Greenwich Board of Education v. M. et al

Filing 52

RULING (see attached) resolving the parties' cross-motions for summary judgment. For the reasons discussed in the attached Ruling, 43 Plaintiff's Motion for Summary Judgment is DENIED, and 45 Defendants' Motion for Summary Judgment is GRANTED. The Clerk is directed to enter judgment for Defendants. Signed by Judge Charles S. Haight, Jr. on June 22, 2016. (White, B.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
GREENWICH BOARD OF EDUCATION,
Plaintiff,
v.

3:13-cv-00235 (CSH)

G.M. and J.M., individually and as next
friends of K.M.,
Defendants.

RULING ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT
HAIGHT, Senior District Judge:
Plaintiff, the Greenwich Board of Education (the "Board"), brings this action against
Defendants G.M. and J.M. ("Parents"), individually and as next friends of their daughter, K.M.
("Student"). The Board brings suit pursuant to the Individuals with Disabilities Education Act, 20
U.S.C. §§ 1400-1482 ("IDEA"), to appeal a decision and order (the "Order") of an independent
hearing officer (the "IHO") of the State of Connecticut's Department of Education. Specifically, the
Board filed suit under § 1415(i)(2) of the IDEA, which grants the right to bring a federal civil action
to certain parties claiming to have been aggrieved by the IDEA's dispute resolution process. The
parties have cross-moved for summary judgment. Docs. 43-50. This Ruling resolves both motions.
I.

Background
K.M. is a student at the Windward School ("Windward"), a specialized instruction private

school in White Plains, NY. K.M. began at Windward in the second-grade in the 2012-13 academic
year. For kindergarten and first-grade, K.M. attended Riverside Elementary School ("Riverside"),
a Greenwich, CT public school falling under the jurisdiction of the Plaintiff Board. K.M.'s transition
from Riverside to Windward is the focus of the instant dispute.

During K.M.'s kindergarten year at Riverside, Parents became concerned about K.M.'s ability
to "follow multi-step instructions," a concern that arose mostly in light of a family history of learning
disabilities. J.M. Tr.1 at 18-19. In August of K.M.'s first-grade year at Riverside, Parents expressed
concerns to K.M.'s teacher, Sheri McGowan, through a "getting to know you interview" form. J.M.
Tr. at 21. Parents mentioned to McGowan their worries given a family history of learning
disabilities, and asked McGowan to monitor closely K.M.'s progress. McGowan Tr. at 178-89.
By October of first-grade, Parents began to notice that reading simple books was "an
enormous struggle" for K.M. J.M. Tr. at 21. On November 7, 2011, Parents expressed these
concerns to McGowan in an e-mail and requested an in-person meeting. P-11.2 At that meeting, on
November 9, 2011, McGowan indicated to Parents that she had referred K.M. to the school's Student
Assistance/Response to Intervention Team ("SAT/RTI"). J.M. Tr. at 25; P-25; P-33. McGowan
testified as to why she referred K.M. to the SAT/RTI team:
The SAT team is a team of teachers and administrators that are there
to help come up with other strategies that you can use and additional
ways of going about teaching things and ways of assessing and
collecting data and so forth. So I brought [K.M.] to this SAT team
knowing that there were parent concerns and learning disabilities in
the past, wanting to make sure there were more eyes and everyone
was – you know, on that team was aware of what I was doing and
able to suggest anything if they saw the need to do so.
McGowan Tr. at 68. Although McGowan testified that had J.M. not expressed concerns, she

1

"Tr." refers to the transcript of testimony provided at the due process hearing in front of
the IHO over five days on October 2, October 5, October 23, October 24, November 28, and
December 4, 2012.
2

References to P-[] and B-[] refer to the Parents' and Board's hearing exhibits,
respectively, filed with the Court under seal. References to A-[] refer to what the Board
describes as the "Hearing Officer Record of Communications, Scheduling Notices, Briefs, Final
Decisions, and Order," also filed under seal.
-2-

"probably [would] not [have referred K.M. to SAT/RTI] so soon," she made clear that K.M. would
likely have nevertheless been referred to SAT/RTI at some point. McGowan Tr. at 180, 200-01.
However, McGowan testified that "the history of learning disability which [J.M.] shared . . . was the
major factor" for her referral. McGowan Tr. at 183.
The SAT/RTI Team met on November 21, 2011 to craft an "intervention plan" for K.M. B-5,
at 22. The plan was modeled as a "scientific research-based intervention," or "SRBI," and was
structured pursuant to Connecticut's "Using Scientific Research-Based Interventions: Improving
Education for All Students; Connecticut's Framework for Response to Intervention." Doc. 44, at 6;
Supp.-8.3 The initial objectives of the SAT/RTI Team's SRBI plan were two-fold: (i) "To increase
[K.M.]'s consistent use/recognition of sight words"; and (ii) "To go up one F/P4 level through direct
strategy instruction." B-5, at 22. The plan included K.M.'s meeting with Lynn Sterner, Riverside's
Reading Specialist, three times a week for thirty minute sessions,5 and for daily sight word practice
three times daily. B-5, at 22. After the meeting, Parents followed up with Marianne McCullough,
Riverside's Assistant Principal, about the details of the intervention plan. McCullough informed
Parents that K.M. "is in the expected range for her grade level and [that] we are intervening early in

3

"Supp.-[]" refers to the documents that the parties jointly filed as the "Supplemental
Administrative Notice Documents." See Doc. 30.
4

"F/P" stands for the Fountas and Pinnell Benchmark Assessment System, which
"consists of a series of carefully designed benchmark books that measure the level of difficulty at
which a student is able to read fiction and nonfiction texts. The books range in difficulty from
those for beginning readers (A) to those for advanced readers (Z)." A-1.
5

Although Parents were initially told these sessions would be four times a week, B-5, at
22, they were notified on December 9, 2011 that K.M. was actually being referred for three
weekly sessions, not four, and that the indication of four in the initial plan was a mistake. J.M.
Tr. at 41; P-14; see also Sterner Tr. (10/24/12) at 95 ("It was three times a week, not four. . . .
[T]hat's a definite.").
-3-

light of the concerns you raised to support [K.M.]." B-6, at 1. Parents were also informed that they
would be updated by letter following each SAT/RTI Team meeting. P-14; J.M. Tr. at 39.
K.M. met with Sterner for the first time on November 28, 2011. Sterner Tr. (10/24/12)6 at
137. In a letter dated December 5, 2011, Sterner formally notified Parents that K.M.
has been selected to participate in Leveled Literacy Intervention, or
LLI. He7 will have daily thirty-minute lessons during which he will
read, write and learn about phonics. The LLI lessons are given in
addition to the regular reading instruction your child receives in the
classroom.
P-2, at 1. Sterner testified that she viewed K.M.'s referral to LLI as unusual because K.M. "was on
grade level, and I don't usually see children on grade level." Sterner Tr. (10/24/12) at 89. In fact,
Sterner testified that the usual criterion for LLI is "[t]wo levels below the benchmark reading level,"
and that K.M. was selected nonetheless purely "due to parental concern." Sterner Tr. (11/28/12) at
22. Sterner sent Parents periodic updates regarding K.M.'s progress in the LLI program. P-2, at 217. It was Sterner's position that K.M. was progressing properly through LLI. Sterner Tr. (10/24/12)
at 127 ("what we were doing was working").
At the end of December, Parents hired a private reading tutor for K.M., whom K.M. met with
regularly through the end of her first-grade year and into the summer.8 P-1. Parents informed
Riverside that they had hired such tutor, and were also in regular contact with the school throughout
the year sharing their concerns of K.M.'s lack of reading progress. See P-3.

6

Sterner's testimony stretched over two days, October 24, 2012 and November 28, 2012.

7

This was clearly a form letter, evidenced best by the improperly gendered pronouns.

