MEMORANDUM OF DECISION
Plaintiffs A.S. and W.S. are minor children living in Trumbull, Connecticut. They bring this lawsuit individually and through their parents and next friends, Mr. and Mrs. W.S., who are referred to collectively as the “Parents.” A.S. and W.S. allege that Defendant Trumbull Board of Education (“the Board”) denied each of them a free and appropriate public education by refusing to fund the cost of placing the children in a private school for the 2003-2004 school year. Plaintiffs also claim that the Board has breached the terms of a 2002 settlement agreement. Plaintiffs have sought to supplement the record with the children’s educational and medical records for the 2004-2005 school year [doc. # 45], and also have moved for judgment on three counts of their complaint [doc. # 49] and for summary judgment on the other two counts [doc. # 52]. The Board has moved for judgment on the administrative record on the first four counts and for summary judgment with respect to the breach-of-contract claim [doc. # 65], For the reasons that follow, Plaintiffs’ motions [docs. ##45, 49, & 52] are DENIED, and the Board’s motion [doc. # 65] is GRANTED.
I.
The Court will address the facts relating to A.S. and W.S. separately. For clarity’s sake, the following factual summary cites primarily to the administrative Hearing Officer’s decisions, which in turn cite to documents from the administrative record. The Court’s citation convention should not be taken as an indication that the Court has ignored the exhibits Plaintiffs have filed in support of their summary judgment motion or the underlying administrative record. See Index to Exhibits in Support of Plaintiffs’ Motion for Summary Judgment [doc. # 55] (attached exhibits); Plaintiffs [sic] Notice of Filing Administrative Record of Due Process Hearing [doc. # 57] (attached documents). To the contrary, the Court has thoroughly reviewed and considered the administrative record and the parties’ exhibits.
A. A.S.
A.S. was born in April 1992. Complaint [doc. # 1] App. A at 4 [hereinafter “A.S. Decision”]. Educational evaluations performed on A.S. in September and October 1999 showed average or slightly below-average performance.
Id.
at 4-5. At a Planning and Placement Team (“PPT”) meeting in November 1999, A.S. was deemed ineligible for special education, but the PPT decided to continue to monitor her progress.
Id.
at 5. Testing performed in October 2000 indicated below-average performance, and in a PPT meeting held in November 2000, A.S. was identified as having a learning disability.
Id.
The PPT also noted that A.S. suffered from seasonal allergies and periodic asthma.
Id.
at 6. The Individualized Education Program (“IEP”) adopted for A.S. at the PPT meeting detailed A.S.’s strengths and weaknesses, outlined educational goals, and prescribed steps to further her progress. In January and June 2001, additional PPT meetings
A.S. has a history of allergies and asthma. Tashua Elementary School, which A.S. was then attending, first received notice of her allergies in March 1998. A.S.’s Individualized Health Care Plan noted her medical history and provided for the administration of emergency medication when necessary. However, health assessment forms provided by the Parents to Tashua Elementary School in March 1997 and April 2000 indicated no concerns about allergies, and neither allergies nor asthma was mentioned in physician medical evaluations given to the school in April 1997 and April 2000. A.S.’s parents provided medications to the school for use in emergency situations, but those medications remained unused through the end of the 1999-2000 school year. Id. In consultation with her Pediatric Allergist, Dr. John Santilli, A.S. began receiving allergy injections and other medications beginning in the spring of 2001 to control her allergic symptoms. These medications may have affected her academic performance. Id. at 8.
A.S.’s Parents raised with school administrators concerns about the indoor air quality of Tashua Elementary School, and in March 2001 the Board hired AMC Technologies (“AMC”) to test the school for allergens. AMC inspected several areas of the school building, conducting air and carpet dust sampling. In April, AMC submitted a written report to the Board recommending that the Board repair any roof leaks, clean or remove the carpet, clean or replace all air filters, improve air circulation, and further investigate the gym area. The report also identified several types of fungal spores that AMC had found. AMC conducted follow-up sampling in May 2001, focusing on certain mold species, and submitted a written report in June that recommended remediation measures for the school, such as replacing air handling unit filters, keeping the area around the units clean, and regularly cleaning air ducts. Id.
Dr. Santilli, AS.’s allergist, sent Tashua Elementary School seven letters during the 2001-2002 school year maintaining that the school’s facilities were causing A.S. to suffer from allergic reactions. The letters recommended that A.S. be given home-bound instruction. Based upon Dr. Santilli’s advice, the Parents removed A.S. from school in September 2001 and home schooled her for most of the 2001-2002 school year. Id.
On September 19, 2001, A.S.’s father filed a complaint with the United States Department of Education’s Office of Civil Rights, alleging that A.S. had been discriminated against because of her allergic sensitivities. A.S. Ex. B-38. The complaint asserted that Tashua Elementary School had refused to test environmental air quality or to follow through on necessary remediation measures. The complaint also alleged that A.S. was denied access to a suitable physical education program, and to a computer lab and library that were safe for her to use. Id.
At a meeting held in October, 2001, the PPT developed a program for A.S.’s home study according to which A.S.’s special education and classroom teachers were to consult with A.S.’s tutor and to monitor her progress. A.S. Decision at 9. Another PPT meeting was held in November to discuss A.S.’s mother’s belief that A.S. needed more tutoring time. However, a resource teacher who had been involved in A.S.’s educational evaluations and curriculum development conducted a curriculum-based assessment and concluded that A.S. did not need additional tutoring time.
Id.
While the Parents expressed a preference for use of the Lindamood-Bell reading program in A.S.’s education, “the Resource Teacher stated that she wouldn’t want to
In consultation with the Office of Civil Rights, the Board hired an Industrial Hygienist, Gilbert Cormier, to inspect and make recommendations regarding the Tashua Elementary School. After inspecting the school building and testing indoor air quality, Mr. Cormier recommended several measures to reduce the levels of allergens at the school. Mr. Cormier stressed that no federal or state standards for allergens in schools existed and that allergen exposure could be minimized but not totally eliminated. Id. The Board sent a copy of Mr. Cormier’s extensive report to the Parents and held a public meeting for parents of all students enrolled in the school (which the Parents attended) to discuss Mr. Cormier’s findings and the school’s remediation efforts. Id. at 11-12.
In November and December, 2001, the Board began to implement the remediation steps suggested by Mr. Cormier. Among other measures, the Board destroyed old gym mats, removed dirty insulation, ripped up carpets, and removed a portion of a wall identified as problematic by Mr. Cormier. A.S. Ex. B-58 at 4-7. The Board also agreed to allow Dr. Santilli to conduct on-site testing at Tashua Elementary School. Id. at 5. Based on the Board’s willingness to permit this testing, as well as the Board’s remediation efforts and promise to implement all of Mr. Cormier’s recommendations, the Office of Civil Rights deemed the Parents’ complaint to be concluded, though the Office promised to “monitor implementation of the [School] District’s commitments.” Id. at 7.
In January 2002, another PPT meeting was held to discuss A.S.’s return to Tashua Elementary School. As a result, the PPT proposed that A.S. return to school for partial days, to which the Parents agreed. Dr. Santilli recommended that A.S. limit herself to areas of the school that had been found to have acceptably low mold-spore levels. A.S. Decision at 10. Test results reported by Dr. Santilli described A.S. as showing moderate allergic reactions to molds. The Parents tested air samples at Tashua Elementary School with equipment provided by their children’s allergist and found that two special education rooms, which had air purifiers, showed fewer than 1,000 spores per cubic meter. However, several other areas of the school had significantly higher mold counts according to the Parents’ testing. Id. at 11.
