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Pass v. Rollinsford School Dist.

United States District Court, D. New Hampshire

March 5, 2013


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Richard L. O'Meara, Murray Plumb & Murray, Portland, ME, for Tia Pass.

Jeanne M. Kincaid, Drummond Woodsum & MacMahon, Portsmouth, NH, Melissa A. Hewey, Drummond Woodsum & MacMahon, Portland, ME, for Rollinsford School District.


JOSEPH N. LAPLANTE, District Judge.

In this action under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1415(i)(2)(A), from which this court derives its jurisdiction, see id. § 1415(i)(3)(A), plaintiff Tia Pass challenges the New Hampshire Department of Education's decision rejecting her claim that the Rollinsford School District failed to provide her younger sister and ward, Haley, with a free and appropriate public education (" FAPE" ). She asks this court to reverse that decision and to order the District to reimburse her for the costs associated with Haley's unilateral placements in two private educational programs. The District, in response, argues that (1) parts of the plaintiff's claim are barred by the statute of limitations and the doctrine of waiver, (2) it did provide Haley with a FAPE, and (3) even assuming that it failed to provide a FAPE, reimbursement is not an appropriate remedy in this case.

After oral argument and an exhaustive review of the record and the parties' written submissions, the court affirms the Department of Education's decision. As an initial matter, the court concludes that the statute of limitations bars some of the plaintiff's challenges— specifically, those related to Haley's ninth-grade (2008/09) individualized education plan (" IEP" ) and its later amendment— as she did not bring suit within two years " of the date on which the alleged violation was or reasonably should have been discovered." N.H.Rev.Stat. Ann. § 186-C:16-b, I. The statute of limitations does not, however, bar plaintiff's challenges to Haley's later IEPs; nor did plaintiff waive her right to challenge any of those IEPs by consenting to them in writing, as she raised her concerns with those IEPs throughout the school year and, ultimately, revoked the written consent.

As regards the merits of the plaintiff's challenge, the court concludes that the individualized education programs the District developed for Haley's sophomore and junior school years were reasonably calculated to provide her with an educational benefit and, therefore, provided Haley with a FAPE. Although the plaintiff is to be commended for her truly admirable efforts to ensure that her younger sister receives the very best education possible, the IDEA does not require the District to provide the best education, but merely an appropriate one. See, e.g., Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83 (1st Cir.2004); G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948-49 (1st Cir.1991). The District fulfilled this requirement, and is entitled to judgment in its favor.

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I. Applicable legal standard

" The IDEA provides funding to each state ‘ to assist [it] to provide special education and related services to children with disabilities,’ provided that ‘ [a] free and appropriate public education is available to all children with disabilities residing in the state.’ " Mr. I ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 4 (1st Cir.2007) (quoting, with added bracketing, 20 U.S.C. § 1411(a)(1)). A state discharges this duty " as long as the program that it offers to a disabled student is ‘ reasonably calculated’ to deliver ‘ educational benefits.’ " C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir.2008) (quoting Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Generally, this requires the state " to identify children who may qualify as disabled, evaluate each child to determine his or her eligibility for statutory benefits, and develop a customized IEP [1] to ensure that the child receives a level of educational benefits commensurate with a FAPE." Id. at 285 (citing 20 U.S.C. §§ 1412(a)(3)-(4), 1414(a)-(b)).

In New Hampshire, if the parent or guardian of a disabled child believes that the child has been denied a FAPE, he or she may request a due process hearing before the New Hampshire Department of Education. See 20 U.S.C. § 1415(f)(1)(A). Following that hearing, the hearing officer must issue a final decision, accompanied by findings of fact. See id. §§ 1415(h), (i)(1)(A). If either party is dissatisfied with the hearing officer's decision, that party may seek judicial review in state or federal court. See id. § 1415(i)(2)(A). The reviewing court, " essentially conduct[ing] a bench trial based on a stipulated record," Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d 79, 85 (1st Cir.2012), must then make a bounded, independent ruling based on the preponderance of the evidence. See Lessard, 518 F.3d at 24; see also 20 U.S.C. § 1415(i)(2)(C)(iii).

