Kasenia R. v. Brookline School District CV-05-292-JL 12/05/08 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kasenia R., by and through her Parents and next best friend, M.R. and C.B.

v. Civil No. 05-cv-0292-JL Opinion No.

Brookline School District

O R D E R

The parents of a learning and emotionally disabled child have

challenged the New Hampshire Department of Education’s decision

rejecting their claim that the Brookline School District (“the

District”) failed to provide their daughter with an appropriate

education in violation of the Individuals with Disabilities

Education Act (“IDEA”). See

(i)(2). The parents

ask the court to reverse the decision and order the District to

reimburse them the costs associated with their daughter’s

education at a private school in Massachusetts.

The court has jurisdiction over this appeal under

(federal question) and

(i)(2)(A) (IDEA).

After oral argument and a review of the evidence before the court,

the court grants judgment in favor of the District for the reasons

stated below. I. APPLICABLE LEGAL STANDARD

In New Hampshire, the parents of a disabled child who they

believe has been denied a “free appropriate public education” (or,

“FAPE”) can request an impartial due process hearing before the

New Hampshire Department of Education. See

(f)(1)(A). Following that hearing, the hearing officer must

issue a final decision, accompanied by findings of fact. See

§§ 1415(h), (i)(1)(A). If either the parents or the school

district is dissatisfied with the hearing officer’s decision, that

party may seek judicial review in state or federal court. See id.

§ 1415(i)(2)(A). The court reviewing the decision must then make

a bounded, independent ruling based on the preponderance of the

evidence. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist.,

8 , 24 (1st Cir. 2008); see also

(i)(2)(C)(iii).

The court’s role in reviewing the hearing officer’s decision

is “one of involved oversight.” See Lenn v. Portland Sch. Comm.,

(1st Cir. 1993). The applicable standard is

an intermediate one under which the court must exercise

independent judgment, but, at the same time, “falls somewhere

between the highly deferential clear-error standard and the non-

deferential de novo standard.”1 See Lessard, 518 F.3d at 2 4 .

1 Purely legal questions arising under the IDEA are reviewed de novo. See Manchester Sch. Dist. v. Crisman,

, 9 (1st

2 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. v. Concord Sch. Comm.,

(1st Cir. 1990)

(internal citations and punctuation omitted) (quoting Bd. of Educ.

v. Rowley,

(1982)); see also T.B. v. Warwick

Sch. Comm.,

0 , 83-84 (1st Cir. 2004). The party

challenging the hearing officer’s decision bears the burden of

proving that the decision is wrong. See Schaffer v. Weast,

9 , 51 (2005). 2 To carry that burden, the moving party must

do more than simply point to the existence of procedural

irregularities. See Roland M.,

; see also Gonzalez

v. P.R. Dep’t of Educ.,

(1st Cir. 2001) (noting

that a district court, faced with conflicting expert testimony,

Cir. 2002). 2 Contrary to the Supreme Court’s holding in Schaffer, which was decided subsequent to the due process hearing relevant to this case, the hearing officer improperly placed the burden of proof on the District, the non-moving party. See

1 . This court will not disturb the hearing officer’s burden allocation-- which, in any event, favored the parents--for the purpose of this appeal, but will nonetheless hold the plaintiffs to their appellate burden to demonstrate an erroneous ruling.

3 may justifiably feel “bound to affirm” the state agency’s

determination).

II. BACKGROUND3

In 1998, M.R. and C.B. (“the parents”), then-residents of

Brookline, New Hampshire, adopted six year-old Kasenia R.

(“Kasey”) and her two sisters from Russia and brought them to live

in the United States. The District is the school district which

encompassed Brookline and in which Kasey was at least sporadically

enrolled.

A. The initial individualized education program (“IEP”) 4

For several years following the adoption, Kasey’s parents

alternated between home-schooling her and enrolling her in public

elementary school in Brookline. In public school, Kasey’s

3 Under the IDEA, the “court reviews the administrative record, which may be supplemented by additional evidence from the parties . . . .” See T.B.,

3 . 4 An IEP is a written document detailing the student’s present educational level, the short-term and long-term goals of the plan, the specific services to be offered, and a set of objective criteria for later evaluation. See

(d)(1)(A); Lessard, 518 F.3d at 2 3 . Under the IDEA, the IEP must provide each disabled student with an educational program tailored to his or her individual needs, see

(d)(1)(A), and each student must be offered special education and related services “as are necessary to permit the child to benefit from the instruction.” Rowley,

; see also

(29).

4 teachers observed that she was a diligent worker and, despite

occasional emotional issues and difficulty paying attention, made

academic progress in her classes. (Administrative Record

[hereinafter “AR”], SD Doc. 1008). By the fourth grade, however,

Kasey’s parents became concerned that she may require special

education and requested that the District evaluate her. The

District, responding to the parents’ request, enlisted various

teachers, clinicians, and psychologists to assess Kasey’s mental

and emotional capabilities. Following their evaluations, these

specialists met with Kasey’s parents and representatives from the

District (collectively, the “IEP team”), 5 and together they agreed

to diagnose Kasey as learning disabled in math--specifically,

mathematical reasoning and calculation--and suffering from

Reactive Attachment Disorder, an emotional disability negatively

affecting her relationship with her caretakers. At the IEP team’s

suggestion, and based on the results of its evaluations, the

District (1) offered to place Kasey at the Mont Blanc Academy

5 “The common practice is to form a team of parents, teachers, school administrators, and others to evaluate a child with a disability and, if she is found eligible for remedial services, to develop an IEP.” C.G. v. Five Town Cmty. Sch. Dist.,

(1st Cir. 2008); see also

(d)(1)(B) and (d)(3). Kasey’s IEP team included her parents, several psychologists (Dr. Edwin Goodall, Dr. Carol Houde, and Dr. Kay Seligsohn), a doctor specializing in intellectual functioning (Dr. John Willis), a speech pathologist (Julie Goulet), a clinical social worker (Kate Bernier), and several of Kasey’s teachers and school administrators.