In early February, the Parents arranged for A.S. to be evaluated by an educational consultant, Shelley Lacey-Castelot. Ms. Lacey-Castelot diagnosed A.S.’s educational needs and provided goals and recommendations. Several of Ms. Laeey-Castelot’s recommendations matched those in AS.’s IEP; several additional recommendations related to A.S.’s language skills, including a need for assistive technology to help with reading and writing, as well as software recommendations. Id. at 12.
A.S. returned to Tashua Elementary School for partial days in February and March 2002, confining herself to limited areas in the school building that had been remediated. Id. at 8. Dr. Santilli wrote on February 19 that A.S. was doing well and could remain at school for thirty days, provided she stayed in the areas that had been shown to have low mold-spore counts. At a PPT meeting on February 25, the Parents and teachers agreed that A.S. was doing well. Id. at 12.
Nevertheless, A.S.’s allergic symptoms resumed less than two weeks after she was back at Tashua Elementary School.
Id.
at
At a March 13 2002, PPT meeting, the PPT asked for a psychiatric evaluation of A.S. and for a second medical opinion about her allergies. PPT members also questioned the content and conclusions of Ms. Lacey-Castelot’s evaluation and raised concerns about the fact that Ms. LaceyCastelot sells the software she recommends. The PPT recommended further educational testing for A.S. It also suggested that placing A.S. in another school within her school district would accommodate A.S.’s allergy issues. However, the Parents requested homebound instruction for A.S., and also asked that any placement of A.S. in another school not take place until the school had been tested for allergens. Id. at 13.
The PPT reconvened on March 15, during which it reviewed A.S.’s educational goals. A.S. was reported to be making progress on all her objectives, though completing assignments within allotted times had proven to be a recurring issue. The PPT refused to accept the Parent’s request for homebound instruction or to conduct allergen testing before A.S. enrolled in a different school. However, the PPT did propose that A.S. receive the following options: (1) partial-day instruction in those rooms shown to have relatively few allergens; (2) full-day instruction in those rooms, or (3) full-day instruction with access to the whole building. The PPT again requested a second medical opinion about AS.’s allergies. A.S. did not receive educational services for several weeks. Id.
The Board’s Reading Consultant, who had participated in several of A.S.’s PPT meetings, provided reading services to A.S. and consulted with other staff members about her reading needs. Following periodic evaluations, the Reading Consultant reported that while A.S. struggled with reading, she generally tested within the average range. Id. at 14. The Board also had an Occupational Therapist evaluate A.S. The Occupational Therapist reported that A.S. scored within the average range on a variety of fine motor tests, but below average on a timed test of upper limb speed and dexterity. A.S. Ex. B-71. The Occupational Therapist recommended steps to improve her fine motor, visual motor, and sensory processing skills. Id. at 5. On six occasions during the fall of 2002, the Occupational Therapist provided additional occupational therapy services to A.S. A.S. Decision at 14.
The Parents arranged for another pediatric allergist to evaluate A.S. in March 2002. The allergist did not conduct skin testing, and his conclusions were based on a medical history and on records provided by the Parents. On March 26, the allergist recommended that A.S. not return to Tashua Elementary School until a full mold remediation had been completed.
Id.
The Board then requested an independent medical evaluation, to which A.S.’s Parents agreed. The evaluator, Dr. Thomas Danyliw, was Medical Director of Occupational Medicine at Middlesex Hospital. Dr. Danyliw is board certified in occupational and environmental medicine, a specialty that concerns itself with the work environment and with medical issues as they relate to the environment of workers and others.
Id.
at 15. Dr. Danyliw has experience with the health issues that arise from exposure to mold and bacteria in
Dr. Danyliw’s report noted that “[n]o one can accurately answer the question as to what quantity of a substance will trigger an allergic or irritant reaction in any given subject____ Based on the testing that has been done at [Tashua Elementary School], it is my opinion that molds exist in a sufficient quantity to produce mycotoxins that in a sensitive individual could result in a reaction that appears to be allergic or irritant.” Id. However, he also added, that he was “unaware of any credible evidence or opinion that would indicate exposures to molds that are in Tashua Elementary would result in learning difficulties or concentration problems.” A.S. Ex. B-77 at 4. Dr. Danyliw observed that he had no recommendations for remediation beyond those suggested by AMC and Mr. Cormier. Dr. Danyliw concluded his report by noting that “it would be ill advised to allow [A.S.] back into [Tashua Elementary] until remediation is complete and spore counts have dropped on average below 1,000 spores per cubic meter,” A.S. Decision at 16, though he emphasized that he was unaware that any “agreement on an objective measure of ‘safe’ levels of mold” existed, id. at 17. Dr. Danyliw also noted that there was “no legitimate reason” that A.S. could not attend a different public elementary school “as long as the mold counts are within acceptable levels.” Id. at 16. Finally, Dr. Danyliw questioned whether it was appropriate for a physician without formal training to conduct indoor air quality testing, and he recommended that air testing be performed by a certified industrial hygienist. Id. at 17.
The PPT again convened on June 7 to review A.S.’s test results and to revise her IEP. Id. A.S.’s overall results were found to be within an average range, but she displayed weakness in certain language skills. Id. at 18. A.S.’s report card for the 2001-2002 school year showed grades almost exclusively in the A/B range. Id. at 13-14. The PPT revised A.S.’s IEP to provide for additional language training and offered an extended-year home-schooling program. The Parents again requested that Tashua Elementary School be retested before A.S. would enroll in it, but the PPT again refused. Id. at 18.
The Board also hired a technology consultant who evaluated A.S. on June 12. The consultant recommended that A.S. be given access to a computer at school and at home, as well as three specific software programs — CoWriter 4000, IntelliTalk Two, and Inspiration. The consultant made an optional recommendation for a fourth program, Kurzweil 3000. The consultant noted that her philosophy was to provide technological support to students in a manner that would interfere as little as possible with the students’ ability to participate in regular classes. She recommended against voice-recognition software, which she believes isolates students. Id. at 18.
In August, the PPT convened to review test results and air quality at Tashua Elementary School and to plan for A.S.’s 2002-2003 school year.
Id.
Tashua Elementary had undergone what the Board believed was substantial remediation, including the installation of air conditioners in many rooms and the removal of carpets. As a result, the Board believed that mold problems had been eliminated, and the
The IEP presented at the meeting by the PPT also included several hours per week of tutoring and speech and language therapy for A.S. The use of educational software would be worked into regular education classes, and accommodations would be made for A.S.’s test-preparation and test-taking needs. A.S. was also to be given preferential seating and modified grades. In addition to the remediation measures already conducted, the Board also agreed to perform air-quality testing at Tashua Elementary School when necessary. Id.
Nevertheless, due to their continued concerns about the air quality at Tashua Elementary School, the Parents withdrew A.S. from the school and enrolled her for the 2002-2003 school year at Villa Maria, a private school approved for special education by the Connecticut State Department of Education. Id. at 18. The Parents said that they tested the indoor air quality at Villa Maria using equipment provided by Dr. Santilli but, despite requests from the Board, the Parents never provided the Board with any results from their testing at Villa Maria. Id. at 19. The Parents requested a due process hearing to discuss A.S.’s placement, and ultimately they reached an agreement with the Board on October 17 (the “settlement agreement”).
