E. v. Bristol Warren Regional School District

Filing 19

MEMORANDUM AND ORDER granting (8) Motion for Summary Judgment; denying (10) Motion for Summary Judgment in case 1:10-cv-00129-ML-DLM; granting (11) Motion for Summary Judgment; denying (13) Motion for Summary Judgment in case 1:10-cv-00132-ML-DLM; Set Deadlines: Parties shall submit legal memoranda on the matter of attorney's fees on or before 11/22/10- So Ordered by Chief Judge Mary M Lisi on 11/5/10. Associated Cases: 1:10-cv-00129-ML-DLM, 1:10-cv-00132-ML-DLM(Barletta, Barbara)

E. v. Bristol Warren Regional School District

Doc. 19

UNITED STATES DISTRICT COURT FOR THE D I S T R I C T OF RHODE ISLAND

LINDA E . , Individually and on behalf of her daughter, S.E. Plaintiffs,
v.

C.A. No. 10-129ML

BRISTOL WARREN REGIONAL SCHOOL D I S T R I C T , Defendant
consolidated with

BRISTOL WARREN REGIONAL SCHOOL D I S T R I C T , Plaintiff
v.

C . A . No . 1 0 - 1 3 2 M L

LINDA E . a s p a r e n t a n d l e g a l Guardian of SE, Defendant

MEMORANDUM AND ORDER

The case eligibility

before

this

Court

involves to
§

the the

determination of Individuals with The

for

benefits

pursuant

D i s a b i l i t i e s Education Act, 20 U .S .C .

1400 e t seq . ("IDEA") .

Bristol Warren Regional School District (the "School") has appealed t h e A d m i n i s t r a t i v e D e c i s i o n ( t h e " D e c i s i o n " ) o f a n I m p a r t i a l Due Process Hearing Officer (the "Hearing Officer") which requires the School to provide i t s student, S .E., with (1) s p e c i a l education i n a residential school placement, and (2) the twenty-one Hearing weeks of

compensatory

education.

Following

Officer's

Dockets.Justia.com

determination,

S.E. ' s mother,

p l a i n t i f f Linda E.

(the "Parent),

filed a complaint in this Court to recover attorney's fees and c o s t s as the p r e v a i l i n g p a r t y i n a Due Process Hearing. On i t s

part, the School filed an appeal of the Decision by the Hearing Officer pursuant to Section 1415 of the IDEA a n d R h o d e I s l a n d The cases were

General Laws Sections 16-24-1 e t seq. and 42-35-15.

c o n s o l i d a t e d and t h e m a t t e r i s now b e f o r e t h e C o u r t on t h e p a r t i e s ' cross-motions for summary judgment on the complaints. For the

reasons that follow, with respect to the School's appeal from the Hearing Officer's Decision, the Parent's motion for summary

j u d g m e n t i s GRANTED a n d t h e S c h o o l ' s m o t i o n f o r s u m m a r y j u d g m e n t i s DENIED.
I. F a c t u a l B a c k g r o u n dl

S.E. was born i n 1993 and l i v e s with her mother i n Warren, Rhode Island. Since age 4, S. E. has demonstrated behavioral and violent SSUF
~

problems,

including extreme rage,

temper tantrums,

outbursts in response to circumstances in her environment. 1 , PSUF
~

4.

According to the Parent, S . E . ' s anger was primarily

directed at her mother and S.E. would, a t times, "kick, spit, bite

The f a c t s are taken from the P a r e n t ' s Statement of Undisputed Facts ("PSUF") and t h e School's Statement of Undisputed Facts ("SSUF") , t o the e x t e n t they are unchallenged. The Court notes that, together, the p a r t i e s have submitted nearly 300 facts based on testimony or documents introduced a t the Hearing. The facts have been summarized herein with a focus on those facts that appear most p e r t i n e n t for an evaluation of S. E. ' s need for p a r t i c u l a r educational services.
2

and p u n c h h e r m o t h e r " a n d o n c e t h r e a t e n e d t o s t a b h e r w i t h a b u t t e r knife. PSUF
~

4.

When S . E . w a s 8 y e a r s o l d , s h e w a s t a k e n t o t h e p o l i c e s t a t i o n in a squad car after she "chased her mother through the house, pointing the sharp end of [a] steak knife at her" because the PSUF
~

macaroni i n her soup was not i n her favorite shape. another occasion, threatened to telephone." S. E. held a knife up

7.

On

" t o h e r own c h e s t a n d

stab herself
~

i f her mother did not get off the

PSUF

8.

After she expressed a specific plan to kill

herself, elementary school staff arranged for her to participate in a social skills or group and have weekly meetings with a social worker. PSUF
~

school 2002

psychologist

9.

A

June

neuropsychological evaluation of S.E. by Brett Leimkuhler, Ph.D. ("Leimkuhler") and K a t h l e e n M. Rafuse Parnell, P h . D. ("Rafuse

Parnell") states that S.E.

" w a s d i a g n o s e d w i t h ODD [ o p p o s i t i o n a l

defiant disorder] by Dr. William Geary when she was 3 years old," and t h a t "[f]rom 1999 to 2001 behavior therapy was undertaken." P I t f . r s Ex . classroom "markedly attention 1, at 1 r at 2. that range A q u e s t i o n n a i r e f i l l e d o u t b y S . E. ' s time with showed respect disorder that to S . E. was in the

teacher

atypical" deficit

social
r

problems, and global

hyperactive PSUF
~

("ADHD" )

restless/impulsive. The

10, 11. Parnell report notes that S.E.'s

Leimkuhler/Rafuse

academic grades were good, but that "her behavior and social s k i l l s

3

in s c h o o l h a v e b e e n m o r e o f a p r o b l e m t h i s y e a r . " P l t f . ' s E x . 1 a t
2.

According to the report, S.E. npresents a complicated clinical

picture with elements of several disordersi" she nclearly meets the c r i t e r i a f o r ODD i n t h e h o m e e n v i r o n m e n t i " S . E . ' s n c o m b a t i v e n e s s , aggressiveness and physical cruelty" suggest a more serious conduct d i s o r d e r i and h e r n c l i n i c a l p i c t u r e includes elements of a mood d i s o r d e r a n d / o r ADHD." I d . a t 6 . While S . E . ' s nmood f l u c t u a t i o n s . they are beginning to

are s i g n i f i c a n t p a r t i c u l a r l y a t home, be observed at school as well." undergo a

The report recommends t h a t S.E. followed by child

clinical psychological evaluation,

psychiatric consultation and that she receive regular counseling with both cognitive therapy and behavioral management techniques. Id. at 6. With respect to S.E.'s schooling, S.E. the report states

that,

i f ADHD i s c o n f i r m e d ,

n w i l l r e q u i r e a 5 0 4 P l a n2 w i t h Id.

appropriate classroom modifications, and resource services." Within weeks of the report, evaluation (nLubiner"). by clinical S.E.

underwent a psychological Judith Lubiner, Ph.D.

psychologist

The Lubiner report concludes t h a t S.E. i s depressed

and suggests that S.E.'s ntantrums are related to her problems with self-control," which, in turn, na r e p r o b a b l y r e l a t e d t o A t t e n t i o n Lubiner also

Deficit/Hyperactivity Disorder." P l t f . ' s Ex. 2 a t 4.

2

A 504 Plan i s a plan affording c e r t a i n accommodations pursuant to Section 504 of the R e h a b i l i t a t i o n Act of 1973, 29 U.S.C. § 794 (a) .
4

raises

the possibility of

bipolar disorder.

