Lessard v. Wilton-Lyndeborough 06-CV-423-JD 08/14/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark and Linda Lessard

v. Civil No. 06-CV-423-JD Opinion No.

Wilton-Lyndeborough Cooperative School District

O R D E R

Mark and Linda Lessard seek judicial review, under the

Individuals with Disabilities in Education Act ("IDEA"), of the

decision of the New Hampshire Department of Education that

approved the Individual Education Plan ("IEP") and educational

placement of the Lessards' daughter, S.L., offered by the Wilton-

Lyndeborough Cooperative School District ("District"). The

Lessards' claims arise from their daughter's 2005-2006 school

year. The parties agree that the decision in Lessard v. Wilton-

Lyndeborough C o o p . Sch. Dist.,

(1st Cir. 2008), does

not resolve this case.1

1In that case, the Lessards challenged the District's IEP for S.L.'s 2004-2005 school year. The hearing officer's decision in favor of the District was affirmed by the district court, Lessard v. Wilton-Lyndeborough Coop. Sch. Dist..

(D.N.H. Apr. 23, 2007), and on appeal, Lessard. 518 F.3d at 31. The Lessards' petitions for rehearing and for rehearing en banc in Lessard. i d .. were denied in March of 2008. Background

S.L., who was nineteen years old at the time at issue in

this case, was a student with a disability within the meaning of

the IDEA due to the effects of cerebral palsy, mental

retardation, left hemiparesis, leg length discrepancy, a seizure

disorder, and scoliosis. S.L.'s IEP team held six meetings from

April through September of 2005 to formulate an IEP for the 2005-

2006 school year. The Lessards were dissatisfied with parts of

the proposed IEP and also opposed continuing S.L.'s placement at

Crotched Mountain Rehabilitation Center ("CMRC"). The parties

did not reach an agreement on S.L.'s IEP or her placement for the

2005-2006 school year.

S.L. had attended CMRC since 2001, and she began the 2005-

2006 school year there. S.L. experienced behavior problems

during 2005, and the Lessards believed that her placement at CMRC

was the cause. They also believed that CMRC was not an

appropriate placement for S.L. The Lessards asked the District

to change S.L.'s placement to a home and community based program.

The District offered placements at CMRC or the Merrimack

Education Center, but no agreement was reached. In late December

of 2005, the Lessards removed S.L. from CMRC.

In January of 2006, the District asked for a due process

hearing, which was held on March 13 and March 31, 2006. Peter

2 Foley served as the hearing officer. Foley issued a decision on

July 17, 2006, in which he concluded that the District's proposed

IEP and S.L.'s placement at CMRC for the 2005-2006 school year

were appropriate. The Lessards filed this action for review of

the decision and seek compensatory education for S.L.

Standard of Review

Under the IDEA, the "court reviews the administrative

record, which may be supplemented by additional evidence from the

parties, and makes an independent ruling based on the

preponderance of the evidence." L t . T.B. ex rel. N.B. v. Warwich

Sch. Comm.,

(1st Cir. 2004) (internal quotation

marks omitted); accord Mr. I. ex rel. L.I. v. Me. Sch. Admin.

Dist. No. 55.

(1st Cir. 2007). "[J]udicial review

falls somewhere between the highly deferential clear-error

standard and the non-deferential de novo standard." Lessard. 518

F.3d at 24. The court "exercises its discretion, informed by the

record and by the expertise of the administrative agency and the

school officials, as to how much deference to afford the

administrative proceedings." Sch. Union No. 37 v. Ms. C . ,

(1st Cir. 2008). The party challenging the hearing

officer's decision bears the burden of proving that the decision

is wrong.

3 Discussion

The Lessards contend that the District committed procedural

violations during the IEP process, that the proposed IEP was not

appropriate, and that S.L.'s placement at CMRC was not

appropriate. The Lessards seek an award of compensatory

educational benefits for S.L. The District asks the court to

affirm the hearing officer's decision.