8

K.M. met with two different private tutors, one in the month of December 2011, and the
other from January through August 2012. See P-1.
-4-

On January 30, 2012, John Grasso, principal of Riverside at the time, sent a letter to Parents
updating them on K.M.'s SAT/RTI intervention plan. The letter stated that K.M. "has shown
inconsistency in her ability to recognize sight words and high frequency words," and that "[t]o help
her we will increase the amount of times she practices these words in school. She will have three
opportunities each day to practice with: the teacher, a peer, and with the whole class." P-34.
It was clear that Parents did not believe Riverside's intervention with K.M. was eliciting
sufficient progress.9 In light of this concern, Parents hired Dr. Jill Greenberg, a private psychologist
with a Ph.D. in school psychology and an undergraduate degree in special education, to assess K.M.
Greenberg Tr. at 84. J.M. explained why Parents hired Dr. Greenberg:
We felt, throughout the entire school year, that [K.M.] was receiving
additional support, but we didn't feel like she was getting the support
she needed, because we did not see any progress, and we felt like we
needed a diagnosis, in order to correctly help [K.M.]. . . . We didn't
feel [K.M.] was getting the help that was going to help [her] going
forward, so we felt like we needed a diagnosis to find out what
exactly was wrong, or why she couldn't read.
J.M. Tr. at 80.
On March 27, 2012, Parents authorized Dr. Greenberg to receive from Riverside "any
evaluations, assessments or other paperwork necessary for Dr. Greenberg to complete her
evaluation" of K.M. B-2, at 1. Dr. Greenberg then evaluated K.M. between April and May 2012,
meeting with her for six private test sessions, performing a multitude of tests, and observing her in
school and at home. Dr. Greenberg then issued a comprehensive twenty-page psychological report

9

For example, Parents responded to Grasso's January 30, 2012 letter, stating that "[w]e
wanted to bring to your attention that the updated plan [described in Grasso's letter] is identical to
the original plan and has not been a successful path for [K.M.]." B-6, at 15.
-5-

of K.M.10 In short, Dr. Greenberg determined that K.M.'s "current functioning meets the diagnosis
of Specific Reading Disorder, ADHD-combined type, and generalized anxiety." B-3, at 18. The
report stated that K.M.
demonstrates clear signs of a specific reading disorder as well as signs
of ADHD. Despite strong, evenly developed cognitive functioning,
including memory functioning and processing speed functioning,
intensive intervention at school and tutoring at home, [K.M.]'s
reading skills fall well below the expected level for her age.
B-3, at 15. In fact, Dr. Greenberg testified that, given her testing results, K.M.'s reading disorder was
"just standing there yelling at me." Greenberg Tr. at 28; see id. at 27 ("[s]he was way below average.
Below end of low average. She was way low"). Dr. Greenberg also expressly disagreed with what
she viewed to be "atypically positive" reviews of K.M. given by K.M.'s teacher. Greenberg Tr. at
36, 102 ("this teacher's responses don't make sense to me"). She then testified that "we should
intervene intensively now because it won't get better by itself." Greenberg Tr. at 80. However, Dr.
Greenberg acknowledged that her report represented a snapshot of K.M. and that she did not consider
K.M.'s progress throughout her first-grade year. Greenberg Tr. at 88, 141-42. Dr. Greenberg also
acknowledged that she did not meet with K.M.'s teacher despite the fact that she would do so "in the
ideal setting." Greenberg Tr. at 90-91, 103; see also id. at 140 ("Normally I work pretty closely with
the school and the teacher if I can. I don't know why I didn't in this case."). Dr. Greenberg also did
not meet with K.M.'s reading specialist or the school psychologist, nor did she observe K.M. during
her specialized reading group. Greenberg Tr. at 90-91, 111.
In light of Dr. Greenberg's findings, on June 12, 2012, Parents sent then-Principal Grasso a

10

The version of the report contained in the record, B-3, is both undated and unsigned.
However, J.M. testified that Dr. Greenberg completed her report prior to the Parents' June 12,
2012 referral of K.M. for a special education determination. J.M. Tr. at 101.
-6-

Referral to Determine Eligibility for Special Education and Related Services with respect to K.M.
Parents requested that a "referral PPT be scheduled prior to the end of the school year." B-6, at 36.
A "PPT," or a "planning and placement team," is a body comprised of school officials and others
structured pursuant to Connecticut law (and the IDEA) to make determinations with respect to the
special educational needs of students. Regs. Conn. State Agencies § 10-76a-1(14). The referral
request documented three specific areas of concern: (i) reading struggles; (ii) anxiety and selfconfidence issues; and (iii) attention and focus issues. B-6, at 37. J.M. testified that Parents referred
K.M. for a special education eligibility determination because "[a]fter we got a diagnosis that was
more accurate for [K.M.], we wanted to get a more specific instruction for her to meet her needs."
J.M. Tr. at 102.
On June 19, 2012, the PPT met to consider Parents' referral. Present at the meeting were:
(i) Parents; (ii) Assistant Principal McCullough; (iii) regular education teacher McGowan; (iv)
special education teacher Diane Rasweiler; (v) school psychologist June Gold; (vi) Diane Anison
(referred to as "Speech/Lang" on the meeting minutes); (vii) Director of Special Education Mary
Forde; (viii) Riverside reading specialist Sterner;11 (ix) Dr. Greenberg; and (x) Parents' Attorney
Gerry McMahon. B-1, at 2. The PPT had before it Dr. Greenberg's evaluation, information from
SAT/RTI, K.M.'s Fountas and Pinnell results, sight word documentation, and report cards.
McCullough Tr. at 31-32. At the meeting, "[e]ach team member gave input on their specific area
with [K.M.]." McCullough Tr. at 32. Dr. Greenberg and Parents also gave their input at the
meeting. McCullough Tr. at 32-33.

11

Sterner's name does not appear on the minutes from the PPT meeting, but it is clear
that she was in attendance. See J.M. Tr. at 107; Sterner Tr. (11/28/12) at 29.
-7-

Following the PPT meeting, and without conducting any further evaluation, the PPT deemed
K.M. ineligible for special education and related services because she "has responded to the current
level of interaction." B-1, at 3. The PPT's analysis, reflected in the meeting minutes, is reproduced
in full below:
Introductions were made.
Parent received procedural
rights/safeguards. Parents signed 5-Day Waiver and Notice and
Consent to Conduct an Evaluation. The purpose of the meeting was
to review the parent referral for special education eligibility and
consider the initiated private evaluation. - Classroom teacher
described [K.M.]'s reading performance to date. Currently [K.M.] is
reading independently at a Fountas & Pinnell level H (benchmark
range at this time of year is I, J, K). [K.M.] began the year reading
independently at level B. Classroom teacher reported that [K.M.]
knew 100 out of 110 first grade sight words – grade level benchmark
is 88. Reading specialist described her sessions with [K.M.]. She
gave parents a list of books for [K.M.] to practice for fluency over the
summer. School psychologist reported that [K.M.] demonstrates
strong social skills at school and was selected as a model for a snack
group. - Parents described [K.M.] as anxious at home and very
stressed about reading. They shared that [K.M.] has a tutor from
Windward twice a week. The private evaluator reported that [K.M.]
presents as a cognitively intact child with executive functioning
issues who shows herself differently at home than at school. She
noted a weakness in far point copying, reversals, and negative
emotions around reading. School based team recommended that
[K.M.] attend GPS Summer School to maintain her skills in a more
relaxed thematic based learning environment. Parents were
encouraged to contact the assistant principal if they wanted to visit
summer school. - Team agreed that [K.M.]'s performance would be
monitored as she enters second grade. A parent meeting will be
scheduled early in September. Progress monitoring data will be
graphed and shared regularly with parents. The school members of
the team considered the private evaluation, her response to
intervention, and current functioning and determined that [K.M.] does
not meet the criteria for disability under the IDEA.
B-1, at 3. Assistant Principal McCullough, the PPT administrator, testified as to why she personally
believed that K.M. was ineligible for special education services:

-8-

Looking at all of the information in front of the team, her response to
intervention was part of the decision-making and her performance
throughout the course of the year in conjunction with the report and
everybody's input. . . . She responded very positively to intervention.
That she had started the year at a level B and was ending the year at
a level H, which is seven levels.
McCullough Tr. at 33. McCullough then acknowledged that level H was below grade level, but that
this was not a concern meriting a determination that K.M. was disabled:
It factored in because it was the first time they are monitoring that she
hadn't made the range and at the meeting it was described that there
was a jump from H to I and that as such, while it was going to be
something closely monitored with [K.M] in second grade, we didn't
know if it was the beginning of a trend or just one piece of
information.
McCullough Tr. at 34; see also Sterner Tr. (11/28/12) at 29. McCullough made clear her view that
it was K.M.'s progress that demonstrated her ineligibility for special education services. McCullough
Tr. at 36 (testifying that K.M.'s case was different from other PPTs in which a disability was found
because K.M. "was making measurable consistent progress throughout the year.").
Parents elected not to enroll K.M. in the summer program recommended by the PPT. J.M.
Tr. at 129. J.M. explained this decision: "[W]e thought it would be more of the same instruction,
and we didn't believe that that instruction was helpful for [K.M.], and we needed something that was
more specific to her needs." J.M. Tr. at 130. Rather, immediately after the PPT meeting, Parents
began efforts to transition K.M. from Riverside to Windward. In fact, the day of the meeting, J.M.
authorized Riverside to release K.M.'s information to Windward. P-12; J.M. Tr. at 125.12
J.M. initially became familiar with Windward through the experience of her niece, who had

