that spans several hundred additional

pages. The Lessards were permitted to supplement the

administrative record with additional materials, including live

testimony from Mrs. Lessard and the deposition testimony of D r .

Robert Kemper.

4 Over the course of several years, during which the Lessards

and the School District have attempted to formulate various IEPs

for S.L., the parties’ relationship has deteriorated. As a

consequence, Mrs. Lessard claims the School District advised

S.L.’s teachers not to speak directly with Mrs. Lessard without a

district administrator present. Plaintiffs’ Statement of

Disputed Facts (document n o . 67) at para. 1 0 . In turn, Mrs.

Lessard has filed numerous complaints against the School

District, on various topics, with the New Hampshire Department of

Education, the U.S. Department of Education’s Civil Rights

Division (as well as its Office of Inspector General), the New

Hampshire Governor, the United States Secretary of Education, the

State’s Commission on Disability, and several United States

Senators and Representatives.

at para. 3 3 . No doubt, both

the School District and Mrs. Lessard share a measure of

responsibility for the parties’ working relationship. And,

needless to say, that relationship made efforts to formulate

S.L.’s 2004-05 IEP difficult.

When the process of developing S.L.’s IEP for the 2004-05

academic year began, she was 18 years old and a student at

Crotched Mountain Rehabilitation Center, a private residential

and day school that provides educational and therapeutic services

5 to students with developmental and physical disabilities. S.L.

is severely disabled and suffers from moderate mental retardation

(her I.Q. is 4 2 ) , scoliosis, left hemiparesis, leg length

discrepancy, a seizure disorder, cognitive delays, speech

impairments, and orthopedic impairments. Plaintiffs’ Statement

of Disputed Facts at para. 5 . She has been coded as multiply

handicapped, speech/language impaired, mentally retarded, and

orthopedically impaired. Plaintiffs do not challenge her

placement at Crotched Mountain. They d o , however, challenge her

IEP, claiming it was inadequate to provide her with the federally

mandated minimum educational benefits.

Beginning in 2002, the School District paid for the

following evaluations for S.L.: an adaptive equipment evaluation

by NH-ATEC; a sensory processing evaluation by Angel Care

Occupational Therapy; a range of motion evaluation by

occupational therapist Abby LaRock; a functional behavioral

assessment by the May Institute; and a vocational assessment by

Easter Seals. In addition, plaintiffs obtained a

psycholinguistic evaluation by D r . Robert Kemper. All of the

information yielded by those evaluations was available to the

team when it began formulating the 2004-05 IEP.

6 Between April and December of 2004, S.L.’s IEP team convened

at least seven times (normally, for between two and three hours),

in an effort to produce an IEP that was appropriate for S.L. and

acceptable to the Lessards. Affidavit of Janet Folger at para.

7 0 , Admin. Rec., Vol. 6, pg. 1836. The final version of the

2004-05 IEP offered by the School District to the Lessards (dated

8/16/04 and covering the period from 9/7/04 through 7/1/2005)

contains nearly 60 pages describing educational planning,

academic goals, and transition training (as well as a proposed

behavioral management plan, discussed below). It i s , by far, the

most detailed and comprehensive IEP the court has seen.

When, after many hours of team meetings and negotiations,

the IEP team was unable to agree upon an IEP that was

satisfactory to Mrs. Lessard, the School District asked

plaintiffs to specifically identify the portions of the proposed

IEP with which they disagreed and to outline any proposed

additions, deletions, or modifications they wanted. Plaintiffs

failed (or refused) to do so - something Mrs. Lessard was unable

to explain at the hearing before this court on December 1 , 2006.

Nevertheless, as she had with the prior year’s IEP, Mrs. Lessard

flatly refused to accept what the School District had proposed.

7 Because the School District was unable to determine

precisely which aspects of the IEP Mrs. Lessard found

unacceptable, it concluded that the process might be facilitated

if plaintiffs had the benefit of legal counsel. Accordingly, the

School District offered to pay for plaintiffs’ legal

representation in mediation. That offer was, however,

conditioned on plaintiffs identifying those specific portions of

the IEP with which they disagreed. Again, however, plaintiffs

failed to do s o .