The settlement agreement provided, among other things, that the Board would contribute $50,000 toward the tuition of both A.S. and W.S. (who had also been enrolled at Villa Maria); that the Board would pay $5,000 to the Parents for “miscellaneous educational expenses”; and that the Board would provide transportation to and from Villa Maria for both A.S. and W.S. Affidavit of Brenda McNeal [doc. # 69] Ex. 1 at 1-2. As is relevant to the present dispute, the settlement agreement also provided as follows:
The BOARD shall be responsible for the cost, up to the aggregate amount of Five Thousand Dollars ($5,000.00) of any assistive technology required for the exclusive use of the STUDENTS while at the Private School (“the Assistive Technology Payment”), so long as the Private School renders an opinion in writing that such assistive technology is required in order to provide the STUDENTS with an appropriate education and the Private School does not have available such assistive technology or its functional equivalent. The Assistive Technology Payment shall be made directly to the Private School upon receipt of documentation in form and substance acceptable to the BOARD of both the need for and cost of such equipment and/or materials. Upon the earlier of the conclusion of the 2002-2003 school year or such time as either of the STUDENTS is no longer attending the Private School, the Private School shall return any and all assistive technology and materials purchased pursuant to this provision to the BOARD.
Id. Ex. 1, at 2. In the settlement agreement, the Board denied that AS.’s educational needs necessitated out-of-district placement. Id. Ex. 1 at 1.
On June 20, 2003, after the close of the school year, Villa Maria sent a letter to the Board stating that “[s]hortly after [A.S.’s and W.S.’s] admission it became apparent that, in order to provide them with an appropriate education, we would need to provide supportive assistive technology.” Affidavit of Brenda McNeal [doc. # 69] Ex. 3. The letter listed the software and hardware that had been purchased by Villa Maria, as well as the hours of training required, and explained that A.S. and W.S. had used the assistive technology “primarily at home.” Id. Villa Maria’s letter explained in general terms the need for the software programs the children had used and maintained that the programs were necessary to assure the achievement of their educational goals. The letter also stated that of the software programs used by the children, Villa Maria was then in possession of only one program. The letter requested reimbursement of $5,000 and included a copy of the invoices from a company named Innovative Solutions Group, LLC. The invoices listed a bill for $5,001.95 for the programs purchased and a bill for $6,750.00 in training costs. Id.
On July 9, the Board wrote to Villa Maria denying its request for reimbursement. The Board’s letter expressed disappointment that Villa Maria had contacted the Board after the close of the 2002-2003 school year, rather than before the computer programs had been purchased. The letter also stressed that the assistive technology was intended to be used to provide an appropriate education at Villa Maria, whereas Villa Maria’s June 20 letter made clear that the technology was being used exclusively at the children’s home, demonstrating “that these computer programs were not necessary to enable the children to receive an appropriate education in the school setting.” Affidavit of Brenda McNeal [doc. # 69] Ex. 4. The Board’s letter also noted that the invoices submitted in the June 20 letter included substantial costs related to software and hardware training, whereas “[i]t was never part of any agreement that the Trumbull Board of Education be responsible for paying the cost of any ‘training,’ regardless of the location.” Id. Despite these observations, the Board expressed its willingness to consider reimbursing Villa Maria for the costs of the assistive technology purchases, provided that Villa Maria return the software and hardware, their licenses, and all accompanying materials to the Board, so they could be used by the Board for its educational programs. Id.
On March 18, 2005, the Board wrote to Plaintiffs’ attorney indicating its willingness to pay the $5,000 contemplated in the settlement agreement if the assistive technology — which was in the Parents’ possession — would be turned over to the Board. Affidavit of Brenda McNeal [doc. # 69] Ex. 5. The Board sent the attorney a $5,000 check payable to Villa Maria and directed him to hold the check in escrow until the Parents delivered the assistive technology to the Board. However, Plaintiffs’ attorney returned the check to the Board. Affidavit of Brenda McNeal [doc. # 69] ¶¶ 12-13 & Ex. 6. As of the date of the oral argument before this Court on September 8, 2005, the Parents still had not delivered to the Board any software or hardware. At the argument, the Board’s attorney expressed her client’s continued willingness to pay $5,000 toward the soft
On May 29, 2003, the PPT met to discuss A.S.’s placement for the 2003-2004 school year and recommended that A.S. attend Madison Middle School. A.S. Decision at 19. The parties dispute exactly what occurred at this meeting. The PPT’s meeting notes indicate that after considering A.S.’s grades and test results from Villa Maria, an IEP was presented that the PPT believed accommodated A.S.’s educational needs. The Parents asked that any educational program for A.S. include small class sizes, utilization of assistive technology, and continued use of the Lindamood-Bell reading program. A.S.’s father requested information about the environmental air quality of Madison Middle School, which the Board agreed to forward to him. The PPT also offered a summer program at Villa Maria or summer tutorial at either a Trumbull Board of Education high school or the library. A.S. Ex. B-92 at 2; see also A.S. Decision at 19-21.
According to a letter dated May 29, 2003, from Plaintiffs’ attorney to the Board’s Director of Special Education, who had attended the PPT meeting, the meeting notes did not reflect A.S.’s father’s ultimate response to the proposed IEP for his daughter. According to the lawyer, about two hours after the meeting had begun, the Director of Special Education had excused the meeting reporter “based upon a belief that the PPT had been adjourned.” A.S. Ex. P-12. As a result, the minutes did not reflect the fact that A.S’s father had advised the PPT that he rejected the proposed IEP for A.S., believing it inappropriate for his daughter. According to the attorney’s letter, A.S.’s father’s belief was based on the Board’s refusal of his request for:
A small class size with a student teacher ratio of approximately 1:3;. At least two hours of instruction per day with the Lindamood-Bell programs. Continuation of the assistive technology, including software, utilized by April at home and/or at school, that would assist her in meeting IEP goals and objectives. Continuation of the current placement at Villa Marie [sic] for 2003-04 if these requests could not be met.
Id. The father had also expressed concerns about the environmental condition of Madison Middle School and had requested a copy of environmental testing reports on the school.
In a letter dated June 2, the Board denied that the meeting had adjourned before A.S.’s father had been given a chance to voice his concerns on the record, but the Board agreed that the position stated in the attorney’s letter represented A.S.’s father’s position. A.S. Ex. P-13. The PPT rejected the request for continued support for A.S. to remain at Villa Maria. Nevertheless, the Parents decided to enroll A.S. in Villa Maria for the 2003-2004 school year. A.S. Decision at 19-21.
By letter on August 7, 2003, the Parents requested a hearing regarding the appropriateness of the PPT’s IEP for A.S.
Id.
at 2. Mary H.B. Gelfman was appointed as Hearing Officer. At the request of the Parents, the Hearing Officer agreed to hear both A.S.’s case and W.S.’s case at the same time. Hearing sessions took place on sixteen different days between September 2003 and February 2004, during which Plaintiffs’ attorney presented and cross-examined numerous witnesses.
Id.
The hearings produced over 3200 pages of written transcript. In addition, the administrative record before the Hearing Of
1. Were the Individualized Education Program (IEP) and the placement offered by the Board at the May 29, 2003, Planning and Placement Team (PPT) meeting appropriate to Student’s special education needs in the least restrictive environment?
2. Is the placement offered Student by the Board reasonably safe, in terms of indoor air quality, for Student?
3. If not, is placement at Villa Maria for the school year 2003-2004 appropriate?
4. Is the Board responsible for funding Student’s placement at Villa Maria?
5. Is the Board responsible for reimbursement of assistive technology costs to the Parents during the 2002-2003 school year, per a prior settlement agreement, and for continuation of assistive technology services in 2003-2004? 1
6. Did Student require assistive technology in 2002-2003 and/or 2003-2004, in order to benefit from special education?
7. Must the Board produce additional information/documentation concerning Environmental Air Quality inspections?
8. Is Lindamood-Bell instruction, an educational methodology, necessary for Student?
9. Does a special education hearing officer have the authority to enforce a prior settlement agreement between the parties?