12

J.M. executed the Windward release on the same day of the PPT meeting. P-12. As
aptly noted on cross-examination, J.M. must have requested this document from Windward prior
to the PPT. J.M. Tr. at 161.
-9-

previously been a student at Windward. J.M. Tr. at 136. Windward was also recommended by Dr.
Greenberg. J.M. Tr. at 136, 161. Although Dr. Greenberg did not have much of a relationship with
Windward, she "know[s] many people who have sent their children there," meaning that she "just
know[s] of it by reputation." Greenberg Tr. at 59-60. She opined that "[i]t's a great school for kids
who do not have behavior problems, who are bright and really struggling to learn to read."
Greenberg Tr. at 60. In short, Dr. Greenberg testified that Windward is "a great choice for K.M."
Greenberg Tr. at 60. She testified why this is so:
Not only is [K.M.] bright and lively minded, she is struggling to learn
to read, and she's very anxious about that. And my hope would be
that in a small group setting where there's lots of reinforcement all
day long in literacy, because that's the focus all day long. . . . At the
same time, they're really focusing on the emotional piece because they
know kids who are – who have learning disabilities have emotional
vulnerabilities as well, so their program is nicely set to address that
throughout the day. . . . [T]here's a concerted effort at Windward to
teach kids not just self-advocacy skills, but to know who they are as
learners with a learning disability.
Greenberg Tr. at 60-61.13
Riverside school psychologist June Gold, a participant in the PPT meeting, testified that she
disagreed with certain of Dr. Greenberg's diagnosis. Specifically, she testified that K.M. had a
positive attitude towards school, that she did not detect any anxiety (nor did any school staff report
to her any anxiety), and that K.M. was "focused, very much on task," and demonstrated no signs of
ADHD or attention issues.14 Gold Tr. at 8-10. However, Gold acknowledged she conducted no
13

Dr. Greenberg also testified that there are not many options for schools that provide the
services of Windward. Greenberg, at 75 ("there's slim pickin's around here, so the choices are
Windward and Eagle Hill").
14

The record appears to show that there was likely a discrepancy between K.M.'s
performance at school compared with at home. McGowan testified that K.M. "enjoys reading,"
and "loved to read" (although she acknowledged that K.M. had certain reading weaknesses and
-10-

evaluations of any type of K.M. Gold Tr. at 16. In fact, she testified that "we didn't see the need [to
evaluate K.M.] at the school level [because] [s]he was responding to intervention." Gold Tr. at 26.
Windward performed an initial educational screening of K.M. on June 22, 2012. P-13.
Windward's testing found K.M. to be below grade level in rate, accuracy, fluency, and
comprehension, and informed Parents that it would accept K.M. for the 2012-13 academic year.
J.M. Tr. at 127-28; P-19. Parents executed a Windward enrollment contract on July 1, 2012. P-10;
J.M. Tr. at 128. On July 12, 2012, Parents, through counsel, notified the Connecticut State
Department of Education that they were filing for a due process hearing pursuant to the IDEA to
challenge the PPT's determination. A-1. On August 13, 2012, Parents informed Riverside Principal
Christopher Weiss that K.M. would be attending Windward instead of Riverside for the 2012-13
academic year. B-6, at 46. K.M. began at Windward on September 10, 2012. J.M. Tr. at 128.
After beginning second-grade at Windward, Parents retained the services of Dawn Matera,
a reading specialist with a master's degree in special education, to evaluate K.M. P-20. Matera
performed a "one-hour curriculum-based assessment [of K.M.] in [her] office" on September 28,
2012. Matera Tr. at 153. Matera had access to Dr. Greenberg's report and certain of K.M.'s school
records. Matera ultimately issued a two-page report, concluding that K.M. was in the 10th percentile
for end of first-grade readers—meaning she did not meet the first-grade benchmark (as a secondgrader)—as to "word reading" and "fluency." Matera also concluded that "[s]ince we know that her
working memory and cognitive processing speed are at or above grade level, we can consider
[K.M.]'s difficulties to be the result of her reading disorder, attentional difficulties, or anxiety." P-

inconsistencies in which her progress was slow). See McGowan Tr. at 43, 58, 62, 127, 147, 162,
186, 188. McGowan also did not view K.M. as exhibiting the anxiety described by Parents.
McGowan Tr. at 163.
-11-

24, at 2.
The due process hearing challenging the PPT's determination took place in front of the IHO
over six days on October 2, October 5, October 23, October 24, November 28, and December 4,
2012. Testifying at the hearing were: (i) J.M.; (ii) McGowan; (iii) Dr. Greenberg; (iv) Matera; (v)
Sterner; (vi) Gold; and (vii) McCullough. Ultimately, the issues for resolution were: (i) "Did the
Board err in concluding that the Student was ineligible for special education?"; and (ii) "If so, is the
Parents' unilateral placement at Windward School appropriate and reimbursable?" The parties
submitted post-hearing briefing on December 13 and 14, 2012.
On January 3, 2013, the IHO issued her decision, ruling in favor of Parents on both issues.
In summary, the IHO determined that: (i) the Board erred in summarily denying Parents' request
without evaluating K.M.; (ii) K.M. is eligible for special education under the category of "specific
learning disability," 34 C.F.R. § 300.8(c)(10), and thereby the Board failed to offer K.M. a "freeappropriate public education" as required by the IDEA; and (iii) Windward was an appropriate
unilateral placement entitling Parents to reimbursement. The Board moved for clarification on
January 30, 2013, which the IHO summarily denied on February 4, 2013. On February 21, 2013, the
Board filed the instant Complaint in this Court to appeal the IHO's determination.
II.

Standard of Review
IDEA appeals are generally resolved in full via cross-motions for summary judgment brought

pursuant to Rule 56 of the Federal Rules of Civil Procedure. However,
Though the parties in an IDEA action may call the procedure 'a
motion for summary judgment,' the procedure is in substance an
appeal from an administrative determination, not a summary
judgment motion. . . . Basing its decision on the preponderance of the
evidence, the court is required to grant such relief as the court
determines is appropriate.
-12-

M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 226 (2d Cir. 2012) (internal quotations, citations, and
alterations omitted). The "preponderance of the evidence" standard comes directly from the IDEA
itself. 20 U.S.C. § 1415(e)(2) ("basing its decision on the preponderance of the evidence, [the
district court] shall grant such relief as the court determines is appropriate"). Accordingly, "'a motion
for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed
issues of fact. Rather, the motion serves a pragmatic procedural mechanism for reviewing a state's
compliance with the procedures set forth in [the] IDEA.'" Id. at 225-26 (quoting Lillbask es rel.
Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)).
Finally, in determining whether a state agency's decision as to a local education agency's
compliance with the IDEA is supported by a preponderance of the evidence, the court should keep
in mind that
'[t]he role of the federal courts in reviewing state educational
decisions under the IDEA is circumscribed.' Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105, 112-13 (2d Cir. 2007) (internal
quotation marks omitted). The standard of review 'requires a more
critical appraisal of the agency determination than clear-error review
but nevertheless falls well short of complete de novo review.' M.H.
v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (internal
quotation marks, ellipses, and brackets omitted). The deference owed
depends on both the quality of the opinion and the court's institutional
competence. Id.
C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 77 (2d Cir. 2014).
III.

Discussion
A.

Burlington/Carter

The process of review of a state agency's determination as to parents' entitlement to
reimbursement for a private placement under the IDEA is a familiar one:
When parents unilaterally enroll their child in a private school, we
-13-

apply the three-part Burlington-Carter test to determine whether they
should be reimbursed. Under the test, we look at '(1) whether the
school district's proposed plan will provide the child with a free
appropriate public education [("FAPE")]; (2) whether the parents'
private placement is appropriate to the child's needs; and (3) a
consideration of the equities.'
J.C. v. New York City Dep't of Educ., – F. App'x –, 2016 WL 1040160 (2d Cir. Mar. 16, 2016)
(quoting C.F. ex rel. R.F. v. New York City Dep't of Educ., 746 F.3d 68, 77 (2d Cir. 2014)).15 The
Court turns to the Burlington/Carter elements now.
1.

IHO's Determination That the Board Failed to Offer K.M. a FAPE

"A state receiving federal funds under the IDEA must provide disabled children with a free
and appropriate public education ("FAPE")." R.E. v. New York City Dep't of Educ., 694 F.3d 167,
174-75 (2d Cir. 2012); 34 C.F.R. § 300.101(a) (a FAPE "must be available to all children residing
in the State between the ages of 3 and 21"). Moreover, states share an affirmative responsibility that
"[a]ll children with disabilities in the State . . . who are in need of special education and related
services, are identified, located, and evaluated." 34 C.F.R. § 300.111(a)(1)(i). This is referred to as
the state's "Child Find" obligation, which expressly requires the state to evaluate any "[c]hildren who
are suspected of being a child with a disability." 34 C.F.R. § 300.111(c)(1). Connecticut regulations
contain the same requirement. Regs. Conn. State Agencies § 10-76d-6.
When a school board violates its Child Find obligation by not evaluating a child suspected
of being disabled, it necessarily fails to provide that student a FAPE. See Regional Sch. Dist. No.
9 Bd. of Educ. v. Mr. and Mrs. M., 2009 WL 2514064, at *13 n.8 (D. Conn. Aug. 7, 2009) ("District

