UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
March 31, 2011
SEBASTIAN M. ET AL., PLAINTIFFS,
KING PHILIP REGIONAL SCHOOL DISTRICT AND MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION, DEFENDANTS.
The opinion of the court was delivered by: Tauro, J.
Plaintiffs Sebastian*fn1 M. and his parents, Lisa M. and Michael M., bring suit against Defendants King Philip Regional School District ("King Philip") and the Massachusetts Department of Elementary and Secondary Education ("DESE") for failing to provide Sebastian with a free appropriate public education ("FAPE"). Presently at issue are Plaintiffs' Motion for Summary Judgment [#24] and Defendant King Philip's Cross Motion for Summary Judgment [#35]. For the following reasons, Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Cross Motion for Summary Judgment is ALLOWED.
Plaintiff Sebastian M. is a twenty-three-year-old man who was found eligible to receive special education services at the age of three because of developmental delays, moderate mental retardation, delays in fine and gross motor control, and express, receptive, and social language and visual perceptive deficits.*fn3 Sebastian was involved in an early intervention program and received both speech and language therapy and occupational therapy ("OT") before entering public school.*fn4
During the 1998--99 school year, Sebastian was in the sixth grade.*fn5 Pursuant to an Individualized Education Program ("IEP"),*fn6 Sebastian's placement changed from an in-district placement to a placement at the Work Lab I program of the Bi-County Educational Collaborative ("BICO").*fn7 Sebastian remained at BICO until the end of the summer of 2001.*fn8
In the fall of 2001, Sebastian's placement changed from the Work Lab I program to the Work Lab II program at the North Attleboro High School, still under the auspices of BICO.*fn9
During this time and until approximately the end of the 2004--05 school year,Seb was in the exploratory phase of [the] program[,] working at jobs on campus such as the BICO office and the BICO cafeteria. He also participated in business tours at a nursery, a few animal facilities, and a supermarket. In addition[,] people from the community came in to speak to Seb and his class about the different jobs that were available. Seb also went out into the community to the library, post office, local restaurants and businesses, attended career fairs in 2002 and 2004 and participated in job shadows, business tours and internships before participating in paid work. The purpose of the exploratory phase of the program was for BICO staff is [sic] to get an idea of what each student's stamina was and what their interests were.*fn10
In May and June of 2002, King Philip conducted a three-year evaluation of Sebastian.*fn11
The occupational therapist noted that Sebastian's range of motion and strength had improved from a diminished state to within functional limits since the last evaluation, in November 1998.*fn12
The 2002 OT evaluation also showed that Sebastian continued to have visual motor and visual spatial deficits.*fn13 Sebastian also displayed some deficits in language skills and pragmatic/social conversation skills.*fn14 Academically, "[e]ducational testing showed that [Sebastian] continued to exhibit delays in all areas."*fn15
In June 2002, the team responsible for creating Sebastian's IEPs ("the team")*fn16 met to review the evaluation and propose a new IEP for Sebastian.*fn17 The proposed IEP, which was accepted by Sebastian's parents, called for a substantially separate special education program that included speech/language therapy, OT, vocational services, and social/emotional support.*fn18
Progress reports from 2002 through 2005 showed that Sebastian was making steady progress.*fn19 But Sebastian's mother, Lisa M., did not believe these progress reports, because Sebastian "was not doing many skills independently at home."*fn20 Lisa did not, however, tell the team that she disagreed with the IEPs and indeed accepted the IEPs for the 2002--03, 2003--04, and 2004--05 school years.*fn21
During Sebastian's time at BICO, he participated in a variety of transitional and vocational programs.*fn22 During the 2003--04 school year, Sebastian moved from the exploratory phase of BICO to the community-based phase.*fn23
In May 2005, Sebastian received a three-year adaptive physical education reevaluation.*fn24
During the evaluation, Sebastian "had a difficult time with both body and spatial awareness and had very poor visual tracking."*fn25 At that time, Sebastian also received his educational three-year reevaluation, his speech and language evaluation, and his OT evaluation.*fn26 His teachers and therapists indicated that Seb was using transportation to his work sites independently and scored in the 4th grade level in word recognition and computational skills. . . . Seb could identify 39 out of 40 safety signs and although he could not give an exact definition of all the sign[s ,] he knew what to do. . . . Seb appear to have improved his ability to focus his attention and process more efficiently since the last three year reevaluation and had made slight gains in receptive language and had increased processing speed since the last reevaluation. . . . Seb demonstrated slight growth in expressive language skills and . . . he had made a two-year jump in pragmatic skills. . . . Seb had made [occupational] progress over the years, [but] . . . standardized testing of Seb's visual perceptual and motor testing were similar to results from three years ago.*fn27
