Pass v. Rollinsford School District CV-11-284-JL 3/5/13 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Tia Pass

v. Civil No. ll-cv-284-JL Opinion No.

Rollinsford School District

OPINION AND ORDER

In this action under the Individuals with Disabilities

Education Act ("IDEA"),

(i)(2)(A), from which

this court derives its jurisdiction, see

§ 1415(i)(3)(A),

plaintiff Tia Pass challenges the New Hampshire Department of

Education's decision rejecting her claim that the Rollinsford

School District failed to provide her younger sister and ward,

Haley, with a free and appropriate public education ("FAPE").

She asks this court to reverse that decision and to order the

District to reimburse her for the costs associated with Haley's

unilateral placements in two private educational programs. The

District, in response, argues that (1) parts of the plaintiff's

claim are barred by the statute of limitations and the doctrine

of waiver, (2) it did provide Haley with a FAPE, and (3) even

assuming that it failed to provide a FAPE, reimbursement is not

an appropriate remedy in this case.

After oral argument and an exhaustive review of the record

and the parties' written submissions, the court affirms the

Department of Education's decision. As an initial matter, the court concludes that the statute of limitations bars some of the

plaintiff's challenges--specifically, those related to Haley's

ninth-grade (2008/09) individualized education plan ("IEP") and

its later amendment--as she did not bring suit within two years

"of the date on which the alleged violation was or reasonably

should have been discovered."

-C:16-b,

I. The statute of limitations does not, however, bar plaintiff's

challenges to Haley's later lEPs; nor did plaintiff waive her

right to challenge any of those lEPs by consenting to them in

writing, as she raised her concerns with those lEPs throughout

the school year and, ultimately, revoked the written consent.

As regards the merits of the plaintiff's challenge, the

court concludes that the individualized education programs the

District developed for Haley's sophomore and junior school years

were reasonably calculated to provide her with an educational

benefit and, therefore, provided Haley with a FAPE. Although the

plaintiff is to be commended for her truly admirable efforts to

ensure that her younger sister receives the very best education

possible, the IDEA does not reguire the District to provide the

best education, but merely an appropriate one. See, e.g., Lt.

T.B. ex rel. N.B. v. Warwick Sch. Comm.,

(1st

Cir. 2004); G.D. v. Westmoreland Sch. Dist.,

, 948-49

2 (1st Cir. 1991). The District fulfilled this requirement, and is

entitled to judgment in its favor.

I. Applicable legal standard

"The IDEA provides funding to each state 'to assist [it] to

provide special education and related services to children with

disabilities, ' provided that '[a] free and appropriate public

education is available to all children with disabilities residing

in the state.'" Mr. I ex rel. L.I. v. Me. Sch. Admin. Dist. No.

55,

(1st Cir. 2007) (quoting, with added

bracketing,

(a)(1)). A state discharges this

duty "as long as the program that it offers to a disabled student

is 'reasonably calculated' to deliver 'educational benefits.'"

C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist.,

(1st Cir. 2008) (quoting Hendrick Hudson Bd. of Educ. v.

Rowley,

(1982)). Generally, this requires the

state "to identify children who may qualify as disabled, evaluate

each child to determine his or her eligibility for statutory

benefits, and develop a customized IEP1 to ensure that the child

'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 v. Wilton Lyndeborough Coop. Sch. Dist.,

, 23 (1st Cir. 2008). Under the IDEA, the IEP must provide each disabled student with an educational program tailored to his or her individual needs, see 20 U.S.C.

3 receives a level of educational benefits commensurate with a

FAPE." Id^ at 285 (citing

(a) (3)-(4),

1414(a)- (b)) .

In New Hampshire, if the parent or guardian of a disabled

child believes that the child has been denied a FAPE, he or she

may reguest a 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 party is dissatisfied with the hearing

officer's decision, that party may seek judicial review in state

or federal court. See id. § 1415(1)(2)(A). The reviewing court,

"essentially conduct[ing] a bench trial based on a stipulated

record," Sebastian M. v. King Philip Reg'1 Sch. Dist.,

(1st Cir. 2012), must then make a bounded, independent

ruling based on the preponderance of the evidence. See Lessard,

518 F.3d at 24; see also

(1) (2) (C) (ill) .

The party challenging the hearing officer's decision bears

the burden of proving that the decision is wrong. See Schaffer

v. Weast,

(2005). Purely legal guestions arising

§ 1400(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." Bd. of Educ. v. Rowley,

(1982); see also

(29).

4 under the IDEA are reviewed de novo. See Manchester Sch. Dist.

v. Crisman,

(1st Cir. 2002). But, with respect to

questions of fact, the court's role in reviewing the hearing

officer's decision is "one of involved oversight." Lenn v.

Portland Sch. Comm.,

(1st Cir. 1993). The

applicable standard is an intermediate one, under which the court

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

"falls somewhere between the highly deferential clear-error

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

F .3d at 24.

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

Rowley,

) .2

2The plaintiff argues that the factual findings of the hearing officer in this case should not be entitled to this level of deference, deriding his order as "remarkably perfunctory" and "devoid of analysis." Pl.'s Decision Memo, (document no. 30) at 4-5. That characterization has little truth to it. While the hearing officer's order spans only two and a half pages, this is because the order indicates, by number, which of the parties' proposed findings and rulings are granted and which are denied.

5 II. Background

A. Haley's background and early education

At the time of the Department of Education's hearing in this

matter, Haley was an 18-year-old student in the eleventh grade.

Her parents are both deceased, and she is under the care and

guardianship of her older sister, plaintiff Tia Pass. Haley

lives with Tia,3 Tia's husband, and their two children in

See Admin. R. at 2275-76. The hearing officer appears to have been thorough and careful in evaluating those proposed findings and rulings: rather than simply adopting either party's proposal wholesale, he granted or denied each finding and ruling individually (or, in the case of some proposals, chose to neither grant nor deny them because of the way they were phrased or presented). See

Had the hearing officer desired, he simply could have parroted, verbatim, the proposed findings and rulings with which he agreed, and had he done so, he could not by any stretch of even the most fecund imagination be accused of perfunctorily analyzing the facts and law. But this is a matter of form, not substance. Although this court's review might have been easier had the hearing officer written out his findings and rulings, nothing more was reguired. The plaintiff does correctly note, however, that because this court permitted her to supplement the record with evidence not before the hearing officer, the findings and rulings to which that evidence is relevant should be subject to a somewhat more critical review. See, e.g., Alex R. ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221,

(7th Cir. 2004) ("The more that the district court relies on new evidence, . . . the less it should defer to the administrative decision."); Burke v. Amhert Sch. Dist.,

(same; guoting Alex R.,

).

3For clarity's sake, the court will refer to the plaintiff by her first name in this section; no undue familiarity or disrespect is intended.

6 Rollinsford, New Hampshire, within the Rollinsford School

District.

Haley was born prematurely and experienced significant

medical issues in her early life. She struggles with a learning

disability in mathematics, and performs about five to six years

behind other students her age. She also has deficits in social

communication and executive functioning. A psychological

evaluation conducted when Haley was a twelve-year old student in

the sixth grade found that her general conceptual ability was

only in the third percentile; her adaptive behavior in the fourth

percentile; her number skills in the first percentile; her

spelling in the 18th percentile; and her word reading in the

twelfth percentile. As a result of these low- to below-average

cognitive skills, the evaluation concluded that Haley would

reguire modified assignments and expectations, as well as direct

instruction to help her increase her independence and ability to

deal with unfamiliar people.

Haley began her education in Maine, where she attended local

public schools from kindergarten through the sixth grade.

Throughout this time, Haley reguired extensive special education

consisting of resource room support, speech therapy, occupational

therapy, and physical therapy. She repeated both kindergarten

and the fourth grade. In 2005, Haley and Tia moved to North

7 Carolina, where Haley attended public school for the seventh

grade (which she also repeated). As a result of Haley's

developmental disabilities, the school district in North Carolina

classified Haley as eligible for services under the IDEA4 and, in

March 2006, developed an IEP designed to help her address those

areas in which she needed assistance.

After moving to Rollinsford in November 2006, Haley enrolled

in Somersworth Middle School. In early December 2006, the IEP

team there accepted, with modifications, the IEP that had been

developed for Haley in North Carolina, which was to run until

March 2007. Under the IEP, the Rollinsford School District

agreed to provide Haley with a "Modified Regular" placement. In

that placement, Haley received mathematics and language arts

support at the special education learning center for ten hours

per week, speech-language therapy one hour per week, and an

assisted study hall three hours per week, but was otherwise

"mainstreamed" with non-disabled students. In March 2007,

4To receive special education and related services under the IDEA, a child must have a disability, such as "mental retardation, hearing impairments . . . , speech or language impairments, visual impairments . . . , serious emotional disturbance . . . , orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities," that necessitates such services. Mr. I.,

(guoting

(3) (A) (i)). In Haley's case, the North Carolina school district determined that she was eligible for IDEA services due to an "other health impairment."

8 Haley's IEP team revised her IEP slightly to reduce the total

hours of assistance she was receiving, and in November 2007, Tia

agreed to extend the then-current IEP through the beginning of

Haley's ninth grade year in September 2008.