15

The Second Circuit's phrase "Burlington-Carter test" refers to the Supreme Court
decisions in School Committee of Burlington v. Department of Education, 471 U.S. 359 (1985)
and Florence County School District Four v. Carter ex rel. Carter, 510 U.S. 7 (1993). See Frank
G. v. Board of Educ. of N.Y., 459 F.3d 356, 363-64 (2d Cir. 2006).
-14-

No. 9's failure to satisfy its IDEA obligations resulted in the loss of an opportunity to provide a
FAPE"); M.A. v. Torrington Bd. of Educ., 980 F. Supp.2d 245, 270 (D. Conn. 2013) ("The Board's
'refusal to continue the process for [M.A.], a resident of Torrington, constituted a denial of FAPE."
(internal quotation omitted)).
Largely in light of K.M.'s reading difficulties, Parents claimed that K.M. suffers from "a
specific learning disability," which the IDEA defines as follows:
[A] disorder in one or more of the basic psychological processes
involved in understanding or in using language, spoken or written,
that may manifest itself in the imperfect ability to listen, think, speak,
read, write, spell, or to do mathematical calculations, including
conditions such as perceptual disabilities, brain injury, minimal brain
disfunction, dyslexia, and developmental aphasia.
34 C.F.R. §§ 300.8(a)(1) & (c)(10). The IDEA then describes how a school board may determine
the existence of a "specific learning disability":
(a) [A school] may determine that a child has a specific learning
disability if . . .
(1) [t]he child does not achieve adequately for the child's age or to
meet State-approved grade-level standards in one [one of a number
of] areas, when provided with learning experiences and instruction
appropriate for the child's age or State-approved grade-level
standards[; and]
(2)(i) The child does not make sufficient progress to meet age or
State-approved grade-level standards in one or more of the areas
identified in paragraph (a)(1) of this section when using a process
based on the child's response to scientific, research-based
intervention; or
(2)(i)(i) The child exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, State-approved
grade-level standards, or intellectual development, that is determined
by the group to be relevant to the identification of a specific learning
disability, using appropriate assessments.

-15-

34 C.F.R. § 300.309(a).
However, the IDEA does not provide all of the procedures a state must follow. Rather, it
requires that states "must adopt, consistent with § 300.309, criteria for determining whether a child
has a specific learning disability," and that state "public agenc[ies] must use th[at] State criteria . .
. in determining whether a child has a specific learning disability." 34 C.F.R. § 300.307.
Connecticut has adopted certain of such criteria through Regs. Conn. State Agencies § 10-76 (2012).
Specifically, § 10-76d-9 states that "[t]he following criteria shall be used to determine if a child is
a child with a learning disability":
(1) (A) The child does not achieve adequately for the child's age or
meet state-approved grade-level standards in one or more of the
following areas when provided with learning experiences appropriate
for the child's age or state-approved grade-level standards . . .
(i) oral expression;
(ii) listening comprehension,
(iii) written expression,
(iv) basic reading skills,
(v) reading fluency skills,
(vi) reading comprehension,
(vii) mathematics calculation, or
(viii) mathematics problem solving;
(B) The child does not make sufficient progress to meet age or stateapproved grade-level standards in oral expression, listening
comprehension, written expression, basic reading skills, reading
fluency skills, reading comprehension, mathematics calculation, or
mathematics problem solving when using a process based on the
child's response to scientific, research-based intervention: and
(C) The child's learning difficulties are not primarily the result of a
visual, hearing or motor disability, an intellectual disability,
emotional disturbance, cultural factors, environmental or economic
disadvantage, or limited English proficiency; . . .

-16-

*

*

*

Here, it is undisputed that the Board did not conduct a comprehensive evaluation of K.M.
See, e.g., Doc. 50, at 9 ("Undisputedly, a comprehensive evaluation did not exist in this case"); Doc.
44, at 23 ("An evaluation of the Student was neither necessary nor appropriate"). Rather, the PPT
made a summary determination that K.M. was not disabled as a matter of law. The Board therefore
does not contest on appeal the IHO's determination that the PPT, "without evaluating the Student,
summarily deemed her ineligible for special education and related services," Order, at 7 (emphasis
added). Instead, the Board argues the "IHO erred in finding that the Board was obligated to evaluate
the Student under the formal evaluation procedures provided for under the IDEA." Doc. 44, at 22.
The issue before the Court is therefore whether the IHO's decision that the Board erred in refusing
to comprehensively evaluate K.M. for a specific learning disability is supported by a preponderance
of the evidence.
The Board argues that it was not required to conduct a comprehensive evaluation pursuant
to the IDEA because K.M. purportedly made "sufficient progress" through SRBI. To support this
assertion, the Board relies on what it terms a "dual discrepancy" analysis, arguing that a PPT may
only find a student disabled under the IDEA if "the student (1) does not achieve adequately for the
child's age or meet state-approved, grade-level standards in one or more areas, and (2) does not make
sufficient progress to meet age or state-approved, grade-level standards . . . when using a process
based on the child's response to [SRBI]." Doc. 44, at 20 (internal quotation omitted). In other
words, the Board argues that "a PPT may decline to evaluate a student where the student is making
progress in the SRBI process and thus there is no reason to suspect a disability." Doc. 44, at 23. The
Board then argues that it "had no reason to suspect that [K.M.] had a disability, as [she] made

-17-

sufficient progress through the [RTI] program." Doc. 50, at 3.
The Board's argument that K.M.'s purported progress through SRBI obviated the need for a
comprehensive disability evaluation does not conform to the requirements of the IDEA. As stated,
the IDEA requires school boards to evaluate "[c]hildren who are suspected of being a child with a
disability." 34 C.F.R. § 300.111(c) (emphasis added); see also Murphy v. Town of Wallingford, 2011
WL 1106234, at *3 (D. Conn. Mar. 23, 2011) ("[o]nce a school has 'reason to suspect a disability,'
the school must conduct an evaluation of the child"); Regional Sch. Dist. No. 9 Bd. of Educ., 2009
WL 2514064, at *12 ("In order to establish a procedural violation of the Child Find obligation, the
school officials must have[, inter alia,] 'overlooked clear signs of disability,'"(quoting Bd. of Educ.
v. L.M., 478 F.3d 387 (6th Cir. 2007) (emphasis added)). Accordingly, even crediting the Board's
argument that K.M. must have been found "dual discrepant" to be disabled under the IDEA, see
infra, the Board would have had to show that the PPT had no reason to suspect that K.M. was not
making "sufficient progress" following SRBI.
However, there can be no serious question as to whether Parents offered sufficient evidence
to at least raise a suspicion that K.M. may have been failing to make "sufficient progress" through
SRBI. At the outset, they offered a report and testimony by an unchallenged expert in the field who
conducted a myriad of research-based examinations, met with K.M. on six separate test sessions, and
determined unhesitatingly that K.M.'s "reading skills," after months of SRBI, "fall well below the
expected level for her age." Greenberg, at 15.16 This is despite the fact that, according to the
Riverside reading specialist, K.M. was on grade level at the beginning of the year. Sterner Tr.

16

Although Dr. Greenberg did not evaluate K.M.'s progress throughout K.M.'s first-grade
year, her conclusion that K.M. is "well below the expected level for her age" is certainly relevant
as to whether SRBI had been serving its function.
-18-

(10/24/12), at 89. It is also of note that Dr. Greenberg determined that K.M.'s lack of progress is a
product of K.M. "meet[ing] the diagnosis of Specific Reading Disorder, ADHD-combined type, and
generalized anxiety." The Board offered no credible evidence or testimony to contradict the
substantive findings of Dr. Greenberg.17
The Board argues that reliance on Dr. Greenberg's report was inappropriate in light of the fact
that Dr. Greenberg purportedly did not apply, nor even refer to, the IDEA statutory or regulatory
process for determining if a child has a "specific learning disorder." However, whether Dr.
Greenberg specifically applied or incorporated IDEA standards into her diagnosis is not dispositive
of whether her ultimate findings should have raised a suspicion of disability. As stated elsewhere:
District No. 9 argues that the fact that M.M. was admitted to a
psychiatric hospital does not necessarily mean that she would qualify
for special education. However, the standard for triggering the Child
Find duty is suspicion of disability rather than factual knowledge of
a qualifying disability.
Regional Sch. Dist. No. 9 Bd. of Educ., 2009 WL 2514064, at *12 (emphasis added).
Moreover, Dr. Greenberg's report was far from the only sign that should have led to a
suspicion that K.M. may not have been making sufficient progress through SRBI. K.M. dropped
from at grade-level to below grade-level in reading skills—the specific area in which Parents claim
K.M.'s disability manifests itself—during the year with which SRBI took place, a fact expressly
acknowledged by the PPT. Ex. B-1 ("Currently Kiera is reading independently at a Fountas &
Pinnell level H (benchmark range at this time of year is I, J, K)"); see also McCullough Tr. at 34;
Sterner Tr. (11/28/12) at 29. That below grade-level performance was observed despite the fact that