10. Has the Board offered Student a safe school environment, pursuant to
Section 504 of the 1973 Rehabilitation Act?
Id. at 1-2.
After receiving evidence, testimony, and briefing from the parties, the Hearing Officer issued a 28-page (single-spaced) Decision on April 8, 2004. In her Decision, the Hearing Officer concluded that the PPT’s proposed IEP for A.S., which provided for her to attend Madison Middle School for the 2003-2004 school year, was appropriate. According to the Hearing Officer, A.S. had made progress both in public school and at Villa Maria, and the proposed IEP incorporated information gathered from AS.’s teachers at Villa Maria, as well as from Ms. Lacey-Castelot. The Board’s speech and language pathologist, who participated in the May 29, 2003, PPT meeting, testified that she intended to incorporate into AS.’s reading curriculum the Lindamood-Bell reading program preferred by the Parents, as well as other techniques. “The PPT also demonstrated willingness to further accommodate [A.S.], if necessary, after her enrollment.”
Id.
at 23. The Hearing Officer noted that the Parents had asked for funding for the purchase of computer programs recommended by Mrs. Lacey-Castelot, and that the PPT had offered some, though not all, of these programs in its proposed IEP. According to the Hearing Officer, the Board’s technology consultant had advised that technology support “should be minimal unless a child requires more intrusive devices,” a philosophy the Hearing Officer found was confirmed by the Connecticut State Department of Education 1999 Guidelines for Assistive Technology.
2
Id.
The Hearing Officer also discussed the Parents’ concerns for A.S.’s health. The Executive Director of Villa Maria had testified that an aggressive cleaning regimen was employed at Villa Maria to provide students with an “aseptic environment.” Dr. Santilli, who also testified, had praised Madison Middle School, but questioned whether “water intrusion” during the summer of 2003 had possibly contaminated the building. Mr. Cormier testified that he had done a “walkthrough” inspection of one of Madison Middle School’s buildings, but that he did not conduct air sampling testing or generate any formal report. Pis.’ 56(a) Statement ¶ 49. However, neither party submitted any evidence of complaints about indoor air quality at Madison Middle School.
The Hearing Officer examined an indoor air quality status report, dated September 10, 2003, for Madison Middle School that had been prepared by the Board’s Plant Administrator and an Indoor Air Quality Specialist. That report identified possible areas of concern and described the Board’s ongoing remediation efforts at Madison Middle School. These efforts included installation of roof air conditioning units, regular changing of air filters, replacement of stained ceiling tiles and contaminated carpets, cleaning of unit ventilators, and investigation and remediation of staff complaints. Id. at 22.
While Dr. Santilli urged the adoption of a specific safety standard — 1,000 mold spores per cubic meter of air — the Hearing Officer observed that Dr. Danyliw and Mr. Cormier, “with both professional training in this area and significant experience,” noted that there was no consensus among regulators or professional organizations as to appropriate air-quality safety standards. Id. at 23-24. Instead of a spore-counting method, Dr. Danyliw and Mr. Cormier had recommended a more pragmatic approach in which potential sources of allergens, such as water leaks, were identified and remedied. According to the Hearing Officer, this pragmatic approach was supported by scientific articles regarding mold allergies. Based on test reports, testimony from Mr. Cormier, Dr. Santilli, and Dr. Danyliw, as well as several scientific articles provided by Dr. Santilli and Dr. Danyliw, the Hearing Officer concluded that A.S. “is, or is at risk of becoming, an extremely sensitive person.” A.S. Decision at 24. However, the Hearing Officer also concluded that “[t]he combination of thorough, systematic cleaning and maintenance, and monitoring of possible problem areas and complaints should provide a school environment in [Madison Middle School] as clean as that of Villa Maria.” Id. at 25.
Based on these conclusions, the Hearing Officer determined that the IEP proposed at the May 29, 2003, meeting was appropriate and that placement of A.S. at Madison Middle School, rather than at Villa Maria, accommodated A.S.’s “special education needs in the least restrictive environment, and appears to be reasonably safe, in terms of indoor air quality, for [A.S.].”
Id.
at 27. Because she found that placement at Madison Middle School was appropriate, the Hearing Officer concluded that the Board need not reimburse the Parents for the costs of educating A.S. at Villa Maria, nor need the Board fund the purchase of educational software for use there, “even if the use [were] confined to [A.S.]’s home.”
Id.
Finally, the Hearing Officer directed the PPT to convene within
B. W.S.
W.S. was born in March 1995. For his kindergarten year, 2000-2001, W.S. enrolled at Tashua Elementary School, the same school his sister attended. W.S. also had a history of allergies and asthma, and because of these health issues, his parents provided the school with emergency medications to be taken if necessary. Under the care of the family’s pediatric allergist, Dr. Santilli, W.S. received allergy injections starting in the spring of 2001, as well as various allergy medications, which may have affected his classroom performance. Complaint [doc. # 1] App. B at 4 [hereinafter “W.S. Decision”]. In February 2001, Dr. Santilli recommended that W.S. not participate in gym class as a result of an allergic aggravation W.S. had suffered during the class. In March 2001, describing W.S.’s allergies as “severe,” Dr. Santilli reported that W.S. suffered from hives and asthma at Tashua Elementary School. Accordingly, he recommended homebound instruction for W.S. The doctor made two similar requests in April 2001. Id. at 5.
At the beginning of the 2001-2002 school year, Dr. Santilli recommended that W.S. be excused from gym class for the entire year. He also suggested that the school install an air filter in W.S.’s classroom, remove carpeting and underlayment, and replace ceiling tiles affected by roof leakage. In early September 2001, a Section 504 plan — named after Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”) — was developed to accommodate W.S.’s health conditions because he had been found to qualify for accommodation under Section 504. The plan noted that W.S. was allergic to mold and peanuts, that W.S. sometimes experienced breathing problems, and that his medications might affect his ability to focus at and attend school. The plan also provided W.S. with early intervention support in reading. Id.
On September 9, the Parents complained to the Board that W.S. had been allowed into the gym for a school photo in violation of his Section 504 plan, which had identified the gym as a problem area. According to his Parents, after exposure to the gym, W.S. had complained of “heaviness when he inhales” and had “required the use of his inhaler.” W.S. Ex. B-22. Alleging that the Board had “withheld all information into [sic] present air quality and refuse[d] to provide a safe environment for [W.S.] to learn in,” W.S.’s father filed a complaint with the Office of Civil Rights. W.S. Ex. B-33 at 5.
Shortly thereafter, and acting on the recommendation of Dr. Santilli, who believed W.S.’s allergic symptoms were related to the Tashua Elementary School building, the Parents removed W.S. from school and began homebound instruction. W.S. Decision at 5. Between November 2001 and January 2002, W.S. underwent a series of educational and psychological evaluations. His skills were found to be within the average to low-average range. Id. at 5-6.
In January 2002, a PPT convened to discuss the results of the evaluations. The PPT determined that W.S. was eligible for special education services under the designation of Other Health Impaired (“OHI”). The PPT developed educational goals and a learning program that involved consultation between the Board’s resource teacher and W.S.’s tutor.
