UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cynthia K.
v. Civil No. 19-cv-1129-JD Opinion No. 2020 DNH 092 Portsmouth School Department
O R D E R
This is a case brought under the Individuals with
Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400, et
seq. The plaintiff, Cynthia K., challenges the decision of a
New Hampshire Department of Education hearing officer that
Portsmouth School Department is not required to pay for an
independent educational evaluation (“IEE”) of her son, S.K.
Portsmouth School Department (“Department”) asks the court to
affirm the hearing officer’s decision.
Statutory Framework
The purpose of the IDEA includes “ensur[ing] that all
children with disabilities have available to them a free
appropriate public education [“FAPE”]” and “ensur[ing] that the
rights of children with disabilities and parents of such
children are protected.” 20 U.S.C. § 1400(d)(1)(A) & (B); J.S.
v. Westerly Sch. Dist., 910 F.3d 4, 7 (1st Cir. 2018). Under
the IDEA, school districts are required to find and evaluate children with disabilities who live in the school district and
who may require special education or related services. 20
U.S.C. § 1412(a)(3)(A). New Hampshire receives federal funds in
order to provide FAPE for its children, under the IDEA, and has
enacted policies and procedures for the required educational
services. Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 10 (1st
Cir. 2002).
Before special education and related services are provided,
however, a state or local educational agency must conduct “a
full and individual initial evaluation.” 20 U.S.C. §
1414(a)(1)(A). Once an initial evaluation is done, if the
parent disagrees, the parent may request that the school
district provide an IEE at public expense. 34 C.F.R. §
300.502(b)(1). In response, the school district may either pay
for an IEE or file a due process complaint to request a due
process hearing to show that the initial evaluation is
appropriate.1 § 300.502(b)(2). At a hearing under §
300.502(b)(2), the school district bears the burden to show that
1 A parent may file a due process complaint to challenge “the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.” 34 C.F.R. § 300.507; Collette v. District of Columbia, 2019 WL 3502927, at *2 (D.D.C. Aug. 1, 2019). Cynthia K. did not file a due process complaint to challenge the eligibility determination, and instead requested an IEE.
2 the initial evaluation is appropriate. Id. A party who
disagrees with the hearing officer’s decision may bring a civil
action in this court. 20 U.S.C. § 1415(i)(2).
Standard of Review
In an IDEA case seeking review of the decision of a hearing
officer, the court “shall receive the record 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.” 20 U.S.C. § 1415(i)(2)(C).
Despite that seemingly straightforward statutory provision, in
reviewing the administrative record and other evidence, the
court is instructed to apply a standard of “involved oversight,
a standard which falls somewhere between the highly deferential
clear error standard and the non-deferential de novo standard.”
South Kingston Sch. Comm. v. Joanna S., 773 F.3d 344, 349 (1st
Cir. 2014). To implement involved oversight, the court makes an
independent ruling, by a preponderance of the evidence, from the
administrative record and any other evidence introduced, but
that independent review must be “tempered by the requirement
that the court give due weight to the hearing officer’s
findings.” Johnson v. Boston Pub. Schs., 906 F.3d 182, 191 (1st
3 Cir. 2018). The party seeking review bears the burden of
showing that the hearing officer’s decision is wrong. Del
Rosario v. Nashoba Reg’l School District, 419 F. Supp. 3d 210,
220 (D. Mass. 2019).
Background
A. Factual Background2
In the fall of 2017, S.K. enrolled at New Franklin School
in the Portsmouth School Department as a kindergarten student.
After he enrolled, the Department received S.K.’s early
intervention records, records from when S.K. was referred for
special education at the age of three, medical treatment
records, and other treatment and evaluation records. Cynthia K.
made a written referral of S.K. for special education, but the
Department decided not to evaluate him at that time. The
Department did develop a “Section 504 Plan” for S.K. to address
feeding issues and impulsivity.3
2The background information is summarized from the parties’ joint statement of material facts. See doc. no. 10. Each party also filed a list of disputed facts, which have been reviewed and are referenced as necessary.