17

Although the Board proffered testimony from Riverside personnel who seemed to
disagree with certain of Dr. Greenberg's conclusions, see, e.g., McCullough, at 47; McGowan, at
165, 194, none of these witnesses actually evaluated K.M, or are trained to do so.
-19-

K.M. entered the LLI program on grade-level. See Sterner Tr. (10/24/12), at 89. K.M.'s June 2012
report card also indicated a regression between March and June 2012 in "Strategic Reading,"
dropping from "meets the grade level standard for most learning objectives," to "meets the grade
level standard for some learning objectives and is below the grade level standard for most learning
objectives." B-4, at 1-3. In addition, then-Principal Grasso's January 30, 2012 update to Parents
regarding necessary increases to K.M.'s SRBI makes clear that Riverside itself viewed the initial
phases of SRBI not to be sufficiently corrective. P-34. Perhaps most telling is that even PPT
members, including the meeting's administrator, acknowledged K.M.'s drop below grade-level on
the F&P in their testimony at the due process hearing and that it could not be ruled out as a cause for
concern. McCullough Tr. at 34 ("it was going to be something closely monitored with [K.M] in
second grade, we didn't know if it was the beginning of a trend or just one piece of information"
(emphasis added); McGowan Tr. at 194 ("there's no way to know if that was just a little slip");
Sterner Tr. (11/28/12) at 29 ("At the end of the school year there was a dip. And that of course we
were taking seriously") (all emphases added).18 Notably, K.M.'s first-grade teacher and PPT
member, McGowan, could not even definitively state one way or the other whether she thought
K.M.'s lack of progress warranted an eligibility determination, McGowan Tr. at 193 ("[t]hat's a hard
question"), let alone an eligibility evaluation. This goes to demonstrate that not only should the PPT
have had a suspicion that K.M. was making insufficient progress through SRBI, but that they actually
may have had such a suspicion.

18

This "wait-and-see" approach also seems to run counter to the typical SRBI process.
As explained in the Connecticut Department of Education's 2010 Guidelines for Identifying
Children with Learning Disabilities (the "Guidelines"), "[i]nterventions in the SRBI process are
relatively short term, typically eight to 20 weeks in duration per tier of intervention."
-20-

The Board errs by focusing almost exclusively on whether K.M. made any progress at all
with SRBI. For example, the Board argues: "Because the objective evidence demonstrated that
[K.M] was making progress through the Board's RTI process, the Board had no basis to find [K.M.]
required specialized instruction (i.e. an IEP)." Doc. 44, at 18; see also id. at 22 (the information
presented at the PPT "demonstrated that [K.M.] was making progress with SRBI: she had met SRBI
benchmarks by moving from F&P Level B (end of Kindergarten), to a Level D (in November 2011),
to a Level F (in February 2012), and then to a Level H (in May 2012)."). However, this ignores the
"dual discrepancy" language relied on by the Board, which refers not just to progress, but to
"sufficient progress." 34 C.F.R. § 300.309 (emphasis added). This is especially significant because,
as explained by reading specialist Matera, a student like K.M. should aim for higher rates of progress
relative to her peers so that she can close the achievement gap brought about by her diagnoses:
[I[f she's making slow progress and they're making slow progress, or
they're both making moderate amounts of progress, that gap between
her and her peers is not going to close, unless she receives a more
intensive instruction, much more intensive instruction than her peers,
so she needs to catch up again. Maybe that's the best way to explain
that, closing the gap, is to catch up to her peers, so we don't want her
just to make progress. We want her to meet benchmarks and grade
level requirements.
Matera Tr. at 48.
Regardless of whether the foregoing establishes that SRBI was completely unsuccessful, it
entirely contradicts the Board's assertion that the PPT could have had no suspicion that K.M. was
insufficiently progressing through SRBI (and thereby could not have had a specific learning
disability). At best, the Board only established that K.M. made some progress during SRBI, without
showing such to be "sufficient progress" obviating the need for a comprehensive evaluation. The
fact that the PPT made such a summary determination in light of a psychological report expressly
-21-

diagnosing K.M. with a learning disability further and seriously undermines the Board's position.
In short, the Board has not demonstrated that it could have had no suspicion that K.M. was making
insufficient progress through SRBI. Therefore, the Board errs in its argument that it was not
compelled by the IDEA to evaluate K.M.
In its argument to the contrary, the Board also places heavy reliance on the Connecticut
Department of Education's Guidelines. As the Board describes, those Guidelines do state expressly
that a "PPT may determine that a comprehensive evaluation is not needed," if it concludes "through
analysis of data that documents a student's progress through the use of appropriate, technically
adequate assessments, that a student is making sufficient, adequate progress through SRBI."
Guidelines, at 26; see also id. at 27 ("It is possible that based on a review of existing data, the PPT
will have sufficient information to determine if the student has a disability. . . . This review of
existing data may qualify as the comprehensive evaluation."). These Guideline provisions, which
speak in general terms of possibility, do not assist the Board. Each case turns on its own particular
circumstances. In the case at bar, the Board should have had a suspicion that K.M. was in fact not
making sufficient progress through SRBI.
The Court also notes that to the extent the Board asserts that one evaluative
tool—SRBI/RTI—served to circumvent any need for comprehensive evaluation of K.M., it failed
to adhere to IDEA procedure. See 34 C.F.R. §§ 300.304(b) ("In conducting the evaluation, the
public agency must . . . [u]se a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information about the child," and "[must] not use any
single measure or assessment as the sole criterion for determining whether a child is a child with a
disability."); 300.306(c)(1)(i) ("[i]n interpreting evaluation data for the purpose of determining if a

-22-

child is a child with a disability . . . each public agency must . . . [d]raw upon information from a
variety of sources"). According to U.S. Department of Education guidance:
an evaluation of a child suspected of having . . . a specific learning
disability, must include a variety of assessment tools and strategies
and cannot rely on any single procedure as the sole criterion for
determining eligibility . . .. An RTI process does not replace the
need for a comprehensive evaluation, and the results of an RTI
process may be one component of the information reviewed as part
of the evaluation procedures required under 34 CFR §§300.304 and
330.305.
Ltr. to Dr. Zirkel, 47 IDELR ¶ 268 (OSEP Mar. 6, 2007) (all emphases added).
In light of the above, the Court has little difficulty in determining that the Board failed to
adhere to the procedural requirements of the IDEA, specifically, the Child Find obligation of 34
C.F.R. § 300.111(c)(1). Although not all procedural violations of the IDEA amount to the denial
of a FAPE,19 this one clearly does. Here, the Board prematurely and improperly cut-off the disability
review process. If that were found not to be a procedural violation amounting to the denial of a
FAPE, it is unclear which procedural violation could so qualify. Specifically, the Board's refusal to
evaluate K.M. not only impeded Parents' opportunity to participate in the decision-making process,
it foreclosed them from accessing that process at all, a process to which they were entitled. See M.A.
v. Torrington Bd. of Educ., 980 F. Supp.2d 245, 270 (D. Conn. 2013) ("The Board's 'refusal to
continue the process for [M.A.], a resident of Torrington, constituted a denial of FAPE." (internal
quotation omitted)).
The Court therefore holds that the IHO's determination that "the PPT erred when, without

19

"Procedural violations . . . only [entitle the parents to reimbursement] if they impeded
the child's right to a FAPE, significantly impeded the parents' opportunity to participate in the
decisionmaking process, or caused a deprivation of educational benefits. R.E. v. New York City
Dep't of Educ., 694 F.3d 167, 189 (2d Cir. 2012) (internal quotation omitted).
-23-

evaluating the Student, it summarily deemed her ineligible for special education and related
services," Order, at 7, is supported by a preponderance of the evidence.20 For the reasons discussed
above, the Court finds this error sufficient to demonstrate a denial of a FAPE for the 2012-13
academic year. The first element of the Burlington/Carter test is satisfied.21
2.