A. Procedural Violations

The Lessards identify eight procedural issues that pertain

to S.L.'s 2005-2006 IEP and her placement at CMRC: (1) failure

to complete an IEP prior to the 2005-2006 school year, (2)

failure of the IEP team to determine what evaluation data were

needed, (3) failure to provide an appropriate evaluation of S.L.,

(4) failure to consider the results of independent evaluations,

(5) failure to ensure parental involvement in the IEP process,

(6) failure to provide prior written notice of decisions denying

parental requests, (7) failure to have necessary team members

attend meetings, and (8) failure to provide appropriate meeting

notices.

In his decision, the hearing officer stated that "a

significant portion of the hearing evidence involved [the

Lessards'] claim that the Team Meeting process was seriously

4 flawed in the areas of team membership and parent participation."

R. Vol. XXIV at 07266. He found that the record showed "that the

team meeting process involved a lengthy, detailed review and

discussion of the proposed IEP as well as the consideration, and

at times adoption of the concerns and opinions presented by or on

behalf of the School District and the [Lessards]."

He also

found that significant friction existed between the Lessards and

the District and that at times the District "did not always run

the process smoothly."

As to most of the procedural issues the Lessards raised, the

hearing officer found those issues were "effectively addressed in

the School District's Post-Hearing Brief."

He also found,

however, that the District failed to properly notify the Lessards

as to who would attend each team meeting and failed to give the

Lessards prior written notice of its adverse decisions.2 The

hearing officer concluded, however, that those failings did not

violate the IDEA.

The District contends that the first issue, the District's

failure to complete an IEP before the 2005-2006 school year, was

waived because it was not raised during the administrative

2Based on the hearing officer's discussion of the issue, the failure to notify the Lessards of who would attend team meetings is an issue about having necessary team members present.

5 proceedings. The District disputes that procedural deficiencies

occurred and also contends that any procedural deficiencies did

not violate the IDEA.

A school district's failure to follow required procedures

constitutes a violation of the IDEA "only if the procedural

inadequacies - (I) impeded the child's right to a free

appropriate public education; (II) significantly impeded the

parents' opportunity to participate in the decisionmaking process

. . . ; or (III) caused a deprivation of educational benefits."

(f)(3)(E)(ii). A free appropriate public

education ("FAPE") "means special education and related services

that--(A) have been provided at public expense, under public

supervision and direction, and without charge; (B) meet the

standards of the State educational agency; (C) include an

appropriate . . . education in the state involved; and (D) are

provided in conformity with the individualized education program

required under section 1414(d) of this title."

01(9); see also C.G. ex rel. A.S. v. Five Town Cmtv. Sch.

Dist., 513 F .3d 279, 284 (1st Cir. 2008).

1. Timely IEP

The District asserts that the Lessards did not raise the

issue that the IEP was not complete at the beginning of the 2005-

6 2006 school year during the administrative proceedings. The

District also asserts that the delay did not significantly impede

the Lessards' opportunity to participate or cause a deprivation

of educational benefits. The Lessards do not address the

question of whether the issue was raised below but argue that the

delay in proposing the IEP violated the IDEA.

The IDEA requires exhaustion of all claims and issues in the

due process hearing. Rafferty v. Cranston Pub. Sch. Comm..

(1st Cir. 2002). Exceptions exist if the plaintiff

can show either that raising the claim or issue would be futile

because of the agency's unlawful policy or practice or that the

administrative remedies were inadequate.

Absent an

applicable exception, failure to exhaust bars review of claims

that were not raised in the administrative process. I d . at 26.

The Lessards' prehearing filings do not include the issue of

the timeliness of the 2005-2006 IEP. The Lessards have not

provided evidence to show that the issue was raised during the

administrative proceedings and have not addressed the exceptions

to the exhaustion requirement. Therefore, the issue was waived

and will not be considered here.

2. Evaluations

Three of the Lessards' allegations of the District's

7 procedural failings pertain to evaluations of S.L. The hearing

officer did not address these issues separately. In their

Decision Memorandum, the Lessards address the evaluations issues

briefly, stating only that the District failed to provide

evaluations of S.L. for behavioral intervention and literacy

skills, despite the Lessards' requests. They further state, in

conclusory fashion, that the District "thereby hindered the

development of her program in these areas." PI. Brief at 9.