3Section 504 presumably refers to Section 504 of the Rehabilitation Act of 1973 that requires non-discriminatory access to public institutions, including schools. Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 24-25 (1st Cir. 2019).
4 During kindergarten, S.K.’s behavior caused his teacher to
request school intervention services. The Department’s Section
504 Team developed a Section 504 Plan to provide accommodations
for S.K.’s “dysphagia and h [sic] impulsivity.” Doc. no. 10 at
3. In December of 2017, S.K.’s kindergarten teacher requested
school intervention services because of S.K.’s frequent
disruptive and noncompliant behavior. The school developed an
action plan to address those issues and added counseling and a
behavior plan to S.K.’s Section 504 Plan. In April of 2018, the
Section 504 team added accommodations for S.K.’s impulsivity and
physical therapy to his Section 504 Plan.
S.K.’s behavior issues continued into first grade. The
special education coordinator at New Franklin School referred
S.K. for a “Functional Behavior Assessment” because of his
noncompliant and unsafe behavior. The assessment was done by
Dr. Jodi Deming between October 16 and November 6, 2018, and
resulted in a report with a recommended positive behavior plan.
The short-term objective was to reduce S.K’s daily noncompliance
level by 75% and his weekly unsafe behavior level by 90%. The
plan included programming to teach S.K. about ways to cope, to
communicate, and to change his behavior.
On November 14, 2018, Cynthia K. wrote to Principal Joanne
Simons to request a referral to special education for S.K. A
5 meeting was held on November 28, which was attended by a speech
language pathologist, Jaclyn Nutter; the “LEA [Local Educational
Agency] Rep,” Jeffery Martell; an occupational therapist, Jill
Vinciguerra; case manager Tracie Gebhardt; Cynthia K.; Principal
Simons; K-1 case manager, Alison Bedard; and first grade
teacher, Erin Lane. After discussion, that group, referred to
as the “IEP [Individual Education Plan] Team,” decided to add
paraprofessional support in S.K.’s classroom, include functional
behavior assessment recommendations, and to complete assessments
for special education.
The Department issued a “Written Prior Notice” on November
28, 2018, to evaluate S.K. for his eligibility for special
education. The Department proposed to evaluate S.K. in the
areas of academic performance, social and emotional status,
intelligence, motor ability, and classroom observation for
suspected disabilities in the categories of “other health
impaired” and “specific learning disability.” S.K.’s IEP Team
did not consider his eligibility for special education under the
category of “developmental delay.” Cynthia K. signed a consent
form for evaluating S.K. in the listed categories. Four
referral questions were posed for the evaluations: “What are
[S.K.’s] academic skills? What is [S.K.’s] learning profile?
6 What are [S.K.’s] fine motor skills? What are [S.K.’s]
social/emotional strengths, weaknesses?” Doc. no. 10, at *6.
S.K.’s Section 504 team met on January 11, 2019, to review
the Functional Behavioral Assessment and Recommended Behavior
Support Plan submitted in November of 2018.4 S.K’s Section 504
Plan was amended to include a classroom paraprofessional to
assist in addressing S.K.’s impulsivity issues. The Section 504
Plan was amended again to address S.K.’s anxiety issues.
On January 14, 2019, Tom Reynolds, a school psychologist
employed by the Department did a psychological evaluation of
S.K. Reynolds reviewed S.K.’s file for background information.
He administered standardized tests for measuring intelligence
and behavior. S.K.’s full scale IQ score was 97, which is
average. S.K.’s teacher gave scores on his behavior that were
in the at risk category. Another teacher who worked for the
Department tested S.K. to assess his academic performance and
found that S.K. was in the normal range. Testing for motor
skills showed that S.K. was in the average range, except for
fine motor skills that were adversely affected by S.K.’s
distractibility.
The parties do not explain whether the members of the IEP 4
Plan Team and the Section 504 Plan Team were the same. The court will refer to the teams as provided in the factual statement.