IHO's Determination That Windward was an Appropriate Placement

To be eligible for reimbursement under the IDEA, Parents must have established that
Windward was an appropriate placement for K.M.:
[U]pon a finding that a public agency's placement or program or
proposed placement or program is not appropriate, any party seeking
reimbursement for a unilateral placement or program shall prove the
appropriateness of such placement of program by a preponderance of
the evidence.
Regs. Conn. State. Agencies § 10-76-14(c). A unilateral private placement is only appropriate if the
"'placement provides 'educational instruction specially designed to meet the unique needs of a
[disabled] child, supported by such services as are necessary to permit the child to benefit from
instruction.'' C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014) (quoting
Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006), which, in turn, quoted
Rowley, 458 U.S. at 188-89).22 "In making this determination, courts look to the 'totality of the
20

Put differently, the Court holds that the IHO correctly answered "Yes," to the first issue
presented to her: "Did the Board err in concluding that the Student was ineligible for special
education services for 2012-2013 school year?" Order, at 1.
21

The IHO's subsequent and independent determination that K.M. was in fact disabled is
discussed below.
22

The Board initially phrases the standard somewhat differently. Quoting Hardison v.
Board of Education, 773 F.3d 372, 386 (2d Cir. 2014), it determines that the placement is only
appropriate if it is "specifically designed to meet the unique needs of handicapped children,"
rather than "specially" designed to meet those needs. Doc. 44, at 33 (emphasis in original). The
Hardison court borrowed the term "specifically," from M.H. v. N.Y.C. Department of Education,
-24-

circumstances' and '[n]o one factor is necessarily dispositive.'" M.B. ex rel. L.C. v. Minisink Valley
Cent. Sch. Dist., 523 F. App'x 76, 78 (2d Cir. 2013) (quoting Frank G., 459 F.3d at 364). In short,
the "parents' placement of the child must be reasonably calculated to enable the child to receive
educational benefits." C.L., 744 F.3d at 836. Finally, "'the test for the parents' private placement is
that it is appropriate, and not that it is perfect.'" Regional Sch. Dist. No. 9 Bd. of Educ., 2009 WL
2514064, at *14 (quoting Warren G. v. Cumberland Cnty Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)).
As proffered by Parents, K.M. has above-average intellectual ability, but has a languagebased learning disability affecting her reading skills. Windward advertises itself as a school specially
designed for that precise type of student. Specifically, it states that "Windward students are children
of average or above average intelligence who may have not been able to achieve language
competency in traditional classroom settings." P-40, at 1; see also id (Windward is a "school
focused exclusively on helping students in grades 1-9 with language-based learning disabilities.").
Windward then determined that K.M. specifically met its criteria for admission precisely "because
she has a language based learning disability." P-47, at 4; see also P-40, at 5 (describing Windward
admissions criteria to include a "written diagnosis of a language and/or learning disability," "average
to superior intellectual potential," and "no behavioral or emotional problems"). Windward
expounded as follows as to the appropriateness of its program to K.M.:

685 F.3d 217, 246 (2d Cir. 2012), which in turn quoted the term from Gagliardo v. Arlington
Central School District, 489 F.3d 105, 115 (2d Cir. 2007). Gagliardo's use of the term
"specifically," however, is a misquotation of the Second Circuit's earlier decision in Frank G.
Specifically, in Frank G., the court used the term "specially," rather than "specifically," which
was a proper quotation of the Supreme Court's decision in Rowley. Given that the Second Circuit
has vacillated between "specially" and "specifically," and that the initial use of the
term"specifically" was in error, the Court will apply the Supreme Court's usage of "specially"
from Rowley.
-25-

[K.M.] is a child with a language based learning disability.
Windward is a school of highly trained teachers who have been
trained to teach children with language based learning disabilities
through a multisensory direct instruction group model.
P-47, at 4.23
Windward's description of "Windward students" mirrors the description of K.M. in the report
issued by Parents' retained expert, Dr. Greenberg. B-3, at 15 ("Despite strong, evenly developed
cognitive functioning, intensive intervention at school and tutoring at home, [K.M.]'s reading skills
fall well below the expected level for her age."). In addition, Dr. Greenberg's report specifically
recommended K.M. attend a school offering the precise type of program advertised by Windward:
A specialized school for children with reading differences and
learning disabilities is an appropriate placement for [K.M.]. Whereas
at the present time she is embarrassed by her struggles and concerned
about her learning differences, in the presence of students who
struggle as she does she may feel liberated from her shame and
despair. With those specific anxieties reduced [K.M.] will be more
available for learning, may demonstrate fewer signs of ADHD, and
may develop the necessary tolerance for frustration and hard work
that will be required for her to learn to read.
B-3, at 19. It should be no surprise, then, that Dr. Greenberg, who has no connection to Windward,
later testified at the due process hearing that Windward is "a great choice for [K.M.]" specifically
because "[i]t's a great school for kids who do not have behavior problems, who are bright and really
struggling to learn to read." Greenberg Tr. at 60. Dr. Greenberg continued:
my hope would be that in a small group setting [like at Windward]
where there's lots of reinforcement all day long in literacy, because
that's the focus all day long. . . . At the same time, they're
[Windward] really focusing on the emotional piece because they
know kids who are – who have learning disabilities have emotional

23

Although Parents failed to proffer the live testimony of any Windward personnel, the
record establishes that Parents were contractually prohibited from securing such testimony. P-10.
-26-

vulnerabilities as well, so their program is nicely set to address that
throughout the day. . . . [T]here's a concerted effort at Windward to
teach kids not just self-advocacy skills, but to know who they are as
learners with a learning disability.
Greenberg Tr. at 60-61.24 Matera, a reading specialist familiar but unassociated with Windward, also
testified that Windward "is a most appropriate placement" for K.M. Matera Tr. at 19. Specifically,
it was her opinion that:
Knowing the various LD schools in the area, knowing what types of
students they take, and what kind of success they have over the years,
I think Windward is the most appropriate compared to the other LD
schools in the area. . . . Windward's program is a very intensive
language arts block, so she'll, instead of having, you know, one
language arts block per period, she might have three or four that are
broken up into these areas of, you know, phonemic awareness,
phonics, maybe fluency, and then building her reading level over
time. So it's a very intensive program, based on struggling readers.
Matera Tr. at 19-20.
The Board rests its argument principally on the notion that Parents offered no evidence as
to K.M.'s specific academic program at Windward. In so arguing, the Board calls for too heavy a
burden on Parents to establish the appropriateness of Windward. To be reimbursable, the program
need not be individually crafted for K.M. herself, but rather should be specially designed to meet
K.M.'s needs. In other words, Parents' needed to show that "placement of [K.M.] [was] reasonably
calculated to enable the child to receive educational benefits." C.L., 744 F.3d at 836. For the
reasons discussed above, Windward's program was clearly designed to address the special needs of
students specifically in K.M.'s circumstance and is thereby "reasonably calculated to enable [her] to

24

Dr. Greenberg also testified that there are not many options for schools that provide the
services of Windward. Greenberg Tr. at 75 ("there's slim pickin's around here, so the choices are
Windward and Eagle Hill").
-27-

receive educational benefits." Id.
It is noteworthy that despite the Board's assertion that "[c]ase law supporting [it's] position
on this point is overwhelming," Doc. 44, at 36, it has not proffered a single case in which a federal
court overturned a finding that a private placement was appropriate. Rather, in each case to which
the Board refers, the court was asked to overturn a finding by the ultimate state arbiter that a private
placement was not appropriate. Those courts refused to do so, in large part relying on the deference
owed to state educational authorities better situated to make the appropriateness determination. See
Hardison, 773 F.3d at 386 ("A.N.H.'s placement at Family Foundation appears to have helped her
with some of her psychological issues, [but] we nevertheless hold that the SRO's determination in
this case is sufficiently reasoned and supported by the record to merit deference"); id. at 387 ("The
determination made by the SRO here, that more particular information was required to reach a
particular decision, is a function of the specialized knowledge and expertise possessed in greater
degree by state educational policy-makers than by the courts"); Gagliardo, 489 F.3d 105 (reversing
district court's reversal of an IHO's determination because it "reached its conclusion despite the fact
that the IHO, confronted with the same evidence, found that Oakwood was not an appropriate
placement for S.G.," and holding that "[i]n sum, the IHO's finding that Oakwood was not an
appropriate placement for S.G. is reasoned and supported by the record"); see also Weaver v.
Millbrook Cent. Sch. Dist., 812 F. Supp.2d 514 (S.D.N.Y. 2011); Doe ex rel. Doe v. East Lyme Bd.
of Educ., 2012 WL 4344304 (D. Conn. Aug. 14, 2012).
Here, the IHO was confronted with persuasive and one-sided evidence from the private
placement itself and from two experts in the field with knowledge of both K.M. and the private
placement's curriculum and academic approach. All of that evidence demonstrates that Windward

-28-

is designed to assist children precisely sharing the characteristics of K.M., characteristics which
K.M. was determined to possess following a thorough examination by an expert in the field, an
expert who herself strongly endorses the private placement. The Court also notes that the Board
offered to the IHO no evidence, or even averment, demonstrating that Windward is for any reason
inappropriate to K.M.'s needs.25 See Matrejek v. Brewster Cent. Sch. Dist., 293 F. App'x 20, 22 (2d
Cir. 2008) (affirming school district's determination that private placement was inappropriate in light
of, inter alia, testimony that the private placement "did not provide the type of instruction and
services recommended by the evaluators hired by the parents"). In light of the above, the Board
simply has not shown that the IHO erred in determining that Parents demonstrated, by a
preponderance of the evidence, that Windward was an appropriate unilateral placement in light of
K.M.'s difficulties.
3.

Equities

The third prong of the Burlington/Carter test has the Court assess whether Parents can
properly show that "equitable considerations favor reimbursement." T.M. ex rel. A.M. v. Cornwall
Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014). The IHO's decision makes no reference to an
analysis of the equities. However, neither does the Board. It raised no argument as to the IHO's
treatment of the equities in this case—either in its motion for clarification to the IHO or in its
summary judgment papers to this Court. Such argument should be deemed waived. See Palmieri
v. Lynch, 392 F.3d 73, 87 (2d Cir. 2004). Nevertheless, the equities in this case clearly favor Parents.