B. Ninth grade (2008-2009)

At an IEP team meeting in April 2008, the District developed

an IEP for Haley's transition to the ninth grade. The proposed

IEP identified Haley's academic needs as "math applications,

reading comprehension and speech/language," Admin. R. at 631, and

her developmental and functional needs such as dependence on

others, immaturity, emotionality, and difficulty interacting with

peers. The IEP contained two "goal areas," in reading and math,

and provided for several accommodations, including access to the

learning center to complete assignments; extended time to

complete tests; access to a calculator; reductions in the length

and scope of assignments; and study guides. The IEP also

provided for an assisted study hall for 90 minutes per day,

during which Haley would receive individualized instruction to

supplement her regular classroom instruction.

Tia executed the IEP on April 8, 2008, indicating her

written consent to its implementation. Although the form gave

the option of accepting the IEP, rejecting it, or signing it with

exceptions, Tia accepted it outright, i.e., without identifying

9 any exceptions. At the subsequent due process hearing, Tia

testified that she accepted the IEP only to consent to the

services offered, not because she believed the IEP appropriately

addressed all of Haley's needs.

Haley began attending ninth grade at Somersworth High School

in September 2008. The District convened a meeting to review

Haley's IEP on October 2, 2008. At the meeting, the District

dropped the reading goals from Haley's IEP because she was

reading at grade level. That left only a single goal area in

math. The revised IEP also provided for only a single service--

an assisted study hall for 90 minutes per day--though it

continued to provide for accommodations and modifications similar

to those in the previous IEP. Tia executed the revised IEP on

October 2, 2008, again without identifying any exceptions.

Again, though, Tia testified at the due process hearing that her

signature was meant only to indicate her consent to the services

offered, and was not to indicate her belief that the IEP

appropriately addressed Haley's educational needs.

Later in October 2008, Haley participated in cognitive

testing administered by the District's psychologist. The testing

revealed that Haley's cognitive scores ranged from low average to

extremely low. Haley also participated in a vocational

evaluation, which revealed that most of her vocational aptitudes

10 were at the "lowest levels" (though she also scored in the

"average" and even "above average" range for other aptitudes).

Admin. R. at 675-78. The District convened an IEP team meeting

on November 14 , 2008 to review these results, but ultimately made

no changes to the IEP. It did, however, note that Haley was a

strong verbal learner, and that math teachers would need to make

sure to pair verbal instructions with visual material.

All of Haley's substantive classes during her ninth grade

year were mainstreamed, so that her interactions were primarily

with non-disabled students. Apart from a Foundations of

Mathematics course during the first semester, Haley received no

instruction in mathematics during ninth grade. In addition to

the teacher's lecturing in her math class, however, Haley was

provided with small group reinforcement instruction from

paraprofessionals in the class. During Haley's 90-minute

assisted study hall, special education staff members also worked

directly with Haley to reinforce the concepts taught in her

classes--including her mathematics class--and provided assistance

with her homework and other assignments. They also assisted

Haley with her social communication skills, "scripting" her day

based on what she anticipated would occur.

Haley also participated in a small, ten-student lunch group

known as "Somersworth Social Skills," or "S-Cubed." In that

11 program, Haley was paired with a non-disabled student volunteer

for a 30-minute-per-week lunch period, during which she and the

volunteer--her "social coach"--worked on role playing. Over the

course of the program, socially appropriate behaviors were

modeled, and Haley and other students received coaching in how to

participate in conversations, how to manage emotions, and similar

topics. The facilitator of the S-Cubed program testified that

she made efforts to ensure that the behaviors learned in the

lunch group would be generalized across environments, by having

student volunteers attempt to reinforce the behaviors (e.g., by

initiating conversations) during the normal school week. She

also made recommendations for how teachers could reinforce those

behaviors in the classroom.

Haley's participation in S-Cubed was not guided by any

goals, objectives, measurements, or assessments. By design, it

was not an IEP service or special education, because the core

concepts taught in the program were not unigue to children with

disabilities. No one assessed or analyzed Haley's social skills

before the S-Cubed program, so there are no objective data

showing whether those skills improved as a result of her

participation. Both the facilitator of the S-Cubed program and

the school psychologist reported, however, that when Haley

entered S-Cubed, she was shy, nonassertive, and withdrawn from

12 her peer group. She often misread social cues, was anxious and

fearful of speaking up in public and in groups, and was reluctant

to contribute to the group. According to the facilitator,

Haley's social skills improved over her time in the S-Cubed

program. She maintained eye contact with conversation partners,

was better able to understand and read emotions, volunteered

information and opinions, and initiated conversations on her own.

Haley received academic credit for her participation in the

program.

For her part, Tia testified at the hearing to her

observations that Haley struggled academically during the ninth

grade, and often became very frustrated when trying to do her

homework. Notwithstanding these struggles, Haley successfully

completed the ninth grade, receiving passing grades in her

pass/fail courses, and A's and B's in her other courses,

including a B in Foundations of Mathematics. Her IEP report card

for the first semester indicated that Haley had "worked

diligently in her math class" and "finished the class well,"

Admin. R. at 281, and her IEP report card for the second semester

indicated that she had "proven herself as a good student as she

completes assignments on time, completes homework at home, and

prepares for tests, projects, or assessments with diligence,"

. The District promoted her to the tenth grade.

13 C. Tenth grade (2009-2010)

Haley returned to Somersworth High School for tenth grade in

the 2009-2010 school year. She began the year experiencing

social difficulties with peers, and when the IEP team met on

September 24, 2009, to review her IEP, Haley's social struggles

were a chief area of concern. Following the meeting, the

District proposed a new IEP, to begin on October 2, 2009, that

identified Haley's primary academic needs as "math applications

. . . , speech/language, and learning boundaries in social

settings." Admin. R. at 701. The proposed IEP set goals for

Haley in the areas of "Math," "Transition," and "Social/

Behavioral."

. As before, the IEP provided for

only the same 90-minute assisted study hall. It also provided

for essentially the same accommodations Haley had received the

previous year: access to the learning center to complete

assignments; extended time to complete tests; access to a

calculator; reductions in length of written assignments; and

study guides (among other things). Tia again executed the IEP

without exception. Once again, she testified at the due process

hearing that she did so only to consent to the services offered,

and not because she believed it addressed all of Haley's needs.

In mid-November 2009, Tia e-mailed Haley's case manager to

express concern that the IEP was not sufficient to address

14 Haley's social skills deficits. In replying to this e-mail,

Haley's case manager noted that Haley was again participating in

the S-Cubed program5 (as she had during the ninth grade), and

that the District's speech-language pathologist, who had been

providing Haley with biweekly consultations during her assisted

study hall, felt that "Haley has more of a pragmatic issue in

this area." Admin. R. at 716. Tia immediately responded that

this "reply did not seem to recognize any of my concerns as

valid," and reguested a speech-language evaluation for Haley and

an IEP team meeting.

.

In response, the District held an IEP team meeting on

January 21, 2010, at which it formally wrote into the IEP a once-

weekly, 30-minute speech-language consultation, a change to which

Tia consented. See

. Other than this change, the

District did not alter or enhance Haley's IEP, though it offered

to extend Haley's graduation date by a year, and to change

5The S-Cubed program offered in Haley's tenth-grade year repeated a similar curriculum in order to reinforce the social skills learned during the first year, but included different role-playing and behavior reversals. Haley continued to exhibit growth through her participation in the program. She would often help other students in the program, and, according to the program facilitator, one of the other students in the program was not sure whether Haley was one of the "social coaches" due to the help she provided. During the second year of the program, she was very engaged and volunteered feedback during group sessions.

15 Haley's emphasis from receiving a regular diploma to receiving an

alternative diploma.

For the first time, Tia refused to sign the IEP. Among

other things, she expressed concern that the school was modifying

its math curriculum too much for Haley. At that time, Haley was

enrolled in a mainstreamed mathematics course. Integrated Math I,

which covered topics including surface area, volumes, three-

dimensional graphing, and linear and exponential eguations. Tia

believed that Haley should be learning "functional" math instead,

which would teach her the skills needed to balance a checkbook or

create a monthly budget. To address Tia's concerns, the District

explored the availability of placing her in math classes at

another high school, such as Noble High School in nearby North

Berwick, Maine. To attend classes at Noble High School, however,

Haley would have to take a bus there, and Tia did not want her to

do so. That suggestion was, therefore, ultimately abandoned.

The District also agreed to have its speech-language

pathologist evaluate Haley. The speech and language evaluation,

conducted in February 2010, placed Haley's core language score in

the average range. Haley scored in only the fifth percentile for

Pragmatic Judgment, however (an age eguivalent of less than

eleven years old), the fifth percentile for Understanding Spoken

Paragraphs, and the ninth percentile for Formulated Sentences and

16 the Language Memory Index. The evaluation did not make any

specific recommendations for Haley.

The District held another IEP meeting for Haley on February

17, 2010, to review the results of the speech and language

evaluation. At the meeting, the District acknowledged that

Haley's "pragmatic skills are a weakness," Admin. R. at 749, but

did not enhance her IEP in any way. It instead opted to continue

her 30-minute speech-language consultation and participation in

the S-Cubed program.

Tia again refused to sign the proposed IEP. On March 1,

2010, a family friend (and Maine attorney) wrote the District's

superintendent expressing the opinions that the IEP "does not

appear to reflect or address a number of serious deficiencies"

and that the district had failed "to provide Haley with a

comprehensive and current assessment . . . [as] reguired by

federal law."