The complete chronology of the various team meetings is

succinctly summarized in the affidavit of Janet Folger, the

Special Education Director for the School District and a member

of S.L.’s IEP team. Admin Rec., Vol. 6, pages 1832-1839. It is

also set forth, in somewhat greater detail and with numerous

record citations, in Defendants’ List of Disputed Facts (document

no. 6 6 ) . Plaintiffs’ statement of disputed facts also includes a

chronology of events, though it is less helpful than defendants’

because, rather than citing to the administrative record for

support, it tends to cite almost exclusively to Mrs. Lessard’s

affidavit.

8 Eventually, after it became clear that the parties were at

an impasse, the School District sought a due process hearing.

That hearing took place over two days, during which both Mrs.

Lessard and the School District presented witnesses. Although

she was repeatedly afforded the opportunity to testify, Mrs.

Lessard affirmatively declined. On March 2 1 , 2005, the hearings

officer issued his decision, in which he concluded that the

“[School] District’s offered IEP . . . is found to be reasonable

and appropriate to enable Student to make reasonable and

appropriate educational progress during the 2004-05 school year.

The [School] District is the prevailing party.” Admin Rec.,

Supp. Vol., pg. 3136 (attached to document n o . 4 7 ) . This appeal

followed.

In their three count complaint, plaintiffs assert that the

state educational hearings officer who presided over the due

process hearing deprived them of rights guaranteed by the IDEA

(counts one and t w o ) , and also failed to reasonably accommodate

Mrs. Lessard’s claimed disability, as required by the Americans

with Disabilities Act (count three). At a hearing before the

court during which plaintiffs were permitted to supplement the

administrative record, however, plaintiffs clarified their

claims. When questioned by the court, plaintiffs expressly

9 stated that they did not intend count three of their complaint to

serve as a free-standing claim under the ADA. Instead, they

asserted that it is simply a claim that the educational due

process hearing was not fair because the hearings officer failed

to reasonably accommodate Mrs. Lessard’s claimed disabilities.

See Transcript of hearing (Dec. 1 , 2007) at 2-5. In other words,

rather than advancing a claim under the ADA, count three of

plaintiffs’ complaint simply reasserts their view that the

administrative hearing was flawed and, as a result, they were

deprived of their due process rights.

As noted above, plaintiffs seek a judicial declaration that

S.L.’s IEP for the 2004-05 school year at Crotched Mountain was

not appropriate and an order awarding her compensatory

educational services. Defendants assert that S.L.’s IEP was

entirely adequate to provide S.L. with an appropriate education,

and they deny that there were any procedural irregularities

associated with the due process hearing sufficiently serious to

call into question the validity of S.L.’s IEP.

Standard of Review

The district court’s review of state educational

administrative proceedings has been described as “one of involved

10 oversight.” Lenn,

. The applicable standard is

an intermediate one under which the district court must exercise

independent judgment, but, at the same time, afford “due weight”

to the administrative proceedings.

The required perscrutation 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.

Roland M., 910 F.2d at 989 (citations and internal punctuation

omitted). See also L.T. 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 some educational benefit. See, e.g., Rowley,

. The burden of proof rests with the party challenging

the administrative decision - here, the Lessards. See Hampton

Sch. Dist. v . Dobrowolski,

8 , 54 (1st Cir. 1992);

11 Roland M., 910 F.2d at 991. To carry that burden, plaintiffs

must do more than simply point to the existence of procedural

irregularities. “Before an IEP is set aside, there must be 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.” Id. at 994.

Finally, in reviewing the sufficiency of an IEP, courts must

remember that they are called upon to review the adequacy of an

educational plan at the time it was implemented, rather than with

the benefit of hindsight, and, generally speaking, must afford

substantial deference to the educational programs developed by

educators and other experts.

[T]he focus of an inquiry under

(e)(2) . . . is not whether the IEP was prescient enough to achieve perfect academic results, but whether it was “reasonably calculated” to provide an “appropriate” education as defined in federal and state law. This concept has decretory significance in two respects. For one thing, actions of school systems cannot . . . be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for “appropriateness,” an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that i s , at the time the IEP was promulgated.

