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C.D. v. Natick Public School District

United States District Court, D. Massachusetts

July 21, 2017

C.D., by and through her parents and next friends, M.D. and P.D., Plaintiffs,
v.
NATICK PUBLIC SCHOOL DISTRICT and BUREAU OF SPECIAL EDUCATION APPEALS, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge

         This dispute arises out of an administrative decision by the Massachusetts Bureau of Special Education (“BSEA”) concerning individualized education programs (“IEPs”) proposed by the Natick, Massachusetts Public School District. The BSEA found that the IEPs were adequate to provide C.D., a student with learning disabilities, with a “free appropriate public education, ” as required under the Individuals with Disabilities Education Act, and denied tuition reimbursement for her placement in a private school. C.D. and her parents have brought suit against the School District and the BSEA seeking to overturn the BSEA's decision.

         Plaintiffs have moved for summary judgment. For the reasons stated below, the motion will be denied, but the case will be remanded to the BSEA for further consideration or clarification as to whether two of the proposed IEPs provided for an education in the least restrictive environment possible.

         I. Background

         A. Statutory Background

         The Individuals with Disabilities Education Act (“IDEA”) conditions the provision of federal funds to public schools on compliance with a requirement to provide all disabled children with a “free appropriate public education” (“FAPE”). Roland M. v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir. 1990) (quoting 20 U.S.C. §§ 1400(c), 1414(b)(2)(A), 1416)).[1]“Substantively, the ‘free appropriate public education' ordained by the Act requires participating states to provide, at public expense, instruction and support services sufficient ‘to permit the child to benefit educationally from that instruction.'” Id. (quoting Board of Educ. v. Rowley, 458 U.S. 176, 203 (1982)).

         1. Individualized Education Programs

         The individualized education program (“IEP”) is the IDEA's primary means for assuring the provision of a FAPE to disabled children. IEPs are written statements detailing an individualized education plan for disabled children. At a minimum, “[e]ach IEP must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005); see also Roland M., 910 F.2d at 987.

There is no mechanical checklist by which an inquiring court can determine the proper content of an IEP; IEPs are by their very nature idiosyncratic. One thing is clear: the substance of an IEP must be something different than the normal school curriculum and something more than a generic, one-size-fits-all program for children with special needs.

Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008) (citations and internal quotation marks omitted). The specific requirements for IEPs can come “from either federal or state law (at least to the extent that the latter is not incompatible with the former).” Id.

         The IDEA contains procedural safeguards that must be followed when creating an IEP. In particular, parental involvement is required in order to ensure adequate protections for the interests of individual children with disabilities. See Rowley, 458 U.S. at 208. IEPs must be formulated through the participation of a team that includes the student's parents, at least one of the student's regular-education teachers (if any), at least one special-education teacher, a representative of the local education agency, and an individual who can interpret the instructional implications of evaluation results. North Reading Sch. Comm. v. BSEA, 480 F.Supp.2d 479, 482 n.5 (D. Mass. 2007) (citing 20 U.S.C. § 1414(d)(1)(B)). At the discretion of the parents or the agency, the team may also include “other individuals who have knowledge or special expertise regarding the child.” 20 U.S.C. § 1414(d)(1)(B)(vi). Parents also have the right to obtain an independent educational evaluation of their child. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002). Furthermore, under Massachusetts law, schools are required to, “upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child's current program and of any program proposed for the child.” Mass. Gen. Laws ch. 71B, § 3.

         IEPs must be reviewed annually and revised when necessary. Roland M., 910 F.2d at 988. Children with disabilities must be reevaluated at least once every three years. 34 C.F.R. § 300.303(b)(2).

         2.Appropriateness and Adequacy

         The IDEA requires an “appropriate” education and an “adequate” IEP; it does not require perfection. As the Supreme Court recently articulated, a student receives a FAPE if the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas County School Dist. Re-1, 580 U.S. at 11 (2017). Endrew F. elaborated on the Court's prior statement in Rowley that a student receives a FAPE if her IEP is “reasonably calculated to enable [her] to receive educational benefits.” Rowley, 458 U.S. at 207.

