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IEE’s, Residential Placement, Failure to Provide FAPE Addressed in Plainville Court Decision

In a decision issued March 31, 2012, a United States District Court judge has rejected the appeal of the Plainville, Connecticut board of education from a hearing officer’s ruling mandating reimbursement for residential placement at the F.L. Chamberlain School in Massachusetts.  In Plainville Board of Education v. R.N. by Mrs. H., 112 LRP 16721 (D. Conn. 2012), Judge Chatigny deferred to the rulings of the hearing officer on issues of educational policy and her findings of fact in ruling in favor of the parent.  As described in the decision, the case presents a remarkable picture of a student who, as a result of severe emotional disturbance, was unable to benefit from a therapeutic day program and required a residential placement in order to make educational progress, and it also addresses some common legal disputes between parents and school districts on the subject of obtaining evaluations and exploring appropriate placement options.  See if you recognize any of this pattern in your current cases:

Diagnosed in 2nd grade with juvenile onset bi-polar disorder, the student began receiving special education services but was still hospitalized for psychiatric care.  More services were added to the IEP and a therapeutic day program was recommended.  The student was placed at Northwest Village School at Wheeler Clinic, where his behavior improved, but his mother and doctors were concerned that use of closed-door seclusion could be harmful to his condition. He did not make progress on his goals and objectives, but a neuropsychological evaluation supplied by the parent concluded that he had the potential to make significant academic progress. The following school year, he initially made a positive adjustment, but then his behavior deteriorated and he was sent to the emergency room and provided with homebound instruction while his parent explored other placement options.  The district recommended placement at Intensive Education Academy (IEA), and for five months, the student attended there on a shortened day schedule, leaving each day at 11:00 a.m.  Efforts to return him to a full day schedule were unsuccessful, and he was ultimately discharged from the school after striking two staff members and being suspended.  At the last PPT meeting prior to the due process hearing, the school district recommended High Road School and the parent requested residential placement at Chamberlain, supported by the student’s treating psychiatrist and other experts.  The student then proceeded to make educational progress (by report of the school) at Chamberlain, attending classes regularly and not requiring seclusion, restraint or hospitalization during residential treatment.

Aside from a somewhat familiar fact scenario, the decision contains some interesting legal discussions.  For example, the school district at one point requested a psychiatric evaluation of the student by its consulting psychiatrist, but the parent refused to consent unless the district provided more detailed information about the type of evaluation that would be conducted and what information was being sought.  The hearing officer and the court both rejected the district’s position that it was entitled to evaluate the student and that the parent had unfairly blocked necessary evaluations, finding that the district’s failure to provide “exactly what medical or behavioral conditions it sought to discover” and “the methods of evaluation that would be used” failed to allow the parent to provide informed consent to the requested evaluations.  The court went on to say that, while the district has a right to expect consent to conduct initial evaluations and triennial re-evaluations, the district does not have a right to “insist on an ad hoc reevaluation”, and since the hearing officer determined that the student did not need to be re-evaluated, this conclusion would not be overturned by the court.

Additionally, the district stated (according to the decision) that it would not consider the evaluation reports provided by the student’s treating psychiatrist and other professionals because the evaluations did not meet the district’s IEE criteria, which require classroom observation and consultation with school district staff.  However, the hearing officer and the district court judge found that the failure to consider the parent’s evaluations was a procedural violation, because the evaluations in question were not district-funded IEE’s, but instead were evaluations obtained at parental expense and presented for consideration by the PPT.  As such, those evaluations did not have to comply with the district’s IEE criteria.

The court went on to say, however, that it need not reach the issue of whether these two procedural violations resulted in a denial of FAPE to the student, because the IEP was not reasonably calculated to provide educational benefit to the student and therefore, he was denied FAPE in any event.

On the issue of denial of FAPE, the district argued that the hearing officer had overstepped her authority by considering the student’s actual progress under each IEP that was offered, rather than whether the IEP was “reasonably calculated” to provide FAPE at the time it was generated.  The court agreed that the Second Circuit Court of Appeals has not yet issued a definitive ruling on the subject of whether this type of “retrospective evidence” may be considered by the court in these cases.  Despite this lack of controlling precedent, the judge nonetheless decided that retrospective evidence “must be appropriately discounted to avoid hindsight bias” but “is relevant and may therefore be evaluated: a failed plan is more consistent with an unreasonably calculated IEP than a reasonably calculated one.”  So, in the District of Connecticut, at this point, it appears that whether a student actually makes progress or regresses while being educated under the IEP developed by the district will be considered when determining whether the IEP was reasonably calculated to offer a FAPE.

Lastly, the district attempted to argue that the parent’s involvement in the educational decision-making process should lead to the conclusion that the district could not be held responsible for denial of FAPE when it was only doing that which the parent asked.  While agreeing that the parent could not “ask a school district to accede to her wishes and then try to punish it for doing so”, the court found that parental involvement only defeats a claim by the parent that their procedural safeguards were violated, and does not excuse the district from providing a substantive FAPE to the student.

The broad range of legal issues decided in this case by the U.S. District Court may yet be reviewed by the Second Circuit Court of Appeals.  Meanwhile, using this case as a guide, districts will do well to make evaluation requests thoughtfully, provide information to parents about what information is sought in the evaluations and types of assessments that will be performed, consider the impact of private evaluation reports whether or not they comply with the district’s IEE criteria, and recall that failure to progress educationally in a therapeutic day placement may indicate a need for residential placement through the IEP.