The party challenging the hearing officer's decision bears the burden of proving that the decision is wrong. See Schaffer v. Weast, 546 U.S. 49, 51, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). Purely legal questions arising under the IDEA are reviewed de novo. See Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9 (1st Cir.2002). But, with respect to questions of fact, the court's role in reviewing the hearing officer's decision is " one of involved oversight." Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087 (1st Cir.1993). The applicable standard is an intermediate one, under which the court must exercise independent judgment, but which, at the same time, " falls somewhere between the highly deferential clear-error standard and the non-deferential de novo standard." Lessard, 518 F.3d at 24.

The required perscrutation must, at one and the same time, be thorough yet deferential, recognizing the expertise of the administrative agency, considering the agency's findings carefully and endeavoring to respond to the hearing officer's resolution of each material issue.

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Jurists are not trained, practicing educators. Thus, the statutory scheme binds trial courts to give ‘ due weight’ to the state agency's decision in order to prevent judges from ‘ imposing their view of preferable educational methods upon the States.’

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 989 (1st Cir.1990) (internal citations and punctuation omitted) (quoting Rowley, 458 U.S. at 207, 102 S.Ct. 3034).[2]

II. Background

A. Haley's background and early education

At the time of the Department of Education's hearing in this matter, Haley was an 18-year-old student in the eleventh grade. Her parents are both deceased, and she is under the care and guardianship of her older sister, plaintiff Tia Pass. Haley lives with Tia,[3] Tia's husband, and their two children in Rollinsford, New Hampshire, within the Rollinsford School District.

Haley was born prematurely and experienced significant medical issues in her early life. She struggles with a learning disability in mathematics, and performs about five to six years behind other students her age. She also has deficits in social communication and executive functioning. A psychological evaluation conducted when Haley was a twelve-year old student in the sixth grade found that her general conceptual ability was only in the third percentile; her adaptive behavior in the fourth percentile; her number skills in the first percentile; her spelling in the 18th percentile; and her word reading in the twelfth percentile. As a result of these low- to below-average cognitive skills, the evaluation concluded that Haley would require modified assignments and expectations, as well as direct instruction to help her increase her independence and ability to deal with unfamiliar people.

Haley began her education in Maine, where she attended local public schools from kindergarten through the sixth grade. Throughout this time, Haley required

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extensive special education consisting of resource room support, speech therapy, occupational therapy, and physical therapy. She repeated both kindergarten and the fourth grade. In 2005, Haley and Tia moved to North Carolina, where Haley attended public school for the seventh grade (which she also repeated). As a result of Haley's developmental disabilities, the school district in North Carolina classified Haley as eligible for services under the IDEA [4] and, in March 2006, developed an IEP designed to help her address those areas in which she needed assistance.

After moving to Rollinsford in November 2006, Haley enrolled in Somersworth Middle School. In early December 2006, the IEP team there accepted, with modifications, the IEP that had been developed for Haley in North Carolina, which was to run until March 2007. Under the IEP, the Rollinsford School District agreed to provide Haley with a " Modified Regular" placement. In that placement, Haley received mathematics and language arts support at the special education learning center for ten hours per week, speech-language therapy one hour per week, and an assisted study hall three hours per week, but was otherwise " mainstreamed" with non-disabled students. In March 2007, Haley's IEP team revised her IEP slightly to reduce the total hours of assistance she was receiving, and in November 2007, Tia agreed to extend the then-current IEP through the beginning of Haley's ninth grade year in September 2008.

B. Ninth grade (2008-2009)

At an IEP team meeting in April 2008, the District developed an IEP for Haley's transition to the ninth grade. The proposed IEP identified Haley's academic needs as " math applications, reading comprehension and speech/language," Admin. R. at 631, and her developmental and functional needs such as dependence on others, immaturity, emotionality, and difficulty interacting with peers. The IEP contained two " goal areas," in reading and math, and provided for several accommodations, including access to the learning center to complete assignments; extended time to complete tests; access to a calculator; reductions in the length and scope of assignments; and study guides. The IEP also provided for an assisted study hall for 90 minutes per day, during which Haley would receive individualized instruction to supplement her regular classroom instruction.