         Prior to Endrew F., the First Circuit articulated the appropriateness requirement in the following way:

“[T]he obligation to devise a custom-tailored IEP does not imply that a disabled child is entitled to the maximum educational benefit possible.” Lessard, 518 F.3d at 23, see also Rowley, 458 U.S. at 198; Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004). The Supreme Court has said that an IEP must offer only “some educational benefit” to a disabled child. Rowley, 458 U.S. at 200. Thus, the IDEA sets “modest goals: it emphasizes an appropriate rather than an ideal, education; it requires an adequate, rather than an optimal, IEP.” Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993). At the same time, the IDEA calls for more than a trivial educational benefit, in line with the intent of Congress to establish a “federal basic floor of meaningful, beneficial educational opportunity.” Town of Burlington v. Dep't of Educ. of Mass., 736 F.2d 773, 789 (1st Cir. 1984). Hence, to comply with the IDEA, an IEP must be reasonably calculated to confer a meaningful educational benefit.

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012).

         3. Least Restrictive Environment

         The IDEA expresses a preference for the education of children with disabilities in the “least restrictive environment.” See 20 U.S.C. § 1412(a)(5). It requires states to maintain policies and procedures to ensure that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Id. IEPs must, therefore, balance the often competing interests of “mainstreaming, ” on the one hand, with substantive educational improvement, on the other. Roland M., 910 F.2d at 992-93.

         4. Transition Plans

         In accordance with its purpose to prepare children with disabilities for “further education, employment, and independent living, ” 20 U.S.C. § 1400(d)(1)(A), the IDEA requires the provision of “transition services” beginning at age sixteen. Id. § 1414(d)(1)(A)(i)(VIII). The term “transition services” means “a coordinated set of activities for a child with a disability” that

(A) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(B) is based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and
(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluations.

Id. § 1401(34). Thus, at least by age 16, IEPs must include “appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills” and “the transition services (including courses of study) needed to assist the child in reaching those goals.” Id. at § 1414(d)(1)(A)(i)(VIII)(aa)-(bb). By statute, Massachusetts has lowered the age at which transition planning must begin to fourteen. Mass. Gen. Laws ch. 71B, § 2.

         The IDEA does not require that there be a separate, stand-alone “transition plan.” Lessard, 518 F.3d at 25. Rather, statements of transition services are to be integrated with the IEP. Id.

         5. Rejection of a FAPE

         Where a state fails to provide a FAPE in a timely manner, the parents of a disabled child have the right to seek reimbursement, where appropriate, for private-school tuition. See Burlington v. Department of Educ., 471 U.S. 359, 370 (1985). The Supreme Court has made clear, however, that parents who unilaterally change their child's placement without the consent of state or local school officials “do so at their own financial risk, ” see Burlington, 471 U.S. at 374, and are entitled to reimbursement “only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act.” Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (emphasis in original). A school district that is “unable to furnish a disabled child with a FAPE through a public school placement” is “responsible for the reasonable costs incident to [a proper] private placement, ” including tuition reimbursement. Five Town, 513 F.3d at 284-85.

         6. Administrative Hearings

         Should the parents of a disabled child or a school district wish to contest an IEP, the IDEA requires the state to convene an impartial hearing. 20 U.S.C. § 1415(f)(1)(A). In Massachusetts, those hearings are conducted by the BSEA in accordance with rules that it has promulgated pursuant to Massachusetts law. See Mass. Gen. Laws ch. 71B, § 3; 603 Mass. Code Regs. 28.08(5); see also Roland M., 910 F.2d at 988. Under Massachusetts law, the BSEA has jurisdiction to hear disputes

between and among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations promulgated hereunder or under the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq., and its regulations; or (ii) a student's rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its regulations.

Mass. Gen. Laws. Ch. 71B, § 2A(a). The BSEA's administrative decision is reviewable in either state or federal court. See 20 U.S.C. § 1415(i)(2)(A), (i)(2)(C)(iii); see also Roland M., 910 F.2d at 987-88. However, before such an action is brought, the party seeking review must exhaust all administrative procedures under the IDEA. 20 U.S.C. § 1415(1).

