N.F. v. Chariho Regional School District
Filing
23
MEMORANDUM AND ORDER denying Plaintiff's' 8 Motion for Summary Judgment; granting Defendant's 16 Motion for Summary Judgment. The Hearing Officer's Decision is affirmed. So Ordered by Chief Judge Mary M. Lisi on 3/1/2012. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
N.F. by his parents
Plaintiff,
v.
C.A. No. 11-177-ML
CHARIHO REGIONAL SCHOOL DISTRICT
Defendant
MEMORANDUM AND ORDER
This case is brought by N. F., through his parents 1 , Mr. and
Mrs.
F.
(together
with
N.F.,
"Plaintiffs"),
pursuant
to
the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq.
("IDEA").
Decision
(the
The Plaintiffs seek reversal of the Administrative
"Decision")
of
an
Officer (the "Hearing Officer") .
School District
the
Hearing
Impartial
Process
Hearing
On its part, the Chariho Regional
(the "School District")
Officer's
Due
determination
seeks an order upholding
that
the
School
District
proposed an appropriate clinical placement for N.F. "to address his
unique needs in the areas of sensory processing skills, behavioral
skills, and emotional issues, in addition to his academic needs."
Decision 2.
The matter is now before the Court on the parties'· cross-
It is evident from the administrative record and the filings
and pleadings that N.F.'s mother (hereinafter referred to as the
"Parent") has been the primary driving force and active participant
in this case.
1
motions for summary judgment on the complaint.
For the reasons
that follow, the Plaintiffs' motion for summary judgment is DENIED
and the School District's motion for summary judgment is GRANTED.
I.
Factual Background2
N.F. was placed into foster care with Mr. and Mrs. F. shortly
after his traumatic birth to a woman with a history of drug and
alcohol use.
F.
At age three months, N.F. was adopted by Mr. and Mrs.
Initially,
N. F.
achieved developmental milestones on time,
although he had some gross motor delays and he had difficulties
soo~hed
being
as an infant.
Decision 18.
N. F. attended preschool, where he demonstrated some behavioral
difficulties,
including aggressive outbursts.
kindergarten at Kingston Hill Academy
He then attended
(~Kingston
Hill"),
during
which time he was treated by Psychiatrist Dr. Robin with Risperdal
for aggressive outbursts.
N.F.
at
Memorial
The Parent also sought an evaluation of
which
Hospital,
consisted
of
~behavioral
observations . . . a neurological evaluation, and development tests
in the cognitive arid theory of mind assessment areas."
18.
Decision
Memorial Hospital concluded that N.F. had strong cognitive and
memory
skills,
but
that
he
had
difficulties
with
motor
2
This summary is based primarily on the Hearing Officer's
Findings of Fact as supported by the transcripts of the due process
hearing and the exhibits submitted by the parties. Any significant
disagreements by either party in their respective statements of
undisputed facts are noted.
Neither party has submitted a
statement of disputed facts pursuant to Local Rule LR Civ 56(a) (3).
2
restlessness, impulse control, and expressive language.
diagnosed
with ADHD
combined
type,
speech/language
counseling.
N. F.
(Attention
Deficit
which
Memorial
for
evaluation,
Hyperactivity
Hospital
appropriate
N.F. was
Disorder)
recommended
medication,
and
parent
Decision 19.
completed
kindergarten
return for first grade.
at
Kingston
Hill
but
did
not
The Hearing Officer noted in her Decision
that, although the Parent denied that N.F. was asked not to return
to Kingston Hill, other evidence in the record suggested that the
school felt it could no longer meet N.F.'s needs.
Decision 19-20.
With the School District's approval, the Parent home-schooled
N.F. during the '08/'09 school year in order to have him evaluated
and
stabilized.
During
that
time,
N. F.
was
evaluated by
Dr.
Monarch at Gershon Psychological Associates. In addition, reviews
were conducted of Memorial Hospital's Speech/Language evaluation,
Kingston
Hill's
behavior
assessment
and
progress
education observations by the School District.
evaluation showed that N.F.
behavioral
diagnosis
regulation,
was
and
Decision 20.