The issues of whether or not the District provided

sufficient evaluations or considered independent evaluations of

S.L. are not sufficiently developed to permit review. In

addition, although the Lessards assert that the lack of

evaluations hindered the development of S.L.'s program, that is

not enough to show that she was deprived of a FAPE or educational

benefits under the IDEA. Therefore, the administrative decision

is affirmed on the issues pertaining to evaluations.

3. Parental Involvement

The Lessards also contend that the District violated the

IDEA by failing to ensure parental involvement in the decision­

making process and failing to provide appropriate meeting

notices. In particular, they contend that although S.L.'s IEP

team met eight times, "there was little meaningful team discussion about the content of her 2005-2006 IEP."3 Pi. Mem. at

7. The Lessards assert that the school representatives did not

listen to Mrs. Lessard's concerns and refused to consider the

issues she raised.

The IDEA requires the IEP team to consider the parents'

concerns about the education of their child. Winkelman v. Parma

Citv Sch.. 127 S. C t . 1994, 2004 (2007) (citing

(d)(3)(A ) (ii)). While parents are entitled to have input,

however, they are not entitled to do the school system's work.

Lessard.

. In addition, parents may have a

meaningful opportunity to participate in the IEP process even

when the team's decision is contrary to the parents' wishes.

Hiortness v. Neenah Joint Sch. Dist..

(7th

Cir. 2007) .

The record establishes that Mrs. Lessard attended and

participated in the IEP team meetings.4 She presented her ideas,

issues, and concerns. Although the District did not adopt or

implement all of her suggestions, they heard her point of view.

The Lessards have not shown that they were denied participation

3While the Lessards refer to eight meetings, the hearings officer stated that the IEP process began in April and ended in September of 2005 and included six team meetings.

4The Lessards do not suggest that Mr. Lessard was excluded from the meetings.

9 in the IEP process in violation of the IDEA.

4. Team Meeting Participants

As is noted above, the hearing officer found that on some

occasions the District failed to have necessary team members

attend meetings but concluded that no IDEA violation occurred as

a result. In particular, the hearing officer referred to the

June 14, 2005, meeting when a psychologist was scheduled but

missed the meeting. The hearing officer concluded that no harm

occurred, however, because the psychologist did attend the next

meeting.

The IDEA requires that an IEP team include the parents of

the disabled student, at least one of the student's teachers, a

qualified and knowledgeable representative of the school

district, and someone "who can interpret the instructional

implications of evaluation result," who may be one of the other

team members. § 1414(d)(1)(B). In addition, the team may

include other individuals with knowledge or expertise related to

the student and, if appropriate, the student herself may attend

meetings. Id.

Mrs. Lessard's meeting notes indicate that she raised an

issue at the meeting held on April 14, 2005, about a notice

process that would ensure attendance of the necessary people at

10 meetings. Mrs. Lessard appears to have been concerned that

meetings had been delayed because necessary participants were not

available. The issue was discussed, and the response was that

people were notified of meetings and asked to RSVP to confirm

their attendance.

The Lessards also complain that team members sometimes

arrived late to meetings or left early, that the psychologist

scheduled to attend one meeting did not attend, and that they

were not always notified about who would attend meetings.

Although they provide evidence that team members did arrive late

and leave early, they have not shown that attendance had any

impact on S.L.'s right to receive a FAPE, their participation in

the IEP process, or S.L.'s educational benefit. As the hearing

officer pointed out, the psychologist who missed a meeting

attended the next meeting, so that no violation of the IDEA

occurred. Although the Lessards assert that their lack of notice

of meeting attendees impaired their ability to prepare for

meetings, they provide no specific problems that arose or

evidence that a violation of the IDEA occurred.

5. Prior Notice of Adverse Decisions

The hearing officer concluded that the District failed to

provide the Lessards with prior notice of adverse decisions but

11 that no harm resulted so that no violation of the IDEA occurred.