         B. Factual and Procedural Background

         1. The Parties

         C.D. is a young woman who has been diagnosed with Borderline Intellectual Functioning. (A.R. 3876). She lives with her parents in Natick, Massachusetts. (A.R. 272). The Natick schools receive federal funds from the United States Department of Education pursuant to the IDEA. (Id. at ¶ 14).

         2. C.D.'s Middle-School Experience at McAuliffe

         C.D. attended McAuliffe Regional Charter Public School in Framingham, Massachusetts, for grades six through eight. (A.R. 3378). She took all of her classes, with the exception of math, in an inclusive, general-education setting. (A.R. 3378, 1695). She received supplementary support in her general-education classes from two retired special-education teachers, Nan Coellner and Marcia Soden, who had been hired by her parents. (A.R. 271, 1694-1696). Coellner and Soden would stand near C.D. and make sure that she understood what she was supposed to be doing in class. (A.R. 1696). It appears that C.D. did very well at McAuliffe, was able to access the general-education curriculum, and that her self-confidence improved significantly while she was there. (A.R. 1697-98).

         3. The 2012-13 IEP

         a. The May 2012 Meeting

         In May 2012, C.D.'s parents contacted Natick by e-mail to request a meeting to discuss C.D.'s re-enrollment in the Natick public school system. (A.R. 161). C.D. would be completing the eighth grade at McAuliffe that spring, and planned to enroll at Natick High School for summer services and ninth grade in the fall. (Id.). In anticipation of the meeting, C.D.'s parents sent Natick her most recent educational evaluation, which had been conducted by Dr. Steve Imber in the winter of 2012; a neuropsychological evaluation conducted by Dr. Erin Gibbons; a speech and language evaluation conducted by Susan Flax, C.D.'s speech therapist; and her course selection list for the high school. (A.R. 161, 177, 238, 2750). C.D.'s parents requested that prior to the meeting, they receive copies of the syllabuses for general education classes as well as whatever program Natick thought would be appropriate for C.D. (A.R. 161).

         On May 22, 2012, Gina Dalan, the director of special education, responded to C.D.'s parents, informing them of Natick's usual practices for transferring students from McAuliffe to Natick High School. (A.R. 268). It appears that a meeting had already scheduled for May 24, and Dalan informed C.D.'s parents that the meeting would be “more of an information sharing meeting than an IEP meeting.” (Id.). At the meeting, Natick's special-education coordinator would inform the parents about the services offered at the school and what services might be appropriate for C.D., but would not actually propose a new IEP. (Id.). Dalan also informed the parents that if they did decide at the meeting to enroll C.D. at Natick High School, she would send someone from Natick to McAuliffe to observe C.D. and speak with her teachers to help plan for her transition. (Id.).

         At the meeting on May 24, C.D.'s parents brought Soden and Coellner, C.D.'s private tutors; Flax, her speech therapist; and Dr. Imber, an independent evaluator. (A.R. 271). Also present at the meeting were Dalan, the director of special education; Joshua Hanna, a general-education teacher from Natick; Milly Cuiffo, a speech and language therapist; Donna Cymrot, a school psychologist at the high school; Karan Litpak, a Learning Center teacher at the high school; Barbara Molinari-Bates, the evaluation team leader at the high school; and attorneys for both Natick and the parents. (A.R. 271-72).[2]

         The parents informed Natick that C.D. had done well in an inclusive setting at McAuliffe, and that they wanted her to continue in an inclusive, general-education program at the high school. (A.R. 273). The parents, Coellner, and Soden explained their arrangement and the support Coellner and Soden that provided to C.D. at McAuliffe. (A.R. 274-76). The parents hoped that similar support could be provided at the high school to enable C.D. to continue in an inclusive setting. (A.R. 276-77).

         Natick informed the parents about the different education models available for students with learning disabilities at the high school. (A.R. 294-95). At one end of the spectrum, Natick offered inclusive, general-education classes with teaching aides. (A.R. 294). It also offered replacement classes-separate classes taught by a special education teacher where all students were on an IEP. (A.R. 294-95). Finally, it offered an ACCESS program, a substantially separate program with a significantly modified curriculum in which students would typically not take standardized tests (the Massachusetts Comprehensive Assessment System, or “MCAS”) and would not receive high-school diplomas. (A.R. 295).