The
had difficulties with emotional and
oppositionality,
Oppositional
reports,
Defiant
N. F.'s
and aggression.
Disorder
("ODD")
with
possibility of an undiagnosed sensory processing disorder.
the
It was
noted that, because N.F.'s health might have been compromised by
the
biological
factors
were
mother's
unknown.
drug/alcohol
abuse,
Recommendations
3
his
included
genetic
risk
occupational
therapy ("OT") and physical therapy ("PT") evaluations, continued
speech therapy, monitoring by a neurologist, in-home services for
the parents with a family therapist, special education services,
additional classroom accommodations,
skills
training,
moni taring
individual or group social
symptoms
of
a
mood
disorder,
and
assistance for the parents to address N.F.'s sleep difficulties.
Decision 21.
In
March
the
'09,
Parent
had
N.F.
evaluated
at
the
Southeastern Connecticut Therapy and Wellness Center, where it was
recommended that N.F. receive six weeks of PT to increase overall
balance,
strength,
activities.
coordination
and
advanced
gross
motor
No standardized testing was done on that occasion,
however. Id.
Around that time, the Parent contacted the School District to
discuss a possible return of N.F. to public school the following
Fall.
The School District referred N.F. for clinical psychological
evaluation,
which was
Cantor ("Dr. Cantor").
completed in April
'09 by Dr.
Elizabeth
Dr. Cantor concluded that N.F. did not meet
the criteria for Pervasive Developmental Disorder or ODD, but that
his mood difficulties
disorder.
positive
should be moni tared for
a possible mood
Decision 22. Her recommendations included developing a
behavior
accommodations
regarding his
for
plan
in
N.F.'s
transitions
and
sensory functioning,
4
new,
structured
changes,
using
classroom,
information
and moni taring his
symptoms
through ongoing communication with the home, prescribing physician,
and school.
Id.
After a meeting of the Parent with the School District staff,
N. F. was found eligible for special education and related services.
The School District also agreed to let N.F. repeat the first grade,
as
the
Parent
had
requested.
In
September
2009,
N.F.
began
attending Charlestown Elementary School in a regular classroom.
Because the Parent wanted to wait until N.F.'s classroom teacher
had been assigned, an IEP
(Individualized Education Program) was
not developed until October 2009. Decision 23.
The IEP, to which
the Parent consented,
included regular classroom placement with
language
special education consul tat ion and other
therapy,
accommodations.
OT,
N.F. also had a behavior plan.
In February 2010,
behavioral issues,
Decision 23.
after N.F. was suspended from school for
the Parent asked for another IEP meeting to
discuss her request for an individual teacher assistant
("TA").
The IEP team decided to gather behavioral data for six weeks - an
individual TA would be assigned to perform this
task -
making a determination regarding the Parent's request.
before
The Parent,
convinced that her own data collection was sufficient, complained
to the Superintendent of Schools about the IEP Team's decision, as
well
as
the
perceived
demeanor
of
Special
Kathleen Perry ("Mrs. Perry") towards her.
On March 3,
2010
Education
Director
Decision 23.
(before the six weeks evaluation could be
5
conducted}, the Parent withdrew N.F. from school to home-school him
again for the remainder of the school year.
In her written request
to the Superintendent of Schools to homeschool N.F.,
expressed her opinion that N.F.'s
which she considered
~essential
~sensory
the Parent
integration issues"
to his academic progress,"
~would
never be addressed through Chariho School District." Decision 23,
Plft.'sEx. 46.
the Parent visited the RYSE School. 3
In the Spring of 2010,
According
to
the
Parent,
although
she
described
her
visit
as
"extraordinarily limited," she "found it to be inappropriate for
elementary school children" and "not environmentally sound for my
son."
Tr.
almost
a
II 66:2-12.
warehouse,
She also described it as "a placement,
if
you
will,
for
emotionally
disturbed
children." Tr. II 67:16-18.