5 (“Mont Blanc”), a small private school in Hooksett specializing in

educating learning disabled children, and (2) formulated an IEP,

which, based on the information the District had available, was

intended to address Kasey’s diagnosed disabilities. Kasey’s

parents agreed to both of the District’s proposals. (AR, SD Docs.

1397-98, 1401-19).

B. Fifth grade at Mont Blanc: 2003-2004

Kasey attended Mont Blanc for the fifth grade under a series

of agreed upon IEPs intended to guide her education through

October 2 9 , 2004. Under these IEPs (collectively, the “Mont Blanc

IEP”), which all offered similar educational services, Kasey was

“mainstreamed” with nondisabled students, but received special

education services, particularly with respect to her math and

social skills, and was offered the assistance of a school

counselor, private therapist, guidance counselor, and psychologist

as necessary. (AR, SD Docs. 1401-19, 1470-97, 1827-54).

According to her Mont Blanc teachers, these IEPs enabled Kasey to

make appropriate educational progress while enrolled at their

school. Soon after the spring semester commenced, however,

Kasey’s mother and the director of Mont blanc had a heated and

public falling out, each accusing the other of abuse and neglect

of Kasey. Following this altercation, both sides agreed that

Kasey’s future education would not be at Mont Blanc; the parents

6 withdrew Kasey from school, and Mont Blanc refused to take her

back.

The District quickly convened an IEP team meeting to address

Kasey’s future placement, and, after some discussion, offered to

immediately enroll her at the Captain Samuel Douglass Academy

(“Douglass Academy”), the local public elementary school. Kasey’s

parents, doubting whether the teachers at this school possessed

the mental health background needed to meet Kasey’s particular

needs, asked instead that she be placed at the Regional Services

and Education Center (“RSEC”)--a private day school in Amherst--on

a trial basis. Before the District had a chance to decide on

whether RSEC was an appropriate placement for Kasey, her parents

requested a due process hearing before the New Hampshire

Department of Education,6 claiming that Kasey had been denied a

FAPE for the preceding five years. They asked that the District

be ordered to provide “compensatory educational services” as

reimbursement for the home-schooling they had been forced to

provide. After hearing from both sides, the hearing officer

dismissed the parents’ complaint on various grounds. (AR, SD Doc.

10070-71).

6 In the days after Kasey’s parents requested the due process hearing, the District applied for Kasey to be enrolled at the RSEC. Notwithstanding these efforts, Kasey’s parents went forward with the hearing.

7 For the remainder of Kasey’s fifth grade year, and into the

following summer, Kasey was home-schooled by her parents while the

sides argued over where she would attend school when the sixth

grade began in the fall. The District, having already applied for

Kasey to attend RSEC, proposed that she attend Douglass Academy

until the RSEC made a final decision on her application.7 Her

parents objected to such a temporary placement, claiming that

Douglass Academy was ill-prepared to address Kasey’s disabilities,

and therefore incapable of providing her with an adequate and

appropriate education. Unable to agree on Kasey’s placement, the

District requested, as allowed under New Hampshire law, that a

hearing officer mediate their dispute. See

.05(c) (permitting the school district to request a

due process hearing where the parents have refused to consent to

its proposal). In preparation for that hearing, Kasey’s parents

sought to have her evaluated at the District’s expense by Dr. Foad

Afshar, a certified school psychologist, to try and determine “why

Kasey has difficulty learning and how to help her.” (AR, SD Doc.

10091). The District again acceded to the parents’ request and

agreed to fund the evaluation, subject to several reasonable

7 RSEC eventually accepted Kasey into its summer program, but rejected her as a full-time student for the 2004-2005 school year because it deemed she would not be a good fit, particularly because the school generally did not accept students with Kasey’s emotional disabilities.

8 conditions.8 Dr. Afshar, however, was unable to conduct a

complete evaluation of Kasey in advance of the requested hearing.

The hearing officer thus delayed her decision until additional

information could be gathered:

Testimony and documentary evidence reviewed make clear that [Kasey] will not benefit from, but likely will be harmed by, another temporary placement. When [Kasey] returns to schooling with other children, it must be a permanent placement. It is determined that too many questions regarding [Kasey]’s diagnoses and needs remain unanswered[.] Therefore, no change of placement will be ordered until the information necessary is gathered.

The testimony by [Dr.] Foad Afshar at hearing was limited to the general because of time requirements[,] but the questions raised must be answered before a placement decision can be made . . . . It is ordered that the evaluation, as described in the Afshar evaluation proposal, be performed within forty-five days.

