Greenland School District v. N. CV-02-136-JD 03/18/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Greenland School District
v. Civil No. 02-136-JD Opinion NO. 2003 DNH 043 Amv and Robert N., as next friends of Katie C.
O R D E R
Greenland School District seeks judicial review under the
Individuals with Disabilities Education Act ("IDEA"), 20
U.S.C. § 1415(i)(2), of the decision of the New Hampshire
Department of Education issued by a hearing officer on
February 20, 2002. Amy and Robert N. are the parents of Katie
C., a learning disabled child. The hearing officer concluded
that Greenland School District should have found Katie to be
eligible for special education services during the 1999-2000
school year and ordered the District to reimburse her parents
for the tuition they paid for Katie's private school during
the school year of 2001-2002 and the spring semester of 2001.
The District appeals that decision. Background
Katie C. was born on March 5, 1990, and lives with her
family in Greenland, New Hampshire. She attended grades one
through four at Greenland Central School. While there, she
was taught in regular classrooms by regular education
teachers. She was never held back in a grade, and she
received passing grades in all subjects. No one at the school
ever referred Katie to be evaluated for special education, and
her parents did not request evaluation while she was enrolled
at the Greenland Central School.
Katie's mother is a special education teacher at
Portsmouth High School, which is in the same school district
as Greenland Central School. She has served as the liason
between Greenland's middle school and Portsmouth High School
for the transition of special education students. She has a
professional relationship with Michelle Langa, the assistant
superintendent for the supervisory administrative unit serving
Greenland, and the special education staff.
In first grade, Katie had difficulty at times maintaining
focus. Her first grade teacher used "classroom interventions"
to help Katie and discussed her "distractibility" with her
parents. Jt. St. of Facts at 9. On her report card, her
teacher noted that Katie usually performed well but had a hard
2 time finishing her own work. Between first and second grade,
Katie's parents had her evaluated by a psychologist. Dr.
Dawson, who diagnosed Attention Deficit Hyperactivity Disorder
("ADHD"). Dr. Dawson recommended environmental modifications
for instruction, behavior management strategies, and
medication. Katie's pediatrician prescribed Ritalin and
substituted Adderall in April of 1998.
In second grade, Katie was grouped with students having
better reading skills but needed extra support in math. She
exhibited some organizational issues and had difficulty
staying on task. Her teacher used behavior modification
techniques which she routinely used with her students in the
classroom. Katie received passing grades in all subjects. At
the end of second grade, in June of 1998, Katie took the
California Achievement Test. Her scores were in the average
to above average range except language mechanics where she
ranked at grade 9.7.
Katie's third grade teacher also used intervention
techniques to help Katie stay on task. For example, she used
Garfield stickers as an incentive. Katie's grades were above
average. She achieved a "basic" score on a standardized test
for third graders. Her teacher noted that Katie could perform
very well when she focused on her work. Her teacher also
3 noted that Katie's only behavior issues occurred when her
father picked her up at the end of the day.
In fourth grade, Katie's teacher moved her desk to the
front of the classroom to offset her distractibility. She had
difficulty completing her work, following instructions, and
keeping on task. Without the help of her parents and an out-
of-school tutor, Katie would not have been able to complete
her work. Her teacher had students work in pairs to learn to
work together. Katie did well with some partners and had
difficulty with others. Her teacher found that Katie was
hypersensitive and would personalize things that happened in
the classroom. He also noted that she displayed negative
conduct toward her father at the end of the day. She earned
above average grades. She achieved average and above average
scores on the California Achievement Test at the end of the
year.
Before Katie entered fifth grade in 2000, her parents
removed her from the public school and enrolled her at Mont
Blanc Academy. The new school asked Katie's mother not to
help her with her homework. Katie received a failing grade in
math that fall. Thereafter, her mother resumed helping her
with homework, and Katie's grades rose to all As and Bs. Mont
Blanc asked Katie's parents to withdraw her from the school,
4 but no reason is provided in the parties' factual statement.
Katie was enrolled at Learning Skills Academy in March of
2001 to complete fifth grade. Learning Skills Academy is a
private special education school that serves children with
learning disabilities and ADHD. Katie is still a student at
Learning Skills Academy.
