UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cynthia K.

v. Civil No. 19-cv-1129-JD Opinion No.

Portsmouth School Department

O R D E R

Cynthia K. brought an action under the Individuals with

Disabilities in Education Act (“IDEA”),

, et

seq., challenging the decision of a New Hampshire Department of

Education hearing officer that the Portsmouth School Department

is not required to pay for an independent educational evaluation

(“IEE”) of her son, S.K. The court reversed the decision on the

ground that the Portsmouth School Department’s evaluation was

not appropriate because it did not include the specific

classroom observations that are required under

(a) and 300.310. The Department moves for

reconsideration, and Cynthia K. objects.

A jurisdictional issue arises, however, because the

Department filed a notice of appeal after filing the motion for

reconsideration. Ordinarily, filing a notice of appeal has

jurisdictional significance because the filing “confers

jurisdiction on the court of appeals and divests the district

court of its control over those aspects of the case involved in the appeal.” Bradford-Scott Data Corp. v. Physician Computer

Network,

(1st Cir. 1997). An exception exists

when a party files a motion for reconsideration under Federal

Rule of Civil Procedure 59(e) and then files a notice of appeal.

In that situation, the notice of appeal becomes effective when

the order on the motion is entered leaving jurisdiction with the

district court. Fed. R. App. P. 4(a)(4)(B). Therefore, the

court has jurisdiction to consider the motion for

reconsideration.

Standard of Review

A motion for reconsideration is a vehicle to correct a

manifest legal or factual error or to present newly discovered

evidence. Palmer v. Champion Mortg.,

(1st Cir.

2006). The court may grant the motion if the court has

misunderstood the moving party and “has made an error not of

reasoning but apprehension.” Ruiz Rivera v. Pfizer Pharms.,

LLC,

(1st Cir. 2008). Reconsideration is not an

appropriate means to assert new arguments or theories that were

not made before judgment entered or to reargue the same matters

that were previously considered. Biltcliffe v. CitiMortgage,

Inc.,

(1st Cir. 2014). The moving party bears

the burden of demonstrating the asserted error.

2 Discussion

In support of reconsideration, the Department contends that

the court erred in concluding that it had not done the classroom

observations that are required under § 300.305(a) and § 300.310.

Specifically, the Department argues that observations done by

Dr. Deming and S.K.’s classroom teachers satisfied those

requirements and that the court should have deferred to the

hearing officer’s finding that classroom observations were done.

Alternatively, the Department asserts that the court erred in

concluding that the Department’s evaluation was not appropriate,

due to a lack of required classroom observations, without first

determining whether the omission caused a deprivation of free

and appropriate public education (“FAPE”) under the IDEA.

Cynthia K. objects to reconsideration. She contends that

the Department’s argument that observations done by Dr. Deming

and S.K.’s classroom teacher were sufficient was previously

considered and properly rejected so that no facts were

overlooked. She also contends that the Department is raising

arguments in support of reconsideration that it could and should

have raised before judgment entered. If those arguments are

considered, she contends, they should be rejected because no

legal error occurred.

3 A. Legal Framework

“The IDEA was enacted to provide ‘free appropriate public

education’ [FAPE} to children with disabilities.” Doe v. Cape

Elizabeth Sch. Dist.,

(1st Cir. 2016). To meet

that objective, “special education and related services” must be

provided to students who are eligible because they are children

with disabilities.

Eligibility for special education and

related services is determined in two steps: (1) whether the

child has a qualifying disorder, and (2) whether because of that

disorder the child needs special education and related services

in order to be provided FAPE.

In the first step, the school undertakes an initial

evaluation to gather the information necessary to determine

whether a child has a specific learning disability.

.

Section 300.305 provides requirements for initial evaluations

and reevaluations of children suspected of having learning

disabilities. The team conducting an initial evaluation of a

child for eligibility for special education services reviews the

existing evaluation data, which includes current classroom-based

observations. § 300.305(a)(1). Section 300.310 addresses the

classroom-based observations for evaluating specific learning

disabilities as follows:

(a) The public agency must ensure that the child is observed in the child's learning environment (including the regular classroom setting) to document

4 the child's academic performance and behavior in the areas of difficulty.

(b) The group described in § 300.306(a)(1),1 in determining whether a child has a specific learning disability, must decide to— (1) Use information from an observation in routine classroom instruction and monitoring of the child's performance that was done before the child was referred for an evaluation; or (2) Have at least one member of the group described in § 300.306(a)(1) conduct an observation of the child's academic performance in the regular classroom after the child has been referred for an evaluation and parental consent, consistent with § 300.300(a), is obtained.

B. Factual Error

In the previous order, the observations done by Dr. Deming

and S.K.’s classroom teacher were considered for purposes of

whether they satisfied § 300.305(a) and § 300.310, and the court

explained why those observations did not satisfy the regulatory

requirements.2 Doc. 19, at *18-*20. The court also explained

why the hearing officer’s general finding that classroom

observations were conducted and the information was considered

did not show that the requirements of § 300.305(a) and § 300.310

1 Section 300.306(a)(1) provides that “[a] group of qualified professionals and the parent of the child determines whether the child is a child with a disability.”