(AR, SD Docs. 10160 and 10162). The hearing officer indicated

that, once Dr. Afshar’s evaluation was complete, she would issue

her final decision on “whether schooling at [Douglass Academy] in

Brookline is feasible and, if not, what schooling is appropriate

8 The District imposed three conditions on Dr. Afshar’s evaluation: (1) the cost of his evaluation must be reasonable, (2) as part of his evaluation, he must review Kasey’s records, and (3) as part of his evaluation, he must “interview and obtain information from a variety of individuals familiar with Kasey, including her parents, teachers and other relevant people who worked with her.” (AR, SD Doc. 10163).

9 for [Kasey].” (AR, SD Doc. 10162). Until a final placement

decision could be made, however, Kasey was ordered to be home-

schooled.

C. Sixth grade at Douglass Academy: 2004-2005

An unintended consequence of the hearing officer’s ordered

delay, which was designed to bring clarity to Kasey’s educational

needs and stability in her future placement, was that it

exacerbated an already contentious relationship between the

District and her parents. Soon after the District agreed to fund

Dr. Afshar’s proposed evaluation, the sides began to dicker over,

among other topics, the scope of the evaluation ordered by the

hearing officer, whether the District would be allowed access to

Dr. Afshar’s evaluation records, and the conditions the District

wished to impose on his evaluation. Ultimately, after the parties

were unable to agree on these issues, Dr. Afshar concluded that he

would “not be permitted the professional courtesy and latitude to

conduct an independent evaluation” and refused to continue with

his evaluation of Kasey. (AR, SD Doc. 10245-46). The hearing

officer’s placement decision was thus further delayed until an

evaluator could be identified to complete Dr. Afshar’s work.

Per the hearing officer’s order, Kasey’s parents home-

schooled her at the beginning of the sixth grade, but by late-

10 September had enrolled her at Douglass Academy,9 where she was

again educated under the provisions of the Mont Blanc IEP. But as

this IEP was scheduled to expire on October 2 9 , 2004, and because

the evaluation ordered by the hearing officer still was not

complete, Kasey’s parents proffered Dr. Ronald Federici, a doctor

located in Virginia, as a candidate to replace Dr. Afshar. The

parents asked the District to fund Dr. Federici’s evaluation,

including the family’s travel costs to and from Virginia, and

warned that if the District did not respond to their request by

the following day they would “file for a hearing to prevent any

further delays.” (AR, SD Doc. 10304). Before the District could

make its decision, the parents requested another due process

hearing before the New Hampshire Department of Education.10

D. The November 5, 2004 IEP

In the weeks after Kasey’s parents requested the hearing, the

District held the first in a series of IEP meetings intended to

assess Kasey’s academic status and, despite the fact that Kasey

still had not undergone the full evaluation ordered by the hearing

9 The parents allege that they enrolled Kasey in public school because the District had threatened to file truancy charges, claiming that Kasey either had to be registered with the state as a home-schooled student, see N.H. Rev. Stat. Ann. 193-A, or enrolled in public school. 10 This hearing request was eventually withdrawn once the District agreed to fund Dr. Federici’s evaluation.

11 officer, formulate an appropriate IEP. At these meetings, Kasey’s

parents advocated for an IEP that would allow her to spend the

entire day in a small class setting and objected to her being

pulled out of class for specialized instruction. (AR, SD Docs.

10365-69). They also questioned whether Kasey interacted with too

many adults over the course of an ordinary school day, and

suggested that she would benefit from teachers with a

sophisticated understanding of her special needs. See

The

IEP team responded that since returning to school Kasey had

adjusted well to the classroom setting, was making appropriate

academic progress, and had integrated well with the other

students.

At an IEP meeting on November 5 , 2004, the District, in an

attempt to address the concerns raised by Kasey’s parents,

discussed an IEP that would: “mainstream” Kasey at Douglass

Academy; allow her to attend specific classes in the school’s

smaller, less congested resource room; allow Kasey to see fewer

teachers by permitting her to skip certain classes; and appoint

Dr. Gaston Blom to complete the pending, previously ordered

evaluation. (AR, Transcript of 11/5/04 IEP meeting, at 5 , 2 4 , 48-

51). With respect to specific special educational services, the

District offered Kasey:

• one hour per week of special education in math, • one hour per week of special education in study and organizational skills,

12 • one hour per week of individual and family therapy, • 30 minutes per week of individual training for social skills, • 30 minutes per week of group training for social skills, • 30 minutes per week of occupational therapy consultation, • 30 minutes per week of occupational therapy monitoring, and • the assistance of special education staff, guidance staff, an occupational therapist, and a social worker.

(AR, Vol. 1 3 , Parents’ Exhibit No. 6 ) . The District explained to

Kasey’s parents that the proposed IEP was based solely on the

information it had available to it at the time, and that once

Kasey was fully evaluated the team would reconvene to determine

whether the IEP needed to be amended. (AR, Vol. 1 6 , Transcript of

11/5/04 IEP meeting, at 2 0 , 22-23). The District left open the

possibility that, despite its preference for enrolling Kasey in

the least restrictive placement appropriate for her special needs,

it would consider placing her at a special day school once her

evaluation was complete.

Citing the same concerns they had

raised at prior IEP meetings, Kasey’s parents rejected the

proposed IEP and refused to allow Dr. Blom to complete the

evaluation begun by Dr. Afshar.