12 For another thing, the alchemy of “reasonable calculation” necessarily involves choices among educational policies and theories - choices which courts, relatively speaking, are poorly equipped to make. Academic standards are matters peculiarly within the expertise of the state department of education and of local educational authorities. We think it well that courts have exhibited an understandable reluctance to overturn a state agency’s judgment calls in such delicate areas - at least where it can be shown that the IEP proposed by the school district is based upon an accepted, proven methodology.

Roland M., 910 F.2d at 992 (citations and internal punctuation

omitted). The scope of this court’s review of S.L.’s 2004-05 IEP

i s , then, fairly narrowly circumscribed.

Beyond the broad questions of a student’s general capabilities and whether an educational plan identifies and addresses his or her basic needs, courts should be loathe to intrude very far into interstitial details or to become embroiled in captious disputes as to the precise efficacy of different instructional programs.

Id.

Discussion

I. Procedural Challenges.

The Lessards summarize their procedural challenges to the

due process hearing as follows:

In the end, S.L. and Plaintiffs were unable to be represented by counsel, were unfairly foreclosed from participating in the prehearing procedures mandated by law, were unable to present the testimony of D r . Kemper, were left at a decided disadvantage in the

13 presentation and cross-examination of witnesses owing to the unfair affidavit procedure established by the hearing officer, and faced an increasingly hostile decision-maker who seemed to have his mind made up throughout the proceedings.

Plaintiffs’ Decision Memorandum at 8 . None of those claims is

meritorious.

The Lessards make much of the fact that, pursuant to the

hearings officer’s instruction, the School District prepared

affidavits for each of its witnesses, summarizing the testimony

the School District expected them to give. Mrs. Lessard claims

she was disadvantaged by the fact that she did not receive all of

those affidavits in advance of the hearing and, therefore, was

required to cross-examine some witnesses after only having just

received a copy of the witness’s affidavit.

The use of the affidavits (which was discussed at the pre-

hearing meeting) was for the benefit of the hearings officer.

And, having reviewed the administrative record, including a

transcript of the due process hearing itself, the court cannot

conclude that the School District’s use of the affidavits

prejudiced plaintiffs or impaired Mrs. Lessard’s ability to

participate in the due process hearing or meaningfully question

14 the School District’s witnesses. First, none of the testimony

offered by the School District’s witnesses should have been

surprising to Mrs. Lessard. The parties had been negotiating the

2004-05 IEP for many months and Mrs. Lessard, of all people, was

quite familiar with the School District’s position on all aspects

of the IEP. Additionally, when Mrs. Lessard complained about the

procedure, the hearings officer offered: (1) to have the witness

read the affidavit directly into the record, so Mrs. Lessard

could actually hear the testimony; and (2) to afford Mrs. Lessard

a brief break during which she could review the affidavit.

Admin. Rec., Vol. 1 , pgs. 347-50. Mrs. Lessard declined.

The Lessards also complain that the hearing officer refused

to reschedule the hearing so their expert - D r . Kemper - might be

able to appear and testify. D r . Kemper’s report was, however,

part of the record. Moreover, when the hearings officers asked

Mrs. Lessard to explain how D r . Kemper’s live testimony might

augment or clarify his written report, she was unable to provide

an answer. In short, she gave no explanation for why it was

necessary to delay the hearing so that D r . Kemper might provide

live testimony.

15 Plaintiffs have not shown how they were prejudiced or how

the due process hearing was undermined by virtue of D r . Kemper’s

absence. Morever, as the hearings officer noted, the literacy

programs advocated by both D r . Kemper and M s . Siegmann were not

substantially different from the literacy program offered by the

School District, through Crotched Mountain. Ultimately, the

focus must necessarily be on the educational progress S.L. made

(and is likely to make), rather than on the particular

methodology employed. And, as to that point, all of her teachers

and school administrators testified that, given her substantial

deficits, S.L.’s progress in reading under the program

administered by M r . Tanner was reasonable and appropriate.