7 The Department held a meeting on January 22, 2019, to
review the assessments that had been done. The meeting reviewed
a “Written Prior Notice” that included background information
and the assessment results, and also referred to S.K.’s Section
504 Plan. The Eligibility Determination Form, completed on
January 22, 2019, stated that S.K. has attention deficit
hyperactivity disorder that adversely affects his educational
performance but concluded that he did not require special
education. The Department employees at the meeting signed the
form in agreement with its conclusion, and Cynthia K. signed but
disagreed with the conclusion.
An IEP meeting was held on March 5, 2019, to review the
decision made on January 22 that S.K. was not eligible for
special education. The group reviewed the record, including the
evaluation results. The Department representatives reported
that S.K. did not have cognitive impairment that impacted his
academic achievement and that S.K. was within the average range.
Cynthia K. said that she thought S.K. needed specially designed
instruction and relied on assessments done when S.K. was an
infant. The Department representatives stated that with the
accommodation of a paraprofessional, S.K. was “accessing” the
general school curriculum. As a result, they found that S.K.
was not eligible for special education under the categories of
8 other health impaired or specific learning disability. The
Eligibility Determination forms were signed by Department
representatives, agreeing that S.K. was not eligible for special
education, and Cynthia K. signed in disagreement.
On April 30, 2019, Cynthia K. requested an IEE at public
expense in the areas of cognitive functioning, academic skills,
physical therapy, and sensory processing. The Department denied
her request.
B. Procedural Background
On May 23, 2019, the Department filed a complaint seeking
an impartial due process hearing on whether Cynthia K. was
entitled to an IEE at public expense. The New Hampshire
Department of Education scheduled mediation, but that was
unsuccessful. A due process hearing was scheduled for July 22
and 23, 2019, and Amy B. Davison was appointed to serve as the
hearing officer.
A prehearing conference was held on June 25, 2019. The
hearing officer issued a prehearing conference report and order
on June 26, 2019. In its prehearing statement, the Department
asserted that Cynthia K.’s request for evaluations in the areas
of sensory processing and physical therapy did not pertain to
the suspected disability areas of other health impaired or
specific learning disability. The hearing officer issued a
9 prehearing conference report and order and identified the issue
for the hearing as “whether the District’s evaluations are
appropriate, and whether Parent is entitled to an IEE at public
expense.” Admin. Record at Part F.
The hearing was held as scheduled. The Department
submitted 151 requests for findings of fact and rulings of law.
Cynthia K. submitted sixty-four requests for findings and
rulings.
The hearing officer issued her due process decision on
August 2, 2019. She made 22 findings of fact and 7 legal
rulings. She did not individually address the parties’ requests
for findings and rulings, and instead stated that she reviewed
and considered the requests and that they were denied to the
extent they were inconsistent with her decision. She concluded
that the Department’s evaluation of S.K. was appropriate and
that Cynthia K. was not entitled to an IEE at public expense.
Cynthia K. filed the complaint in this court on October 30,
2019. The parties have filed factual statements, decision
memoranda, and responses.
Discussion
Cynthia K. asks the court to reverse the due process
decision and to find that she is entitled to an IEE at public
10 expense. In support, she contends that the hearing officer
erred as a matter of law by limiting her decision to the issue
of whether the Department’s evaluations of S.K. were
appropriate. She argues that the hearing officer was also
required to decide whether the determination that S.K. was not
eligible for special education was correct. She further
contends that the Department’s evaluations were not appropriate
for a variety of reasons, both substantive and procedural. The
Department contends that the due process decision should be
affirmed.
A. Scope of the Issue Presented for Due Process Hearing and for Judicial Review
Cynthia K. argues that the hearing officer erred as a
matter of law by limiting the scope of review to whether the
evaluations done by the Department were appropriate. The
hearing officer stated the following in her decision:
The criteria for determining whether the District’s evaluation is appropriate is whether assessments were administered in accordance with criteria set forth in applicable state and federal law, including whether qualified personnel and appropriate instruments were used, whether the student was assessed in all suspected areas of disability, and whether methodologies were adequate.