While
N.F.
was
evaluated by Dr.
Children's
developmental
being
Yvette
Hospital.
homeschooled,
Yatchmink
("Dr.
the
Parent
Yatchmink")
Dr.
Yatchmink
diagnosed
coordination
disorder,
phonological
had
him
at
Hasbro
N.F.
with
language
The Hearing Officer's Decision contains a detailed description
of the RYSE [Reaching Youth through Support and Education] program.
Decision 39. The RYSE program provides two separate programs in a
public school setting: an alternate learning program at the middle
and high school level, and a clinical day program providing special
education for students in Kindergarten through Grade 12. Services
include individualized programming, in-school therapeutic support,
mental health service, case management, positive behavioral
programming, and ~small structured classrooms with a low pupilteacher ratio." Id.
6
disorder, a sensory processing disorder, and emotional behavioral
regulation
Decision
disorder
24,
with
Pltfs.'s
a
possible
Dr.
18.
emerging
mood
disorder.
Yatchmink noted that N. F.
was
receiving speech and language interventions as well as OT and PT on
an outpatient basis.
She further stated that "[N.F.] is currently
being home schooled, but I do believe that it is essential for him
to
have
an
academic
placement
that
is
able
to
support
his
educational and emotional needs. [N.F.] needs a school program that
provides therapeutic support within the academic environment."
Pltfs.' Ex. 18, Page 2 of 3.
Following
this
evaluation
requested another IEP meeting.
by
Dr.
Yatchmink,
the
Parent
The IEP Team met with the Parent
and her consultant, Dr. Kathleen O'Connor ("Dr. O'Connor"), on June
8,
and
Together, the parties reviewed Dr. Yatchmink's report,
2010.
discussed
Decision 25.
various
options
to
accommodate
N.F.'s
needs.
No conclusion was reached and a second meeting was
held on June 17, 2010.
As before, the Parent requested that her
concerns be included in the meeting minutes,
e.g. that RYSE does
not have a playground, and that N.F. was already being evaluated
privately.
receive
It was decided that, over the summer, N.F. was to (1)
compensatory
AlphaSmart,
4
and
(3)
OT
services,
(2)
begin "assistive
be
provided
with
an
technology screening"
to
4
A keyboarding device frequently used by individuals with
writing disabilities.
7
identify areas of concern.
Principal
and
special
The Parent was to meet with the School
education
administrators
to
plan
N. F.'s
possible return to school. Decision 26-27, Pltf.'s Ex. 34, 3 of 4.
Although OT was offered by RYSE, the Parent requested money to
pay for privately arranged OT.
The School District agreed,
on
condition that the services were documented and in concert with the
IEP. The Parent, however, decided not to avail herself of either
option and no OT was provided to N.F. during the summer.
Decision
27.
On August 4, 2010, N.F. was hospitalized at Bradley Hospital
for "increasing aggression and out-of-control behavior."
16,
2010
letter
to Mrs.
Perry from Mandy Witkin
An August
("Witkin"),
a
Clinical Social Worker at Bradley Hospital ("Bradley"), contains a
number of conclusions about N.F. based on various records provided
by the
Parent
(excluding,
however,
Clinical Psychological Report) .
the
School
Witkin stated,
District's
2009
inter alia,
that
N.F. presents complex difficulties, including learning disabilities
and severe behavioral and emotional dysregulation.
that,
although
structured
N. F.'s
inpatient
behavior
setting
had
at
stabilized
Bradley,
"he
function effectively in a non-clinical setting."
Decision
28.
Further,
the
letter
made
She also noted
in
is
the
not
highlyable
to
Pltf.'s Ex. 16,
specific
suggestions
regarding N.F.'s required educational needs, including the makeup
and
training
of
a
multi-disciplinary
8
team to work with N. F.
Decision 28.
A second letter from Bradley Hospital dated September
15, 2010, nearly identical to the first correspondence, added ADHD
combined type to N.F.'s diagnosis.
Bradley recommended OT,
PT,
speech therapy, medication management, and social skills training.