Plaintiffs remaining challenges to the due process hearing,

including their assertion that the hearings officer was biased,

are without merit. None of the Lessard’s procedural challenges

to the due process hearing (or the hearing officer himself) are

sufficient to suggest that their opportunity to participate in

the process of formulating S.L.’s IEP was “seriously hampered,”

or that S.L.’s right to a free appropriate education was

adversely affected in any way. See generally Roland M., 910 F.2d

at 994. In fact, plaintiffs were afforded broad and substantial

16 input into S.L.’s IEP and, under that IEP, S.L. made appropriate

educational progress.

II. The Substance of S.L.’s IEP.

Plaintiffs challenge S.L.’s 2004-05 IEP on three grounds,

claiming the program was deficient in the areas of literacy,

transition services, and behavior management. See Plaintiff’s

Decision Memorandum at 1 2 . Plaintiffs also claim the School

District violated the IDEA by failing to have the 2004-05 IEP in

place at the start of S.L.’s school year. See Id. at 1 5 .

A. Alleged Delay in Presenting an IEP.

According to plaintiffs, “it was not until during the team

meeting held on December 2 , 2004 . . . that [the School District]

first provided Plaintiffs with a completed draft IEP for their

consideration.” Plaintiffs’ Decision Memorandum at 1 7 .

Plaintiffs go on to assert that: “[t]his delay constituted a most

basic violation of the IDEA’s well-established procedures and

amounted to a violation of S.L.’s right to an appropriate

education sufficient to entitle her to compensatory relief.” Id.

The court disagrees.

17 The IEP team began meeting in April and by August of 2004,

had completed a proposed IEP - with the exception of a behavior

plan (discussed more fully below), which had yet to be approved

by Crotched Mountain. But, understanding that it was important

to resolve any outstanding problems plaintiffs might still have

with the IEP and get it into place quickly, the School District

offered to put that IEP into effect, and secure approval of the

behavioral aspects of the plan as soon as possible thereafter.

Again, however, although Mrs. Lessard refused to specifically

identify what portions of the comprehensive IEP she disagreed

with and declined to offer any specific amendments, additions, or

deletions she wanted to make, she refused to sign i t .

Having carefully reviewed the record, the court cannot

escape the conclusion that it was Mrs. Lessard who was

responsible for the delay in getting S.L.’s IEP for 2004-05 into

place. As of the meeting held in August of 2004, the School

District offered to plaintiffs a comprehensive IEP that met the

requirements of the IDEA. But, as she had done the year before,

Mrs. Lessard refused to sign the IEP while, at the same time,

declining to identify those portions of it that she thought

should be amended. Based on this record, one might reasonably

infer that Mrs. Lessard was more concerned with the process of

18 creating an IEP for S.L. than she was in actually getting an

appropriate IEP into place and implementing i t . For example, as

late as February of 2005, Mrs. Lessard expressed the view that

S.L.’s IEP for 2004-05 was “still in the developing stage” and

indicated that she would “like to continue the process with the

team.” Admin. Rec., Vol. 5 , pg. 1793.

While she is understandably a zealous advocate for S.L.,

Mrs. Lessard’s efforts and energies seemed to be focused on

obtaining a “perfect” IEP for S.L. — one that described in

intricate and painstaking detail every possible component of

S.L.’s educational program, but without having a developed view

about what that perfect IEP would look like. See, e.g.,

Affidavit of Janet Folger at para. 5 5 , Admin. Rec., Vol. 6, pg.

1835 (“Mrs. Lessard wanted a high degree of specificity in the

objective. For instance, Mrs. Lessard wanted information about

when [S.L.] would be brushing her teeth and whether she would be

brushing them ‘thoroughly.’ She wanted to clarify what kind of

hair care would be addressed in the general goal for hair

care.”). Not only is such a goal impractical, it is not required

by either State or federal law.