25

The Court is mindful that parents have the burden of persuasion as to the
appropriateness of a private placement, and that local education agencies are under no obligation
to provide any affirmative evidence demonstrating the inappropriateness of a private placement.
However, here, when confronted with Parents' credible demonstration of the specific
appropriateness of the private placement, the Board cannot win without rebutting that showing.
-29-

There is no evidence that "the parents obstructed or were uncooperative in the school
district's efforts to meet its obligations under the IDEA," and therefore "their pursuit of a private
placement [is] not a basis for denying their tuition reimbursement." C.L., 744 F.3d at 840. Nor can
it be said that "parents unilaterally arrange[d] for private educational services without ever notifying
the school board of their dissatisfaction with their child's IEP." S.W. ex rel. M.W. v. N.Y.C. Dep't of
Educ., 646 F. Supp.2d 346, 364 (S.D.N.Y. 2009). In fact, the record shows that Parents did not
begin the process of transitioning K.M. to Windward until after the PPT meeting closed the door on
further review of K.M. J.M. Tr. at 125. Most importantly, the record is clear that Parents
"consistently made good-faith efforts to resolve [K.M.'s reading] problem at her public school," and
"[t]he record gives no sense that [Parents] . . . were anything less than fully committed to a public
school education for [K.M.]." T.K. v. N.Y.C. Dep't of Educ., 810 F.3d 869, 878-89 (2d Cir. 2016).
In fact, the record is replete with evidence that Parents, specifically J.M., put forth strenuous and
untiring efforts throughout K.M.'s first-grade year to work closely with Riverside teachers,
specialists, and administrators to ensure the progress of their daughter. Faced with what they felt
was inadequate progress following intervention, they retained the services of a trained school
psychologist, who evaluated their daughter and formed several diagnoses impacting her ability to
succeed in school. Parents then took that report to the school administration, which in large part
ignored it for all relevant purposes. Only upon learning of the Board's summary refusal to even
evaluate K.M. upon receiving notice of her diagnoses did Parents genuinely begin the process of
seeking alternative avenues for K.M.'s education. In light of the foregoing, the balance of equities
tips decidedly in Parents' favor.
In light of the foregoing, that the Burlington/Carter test was satisfied is supported by a

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preponderance of the evidence.
B.

IHO's Determination that K.M. is Disabled Pursuant to the IDEA

Apart from it's finding that the Board violated its Child Find obligation in failing to evaluate
K.M., the IHO also affirmatively determined that K.M. suffers from a "specific learning disability"
as defined at 34 C.F.R. § 300.8(c)(10) and that she is therefore entitled to special education and
related services.26 The Board raises several arguments as to why the IHO's decision was improper:
(i) the IHO failed to conduct a "dual discrepancy" analysis; (ii) the IHO erroneously relied on Dr.
Greenberg's report as an evaluation for a "specific learning disability"; (iii) the IHO failed to
determine that K.M. requires "specialized instruction"; and (iv) the IHO had before it no
comprehensive evaluation of K.M. The Court addresses these arguments in turn.
1.

Dual Discrepancy

At the outset, the Court notes that the Board's assertion that a student must be deemed "dual
discrepant" to be disabled pursuant to the IDEA is not entirely apparent. The Board claims that
federal regulations require a dual discrepancy finding, but cites only to 34 C.F.R. § 300.309(a)(1)
and (a)(2). To the extent the Board reads this as a federal "dual discrepancy" requirement, its
interpretation is spurious. Section 300.309 only describes how a state agency "may determine that
a child has a specific learning disability." See also 20 U.S.C. § 1414(b)(6) ("a local educational
agency may use a process that determines if the child responds to [SRBI]"). It does not say that this

26

The Court notes that this Ruling seems to have been unnecessary, given the finding of
the Child Find violation. The issues before the IHO were only (i) whether the Board erred in
determining K.M. ineligible for special education for the 2012-13 academic year; and (ii) the
appropriateness of Windward. Those issues were resolved in Parents' favor in full in light of the
finding that the Child Find obligation was violated. The Court addresses it here only for the sake
of completeness.
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is the only way in which it may do so. In other words, § 300.309 is a source of affirmative authority
to a PPT, not a limitation. In fact, one court has expressly stated that the present iteration of the
IDEA "does not require school districts to use an alternative [to the previously-mandated 'severediscrepancy'] model to determine whether a student has a 'specific learning disability,'" although "it
expressly permits use of the 'response to intervention model." Michael P. v. Dep't of Educ., 656 F.3d
1057, 1060 (9th Cir. 2011). Further, although the Board is correct that "the legislative history of
IDEA 2004 [implementing the current version of § 300.309] supports the use of RTI," it fails to note
that the purpose of the endorsement of the RTI approach was to alleviate issues created by "the
'severe-discrepancy' model [which] tends to under-identify children with below average
intelligence," and that "education experts have criticized the [severe-discrepancy] model as
unreliable, invalid, easily undermined, and harmful because it delays early treatment." Michael P.,
656 F.3d at 1061 (emphasis added). It is therefore apparent that the amendment incorporating the
RTI model was meant to broaden, rather than limit, a local education agency's ability to identify
disabled children.
Moreover, the language of § 300.309 cannot be read to impose a requirement that a student
insufficiently progress through SRBI prior to a disability finding. The second-prong of the purported
"dual discrepancy" requirement, § 300.309(a), can be satisfied in two ways, one of which does not
involve SRBI at all. Specifically, § 300.309(a)(2)(i) envisions lack of progress following SRBI,
however, § 300.309(a)(2)(ii)—an alternative, but sufficient, manner in which a student may meet
the standard of disability under this subsection— contains no reference to SRBI. Therefore, despite
Connecticut regulations purporting to require use of SRBI, see Regs. Conn. State Agencies § 10-76d9(b)(1) and the Guidelines, federal regulations expressly determine that a PPT "may determine that

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a child has a specific learning disability" by means other than SRBI. Although 34 C.F.R. § 300.307
states that a "public agency must use the state criteria adopted . . . in determining whether a child has
a specific learning disability," it also requires that the adopted state policies be "consistent with §
300.309." That section affirmatively authorizes the manners in which a PPT "may determine that
a child has a specific learning disability." It is therefore unclear whether Connecticut's regulatory
requirement that a PPT use SRBI to make a disability determination conforms with the IDEA.
Nevertheless, assuming, arguendo, that a "dual discrepancy" finding through SRBI is
mandatory, the Board still has not met its burden of demonstrating that the IHO erred.
The Board is correct that the IHO made no mention of a "dual discrepancy" analysis, nor did
she cite the components thereof. In fact, the IHO's determination that K.M. is disabled is relatively
sparse, and almost all contained within one paragraph:
I therefore conclude, based on the strong evidence presented,
including the Student's lack of progress in reading, Dr. Greenberg's
report and credible testimony, and the credible testimony of Ms.
Matera and Ms. McGowan, who identified the Student's lack of
progress in November of 2011, that the Student suffers from a
language-based disability that adversely affects her ability to learn
and that requires specialized instruction.
Order at 8. Noticeably absent is any reference to the federal or state statutory or regulatory criteria
or procedure for determining whether a student has a "specific learning disability."
By failing to affirmatively refer to these criteria, this Court cannot be sure whether the IHO
incorporated them into her conclusion. However, such does not mandate automatic reversal of the
IHO's decision. It only requires more exacting review on the part of this Court to ensure that the
IHO's ultimate decision is supported by a preponderance of the facts in the record. In other words,
summary decisions by IHOs are not disregarded, they simply receive less deferential treatment. See

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M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (thoroughly examining case law on
deference owed to agency decisions in IDEA suits and holding that "[d]eterminations grounded in
thorough and logical reasons should be provided more deference than decisions that are not"); R.E.
v. N.Y.C. Dep't of Educ., 694 F.3d 167, 189 (2d Cir. 2012) ("the deference owed [to state agency's
decision in an IDEA case] depends on the quality of that opinion").
Even crediting, arguendo, the Board's assertion that a "dual discrepancy" finding is required
for a disability finding, the IHO's decision is supported by a preponderance of the evidence. The
IHO had sufficient evidence to determine K.M. was not adequately achieving to meet grade-level
standards, nor was she doing so following SRBI. As discussed in detail above, K.M. regressed from
on-grade level to below-grade level in certain respects following SRBI, leading to a concern that
even several Riverside personnel expressly acknowledged in front of the IHO. Further, Dr.
Greenberg and Matera, who both evaluated K.M. after months of SRBI, expressly noted that K.M.
was not on-grade level, and in fact was well below it. Both specialists also opined that the evidence
principally relied on by the Board to demonstrate K.M.'s progress—notably her improvement as to
a list of "sight words"—is better explained by K.M. adopting strategies that would increase her
resulting score without her acquiring the sought-after skills. The IHO found all of this testimony
credible, a fact made express in her decision. The Court has no basis in the record to make a
determination otherwise. Therefore, that K.M. was in fact "dual discrepant" is reflected by a
preponderance of the evidence. Finally, the Board makes no argument that K.M.'s learning
difficulties are "primarily the result of . . . [a] visual, hearing or motor disability; [m]ental
retardation; [e]motional disturbance; [c]ultural factors; [e]nvironmental or economic disadvantage;
or [l]imited English proficiency." 34 C.F.R. § 300.309(a)(3). Therefore, that K.M. met the disability

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standard proffered by Connecticut regulations (and the IDEA) is supported by a preponderance of
the evidence.
2.