E. Settlement agreement

While they were not able to agree upon an IEP, Kasey’s

parents and the District were able to come to terms on a

settlement agreement. As part of this agreement, the District

13 agreed both to fund Dr. Federici’s evaluation of Kasey and to pay

for the family’s travel costs, meals, and lodging incurred during

their trip to Virginia. For their part, Kasey’s parents agreed:

• that once Dr. Federici completed his report, the District would have the “right (but not an obligation) to evaluate Kasey with up to three qualified examiners of its choice,” • that the only restriction placed on the District’s evaluations was that they must “be conducted consistent with all applicable laws, regulations and policies,” • to authorize both Dr. Federici and Dr. Afshar to disclose their records relating to Kasey’s evaluation to certain District representatives, and • to “waive their right to bring a claim against the [ ] District for failing to file a timely request for due process based on the parents’ November 5 , 2004 rejection of the [ ] District’s proposed IEP, placement and evaluation.”

(AR, SD Doc. 10408-09).

In the months following their agreement, Dr. Federici

completed his evaluation. By the beginning of the spring semester

of Kasey’s sixth grade year, he had issued his report. The

District, after convening an IEP meeting and discussing Dr.

Federici’s methodology and results, decided to exercise its rights

under the settlement agreement to seek a second opinion on his

findings. While Kasey’s parents agreed that the settlement

agreement authorized the District to evaluate Kasey, they objected

to the evaluators chosen by the District--including Dr. Blom, Dr.

John Willis and Dr. Susan Yardley--and rejected their proposed

14 evaluations of Kasey.11 Over the ensuing weeks, the parties’

attempts to agree upon the terms of the evaluations repeatedly

floundered, generally deteriorating into spats over scheduling

issues or the scope of the evaluations authorized by the

settlement agreement.

F. Unilateral placement at the Dr. Franklin Perkins School

The IEP team convened again in late January to consider

amending the IEP. But because the District’s re-evaluation of

Kasey was not complete, and because her parents continued to

object to the District’s proposed evaluators, the District was

unable to conduct its evaluation. By February, tensions reached

the point that Kasey’s parents withdrew her from Douglass Academy

and rescinded their authorization for Dr. Federici to discuss his

11 After belatedly agreeing to portions of the proposed evaluations, the parents attempted to impose the following restrictions (in the parents’ words) on the District and its evaluators: • District staff should prepare a list of questions that they would like answered about Kasey’s educational needs, • District staff should decide which questions should be addressed by each of the proposed evaluators, • Dr. Yardley and Dr. Blom should each send us a statement that they understand that the purpose of their evaluations is to answer the questions presented to them. They should also state explicitly that they understand that they are not authorized to and therefore will not perform any type of assessment of any other family members, • All interviews with Kasey and her parents will be videotaped and the tape will be given to the parents immediately following the interview, • No interviews or visits will take place in our home. (AR, SD Doc 20319).

15 evaluation with the District. Her parents also notified the

District that they intended to enroll her at the Dr. Franklin

Perkins School (the “Perkins School”), a private school located in

Lancaster, Massachusetts specializing in treating disabled

children. On March 7 , 2005, Kasey’s parents unilaterally placed

her in the residential program at the Perkins School. After

several months of diagnostic testing, Kasey was transitioned into

its day program.

Kasey’s parents then requested another due process hearing,

this time seeking reimbursement for the costs of Kasey’s private

school education. In their complaint, the parents alleged that

the District committed various procedural and substantive

violations which denied Kasey of a FAPE. At the hearing, the

District refuted the parents’ claims with various witnesses who

testified that Kasey made satisfactory progress, both academically

and socially, while attending the District’s schools. Following

the presentation of testimony and evidence, the hearing officer

ruled in favor of the District, concluding that:

The District’s 11/5/04 IEP is found to be reasonable and appropriate to provide FAPE and to enable [Kasey] to make reasonable and appropriate educational progress during the 2004-2005 school year with [Kasey] placed in the local public school based on the status of the evaluations available to the [IEP] Team at that time. The District is the prevailing party regarding involving Parents in the procedural process, the offer of IEP

16 and the appropriateness of the offered public school placement.

(AR, Vol. 1 0 , Hearing Officer’s 5/24/05 decision, at 1 - 7 ) . The

hearing officer further ruled that all 12 of the parents’ alleged

procedural violations were without merit. On August 2 3 , 2005, the

parents filed this appeal.12

III. ANALYSIS

Kasey’s parents argue that the District committed various

procedural violations during the IEP process, that the IEP

proposed on November 5 , 2004 was not reasonably calculated to

offer a FAPE, and that the Perkins School was an appropriate

placement. They contend that, because the District failed to

provide Kasey with a FAPE in a timely manner, they “acted

reasonably by unilaterally placing Kasey at Perkins to provide her

with an education appropriate to her needs,” and are therefore

entitled to reimbursement.

12 Subsequent to the filing of the parents’ appeal, the District learned that one of the witnesses it presented at the due process hearing had lied regarding her certification to teach special education. With the District’s consent, Kasey’s parents re-opened the due process hearing to determine whether the false testimony was material to the prior hearing officer’s decision. After hearing from both sides, the hearing officer concluded that this false testimony “did not result in a denial of FAPE” to Kasey and upheld the prior decision. (AR, Vol. 1 6 , Hearing Officer’s decision on Parents’ motion to reopen, at 7-8).