11 Hearing Decision at *4. In support, the hearing officer cited
“34 C.F.R. § 300.310-305.”5 Cynthia K. does not dispute the
standard the hearing officer articulated for her decision but
instead contends that the hearing officer erred as a matter of
law by not citing § 300.301 through § 300.311, which would
include regulations for the eligibility determination.
1. Evaluation Process
In essence, Cynthia K. argues that the hearing officer
should have reviewed the eligibility decision as part of the due
process hearing on whether the Department’s evaluations were
appropriate. She is mistaken.
“Evaluation means procedures used in accordance with
§§ 300.304 through 300.311 to determine whether a child has a
disability and the nature and extent of the special education
and related services that the child needs.” 34 C.F.R. § 300.15.
Sections 300.304 and 300.305 provide the required procedures for
conducting evaluations and reevaluations. L.D. v. Anne Arundel
County Public Schools, 2019 WL 6173818, at *4 (D. Md. Nov. 20,
2019); Parent on Behalf of Student v. Garvey School District,
2019 WL 6729763, at *9 (C.D. Cal. Aug. 27, 2019).
5 That citation appears to contain a typographical error and probably should have been 34 C.F.R. §§ 300.301 – 300.305. It is not clear why the hearing officer provided that range of applicable regulations.
12 Under the regulations that govern evaluations, the school
district is required to “[u]se a variety of assessment tools and
strategies to gather relevant functional, developmental, and
academic information about the child . . . that may assist in
determining [w]hether the child is a child with a disability
. . . and [t]he content of the child’s IEP.” 34 C.F.R.
§ 300.304(b)(1). The school district must also use “technically
sound instruments” for assessing “the relative contribution of
cognitive and behavioral factors.” § 300.304(b)(3). The school
district must not “use any single measure or assessment as the
sole criterion for determining whether a child is a child with a
disability and for determining an appropriate educational
program.” § 300.304(b)(2). Additional requirements for
conducting evaluations are provided in § 300.305.
The initial evaluation process is preliminary to and
different from the eligibility determination. See 34 C.F.R.
§ 300.306 (stating that “[u]pon completion of the administration
of assessments and other valuation measures,” the eligibility
determination will be made in accordance with the provided
process). The evaluation process includes the procedures,
assessment tools, and strategies that the Department used “to
gather relevant functional, developmental, and academic
information about the child” to assist in making the eligibility
determination. § 300.304(b)(1). A parent’s challenge to the
13 outcome of evaluations, rather than to the methodology used, is
inapposite in the context of review of a hearing officer’s
decision that a parent is not entitled to an IEE at public
expense. 6 E.P. By and Through J.P. v. Howard County Pub. Sch.
Sys., 2017 WL 3608180, at *35 (D. Md. Aug. 21, 2017).
2. Areas for Evaluation
Cynthia K. argues that the Department’s evaluations did not
constitute a “full evaluation” because the Department did not
evaluate S.K. for eligibility in the area of developmental
delay. She argues, as a generality, that every possible
category of disability must be evaluated, whether or not it is a
suspected disability. The applicable regulation provides,
however, that “[t]he child is assessed in all areas related to
the suspected disability, including, if appropriate, health,
6 Cynthia K. cites “D.S., by and through his Parents and next friends, M.S. and R.S., v. Trumball, 57 F. Supp. 3d 166, 167 (D. Conn. 2019),” in support of her theory that the hearing officer must consider the eligibility requirements and determination in a due process hearing for an IEE. The correct citation is 357 F. Supp. 3d 166. It is unclear what Cynthia K. was citing on page 167. Further, in that case, the court noted that the IDEA does not provide a free standing right to a publicly-funded IEE and instead that the right “must be premised on actual disagreement with an evaluation that the school district has conducted.” Id. at 176. The court held that the parents were not entitled to a publicly funded IEE for additional assessments that were beyond the scope of the district’s evaluation. Id. at 178. The case does not appear to support Cynthia K.’s position here.