19 Here, although there was some delay in getting S.L.’s

comprehensive IEP finalized, nothing in the record suggests that

it caused her education to suffer. Pending implementation of

that IEP, her instructors simply continued the program developed

in the prior year’s IEP, augmenting it as appropriate. And, in

the end, all of her instructors testified that she made

demonstrable educational progress during the 2004-05 year.

B. The Contents of the IEP.

As noted above, plaintiffs challenge three specific areas of

the IEP as being deficient: literacy, transition services, and

behavior management. As to the literacy component of S.L.’s

education, her parents claim that:

Given the written report submitted to the School in July 2004 and D r . Kemper’s personal appearance and explanation of his recommendation at the August 2004 IEP meeting, [the School District] had everything it needed to provide S.L. with an appropriate literacy program for the 2004-2005 school year. It inappropriately chose not to do s o . Both the incomplete August 2004 IEP draft and the December 2004 IEP offer contain no reference whatsoever to the daily 1:1 LiPS program that D r . Kemper had recommended as essential for providing S.L. with foundational literacy skills.

Plaintiffs’ Decision Memorandum at 2 . While it is true that the

School District (with input from S.L.’s teachers at Crotched

20 Mountain) decided not to incorporate into S.L.’s curriculum the

Lindamood Phoneme Processing System (a/k/a “LiPS” Program)

recommended by D r . Kemper, that does not compel the conclusion

that her IEP was deficient in the area of literacy. As the

hearings officer observed, the parties essentially disagreed as

to the proper methodology to employ when instructing S.L. While

the School District elected not to employ the methodology

requested by the Lessards and recommended by D r . Langer, the IDEA

does not require school districts to acquiesce in parental

requests of that sort. See, e.g., G.D. v . Westmoreland Sch.

Dist.,

4 2 , 948 (1st Cir. 1991) (“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.”) (emphasis in original). The focus must

necessarily be on the IEP as implemented and whether it provided

the student with demonstrable educational benefit. In this case,

the literacy training S.L. received did provide her with

demonstrable educational benefit.

So it was with the behavior management and transition

services S.L. received. As for S.L.’s transition plan and

21 services, the court agrees with the School District’s description

of the IEP:

Not only does S.L.’s IEP include a transition plan (Vol. I I I , 1026-27) and reference courses of study throughout (Vol. I I I , 9 8 2 , 9 8 7 , 9 9 4 , 104-06), but S.L.’s instructional design, as envisioned by the IEP, encompasses skill development specifically targeting prevocational and independent living skills. The goals and objectives for transition services are embedded in the IEP. To that end, [Crotched Mountain] spends a minimum of six hours of instructional time per week on prevocational skill development.

Defendants’ Reply Memorandum (Document n o . 97) at 1 0 . The IEP is

comprehensive and all of S.L.’s teachers who testified at the due

process hearing (both on direct and cross-examination) agreed

that S.L. was making progress in the areas covered by the

transition plan. While the IEP did not incorporate everything

the Lessards wanted, it did provide S.L. with transitional

educational services far in excess of the minimum standards

imposed by the IDEA. Again, it is appropriate to remember that

the requirements imposed by the IDEA on school districts are

fairly modest.

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,

22 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,

.

Finally, the court concludes that the 2004-05 IEP’s

provisions relating to S.L.’s behavior plan were more than

adequate. As the Court of Appeals for the Seventh Circuit has

observed, there are only two circumstances under which a

behavioral intervention plan might be warranted. See Alex R. v .

Forrestville Valley Comty. Unit Sch. Dist.,

(7th Cir. 2004). The first - which is not implicated in this

case - is when the school district imposes certain types of

discipline on the student. See

(k)(1). The

second is when the student exhibits behavioral problems that

impede the student’s learning or that of other students. The

relevant section of the IDEA provides that the IEP team shall,

“in the case of a child whose behavior impedes the child’s

learning or that of others, consider the use of positive

behavioral interventions and supports, and other strategies, to

address that behavior.”

(d)(3)(B)(I) (emphasis

supplied). And, even when the IDEA requires the IEP team to

consider behavioral intervention, it does not establish any

23 express statutory or regulatory standards governing the content

of such a program. See Alex R.,

(“In short, the

District’s behavioral intervention plan could not have fallen

short of substantive criteria that do not exist, and so we

conclude as a matter of law that it was not substantively invalid

under the IDEA.”).