In their memorandum here, the Lessards merely state that they

were not provided prior notice without any development of the

issue or evidence of an IDEA violation that resulted from lack of

prior notice. Therefore, the Lessards did not carry their burden

on this issue.

B. Substantive Violations

The Lessards challenge the 2005-2006 IEP as inappropriate,

arguing that it was not reasonably calculated to provide S.L.

educational benefits because it lacked an adequate literacy

program, an adequate transition plan and services, and an

adequate behavior plan. The Lessards also contend that S.L.'s

placement at CMRC was inappropriate under the IDEA. The District

defends the 2005-2006 IEP and S.L.'s placement at CMRC.

The District implemented the disputed 2004-2005 IEP for the

first time in March of 2005 after a hearing officer ruled that it

was legally appropriate. In April, S.L.'s IEP team and her

parents began the process of developing her 2005-2006 IEP. The

draft IEP was revised during the meeting process, and the last

proposed IEP was presented on September 15, 2005. Mrs. Lessard

refused to consent to the proposed IEP, leaving the 2004-2005 IEP

in place until the Lessards removed S.L. from CMRC in December of

12 2005.

Based on the evidence submitted before, during, and after

the hearing, including testimony at the hearing, which now fills

twenty-five bound volumes, the hearings officer concluded that

the IEP proposed for the 2005-2006 school year and S.L.'s

placement at CMRC were legally appropriate. The Lessards

challenge the hearing officer's conclusions. The District

supports the decision.

1. Educational Benefits

To provide a FAPE as required by the IDEA, an IEP must be

"reasonably calculated to enable the child to receive educational

benefits." Hendrick Hudson Cent. Sch. Dist. v. Rowley.

(1982). "It is worth emphasizing that the obligation to

devise a custom-tailored IEP does not imply that a disabled child

is entitled to the maximum educational benefit possible."

Lessard.

. "An IEP need only supply some

educational benefit, not an optimal or ideal level of educational

benefit, in order to survive judicial scrutiny." I d . at 23-24.

The Lessards contend that the primary deficiency of the

2005-2006 IEP was its lack of a viable literacy program.

Although S.L. was nineteen at the start of the 2005-2006 school

13 year, she could not read.5 The District states that S.L. was

progressing at a level commensurate with her abilities and

disabilities.

At CMRC, S.L. was instructed in reading through a standard

multisensory program. Robert Kemper, Ph.D., a psycholinguist who

evaluated S.L. at her parents' request, believed that S.L. could

learn to read at a higher level if a different multisensory

reading program were implemented.6 He recommended the Lindamood

Phonemic Sequencing ("LiPS") program.

Although the District initially planned to continue the

multisensory reading program that was already being used at CMRC,

in the course of considering S.L.'s 2005-2006 IEP, the District

had CMRC's licensed speech pathologist trained in the LiPS

program.7 The IEP was then redrafted to include the LiPS

5While S.L.'s teachers reported that she could read a list of one syllable words, testing results indicated she could not read.

6Ihe Lessards do not appear to dispute that S.L. was achieving at an appropriate level given her I.Q. and other disabilities. Based on Kemper's opinions, however, they expected S.L. to achieve at a higher level. The District points out that Kemper lacked the expertise and background to support his opinions about S.L.'s abilities.

7Kemper first recommended the LiPS program in the spring of 2004. In his report following his second evaluation of S.L., on June 10, 2005, Kemper again recommended the LiPS program and then added a new requirement that the LiPS the instructor have at

14 program. Mrs. Lessard believed that the speech pathologist was

not sufficiently trained in the LiPS program because she lacked

hands-on experience in administering the program and refused to

allow the speech pathologist to work with S.L. Mrs. Lessard also

had indicated that a different program, the Davis Reading

Program, would be better for S.L.8 S.L. continued to be taught

under the original multisensory program while she was at CMRC.9

The hearing officer found that the District responded

appropriately to the Lessards' request that S.L. be instructed

with the LiPS program. He further found that because the CMRC

speech pathology specialist was trained in the LiPS program, the

Lessards' additional experience requirement was not sufficient to

invalidate the LiPS program offered in the IEP. As to the

alternative Davis program, the Hearing Officer concluded that the

Lessards had not shown that the multisensory program then being

used at CMRC was inappropriate. He held that S.L. was receiving

educational benefits from the CMRC reading program.