Id.
at 6. The PPT met again a week later to discuss the finding of Dr. Santilli that the school’s resource room showed an acceptably low mold spore count. The PPT developed an IEP that
The PPT confirmed W.S.’s IEP at another meeting in early February. Id. at 8. Also in early February, the Board hired Mr. Cormier to inspect Tashua Elementary School. As described above, Mr. Cormier reported his findings and recommendations to the Board, which convened a meeting with all parents to discuss the report. Id. at 7. Also as described above, the Board began to implement Mr. Cormier’s recommendations for the Tashua Elementary School, and the Office of Civil Rights concluded its investigation into the complaints regarding both A.S. and W.S. W.S. Ex. B-56.
W.S. returned part-time to Tashua Elementary School on February 5, 2002. His teacher reported that W.S. had some trouble focusing. The Parents made modifications in W.S.’s diet and lifestyle, such as moving the family dog outside the house, and conducted more testing under the supervision of Dr. Santilli. On February 19, Dr. Santilli reported that W.S. was doing well, and that “current classroom locations should not be changed for the next 30 days.” W.S. Decision at 9. W.S.’s PPT reconvened on February 25 and reviewed his diagnostic placement. Id. at 10. Ms. Lacey-Castelot, the Parents’ education consultant, evaluated W.S. and made recommendations for his IEP, including recommendations for specific educational techniques and programs. Id. at 8. The PPT recommended further educational evaluations, to which the Parents assented, as well as a psychiatric evaluation, which the Parents agreed to consider. Id. at 10.
On March 5, Dr. Santilli reported that his examination of W.S. revealed that allergic symptoms had returned. The doctor recommended resumption of home-bound tutoring. The PPT reconvened on March 13 to review W.S.’s placement. At this meeting, Ms. Lacey-Castelot made recommendations to the PPT, which she believed to have been rejected. The PPT raised concerns about the quality of the testing Ms. Lacey-Castelot had performed and about her objectivity, and it discussed the possibility of further testing. W.S. was reported to be making good progress on his educational goals. The PPT again requested a psychiatric evaluation, as well as further information about W.S.’s medical status. Id.
The following day, Dr. Santilli asked that W.S. be given at least three to four weeks of homebound instruction “until a suitable environment becomes available.” The PPT convened on March 15 and offered to place W.S. in a different school within the district, but the PPT refused the Parents’ request to test the school’s air quality before enrolling W.S. in the school. Id. The PPT also offered several options for W.S.’s return to school and requested that a physician agreed upon by both the PPT and the Parents provide a second medical opinion before resuming home-bound instruction for W.S. Id. at 10-11.
On March 26, 2002, another pediatric allergist, who had been selected by the Parents, reported the results of his consultation concerning W.S. The allergist said that he could not at the time conclude that W.S.’s “problems stem from mold exposure in his school,” and he recommended additional testing of the school and placement of W.S. in a different school.
Id.
at 11. Further educational testing performed in early April showed that some of W.S.’s skills fell within the average range, but that he had some difficulties with others.
Id.
The Board’s assistive technology consultant evaluated W.S. and produced a report that disagreed with some of Ms. Lacey-Castelot’s recommendations and
The Parents consented to a second medical evaluation of W.S., which was performed by Dr. Danyliw, the same physician who performed the independent medical examination of A.S. Id. at 11. Dr. Danyliw took a history from W.S.’s parents and reviewed his medical records. Id. at 11-12. Dr. Danyliw produced a report in May 2002, in which he described W.S. as being allergic to milk, house dust, cat and dog dander, soy, and mold, and as experiencing a variety of allergic reactions, ranging from mild itching to life-threatening episodes. The report noted that “while molds in the environment may be either a contributing factor or perhaps the factor that precipitates [W.S.’s] symptoms in the school environment, the other allergens are very important in terms of both inciting symptoms and priming the examinee’s immune reaction for episodic symptoms.” Id. at 12. As a result, Dr. Danyliw stated that he could not say whether W.S.’s allergy to mold was “the primary offending agent[] for his symptoms.” Dr. Danyliw also stated that “environmental controls should include not only mold spores in the air but controlling potential behaviors and exposures which could result in severe allergic reactions.” Id.
Based upon then-available test results, Dr. Danyliw concluded that “mold levels are significantly high enough in this particular school setting [i.e. Tashua Elementary School] to be a potential problem for the examinee.” Id. at 12-13. The report recommended that the school building be remediated according to the procedures suggested by AMC and Mr. Cormier and then retested by Mr. Cormier, “who is presumably neutral in this case.” Id. at 13. Dr. Danyliw suggested that it would be inadvisable to “allow[ ] [W.S.] to enter the [school] environment prior to reduction of the mold counts” below 1,000 spores per cubic meter, which he described as “a reasonable target.” Id. However, he also noted that “no one clearly knows how much exposure [to allergens] is necessary” to produce an allergic reaction, and that “[f]igures such as 1,000 spores per cubic meters are guidelines and some individuals will react to counts lower than that level, and some individuals may be able to tolerate levels higher than that count.” Id. Dr. Danyliw’s report concluded, “There is no legitimate medical reason that I can ascertain that would preclude [W.S.] from attending another public elementary school within the school district, as long as the indoor air contains acceptable levels of mold spores.” Id.
W.S.’s PPT convened in June to discuss the results of W.S.’s evaluations. The PPT proposed a summer reading program, which the Parents accepted, and made adjustments to W.S.’s IEP. The PPT again requested a psychiatric evaluation, but the Parents declined. Instead, the Parents asked that Tashua Elementary School undergo post-remediation testing, that W.S. be placed in another elementary school, or that he be placed in an out-of-district school. At an August meeting, the PPT recommended full-day placement for W.S. at Tashua Elementary School following remediation that the Board believed had solved the school’s mold problem. Among other things, the Board had installed air conditioning and removed the carpet in two resource rooms. Responding to the Parents’ concerns about the art room, the PPT assured them that the school would test the art room and install air conditioning if necessary. Id. at 15. W.S.’s reading and math skills were reported as “improving dramatically.” Id. at 16.
On May 29, 2003, the PPT convened to develop W.S.’s IEP for the 2003-2004 school year. Id. at 18. Villa Maria had provided the PPT with reports and test scores from the 2002-2003 school year and included draft goals and objectives, including specific materials and programs to be used for the upcoming year. Id. at 19. The Parents requested use of the Linda-mood-Bell reading program for W.S., which they believed had been successful at Villa Maria. The PPT proposed that W.S. be placed in a newly constructed school — • Frenchtown Elementary School — and suggested a program involving remedial tutoring and additional evaluations. However, the Parents rejected the PPT’s proposal because they believed it offered less individual attention than W.S. was receiving at Villa Maria, and because the Board refused to test air quality at Frenchtown Elementary School before placing W.S. in the school. Id. at 18.
By letter on August 7, 2003, the Parents requested a hearing regarding the appropriateness of W.S.’s IEP. Id. at 2. As noted above, Mary H.B. Gelfman was appointed as Hearing Officer, and she heard W.S.’s case along with A.S.’s during sixteen hearing sessions between September 2003 and February 2004. Id. The Hearing Officer considered the same ten issues in conjunction with W.S. as she had considered with regard to A.S. Id. at 1-2.
On April 8, 2004, the Hearing Office issued a 25-page, single-spaced Decision, in which she concluded that the proposed IEP for W.S., including placement at Frenchtown Elementary School for the 2003-2004 school year, was appropriate. The Hearing Officer’s decision identified the same factors that had borne on her decision regarding AS.’s placement in Madison Middle School: The PPT’s IEP had incorporated suggestions from teachers at Villa Maria and Ms. Lacey-Castelot; and although declining to prescribe the use of a specific educational program, such as the Lindamood-Bell method, or to require the provision of certain computer software programs, the PPT had demonstrated a willingness to make adjustments in the future as needed. According to the Hearing Officer, evidence suggested that a flexible, pragmatic approach to remediation was a better way to deal with W.S.’s allergies than adopting Dr. Santilli’s proposed bright-line standard of 1,000 mold spores per cubic meter. As she did with A.S., the Hearing Office concluded that W.S. “is, or is at risk of becoming, an extremely sensitive person,” but that an active and thorough cleaning regimen would produce an environment at Frenchtown Elementary School as clean as that of Villa Maria. Id. at 20-23.