. On March 15, 2010, believing that

Haley reguired services beyond what was being proposed or

provided, Tia submitted an application to enroll Haley in a

private residential summer program at the Riverview School in

Hyannis, Massachusetts.

Around the same time, the District's psychologist performed

psychoeducational testing of Haley. That testing indicated that,

compared to peers her age, Haley was functioning below the

17 average range in social and communication skills, community

skills, motor skills, and personal living skills. It further

indicated that Haley exhibited withdrawal in social situations,

rigidity in problem solving, socially offensive behavior,

difficulty being flexible when things did not go as she expected,

and anxiety. Haley also participated in an academic assessment,

which measured her math composite standard score in the fourth

percentile. Otherwise, Haley's results on the academic

assessment placed her in the average range.

Haley's IEP team met again on March 29, 2010. At the

meeting, the District changed Haley's IDEA eligibility category

from "other health impairment," see supra n.4, to "specific

learning disability in math." It did not, however, make any

changes to Haley's special education or related services.

At a subseguent IEP team meeting on April 27, 2010, Tia

asked the District to provide Haley with direct speech-language

services for pragmatics and social communication. The district

rejected this reguest. However, it revised Haley's IEP to offer

her summer school services, in which she would receive assistance

in math and social skills for three hours per day, three days per

week from July 6, 2010 through August 5, 2010.

On May 7, 2010, Tia rejected the IEP again. The following

month, she wrote to the superintendent of the District to express

18 her view that Haley's IEP was not meeting her needs, and giving

notice of her intent to place Haley in the summer program at the

Riverview School starting on July 9, 2010. The letter also

notified the superintendent of Tia's intent to seek reimbursement

from the District for all costs associated with this placement,

which, Tia wrote, was "designed to provide compensation for the

district's failure to provide Haley with an appropriate

education." Admin. R. at 883.

On June 22, 2010, the District convened an IEP team meeting

with Tia to discuss her concerns about Haley's IEP. At the

meeting, the district proposed placing Haley in a mainstreamed

math class--Integrated Math II--for one semester of her eleventh

grade year, and again proposed that Haley attend summer school

and an assisted study hall. The district also refused Tia's

reguest to fund Haley's participation in the Riverview School

summer program. It did, however, offer to provide Haley with

post-graduate programming that would enable her to obtain a

regular diploma while meeting other, non-academic needs.

Haley successfully completed her tenth grade year. She

received passing grades in her pass/fail courses, and A's and B's

in her other courses--including a B in mathematics--grades her

teachers testified that she earned on her own and were not

altered in any way. Haley's teachers also testified that her

19 tests were not modified to enable her to pass them. Over the

course of the year, Haley's score on MAP, a standardized math

examination, increased from 195 to 218 points--a 23-point jump,

well over the average increase of seven or eight points. At the

end of the year, the District promoted her to the eleventh grade.

Tia testified at the hearing that, notwithstanding these apparent

successes, in her opinion Haley had not "absorbed anything

throughout the year" due to her stress level. Admin. R. at 172 9.

D. The Riverview School (Summer 2010)

Haley began attending the Riverview School's summer program

on July 9, 2010. She exhibited great enthusiasm about the

program. Her teachers at Riverview observed that Haley was

supportive to her dormitory mates, readily volunteered, and was

excited to participate in daily activities. She formed

friendships with fellow students in the first week at Riverview,

and staff reported that by the end of the program, Haley had

become "a wonderful role model to her peers," who would seek

Haley out for advice. Admin. R. at 933. Tia also testified at

the due process hearing that Haley had formed "real bonds" with

the other students at Riverview and had exhibited renewed

confidence and enthusiasm after returning home from the summer

program. Id. at 1731-32.

20 Over the course of the Riverview program, Haley participated

in a language arts class in which she received instruction on

written language skills; a reading class in which she received

instruction on reading comprehension; a math class in which she

received instruction on basic math skills; and art, music, and

physical education classes. Haley's math instructor at Riverview

reported that Haley had "improved her ability to guickly recall

multiplication math facts and efficiently apply them and her

improved mental math skills to solve complex multiplication and

division problems." Id. at 929. He further reported that Haley

had mastered the ability to apply mathematical principles to

solve word problems or simulated situations and to use a

calculator to check her answers to problems.

E. Eleventh grade (2010-2011)

In September 2010, Haley returned to Somersworth High School

for her eleventh grade year. Prior to beginning the school year,

Haley experienced anxiety about the prospect of attending school

at Somersworth again (and, in particular, taking math class);

that anxiety continued into the school year. Haley again

received the same IEP services the District had provided for the

previous two years. In late September, Tia rejected two new

proposed lEPs for Haley, neither of which offered any new

programming.

21 Shortly before Haley began attending the Riverview School,

Tia had scheduled an independent evaluation for Haley with a

neuropsychologist. That evaluation, which began in early July

2010, was completed in mid-September 2010; because of the timing

of the evaluation, the psychologist did not have the opportunity

to observe Haley in an educational setting at Somersworth High

School. The evaluation diagnosed Haley with Asperger's Syndrome.

In early October 2010, Haley's IEP team met to review this

evaluation. The District agreed that Haley was also eligible for

IDEA services due to autism.6 In light of the psychologist's

recommendation that Haley be taught math on a tutorial basis, the

District offered to instruct Haley in math using the "Plato"

program, a self-paced program of instruction using computer

tutorials and one-on-one tutoring to teach math skills. The

District refused Tia's reguest for direct social skills

instruction, though, instead opting to place Haley in the S-Cubed

program again. Tia promptly rejected the IEP offered by the

District after this meeting.

6Ihe school psychologist disagreed with Haley's diagnosis of Asperger's Syndrome, but that disagreement is immaterial to the issues presented in this case, given that the District agreed to accept that diagnosis. Tia believed autism should be Haley's primary disability coding; however, the District accepted it only as a secondary disability. But that, again, is immaterial to the issues presented in this case.

22 The District held a final IEP team meeting for Haley on

October 26, 2010. At the meeting, Tia explained that Haley had

been very stressed at home, and had been engaging in "bizarre"

behavior. Admin. R. at 1101. She also explained that Haley's

English class--which had historically been an area of relative

academic strength for her--had become very difficult for her.

After the meeting, the District issued a new proposed IEP

that included an assisted study hall, recreational therapy from

the Northeast Passage program once a week (in which Haley would

interact in a group setting with her peers and local community),

and a life skills class (in which Haley would be instructed in

cooking, shopping, safety, household chores, budgets and bank

accounts, and social skills, among other things).7 The life

skills class offered some additional mathematics support, and the

IEP also contained two options for Haley to complete her math

reguirement: Integrated Math II or Plato. The proposed IEP also

recommended a reduction in Haley's course load to two

mainstreamed academic courses at a time to lessen her anxiety.

That reduction, if accepted, would have extended Haley's

graduation date. The proposed IEP also included a period of

summer education, during which Haley would receive additional

7Haley enrolled in and began attending this class during her eleventh-grade year, before ultimately leaving the high school.

23 life skills and speech pathology instruction. In addition to a

calculator, the proposed IEP also allowed for the use of a laptop

computer to aid Haley in note-taking during class.

On November 18, 2010, Tia rejected the proposed IEP. That

same day, she notified the District of her intent to unilaterally

place Haley at the Aucocisco School in Cape Elizabeth, Maine, a

state-approved special education day school with 36 students, and

to seek reimbursement from the District for that placement. The

District held a "resolution session" on December 1, 2010, and,

although Tia informed the District that she would consider

allowing Haley to remain at Somersworth High School under certain

conditions, she ultimately decided that Haley's academic and

transitional needs could not be met there. According to Tia, it

appeared as though the amount of stress Haley was experiencing

was rendering her unable to function effectively.

On December 3, 2010, Haley attended her last day at

Somersworth High School. According to Haley's case manager,

Haley was sad that she was leaving. Witnesses testified that

Haley appeared to enjoy her last day at the high school;

according to Tia, Haley said the reason she was happy was because

it was the last day she had to spend there. At the time she left

Somersworth High School, Haley was earning a C+ grade in her

24 English course. As and Bs in her other graded courses, and a

passing grade in her pass/fail course.

F. The Aucocisco School

Haley began classes at the Aucocisco School on December 6,

2010. Most of the students at Aucocisco have learning

disabilities, attention disorders, high functioning autism

spectrum disorders, and/or anxiety disorders. Because Haley had

been privately placed at Aucocisco, the school did not develop an

IEP for her, and because the school year had already started, it

placed Haley into the existing curriculum of classes. Those

classes included "community resources," in which students met in

community settings to practice their social judgment and problem

solving skills with Aucocisco's speech-language pathologist, and

a "transitions" class focusing on skills for living independently

after high school. Haley was also instructed in mathematics

using the "Sharma" method of math instruction, which is geared

towards students who, like Haley, lack a firm number sense and

computational basics. Haley also worked on creating her own

webpage with Aucocisco's technology coordinator as part of an

independent study, and participated in world history, art,

health, physical education, film appreciation, and English

classes, as well as a study hall.