For purposes of review, the Lessards appear to argue, in

least one year of experience administering the LiPS program.

8S.L. is currently working with another provider who uses the Davis program.

9Under the "stay put" provision of the IDEA, the 2004-2005 IEP remained in place until December of 2005 when S.L. left CMRC.

15 part, that the District's reading program used at CMRC during the

2004-2005 school year was inadequate. The IEP for 2004-2005 is

not at issue here. In addition, the question of the adequacy of

the 2004-2005 IEP has been resolved in favor of the District.

Lessard.

.

The Lessards also contend that the 2005-2006 IEP was

inadequate because it did not provide for the LiPS program to be

administered in a manner they believed was necessary for S.L. to

benefit from the program. In particular, they argue that the

LiPS program has to be administered by a provider who at a

minimum was trained and had at least one year of experience in

working with the LiPS program. They also required one-on-one

instruction for S.L.. They contend that the 2005-2006 IEP lacked

goals and objectives to implement the LiPS program.

School districts are authorized to select among competing

programs or methodologies that are most suitable for a child's

needs. Lessard.

. It is difficult, therefore, for

parents to succeed on a claim, under the IDEA, that their

recommended program would be a better choice.

"Where, as

here, a school system develops an IEP component in reliance upon

a widely-accepted methodology, an inquiring court ought not to

condemn that methodology ex post merely because the disabled

child's progress does not meet the parents' or the educators'

16 expectations." I d . at 29.

The hearing officer correctly concluded that the District

developed an IEP reading plan based on accepted methodologies and

that the Lessards' insistence on additional training and other

programs was asking for a maximum benefit that is not required

under the IDEA.10 Therefore, the 2005-2006 IEP sufficiently

provided for S.L.'s educational benefit in reading.

2. Transition Plan

The IDEA requires that beginning when a disabled child turns

sixteen, her lEPs must include goals "based on age appropriate

transition assessments related to training, education,

employment, and, where appropriate independent living skills." §

1414(d)(1)(A)(i)(VIII). The IEP must also include "the

transition services (including courses of study) needed to assist

the child in reaching those goals." Id. The term "transition

services" is defined as "a coordinated set of activities . . .

designed to be within a results-oriented process, that is focused

on improving the academic and functional achievement of the child

. . . to facilitate the child's movement from school to post-

10It is also interesting to note that the Lessards did not use the LiPS program for S.L. after she left CMRC. Instead, S.L. is being instructed in the Davis program by a non-specialist.

17 school activities . . .

(34). For purposes

of assessing the adequacy of an IEP with respect to its

transition plan, transition services are viewed together, taking

into account the child's needs, and the IEP is evaluated as a

whole to determine whether it is reasonably calculated to provide

educational benefits to the child. Lessard.

.

The hearing officer stated that the Lessards had not

identified a specific substantive problem with the transition

services proposed in the 2005-2006 IEP. The hearing officer held

that the proposed 2005-2006 IEP included "a significant increase

in services in the area of pre-vocational skills" and that the

Lessards did "not seriously object to the amount of time devoted

to pre-vocational services, or to the prevocational [sic] goals

and objectives in the draft IEP." R. Vol. XXIV, at 07265.

For review, the Lessards argue that the transition services

provided in the 2005-2006 IEP were inadequate because they were

not individualized and did not have appropriately intensive

community-based programing. The parties agree that the

transition plan proposed in the 2005-2006 IEP is the same as the

plan in the 2004-2005 IEP.

The Lessards challenged the transition plan in the 2004-2005

IEP on the same grounds they raise here, contending that it was

not sufficiently personalized to S.L. and that it should have had

18 "■'relatively intense services in community-based setting.'" Id.

at 29. On appeal, the court concluded that "the district court

did not clearly err in finding the panoply of transition services

adequate." I d . at 30. The court held that the Lessards could

not attack the transition plan apart from the IEP as a whole and

also held that although the field trip schedule might not be

ideal for providing community-based services, it was sufficient

to satisfy the IDEA. Id.