Tia executed the IEP on April 8, 2008, indicating her written consent to its implementation. Although the form gave the option of accepting the IEP, rejecting it, or signing it with exceptions, Tia accepted it outright, i.e., without identifying any exceptions. At the subsequent due process hearing, Tia testified that she accepted the IEP only to consent to the services offered, not because she believed the IEP appropriately addressed all of Haley's needs.

Haley began attending ninth grade at Somersworth High School in September 2008. The District convened a meeting to review Haley's IEP on October 2, 2008.

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At the meeting, the District dropped the reading goals from Haley's IEP because she was reading at grade level. That left only a single goal area in math. The revised IEP also provided for only a single service— an assisted study hall for 90 minutes per day— though it continued to provide for accommodations and modifications similar to those in the previous IEP. Tia executed the revised IEP on October 2, 2008, again without identifying any exceptions. Again, though, Tia testified at the due process hearing that her signature was meant only to indicate her consent to the services offered, and was not to indicate her belief that the IEP appropriately addressed Haley's educational needs.

Later in October 2008, Haley participated in cognitive testing administered by the District's psychologist. The testing revealed that Haley's cognitive scores ranged from low average to extremely low. Haley also participated in a vocational evaluation, which revealed that most of her vocational aptitudes were at the " lowest levels" (though she also scored in the " average" and even " above average" range for other aptitudes). Admin. R. at 675-78. The District convened an IEP team meeting on November 14, 2008 to review these results, but ultimately made no changes to the IEP. It did, however, note that Haley was a strong verbal learner, and that math teachers would need to make sure to pair verbal instructions with visual material.

All of Haley's substantive classes during her ninth grade year were mainstreamed, so that her interactions were primarily with non-disabled students. Apart from a Foundations of Mathematics course during the first semester, Haley received no instruction in mathematics during ninth grade. In addition to the teacher's lecturing in her math class, however, Haley was provided with small group reinforcement instruction from paraprofessionals in the class. During Haley's 90-minute assisted study hall, special education staff members also worked directly with Haley to reinforce the concepts taught in her classes— including her mathematics class— and provided assistance with her homework and other assignments. They also assisted Haley with her social communication skills, " scripting" her day based on what she anticipated would occur.

Haley also participated in a small, ten-student lunch group known as " Somersworth Social Skills," or " S-Cubed." In that program, Haley was paired with a non-disabled student volunteer for a 30-minute-per-week lunch period, during which she and the volunteer— her " social coach" — worked on role playing. Over the course of the program, socially appropriate behaviors were modeled, and Haley and other students received coaching in how to participate in conversations, how to manage emotions, and similar topics. The facilitator of the S-Cubed program testified that she made efforts to ensure that the behaviors learned in the lunch group would be generalized across environments, by having student volunteers attempt to reinforce the behaviors (e.g., by initiating conversations) during the normal school week. She also made recommendations for how teachers could reinforce those behaviors in the classroom.

Haley's participation in S-Cubed was not guided by any goals, objectives, measurements, or assessments. By design, it was not an IEP service or special education, because the core concepts taught in the program were not unique to children with disabilities. No one assessed or analyzed Haley's social skills before the S-Cubed program, so there are no objective data showing whether those skills improved as a result of her participation. Both the facilitator of the S-Cubed program and the school psychologist reported, however, that when Haley entered S-

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Cubed, she was shy, nonassertive, and withdrawn from her peer group. She often misread social cues, was anxious and fearful of speaking up in public and in groups, and was reluctant to contribute to the group. According to the facilitator, Haley's social skills improved over her time in the S-Cubed program. She maintained eye contact with conversation partners, was better able to understand and read emotions, volunteered information and opinions, and initiated conversations on her own. Haley received academic credit for her participation in the program.

For her part, Tia testified at the hearing to her observations that Haley struggled academically during the ninth grade, and often became very frustrated when trying to do her homework. Notwithstanding these struggles, Haley successfully completed the ninth grade, receiving passing grades in her pass/fail courses, and A's and B's in her other courses, including a B in Foundations of Mathematics. Her IEP report card for the first semester indicated that Haley had " worked diligently in her math class" and " finished the class well," Admin. R. at 281, and her IEP report card for the second semester indicated that she had " proven herself as a good student as she completes assignments on time, completes homework at home, and prepares for tests, projects, or assessments with diligence," id. at 282. The District promoted her to the tenth grade.