The “behavior program” portion of S.L.’s IEP more than

satisfied the requirements imposed by the IDEA. That section of

the IEP spans nine pages and includes general guidelines for

addressing S.L.’s behavioral problems, specific “shaping

behaviors” that teachers would employ to assist S.L. in coping

with transitions and completing difficult tasks, a section

devoted to a “reinforcement program” aimed at rewarding positive

behavior, an “independence/supervision program” that outlines

three levels of progress that would be expected of S.L., as well

as a “crisis management” section dedicated to outlining means by

which to address any angry outbursts or times when S.L. became

non-compliant with direction from her teachers and/or school

administrators. See Admin. Rec., Vol. 3 , pgs. 1028-1036. S.L.’s

behavior program was well in excess of the minimum requirements

imposed by the IDEA.

24 Conclusion

Prior to filing this litigation, the Lessards never clearly

or fairly communicated to the School District how or why they

believed S.L.’s IEP for the 2004-05 school year was deficient -

despite numerous pleas from the School District that they do s o ,

and at least two offers from the School District to pay for an

attorney to assist them in formulating any proposed modifications

to the School District’s proposal. Instead, the Lessards

continually refused to agree to the School District’s proposed

IEP, without offering any substantive proposed changes (other

than the LiPS program recommended by D r . Kemper).

While the court is certainly aware of the enormously

difficult situation in which the Lessards find themselves -

struggling to educate and provide for a daughter who suffers from

severe disabilities - it is decidedly unhelpful to the process

when they repeatedly reject serial IEP proposals made by the

School District, without offering some hint as to precisely what

educational services they feel were improperly tailored to

provide S.L. with some educational benefit. More importantly,

however, their refusal/inability to work cooperatively with the

School District to formulate and implement an IEP for S.L. in a

timely manner disserves S.L.’s interests - particularly given the

25 fact that the services offered by the School District to S.L. (at

least during the year in question) were well in excess of the

minimum required by the IDEA.

Despite the difficulties encountered during the process of

creating an IEP for S.L., the School District formulated and

implemented an IEP that took into consideration S.L.’s unique

needs and provided her with an appropriate education. While S.L.

may not have reached the level of performance and/or independence

that her parents expected, and although the Lessards may have

preferred that Crotched Mountain use slightly different teaching

techniques (e.g., the “LiPS” Program recommended by D r . Kemper),

the School District was not required to provide special education

services designed to maximize S.L.’s potential, or those

prescribed by the parents or their experts. Rather, it was

obligated to deliver services that provided some educational

benefit to S.L. See, e.g., G.D. v . Westmoreland Sch. Dist.,

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

(“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.”) (citation and internal

punctuation omitted); Walczak v . Florida Union Free Sch. Dist.,

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(2d Cir. 1998) (“IDEA does not 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).

During the academic year in question, the School District

fully met its legal obligations to S.L. and provided her with an

IEP that was custom-tailored to her many divergent special needs,

and one that afforded her a free appropriate public education.

Plaintiffs’ procedural challenges to the due process hearing (and

surrounding meetings) are insufficiently substantial to call into

question the validity of either the IEP itself or the factual

findings of the hearing officer. Nor is there sufficient

evidence to suggest that plaintiffs were denied a meaningful

opportunity to participate in the formulation of S.L.’s IEP — to

the contrary, the School District went more than the extra mile

to enlist plaintiffs’ participation.

In light of the foregoing, plaintiffs’ requests for relief

are denied and the decision of the hearings officer dated March

27 2 1 , 2005, is affirmed. The Clerk of Court shall enter judgment

in favor of defendants and close the case.

SO ORDERED.

___________ Steven J./McAuliffe lief Judge

April 2 3 , 2007

cc: Jennifer A . Eber, Esq. Richard L . O’Meara, Esq. Jeanne M . Kincaid, Esq. Karen A . Schlitzer, Esq.

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