The issues the Lessards raise to challenge the proposed

transition services have been resolved in favor of the District

in the context of the 2004-2005 IEP. They do not challenge the

hearing officer's finding that the 2005-2006 IEP included

additional services. Therefore, the hearing officer's conclusion

that the proposed transition plan was not substantively flawed

was correct.

The Lessards now appear to argue a new theory, that the

District was required to articulate a new transition plan for the

2005-2006 IEP rather than rely on the same plan that was used in

the 2004-2005 IEP. That issue, however, does not appear to have

been raised during the due process proceeding and cannot be

raised for the first time here. In addition, because transition

services are assessed in the context of the IEP as a whole, and

the hearing officer found that the proposed IEP included more

19 pre-vocational services, their new argument would not succeed.

3. Behavior Plan

The Lessards contend that the behavior plan proposed in the

2005-2006 IEP was procedurally defective and substantively

inadequate. They argue that it was presented without input from

the IEP team or the family, in violation of the IDEA'S IEP

requirements. As to the substance of the plan, they contend that

it was outdated, inaccurate, and inappropriate because it relied

on restraint rather than positive interventions, did not identify

S.L.'s problem behaviors, and did not describe triggers for her

negative behavior. They also contend that the CMRC staff members

were not implementing the plan but instead were using

inappropriate punishment and reinforcements.

The hearing officer stated that the Lessards "offered a

series of conclusory allegations that the behavior plan was

'inappropriate' and 'inconsistently administered.'" Vol. XXIV

at 07264. He found that the behavior plan had been modified and

that the District had shown that it was willing to modify the

plan when necessary, which had had positive results. He noted

that although changes could have been made more quickly and that

mistakes may have occurred in implementing the plan, the District

had made a good faith effort to address S.L.'s behavior issues.

20 If a disabled child's "behavior impedes the child's learning

or that of others, [the IEP team shall] consider the use of

positive behavioral interventions and supports, and other

strategies, to address that behavior . . .

(d)(3)(B)(I). Absent circumstances not raised in this case,

however, the IDEA does not require a behavior plan or prescribe

substantive requirements for one if it is included in the IEP.

Lessard.

; Alex R. v. Forrestville Valiev Cmtv.

Unit Sch. Dist. no. 221.

(7th Cir. 2004).

Therefore, the Lessards' arguments that the behavior plan

proposed for the 2005-2006 IEP was substantively deficient cannot

succeed.

The Lessards also argue that the behavior plan violated the

IDEA because a proper procedure was not followed for its

development and implementation. It does not appear that they

raised the procedural issues during the administrative process.

In addition, because a behavior plan was not required and the

IDEA does not include procedural requirements for developing a

plan, the Lessards have not shown that the process followed by

the District violated the IDEA. Therefore, the administrative

decision is affirmed on the issue of the behavior plan.

21 C. Placement

The Lessards contend that S.L.'s proposed placement at CMRC

for the 2005-2006 school year violated the IDEA because it was

not the least restrictive environment in which she could receive

educational benefits, because it caused harm, and because it

would not provide her with functional skills she needed. The

hearing officer concluded that it was not necessary to put S.L.

into a home and community based program to provide her with

appropriate education benefits and that the home and community

based program proposed by her parents lacked detail of how it

would work and would be a more restrictive environment than CMRC.

The District supports the hearing officer's decision.

1. Least Restrictive Environment

Under the IDEA, disabled children are to be educated in the

least restrictive environment that meets the requirements of

educational benefit.

(a)(5); Kathleen H. v.

Mass. Dep't Ed u c .,

(1st Cir. 1998); Amann v. Stow

Sch. Svs.,

, 650 (1st Cir. 1992); J.W. v. Contoocook

Valiev Sch. Dist..

(D.N.H. 2001).