Also in March of 2001, Katie's mother, Mrs. N., asked
about having Dr. Secor, a neuropsychologist on contract with
the Greenland and Portsmouth schools, test Katie. A meeting
was scheduled to be held on April 6, 2001, about Mrs. N.'s
request for a referral. Three District special education
specialists, two representatives from Learning Skills Academy,
a learning disabilities teacher, and a program coordinator
attended the meeting. The team concluded that it lacked
sufficient information to determine whether Katie should be
coded as learning disabled. They recommended that Katie's
parents agree to have her evaluated. The team members and
Mrs. N. agreed on which evaluations should be done.
Katie's evaluations were done in April and May of 2001.
Dr. Secor administered fourteen tests and interviewed Katie.
The parties disagree as to the meaning of the results. In his
conclusion. Dr. Secor wrote that Katie is an intelligent young
girl whose performance is limited by weakness in "skills
5 associated with executive functioning." SD at 44. He also
wrote that Katie's deficits in functioning skills "profoundly
interact with the press of dsyphoric emotion she experiences
to color her affective world and influence her thinking
(especially when dealing with people)." Id. He found it
unsurprising that Katie had experienced teasing and had felt
harassed by other students in public school because of her
limited cognitive flexibility and vulnerability to emotion.
Dr. Secor concluded that Katie's "social fears and feelings of
vulnerability made her particularly susceptible to intense
feeling[s] of anxiety which interfere with her ideational and
behavioral control." SD 45. Katie also took a variety of
achievement tests administered by the Learning Skills Academy
and the District. She generally achieved average results on
the tests.
The District convened an evaluation team meeting on May
23, 2001, to review the results of the tests and assessments.
The consensus of the team was that although Katie had ADHD and
an anxiety disorder, which caused some functioning deficits,
her limitations did not adversely affect her academic
performance. The team ruled out a learning disability due to
the lack of discrepancy between Katie's test scores and her
performance. The school officials in the group concluded that
6 Katie did not require special education services. Katie's
mother did not sign the team summary which included the
determination that Katie did not qualify for special
education. The team offered to design a "504 plan" for Katie
"to address some organizational weaknesses and to offer
additional classroom strategies to assist Katie in improving
her organizational skills." Jt. St. of Facts at 25.
Mrs. N. told Michelle Langa, the Assistant
Superintendent, that she was going to pursue an independent
evaluation for Katie. On May 29, 2001, Mr. and Mrs. N. sent
Michelle Langa a letter informing her that they disagreed with
the District's decision that Katie was not eligible for
special education.
Dr. Ilene Spitzer, a physician specializing in
psychiatry, met Katie in May of 2001. On August 15, 2001, Dr.
Spitzer sent the District a letter in which she confirmed the
prior diagnosis of ADHD but also added the diagnosis of
Asperger's Syndrome. Dr. Spitzer found that Katie has
"language based deficits that include deficits in social
pragmatics." Jt. St. Facts at 29. Dr. Spitzer also changed
Katie's medication. Assistant Superintendent Langa knew that
the diagnosis of Asperger's Syndrome was serious and advised
the Greenland Central School principal that the District would
7 need to have another evaluation meeting.
On September 12, 2001, the District held another meeting
of the evaluation team to reconsider Katie's eligibility for
special education in light of Dr. Spitzer's diagnosis. Dr.
Spitzer attended the meeting. Dr. Secor and Dr. Spitzer
strongly disagreed as to Katie's diagnosis. Although the team
did not believe that Katie was then showing any adverse
educational performance, they were concerned about the future
impact of Asperger's Syndrome. Assistant Superintendent Langa
agreed to code Katie for special education. The team decided
not to code Katie as "autistic," because of their concerns
about that label, and instead coded her as "other health
impaired," based on her diagnoses of ADHD, anxiety disorder,
and Asperger's Syndrome.
The meeting to develop an "individualized education
program" ("IEP") for Katie was held on November 2, 2001. The
District then had three additional team meetings before
finalizing an initial IEP for Katie on December 5, 2001. The
IEP was based on Katie returning to the Greenland schools.