17 A. Statutory scheme

Congress enacted the IDEA as part of an “ambitious federal

effort to promote the education of handicapped children.” Rowley,

; see also Five Town,

. Its purpose

is “to ensure that all children with disabilities have available

to them appropriate public education that emphasizes special

education and related services designed to meet their unique

needs.”

(d). The IDEA created a federal grant

program to aid the states in educating disabled children. See

§ 1412(a)(1)(A). In order to receive these funds, states must

provide all disabled children with an opportunity to receive a

FAPE. See Rowley,

. In conformity with the

applicable federal guidelines, New Hampshire administers those

funds through the state Department of Education and its local

school districts. See

-C:3.

School districts in New Hampshire are required to convene an

IEP team meeting to tailor an IEP for each student in need of

assistance. See

(d);

-

C:5. A school district meets its obligation to provide a FAPE “so

long as the program that it offers to a disabled student is

‘reasonably calculated’ to deliver ‘educational benefits.’” Five

Town,

(quoting Rowley,

). While

“IEPs are by their very nature idiosyncratic,” M e . Sch. Admin.

Dist. No. 35 v. Mr. R.,

, 20 (1st Cir. 2003), “[o]ne

18 thing is clear: the substance of an IEP must be something

different than the normal school curriculum and something more

than a generic, one-size-fits-all program for children with

special needs.” Lessard, 518 F.3d at 2 3 . Importantly, however,

“[t]he IDEA does not place school systems under a compulsion to

afford a disabled child an ideal or an optimal education.” Five

Town,

.

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,

. Stated differently, while disabled

students are undoubtedly entitled to receive an appropriate

education, the IDEA “does not imply that a disabled child is

entitled to the maximum educational benefit possible.” Lessard,

518 F.3d at 2 3 .

Where a state fails to provide a FAPE in a timely manner, the

parents of a disabled child have the right to seek reimbursement

for private school tuition. See Burlington v. Dep’t of Educ. of

Mass.,

(1985). The Supreme Court has made

19 clear, however, that parents like Kasey’s who unilaterally change

their child’s placement without the consent of state or local

school officials “do so at their own financial risk,” see

, and are entitled to reimbursement “only if a federal court

concludes both that the public placement violated IDEA and that

the private school placement was proper under the Act.”13

Florence County Sch. Dist. Four v. Carter,

, 15

(1993)(emphasis in original); see also Rafferty v. Cranston Pub.

Sch. Comm.,

1 , 26 (1st Cir. 2002). If a school

district has been “unable to furnish a disabled child with a FAPE

through a public school placement,” the school district “will be

responsible for the reasonable costs incident to that private

placement.” Five Town,

.

13 The IDEA provides:

(ii) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.

(a)(10)(C). School districts that “want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a [FAPE] in a public setting, or place the child in an appropriate private setting of the State’s choice.” Florence County,

5 .

20 B. Procedural challenges

The Supreme Court has prescribed a two-part test for

analyzing a challenge to an IEP based upon alleged procedural

violations. See Rowley,

. “First, has the

State complied with the procedures set forth in the Act? And

second, is the [IEP] developed through the Act’s procedures

reasonably calculated to enable the child to receive educational

benefits?”

The court of appeals instructs “that the first

part of this test is more instructive than dispositive and that

compliance with the second part is likely to nullify a violation

of the first.” Sanford Sch. Comm. v. Mr. and Mrs. L, No. 00-CV-

113,

, at *6 (D. M e . Feb. 1 , 2001) (citing Town of

Burlington v. Dept. of Educ.,

, 788 (1st Cir. 1984)).

Procedural violations will undermine an IEP only if there is “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.” Roland

M.,

; see also DiBuo v. Bd. of Educ.,

,

190 (4th Cir. 2002) (noting that courts must assess whether a

procedural violation compromised a student’s right to a FAPE “or

whether, on the other hand, it was a mere technical contravention

of the IDEA”).

21 Kasey’s parents allege that, during the formulation of

Kasey’s IEP, the District failed: (1) to comply with the hearing

officer’s order that Kasey be home-schooled; (2) to conduct

Kasey’s educational evaluation in good faith; (3) to offer Kasey

an IEP once Dr. Federici completed his independent evaluation; and

(4) failed to provide written prior notice of its decision to deny

the parents’ request for an IEP.14

The first procedural flaw put forth by the parents is that,

despite the hearing officer’s order that Kasey be home-schooled,

the District threatened to file truancy charges against them

unless they either enrolled Kasey in public school or registered

her with the state as a home-schooled student. The parents do not

dispute that state law requires that parents notify the state if

they intend to home-school their child. See

-A:5. Because they believed that registering Kasey with the

state would have rendered her ineligible for a FAPE,15 their

argument goes, the threat of truancy charges somehow translated

into the denial of a FAPE. For its part, the District

14 Although styled as “procedural” flaws, the parents also claim that (1) the District failed to develop an IEP reasonably calculated to offer a FAPE; and (2) the hearing officer failed to carefully consider the arguments raised at the hearing. As these are substantive--and not technical--claims, they are incorporated into the court’s discussion of the reasonableness of the IEP that was offered. See supra Part III(C). 15 It is not clear from the record what lead the parents to this erroneous legal conclusion.