States must provide a continuum of alternative placements to meet

the requirement of education in the least restrictive

environment.

. New Hampshire's regulations

22 implementing the IDEA require the least restrictive placement and

provide a table of educational placements which shows that home

instruction is more restrictive than a full-time special day

school such as CMRC. N.H. Code Admin. R. Ed. 1115.04; I d . Table

1100 .2 .

In the administrative proceeding, the Lessards' "main

concern" was that S.L. "would benefit more from receiving

prevocational services more often in an 'out in the community'

setting." R. Vol. XXIV at 07265. The hearing officer stated

that "the community-based program issue is really a dispute about

the methodology for delivery of the prevocational services [S.L.]

needs to prepare her to function outside of the school

environment."

The hearing officer noted that in addition to

his finding that home instruction was not necessary to provide

appropriate education benefits, "the primary delivery of

educational services at home in conjunction with community-based

prevocational program would be a more restrictive alternative

than placement at [CMRC] as proposed by the School District."

The Lessards argue that CMRC is more restrictive than their

proposed home instruction because CMRC should be viewed as a

full-time residential placement or as a hospital or institutional

placement, which are more restrictive than a full-time special

23 day school on the continuum table. In support of that theory,

they contend that because many of the other students at CMRC were

residential students with significant disabilities, it fit a more

restrictive category. The Lessards' argument is not persuasive.

While S.L. was a student at CMRC, she had contact with many

providers and students at CMRC. Because she was a day student,

she also had daily contact with her family and the community

outside of CMRC. As the District points out, those contacts,

opportunities, and experiences provided a much broader

environment than home-based instruction could offer. CMRC was a

less restrictive environment than the home instruction the

Lessards proposed.

2. Educational Benefit

The Lessards assert that S.L.'s placement at CMRC failed to

provide her with educational benefit and instead caused her harm.

They describe S.L.'s aggressive and angry behavior, which at

times was so severe as to require police intervention. They

contend that S.L.'s behavior was caused by her hostility toward

and fear of CMRC. They also argue that CMRC staff handled S.L.

in inappropriate ways.

In his decision, the hearing officer cited evidence that

S.L. "increased her basic work knowledge and career awareness"

24 with the instruction and services offered at CMRC. R. Vol. XXIV

at 07265. He found the opinions of the CMRC staff credible that

it was not necessary to put S.L. into home instruction to provide

her with appropriate educational benefits. Therefore, he found

the CMRC proposed placement was appropriate.

The Lessards provide evidence that S.L. engaged in extreme

and aggressive behavior while she was a student at CMRC, which

they interpret as evidence that S.L. did not want to attend

CMRC.11 They have not shown, however, that CMRC caused the

behavior or that the CMRC placement caused her harm.12 Further,

the hearing officer credited the opinions of staff at CMRC that

S.L. was making progress. Therefore, the Lessards have not shown

that the offered placement at CMRC was inappropriate.

D. Compensatory Educational Services

If a school system has deprived a disabled student of a

FAPE, "a court may require ■'compensatory education' in the form

of 'further services, in compensation for past deprivations.'"

Mr. I. v. Me. Sch. Admin. Dist. No. 55 .

(1st Cir.

11The record indicates that S.L.'s behavior improved after she succeeded in having her mother withdraw her from CMRC.

12Neither Mrs. Lessard's beliefs nor counsel's characterizations of events are sufficient to establish the reason for S.L.'s behavior.

25 2007). Because the hearing officer's decision is affirmed in all

respects, the court need not consider the question of appropriate

relief.

Conclusion

For the foregoing reasons, the decision of the hearing

officer for the New Hampshire Department of Education, dated July

17, 2006, is affirmed.

The Clerk of Court shall enter judgment accordingly and

close the case.

SO ORDERED.

/s/ Joseph A. DiClerico, Jr. Joseph A. DiClerico, Jr. United States District Judge

August 14, 2008

cc: Jennifer A. Eber, Esq. Richard L. O'Meara, Esq. Eric R. Herlan, Esq. Katherine W. Bubar, Esq.

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