2 In the motion for reconsideration, the Department states: “First, the Court’s decision rests on the understanding that Portsmouth did not conduct a classroom evaluation of S.K.” Doc. 21, at *1. The Department then cites classroom observations that the court discussed in the order. The Department’s argument, therefore, is based on a mistake.

5 were met. Therefore, those facts were not overlooked, and the

hearing officer’s finding was addressed.3

1. Dr. Deming

The Department again argues that Dr. Deming’s behavior

assessment of S.K., which included classroom observations,

satisfied the regulatory requirements. As was previously

explained, that assessment was done before the referral for

special education. Even assuming that the team decided to use

Dr. Deming’s assessment, as required by § 300.310(b)(1), that

assessment did not address S.K.’s academic performance.

2. Observations by Classroom Teachers

The Department now argues that the required classroom

observations were done by classroom teachers. It notes that the

hearing officer had “written classroom observations” done by

S.K.’s teachers from the 2018-2019 school year. The Department

contends that the reports support the hearing officer’s finding

that classroom observations were conducted.

3 The Department asks the court to defer to the hearing officer’s finding that classroom observations were done and were considered. As explained previously, that general finding is not sufficiently specific to provide the information the Department is seeking to show compliance with the regulations.

6 The team meetings for S.K.’s evaluations occurred in

January and March of 2019. Some of the observations apparently

were done after that time and could not have been considered at

the team meetings. Further, the observations were documented in

a “Behavior Chart,” which does not address academic performance.

In addition, as explained in the previous order, the classroom

teacher’s input is considered separately and does not provide

the classroom observation of academic performance that is

required under § 300.310.

C. Legal Errors

The Department also argues that the court misunderstood the

classroom observation requirements in § 300.305(a) and

§ 300.310.4 The Department contends that the observations that

were done were sufficient because the regulations provide that

observations may be done by “related services providers” such as

Dr. Deming, allow consideration of observations done before

referral of the child, and allow consideration of observations

done by classroom teachers. As is explained in the previous

order, the regulations require certain assessments and

procedures that were not followed for purposes of S.K.’s

4 The Department did not discuss those requirements or even cite the regulations in its decision memorandum or in its reply to Cynthia K.’s decision memorandum.

7 evaluation. Those matters have been addressed and need not be

repeated here.

The Department contends that any lack of classroom

observation for academic performance is at most a minor

procedural error, which should be overlooked because Cynthia K.

did not show that it caused S.K. to be deprived of FAPE. In

support, the Department relies on cases holding that an

eligibility determination should not be overturned based on a

procedural error unless the error affected the child’s

substantive right to FAPE under the IDEA. See, e.g., Ford ex

rel. Ford v. Long Beach Unified Sch. Dist.,

(9th Cir. 2002); D.H.H. by and through Rob Anna H. v. Kirbyville

Consolidated Indep. Sch. Dist.,

, at *13 (E.D.

Tex. July 12, 2019); Richardson v. District of Columbia,

(D.D.C. 2017).

Here, eligibility was not before the hearing officer or the

court. Instead, the issue in this case is whether Cynthia K. is

entitled to have the Department pay for an IEE as part of the

initial evaluation, which is the first step in the process of

determining whether S.K. has a qualifying disorder. As the

Department argued strenuously in its papers in support of the

hearing officer’s decision, the question of S.K.’s eligibility

for special education, the second step, was not before the

hearing officer or this court. The Department has not shown

8 that FAPE is relevant to the question of whether it is

responsible to pay for an IEE for S.K.

Contrary to the Department’s view of the lack of a need for

classroom observation of S.K.’s academic performance as provided

in the regulations, the First Circuit has noted that the

regulations show “the relevance of child’s overall academic

performance to an SLD [specific learning disability]

determination.” Doe,

. “[A]n SLD determination

must take into account ‘information from an observation in

routine classroom instruction and monitoring of the child’s

performance’ before the child is referred for an evaluation for

eligibility purposes, or, similarly, ‘observation of the child’s

academic performance in the regular classroom’ after the child

has been referred for such evaluation.”

(quoting §

300.310(b). Further, as part of the initial evaluation, a child

must be observed in the classroom setting in order to document

the child’s academic performance in the areas of difficulty.

Id. at 79; Dougall v. Copley-Fairlawn City Sch. Dist. Bd. of

Educ.,

, at *28 (N.D. Ohio Jan. 28, 2020).

A classroom observation to assess S.K.’s academic

performance in the areas of difficulty was required by the

applicable IDEA regulations. That was not done as provided in

the regulations. The Department has not shown that the lack of

9 a classroom observation for academic performance was a harmless

procedural error in the circumstances of this case.

The Department has not shown that the court’s decision was

based on a manifest legal error about the application of the

regulations or the effect of a procedural error.

Conclusion

For the foregoing reasons, the Department’s motion for

reconsideration (document no. 21) is denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

July 9, 2020

cc: Counsel of record.

10