22 acknowledges that New Hampshire law is unclear on whether a

student who has been ordered to be home schooled--as opposed to a

student whose parents have voluntarily opted to do so--must be

registered with the state. The District’s director of special

education even testified at the due process hearing that, due to

the lack of clarity in the law, the District had discussed the

potential for truancy charges as the parents’ actions--at least

ostensibly--violated New Hampshire home-schooling laws.16 (AR,

Vol. 1 1 , Transcript of 5/11/05 due process hearing, at 4 0 ) . This

court cannot agree with the parents, however, that because New

Hampshire law was ambiguous as it applied to this particular

situation, the District’s attempts to comply with its own

understanding of the law denied Kasey access to a FAPE.

The parents also maintain that the District violated the IDEA

by interfering with Kasey’s independent evaluation. Specifically,

they claim that the District imposed overly restrictive conditions

on Dr. Afshar’s independent evaluation, which the hearing officer

had ordered, and held Dr. Federici to a school district policy

that was not yet in effect. They contend that the delay in

Kasey’s independent evaluation “deprived them of information

16 While the District admits that truancy charges were discussed in a non-public setting, it vehemently denies having “threatened” Kasey’s parents with such charges. (AR, Vol. 1 1 , Transcript of 5/11/05 due process hearing, at 4 0 ) .

23 necessary for meaningful participation in the decision making

process” and contributed to Kasey’s denial of a FAPE.

As the court of appeals noted in Five Town, “Congress

deliberately fashioned an interactive process for the development

of IEPs. In so doing, it expressly declared that if parents act

unreasonably in the course of that process, they may be barred

from reimbursement under the IDEA.”

; see

(a)(10)(C)(iii)(III) (providing that “[t]he cost of

reimbursement . . . may be reduced or denied . . . upon a judicial

finding of unreasonableness with respect to actions taken by the

parents”). Indeed, “[w]ithout some minimal cooperation [from the

child’s parents], a school district cannot conduct an evaluation

of a disabled child as is contemplated under the IDEA.” Patricia

P. v. Bd. of Educ.,

, 468 (7th Cir. 2000).

The record shows that while Kasey’s parents attended her IEP

team meetings and were allowed to raise their ideas, issues, and

concerns, they unreasonably withheld their cooperation in

developing her IEP: they objected to all of the evaluations

proposed by the District; they breached the clearly-worded

settlement agreement permitting the District to have Kasey

evaluated by up to three of its own evaluators; and they insisted

upon unreasonable conditions that the District could not agree t o ,

such as requiring that the District waive its right to see the

independent evaluators’ records. Based on the evidence in the

24 record, this court concludes that the parents acted unreasonably

during the IEP process. As any delay in the development of

Kasey’s IEP is substantially attributable to her parents’ conduct,

this alleged procedural flaw did not violate the IDEA.

Another procedural violation posited by Kasey’s parents is

that once Dr. Federici completed his evaluation, the District

refused to offer Kasey an IEP. But, “[i]f a student’s parents

want [her] to receive special education under IDEA, they must

allow the school itself to reevaluate the student and they cannot

force the school to rely solely on an independent evaluation.”

Andress v. Cleveland Indep. Sch. Dist.,

, 178 (5th Cir.

1995); see also Five Town,

. The claim that the

District could have, and should have, proposed an IEP to Kasey

before it reevaluated her not only ignores her parents’ legal

obligation to cooperate in the IEP process, it ignores the

settlement agreement expressly permitting the District to

reevaluate Kasey with its own specialists following Dr. Federici’s

evaluation. As part of that agreement, the parents waived their

right to bring a claim against the District with respect to the

November 5 , 2004 IEP until “such time as the evaluations described

herein are complete . . . .” (AR, SD Doc. 10409). As Kasey’s

parents effectively stalled the very IEP formulation process they

had agreed to with the District, the court sees no merit in their

25 claim that the District’s refusal to offer an IEP denied Kasey a

FAPE.

The final procedural flaw alleged by the parents is that,

prior to the February 1 4 , 2005 IEP meeting, the District failed to

provide written notice that Kasey would not be offered an IEP.

Because they were not notified of the District’s adverse decision

in advance of that meeting, they argue, they attended the meeting

not knowing what “evaluations the District felt were still

required in order to offer Kasey an IEP and why the District

believed an IEP could not be offered based on the information that

was available.” This court agrees with the hearing officer’s

rejection of this claim because Kasey’s parents had long been

aware that an IEP would not be offered until the District had an

opportunity to evaluate Kasey. Indeed, in the months following

their rejection of the November 5 , 2004 IEP, Kasey’s parents were

mired in an ongoing dispute with the District over the fact that

it would not offer an IEP based solely on Dr. Federici’s report.

While they may not have agreed with the evaluators proposed by the

District--or, may simply have regretted entering into the

settlement agreement in the first place--they do not dispute that

that agreement entitled the District to conduct its own

evaluations before Kasey would be offered an IEP.17

17 Nor do Kasey’s parents argue that the evaluations proposed by the District violated the settlement agreement

26 The preponderance of evidence in this case establishes that

the alleged procedural violations neither compromised Kasey’s

right to a FAPE nor denied her parents the opportunity to

participate in the decision-making process.