25 Aucocisco's director testified that Haley needed more

support, and was less independent, in mathematics than in any

other course, consistent with her academic history. To instruct

Haley in mathematics, the school's staff made an effort to find

gaps in Haley's mathematics knowledge and fill those gaps before

instructing her in more advanced concepts. They found that

although Haley had memorized concepts, she did not understand

those concepts--including double-digit subtraction--"at a

concrete level." Melnick Depo. (document no. 19-1) at 23:23-

24:8. Aucocisco's director opined that, because of Haley's

higher verbal skills, she had been able to give her teachers a

contrary impression that she understood mathematical concepts.

To combat Haley's deficits, Aucocisco's staff, using the

Sharma method, went "all the way back . . . to kindergarten and

first grade concepts." Id. at 22:5-6. Over the course of the

year, the school instructed Haley in double digit multiplication,

long division, and basic geometry, among other concepts, using

the Sharma method of individualized instruction and a web-based

program. Symphony math. Once Haley had mastered a concept, the

school moved onto a more advanced one. Aucocisco's director

testified that Haley had to overcome "initial anxiety" about

math, but eventually "became comfortable with the notion that she

could succeed in math" and achieved "small gains." Id. at 39:19-

26 41:13. Despite these gains, the director opined that Haley would

need additional foundational instruction in mathematics.

Haley had an overall positive experience at the Aucocisco

School. She became more enthusiastic, and less anxious, about

attending school and participating in the activities offered

there. According to the director of the school, Haley "blossomed

emotionally" over the course of her time there; while she had

started out " [e]xceptionally anxious" and had "very few

interactions with peers," she eventually "came out of her shell"

and "became part of the group." Id. at 10:12-24. Haley

participated in several extracurricular activities, including a

bowling club and chorus. The director also testified that Haley

exhibited "huge gains" in her ability to function appropriately

with her peers, id. at 52:12, and Tia testified that Haley made

close friends among the students at Aucocisco, including her

first boyfriend. Tia also testified that objectively, she

observed "a marked improvement in Haley's attitude, in her

optimism, in her amount of energy" and that Haley "became more

extroverted, more talkative, generally happier." Pass Depo.

(document no. 19-2) at 7:16-20.

According to the plaintiff, Haley attributed her enthusiasm

for Aucocisco in part to smaller class sizes (Aucocisco has about

a three-to-one student-to-teacher ratio, and academic classes

27 consist of only four to five students), which enabled her to get

more one-on-one help from her teachers. She also attributed her

enthusiasm to feeling more like she belonged at Aucocisco (as

opposed to Somersworth) because she was not bullied, and the

other students were nice to her.

G. Procedural history

Tia filed an administrative due process complaint with the

New Hampshire Department of Education on October 5, 2010, shortly

after Haley began her eleventh grade year at Somersworth High

School. The complaint sought reimbursement for Haley's

unilateral placement at the Riverview School summer program.

Shortly thereafter, Tia was granted leave to amend the complaint

to add allegations regarding Haley's IEP for the 2010-2011 school

year. As amended, the due process complaint alleged that Haley's

2009-2010 and 2010-2011 TEPs, as designed, were inappropriate to

address Haley's special education needs. Tia also sought to

challenge the appropriateness of Haley's IEP for the 2008-2009

school year, a claim which, though not apparent from the face of

the complaint, emerged through later filings. The complaint

sought an award of compensatory educational services, including

reimbursement of the costs incurred with Haley's placements at

the Riverview and Aucocisco Schools.

28 A hearing officer appointed by the Department of Education

held a due process hearing on Tia's complaint on January 11 and

26-27, 2011. Prior to the hearing, the District submitted

affidavits from several of the staff members at Somersworth High

School and a recreational therapist. At the hearing, plaintiff

presented her own testimony; the testimony of Dr. Richard Doiron,

the neuropsychologist who evaluated Haley during the summer she

attended Riverview; and Barbara Melnick, director of the

Aucocisco School. The District presented the testimony of

Kathryn Francoeur, facilitator of the S-Cubed program; Cynthia

Monahan, Haley's case manager; Lisa Payeur, a special educator at

Somersworth High School; Brenda Aubin, job coach with the

Somersworth High School special education program; Matthew Frye,

a certified therapeutic recreation specialist; Priscilla Abbott,

Somersworth High School's psychologist; Bob Marguis, the

District's Director of Special Education; and a number of Haley's

teachers at Somersworth High School.

On February 9, 2011, the hearing officer issued a written

order concluding that Haley's "social and emotional issues were

addressed at school" and that she had "made more than minimal

progress academically" under the lEPs. Admin. R. at 2275. The

hearing officer further observed that "there was no evidence that

the student could have made more progress or had better results

29 in any area had she received other services that were not

provided." Id. The hearing officer therefore concluded that Tia

had failed to establish that the District did not provide Haley

with a FADE, and rejected both reimbursement claims.

Tia filed this action on June 8, 2011. On Tia's motion,

this court granted the parties leave to supplement the record

with evidence of Haley's progress and performance at the

Aucocisco School from the date of the due process hearing through

the end of the 2010-2011 school year. See Order of Oct. 7, 2011;

see also

(1)(2)(C)(ii). In accordance with that

order, Tia submitted progress reports from the Aucocisco School,

a Symphony Math student home report, and transcripts of her own

deposition and that of Ms. Melnick. The District submitted

transcripts of the depositions of Devin McNelly, chair of the

mathematics department at Somersworth High School, and Sharon

Lampros, principal of Somersworth High School. The parties

subseguently filed lists of disputed facts, decision memoranda,

and reply briefs, see L.R. 9.3(d) and (e), and this court held

oral argument.

Ill. Analysis

As noted at the outset, the key issues in this case fall

into three categories: (1) whether parts of the plaintiff's

claim are procedurally barred, by either the statute of

30 limitations or the doctrine of waiver; (2) whether the lEPs the

District developed were reasonably calculated to provide Haley

with a FAPE; and (3) if not, whether tuition reimbursement for

the plaintiff's unilateral placements at Riverside and Aucocisco

is the appropriate remedy. As set forth below, the court agrees

with the District that the statute of limitations bars the

plaintiff's challenges to Haley's ninth-grade IEP and its

subseguent amendment, but concludes that neither the statute of

limitations nor the doctrine of waiver bars any of her remaining

challenges. The court also agrees with the District that Haley's

tenth- and eleventh-grade lEPs were reasonably calculated to

provide her with a FAPE. As a result, the plaintiff cannot

recover tuition reimbursement.

A. Whether the plaintiff's claims are procedurally barred

1. Statute of limitations

Pursuant to

(f)(3)(C), an IDEA complainant

must reguest an impartial due process hearing within either "2

years of the date the [complainant] knew or should have known

about the alleged action that forms the basis of the complaint"

or the time period, if any, specified by State law. New

Hampshire has adopted such a limitations period, though it is

substantively the same as the federal period:

Any action against a local school district seeking to enforce special education rights under state or federal

31 law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.

-C:16-b, I. The District, invoking

these provisions, argues that the plaintiff may not seek relief

based on events occurring prior to October 5, 2008--two years

before the date on which she filed her administrative due process

complaint. This would serve to bar the plaintiff's claim insofar

as it is based on (a) the April 8, 2008 IEP for Haley's ninth

grade year of school, and (b) the October 2, 2008 amendment to

it. (The District concedes that the plaintiff would still be

able to bring a claim based upon Haley's tenth- and eleventh-

grade lEPs, which were designed after October 5, 2008.)

The court agrees that the statute of limitations bars any

challenge to the plans in question. At the due process hearing,

the plaintiff had the following exchange with her attorney:

Attorney O'Meara: Look at page 104 there's your signature [on the April 8, 2008 IEP]. And the ... the school's raised an argument about your signature on these lEPs. I want you to describe when you signed [the April 8, 2008 IEP] what was your understanding of what you were signing?

Ms. Pass: Urn ... When I signed the lEPs I didn't realize that I was signing ... a document that ... that I was signing off on everything that was here as well as everything that wasn't here. So I assumed that I was agreeing or consenting to the things that were here to allow those to happen.

32 Attorney O'Meara: Did you hold the belief that what was being offered [in the April 8, 2008 IEP] was not all that [Haley] needed?

Ms. Pass: I definitely was very concerned that we lost the services from the transition from Maine to North Carolina to here and felt that she needed more.

Admin. R. at 1705 (emphasis added). As of April 8, 2008, then,

the plaintiff believed that the IEP did not provide enough

services, and that Haley "needed more"--the selfsame deficiency

upon her IDEA claim is premised. In other words, on that date,

she discovered the District's alleged IDEA violation, thus

triggering the running of the limitations period.8 Because the

plaintiff did not file her administrative due process complaint

with the state Department of Education until October 5, 2010,

well over two years later, her challenge to the April 8, 2008 IEP

is untimely.

81he plaintiff argues that the date on which she reasonably should have discovered the allegedly deficient design of Haley's IEP occurred at some indeterminate point after October 4, 2008 (two years and one day before she filed her complaint with the state Department of Education). She notes that "[a]t that point, Haley's freshman year at Somersworth High School was barely one month old and the indicators of her difficulties with the high school program were only beginning to emerge." Pl.'s Reply Memo, (document no. 31) at 2. This argument has some appeal. After all, a parent or guardian who lacks expertise in the field of special education may not be able to recognize an IEP's deficient design until the IEP is implemented and problems begin to emerge. Here, however, the court cannot overlook the plaintiff's own testimony that she did, in fact, appreciate defects in the IEP immediately.