On June 20, 2005, the team met to review Sebastian's evaluation results and to develop an IEP for the 2005--06 school year.*fn28 The proposed IEP maintained the quarterly vision consultation and the hour-a-week of OT and added a session of [adaptive physical education] each week, increased vocational services from 12 to 16 hours per week, increased social skills training from 45 minutes to an hour per week and greatly increased the time allocated for social communication.*fn29
On July 26, 2005, Sebastian rejected this IEP in full.*fn30 Lisa also rejected the IEP, and King Philip received the rejected IEP on August 2, 2005.*fn31 Sebastian remained in the BICO program at the North Attleboro High School.*fn32
On August 10 and August 24, 2005, the team reconvened to discuss the rejected IEP.*fn33
No resolution was reached, so Lisa retained an Advocate and the team met again on September 21, 2005.*fn34
The team met again on October 12, 2005 to review the IEP.*fn35 The team told Lisa that Sebastian was doing well in school.*fn36 Lisa told the team that she had concerns because Sebastianhad "meltdowns when he was at home during unstructured time or when there were changes to his schedule," but Lisa did not tell the team "any specifics regarding what was happening at home."*fn37 Lisa also said that she and Sebastian's father, Michael, had concerns about Sebastian's independent living skills such as shoe tying, toileting, showering, shaving, and "money management issues, functional academics, safety issues and direct safety training."*fn38 The new proposed IEP "expanded the accommodations sections, added goals in vocational and independent living skills (including shoe tying) and goals in safety and social judgment, made each goal and objective more detailed and added five hours a week in independent living skills."*fn39 The team also agreed to meet with Lisa "for scheduled monthly progress meetings and to reconvene in the fall of 2005 to discuss recommendations regarding Seb's visual needs."*fn40 King Philip did not agree, however, to explore residential programs, as Lisa and Michael had requested.*fn41
On October 19, 2005, King Philip sent Sebastian's parents the resulting IEP.*fn42 On November 29, 2005, Lisa rejected the IEP in full.*fn43
The team met again on December 14, 2005; January 12, 2006; and January 20, 2006 to refine Sebastian's IEP and discuss transitional planning.*fn44 Both Lisa and her Advocate had considerable input regarding the wording of each goal and objective and approved the language to each goal. Before moving onto each goal[, the chair of the team] asked if everyone was in agreement and if there was anything that anyone would like to add. Neither [Lisa] nor her Advocate voiced any objection or offered additions before the [team] moved on to another goal.*fn45
On January 25, 2006, a new IEP was proposed.*fn46 On March 17, 2006, with the advice of her Advocate, Lisa "rejected the IEP in full."*fn47
At this time, Lisa and Michael were upset that BICO was not "following through" on the promises it made at the team meetings.*fn48 But BICO could not implement many of the programs that Sebastian's parents desired because they had rejected the IEPs in full.*fn49 For that reason, Sebastian's progress reports from 2006 were based on old goals and indicated that Sebastian "had achieved most of these goals and that Seb required new goals."*fn50
On June 21, 2006, King Philip received an evaluation of Sebastian conducted by Thomas Lehane of Horace Mann Educational Associates ("HMEA").*fn51 This evaluation focused on making recommendations for transitional planning for Sebastian.*fn52 Lehane concluded that Sebastian did have some independent skills.*fn53 In the community domain, "Seb did demonstrate some basic, unsophisticated skills," and he showed "strengths in his ability to communicate with others," although he was "relatively passive in initiating social interaction."*fn54 In work situations, Lehane concluded that Sebastian "had made progress"*fn55 and that Sebastian "would be best suited to an environment in which some kind of mechanical or assembly task is involved."*fn56 Finally, Lehane recommended that Sebastian be assisted in "locating and participating in regular recreational activities in the community[,] with a particular emphasis on peer-group affiliations."*fn57
On October 10, 2006, King Philip received "a written report from an independent evaluation from Ann Marie Lasoski, Psy.D." that was done at the request of Sebastian's parents.*fn58