C. Substantive challenges

In the weeks before the Mont Blanc IEP expired,18 Kasey’s IEP

team developed and presented the November 5 , 2004 IEP, which

Kasey’s parents rejected. Now challenging that IEP as

inappropriate and not reasonably calculated to provide Kasey a

FAPE, the parents argue that because Kasey was not provided an

adequate education at Douglass Academy, her placement at the

Perkins School was appropriate under the IDEA.

1. Educational benefit

The thrust of the parents’ challenge is that the final

written version of the proposed November 5 , 2004 IEP did not

provide for “pull-out services” in math, organization, and study

skills--the areas most affected by Kasey’s disabilities. This

argument fails for two reasons: (1) in prior discussions with the

provision requiring that evaluations “be conducted consistent with all applicable laws, regulations, and policies.” 18 The final agreed-to IEP was the Mont Blanc IEP, which went into effect on March 19 2004, and was scheduled to expire on October 2 9 , 2004. The District implemented this IEP both during Kasey’s tenure at Mont Blanc, and, following her withdrawal, during her short enrollment at Douglass Academy.

27 District, Kasey’s parents objected to the implementation of pull-

out services; and (2) even without pull-out services, the proposed

IEP was reasonably calculated to confer a FAPE.

In the IEP team meetings leading up to November 5 , 2004, the

District discussed various services with Kasey’s parents designed

to address her disabilities, including many services that had not

been offered under the Mont Blanc IEP. (AR, Transcript of 11/5/04

IEP meeting, at 5 , 2 4 , 48-51). During these discussions, Kasey’s

parents stressed, among other issues, that Kasey needed to be

educated in a smaller class setting for the entire, and not just

part of, the school day by teachers that understood her

disabilities. In an attempt to address these concerns, the

District offered to mainstream Kasey for the majority of her

schooling, but to allow her to spend time in the school’s smaller

resource room for math instruction, test-taking in all academic

areas, preparation for all tests, transitional periods, and study

skills. Kasey’s parents ultimately objected to placement in the

resource room. The District therefore did not include pull-out

services as part of the proposed IEP. Based on a review of the

record, the court agrees with the hearing officer’s conclusion

that Kasey was offered the very pull-out services that her parents

claim were not made available. See Roland M.,

.

Even assuming, contrary to this evidence, that the District

had refused to offer pull-out services, the court agrees with the

28 hearing officer that the IEP proposed on November 5 , 2004 was

nevertheless reasonably calculated to provide a FAPE.19 This

conclusion is based not only on the court’s deference to the

hearing officer’s educational expertise, but also on the wide

array of services offered to Kasey coupled with the objective

academic progress she made under the Mont Blanc IEP. See Rowley,

. In Rowley, the Supreme Court addressed whether a

hearing-disabled student’s proposed IEP was likely to provide her

with the educational benefits necessary to satisfy the IDEA. See

. There, because the student was “mainstreamed,”

the Court focused on the student’s academic achievement and grade-

to-grade advancement in determining whether she would benefit from

her IEP. See

. Noting that the student’s IEP provided

for various services specifically addressing her disability, such

as one hour of individualized instruction from a tutor for the

deaf each day, and three hours each week with a speech therapist,

see

458 at 184, the court found that the student’s

demonstrative progress, when considered along with the school’s

19 In Five Town, the First Circuit noted, without deciding, that when reviewing the appropriateness of a proposed IEP, some courts will only consider the final version of the IEP offered by the school district.

. However, the court found that “[i]f there is no last, best offer -- that i s , if the parents have initiated the adversary process in advance of the development of a final IEP -- it makes very little sense to consider only the latest version of the IEP.”

.

29 proposed services, established that she had been provided with a

FAPE. See

at 203 n.25.

Here, the record bears out the District’s argument that the

proposed IEP, which contained many services that were not

contained in the earlier Mont Blanc IEP, was reasonably calculated

to provide Kasey with a FAPE. Under the Mont Blanc IEP, which

remained in effect once the November 5 , 2004 IEP was rejected--

and, which provided for neither pull-outs, nor a special education

teacher--Kasey made marked academic and social progress. In the

most telling indicator of Kasey’s educational progress under the

Mont Blanc IEP, Dr. John Willis, an assessment specialist,

conducted longitudinal achievement testing of Kasey between April

2003 and March 1 , 2005. Dr. Willis concluded that, during this

two year span, Kasey made academic progress and scored “within the

broad average range” on a variety of his tests. (AR, SD Doc.

30075).

Several of Kasey’s special education specialists and teachers

echoed Dr. Willis’ conclusions. According to Susan Lyons, Kasey’s

classroom teacher at Douglass Academy, Kasey’s academic

performance under the Mont Blanc IEP was commensurate with that of

her non-disabled peers in all subjects other than math, and

allowed her to receive passing grades in all of her classes. (AR,

Vol. 1 1 , Transcript of 5/11/05 due process hearing, at 5 5 ) . Mrs.

Lyons also felt that Kasey, a newly enrolled student, interacted

30 well with other students and managed to establish a number of

relationships.

Kate Bernier, Kasey’s longtime therapist,

testified that while Kasey potentially could benefit from smaller

class sizes, she did not disagree with Dr. Willis’s assessment of

Kasey’s academic progress. In a letter to the District written

just days before the November 5 , 2004 IEP was proposed, M s .