~is
In addition, this letter stated that, if N.F.
not provided with
a placement with the high level of clinical support described
[he]
is
at
significant
residential level of care."
risk
for
requiring
a
placement
in
Pltf.'s Ex. 19, Decision 28.
On September 16, 2010, the IEP Team met to review the Bradley
recommendations;
Hospital
teleconference.
services
On
available
Bradley
that occasion,
at
RYSE,
staff
the
including
available from Bradley Hospital.
via
IEP Team described the
home-based
services
not
The Parent expressed discomfort
with the RYSE program and requested a
School.
participated
referral to the Bradley
It was agreed that the IEP needed revision and that the
IEP team would reconvene once a
date
for
N. F.'
was
discharged
discharge
from
Bradley Hospital had been set.
On
October
Hospital 5 •
1,
1010,
N.F.
from
He began school at RYSE on October 7, 2010. 6
Bradley
The Parent
According to the Parent, the Bradley Clinical Social Worker
informed her that Mrs. Perry was invited to the discharge meeting
but refused to attend - a charge that was not further substantiated
and which Mrs. Perry categorically denied.
Decision 30-31.
6
N.F. was placed into an elementary classroom for five children
staffed by a classroom teacher and a Behavior Management Assistant.
9
picked him up at lunch time, in accordance with her own
plan."
Decision 31. When the RYSE Social Worker
contacted the
Parent the
~transition
("Mrs. Cronin")
following day to discuss RYSE mental
health services, the Parent refused to have Mrs. Cronin come to the
house and insisted on meeting at a
she
had
an
The Parent
Dunkin Donuts.
explained
that
acrimonious
relationship
with
the
District.
At the meeting, the Parent told Mrs. Cronin that she did
not want RYSE home-based services because she was already getting
them from an outside provider. Decision 31.
While
between
N. F.
the
was
attending
Parent,
the
the
RYSE
classroom
Program,
teacher,
and
communication
the
Behavior
Management Assistant occurred daily, first by telephone, later, at
the suggestion of the Parent, via a daily log. Decision 31.
On October 22,
2010, N.F. had to be restrained at school.
Although he had been restrained before at Bradley Hospital and at
Butler Hospital, this was the first time he had been restrained in
a
school
setting.
disagreement
about
The
the
Parent,
length
who
of
had previously voiced her
"time-outs"
at
RYSE,
called
various RYSE administrators to inform them that she intended to
pull N.F.
back out of school.
With the Parent's consent,
RYSE
staff immediately developed a protocol for time-outs to be used
until the next IEP meeting.
N.F.
good days
Decision 32, Pltfs.' Ex. 27.
returned to school on October 26, 2010.
at
school,
N. F.
had another time-out
10
Following two
and had to be
restrained
for
disruptive
behavior.
On
October
31,
N. F.
was
hospitalized for a "major meltdown," and he remained at Butler
Hospital for a month. Decision 32.
On November 5, 2010, the RYSE Team met to develop the annual
IEP for N. F. 7
reviewed.
The student's academic strengths and needs were
The Parent provided a list of services she wanted to be
included in the new IEP,
including her own Behavior Plan.
consultation was to be continued.
OT
The team developed N.F.'s goal
in the area of coping skills and noted that he had received five
time-outs
in three weeks of school.
N. F.
was also to receive
language therapy on a twice weekly basis. Pltf.'s Ex. 37.
N.F.'s
Behavior Plan was to consist of his "daily documentation sheet and
the time-out protocol." Decision 33.
The 11/05/10 team meeting minutes reflect that the Parent "has
indicated that she is not interested in receiving clinical services
through the RYSE program.
She has outside providers and does not
want to address these services at this time." Pltf.'s Ex.
36. 8
7
In her Statement of Undisputed Facts ("SUF"), the Parent
alleges that "[t]he IEP had been prepared prior to the meeting, and
at the conclusion of the meeting the parents were told that the IEP
as presented would be implemented."
Pltf.' s SUF
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