33 It follows that the plaintiff's challenge to the October 2,

2008 amendment to that IEP is also untimely. If the plaintiff

believed that the April 8 IEP did not offer Haley enough

services, she necessarily must have believed that the October 2

amendment was similarly insufficient: as discussed in Section

II.B, supra, that amendment added no new goals or services, and

in fact dropped Haley's reading goals. Thus, the plaintiff

discovered or "reasonably should have" discovered any alleged

deficiency in the IEP amendment when she signed it on October 2,

2008, and her challenge to the amendment, filed over two years

later, is barred by the statute of limitations. The court can

therefore consider only Haley's tenth- and eleventh-grade lEPs in

the remainder of this order.

2. Waiver

The District also argues that the plaintiff waived her right

to challenge the first IEP it developed for Haley's tenth-grade

year, dated September 24, 2009. The plaintiff, the District

argues, consented to that IEP in writing and without exception,

and did not revoke that consent before seeking a due process

hearing. (Again, the district concedes that its waiver argument

would not bar the plaintiff from pursuing her claim based upon

the allegedly deficient design of Haley's subseguent lEPs, to

which she did not consent.) This argument is not persuasive.

34 The District proceeds from a faulty premise: it argues,

repeatedly, that the first time the plaintiff "voiced a formal

objection" to the September 24, 2009 IEP was when she filed her

due process complaint on October 5, 2010. Def't's Decision Memo,

(document no. 29) at 11; see also id. at 12 ("On October 5, 2010,

in the filing of the due process Complaint, for the first time,

the Guardian attempted to revoke her consent to [the September

24, 2009 IEP]."); id. at 13 (Here, the Guardian . . . never

rejected the IEP[] during [its] term."). That is incorrect.

Although the plaintiff initially consented to the September 24,

2009 IEP, less than two months later, in mid-November 2009, she

e-mailed Haley's case manager to express her concern that the IEP

was not sufficient to address Haley's social skills deficits.

Immediately upon receiving the case manager's response to that e-

mail on November 19, 2009, the plaintiff reguested an IEP team

meeting. She repeated that reguest again in January 2010 when

the case manager failed to respond to her earlier reguest. And,

after the District revised Haley's IEP following the reguested

meeting--leaving it substantially unchanged, but for the addition

of a weekly speech-language consultation--the plaintiff refused

to consent to the proposed IEP.

These actions are hardly consistent with waiver--the

"intentional relinguishment or abandonment of a known right or

35 privilege." Ruiz v. Bally Total Fitness Holding Corp.,

(1st Cir. 2007) (guoting Johnson v. Zerbst,

(1938)n). To the contrary, they establish a clear record of

objections to the design of the September 24, 2009 IEP, which

uneguivocally indicates an intention not to relinguish the right

to challenge it. The District implies that this record was

insufficient to revoke the plaintiff's initial consent, but it is

unclear to the court what more the plaintiff could have done to

make clear her dissatisfaction with the IEP. Under these

circumstances, she did not waive her ability to challenge the

design of the September 24, 2009 IEP. See Alexandra R. ex rel.

Burke v. Brookline Sch. Dist.,

(parents did not

waive right to challenge IEP where they "repeatedly objected to

the content of [student's] educational programming" and "filed

their hearing reguest within the limitations period").9

9The principal cases upon which the District relies all deal (directly or indirectly) with the effect of a parent's failure to raise any objection whatsoever to an IEP during its term, and are thus inapposite. See Doe v. Hampden-Wilbraham Reg'1 Sch. Dist.,

(D. Mass. 2010); C.M. ex rel. J.M. v. Bd. of Pub. Educ. of Henderson Cnty.,

(W.D.N.C. 2002); McDowell ex rel. McDowell v. Fort Bend Indep. Sch. Dist.,

(S.D. Tex. 1990). (Curiously, the District also cites Town of Burlington v. Dep't of Educ. for the Commonwealth of Mass.,

(1st Cir. 1984), which appears to have no relevance to the waiver guestion.) The District has also argued, in passing, that the doctrines of estoppel and laches bar the plaintiff from challenging the September 24, 2009 IEP because she unreasonably delayed taking action to remedy its alleged deficiency. But that argument, too.

36 This is not to say that the plaintiff's failure to object to

the September 24, 2009 IEP at the time it was proposed is wholly

irrelevant. As the Court of Appeals for the Third Circuit has

noted, "parents' failure to press their objections to [an] IEP

when it was offered" may "cast[] significant doubt on their

contention that the IEP was legally inappropriate since it

suggests that the parents were also unaware prospectively that

the . . . IEP was unlikely to confer educational benefit."

Carlisle Area Sch. v. Scott P.,

, 536 n.8 (3d Cir.

1995) . The court will accordingly take the plaintiff's early

silence as to the IEP's sufficiency into account when

considering, in the next section, whether it satisfied the

District's obligations under the IDEA.

B. Whether the lEPs conform to the IDEA's requirements

With the proper scope of its review confirmed, the court now

turns to the primary issue presented in this case: whether the

lEPs the District proposed on September 24, 2009 and thereafter

complied with the IDEA. As already mentioned, a school district

is premised on the incorrect notion that the plaintiff "neglected to challenge [the September 24, 2009 IEP] before [it] lapsed." Def't's Decision Memo, (document no. 29) at 14. As already discussed, the plaintiff voiced her concerns with the IEP within two months. Given that the IDEA envisions a "collaborative," non-confrontational process for developing an IEP, Lessard, 518 F.3d at 26, the plaintiff did not act unreasonably in pursuing informal means of resolving her dispute before filing suit.

37 discharges its duty to offer a child a FAPE "as long as the

program that it offers to a disabled student is reasonably

calculated to deliver educational benefits." Five Town,

(internal guotations omitted). "However, an IEP need not

be designed to furnish a disabled child with the maximum

educational benefit possible"; it need only "confer a meaningful

educational benefit." Sebastian M.,

(emphasis

added); see also Lessard, 592 F.3d at 270 ("[A]n ideal or perfect

plan is not reguired."). " [A]n IEP which places a pupil in a

regular public school program will ordinarily pass academic

muster as long as it is 'reasonably calculated to enable the

child to achieve passing marks and advance from grade to grade.'"

Lenn,

(guoting Rowley,

) .

In evaluating an IEP, "the underlying judgment of those

framing the plan is given considerable weight." Lessard, 592

F.3d at 270. "The standard of review is thus deferential to the

educational authorities, who have 'primary responsibility for

formulating the education to be accorded a handicapped child, and

for choosing the educational method most suitable to the child's

needs.'" Id. (guoting Rowley,

) .

The Department of Education hearing officer concluded that

the District had satisfied its obligation, finding that Haley's

"social and emotional issues were addressed at school" and that

38 she "made more than minimal progress academically," and further

noting that there was "no evidence that [Haley] could have made

more progress or had better results in any area had she received

other services that were not provided." Admin. R. at 2275. The

plaintiff argues that the hearing officer erred by focusing on

whether Haley "made progress"; this, she says, "[i]mposed an

improperly high legal burden." Pl.'s Decision Memo, (document

no. 30) at 5. Had the hearing officer properly considered

whether Haley's lEPs were reasonably calculated to deliver a

meaningful benefit, the plaintiff contends, he would have

concluded that they were insufficient to address Haley's social

and academic needs, and that she in fact suffered emotional harm

from them. The court cannot agree.

To begin, the plaintiff misconstrues the significance of the

hearing officer's reference to "progress." The court does not

take this reference to suggest that a parent or guardian must

demonstrate that the student failed to make progress in order to

successfully challenge an IEP, or that a showing that the student

made progress is sufficient to defeat such a challenge. Instead,

the hearing officer was making an observation about the evidence,

in response to the arguments the plaintiff had advanced (i.e.,

that Haley had not made progress). And this observation was, in

any event, entirely proper: the IDEA reguires school districts

39 to "ensure that [a] child be placed in a program that provides

opportunity for some educational progress." Abrahamson v.

Hershman,

(1st Cir. 1983). "Hence, educational

results are relevant to determining the efficacy of educators'

policy choices," although this, of course, "is not the only

indici[urn] of educational benefit," and other factors must also

be considered. Roland M.,

; see also Lessard,

518 F.3d at 29 ("Actual educational progress can (and sometimes

will) demonstrate that an IEP provides a FAPE.").10

When considered in its entirety, the record evidence--

including evidence of Haley's progress both academically and

socially--supports the hearing officer's conclusion. Although

the court appreciates the excellent advocacy of the plaintiff's

counsel (both in his written memoranda and at oral argument), it

concludes that Haley's lEPs were reasonably calculated to confer

a meaningful educational benefit with respect to Haley's academic

10The plaintiff's suggestion that the hearing officer did not consider whether the lEPs provided "a meaningfully beneficial education," Pl.'s Decision Memo, (document no. 30) at 6, is also off the mark. In granting the District's proposed rulings 4, 5, and 9, the hearing officer concluded that (1) the lEPs for Haley's tenth and eleventh grade years were "reasonably calculated to enable [Haley] to benefit from her education" and (2) the plaintiff "failed to show that any of [Haley's lEPs] were inadeguate in that they had no reasonable possibility of benefiting [her]." Admin. R. at 2254-55, 2277.

40 and social needs. The court also concludes that, contrary to the

plaintiff's position, the lEPs did not cause harm to Haley.