S. E. ' s

diagnosis

i n c l u d e s m a j o r d e p r e s s i v e d i s o r d e r , ADHD, a n d a c a d e m i c p r o b l e m s . Lubiner recommends t h a t (1) S.E. s e e a p e d i a t r i c p s y c h i a t r i s t "who can t r e a t the complex s e t of symptoms t h a t she presents;" receive individual and family therapy; and (3) "[i]f a (2) S.E. social

s k i l l s group i s available a t her community mental health center, or at school, [S.E.] would benefit from t h i s treatment modality."

P l t f . ' s Ex. 2 a t 5. According to the Parent, she provided the two reports to the School "but was advised by school personnel t h a t there was nothing the school could do to help." PSUF
~

15.

In sixth grade,

the

School documented some incidents of behavioral problems by S.E., including rudeness, disruptive behavior, and one incident of theft. PSUF
~

17.

I t was also discovered t h a t S.E. was c u t t i n g herself i n
~

school.

PSUF

18.

The Parent arranged for CFIT (Child and Family

Intensive Therapy) services which continued through seventh grade. PSUF
~

18, 22.

In January and March 2006, the School informed the Parent that S.E. was i n serious danger of f a i l i n g for the year. P l t f . ' s Ex. 8,

9. In April 2007, S.E.'s teacher notified the Parent that S.E. had been "inappropriate during class and disrupting the learning Pltf.'s

environment," for which she received two days' detention. Ex. 13.

During that time, S.E.'s behavior resulted in police being the home repeatedly. PSUF
~

called to

26.

The police

would

5

transport S . E . t o t h e p o l i c e s t a t i o n a n d t h e n t o H a s b r o C h i l d r e n ' s Hospital, where she was kept for several hours and then be sent home. PSUF ~ 2 8 . After one such incident, the Department for

C h i l d r e n , Y o u t h , a n d t h e i r F a m i l i e s ("DCYF") t o o k S . E . i n t o c u s t o d y and, at f i r s t , placed her in a shelter, then, in a staff-secure PSUF
~~

f a c i l i t y , a n d f i n a l l y , i n t o a DCYF g r o u p h o m e .

29, 30.

After the Parent discovered t h a t S.E. had s t o l e n some items from a fellow student a t her school, S.E. was charged i n juvenile court for possession of stolen property and placed on probation. ~ 31. A c c o r d i n g t o t h e P a r e n t , S . E . b l a m e d t h e g i r l f r o m whom s h e PSUF

had taken the items, "often expressing threats to hurt her."
~

32.

While l i v i n g i n the group home, S.E. attended public school

in Newport, receiving passing grades, except for an F in English Language Arts and a "Not Met Standard" i n L i t e r a t u r e . PSUF ~ 3 4 .

Concerned with the threats S.E. had expressed against her fellow student, the Parent enrolled S.E. i n parochial school when S.E.

moved home and a r r a n g e d f o r c o u n s e l i n g a t t h e E a s t Bay Mental Health Center ("East Bay"). PSUF
~

35.

F o l l o w i n g h e r e x p u l s i o n f r o m a YMCA s u m m e r c a m p i n 2 0 0 8 a f t e r stealing a counselor's cell phone and physically attacking a

counselor, S.E. ingested a number of over-the-counter p i l l s and was a d m i t t e d t o B r a d l e y C h i l d r e n ' s H o s p i t a l ( " B r a d l e y " ) . PSUF After a week on the locked ward,
~

37, 38.

she was discharged to an acute PSUF
~

r e s i d e n t i a l t r e a t m e n t s e r v i c e s ("ARTS") program.

39.

S.E.

6

stayed a t t h e ARTS f a c i l i t y u n t i l S e p t e m b e r 1 9 , 2 0 0 8 , a f t e r w h i c h she began n i n t h grade a t Mt. Hope High School ("Mt. Hope").
~

PSUF

43,

44.

Prior to her attendance there,

the Parent informed

S.E.'s guidance counselor of S.E.'s hospitalization at Bradley and s u b s e q u e n t p l a c e m e n t a t t h e ARTS p r o g r a m . PSUF
~

42, 43.

Within weeks of s t a r t i n g classes a t Mt. Hope, S.E. was having difficulties; she f e l l asleep in her English class and did not Although S.E. agreed to stay after school

complete her homework.

and work with the English teacher on making up her work, she never followed through. PSUF
~

45. was again cutting thoughts and

After East Bay s t a f f observed t h a t S.E. herself and that she had increasing S. E.

homicidal

difficulty managing aggression,

was admitted to a

Partial

H o s p i t a l i z a t i o n Program ("PHP") a t East Bay f o r an intensive f u l l day therapeutic program. PSUF
~

48-50.

The Parent informed S . E . ' s

g u i d a n c e c o u n s e l o r a t M t . H o p e o f S . E . ' s a d m i s s i o n t o t h e PHP a n d requested that S.E. be provided with tutors. East Bay informed the

S c h o o l D i s t r i c t t h a t S . E . w o u l d b e i n t h e PHP M o n d a y t h r o u g h F r i d a y from 9:00 a.m. to 3:00 p.m. PSUF
~

52, 53. P l t f . ' s Ex. 27.

East

Bay sent a follow-up l e t t e r signed by S . E . ' s t r e a t i n g p s y c h i a t r i s t Michael Wilberger, S . E. was M.D. ("Dr. the Wilberger"), the which explained that

exhausted at

end of

daily program and that

t u t o r i a l services "may be needed t o support her academics," as she was unable to a t t e n d c l a s s e s . PSUF
~

5 5 , P l t f . ' s E x . 28 a t 1 .

The

7

letter a l s o i n c l u d e d a " D i a g n o s i s P a g e " t h a t l i s t s ODD a n d Mood Disorder under "Focus of Clinical Attention." P l t f . ' s E x . 28 a t 2 .

According to Dr. Wilberger and Patricia Arel, Manager of the PHP, S.E. "exhibited an extremely high level of impulsivity and aggressive with

extremely inappropriate social behaviors

peers . . . often short-tempered, irritable, and verbally abusive, s w e a r i n g a t o t h e r s i n a m a n n e r g e a r e d t o w a r d v i o l e n c e . " PSUF
~

57.

Escalations in S.E.'s behavior were often sudden and unexpected and "at times so severe that she had to be separated from others." PSUF
~

57. 6

I t i s u n d i s p u t e d t h a t d u r i n g h e r t i m e a t t h e PHP f r o m to December 3, 2008, S.E. received no
~

November

academic 58. could

instruction from the School or any other source. After East Bay s t a f f informed the Parent

PSUF that

she

request special education services for S.E., letter to School Special Services on

the Parent wrote a 28, 2008 and

November

requested an IEP ( Individualized Education Program), stating, i n t e r alia, that S. E. ' s mental health issues impacted her a b i l i t y to

maintain good grades, attention and focus, and that S.E. had missed school and was i n need of tutoring. On D e c e m b e r 4 , 2008, S.E. PSUF
~

61.

was placed a t Butler Hospital's

Adolescent Unit ("Butler") after she attacked her mother physically a n d s t a t e d a t t h e PHP t h a t , mother." PSUF
~

" i f she went home,

she'd kill her

63-65.

S.E. remained at Butler as an inpatient

u n t i l March 17, 2009.