Dr. Lasoski reviewed Sebastian's record, conducted some testing, and observed Sebastian at BICO on May 23, 2006.*fn59 Dr. Lasoski concluded that Sebastian's program "was not coordinated" and "recommended that Seb receive an individualized life skills program in a full year setting that emphasized activities of daily living, independent living skills, recreational skills, social skills and vocational skills taught in a repetitive, concrete, systematic, multidisciplinary manner."*fn60 Overall, Dr. Lasoski concluded that although Sebastian had previously been classified as moderately mental retarded, Sebastian was in fact mildly mentally retarded.*fn61
On November 1, 2006, the team met to review Sebastian's "vocational and neuropsychological evaluations, discuss transition planning and review Seb's progress."*fn62 Dr. Barbara Sherman, Ph.D., reviewed Dr. Lasoski's report and agreed with Dr. Lasoski "that the current program was not a coordinated program."*fn63 But Dr. Sherman disagreed with most of Dr. Lasoski's findings. Specifically, Dr. Sherman concluded that Sebastian was moderately (not mildly) mentally retarded and that BICO remained an appropriate placement for Sebastian.*fn64
On November 17, 2006, King Philip sent Lisa and Michael a proposed IEP.*fn65
On December 19, 2006, King Philip received a letter from Lisa and Michael's attorney stating that Lisa and Michael "intended to enroll Seb as a residential student at public expense . . . because of previously-expressed concerns that the program offered by [King Philip] was not appropriate to meet Seb's needs."*fn66 On December 21, 2006, Lisa and Sebastian rejected the proposed IEP in full.*fn67 Sebastian began attending Cardinal Cushing School ("Cardinal Cushing") on January 2, 2007.*fn68
Cardinal Cushing did not develop an IEP for Sebastian.*fn69 At Cardinal Cushing, Sebastian worked on many of the same vocational and community skills that he had worked on at BICO.*fn70
But unlike BICO, where Sebastian had jobs off-campus and independently rode specialized transportation to his work sites, all of Sebastian's jobs at Cardinal Cushing were on-campus workshops.*fn71
On November 29, 2007, a representative of King Philip observed Sebastian at Cardinal Cushing.*fn72 On December 4, 2007, the team met for Sebastian's annual review.*fn73 The team members based at King Philip believed that many of the skills that Sebastian was working on at Cardinal Cushing "were ones that BICO had not only worked on but ones that they thought that Seb had already obtained."*fn74 The team developed another IEP that "contained goals and objectives in independent living skills . . . , vocational skills, social pragmatic skills, functional reading, fine motor skills and transition planning."*fn75
On or about January 4, 2008, King Philip sent the proposed IEP to Lisa.*fn76 On January 30, 2008, Lisa and Sebastian rejected the IEP because Lisa "did not feel that the BICO program was appropriate since it contained goals and objectives that Seb was not capable of doing" and because the IEP "did not offer a continuation of the Cardinal Cushing residential program."*fn77
In February and March of 2008, King Philip completed a three-year reevaluation of Sebastian,*fn78 and on April 15, 2008, the team reconvened to create a new IEP.*fn79
On April 25, 2008, Sebastian's parents filed a request for a hearing with the Bureau of Special Education Appeals ("BSEA").*fn80 Sebastian's parents sought retroactive reimbursement for the expenses related to Sebastian's placement at Cardinal Cushing; continued placement of Sebastian at Cardinal Cushing until he turned twenty-two; compensatory services past age twenty-two; and damages for substantive and procedural violations.*fn81
On May 9, 2008, Lisa rejected the proposed IEP.*fn82
On May 15, 2008, King Philip filed a response that alleged that its program was both substantively and procedurally appropriate and, in the alternative, that claims should be reduced or denied because neither the notice for unilateral placement nor the hearing request was timely filed; [Sebastian's p]arents had not allowed the School District to complete evaluations before placement, and compensatory claims used for the purpose of obtaining tuition reimbursement was [sic] not appropriate or legally permissible in the 1st Circuit.*fn83
On June 18, 2008, the team met for the final time, but the matter was not resolved.*fn84
Also on June 18, 2008, an administrative hearing on this matter began.*fn85 The hearing consisted of five and one-half days of oral testimony.*fn86 In her decision, the Hearing Officer identified the following issues in the case:
I. Did [King Philip's] IEPs designating a program for a vocational and educational program at BICO for the 2006--2007 and 2007--2008 school years provide Seb wit a . . . FAPE in the least restrictive environment . . . [?]
II. If not, is Seb entitled to compensatory services?
III. Did [King Philip] commit procedural violations that denied Seb a FAPE?
IV. If so, is Seb entitled to compensatory services?
V. If so, should any compensatory award be reduced or denied because [Sebastian's p]arents' hearing request was not timely and/or because [Sebastian's p]arents did not give [King Philip] ten days notice of their unilateral placement at Cardinal Cushing . . . ?