14 vision, hearing, social and emotional status, general
intelligence, academic performance, communicative status, and
motor abilities.” 34 C.F.R. § 300.304(c)(4) (emphasis added);
Rose Tree Media Sch. Dist. V. M.J., 2019 WL 1062487, at *3 (E.D.
Pa. Mar. 6, 2019). Cynthia K. provides no contrary authority
and has not shown that a different rule applies, generally or in
this case.
More specific to the Department’s evaluation of S.K.,
Cynthia K. argues that S.K.’s record documented a developmental
delay in adaptive behavior. She further argues that, under 34
C.F.R. § 300.306(c)(1), the Department was obligated to
carefully consider that information and failed to do so when it
did not find a suspected disability due to developmental delay.
Section 300.306, however, is titled “Determination of
Eligibility” and subsection c is titled: “Procedures for
determining eligibility and educational need.” Subsection
(c)(1) states: “In interpreting evaluation data for the purpose
of determining if a child is a child with a disability under
§ 300.8, and the educational needs of the child, each public
agency must—(i) Ensure that information obtained from all of
these sources is documented and carefully considered.” As such,
the cited regulation does not support Cynthia K.’s argument.
The Department points out that the hearing officer
correctly found that S.K.’s team, which included Cynthia K.,
15 decided that he had suspected disabilities in the areas of
specific learning disability and other health impaired. They
did not suspect a disability due to developmental delay.
Cynthia K. did not request an evaluation for developmental
delay. Cynthia K. did not challenge the Department’s
evaluations for failing to address developmental delay and did
not request an IEE to address developmental delay. She has not
shown that the hearing officer’s decision is wrong because it
did not find the Department’s evaluations were inappropriate due
to lacking evaluations for developmental delay.7
3. Hearing and Decision
The due process hearing was held in response to the
Department’s complaint under § 300.502(b) on the issue of
whether the evaluations of S.K. were appropriate or whether
Cynthia K. was entitled to an IEE at public expense. Although,
as is noted above, there is a process available to challenge a
determination that a child is not eligible for special
education, Cynthia K. has not initiated that process. Cynthia
7 The Department also points out that Cynthia K., who is represented by counsel, failed to provide a response to the Department’s due process complaint as is required by 34 C.F.R. § 300.508(f). The complaint listed the two suspected areas of disability, and Cynthia K. is deemed to have found the complaint to be sufficient. § 300.508(d).
16 K.’s convoluted presentation of the statutory and regulatory
process is not persuasive.
The issue before the hearing officer was whether the
Department could show that its evaluations of S.K. were
appropriate. The different issue of whether S.K. was eligible
for special education was not before the hearing officer and is
not before this court. Therefore, Cynthia K. has not shown that
the hearing officer erred as a matter of law by focusing on the
issue presented to her: whether the Department’s evaluations in
the suspected disability areas of other health impaired and
specific learning disability were appropriate.
B. Evaluations
Cynthia K. asserts that the hearing officer’s decision is
wrong in a variety of ways, most of which pertain to the
Department’s eligibility determination, rather than to the
evaluation process.8 Because eligibility is not before the
court, those issues will not be addressed.
8 Cynthia K. also argues that the use of Section 504 Plan accommodations during Bedard’s testing was not appropriate and is an admission that S.K. is eligible for special education. She cites Reynolds’s hearing testimony but does not cite authority to show that those accommodations were improperly used during Bedard’s testing. Because that issue can be addressed in an IEE, it need not be resolved here.
17 One challenge to the evaluation process, however, has
merit. Cynthia K. argues, and the Department does not dispute,
that the Department was required to conduct a classroom
observation of S.K. “to document the child’s academic
performance and behavior in the areas of difficulty.” 34 C.F.R.