C. Tenth grade (2009-2010)

Haley returned to Somersworth High School for tenth grade in the 2009-2010 school year. She began the year experiencing social difficulties with peers, and when the IEP team met on September 24, 2009, to review her IEP, Haley's social struggles were a chief area of concern. Following the meeting, the District proposed a new IEP, to begin on October 2, 2009, that identified Haley's primary academic needs as " math applications ..., speech/language, and learning boundaries in social settings." Admin. R. at 701. The proposed IEP set goals for Haley in the areas of " Math," " Transition," and " Social/ Behavioral." Id. at 706-07. As before, the IEP provided for only the same 90-minute assisted study hall. It also provided for essentially the same accommodations Haley had received the previous year: access to the learning center to complete assignments; extended time to complete tests; access to a calculator; reductions in length of written assignments; and study guides (among other things). Tia again executed the IEP without exception. Once again, she testified at the due process hearing that she did so only to consent to the services offered, and not because she believed it addressed all of Haley's needs.

In mid-November 2009, Tia e-mailed Haley's case manager to express concern that the IEP was not sufficient to address Haley's social skills deficits. In replying to this e-mail, Haley's case manager noted that Haley was again participating in the S-Cubed program [5] (as she had during the ninth grade), and that the District's speech-language pathologist, who had been providing Haley with biweekly consultations during her assisted study hall, felt

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that " Haley has more of a pragmatic issue in this area." Admin. R. at 716. Tia immediately responded that this " reply did not seem to recognize any of my concerns as valid," and requested a speech-language evaluation for Haley and an IEP team meeting. Id. at 718.

In response, the District held an IEP team meeting on January 21, 2010, at which it formally wrote into the IEP a once-weekly, 30-minute speech-language consultation, a change to which Tia consented. See id. at 758. Other than this change, the District did not alter or enhance Haley's IEP, though it offered to extend Haley's graduation date by a year, and to change Haley's emphasis from receiving a regular diploma to receiving an alternative diploma.

For the first time, Tia refused to sign the IEP. Among other things, she expressed concern that the school was modifying its math curriculum too much for Haley. At that time, Haley was enrolled in a mainstreamed mathematics course, Integrated Math I, which covered topics including surface area, volumes, three-dimensional graphing, and linear and exponential equations. Tia believed that Haley should be learning " functional" math instead, which would teach her the skills needed to balance a checkbook or create a monthly budget. To address Tia's concerns, the District explored the availability of placing her in math classes at another high school, such as Noble High School in nearby North Berwick, Maine. To attend classes at Noble High School, however, Haley would have to take a bus there, and Tia did not want her to do so. That suggestion was, therefore, ultimately abandoned.

The District also agreed to have its speech-language pathologist evaluate Haley. The speech and language evaluation, conducted in February 2010, placed Haley's core language score in the average range. Haley scored in only the fifth percentile for Pragmatic Judgment, however (an age equivalent of less than eleven years old), the fifth percentile for Understanding Spoken Paragraphs, and the ninth percentile for Formulated Sentences and the Language Memory Index. The evaluation did not make any specific recommendations for Haley.

The District held another IEP meeting for Haley on February 17, 2010, to review the results of the speech and language evaluation. At the meeting, the District acknowledged that Haley's " pragmatic skills are a weakness," Admin. R. at 749, but did not enhance her IEP in any way. It instead opted to continue her 30-minute speech-language consultation and participation in the S-Cubed program.

Tia again refused to sign the proposed IEP. On March 1, 2010, a family friend (and Maine attorney) wrote the District's superintendent expressing the opinions that the IEP " does not appear to reflect or address a number of serious deficiencies" and that the district had failed " to provide Haley with a comprehensive and current assessment ... [as] required by federal law." Id. at 780-81. On March 15, 2010, believing that Haley required services beyond what was being proposed or provided, Tia ...

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