Mrs. N. agreed with the goals and plans in the IEP except for
placement in the Greenland schools. She did not think that
Katie would feel safe in the Greenland schools because of her
reactions to past teasing and harassment, and wanted her to stay in the Learning Skills Academy. The Learning Skills
Academy has served students with Asperger's Syndrome in the
past but does not have special expertise in that area. Mrs.
N. believes that Katie is doing wonderfully at the Academy and
notes that her recent report card was her best, that Katie has
friends, and that she does not have the anxiety that she used
to ha v e .
In the meantime, Mr. and Mrs. N. filed a request for a
due process hearing on November 15, 2001. In their letter
requesting the hearing, Katie's parents stated that they
appreciated the school's efforts in working with them to draft
an IEP for Katie. They explained that they were seeking a due
process hearing to address reimbursement for Katie's tuition
at the Learning Skills Academy and that they were concerned
that the time allowed by law for a hearing would run out.
A prehearing conference was held by the hearing officer
on January 15, 2002. The District raised several grounds to
dismiss the parents' request for a due process hearing. The
hearing officer fixed the date of November 15, 2001, as the
last date of actions that would be considered at the hearing.
The parents expressed some disagreement with the District's
IEP and also stated that they were challenging the District's
failure to identify Katie as eligible for special education in
9 May of 2001. The District filed a second motion to dismiss on
January 16, the day after the prehearing conference. The
parents filed objections to the District's motions to dismiss.
The due process hearing was held on January 28, 29, and
31, 2002. During the course of the hearing, the following
witnesses testified: Katie's mother, Katie's teachers at
Greenland Central School and the principal, the special
education coordinator in Greenland, a District learning
disabilities teacher, two District special education teachers,
the assistant superintendent, the program coordinator at
Learning Skills Academy, a speech/language pathologist from
Massachusetts General Hospital, and a District speech/language
pathologist.
The hearing officer issued his decision on February 20,
2002. He denied the District's motions to dismiss. He
concluded that the District should have found that Katie was
eligible for special education services for the 1999-2000
school year and had sufficient information to code her in May
of 2001. The decision ordered the District to reimburse
Katie's parents for her tuition at the Learning Skills Academy
for the spring semester of 2001 and for the 2001-02 school
year. The District filed its complaint seeking judicial
review of the decision on March 25, 2002.
10 Discussion
A hearing officer's factual findings are reviewed under
an intermediate standard which " '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.'" Rafferty v. Cranston Pub. Sch. Comm.. 315
F.3d 21, 25 (1st Cir. 2002) (quoting Lenn v. Portland Sch.
Comm.. 998 F.2d 1083, 1086 (1st Cir. 1993)). In contrast, a
purely legal question is reviewed de novo. See Manchester
Sch. Dist. v. Crisman. 306 F.3d 1, 9 (1st Cir. 2002) . The
burden of proof rests with the party challenging the agency
decision, which is the District in this case. See Hampton
Sch. Dist. v. Dobrowolski. 976 F.2d 48, 54 (1st Cir. 1992) .
The District raises nine issues on appeal. The issues
are stated somewhat differently in the issue statement section
of the District's memorandum and in the individual headings in
the discussion section. In general terms, the District
contends that the hearing officer erred in finding that the
District violated the IDEA by failing to code Katie before
September of 2001, that the IEP developed by the District was
inadequate and could not be implemented by the District, and
in awarding the parents reimbursement for tuition and for the
independent evaluation. The District also contends that the
11 Hearing Officer erred in accepting jurisdiction to consider
the adequacy of the District's proposed IEP because of Katie's
placement in private school.
The IDEA "was enacted, in part, 'to assure that all
children with disabilities have available to them . . . a free
appropriate public education which emphasizes special
education and related services designed to meet their unique
needs.'" Cedar Rapids Cmtv. Sch. Dist. v. Garret F., 526 U.S.
66, 68 (1999) (quoting 20 U.S.C. § 1400(d) (1)(A) (formerly §
1400(c))). Participating states, such as New Hampshire,
receive federal financial assistance for IDEA mandated
services. See i d .: see also Murphv v. Timberlane Rea'1 Sch.