1. Haley's academic needs

As noted, Haley's principal area of academic concern was in

mathematics. To explain the court's conclusion that the TEPs in

question were reasonably calculated to meaningfully benefit Haley

in this area,11 it is necessary to first revisit the context in

which those TEPs were formulated.

As detailed in Part II, supra, Haley had historically

struggled with mathematics, and her achievement test scores

consistently placed her mathematics ability well below average.

When she entered the Rollinsford school system in 2006--her

seventh-grade year--the District adopted, with the plaintiff's

consent, a modified form of Haley's existing IEP. Under that

plan, Haley was mostly mainstreamed with her non-disabled peers,

but received academic support for her mathematics and (then-

nIn focusing on the adequacy of the District's lEPs with respect to Haley's mathematics needs in this section, the court does not mean to suggest that the instruction the District provided Haley in other academic disciplines, or her achievement in those disciplines, is irrelevant to the inquiry at hand. A school district plainly would not satisfy its obligation to provide a FAPE by concentrating its efforts solely on a student's identified areas of need to the exclusion of all other areas. Here, however, the parties have chosen to concentrate their own efforts on the District's provision of mathematics instruction to Haley, and the court follows suit. Based upon its review of the record, the court is satisfied that the District provided Haley with an appropriate education in other academic disciplines.

41 existing) language arts needs in the special education learning

center for ten hours per week, as well as another three hours per

week of supported study. See Admin. R. at 561-66, 575-83. She

also received minor accommodations to her testing environment.

See id. at 577-79. Under this IEP (about which the plaintiff

raises no concerns) , Haley demonstrated sufficient academic

achievement, including in mathematics, to be promoted to the

eighth grade.

When the time came to develop an IEP for Haley's eighth

grade year, the District--again with the plaintiff's consent--

essentially maintained this program, albeit with reduced hours.

Haley received mainstreamed mathematics instruction alongside her

non-disabled peers, with some in-class assistance as well as

thirty minutes per day of supported study. See id. at 586-605.

Once again, under this plan (about which the plaintiff again

raises no concerns), Haley demonstrated sufficient academic

achievement to be promoted to the next grade. To be sure, this

was not without some difficulty along the way: the plaintiff

testified that Haley struggled with her math homework and needed

reinforcement at home. Id. at 1703. Her IEP progress reports

for the year, too, noted that Haley "need[ed] support and

modification" (including "us[ing] a calculator to save time"),

but also mentioned that she "seem[ed] comfortable" in a

42 mainstreamed mathematics course and "demonstrated strong growth

overall." Id. at 607, 612, 615-16.

In short, by the time Haley entered high school, she had, by

objective indicators, demonstrated the ability to be successful

in a mainstreamed mathematics classroom, provided she was given

access to appropriate accommodations and support services.

Unsurprisingly, then, the IEP the District developed for Haley's

ninth grade year followed this same pattern, mainstreaming Haley

alongside her non-disabled peers, where she received small-group

reinforcement with paraprofessionals as well as a ninety-minute

daily assisted study hall (or "academic skills" class). See id.

at 630-40; 660-73; 1816. During that ninety-minute period, Haley

received assistance in mathematics, among other things, from

special education staff members. Id. at 1839-40. She was again

given minor accommodations, see id. at 637; 667, and was again

promoted to the next grade, having completed her mathematics

competencies and received a B in her mathematics course that

year, see id. at 147, 623-26, 894. Although the plaintiff now

contends that this IEP was inadeguate (a claim which is barred by

the statute of limitations, as discussed in Part III.A.l, supra),

she consented to its implementation, and raised no concerns about

its supposed inadeguacies over the course of the school year.

43 This was the backdrop against which the District formulated

the September 24, 2009 IEP for Haley's tenth-grade year, the

first of the lEPs now at issue in this case. In light of Haley's

track record of apparent success under the lEPs just described,

and giving the appropriate level of deference to the hearing

officer's opinion, see Roland M.,

, the court

cannot say that the September 24, 2009 IEP (or any of those that

followed) was inappropriate or inadeguate. That IEP maintained

the same essential components: mainstreaming Haley with her non­

disabled peers, giving her access to additional assistance in an

assisted study hall, and providing accommodations similar to

those she received the previous year. See Admin R. at 700-14.

The plaintiff suggests this was inappropriate because Haley

was not "provided . . . with anything different from the standard

math curriculum." Pl.'s Reply Memo, (document no. 31) at 6. In

so suggesting, though, the plaintiff ignores the fact that

"[t]here is no mechanical checklist by which an inguiring court

can determine the proper content of an IEP." Lessard, 518 F.3d

at 23. "IFPs are by their very nature idiosyncratic," id.

(internal guotation marks omitted), such that, while something

"different from the standard math curriculum" may be necessary

for one student, the standard math curriculum, in connection with

support services and accommodations, may be well-suited for

44 another. Indeed, the IDEA expresses a preference for "education

in regular classes with the use of supplementary aids and

services,"

(a) (5) (A), and Haley's educational

history tended to indicate that she could flourish in such an

environment. Plaintiff, moreover, again raised no objections to

this IEP at the time of its formulation--a fact that, as already

discussed, lends support to the conclusion that the IEP was not

inappropriate when viewed ex ante. See Carlisle Area Sch., 62

F .3d at 53 6 n.8.

The testimony the plaintiff has since adduced does not

undermine that conclusion. Neither Dr. Doiron, the psychologist

who examined Haley, nor the director of the Aucocisco School (the

only practicing educator to testify on the plaintiff's behalf)

clearly identified any particular areas in which the September

24, 2009 IEP or any of its successors failed to provide Haley

with an adeguate mathematics education. Dr. Doiron did suggest

that the District could have played to one of Haley's strengths

by using computers to instruct her. Admin. R. at 1634 (a

suggestion that, he later admitted, the District had incorporated

into at least one of the lEPs that the plaintiff rejected, see

). He did not, however, testify that this

was necessary to provide a meaningful educational benefit to

45 Haley.12 In contrast, the educators who testified on the

District's behalf opined that the lEPs in question were

calculated to provide such a benefit as written. See, e.g.,

.

The results Haley achieved during her tenth grade year,

moreover, seem to have validated those opinions. Haley again

received a passing grade in her mathematics class--indeed, her

teacher characterized Haley as "one of the highest performing

students in the class."

; see

.

Notably, her standardized test scores exhibited substantial,

above-average growth. See

. So, in

formulating Haley's later IEPs--including the proposed lEPs for

Haley's eleventh grade year, see

at 861-80--it was not

unreasonable for the District to adhere to the same, theretofore

successful plan, in the expectation that doing so would continue

to be of educational benefit. Cf. Hampton Sch. Dist. v.

Dobrowolski,

(1st Cir. 1992) (lEPs appropriate

where, among other things, they did not provide fewer services

than previous lEPs that had addressed the student's problems).

12Dr. Doiron conceded that he was not an educator or a special educator, and lacked any teaching certificates. Admin. R. at 1638, so it is unclear what qualifications, if any, would have enabled him to render such an opinion anyway.

46 The plaintiff questions the record evidence of Haley's

academic success, asserting that Haley was able to obtain passing

grades only with "intensive assistance from her family and

outside providers." Pl.'s Decision Memo, (document no. 30) at

15; see also

at 8 n.6 (claiming Haley received "intensive

assistance . . . from her family and others"). Her list of

disputed facts and legal memoranda, however, identify only two

pieces of evidence that arguably support this assertion--the

plaintiff's own testimony that Haley once told her that she "got

help at school" on a single competency exam,

at 15 (citing

Admin. R. at 1736), and an academic assessment that noted that

Haley received good grades in part due to "help from guardians at

home," Pl.'s List of Disputed Facts (document no. 26) at 17 5 55

(citing Admin. R. at 828, 2276). This evidence is ambiguous at

best, and even when construed in the plaintiff's favor it does

not establish that Haley received "intensive assistance" as the

plaintiff claims. At best, it establishes that Haley received

occasional help and guidance from her teachers and family, which

is hardly remarkable. Cf. Michael P.M. ex rel. Michael M. v.

Pemi-Baker Reg. Sch. Dist.,

("[The child] is a

special needs student with an IEP; it is, therefore, not

surprising that his work is reviewed by his teachers, nor is it

47 unusual (or inappropriate) that he is given special instruction

and direction aimed at improving his academic work.").

Haley's teachers repeatedly denied doing Haley's work for

her and testified that Haley earned her grades. See, e.g..

Admin. R. at 157, 169-70, 1821, 2129. The plaintiff has

identified no specific evidence that rebuts this testimony.

Instead, she asks the court to infer that Haley must have

received help based on testimony by the Aucocisco School's

director identifying substantial gaps in Haley's mathematics

understanding. Pl.'s Decision Memo, (document no. 30) at 8 n.6,

15-16. Significantly, though, the director testified that Haley

had been able to memorize mathematical operations and could

perform them such that she would "seem to have it" in class in a

way that might "fool" her teachers. Melnick Depo. (document no.

19-1) at 23:23-25:18; see also id. at 28:23-28:25. This is

entirely consistent with other evidence that Haley did her own

work and objectively exhibited the ability to perform the tasks

expected of her. The plaintiff also points to standardized test

scores that consistently place Haley's mathematics ability in the

single-digit percentile range. Pl.'s Decision Memo, (document

no. 30) at 8 n.6. But it is not inconceivable, or even out of

the ordinary, that a student who scores so poorly on standardized

tests in comparison to his or her peers might nonetheless achieve

48 passing grades in a basic, grade-level mathematics course without

assistance, at least when that student is an exceptionally hard

worker--as everyone agrees Haley is.