VI. May compensatory services be in the form of tuition reimbursement and prospective services at Cardinal Cushing . . . ?
VII. If so, was and is Seb's program at Cardinal Cushing appropriately responsive to his special needs so that he can benefit educationally, thus entitling him to tuition reimbursement?*fn87
Ultimately, the Hearing Officer held that the IEPs that King Philip proposed from 2006 to 2008 provided Sebastian with a FAPE in the least restrictive environment.*fn88 As the Hearing Officer explained, [King Philip's] testimony is credible that if BICO had been able to implement the IEPs, Seb would have been able to make meaningful progress at home. . . . [Sebastian's parents], although they had the opportunity to do so, did not inform [King Philip] of the specific problems they were having with Seb, and the [team], based on the information that it did have, offered a number of goals and objectives . . . and services that would have helped with behaviors at home . . . . However, these services could not be implemented because the IEPs were rejected in full. . . . Since the IEPs were offered and reasonably calculated to enable Seb to make progress . . . , this Hearing Officer cannot hold [King Philip] accountable for any lack of progress because they were not implemented.*fn89
For these reasons, the Hearing Officer held that Defendants were not required to reimburse Lisa and Michael for the cost of Cardinal Cushing.*fn90
In addition, the Hearing Officer ordered King Philip to provide Sebastian's parents with compensatory services in the form of several updated evaluations for Sebastian because of "incidents of noncompliance with Seb's IEP in the form of updated evaluations."*fn91 Specifically, the Hearing Officer explained that King Philip "did not consistently implement the IEP."*fn92
A. The Statutory Scheme
The Individuals with Disabilities Education Act ("IDEA") provides that, "as a condition for receiving federal funds, states must provide" every disabled child with a FAPE.*fn93 The primary method of delivering a FAPE to a disabled child is through an IEP.*fn94 The IEP "must include, at a bare minimum, the child's present level of educational attainment, the short- and long-term goals for his or her education, objective criteria with which to measure progress toward those goals, and the specific services to be offered."*fn95
An IEP must be "custom-tailored" to fit the disabled child.*fn96 An IEP must also "be something different than the normal school curriculum and something more than a generic, onesize-fits-all program for children with special needs."*fn97 The "critical inquiry" is "'whether a proposed IEP is adequate and appropriate for a particular child at a given point in time.'"*fn98 But it is important to note that [t]he IDEA does not promise perfect solutions to the vexing problems posed by the existence of learning disabilities in children and adolescents. The Act sets more modest goals: it emphasizes an appropriate, rather than an ideal, education; it requires an adequate, rather than an optimal, IEP. Appropriateness and adequacy are terms of moderation. It follows that, although an IEP must afford some educational benefit to the handicapped child, the benefit conferred need not reach the highest attainable level or even the level needed to maximize the child's potential.*fn99
Services delineated in an IEP must be delivered to a student in the student's "least restrictive environment," which requires both that "[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are nondisabled"*fn100 and that developers of IEPs should prefer mainstream schooling.*fn101 This "preference for mainstreaming" means that a student is not entitled to placement in a residential educational program if that student "'would make educational progress in a day program.'"*fn102
A parent may challenge the adequacy of an IEP by filing a complaint
with the state educational agency.*fn103 For example,
in Massachusetts, the BSEA conducts administrative due
process hearings on disputed special education decisions.*fn104
The state educational agency "must convene a hearing to pass
upon the adequacy of a proposed IEP."*fn105
If a parent demonstrates that the programs and services offered by a school district are inappropriate and instead that the programs and services that the parent has obtained privately are appropriate, the parent may be reimbursed for the cost of private special education and related services.*fn106
B. The Standard of Review
The IDEA provides that, if parties in a civil action challenge the decision of a state administrative officer,*fn107 a federal district court "shall receive the records of the administrative proceedings; . . . shall hear additional evidence at the request of a party; and . . . basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."*fn108 In considering the findings of an educational agency under the IDEA, a district court must apply "an intermediate standard of review . . . -a standard which, because it is characterized by independence of judgment, requires a more critical appraisal of the agency determination than clear-error review entails, but which, nevertheless, falls well short of complete de novo review."*fn109
In the course of this independent review, the court must accord the administrative proceedings "'due weight.'"*fn110 In other words, [a]lthough the exact quantum of weight is subject to the district judge's exercise of informed discretion, the judge is not at liberty either to turn a blind eye to administrative findings or to discard them without sound reason. In the end, the judicial function at the trial-court level is 'one of involved oversight.'*fn111
To prevail on a motion for summary judgment, the moving party must show "that there is no genuine dispute as to any material fact" and that the moving party "is entitled to judgment as a matter of law."*fn112 In deciding a motion for summary judgment, "a court is not authorized to make findings of fact."*fn113
A motion for summary judgment is more complicated in a context in which a state administrative officer has made factual findings. Indeed, the it "is not crystal clear . . . how a district court is to incorporate into the summary-judgment context the district court's duty to give 'due deference' to findings of fact and evaluative determinations of the state administrative officer."*fn114 In the context of the IDEA, "a court is authorized to decide [a] case 'as a matter of law' on [a] motion for summary judgment if enough of the administrative findings and evaluative determinations are so well-founded that any other finding of fact that might be questioned is no longer material to the outcome."*fn115
Here, the BSEA Hearing Officer was correct in finding that the IEPs proposed between 2006 and 2008 were reasonably calculated to provide Sebastian with a FAPE in the least restrictive environment. As an initial matter, the administrative record was comprehensive*fn116 and provided a more-than-sufficient basis for the Hearing Officer's findings.