Dist.. 22 F.3d 1186, 1188 at n.2 (1st Cir. 1994). New
Hampshire, therefore, "must assure all learning disabled
children the right to a "free appropriate public education,"
20 U.S.C. § 1400(d)(1) (A), by providing "access to specialized
instruction and related services . . . individually designed
to provide educational benefit to the handicapped child,' B d .
of Educ. v. Rowlev. 458 U.S. 176, 201 (1982).'" Rome Sch.
Comm. v . M r s . B .. 247 F.3d 29, 32 (1st Cir. 2001); see also
Irvina Indep. Sch. Dist. v. Tatro. 468 U.S. 883, 891 n.8
(1984) (construing predecessor to IDEA, Education of the
Handicapped A c t ) .
12 A. Effect of Katie's Enrollment in Private School
The IDEA imposes a "child find" obligation on each
participating state to implement policies and procedures to
identify, locate, and evaluate all children with disabilities
who are in need of special education and related services. 20
U.S.C. § 1412(a)(3); 34 C.F.R. § 300.125(a). The "child find"
obligation is not limited to children attending public
schools, but instead also extends to children attending
private schools. See i d . Once a child is identified with a
disability, however, the IDEA imposes different obligations on
the local school districts depending on whether the child is
enrolled in public or private school. See Gary & Silvie S. v.
Manchester Sch. Dist.. 2003 WL 134999, at *2 (D.N.H. Jan. 16,
2 0 03) (applying 20 U.S.C. § 1412(a) (10) (C)(1)). In addition,
the IDEA exhaustion requirements operate differently depending
on the circumstances of the child's enrollment in private
school. See 20 U.S.C. § 1415(b); 34 C.F.R. § 300.457; see
also Steward v. Hillsboro Sch. Dist.. 2001 WL 34047100, at *2
(D. Or. Mar. 1, 2001) .
When a child with a disability receives special education
and related services in a public school but the parents
dispute whether the school is providing a "free appropriate
13 public education" ("FAPE") and enroll the child in private
school, the district will not be required to pay the costs as
long as the district made FAPE available to the child. See 20
U.S.C. § 1412(a)(1); 34 C.F.R. § 300.403(a). Before parents
remove a child from public school when FAPE is at issue, they
must give proper notice to the school. See 20 U.S.C. §
1412(10) (C) (ill) . Complaints about whether the district made
FAPE available and about reimbursement for the costs of
private education are subject to due process procedures. 20
U.S.C. § 1415(f); 34 C.F.R. § 300.403(b) & (c).
A child who is enrolled in a private school by her
parents, when the child has not received special education and
when FAPE is not an issue in the public school, is still
subject to the "child find" requirements for identifying
children with disabilities. 20 U.S.C. § 1412(a)(10)(A)(ii);
34 C.F.R. § 300.451. Disputes about the identification of a
private school child as a child with a disability are subject
to due process procedures. 20 U.S.C. § 1415(f); 34 C.F.R. §
300.457(b). When a private school child is identified as a
child with a disability, the district must develop and
implement a "services plan." I d . at § 300.452; Gary S .. 2003
WL 134999, at *3 (citing N.H. Admin. Code Ed. 1117.03) . The
expenditures necessary to implement a services plan are
14 provided in 34 C.F.R. § 300.453. However, "[n]o private
school child with a disability has an individual right to
receive some or all of the special education and related
services that the child would receive if enrolled in a public
school." 34 C.F.R. § 300.454(a). Therefore, due process
procedures do not apply to complaints that a district has
failed to provide adequate services for a private school
child, which complaints must be addressed under the complaint
process provided by the state. 34 C.F.R. § 300.457(a); Gary
S .. 2003 WL 134999, at *2-3.
In this case, Katie was enrolled in private school, the
Mont Blanc Academy, before she was identified as a child with
a disability and before her parents raised any issue as to
FAPE. C f . Raffertv. 315 F.3d at 26 (discussing private school
placement of disabled child previously enrolled in public
school with IEP); James v. Upper Arlington Citv Sch. Dist..