S . E . ' s t r e a t i n g p s y c h i a t r i s t a t B u t l e r , Dawn

8

Picotte, M . D . ( " D r . P i c o t t e " ) e x p r e s s e d i n a J a n u a r y 9 , 2 0 0 9 l e t t e r that, in her opinion, " [S. E. ] requires ongoing treatment i n a r e s i d e n t i a l treatment setting that would provide a highly structured, cognitive behaviorally or dialectally behaviorally based program and psychopharmacotherapy with daily, professionally administered clinical program throughout her waking hours that integrates academic instruction wi t h an intensive integrated therapeutic component. This should provide a low student-teacher ratio and significant individualized attention to each student, with academics appropriate to [S.E.'s] cognitive a b i l i t i e s . " P l t f . ' s E x . 55 a t 1 . Dr. Picotte noted further that S.E.'s c l i n i c a l condition had deteriorated over the past two years and opined t h a t " [b]ased on the severity and duration of illness, and lack of response to

treatment," S.E. was "incapable of making reasonable academic or emotional progress in any setting other than residential placement at this time." In the Id. at 1, 2. the Parent was exploring PSUF options
~

interim,

for On

alternative academic services for her daughter.

71-73.

January 9, 2009, the Parent delivered Dr. Picotte's l e t t e r to the School. PSUF
~85.

At a "Referral Meeting" on January 26, 2009,

the School f i r s t provided the Parent with a written description of t h e p r o c e d u r a l r i g h t s o f p a r e n t s who b e l i e v e t h e i r c h i l d r e n h a v e special needs. PSUF
~~

86,

74.

The School a l s o informed the

Parent that i t required more information before determining S.E.'s eligibility. The Parent agreed to authorize the release of records

f r o m B u t l e r , E a s t B a y , t h e ARTS f a c i l i t y a n d o t h e r p r i o r t r e a t m e n t

9

providers. Dana M.

PSUF

~

87.

The Parent also agreed to an evaluation by Ph.D., (UOsowiecki"), a Clinical Child

Osowiecki,

Neuropsychologist selected by the School,

in order to uidentify

[S.E.'s] cognitive strengths and weaknesses, to assess her social, emotional, and behavioral functioning, and to offer recommendations for educational and treatment planning." 56. Osowiecki reviewed prior assessments of S.E. by Karen Holler, Ph.D., Lubiner, and Rafuse Parnell and Leimkuhler. She also noted PSUF
~

87, P l t f . ' s Ex.

her behavioral observations of S.E. and administered a number of tests related to academic achievement, sensory perceptual and motor functioning, auditory/verbal functioning, visual-spatial

functioning, and attention.

Osowieki concluded that S.E. upresents

a c o m p l i c a t e d d i a g n o s t i c p i c t u r e , " i n c l u d i n g ADHD, C o n d u c t a n d Mood Disorders, Parent-Child Relational Problem, and a recently In her in

diagnosed Personality Disorder. summary, Osowiecki states that

P l t f . ' s Ex. 56 a t 9, 10. S.E. uwill best

respond

environments that provide external structure,

clear expectations

for performance, and consistent responses to her behavior" and that she uwould benefit from accommodations and modifications to address her executive functioning as they difficulties impact and her emotional and Id.

behavioral

needs

academic

functioning."

Osowiecki's notes that U[w]herever [S.E.] goes to school, a plan would need to be put in place to address [her] ongoing emotional

10

and

behavioral

issues

with

clear and

guidelines

regarding

how

to

address

behavior,

safety,

emotional

functioning."

This

statement i s followed by five pages of detailed recommendations to assist S.E. to address her social/emotional/behavioral issues and to achieve academic success. Following Oswiecki' s rd. at 10-15. the School scheduled an

assessment,

" E l i g i b i l i t y Meeting" on March 11, 2009 to discuss whether S.E. was eligible for special education services. meeting, School. PSUF
~

104.

Prior to the

the Parent provided a l e t t e r from Dr. Wilberger to the PSUF
~

105.

In i t , Dr. Wilberger expresses that even the

i n t e n s e f u l l t i m e PHP S . E . r e c e i v e d w a s i n s u f f i c i e n t " t o m a i n t a i n [S.E.'s] personal independent decision making in the face of her suicidal and homicidal ideation and her labile mood," or to help S. E. "master s t r a t e g i e s for solving interpersonal c o n f l i c t s without harming herself or others." Pl t f . ' s Ex. 3a. Dr. Wilberger

concluded t h a t , i n order to make reasonable educational progress, S.E. needed a "highly structured therapeutic residential placement that will provide a consistent, daily, professionally-administered clinical programming throughout her waking hours." rd. At the E l i g i b i l i t y Meeting, in addition to Osowiecki's report and Dr. Wilberger's l e t t e r , the School also had the benefit of

r e p o r t s b y R a f u s e P a r n e l l / L e i m k u h l e r a n d L u b i n e r , t h e ARTS f a c i l i t y records, reports by Drs. Picotte and Wilberger, and

neuropsychological reports of Karen Holler, Ph.D"

as well as all

11

of S . E . ' s a c a d e m i c a n d d i s c i p l i n a r y r e c o r d s .

PSUF

~

108.

The

School concluded t h a t S.E. was not e l i g i b l e for special education and issued an "Evaluation Team Summary" t h a t i n d i c a t e d , i n t e r a l i a , that the School took the position that S. E. does not have a

disability which adversely impacts school performance and requires special education services. PSUF
~

1 1 0 D. 2 0 0 9 w i t h a GAF which indicates areas and

S.E. was released from Butler on March 17, (Global Assessment of Functioning) "functioning i n between maj or score of 45 3 ,

impairment

in several

serious symptoms i n several areas."

PSUF ~~ 1 1 8 ,

119.

It is

undisputed t h a t , while S.E. was an i n p a t i e n t a t Butler, the School paid for one-half to two hours per day of instruction that Butler arranged through a private agencYi however, no grades or credits were recorded by the School for such instruction. 115. The School held a "Transition Meeting" on April 7, 2009, where i t proposed t h a t S.E. be placed a t the East Bay Career Academy, a small al ternati ve high school for students with behavioral or PSUF PSUF
~~

112,

psychological problems, extreme depression, or school phobia.
~~

124,

125.

Although the Parent was of the opinion t h a t S.E.

required residential placement, she agreed to cooperate with the S c h o o l ' s s u g g e s t i o n . PSUF
~

124.5.

On A p r i l 2 0 , 2 0 0 9 , S . E . b e g a n

3

GAF s c o r e s r a n g e f r o m 1 - 1 0 0 ; a l o w e r s c o r e i n d i c a t e s m o r e serious impairment in functioning. 12

attending E a s t B a y C a r e e r A c a d e m y . that, prior to that date, S.E.

PSUF had

~

124.6.

I t is undisputed no
~

received PSUF

educational 122. not

instruction since her discharge from Butler. S . E. ' s successful. placement at the East

Bay Career Academy was

Within three weeks,

she was admitted to East Bay
~

M e n t a l H e a l t h C e n t e r ' s I n t e n s i v e O u t p a t i e n t P r o g r a m . PSUF

129.

On May 2 3 , 2 0 0 9 , t h e S c h o o l o f f e r e d S . E . a p l a c e i n t h e D i s t r i c t ' s Extended Day Program. held a uResolution PSUF
~

132.

On May 2 8 ,

2009,

the School

Conference" in connection with the Parent's PSUF
~

request f o r an I m p a r t i a l Due Process Hearing. School again determined that S.E.

134.

The

was not e l i g i b l e for special

education and proposed t h a t she be found e l i g i b l e for a 504 Plan. PSUF
~135.

S . E . a t t e n d e d t h e E x t e n d e d D a y P r o g r a m f r o m May 29 t o J u n e 1 9 , 2009. PSUF ~ 1 3 7 . F o l l o w i n g t h e e n d o f t h e s c h o o l y e a r , t h e S c h o o l in a 4-week UFreshman Credit Recovery Program," PSUF

enrolled S.E.

although S.E. did apparently not met the admission c r i t e r i a .
~~

143, 151. S.E. missed nearly 8 hours of class time, twice the

permissible l i m i t , but was given f u l l c r e d i t for each of her four courses. PSUF
~~

154 -156.