Reliance on Dr. Greenberg's Report

As discussed above, the Board argues that it was error to rely on Dr. Greenberg's report,
principally because Dr. Greenberg did not apply the requisite standards under the IDEA and
Connecticut law to find a "specific learning disability." This argument is without substance, for
several reasons.
First, the Board errs in arguing that Dr. Greenberg's report was the "sole basis" for the IHO's
determination that K.M. was disabled. As stated in the Order, and as discussed above, the IHO also
properly relied on (i) K.M.'s "lack of progress in reading," (ii) Dr. Greenberg's testimony; (iii)
Matera's testimony; and (iv) McGowan's testimony.
Second, relatedly, to the extent Dr. Greenberg did not apply or incorporate IDEA standards
into her assessment, it is of no moment. It was up to the IHO to determine that Dr. Greenberg's
findings, along with the other testimony and evidence relied upon, met the findings of a disability
under the IDEA. That is what she did.
Third, the Board also errs in arguing that Dr. Greenberg's report was solely "predicative"
[sic]. Doc. 44, at 30. Dr. Greenberg's report makes clear that K.M. was then currently suffering
from a learning disability, was then currently well behind her peers in her reading skills in light of
that disability, and was then currently in need of more aggressive and specialized intervention. Dr.
Greenberg's predictive assessment, or, in language relied on extensively by the Board, her "crystal
ball" assessment, was simply that K.M.'s currently documented deficiencies will broaden into even
more areas if not addressed. See Greenberg Tr. at 58 (testifying that although K.M.'s reading

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comprehension is now sufficient, her current deficiency in reading fluency will ultimately effect her
comprehension ability).
3.

Specialized Instruction

The Board argues that the IHO erred by "mak[ing] no mention whatsoever of the need for
specialized instruction," a required component of a disability finding under 34 C.F.R. §
300.308(a)(1). Doc. 44, at 31; see also id. at ("the IHO entirely fail[ed] to address this element of
eligibility"). The Board is wrong. The IHO specifically concluded that K.M. "suffers from a
language-based disability that adversely affects her ability to learn and that requires specialized
education." Order, at 8. Moreover, this conclusion was amply supported by a preponderance of the
evidence, notably, the testimony and reports of Dr. Greenberg and Matera. See, e.g., Matera Tr. at
182 (there is "no doubt that there needs to be some direct instruction for the language-based reading
disability").

Additionally, Riverside itself acknowledged that K.M. required at least some

specialized intervention through SRBI, and that such specialized instruction needed to be increased
after only a few months of SRBI. Although the Board cites certain cases finding an insufficient
showing as to whether the student required specialized instruction, those cases each deferred to the
agency's first-instance decision finding a lack of specialized instruction.27 Here, the IHO's decision
was supported by a preponderance of the evidence before her.
4.

Comprehensive Evaluation

The Board argues that because the IHO determined that the Board should have conducted a

27

The Board does cite to Marshall Joint School District Number 2 v. C.D. ex rel. Brian
D., 616 F.3d 632, 637 (7th Cir. 2010), where the Court overturned an ALJ's decision that a
student was disabled pursuant to the IDEA. There, however, the Court found that the student's
health condition did not "adversely affect his educational performance,"and therefore it had no
need to address the question of the need for specialized education.
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comprehensive evaluation to determine if K.M. was disabled, she herself could not have found him
disabled without such an evaluation being performed. This argument—that which is good for the
Board's goose must be good for the IHO's gander—misses the mark. It strains credulity to imply that
the IDEA requires a clearly disabled child to go through a perfunctory comprehensive evaluation,
or, worse yet, that parents of an obviously disabled child may be stripped of IDEA benefits if their
child was determined to be disabled without a comprehensive evaluation. Such a notion is squarely
"at odds with the general remedial purpose underlying IDEA." Forest Grove, 557 U.S. at 244. It
is also at odds with its language, which only requires evaluations of students "suspected of" being
disabled, 34 C.F.R. § 300.111(c)(1), not those known to be so.
The Board has failed to meet its burden to demonstrate that the IHO's finding of K.M.
disabled pursuant to the IDEA is not supported by a preponderance of the evidence.
C.

IHO's Award of Remedies

Finally, the Board argues that the IHO improperly awarded reimbursement to Parents for the
entire tuition paid to Windward for the 2012-13 academic year. The Board's argument is essentially
that Parents requested reimbursement, rather than prospective relief, and that therefore they only
could be reimbursed for money spent prior to the January 3, 2013 issuance of the IHO's decision.
This argument is without merit, again for a number of reasons.
First, the remedy ordered by this Court is not limited to whichever terminology Parents may
have used in requesting their relief. See T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d
145, 170 (2d Cir. 2014) ("The IDEA provides district courts with broad discretion to 'grant such
relief as the court determines is appropriate' in order to carry out its statutory mandate. 20 U.S.C.
§ 1415(i)(2)(C)(iii)."); L.O. ex rel. K.T. v. N.Y.C. Dep't of Educ., – F.3d –, 2016 WL 2942301, at *22

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(2d Cir. May 20, 2016) ("Courts retain broad discretion in fashioning an award, restrained only by
the Supreme Court's directive that 'the relief is to be 'appropriate' in light of the purpose of the act'"
(quoting School Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 369
(1985)).
Second, the Board's argument appears to assume that the Parents had not already paid the full
year's tuition at Windward by the time of the IHO's decision, when the record strongly indicates
otherwise. The Windward contract states that Parents were to have paid the full $46,700 yearly
tuition under Windward's "One Payment Plan," whereby the total amount was due by July 15, 2012.
Doc. 26-3, at 11. Upon executing that agreement, Parents acknowledged that their "obligation to pay
the tuition for the full academic year is unconditional and that no portion thereof will be refunded
or canceled despite the subsequent absence, withdrawal or dismissal of the student from the School
for any reason whatsoever." Doc. 26-3, at 10. Moreover, K.M.'s enrollment at Windward is a clear
indication that Parents made such payment (and, nothing in the record would show that they did not
do so). Therefore, given that parents had already paid the amount that the IHO ordered as a remedy,
and that they had no way of recovering said amount from Windward, that remedy is properly
characterized as "reimbursement." See Merriam-Webster ("to pay back to someone").
Third, conversely, an award covering the 2012-13 academic year cannot constitute
"compensatory education" as envisioned by the IDEA. "'Compensatory education' is prospective
equitable relief, requiring a school district to fund education beyond the expiration of a child's
eligibility as a remedy for any earlier deprivations in the child's education." Somoza v. N.Y.C. Dep't
of Educ., 538 F.3d 106, 190 n.2 (2d Cir. 2008) (emphasis added). Parents only argued that K.M. was
eligible for the 2012-13 academic year, and, in fact, they expressly withdrew their claim as to the

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2011-12 academic year, Dec. 4, 2012 Tr. at 63. Therefore, there is no alleged "earlier deprivations
in [K.M.]'s education" for which a remedy could compensate. It is therefore clear that the IHO's
order that the Board pay Parents the amount Parents spent on tuition at Windward for the 2012-13
academic year was properly ordered reimbursement.
IV.

Conclusion
For the foregoing reasons, Plaintiff's Motion for Summary Judgment [Doc. 43] is DENIED,

and Defendants' Motion for Summary Judgment [Doc. 45] is GRANTED. The Clerk of Court is
directed to enter judgment for Defendants.28

It is SO ORDERED.

Dated: New Haven, Connecticut
June 22, 2016
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

28

The Defendant Parents are the prevailing parties in this action Plaintiff Board brought
under the IDEA. The Act provides: "In any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys' fees as part of the costs – (I) to a
prevailing party who is the parent of a child with a disability; . . ." 20 U.S.C. § 1415(i)(3)(I); see
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006). Defendants' present
submissions do not include an itemized statement of costs for which they claim statutory
reimbursement. In a claim for costs which includes attorneys' fees, the claim for attorneys' fees
must comply with the Second Circuit's directions in New York Ass'n of Retarded Children v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). If Defendants in the case at bar are disposed to file a
claim for costs, they must do so not later than July 29, 2016. Plaintiff is entitled to oppose a
claim for costs, in whole or in part, and must file opposing papers within 14 (fourteen) calendar
days of the service of Defendants' claim upon them.
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