228 F.3d 764, 766-69 (6th Cir. 2000) (discussing district's
obligation to prepare IEP for private school child previously
enrolled in public school with IEP); Amann v. Stow Sch. Svs.,
982 F.2d 644, 651-52 (1st Cir. 1992) (same). Therefore, FAPE
was not at issue when Katie left public school. Katie's
parents did not give notice to the District that they were
enrolling her in private school. In fact, Katie's parents
15 were not seeking special education services when they enrolled
Katie at Mont Blanc Academy. Katie's mother only requested
that Katie be evaluated after she was enrolled in private
school, and then only after her experience at Mont Blanc
Academy was unsuccessful.
While she was enrolled in private school, Katie was
subject to the "child find" process. Once she was identified
as disabled, however, she was not entitled to the same
services that she would have been had she been enrolled in
public school. As a result, her parents' complaints relating
to the services to be provided by the District should have
been brought through the state complaint process, not through
the due process procedure. The IDEA requires an aggrieved
party to exhaust administrative remedies under the procedures
provided. 20 U.S.C. § 1415(1); Frazier v. Fairhaven Sch.
Com.. 276 F.3d 52, 59 (1st Cir. 2002). The hearing officer
erred in considering Katie's parents' complaint about the
adequacy of the services the District proposed for Katie in
the IEP and their request that the District reimburse them for
the costs of her private school tuition.1 See Gary S .. 2003
1The District raises an issue as to whether the parents had standing to bring their claims to a due process hearing. It appears that they did not as to the claim challenging the sufficiency of the services the District proposed, and that
16 WL 134999, at *3. The Hearing Officer also erred in using the
standard applicable to a child in public school as to the
parents' complaints.2 Therefore, that part of the decision
that found the District's proposed IEP was inadequate and that
required the District to reimburse Katie's parents for the
cost of private school for the spring semester of 2001 and for
the school year of 2001-2002 is vacated.
B. Identification and Coding - "Child Find"3
The hearing officer held that the District should have
they failed to use the proper administrative procedure to address that claim. Although the IDEA imposes an exhaustion requirement that implicates this court's subject matter jurisdiction, exceptions also exist to the exhaustion requirement. See, e.g.. Tavlor v. V t . Dep't of Educ.. 313 F.3d 768, 789 (2d Cir. 2002); Weber v. Cranston Sch. Comm.. 212 F.3d 41, 49 (1st Cir. 2000) . Here, where the parents' claims were presented, considered, and decided in the administrative context, albeit the wrong forum, the parents are deemed to have exhausted their claims for purposes of judicial review.
2The Hearing Officer appears to fault the District's proposed IEP in part because the District had not hired an aide, who would be required to implement the IEP if Katie were to return to a District school. It would be unusual to require a District to hire personnel to provide services at a school for a child who is not enrolled there.
3Complaints that a school district has failed to comply with the requirements of "child find" are subject to the due process procedures. 34 C.F.R. § 300.457(b).
17 identified Katie as a child with a disability in fourth grade,
which was the school year of 1999 to 2000. Katie's parents,
however, only challenged the District's failure to code Katie
as of the May 23, 2001, decision on their referral request.
The Hearing Officer also found that the District had
sufficient information to code her at that time.
The IDEA defines a "child with a disability" as one:
(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance . . ., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.
20 U.S.C. § 1401(3)(A); see also 34 C.F.R. § 300.7. Included
within "other health impairments" is a condition of "having
limited . . . alertness, including a heightened alertness to
environmental stimuli, that results in limited alertness with
respect to the educational environment that (i) Is due to . .
. attention deficit disorder or attention deficit
hyperactivity disorder . . . and (ii) Adversely affects a
child's educational performance." 34 C.F.R. § 300.7(c)(9).
The New Hampshire Department of Education regulations
require a local school district to "contact representatives of
18 private school children within its jurisdiction to advise them
of the [district's] responsibility to identify and evaluate
all children who are suspected of or known to be children with
a disability and who are enrolled in such schools. . . ."
N.H. Code Admin. Rule Ed. 1103.02(c). The regulations also
permit anyone to refer a child under the age of twenty-two for
evaluation and list four possible, but not exclusive, reasons
for referral. I d . Ed. 1103.02(b). Once a child is referred,
the school district must conduct the evaluation and
determination under the standards provided by state and
federal regulations. I d . Ed. 1107.01-03.