Subsequently, the School enrolled her PSUF
~

i n a uSurvival S k i l l s f o r High School" summer c l a s s .

159.

Little information has been provided regarding this program, apart from S . E . ' s uskipping 5.5 hours of the 10 hours of her Freshman R e c o v e r y E n g l i s h c l a s s . " PSUF
~

161.

13

S. E . ' s

2009-2010

school year was

no more

successful.

She

f a i l e d to turn i n a number of biology homework assignments and her overall grade was a 63. 4 PSUF
~

167.

S. E. ' s overall grade in PSUF
~~

Algebra and American L i t e r a t u r e was f a i l i n g as well. 171-173.

170,

The School made changes t o S . E . ' s 504 plan on October 9,

2010, which also involved assigning her to the School's "Planning Center" taught by special education teacher Michael Teves ("Teves") in a small group setting. PSUF
~

178-182.

Teves provided one-on-

one instruction to students at the Planning Center, and S.E. also received individual i n s t r u c t i o n s from some of her o t h e r teachers. PSUF
~~

179, 184, 186.

Nevertheless, S.E. was s t i l l struggling and PSUF
~

continued to fail biology.

187.

During that time,

S.E.

also sought help from the school psychologist regarding events in her personal l i f e that were upsetting her. PSUF ~ 1 8 8 .

On O c t o b e r 2 7 , 2 0 0 9 , S . E . w a s a s s e s s e d b y h e r t h e r a p i s t s a t E a s t B a y a n d w a s r e t u r n e d t o t h e PHP f o r t h e 9 : 0 0 a . m . t o 3 : 0 0 p . m . daily program. PSUF
~

189.

The School again r e v i s e d S . E . ' s 504

Plan and arranged f o r her t o a t t e n d the a f t e r - s c h o o l Extended Day Program for one-on-one tutoring in her five core academic subjects. PSUF ~ 1 9 4 . The Parent proceeded with an I m p a r t i a l Due Process

hearing which took place between l a t e July and e a r l y November 2009. PSUF
~

194.5.

By t h e e n d o f t h e h e a r i n g s , S . E . w a s s t i l l a t t e n d i n g

4

A t M t . H o p e , a g r a d e b e l o w 65 i s c o n s i d e r e d f a i l i n g . 166. 14

PSUF

~

the PHP f u l l

time,

unable to attend school during the regular PSUF
~

school day, and failing her academic courses.
II. Procedural History

195.

The Parent f i r s t

filed a

r e q u e s t o n May 1 1 ,

2009

for an

I m p a r t i a l Due P r o c e s s H e a r i n g t o d e t e r m i n e S . E . ' s e l i g i b i l i t y f o r special education and to request placement at a residential school as well as compensatory educational services. Decision 3. The

Rhode Island Department of Education appointed a Hearing Officer who c o n d u c t e d t w e l v e d a y s o f h e a r i n g s b e t w e e n J u l y 2 8 , November 9, 2009. the parties Decision 3-4. the 2009 and

In the course of the hearings, of 26 witnesses and 126

presented

testimony

exhibits.

Id. at 4.

Following the hearings, the parties submitted Id.

t r i a l briefs to the Hearing Officer. On F e b r u a r y 2 3 , 2010,

the Hearing Officer issued a 12-page

written opinion, holding that the "Student's Psychiatric Condition Constitutes Sufficient Emotional Disturbance to Warrant Special Education Needs Placement." and Related 1. Services in a Residential the Hearing School Officer

Decision

Specifically,

determined that, in order to receive the Free Appropriate Public Education ("FAPE") r e q u i r e d u n d e r t h e IDEA, S.E. needs "special

education and related services in a residential school placement," which will also meet her "psychiatric and psychopharmacotherapy needs with a daily, professionally administered program." 11,
~

Decision "lost

4.

The

Hearing

Officer

also

found

that

S.E.

15

substantial t i m e i n a p r o p e r a c a d e m i c p r o g r a m a t n o f a u l t o f t h e LEA [Local Education Agency]
1/

and

directed

that
~

S. E. 5.

receive Finally,

twenty-one weeks of compensatory education.

Id. at

t h e H e a r i n g O f f i c e r d e t e r m i n e d t h a t S . E . u d i d n o t r e c e i v e FAPE i n a c c o r d a n c e w i t h t h e IDEAI/ a n d R h o d e I s l a n d l a w s . Id. at
~

6.

On M a r c h 9 , 2 0 1 0 , t h e S c h o o l c o n v e n e d a n I n d i v i d u a l E d u c a t i o n P l a n (UIEpl/) m e e t i n g , which t h e P a r e n t a t t e n d e d . The School t h e n sent out referrals to three residential schools, including the F.L. Chamberlain School (UChamberlainl/), a therapeutic residential

school licensed as a special educational facility in Middleboro, Massachusetts. On M a r c h 1 7 , 2 0 1 0 , t h e P a r e n t f i l e d a c o m p l a i n t a g a i n s t t h e School in this Court, seeking reimbursement of $77,370 in

a t t o r n e y ' s f e e s a n d c o s t s s h e i n c u r r e d i n c o n n e c t i o n w i t h t h e Due Process Hearing. On t h e s a m e d a y , t h e S c h o o l f i l e d a n a p p e a l o f

the Hearing O f f i c e r ' s Decision on the grounds t h a t the Decision was clearly erroneous and not supported by evidence on the record. On A p r i l 2 8 , 2 0 1 0 , S . E . b e g a n a t t e n d i n g C h a m b e r l a i n w h e r e s h e currently remains. On June 7, 2010, the School informed

Chamberlain that i t would be financially responsible for S.E.'s placement a t Chamberlain only through June 21, 2010. On J u n e 2 1 , 2 0 1 0 , t h e P a r e n t f i l e d motions for a temporary

r e s t r a i n i n g o r d e r (UTROI/) a n d p r e l i m i n a r y i n j u n c t i o n i n t h e n a t u r e

16

of " S t a y - P u t n 5 t o p r e v e n t r e m o v a l o f S . E . f r o m C h a m b e r l a i n . a conference with counsel for a l l parties on June 22, C o u r t g r a n t e d t h e r e q u e s t e d TRO. submitted a On J u l y 9 , 2010,

After

2010, the

the parties

stipulated agreement for issuance of a preliminary

injunction until this Court renders a decision on the parties' cross-motions for summary judgment regarding the School's appeal of the Hearing Officer's Decision. On A u g u s t 2 6 , 2010, the parties submitted their respective

motion for summary judgment, together with supporting memoranda and statements of undisputed facts. the Parent submitted In further support of i t s motion,

the Hearing Officer's Decision, P l t f . ' s Ex.I,

a n d 1 9 o f t h e 1 0 1 e x h i b i t s s h e h a d p r e v i o u s l y p r e s e n t e d a t t h e Due Process hearing. Seven of the s e l e c t e d e x h i b i t s a r e among those

expressly referred to and relied upon in the Hearing Officer's Decision. The exhibits consist of three psychological 2, at and 56, East at or a

neuropsychological evaluation reports, letter Center, confirming Ex. 27, S. E. ' s and partial

Exhibits I,

hospitalization from

Bay

three

letters

physicians

Butler

Hospital and East Bay Center, where S.E. care services. Exhibits 28, 30, and 55.