Therefore, because she found the proposed IEP for W.S. appropriate, the Hearing Officer concluded that the Board was not responsible for funding W.S.’s placement at Villa Maria for the 2003-2004 school year.
Id.
at 23. The Hearing Officer also directed the PPT to reconvene in thirty days to review W.S.’s status and to plan for his transition back to public school.
Id.
at 24. However, the Parents decided to keep W.S. at Villa Maria for the
C. Procedural History
On May 21, 2004, Plaintiffs filed this action. See Complaint [doc. # 1]. Plaintiffs later amended their complaint. First Amended Complaint [doc. #8]. In their amended complaint, Plaintiffs maintain that A.S. and W.S. were denied a “free appropriate public education” by the Board’s refusal to place the children at Villa Maria for the 2003-2004 school year. Plaintiffs’ amended complaint contains five counts charging the Board with violating the following laws and agreements: Count One, the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; Count Two, Section 504 of the Rehabilitation Act, 20 U.S.C. § 794; Count Three, Connecticut’s special education law, Conn. Gen.Stat. § 10-76a et seq.; Count Four, Connecticut’s Uniform Administrative Procedures Act (“UAPA”), Conn. Gen. Stat. § 4-183; and Count Five, the 2002 settlement agreement. Plaintiffs ask this Court to reverse the decisions of the Hearing Officer, “award A.S. and W.S. a free appropriate public education,” award Plaintiffs the costs of A.S.’s and W.S.’s placement at Villa Maria during 2003-2004, and provide them with other compensatory and breach-of-contract damages. First Amended Complaint [doc. # 8] at 19-22.
On October 29, Plaintiffs moved to supplement the administrative record with A.S.’s and W.S.’s educational records for the 2004-2005 school year. Plaintiffs asserted that this evidence was relevant to the claim set forth in their First Amended Complaint and that it had not been available at the time of the Hearing Officer’s decision. Motion to Introduce Additional Evidence [doc. # 19]. The Board opposed Plaintiffs’ Motion. In an on-the-record telephonic conference on January 7, 2005, the Court made clear to Plaintiffs that their supplemental evidence would be admitted only if they identified precisely what documents or information they sought to introduce and explained how those documents or information were relevant to issues decided by the Hearing Officer. Minute Entry for Proceedings Held Before Judge Mark R. Kravitz on January 7, 2005 [doc. # 23]. After further briefing, the Court denied Plaintiffs’ Motion to Introduce Additional Evidence, as Plaintiffs had “neither provided the Court with the documents they seek to introduce nor sufficiently described them in a way that would permit the Court to consider Plaintiffs’ motion.” Ruling and Order [doc. # 34] at 3.
On February 28, Plaintiffs moved for reconsideration of the Court’s ruling on their motion to supplement the record. Motion for Reconsideration [doc. # 35], The Court again denied Plaintiffs’ motion, Ruling and Order [doc. # 37], but indicated a willingness to reconsider if Plaintiffs obtained copies of the records they intended to introduce and demonstrated their relevance, Minute Entry for Proceedings Held Before Judge Mark R. Kravitz on March 8, 2005 [doc. #38], Plaintiffs obtained educational and medical records for A.S. and W.S. and on April 25 again moved to introduce the records. Plaintiffs’ Memorandum of Law in Support of Their Motion to Introduce Additional Evidence [doc. # 41]. The Board once again opposed the motion.
Because Plaintiffs styled their latest motion as a memorandum of law in support of a motion that had already been denied, the Clerk mistakenly docketed the motion as a memorandum in support of an unrelated motion, Motion to Introduce Duplicate Paper Copies of the Administrative Record [doc. #40], which the Court later dismissed. As a result, no motion to introduce evidence remains pending before the
Plaintiffs have moved for judgment on counts one, three, and four of the complaint, [doc. # 49], and for summary judgment on counts two and five of the complaint [doc. # 52], The Board has opposed these motions and has moved for judgment on the administrative record on counts one through four and for summary judgment on count five [doc. # 65]. On September 8, the Court heard extensive oral arguments and took all pending motions under advisement [doc. #72]. The Court also requested and received post-argument briefing. See [docs. ## 73, 74, 75, & 81].
II.
The Court will address in turn each count of Plaintiffs’ complaint.
A. Individuals with Disabilities in Education Act
The Individuals with Disabilities in Education Act, 20 U.S.C. § 1400 et seq., “represents an ambitious federal effort” to ensure that all children are given access to a public education regardless of any disabilities they may suffer.
Bd. of Educ. v. Rowley,
The Second Circuit instructs that when reviewing administrative decisions under the IDEA, “a district court must make a two-step inquiry: first, the court must consider whether the state has complied with the Act’s procedural requirements; second, it must consider whether the IEP is ‘reasonably calculated to enable the child to receive educational benefits.’ ”
Mrs. B. v. Milford Bd. of Educ.,
1. Motion to Supplement the Record
The IDEA provides that, in an action challenging an administrative decision, a district court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) 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). The decision whether and to what extent to admit additional evidence is committed to the discretion of the court, “which must be careful not to allow such evidence to change the character of the
Plaintiffs ask this Court to supplement the record with educational and medical records for A.S. and W.S. from the 2004-2005 school year. Plaintiffs argue that “relevant educational matters ... have occurred after April 8, 2004, the date of the [Hearing Officer’s] final decision.” Pis.’ Mem. of Law in Support of Their Mot. to Introduce Additional Evidence [doc. # 41] at 2. According to Plaintiffs, in the 2004-2005 school year, both A.S. and W.S. returned to public school from Villa Maria. Plaintiffs seek to introduce a vast array of documents relating to the children’s return to public school, including the following: IEPs, minutes of PPT meetings, disciplinary records, educational evaluations conducted by the Board, report cards, attendance records, health records, notes from the school nurse, teachers’ reports, notes from W.S.’s parents and doctors excusing his absences, and psychological evaluations. See Mot. for Permission to File Exs. in Support of Mot. to Introduce Additional Evidence [doc. #45] (attached exhibits). According to Plaintiffs’ attorney, “[a]t least some of the educational and medical information described is relevant to the disposition of this matter.” Pis.’ Mem. of Law in Support of Their Mot. to Introduce Additional Evidence [doc. # 41] at 6.
The Board opposes Plaintiffs’ motion, arguing that to allow the requested supplementation would transform these proceedings from a review of the Hearing Officer’s decisions into a de novo trial. The Board also argues that what happened during the 2004-2005 school year does not bear on whether the Board provided A.S. and W.S. with a free appropriate public education during the 2003-2004 school year. See Opposition to Plaintiffs’ Motion to Introduce Additional Evidence [doc. #20] at 11-12. The Board further maintains that the Court would be required “to hear substantial additional testimony in order to understand the content and context of the requested ... records” Plaintiffs wish to submit. Opposition to Plaintiffs’ Motion to Introduce Additional Evidence [doc. # 48] at 3. Finally, the Board insists that Plaintiffs should not be allowed to use their supplementation request as a means of evading the IDEA’S exhaustion requirements. Id. at 7-11.