Although Katie C. was diagnosed with ADHD, a condition
included within § 1401(3) (A) as constituting an "other health
impairment," after first grade, she was not referred for
evaluation until the spring of her fifth grade year, April of
2001. After considering the results of the evaluation and
Katie's average and above average performance in her class
work and on standardized tests, the IEP team concluded that
Katie did not need special education because her educational
performance was not adversely affected by ADHD.
Neither the IDEA nor federal regulations define
"adversely affects a child's educational performance" within
the meaning of § 300.7. C f . J.D. ex rel. J.D. v. Pawlet Sch.
19 Dist. , 224 F.3d 60, 66-68 (2d Cir. 2000) (discussing
definition under Vermont Department of Education Rules).
Despite the District's argument to the contrary, the New
Hampshire Department of Education Regulations do not define
the term.4 The federal regulations, incorporated by the New
Hampshire Department of Education, require that a disability
determination be made based on "information from a variety of
sources, including aptitude and achievement tests, parent
input, teacher recommendations, physical condition, social or
cultural background, and adaptive behavior," suggesting that
grades and test results alone are not the proper measure of a
child's educational performance. 34 C.F.R. § 300.535(a)(1);
N.H. Code. Admin. R. Ed. 1107.01. Courts, including this
court, have interpreted the adverse effect requirement to be
satisfied if the child's educational performance would have
4N.H. Admin. Rule Ed. 1107.02(c), cited by the District, provides as part of the process for providing a "free and appropriate education" under the IDEA that after a child is referred for evaluation, the IEP team must determine whether the concerns about the child can be "addressed utilizing pupil support services available to all children, whether additional information is required, and what testing, if any, is needed to address any unresolved concerns raised by the referral." The rule does not define "[a]dversely affects a child's educational performance" for purposes of 34 C.F.R. § 300.7 and does not appear to mean that if generally available services will meet a child's needs, the child will not be considered disabled under § 300.7.
20 been adversely affected but for specialized instruction that
the child was receiving. See, e.g.. Weixel v. Bd. of Educ..
287 F.3d 138, 150 (2d Cir. 2002); Yankton Sch. Dist. v.
Schramm. 93 F.3d 1369, 1375 (8th Cir. 1996); Kevin T. v.
Merrimack Valiev Sch. Dist.. Civil No. 96-485-B, at 25 (D.N.H.
M a r . 5, 1998).
Based on the Hearing Officer's findings, which are
supported by the record, Katie was able to perform at average
and above average educational levels because she was receiving
individualized and personalized instruction. While she was in
public school, her classroom teachers modified her environment
and her assignments based on the effects of ADHD on her
performance. Her mother provided individualized instruction
at home, and in fourth grade her parents provided a tutor for
Katie. When Katie's mother stopped providing special help in
math while Katie was enrolled at the Mont Blanc Academy during
the first semester of fifth grade, her math grade fell to
failing. During the second semester of fifth grade, Katie
received special education at the Learning Skills Academy.
Therefore, because Katie's educational performance would have
been adversely affected by ADHD but for the specialized
instruction she was receiving, she met the requirements to be
identified as a child with a disability by May 23, 2001.
21 The Hearing Officer's decision is affirmed to the extent
it found that Katie should have been identified as a child
with a disability on May 23, 2001. The remedy, however,
reimbursement for the cost of Katie's tuition at the Learning
Skills Academy, is not appropriate as is discussed above.
Since Katie's parents do not appear to seek any other form of
relief, none is considered.
Conclus ion
For the foregoing reasons, the decision of the New
Hampshire Department of Education is vacated as to the
adequacy of the proposed IEP and reimbursement of private
school expenses. The decision is affirmed as to the lack of
timeliness of the Greenland School District's identification
of Katie as a child with a disability under its "child find"
obligation, except for the remedy of reimbursement. Given the
nature of this decision, an award of attorneys' fees pursuant
to 20 U.S.C. § 1412(1) (3)(B) is not appropriate.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
22 March 19, 2003
cc: Jeanne M. Kincaid, Esquire Scott F. Johnson, Esquire