received mental health The School submitted no

5

P u r s u a n t t o S e c t i o n 1 4 1 5 ( j ) o f IDEA, d u r i n g t h e p e n d e n c y o f a n appeal, the student is to remain in then-current educational placement, unless the school and parents otherwise agree. 20 u. S . C. s 1 4 1 4 ( j ) . 17

further d o c u m e n t a t i o n . 6 On A u g u s t 2 8 , 2 0 1 0 , t h e p a r t i e s s t i p u l a t e d t h e i r a g r e e m e n t t o the following findings of the Hearing Officer: 1. IDEA's The Student has met the necessary c r i t e r i a to f u l f i l l the definition of a child with a d i s a b i l i t y u n d e r 20 USCA

S e c t i o n 1 4 0 1 ( 3 ) (A) ( I ) o f e m o t i o n a l d i s t u r b a n c e ; 2. The Student has met the necessary c r i t e r i a to f u l f i l l the

Rhode I s l a n d Regulations' d e f i n i t i o n under Section 300.7(A) (1) and under Section 300.7(C)4) (i) (c) and (d) of a c h i l d with a d i s a b i l i t y of emotional disturbance; and 3. Such emotional Student disturbance is such that it adversely

affected this

in her educational performance and this

Student needs special education and related services by reason of this disability. August 26, 2010 Stipulation, Decision 2010, the Parent submitted a
~~

1, 2, 3.

On S e p t e m b e r 1 5 ,

response in

opposition to the School's motion for summary judgment, together with a statement of disputed facts. Finally, on September 29,

2010, the School submitted a reply memorandum and a statement of disputed facts.

III.

Standard of Review

In reviewing an appeal from an administrative decision under
6

The Court notes t h a t , although the School repeatedly r e f e r s to testimony and exhibits presented to the Hearing Officer, no e x h i b i t s a p a r t from those submitted by the Parent have been made available to the Court. Neither party has supplied transcripts of the Hearings. 18

IDEA,

the Court accords "due deference" to the Hearing Officer's

findings of fact and reviews the Hearing Officer's rulings of law u n d e r t h e IDEA f r a m e w o r k d e n o v o . Abrahamson v. Hershman, 701 F. 2d

223, 230 (1st Cir. 1983) (courts must give "'due weight'" to s t a t e administrative agencies," but "ultimately must make 'independent decision[s] based on a preponderance of the evidence'"); Ross v.

F r a m i n g h a m S c h . C o m m . , 44 F . S u p p . 2 d 1 0 4 , 1 1 1 - 1 2 a f f ' d 229 F.3d 1133 (1st Cir. 2000) (Court's

(D. M a s s . 1 9 9 9 ) ,

review of hearing

officer's findings is "appropriately 'thorough yet deferential'". Legal review."); rulings are subject to nondeferential (or de novo)

Slater v.

Exeter-West Greenwich Regional Sch. Dist., " [A]ny rulings about

2 0 0 7 WL 2 0 6 7 7 1 9 *2

(D.R.I., July 16, 2007).

applicable law that are not in conformity with applicable statutes and precedents" 44 F.Supp.2d at are disregarded. 112. The R o s s v . F r a m i n g h a m S c h . Comm., Circuit has described the

First

applicable standard of review as "intermediate," requiring "a more critical appraisal of the agency determination than clear-error review entails, but which, nevertheless, falls well short of

complete de novo review."

R a f f e r t y v . C r a n s t o n P u b l i c S c h . Comm.,

315 F.3d 21, 25 (1st Cir. 2002). The Court is mindful that "[j]urists are not trained,

practicing educators."

R o l a n d M. v . C o n c o r d S c h . C o m m . , 9 1 0 F . 2 d

9 8 3 , 9 8 9 ( 1 s t C i r . 1 9 9 0 ) ; s e e R a f f e r t y v . C r a n s t o n P u b . S c h . Comm., 3 1 5 F . 3 d a t 25 { " W h i l e t h e c o u r t m u s t r e c o g n i z e t h e e x p e r t i s e o f a n

19

administrative a g e n c y ,

as well as that of school officials, and

consider carefully administrative findings, the precise degree of deference due such a finding i s ultimately ' l e f t to the discretion of the [examining] court.'") (citations omitted). When t h e p a r t i e s c h o o s e n o t t o s u b m i t a d d i t i o n a l e v i d e n c e , "the motion for summary judgment i s a procedural device through which the court decides the case on the basis of the administrative record." Cranston School Dist. v. Q.D., 2008 WL 4145980 *5

( D . R . I . , S e p t . 8 , 2 0 0 8 ) { c i t i n g B r i s t o l W a r r e n R e g ' l S c h . Comm. v . R.I. Dep't of Educ., 253 F.Supp.2d 236, 240 (D.R.I. 2003)); S l a t e r v . E x e t e r - W e s t G r e e n w i c h R e g ' l S c h . D i s t . , 2 0 0 7 WL 2 0 6 7 7 1 9 a t *3 (if no additional materials are to be considered, t h e C o u r t may

"decide the case on the b a s i s of the a d m i n i s t r a t i v e record by way of a motion for summary judgment"). However," [r] ather than

considering the facts in the light most favorable to the non-moving party," the party "'challenging the outcome of the administrative decision'", here the School, "bears the burden of proof." Cranston S c h o o l D i s t . v . Q . D . , 2 0 0 8 WL 4 1 4 5 9 8 0 a t * 5 ; B r i s t o l W a r r e n R e g ' l Sch. Comm. v. R.I. Dep't of Educ. and Secondary Educs., 253

F.Supp.2d at 240. In this case, as the Court has previously noted, the Parent has submitted a selection of exhibits that constitute, for the most part, the basis of the Hearing Officer's written Decision. The

S c h o o l , who b e a r s t h e b u r d e n o f p r o o f i n t h i s c a s e , a t l e a s t w i t h

20

respect t o i t s a p p e a l f r o m t h e H e a r i n g O f f i c e r ' s D e c i s i o n , supra, has presented no part of the administrative record. therefore, proceed to determine the appeal

see The

Court will,

on the

materials that have been submitted and on the facts presented by both parties, to the extent those facts are not in dispute.
IV. Discussion

A. T h e IDEA S t a t u t o r y F r a m e w o r k The purpose of the Individuals with D i s a b i l i t i e s Education Act, 84 S t a t . 1 7 5 , a s a m e n d e d , 20 U . S . C . § 1400 e t seq., i s Uto

ensure that a l l children with d i s a b i l i t i e s have available to them a free appropriate public education that emphasizes special

education and related services designed to meet t h e i r unique needs a n d p r e p a r e t h e m f o r f u r t h e r e d u c a t i o n , emp L o y m e r r t . , a n d i n d e p e n d e n t living." 20 U . S . C . § 1 4 0 0 ( d ) ( 1 ) ( A ) . W i n k e l m a n e x . r e I W i n k e l m a n v . 550 U.S. 516, 538, 127 S.Ct. 1994, 2008, 167

Parma City School, L.Ed.2d 904 (2007).

T h e IDEA p r o v i d e s f e d e r a l f u n d i n g t o t h e S t a t e s , p r o v i d e d t h e y u m a k e a ' f r e e a p p r o p r i a t e p u b l i c e d u c a t i o n ' (FAPE) a v a i l a b l e t o a l l children with disabilities residing in the State." Forest Grove

Sch. Dist. v. T.A., --U.S.--, 129 S.Ct. 2484, 2487-88, 174 L.Ed.2d 168 (2009). A FAPE u e n c o m p a s s e s ' s p e c i a l e d u c a t i o n a n d r e l a t e d including 'specially designed instruction, a t no to meet the unique needs of a child with a

services,'. cost

to parents,

disability."