The court is cognizant that "even a handicapped child that

[is] receiving passing marks and reasonably advancing from grade

to grade might not be receiving [a F A P E ] In re Conklin, 94

, 313 (4th Cir. 1991). The evidence that Haley did not

understand mathematics at a conceptual level, and had apparently

succeeded only in memorizing how to perform mathematical

operations without appreciating their purpose, is troubling. It

does raise guestions about how Haley's progress and performance

were measured. But there is no evidence before the court that

the District could have--let alone should have--measured Haley's

performance in a different way, or that it should have

apprehended how severe her disability truly was despite her

outward signs of understanding.

As our Court of Appeals has emphasized, "[a]n IEP is a

snapshot, not a retrospective," and must be judged on the basis

of "what was, and was not, objectively reasonable . . . at the

time the IEP was promulgated." Roland M.,

. Had

the District offered the lEPs in guestion after learning of the

substantial gaps in Haley's understanding, the plaintiff would

have a much better argument that they were inappropriate. But in

49 light of Haley's ability to objectively meet expectations in a

mainstreamed mathematics course with some minor accommodations

and support, the court concludes that at the time the lEPs in

question were promulgated, they were reasonably calculated to

meaningfully benefit Haley with respect to her academic needs.13

2. Haley's social needs

Although the lEPs in question properly addressed Haley's

academic needs, the court must also consider whether those plans

properly addressed Haley's other, non-academic needs. See Lenn,

(An IEP "must target all of a child's special

needs, whether they be academic, physical, emotional, or social."

(emphasis in original; internal citation omitted)). As noted,

when compared to her contemporaries, Haley had below average

social and communication skills, and demonstrated immaturity and

emotionality. Among other things, she needed assistance in

learning how to deal with unfamiliar people and to refrain from

13A s a final aside, the court takes note of the plaintiff's passing reference to the fact that Haley received "no instruction in mathematics at all, even in a general education course, for two straight semesters" under the lEPs in question. Pl.'s Decision Memo, (document no. 30) at 14 (emphasis omitted). This is a red herring. Block scheduling appears to have been the norm at Somersworth High School, and as just discussed, Haley's placement in a mainstreamed mathematics curriculum was not unreasonable (and, indeed, in accord with the IDEA'S preference). To the extent the plaintiff is suggesting that continuous, uninterrupted mathematics instruction was necessary for Haley to derive a meaningful benefit from her education, she has not cited any evidence in support of that proposition.

50 socially offensive behavior. The plaintiff explains that the

"crux of [her] argument is that the lEPs at issue were

inappropriate because they did not include a single special

education or related service designed to address" them. Pl.'s

Reply Memo, (document 31) at 6; see also

("[W]ith respect to

Haley's substantial social/emotional needs, the District's lEPs

provided her with no specialized instruction or therapies

designed to address her deficits in this critical area of

functional skills." (emphasis in original)). This is simply

inaccurate.

In his order, the hearing officer noted that Haley's "social

and emotional issues were addressed at school." Admin. R. at

2275. In fact, those issues were more than just "addressed."

Contrary to the plaintiff's argument, the lEPs that she

challenges provided for at least one specialized service--her

daily assisted study hall--that targeted them. See, e.g., id. at

700-14, 861-80. Haley's case manager, a trained special

educator, attested that she used this period each day to work

directly with Haley on her social communication skills. Id. at

146-47. Among the things that she did to assist Haley in this

area were discussing or "scripting" Haley's day and what she

anticipated would occur, role playing, and "processing" Haley's

51 emotions and frustrations.14 Id. Haley also received weekly

consultations from the District's speech-language pathologist, a

service that the District wrote into Haley's lEPs in response to

concerns over her social function the plaintiff raised. See id.

at 148, 758, 871.

In addition to these specific IEP services, Haley received

additional instruction in social skills in the S-Cubed social

skills group, a regular curricular offering developed by two

"highly regarded specialists in the treatment of children with

social communication disorders." Id. at 146, 162-63. As

described in Parts II.B and C supra, that course was "based on an

inclusion model where students are paired with their peers to

help learn social cues and responding appropriately." Id. at

146. Among the premises underlying the course was that "for

children who need social skill development, it is best that they

learn from their peers," and "integration with non-disabled peers

is optimum."15 Id. at 163. In the program, which met once per

week for 30 minutes, social "coaches" modeled socially

14Haley's case manager also testified that she used this period, which occurred at the beginning of the school day, to help Haley "process" her anxiousness before she began her courses--a tactic that, the case manager opined, "had proven very effective in the past." Admin. R. at 157, 159.

151he District's school psychologist also opined that "access to non-disabled peers . . . is particularly important in enhancing [Haley's] social skill development." Admin. R. at 179.

52 appropriate behavior, and the students engaged in role playing

and behavioral reversal. Id. at 164-65. Haley's case manager

testified that she was familiar with this course, and "actively

reinforce[d]" the skills taught when working with Haley. Id. at

147 .

The District's witnesses testified that, in their opinion,

these methods of instruction, and Haley's lEPs, were reasonably

calculated to benefit her. See, e.g., id. at 148-60, 177-81,

197-203, 2123. Indeed, the District's school psychologist

testified that the only appropriate way to teach social skills

was in a group--as in the S-Cubed program. Id. at 2105. The

Aucocisco School's director--again, the only professional

educator to testify on the plaintiff's behalf--did not offer any

opinion as to the appropriateness of the lEPs in this area.

Moreover, it appears that the District's lEPs incorporated all of

the recommendations that Dr. Doiron, Haley's neuropsychologist,

made. Id. at 1653-63.16

In spite of this. Dr. Doiron opined that Haley's

"developmental level [was not] at a point where she could really

make full use of" the support services set forth in her IEP. Id.

16The court must confess, though--and this may admittedly reflect more poorly on the court itself than on the witness--that Dr. Doiron's testimony regarding these recommendations seemed guite vague. See, e.g.. Admin. R. at 1624-25, 1627.

53 at 1634; see also id. at 1668. Dr. Doiron conceded, however,

that he was unfamiliar with the S-Cubed program, and that he had

not had the opportunity to observe either Somersworth High School

or Haley in that setting, id. at 1632-33, 1643-44, 1659, so the

court cannot accord substantial weight to his opinion in this

regard. In any event, where--as here--"the evidence permits two

plausible views of adeguacy/appropriateness, the agency's choice

between them cannot lightly be disturbed." Roland M.,

.

Again, too, the record shows that Haley's social skills

progressed under the District's regimen. Haley's case worker

opined that Haley had "uneguivocally benefitted" from her social

skills instruction. Admin. R. at 146, and gave a number of

examples of how Haley had made progress in adjusting her behavior

during her interactions with others, id. at 1818-19. The

facilitator of the S-Cubed group described how, at the outset of

her high school career, Haley "was guite shy, withdrawn from her

peer group and nonassertive . . . often misread social cues and

. . . was guite anxious and fearful in speaking up in public and

in groups." Id. at 165. Over the two years the facilitator

observed her, Haley became "better able to understand and read

emotions, opened up more readily to the group and volunteered

information in group settings." Id. at 166; see also id. at

54 2098-2103. The District's school psychologist also noted that

Haley had become "much more relaxed" and less shy, id. at 174,

growth also confirmed by Haley's teachers in her substantive

courses, e.g., id. at 192, 2162.17

In what might be an effort to counter this evidence, the

plaintiff emphasizes Haley's poor performance on standardized

tests, which, among other things, revealed that, "when compared

to peers her age, Haley [was] functioning well below the average

range in social and communication skills, community skills, motor

skills, and personal living skills." Pl.'s Decision Memo,

(document no. 30) at 11 (guoting Admin. R. at 807). She comments

that "[t]he hearing officer apparently referenced none of these

facts in reaching the conclusion that Haley's lEPs were

appropriate in addressing her severe social and adaptive skill

deficits." Id. at 12. The plaintiff does not explain, however,

how this evidence could or should have affected the hearing

officer's decision, nor, more importantly, how it should affect

this court's decision.

17The plaintiff's own perception of Haley's interactions with others may have been markedly different. The plaintiff did not, however, have the same opportunity to observe Haley interacting with her peers in the way her teachers did. Haley's behavior at home, where she was around people she knew and was comfortable with, moreover, does not strike the court as a reliable indicator of how well the District was preparing her to interact with unknown or less familiar people.

55 In the absence of such an explanation, the court does not

view these standardized test scores as undermining the hearing

officer's conclusion that the lEPs provided appropriate social

skills instruction. As another district court has held, "[w]hen

measuring a child's educational achievement, the child should not

be compared to a nondisabled child." H.C. v. Katonah-Lewisboro

Union Free Sch. Dist., No. 09-cv-10563,

, *14

(S.D.N.Y. May 24, 2012) (internal guotation marks and alterations

omitted). As that court observed, it makes little sense to try

to "measure [a disabled student's] progress by comparing her test

results to the mean average of the educational abilities of

children her age" because "a child's academic progress must be

viewed in light of the limitations imposed by the child's

disability."