At the outset, the Court notes that the Second Circuit has not yet addressed whether it is appropriate for a district court to consider evidence of what has occurred after a state administrative decision regarding a student’s IEP — so-called “retrospective evidence”' — in order to determine whether that decision denied the student a free appropriate public education.
See D.F. ex rel. N.F.,
Like most of the other courts that have considered the question, this Court is skeptical of the propriety of permitting parties to an administrative appeal to supplement the record with retrospective evidence. However, the Court declines to decide the issue definitively, because the Court believes that the supplementation requested in this case would, on balance, prove unhelpful. First, the evidence proffered by Plaintiffs is of questionable relevance. Even if evidence regarding a student’s progress under an IEP for a particular school year could shed any light on the validity of a hearing officer’s endorsement of the IEP for that school year, Plaintiffs ask this Court to consider evidence of A.S.’s and W.S.’s progress during an entirely different school year— the
2004-2005 school year
— -to help determine whether the Hearing Officer properly endorsed the Board’s proposals regarding the
2008-2004 school year.
A.S. and W.S. spent a full year at Villa Maria in between the May 29, 2003, PPT meetings of which Plaintiffs complain and the start of the 2004-2005 school year. During that period, in addition to aging and becoming more mature, according to Plaintiffs’ own counsel, “both children have changed their educational program and placement” as the “direct result of a series of PPT meetings.” Pis.’ Mem. of Law in Support of Their Mot. to Introduce Additional Evidence [doc. # 41] at 2. Therefore, any evidence regarding the children’s recent progress will have at best only a tangential bearing on the relevant question raised by this case — namely, whether the Board offered Plaintiffs a free appropriate public education during the 2003-2004 school year.
See Lillbask ex rel. Mauclaire v. Sergi,
Moreover, it is unclear whether the records Plaintiffs have submitted provide a thorough and accurate portrait of events occurring during the 2004-2005 school year. For instance, it cannot be determined from the documents submitted whether all relevant health records — including those that might undermine Plaintiffs’ position — have been disclosed. In order to ensure a sufficiently balanced record, the Court would have to extend discovery to allow the Board to access relevant records and depose involved witnesses. While Plaintiffs do not oppose the extension of discovery for this purpose,
Finally, to be truly useful to the Court, any records submitted would have to be explained and placed in context. As the Board has noted, “records ... do not speak for themselves.” Opp’n to Pis.’ Mot. to Introduce Additional Evidence [doc. # 48] at 7. Indeed, that is why the Hearing Officer in this case held sixteen days of hearings. This Court lacks expertise in the medical and educational fields and would require a substantial amount of testimony to give meaning to the reports and records Plaintiffs seek to introduce in order to determine whether those records have any bearing on the issues addressed by the Hearing Officer. In effect, the Court would have to conduct a full administrative hearing regarding the 2004-2005 school year in order to determine the relevance of this information to the 2003-2004 school year. To do so would have the doubly impermissible result of converting these proceedings into a de novo trial about a school year that is not even at issue.
See Springer v. Fairfax County Sch. Bd.,
Nor have Plaintiffs demonstrated that there were procedural deficiencies during the administrative hearing that would justify supplementation of the record before the Court. For instance, Plaintiffs allege no “gaps in the administrative transcript owing to mechanical failure,” “unavailability of a witness” during the hearing, or “improper exclusion of evidence by the administrative agency.”
Burlington,
Plaintiffs do not dispute that the Board complied with the IDEA’S procedural requirements.
See
Memorandum of Law in Support of Plaintiffs’ Motion for Judgment [doc. # 50] at 14.
3
They contend, however, that the Board’s actions violated the IDEA’S substantive guarantee of “individualized educational programas] developed through the Act’s procedures reasonably calculated to enable [A.S. and W.S.] to receive educational benefits.”
Rowley,
The IDEA does not require a school district to furnish every service necessary to maximize a child’s educational potential.
See id.
at 197 n. 21,
Plaintiffs assert two general arguments in support of their claim that the Board violated the IDEA’S substantive requirements. First, Plaintiffs argue that the educational programs proposed in the children’s IEPs for the 2003-2004 school year were not sufficiently responsive to the Parents’ concerns or to input provided by Ms. Lacey-Castelot and Villa Maria. Second, Plaintiffs maintain that placement in the
a. Education Methodology
With respect to their first argument, Plaintiffs assert that the Board erred in rejecting educational methodologies that Plaintiffs say had produced demonstrable progress for A.S. and W.S. at Villa Maria. In particular, Plaintiffs believe that the proposed IEPs should have incorporated “provision of [the] Lindamood-Bell program of instruction, the use of a small student/teacher ratio and assistive technology.” Mem. of Law in Support of Pis.’ Mot. for J. [doc. # 50] at 20; id. at 21. Plaintiffs also take issue with the Hearing Officer’s statement that she “lacked authority to order specific educational methodologies.” Id. at 19.
At the outset, the Court notes that the Second Circuit has cautioned that when “conduet[ing] an independent review of the sufficiency of an IEP under the IDEA,” a court should not “impermissibly meddl[e] in state educational methodology.”
Grim v. Rhinebeck Cent. Sch. Dist.,
On the evidence presented, the Court agrees with the Hearing Officer that the IEPs developed for A.S. and W.S. at the May 29, 2003, PPT meetings were appropriately designed to advance their educational progress. Though A.S.’s classes may not have been as small as her Parents would have preferred, A.S.’s IEP included team-taught classes, in which a special education teacher would have instructed the class alongside the regular education teacher, in order to provide A.S. with additional support. A.S. Ex. B-92 at 5; 11/11/03 Hearing Tr. at 98-99 (testimony of Ms. Hollo). The IEP also included counseling with the school’s social worker to ease A.S.’s transition to middle school. A.S. Ex. B-92 at 5; 11/11/03 Hearing Tr. at 99-100 (testimony of Ms. Hollo). The PPT also drafted a series of concrete goals for A.S. spanning a variety of skills, such as reading fluency, writing organization, math computation, and fine-motor performance, all based on A.S.’s progress at Tashua Elementary School and Villa Maria. A.S. Ex. B-92 at 6-12; 11/11/03 Hearing Tr. at 101 (testimony of Ms. Hollo). In addition, the PPT recommended that the Board’s speech and occupational specialists provide A.S. with extra help, and that A.S. participate in a summer reading program. The IEP, and the testimony of those who created it, evidence a thoughtful, individually tailored effort to marshal the Board’s resources on A.S.’s behalf. Certainly, there was no objective evidence that the Boards’ program for A.S. was deficient.
W.S.’s IEP appears similarly well suited to promote his educational development. It called for W.S. to receive substantial one-on-one attention, including five hours a week in the resource room with the special education teacher and an hour-and-a-half
Moreover, frequent testing of the children, coupled with progress reports from teachers and special education counselors, confirmed that both children had made progress in the Board’s schools. For instance, reports for A.S. dated February, April, June, and November 2001 reported appropriate progress for reading, writing, math, and language goals, as well as goal mastery in several objectives. A.S. Ex. B-32 at 1-5. Testimony from the Board’s special education teacher confirmed that A.S.’s skills had advanced satisfactorily. 1/27/04 Hearing Tr. at 188 (testimony of Ms. Ward). The March 13, 2002, PPT meeting minutes indicate that W.S.’s “[r]e-source teacher felt that [he] was making nice progress on his goals.” W.S. Ex. B-58 at 3. And at the August 16, 2002, PPT meeting, W.S.’s math and reading skills were reported as “improving dramatically.” W.S. Ex. B-79 at 3. These reports and others demonstrate appreciable progress by A.S. and W.S. and suggest that further progress at the Board’s schools was likely.