Mr. I . ex r e I . L . I . v . Maine. Sch. Admin. D i s t . No.

5 5 , 4 8 0 F . 3 d I , 4 ( 1 s t C i r . 2 0 0 7 ) ( q u o t i n g 20 U . S . C . § 1 4 0 1 ( 9 ) a n d 21

(29)).

A child i s eligible to receive a special education and

r e l a t e d s e r v i c e s u n d e r t h e IDEA i f t h e c h i l d q u a l i f i e s a s a " c h i l d with a disability." Mr. I. ex reI. L.I. v. Maine. Sch. Admin.

D i s t . No. 55, 480 F.3d a t 4-5.

A c h i l d who s u f f e r s f r o m s e r i o u s

e m o t i o n a l d i s t u r b a n c e a n d / o r s p e c i f i c l e a r n i n g d i s a b i l i t i e s who " b y reason thereof, needs special education and related services," Id.i 20

q u a l i f i e s u n d e r t h e IDEA a s a c h i l d w i t h a d i s a b i l i t y . U.S.C.

s

1 4 0 1 ( 3 ) (A) .

The burden of i d e n t i f y i n g children with d i s a b i l i t i e s r e s t s on e a c h s t a t e . I d . a t 5 . A p a r e n t who i s d i s s a t i s f i e d w i t h " a n y m a t t e r relating to the identification, evaluation, or education placement of [her] c h i l d " o r f e e l s h e r c h i l d i s n o t r e c e i v i n g a FAPE, may

request an impartial due process hearing by the local educational authority ("LEA"). 20 U . S . C . § 1 4 1 5 ( b ) ( 6 ) , ( f ) ( 1 ) . 315 F.3d at 25. the The state Rafferty v. findings and

C r a n s t o n P u b . S c h . Comm. decision of agency, and, the

LEA c a n b e a p p e a l e d t o

educational

i f the parent remains dissatisfied,

he or she can I d . i 20 U . S . C .

bring a civil action in federal district court. §1415 (i) (2) . B. The Hearing O f f i c e r ' s Decision

The Hearing Officer f i r s t determined t h a t S.E. " l o s t most of the school academic year during the ninth grade" as the result of h o s p i t a l i z a t i o n s a t B u t l e r a n d p a r t i c i p a t i o n i n t h e E a s t B a y PHP and that emotional such loss was disturbance." due to treatment of 4. That S. E. for "serious was

Decision 22

determination

supported b y t h e H e a r i n g O f f i c e r ' s r e v i e w o f t h e s u b m i t t e d m e d i c a l and neuropsychological records and e v a l u a t i o n s , i n c l u d i n g (1) the LeimkuhlerjParnell Report (Ex. 1), (2) the Lubiner Report, ( E x . 2)

and (3) t h r e e r e p o r t s from East Bay (Ex. 27, 28, 30).

The Hearing

Officer specifically l i s t s the diagnoses set forth in those records and references particularly S.E.'s "frequent and violent outbreaks of rage, temper and harmful behavior" documented therein.
5.

rd. at

The Hearing Officer also quotes

from

the

reports by Drs.

Wilberger and Picotte, including the psychiatrists' opinion of the appropriate and necessary learning environment for S.E. As n o t e d

in the Decision, Dr. Wilberger opined that S.E. requires "a highly structured therapeutic residential placement" without which "she would be unable t o make reasonable educational progress." 7. rd. at

Dr. Picotte agreed that S.E. "requires ongoing treatment in a treatment setting," noting that such setting would

residential

provide "a highly structured, cognitive behaviorally or dialectally behaviorally based program and psychopharmacotherapy with daily, professionally administered clinical program." Next, the Hearing Officer reviewed the rd. neuropsychological

evaluation performed by clinical child and adolescent psychologist O s o w i e c k i o n b e h a l f o f t h e LEA. Although Osowiecki's report does

not expressly state that S.E. requires a residential setting, the Hearing Officer notes that Osowiecki, along with Drs. Wilberger and Picotte, "arrived a t the same position t h a t the Student has serious
23

psychiatric n e e d s t h a t m u s t b e a t t e n d e d i n a h i g h l y s t r u c t u r e d setting. The " D e c i s i o n a t 9. Hearing Officer determined and, as indicated by the

p a r t i e s ' s t i p u l a t i o n , t h e S c h o o l now a g r e e s , t h a t S . E . q u a l i f i e s a s a "child with a disability" under the IDEA a n d Rhode Island

R e g u l a t i o n s " who r e q u i r e s s p e c i a l e d u c a t i o n a n d r e l a t e d s e r v i c e s . Id. The Hearing Officer also found the LEA's position that

S.E.'s academic needs could be f u l f i l l e d a t the LEA's public high school "not compatible" with the reports and testimony regarding S.E's psychiatric condition. Id. 9-10. [S.E.] He c o n c l u d e d t h a t " b a s e d she needs a special

upon the psychiatric needs of

education in a residential school placement in a separate facility whose special education program has been approved by the Rhode Island Commissioner of Elementary and Secondary Education and which facility shall also meet the psychiatric needs and

psychopharmacotherapy needs with a daily professionally staffed clinical program." Id. at 10.

The f i n a l determination by the Hearing Officer r e l a t e s to c o m p e n s a t o r y e d u c a t i o n f o r t i m e l o s t b y S . E. With respect to

S . E . ' s p a r t i c i p a t i o n i n t h e E a s t B a y PHP, t h e H e a r i n g O f f i c e r n o t e s t h a t t h e LEA d i d n o t p r o v i d e r e q u e s t e d t u t o r i n g f o r a f o u r - w e e k period. Id. a t 6, 10. S.E. also l o s t approximately 10 weeks of an additional

academic experience while hospitalized at Butler,

f i v e w e e k s w h i l e s h e w a s p a r t i c i p a t i n g a t t h e E a s t B a y PHP, a n d t w o weeks following t h a t period u n t i l she was enrolled i n the Extended
24

Day P r o g r a m .

Id. 10.

Based on these calculations and a finding

t h a t S . E . h a d n o t r e c e i v e d a FAPE i n a c c o r d a n c e w i t h t h e IDEA a n d Rhode Island Regulations, the Hearing Officer awarded to S. E. Id. 11-12.

twenty-one weeks of compensatory education.

C. T h e S c h o o l ' s A p p e a l o f t h e H e a r i n g O f f i c e r ' s D e c i s i o n 1. As Award of Therapeutic Residential Placement set forth in the stipulation by the parties, it is

undisputed that S.E.

i s suffering from an emotional disturbance

that adversely affects her in her educational performance and that she requires special education and related services because of her condition. whether, The issues that remain S. E. for determination are FAPE, S. E. (1)

in order to provide

with a

must be

provided with t h e r a p e u t i c r e s i d e n t i a l placement; and (2) whether S.E. i s e n t i t l e d to 21 weeks of compensatory education because she lost substantial time in a proper academic program. with respect to the f i r s t issue, the School argues that the Hearing Officer's Decision should be overturned because he "did not provide well reasoned explanations for his determination that the Student needed a residential placement for educational reasons." S c h o o l ' s Mem. 15. Specifically, the School suggests that the

Hearing O f f i c e r " d i d n o t e x p l a i n why he a c c e p t e d t h e o p i n i o n o f providers r a t h e r than the educators when i t came t o the a b i l i t y of t h e e d u c a t o r s t o p r o v i d e a p r o g r a m f o r t h e S t u d e n t . " S c h o o l Mem.
17.