Plaintiffs argue that because the proposed IEPs did not contain a transition plan for Sebastian, the IEPs were not reasonably calculated to provide a FAPE.*fn117 But the administrative record makes clear that transition planning was discussed at all of Sebastian's team meetings. And although an IEP must contain statements of transition services,*fn118 "the IDEA does not require a stand-alone transition plan as part of an IEP."*fn119 Because transition services were mentioned in the IEPs and because transition services were actually provided to Sebastian,*fn120 there is no error here based on transition planning.
Plaintiffs also argue that the IEPs were not reasonably calculated to provide a FAPE because Sebastian did not make progress during the 2005--06 and 2006--07 school years.*fn121 But the First Circuit has explicitly said that a student's lack of progress does not "necessarily betoken an IEP's inadequacy."*fn122 Moreover, the hearing officer considered evidence of Sebastian's progress during his time at BICO, and the record indicates that Sebastian did, in fact, make some progress.*fn123
Finally, Plaintiffs argue that the Hearing Officer did not properly weigh the testimony of their expert, Dr. Lasoski.*fn124 As an initial matter, this court must grant some deference to the Hearing Officer and her weighing of the relevant evidence.*fn125 Moreover, as the First Circuit has explained, "the underlying judgment of those framing the [IEP] is given considerable weight. The standard of review is thus deferential to the educational authorities, who have 'primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs.'"*fn126 Additionally, Dr. Lasoski did not work with Sebastian on a regular basis. The Hearing Officer's decision thus credited Dr. Lasoski no less than it was required to, and this court finds the Hearing Officer's relative weighing of expert testimony appropriate.
Further, this court agrees with the Hearing Officer that King Philip cannot be held responsible for the fact that Plaintiffs rejected the IEPs in full and thus the IEPs could not be implemented.*fn127 As the First Circuit has explained, "it cannot be that a school system transgresses the IDEA whenever a parent-for whatever reason-refuses to sign a completed IEP before the school year commences."*fn128
Sebastian's parents had the burden of proof to demonstrate that BICO was an inappropriate placement for Sebastian.*fn129 Because they have not done so, this court agrees with the Hearing Officer that a residential special education school is not the least restrictive environment for Sebastian.*fn130 After all, Sebastian made some progress at BICO,*fn131 and he might have made further progress had the team been able to implement new IEPs for him. Further, Plaintiffs' own expert identified Sebastian as less severely disabled than during his previous years at BICO, a time when Sebastian's parents accepted King Philip's IEPs.*fn132 Because the Hearing Officer found in favor of King Philip, she did not reach the question of whether Sebastian's parents were entitled to reimbursement for the cost of Cardinal Cushing. Because Cardinal Cushing was not Sebastian's least restrictive environment, Sebastian's parents are not entitled to reimbursement.*fn133
The Hearing Officer did hold that Plaintiffs were entitled to compensatory services in the form of updated evaluations from King Philip,*fn134 and this court agrees that this equitable remedy is appropriate.
For the foregoing reasons, the Hearing Officer's decision is sustained in full. Plaintiff's Motion for Summary Judgment [#24] is DENIED and Defendant's Cross Motion for Summary Judgment [#35] is ALLOWED.
AN ORDER HAS ISSUED.
Joseph L. Tauro United States District Judge