         The parents asked about the possibility of observing the programs available at the high school. (A.R. 313). Molinari-Bates responded that the school district typically permits parents or their designee to observe a program that had been proposed in an IEP, but because no IEP had yet been proposed-and because C.D. had not yet enrolled at the high school-it was too early to schedule any observation. (Id.).

         The attorney for the school district noted that pursuant to the law concerning transfer students, the district was required to provide services comparable to C.D.'s current IEP at McAuliffe. (A.R. 314). However, several representatives for Natick stated that based on the information available at the time, the school district had concerns about a general-education placement. (A.R. 317-28, 321). Specifically, Molinari-Bates stated that she was concerned that the larger class sizes (approximately 30 students per class at the high school compared to 18 students per class at McAuliffe) would make the general-education environment difficult for C.D. (A.R. 316-18, 321). Molinari-Bates stated that the ACCESS program appeared to be appropriate for C.D., but, as the parents had made clear that they were not interested in that program, that replacement classes would likely be the most comparable program to the services provided at McAuliffe. (A.R. 319). When the parents inquired about the possibility of having C.D.'s private tutors continue to help her in general-education classes at the high school, Molinari-Bates and the attorney for the school district responded that having private tutors in the classroom would not be possible because Natick employed its own teachers and teaching aides. (A.R. 318).

         Finally, the team members briefly discussed possible plans for C.D.'s education after high school. (A.R. 326-328). The parents stated their hope that C.D. would receive a high-school diploma, but stated that they did not yet have post-high school plans. (A.R. 327). Dalan informed them of the school district's Achieve program, which is a job-coaching program for students aged 18 to 22. (A.R. 327-28).

         b. The July 2012 Meeting

         The parents submitted C.D.'s completed registration paperwork to Natick on May 29, 2012. (Pl. SMF ¶ 89; A.R. 360-68). On May 31, 2012, Dalan, the director of special education, went to observe C.D. at McAuliffe and speak with her special-education teacher. (A.R. 370). On June 5, 2012, Dalan wrote to the parents informing them that while the ACCESS program appeared to be appropriate for C.D. based on the information available, Natick would be recommending all replacement classes given the parents' objections to the ACCESS program. (Id.). Dalan also informed the parents that due to scheduling difficulties, the parents would not be able to observe classes at the high school prior to the end of the school year. (Id.). However, she stated that they would be welcome to observe early in the fall, prior to writing a new IEP for C.D. (Id.). Finally, Dalan informed the parents that she would be leaving the school district on June 22, 2012, and that Tim Luff would be replacing her as the director of special education. (A.R. 371).

         The parents, through their attorney, then wrote to Natick on June 13, 2012, requesting an IEP team meeting prior to the start of the 2012-13 school year. (A.R. 374-75). They noted their concern about placing C.D. in replacement classes, simply to comply with regulations requiring that a transfer student receive services comparable to their current IEP, only to then propose a new program in the first few weeks of the school year after proposing a new IEP. (A.R. 374). In particular, they were concerned that C.D. would start the school year in replacement classes only to be switched into the ACCESS program, which they did not believe was appropriate for her. (Id.). They requested an IEP meeting over the summer so that a new IEP could be proposed prior to the school year. (A.R. 375).

         Natick granted the request for an IEP meeting. Prior to the meeting, the parents requested a copy of any report or notes that Dalan had generated as a result of her observations of C.D. at McAuliffe. (A.R. 378). The parents wanted the information gathered from those observations to inform the IEP meeting. (Id.). Dalan responded that her observations were simply intended to help ease C.D.'s transition to the high school, that it was not a formal evaluation, and that she did not create a written report. (Id.). She further stated that her observations were not intended to change what the IEP team had discussed at their last meeting, and that their recommendation of the ACCESS program for C.D. was based on their discussions at that meeting and Dr. Imber's most recent evaluation of C.D. (A.R. 377).