Although the Decision does not
25

specifically cite to the

testimony a n d o p i n i o n s o f t h e e d u c a t o r s ,

i t is clear,

and the

Hearing Officer expressly states, that he considered such evidence. First, the Hearing Officer notes that, prior to issuing the

Decision, he had the benefit of testimony by seven witnesses on the School's behalf, School. t o g e t h e r w i t h 24 f u l l e x h i b i t s p r e s e n t e d b y t h e The Hearing Officer also observed t h a t the as represented by "faculty and professional of what constitutes is "opposite" an appropriate taken by

Decision 4.

School's position, administrative educational

staff,"

environment

for S. E.,

that

psychiatrists and psychologists regarding S.E.'s psychiatric needs to allow her to achieve her academic needs. rd. at 9-10.

The Hearing O f f i c e r ' s Decision notes p a r t i c u l a r l y t h a t Dr. Wilberger has nearly thirty years of experience in child psychiatry and that Dr. Picotte i s a Board certified psychiatrist as well as the Unit Chief at the Adolescent Unit of Butler Hospital. 7. Decision

Likewise, the Hearing Officer reviewed in detail the report and

c r e d e n t i a l s o f c l i n i c a l p s y c h o l o g i s t Oswiecki, who had been engaged by the School t o conduct an evaluation of S.E. while she was a t Butler. Based on the entire body of submitted evidence and

testimony, the Hearing Officer arrived at the opinion that S.E.'s need for s p e c i a l education i n a r e s i d e n t i a l school placement was driven by her psychiatric needs. The School now suggests segregable from the learning that "the Student's problems are because "all of the

process,"

Student's problems occurred outside of the school setting."
26

School

Mem.

17.

This

statement

is

clearly

inconsistent

with

the As

undisputed facts and the documentation submitted to this Court.

early as second grade/ S.E./s classroom teacher reported that S.E. seemed "unaware of her body [and on] numerous occasions she has

pushed someone down with the movement of her body" and t h a t she sometimes appeared "unconcerned about misbehaving." PSUF
~

12.

S.E./s disciplinary record from sixth grade reports incidents of rudeness/ time/ disruptive behavior/ and theft. PSUF
~

17.

At that

i t was also discovered t h a t S.E.
~

was c u t t i n g herself i n

s c h o o l . PSUF S.E./s

18. record shows increasingly disturbing

disciplinary

behavior in seventh grade

(notwithstanding testimony by Melinda

Theis/ Assistant Superintendant of Schools that "nothing in this b e h a v i o r i n d i c a t e s a s t u d e n t who d i d n o t b e l o n g a t [the middle

school]" and " t h i s behavior i s not uncommon a t a middle s c h o o l " ) . School's Statement of Disputed Facts
~

22.

In fact/ according to

the record/ S.E./s misconduct included pinching a male student/s buttocks; saying she would get a gun and shoot another student; striking that student with her purse; and slapping another student in the face hard enough to leave a red mark. PSUF
~

22.

After

S.E., while attending seventh grade at a different middle school/ stole another g i r l / s pocketbook and iPod/ the Parent decided not to return S.E. to the public middle school for eighth grade because S.E. was continuing t o express t h r e a t s to hurt the g i r l .
31/ 35.

PSUF

~

27

As a r e s u l t o f h e r b e h a v i o r i n s c h o o l , S . E . h a d t o b e r e m o v e d from the c l a s s room on occasion and/or was given detention or other disciplinary measures. there are particular has In sum, while the record reflects that in the S.E.'s relationship difficulties and and

difficulties

interaction S.E.

with her mother,

t r o u b l i n g c o n d u c t w e r e n o t l i m i t e d t o t h e home s e t t i n g . the clinical psychologist engaged by the School

Moreover, "that

agreed

[S.E.'s] overall performance i s impacted by her psychiatric status and that she would do b e t t e r as her psychiatric status improved." D e c i s i o n 9 , P l t f s . ' E x . 56 a t 6 . The School psychiatrists also suggests that neither of S . E. ' s treating in

t e s t i f i e d " t h a t the r e s i d e n t i a l placement was S c h o o l Mem. 1 9 . benefit of the

order to make educational progress." before, this Court has not had the

As n o t e d Hearing

Transcript.

However, in his written opinion, Dr. Wilberger states [SoEo] i s t o make reasonable educational

unequivocally that "if progress [SoE]

needs a highly structured therapeutic residential In the same vein, Dr. P i c o t t e concluded

placement."

Ex. 30 a t 2.

that "S.E. i s incapable of making reasonable academic or emotional progress in any setting other than residential placement at this time." E x . 55 a t 2 .

The School has submitted no evidence t h a t would support a different conclusion. On t h e c o n t r a r y , e v e r y p r o g r a m t h e S c h o o l has consistently failed to forward Although S.E. agreed to work with the
28

h a s m a d e a v a i l a b l e t o S . E. S.E.'s academic progress.

English t e a c h e r a f t e r s c h o o l , S . E . n e v e r f o l l o w e d t h r o u g h . PSUF

~

45. S . E . ' s enrollment i n East Bay Career Academy l a s t e d no more than three weeks. PSUF ~ 1 2 8 . There i s no evidence that, during

the three weeks S.E. attended the School's Extended Day Program, S.E. actually did any work. PSUF
~

138-141.

Similarly,

it is

unclear why S.E. r e c e i v e d c e r t a i n c r e d i t s f o r t h e Freshman Credit Recovery Program, as she apparently did not meet the admission PSUF
~

c r i t e r i a and also exceeded the limit for absences.

151-156.

S.E. also failed the subsequent Survival Skills for High School Class. PSUF
~

159.

Based on that evidence, the Hearing Officer

was well within h i s d i s c r e t i o n to give no deference t o the School's position that S.E. has the a b i l i t y to make progress within the Hope High

school s e t t i n g and t h a t she can be successful a t Mt. School. S c h o o l Mem. a t 2 1 , 2 3 .

In light of the undisputed facts

in this case and the administrative record that has been submitted, the Court i s of the opinion that the School has not met i t s burden to e s t a b l i s h t h a t the Hearing O f f i c e r ' s determination was erroneous regarding the need for residential placement of S.E. in order to c o m p l y w i t h t h e m a n d a t e o f IDEA. 2. Award for Compensatory Education

A s t u d e n t who h a s b e e n deemed e l i g i b l e f o r s p e c i a l e d u c a t i o n s e r v i c e s u n d e r t h e IDEA " m a y b e e n t i t l e d t o f u r t h e r s e r v i c e s , i n compensation for past deprivations." Maine Sch. Admin. D i s t . No.
i

35 v . M r . a n d M r s . R . , 3 2 1 F . 3 d 9 , 1 7 - 1 8 ( 1 s t C i r . 2 0 0 3 )

pihl v.

29

Mass.

Dept.

of

Educ'

l

9

F.3d

184 1

188-189

("[C]ompensatory A student

education i s available to remedy past deprivations.").

i s considered deprived of the appropriate education guaranteed by IDEAl "[w] hen an IEP f a i l s to confer some (i. e. more than de

minimis) educational b e n e f i t t o a s t u d e n t . " M.C. on Behalf of J.C. v. Cent. Reg/l Sch. D i s t ' l 81 F.3d 389 1 398 (3d Cir. 1996). The

right to compensatory education accrues from the point that the school d i s t r i c t knows o r should know of the IEp/s f a i l u r e . S c h . A d m i n . D i s t . N o . 35 v . M r . a n d M r s . R. Maine

321 F.3d a t 17-18

("[C]laim for compensatory education begins t o accrue when h i s or her IEP i s so inappropriate that the child i s receiving no real educational b e n e f i t . " ) ( c i t i n g M.C. Regional School Dist'
l

on Behalf of J.C.

v.