Indeed, Dr. Doiron opined that, due to the

"severe brain trauma" Haley suffered in utero, "her problems are

biological, they're fixed, they're continuing" and her

limitations are "just sort of set there." Admin. R. at 1623. It

is therefore unsurprising--and of no conseguence to the adeguacy

of the IEPs--that certain of Haley's cognitive abilities are and

have remained statistically lower than those of her non-disabled

peers. That is to be expected; the only guestion for this court

is whether the lEPs were reasonably calculated to enable Haley to

meaningfully improve her social skills despite this disability.

56 As just discussed, the evidence supports the conclusion that

they were. It is true that, as the plaintiff notes, there is

some evidence that Haley made even more progress on her social

skills while at Aucocisco (evidence that, the court must note, is

inconclusive given that Haley's interactions there were primarily

with disabled, rather than non-disabled, peers).18 But, "[i]n

assessing the adeguacy of an IEP, [the court does] not consider

whether another program would have been 'better' but only whether

the District's IEP was reasonably calculated to provide [the

student] with some educational benefit." Mr. G v. Timberlane

Reg'1 Sch. Dist.,

.

In light of the

testimony related above, and Haley's meaningful social progress,

the court concludes that the District did not fail to provide

Haley a FAPE with respect to her social and emotional needs.

181he plaintiff also notes that Haley "experienced social difficulties with peers" at Somersworth, citing several e-mails in the record as evidence. Pl.'s Decision Memo, (document no. 30) at 12; see also Pl.'s List of Disputed Facts (document no. 26) at 18-19, 24-25. But the plaintiff has cited no evidence that the interactions related in these e-mails were attributable to Haley's disability, rather than more or less typical of the problems that high school students face--let alone that they indicate that she was not receiving an appropriate education. So, insofar as the plaintiff is suggesting that the IDEA obligated the District to take some action to ensure that Haley did not experience difficulties with her peers, the court cannot agree with that proposition. "The law does not mandate services addressing problems truly distinct from learning problems." Samantha B. v. Hampstead Sch. Dist., 200

, 28 n.31 (guoting Mr. I.,

).

57 3. Emotional harm to Haley

The court's determination that the lEPs addressed Haley's

academic and social skills deficits as required by the IDEA does

not conclude the analysis. The plaintiff also argues that the

lEPs were insufficient because they affirmatively caused

"emotional harm" to Haley. Pl.'s Decision Memo, (document no.

30) at 19-21. She contends that "[u]nder the IDEA, an IEP . . .

must be found to be inappropriate if [its] implementation is

emotionally harmful to the child."

at 19 (citing Colin K. v.

Schmidt,

(D.R.I. 1982)). The court does

not agree with this interpretation of the law, or with the

plaintiff's interpretation of the record.

If the implementation of an IEP causes harm to a child, that

is undeniably a terrible result. But, as discussed in Part

III.B.l supra, our Court of Appeals has emphasized that "actions

of school systems cannot . . . be judged exclusively in

hindsight." Roland M.,

. Instead, as already

mentioned, the court must review the adequacy of an educational

plan "at the time the IEP was promulgated."

A court

therefore cannot view an IEP in retrospect and conclude solely on

the basis of resultant "harm" to the student that the school

district failed to fulfill its obligations under the IDEA.

Rather, if harm to the student plays a role in evaluating an IEP,

58 that role must be limited to assessing whether the possibility of

such harm should have been apparent to the school district at the

time it promulgated the IEP. Cf. Greenbush Sch. Comm, v. Mr. &

Mrs. K ,

(D. Me. 1996) (evaluating

proposed IEP prospectively in light of harm that would likely

result from its implementation, not retrospectively in light of

harm that had resulted); Colin K .,

(same).19

With an eye to that inguiry, the court concludes that the

plaintiff has not shown that the District, at the time it

proposed the IFPs in guestion, should have apprehended that the

plans could cause harm to Haley (or, for that matter, that they

caused harm to Haley at all). To be sure, Haley experienced some

anxiety at school, which the District's witnesses openly

acknowledged. E.g., Admin. R. at 159, 173, 180. They did not

attribute that anxiety solely to school itself, however--indeed,

Haley's case manager described how Haley experienced some anxiety

due to the expectations the plaintiff had placed on her.

at

19The court notes that one of the authorities upon which the plaintiff relies--Boston Public Schools, 40 Individuals with Disabilities Education Law Report 108 (Mass. St. Educ. Agency Dec. 10, 2003)--suggests that a school district may have an obligation to alter or reevaluate an IEP that is appropriate at its inception if the district becomes aware that the IEP's implementation is causing harm or distress to the student. There is an intuitive appeal to this interpretation, but the plaintiff has not endeavored to explain how it sguares with either the statutory text or governing case law, so the court cannot endorse it at this time.

59 1820-21. According to the case manager, based upon her daily

"charting" of Haley's emotions, "although like any student, Haley

had her ups and downs, she [did] not hate school or dread being

[ t h e r e ] Id. at 158.

While the plaintiff asserts that "issues in Haley's school

program and placement were the principal determinants of her

negative behaviors and compromised emotional state at home,"

Pl.'s Decision Memo, (document no. 30) at 20, she presented

little evidence that Haley actually suffered any harm as a direct

result of the lEPs' implementation. One would have to read the

sole evidence the plaintiff cites in her memorandum20--testimony

by Dr. Doiron--extremely generously to come to the conclusion

that Haley's difficulties at school were the "principal

determinants" of her "compromised emotional state at home." Dr.

Doiron did testify that Haley experienced some "apprehension"

about returning to Somersworth High School, but he identified the

201he plaintiff has cited no evidence in support of her conclusory assertions that "[i]ssues at school were the source of [Haley's] emotional discomfort throughout her experience at Somersworth High School" and that "Haley's public school placement caused her to become more and more alienated and at risk of depression as time went on." Pl.'s Decision Memo, (document no. 30) at 21. Similarly, although the plaintiff observes that Haley "complained regularly of headaches," id. at 12, she has identified no evidence establishing a causal connection between those headaches and Haley's programming or experiences at Somersworth High School.

60 source of Haley's anxiety as her "environment" generally, not her

educational plan. Admin. R. at 1622.

The plaintiff has identified several instances in which

difficulties with or at school caused Haley to cry or become

teary-eyed, and other instances in which Haley reported stress

due to school. See, e.g., id. at 455, 479, 964, 1153, 1735,

1739. While the court is sympathetic to Haley and does not doubt

the difficulties she encountered at school, there is no evidence

in the record from which the court can conclude that these

occasional complaints were attributable to deficiencies in the

District's lEPs, let alone deficiencies that should have been

apparent before the fact. Nor has the plaintiff pointed to any

evidence that the District failed to deal appropriately with

Haley's stress and tearfulness. To the contrary, the record

indicates that the District took preemptive measures in an

attempt to manage these difficulties. Among other things,

Haley's case manager noted, the "scripting" that she provided in

Haley's academic skills class "visibly relieved the anxiousness

Haley was feeling." Id. at 159. The District's psychologist

confirmed that this scripting was beneficial in dealing with

Haley's anxiety, as were her case manager's daily "check ins."

Id. at 180-81. And, as discussed in the previous section.

61 witnesses testified that Haley actually became less anxious and

more relaxed over time.

The court therefore cannot conclude that implementation of

the District's lEPs harmed Haley.

C. Reimbursement for private placement

"[PJarents who unilaterally change their child's placement

during the pendency of review proceedings, without consent of the

state or local school officials, do so at their own financial

risk. If the courts ultimately determine that the IEP proposed

by the school officials was appropriate, the parents [will] be

barred from obtaining reimbursement . . . ." Sch. Comm, of Town

of Burlington v. Dep't of Educ. of Mass.,

(1985); see also Five Town,

(reaffirming this

principle). Because, as just discussed, Haley's tenth- and

eleventh-grade IFPs were appropriate, the court cannot order

reimbursement for Haley's unilateral placements at the Riverview

and Aucocisco Schools.

IV. Conclusion

For the foregoing reasons, the court concludes that the

plaintiff did not file an administrative due process complaint

regarding alleged deficiencies in Haley's ninth-grade IEP and its

amendment within the applicable limitations period, and is

therefore barred from challenging those plans. The court also

62 finds that Haley's tenth- and eleventh-grade lEPs offered her a

FAPE in accordance with the IDEA. The New Hampshire Department

of Education's denial of reimbursement for the costs of Haley's

unilateral placements at the Riverview and Aucocisco Schools is

therefore AFFIRMED. The clerk shall enter judgment accordingly

and close the case.21

SO ORDERED.

Jo/eph N. Laplante Ui/ited States District Judge

Dated: March 5, 2013

cc: Richard L. O'Meara, Esq. Jeanne M. Kincaid, Esq. Melissa A. Hewey, Esq.

21The plaintiff's counsel appears before this court frequently. As such, the court expects him to be familiar with and observe the local rules of this court. Counsel is reminded that pursuant to Local Rules of Civil Procedure 7.1(a) (3) and 9.3, IDEA decision memoranda are limited to twenty-five pages. The plaintiff's decision memorandum exceeds thirty pages, in clear contravention of these rules. So far as the court can tell, the plaintiff's counsel has faithfully observed this court's page limitations in the past. Counsel is cautioned, however, that he should continue to do so or risk difficulties with the court. See L.R. 1.3(a).

63