         An IEP meeting was held on July 27, 2012. (A.R. 383). Present at the meeting were the parents; their attorney; C.D.'s tutors, Coellner and Soden; Dr. Imber; Lindsey McGovern, the Assistant Director for Student Services at Natick High School; Tim Luff, the new Director of Student Services at Natick High School; Paul Tagliapietra, the Assistant Director of Student Services at Natick elementary schools; Donna Bresnick, a special education teacher at Natick High School; Kari-Anne Daley, a social studies teacher at Natick High School; Rose Bertucci, Principal of Natick High School; Susan Balboni, the Assistant Director for Student Services at Natick Middle School; and Alisia St. Florian, the attorney for Natick. (A.R. 384-85. 2601).

         The purpose of the meeting was to discuss C.D.'s transition to Natick High School and to develop a new IEP for her. (A.R. 385). McGovern began the meeting by asking the parents if they had any concerns that should guide the IEP development. (A.R. 385). The parents expressed concern about whether C.D. would be placed with students who had behavioral issues; the kind of support she would receive in non-academic courses; whether she would be able to access the general-education curriculum; and whether the block schedule-with 80-minute classes two or three days per week instead of 45-minute classes five days a week-would be difficult for C.D. given her memory deficits. (A.R. 385-86).

         Tagliapietra, who appears to have worked with C.D. over the summer during her extended-school-year classes, reported on the kind of work she had been doing over the summer. (A.R. 387-88). He stated that her level of performance over the summer matched the level of performance that was stated in her previous IEP from McAuliffe. (A.R. 387).

         The team then discussed long-term plans for C.D. (A.R. 391-92). The parents expressed some concern about whether C.D. would pass the MCAS-which is required to receive a high school diploma-and asked about what vocational services Natick could provide to help C.D. get a job after high school. (A.R. 392). Natick representatives then explained the range of transition services and vocational services available. (A.R. 392-95). They also explained that because C.D. was 14 years old, they would begin planning for her transition that year. (A.R. 392). McGovern recommended that the IEP team reconvene in October to make any necessary revisions to C.D.'s IEP and to begin developing a detailed transition plan for her. (A.R. 392-93).

         C.D.'s tutors then discussed her performance at McAuliffe. (A.R. 396-400). They highlighted her areas of strengths and weaknesses, and stated that she did well in her general-education classes with appropriate support-which they described as being not significant. (Id.). Dr. Imber then explained that because of the ways in which tests and formal evaluations are performed, C.D.'s test scores did not adequately reflect her abilities. He also stated that with appropriate supports and services, she could perform at a level substantially higher than that indicated by her test scores. (A.R. 400). Natick representatives expressed some concern about what they perceived as the very large discrepancy between what the parents and the parents' experts said about C.D.'s abilities as compared to her very low test scores. (A.R. 402).

         The team then discussed C.D.'s goals and objectives-which they adopted from her prior IEP-and the types of services that would be necessary to help her achieve those goals. (A.R. 405). McGovern stated her belief that the ACCESS program would best help C.D. achieve her goals, because it was designed for students with cognitive, communication, and social/pragmatic deficits, and that C.D. “would, on paper, fit into that category” given her intellectual disability and difficulties with communication and social/pragmatic skills. (A.R. 406). Natick representatives then explained the curriculum and structure of the ACCESS program. (A.R. 407-08). The parents again expressed concern about the block schedule, given C.D.'s memory deficits. McGovern explained that the ACCESS program would help address those concerns because, as a separate program with a single teacher, it provides more continuity of instruction across different subject matters. (A.R. 408-09). Several Natick representatives also explained that students in the ACCESS program can transition into replacement or general-education classes as they are able to do so, and that they take general-education electives with appropriate supports and instructional assistants. (A.R. 410-12).

         The parents again expressed their belief that, based on her performance at McAuliffe, C.D. should be in general-education classes with support. (A.R. 413). McGovern stated that, based on her IEP from McAuliffe and her test scores, the school district did not believe that general education was appropriate for her and that the ACCESS program would best meet her needs. (A.R. 413-14). Thus, McGovern stated that Natick would propose an IEP that included the ACCESS program, plus electives in general ...


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