§ 300.310(a); see also § 300.305(a)(1)(ii) (requiring an IEP
Team to review classroom-based observations for purposes of an
initial evaluation). To that end, the group assessing whether
the child has a specific learning disability, see
§ 300.306(a)(1), may decide to use information from a classroom
observation that was done before the child was referred for an
evaluation or may have a member of the assessing group conduct
the classroom observation after referral and after obtaining
consent from the parent. § 300.310(b). Here, the group
obtained Cynthia K.’s permission for classroom observation after
the referral.
Cynthia K. contends that the hearing officer erred in
finding that the Department conducted classroom observations
that satisfied those regulatory requirements. Specifically,
Cynthia K. contends that Vinciguerra’s classroom observation was
for the purpose of evaluating S.K.’s fine and gross motor skills
and, therefore, did not address areas of academic performance
and behavior, as required by the regulations. She further
contends that no other classroom observations were conducted for
18 the regulatory purpose, although she gave permission for
classroom observation of S.K.’s “approach to academic tasks,
his/her ability to deal with distractions, interactions with
peers and other aspects of school behavior and performance.”
Doc. no. 10, at *6.
In response, the Department contends that evaluators and
“Team members” observed S.K. and cites the hearing officer’s
finding that there were classroom observations. The Department
notes the observations done by Vinciguerra, Reynolds, Bedard,
and Deming. The Department also states that Lane, S.K.’s
teacher, “had months of observing the student in the classroom
setting.” Doc. no. 16, at *12. The Department asserts that
although those observations were not recorded on the evaluation
summary document, that omission is of “no meaningful
consequence.” Id.
Vinciguerra, who is a licensed occupational therapist, did
conduct a classroom observation of S.K. but she assessed only
S.K.’s fine and gross motor skills. As such, Vinciguerra did
not evaluate S.K. in the required areas of academic performance
and behavior as part of her classroom observation. Bedard’s
observations and Reynolds’s observations were done during
individualized testing of S.K., not in the classroom setting.
Deming did a “Functional Behavior Assessment” of S.K.
because of his noncompliant and unsafe behavior. That
19 assessment was done, however, before Cynthia K. requested
special education for S.K. and before she consented to classroom
observation for that purpose. In addition, there is no
indication that Deming observed S.K. in the classroom to assess
his academic performance, which is required under § 300.310(a).
Further, after S.K.’s referral, the team chose to have classroom
observations done and obtained parental consent for that
purpose. § 300.310(b)(1). With respect to Lane’s observations
of S.K., as his classroom teacher, the requirement for
classroom-based observations for purposes of evaluation is
separate from observations by teachers. See
§ 300.305(a)(1)(ii); § 300.305(a)(1)(iii). As with Deming’s
assessment, there is no indication that the team decided to use
Lane’s observations to satisfy the requirement under
§ 300.310(a).
Although the hearing officer did find that that classroom
observations were conducted and that the team considered
information from classroom observations, she did not
specifically find who conducted classroom observations or what
was observed. The hearing officer’s finding could mean that
Vinciquera’s observations of S.K.’s motor skills were considered
and that Reynolds’s and Bedard’s observations during testing
were considered. While that is all true, those observations do
not satisfy § 300.310. Therefore, even with deference, the
20 hearing officer’s finding is insufficient to support a
conclusion that the Department’s evaluation of S.K. for a
specific learning disability was appropriate.
As a result, Cynthia K. has shown that the Department’s
evaluation of S.K. for a specific learning disability was not
appropriate because it did not include the classroom
observations that are required under § 300.305(a) and § 300.310.
Conclusion
For the foregoing reasons, the hearing officer’s decision
is reversed.
Cynthia K. is entitled to an IEE at public expense for
specific learning disability that includes classroom
observations about S.K.’s academic performance and behavior
issues. The IEE may also address the use of Section 504
accommodations during testing and perform testing without
accommodations if necessary.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge
June 2, 2020
cc: Counsel of Record.