Bernier wrote that Kasey “has made significant gains” in “most of

the targeted areas,” and that “the prognosis for continuing

progress is very good.” (AR, SD. Doc. 10338-10339). In yet

another indicator of Kasey’s ability to succeed under the Mont

Blanc IEP, Kasey’s progress report from Douglass Academy graded

her as “above average” in four of her five academic subjects:

reading, language, science, and social studies. In math, the one

subject in which Kasey had a diagnosed learning disability, she

received a grade of “average.”

The hearing officer correctly concluded not only that the

District developed an IEP that improved upon her already

successful Mont Blanc IEP, but that Kasey’s parents’ insistence on

additional services requested more than the IDEA required. The

November 5 , 2004 IEP sufficiently provided for Kasey to receive an

educational benefit.

31 2. Placement at the Perkins School

Even if the IEP proposed to Kasey was inadequate to meet her

special needs, her parents are not entitled to reimbursement

because the Perkins School was not the least restrictive

environment available for her to receive a FAPE. See Roland M.,

(“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 loath to

intrude very far into interstitial details or to become embroiled

in captious disputes as to the precise efficacy of different

instructional programs.”). As stated earlier, in order to obtain

reimbursement for a unilateral placement, parents must prove not

only that the IEP proposed by the District was inappropriate, but

that the private placement chosen by the parents was itself

appropriate. See Florence County,

5 . “A private

placement is proper if it (1) is appropriate, i.e., it provides

significant learning and confers meaningful benefit, and (2) is

provided in the least restrictive educational environment.”

Lauren W. v. DeFlaminis,

(3d Cir. 2007)

(internal citations omitted). Kasey’s parents make no argument as

to why the Perkins School was the least restrictive environment

for Kasey; rather, they continually emphasize the reasons why the

Perkins School was well-suited to educate Kasey, and highlight the

academic progress she made at that school. But see Rafferty, 315

32 F.3d at 26-27 (noting that “[e]ven if the child makes academic

progress at the private school, that fact does not establish that

such a placement comprises the requisite adequate and appropriate

education”) (internal citation omitted). For the following

reasons, the court finds that less restrictive options were

available where Kasey could have, and previously had, received a

FAPE.

“It is common ground that the IDEA manifests a preference for

mainstreaming disabled children,” Five Town,

; see

also Rowley,

, and “[t]o the maximum extent

possible,” disabled children should be offered a FAPE in the

“least restrictive environment.”

(a)(4), ( 5 ) ;

see Five Town,

. In other words, disabled children

should be “educated with children who are not disabled,” and

special classes or separate schooling should occur only when an

appropriate education cannot be provided in “regular classes with

the use of supplementary aids and services.”

(a)(5)(A); but see Lamoine Sch. Comm. v. M s . Z.,

8 , 31 (D. Me. 2005) (“an IEP can override this default in

situations where the student would not receive an educational

benefit at the local school”). “The goal, then, is to find the

least restrictive educational environment that will accommodate

the child’s legitimate needs.” Five Town,

.

33 Here, Kasey made appropriate educational progress in several

placements less restrictive than her placement at the Perkins

School--a private, out-of-state school specializing in treating

disabled children. At Mont Blanc--a private school in New

Hampshire that is not certified for special education--Kasey’s

teachers reported that she performed at grade level and made

appropriate progress. (AR, Docs. 1760-61, 1781, 1783, 1797, 1870-

8 1 , and 1896-1906). And, as stated above, Kasey made similar

progress while enrolled at Douglass Academy, a public school

within the Brookline School District. See supra Part III(C)(1).

Even if Kasey required more intensive services than those offered

in the November 5 , 2004 IEP and accompanying placement proposal,

which is not the case, minor adjustments likely would have brought

it into IDEA compliance. See Linda W. v. Ind. Dep’t of Educ.,

(7th Cir. 1999) (denying reimbursement after

finding that the proposed IEP would have been appropriate had the

services been slightly altered). But even had the District

desired to make such adjustments to Kasey’s IEP, the process was

derailed by Kasey’s parents’ refusal to cooperate with its

attempts to have her evaluated by trained professionals. See

Schoenfeld v. Parkway Sch. Dist.,

, 382 (8th Cir.

1998) (noting that where the school district was denied an

opportunity to formulate an appropriate IEP, “it cannot be shown

that it had an inadequate plan under IDEA”).

34 As the record establishes that the proposed placement at

Douglass Academy allowed Kasey to make educational progress, and

because there is no evidence to suggest that a more restrictive

placement was necessary for Kasey to obtain a FAPE, the court

rules that Kasey’s unilateral placement at Perkins Academy was not

authorized by the IDEA.

IV. CONCLUSION

For the foregoing reasons, the court finds (1) that Kasey was

offered a FAPE in accordance with the IDEA, and (2) that Kasey’s

unilateral placement at the Perkins School was not appropriate.

The New Hampshire Department of Education’s approval of the

District’s proposed IEP, and its denial of her parents’

reimbursement for the costs of her private education are affirmed.

The clerk shall enter judgment accordingly and close the case.

SO ORDERED.

_____________ Joseph N. Laplante United States District Judge

Dated: December 5 , 2008

cc: Theresa Kraft, Esq. Dean B . Eggert, Esq

35