Central

81 F.3d a t 396.) the

With respect to the award for compensatory educa t i on , School maintains that

(1) S.E. received between one and one h a l f

and two hours d a i l y academic i n s t r u c t i o n while she was an inpatient a t B u t l e r ; ( 2 ) w h i l e p a r t i c i p a t i n g i n t h e PHP services through the Extended Day
I

S.E. refused offered and (3) S .E. was

program;

enrolled i n the summer c r e d i t recovery program t o make up for l o s t academic time. asserts that
S c h o o l / s Mem. a t 2 4 .

The Parenti provided
7

on her part to S.E.

l

the

education

services

were

"inappropriate no l a t e r than January 2009"
7

and that the School

A t t h a t t.Lrne , t h e P a r e n t h a d d e l i v e r e d t o t h e S c h o o l D r . P i c o t t e / s assessment t h a t S.E. was "incapable of making reasonable academic or emotional progress in any setting other than 30

should h a v e p r o c e e d e d w i t h a n e v a l u a t i o n o f S . E . ' s s p e c i a l n e e d s and the drafting and implementation of an appropriate IEP.

P a r e n t ' s Mem. 6 9 . The Hearing O f f i c e r ' s determination t h a t S.E. i s e n t i t l e d to 21 weeks of compensatory education is well supported by the

undisputed facts in this case.

Even p r i o r to S . E . ' s admission to

Butler, the Parent requested an IEP for S.E., to which the School failed to respond. PSUF
~~

61-62.

During S.E.'s stay at East PSUF

B a y ' s PHP, s h e r e c e i v e d n o a c a d e m i c i n s t r u c t i o n s o f a n y k i n d .
~

58.

Once S.E. was admitted to Butler, her academic i n s t r u c t i o n s

were limited to one and one-half to two hours per day that the hospital arranged through a private agency. PSUF
~

112.

Although

the School paid for the private instructions, there i s no evidence that anyone from the School ever communicated with Butler or the private agency that provided the instructions. 113. grades PSUF
~

1 1 3 , SSUF

~

I t i s also undisputed that the School did not record any or credits for S. E. for
~

the 115.

private

instructions

she

received while at Butler.

PSUF

Finally, as noted by the

Hearing Officer, several weeks elapsed a f t e r S . E . ' s discharge from Butler u n t i l she was enrolled i n the East Bay Career Academy and, after S.E. l e f t the Career Academy, there was an additional two

week period without i n s t r u c t i o n s before S.E. s t a r t e d attending the Extended Day Program. D e c i s i o n 1 0 , PSUF
~~

122, 124.6.

During the and the

residential placement at this time," PI t f . ' s Ex. 55, School had held a f i r s t uReferral Meeting." See supra. 31

entire p r o c e s s a n d t h r o u g h t h e e n d o f t h e I n d e p e n d e n t D u e P r o c e s s Hearing, the School maintained i t s position that S. E. was not

disabled and did not qualify for special education and related services. Based on those undisputed facts, and in the absence of any

evidence that the School fashioned and implemented an appropriate IEP for S.E. during the time periods i n question, the Court i s of the opinion that the School has failed to establish that the

Hearing O f f i c e r ' s award of compensatory education was i n e r r o r . Therefore, the School's appeal of the Hearing Officer's Decision is denied and the award of 21 weeks of compensatory education i s upheld. D. Attorney's Fees

U n d e r t h e I D E A , t h e p a r e n t o f a c h i l d w i t h a d i s a b i l i t y , who prevails in the administrative proceeding or litigation related to a due process hearing, may be e n t i t l e d , i n t h e d i s c r e t i o n of the Court, to reimbursement of reasonable attorney's fees. 20 U . S . C .

s

1 4 1 5 ( i ) ( 3 ) (B) ( i ) ( I ) . "

Smith v. Fitchburg Pub. Sch., 401 F.3d 16,

22 ( 1 s t C i r . 2 0 0 5 ) ( I D E A p r o v i d e s r e c o v e r y o f r e a s o n a b l e a t t o r n e y ' s fees to prevailing party in the court's discretion). "[A]

p r e v a i l i n g p a r t y i s a n y p a r t y who

'succeed[s]

on any significant

8

20 U . S . C . § 1 4 1 5 ( i ) ( 3 ) (B) ( i ) ( I ) p r o v i d e s , i n p e r t i n e n t p a r t : In any action or proceeding under this section, the court, in i t s d i s c r e t i o n , may award reasonable a t t o r n e y ' s fees as p a r t of the c o s t s . . . t o a p r e v a i l i n g p a r t y who i s t h e p a r e n t o f a c h i l d w i t h a disability. 32

issue

which achieves some of the b e n e f i t s p l a i n t i f f s sought Maine Sch. Admin. D i s t . No. 35 v. Mr. and. Mrs. A party in a proceeding or law suit related to "prevailing" when there is a "material

in bringing suit."
,R., 321 F. 3d a t 14.

IDEA

is

considered

alteration of the legal relationship of the parties" as well as "judicial imprimatur on the change." 4 0 1 F . 3 d a t 22 Smith v. Fitchburg Pub. Sch.,

( q u o t i n g B u c k h a n n o n B d . & C a r e H o m e , I n c . v . W. V a . 532 U.S. 598, 121 S.Ct. 1835, 149 "judicial imprimatur" includes an

D e p ' t o f H e a l t h & Human R e s . ,
L . Ed

. 2d

855

( 2 001) ) . hearing

Such

administrative

involving a

hearing officer.

Smith v.

F i t c h b u r g P u b . S c h . , 4 0 1 F . 3 d a t 22 n . 9 . ( " [ F ] o r p u r p o s e s o f t h e IDEA, a p a r t y m a y ' p r e v a i l ' i n a n a d m i n i s t r a t i v e h e a r i n g - t h u s t h e appropriate involvement of a [state educational agency] hearing

officer can provide the necessary 'judicial imprimatur.'"). The P a r e n t ' s complaint seeks (1) reimbursement of $77,370 i n attorney's fees and costs which the Parent incurred in connection with the Due Process Hearing, and (2) including attorney's fees. Parent submits that, in the costs of this action,

In her motion for summary judgment, the she and her daughter should be are the

because this

prevailing

parties

matter,

they

awarded

reasonable attorney's fees. h a s now s t i p u l a t e d t h a t S . E .

As t h e P a r e n t p o i n t s o u t , t h e S c h o o l is a child with a disability and, At this time,

therefore, eligible for special education services.

the Parent's request i s limited to seeking a ruling that she and her daughter are the prevailing parties and to reserve the right to 33

file a m o t i o n f o r a t t o r n e y ' s f e e s o n c e t h e C o u r t h a s d e t e r m i n e d t h e School's appeal of the Hearing Officer's Decision. The School, P a r e n t Mem. 7 0 .

on i t s p a r t , has taken no p o s i t i o n i n i t s memoranda Parent's request for reimbursement of attorney's

regarding the fees.

In l i g h t of t h i s C o u r t ' s Memorandum and Order denying the School's appeal of the Hearing Officer's Decision and affirming that Decision in i t s entirety, the parties are directed to submit, on or before November 22, 2010, legal memoranda addressing their Counsel are

respective positions on the matter of attorney's fees.

r e m i n d e d , a s w e l l , t o c o m p l y w i t h t h e p r o v i s i o n s i n L o c a l R u l e LR Cv 5 4 . 1 .

SO ORDERED.

M a r y M. L i s i Chief United States District Judge November

S--,

2010

34