The Board had also demonstrated a willingness to modify its educational programs when necessary to adapt to changing circumstances, having modified A.S.’s and W.S.’s IEPs on numerous occasions during the 2001-2002 school year (the last year in which the children were enrolled at the Board’s schools).
See, e.g.,
A.S. Exs. B-29, B-33, B-39, B-60, B-79 (October and November 2001, January, March, and June 2002 PPT meetings); W.S. Exs. B-29, B-39, B-45, B-58, B-74 (November 2001, January, February, March and June 2002 PPT meetings). The Board had also demonstrated a willingness to provide each child with the assistance of specialists when needed.
See, e.g.,
A.S. Decision at 4, 9, 10, 13,14; W.S. Decision at 6, 10,11, 14. The Hearing Officer concluded — and the conclusion was well founded in the evidence — that “[t]he PPT ... demonstrated willingness to further accommodate [A.S. and W.S.], if necessary, after [their] enrollment.” A.S. Decision at 23; W.S. Decision at 20. Viewing the record as a whole, the Court finds no support for the notion that the Board’s proposed IEPs were likely to produce “regression” or “mere trivial advancement.”
See Cerra,
To be sure, Plaintiffs have offered evidence that their preferred educational methodologies, which were implemented to their satisfaction at Villa Maria, had resulted in progress for A.S. and W.S. In particular, they tout the benefits of the Lindamood-Bell reading program and urge that this Court order the Board to make that program available to A.S. and W.S.
See
Mem. of Law in Support of Pis.’ Mot. for J. [doc. # 50] at 24. For its part,
However, the Board’s educational consultants testified that in their judgment it was wisest not to be tied to only one particular program, such as the Linda-mood-Bell program, and thereby foreclosed from using others. As the Hearing Officer explained, “[t]he Board’s Reading Consultant uses many programs, selecting the programs that from her professional experience ... address the specific difficulties of each student referred from reading support.” A.S. Decision at 25;
see also id.
at 9; W.S. Decision at 22; 11/19/03 Hearing Tr. at 220-21 (testimony of Ms. Samler) (“[The PPT] didn’t want to be boxed in by using one program.... ”); 12/16/03 Hearing Tr. at 178 (testimony of Ms. Elkies) (explaining that the PPT wanted to use the Lindamood-Bell program “as part and parcel of a comprehensive reading program, not isolated”);
id.
at 190-91 (noting that the PPT “d[id]n’t want to be constrained by one program,” but instead wanted the flexibility to change approaches if another proved effective). This is precisely the sort of dispute about educational policy which this Court ought not interfere with so long as the Hearing Officer’s resolution is supported by the record.
See Lillbask,
Plaintiffs also maintain that the Hearing Officer’s decisions were invalid because she improperly cited to the Connecticut Department of Education’s 1999 Guidelines for Assistive Technology (the “Guidelines”). According to Plaintiffs, the Hearing Officer relied on the Guidelines, which provide that a school need not purchase a high-tech device if a low-tech device solves the same problem, in reaching her conclusion that the Board was not obligated to fund Plaintiffs’ requested assistive technology. Plaintiffs argue that the Hearing Officer’s reliance on the Guidelines was erroneous because the Guidelines were never enacted as a statute or regulation, and Plaintiffs received no warning that the Hearing Officer would consult them. Mem. of Law in Support of Pis.’ Mot. for J. [doc. # 50] at 19. Moreover, Plaintiffs assert that the propriety of the Hearing Officers’ reliance on the Guidelines presents a legal issue for which the Hearing Officer should receive no deference.
The Court doubts Plaintiffs’ assertion that the Hearing Officer was forbidden from referencing the Guidelines, a freely accessible internet resource.
See
Connecticut State Department of Education and Connecticut Birth to Three System, Guide
In any event, the Court finds that the Hearing Officer’s conclusions regarding assistive technology were supported by substantial evidence in the record, excluding the Guidelines. The Board’s assistive technology consultant testified that “it’s often preferable to use [a] low tech tool because the kid can learn it faster, they can use it in more environments, it is better accepted especially by older children.” 1/21/04 Hearing Tr. at 8 (testimony of Ms. Sweeny). Moreover, the technology consultant’s approach comports with the IDEA’s goal of “mainstreaming,” students with disabilities “[t]o the maximum extent appropriate,”
see
20 U.S.C. § 1412(a)(5), a goal which the Second Circuit has interpreted “as a requirement that special education be provided in the ‘least restrictive setting consistent with a child’s needs,’ ”
Grim,
b. Health Concerns
Plaintiffs also argue that the proposed IEPs denied A.S. and W.S. a free appropriate public education because the Board did not sufficiently account for the children’s health sensitivities. It is undisputed that at Tashua Elementary School, both children experienced allergic reactions due to the relatively high level of mold spores in the air. According to Plaintiffs, these reactions, as well as the fear of future reactions and the side-effects of medications taken to combat them, interfered with the children’s ability to make educational progress at the Board’s schools. Despite the recommendations of medical professionals, such as Dr. Santilli, the Board refused to conduct air quality testing at its schools before the children’s enrollment to ensure that mold spores were within what the Parents considered to be acceptable levels. Therefore, the Parents argue, the Board denied A.S. and W.S. access to a free appropriate public
Issues of student safety, such as Plaintiffs’ claim that the Board’s schools are unhealthy for A.S. and W.S., may properly be raised in a substantive challenge under the IDEA. As the Second Circuit has explained, the Act’s “broad language suggests that Congress did not intend to exclude from consideration any subject matter — including safety concerns — that could interfere with a disabled child’s right to receive a free appropriate public education.”
Lillbask,
Plaintiffs first suggest that the Hearing Officer declined to exercise jurisdiction over their safety claims. Mem. of Law in Support of Pis.’ Mot. for J. [doc. # 50] at 22. The Court disagrees. In fact, the Hearing Officer made extensive factual findings regarding the children’s health histories, the Board’s efforts to accommodate their sensitivities, and the prospect for safe placement at the Board’s schools. Indeed, the Hearing Officer emphasized that “[d]uring future discussions of placements for [A.S. and W.S.], [their] sensitivity to poor air quality must continue to be an issue.” A.S. Decision at 26; W.S. Decision at 23. Seizing on this sentence, Plaintiffs argue in the alternative that, even if the Hearing Officer advocated future vigilance, she insufficiently addressed the then-prevailing need to prevent health crises from arising in the first place. Mem. of Law in Support of Pis.’ Mot. for J. [doc. # 50] at 23 (“The Hearing Officer’s conclusion that future discussions of placements for each [student] due to sensitivity to poor indoor air quality must continue to be an issue was hardly an adequate response to the Plaintiffs’ current safety concerns that were presented by the [students’] parents at the May 29, 2003 PPT meeting.” (emphases in original) (internal citations omitted)).
The Court is not persuaded. The record reveals that the placement of A.S. at Madison Middle School and W.S. at Frenchtown Elementary School were, as the Hearing Officer concluded, “reasonably safe, in terms of indoor air quality,” for the children. A.S. Decision at 27; W.S. Decision at 23. The Board had adopted the Environmental Protection Agency’s Tools for Schools Program, which is a comprehensive program designed to help schools improve the indoor air quality at their facilities. An Indoor Air Quality Status Report prepared by the Board’s Plant Operations manager described the Board’s efforts, incorporating the Tools for Schools approach, to ensure that Madison Middle School’s air quality is acceptable.
See
A.S. Ex. B-95. These efforts involved the routine replacement of air filters, the elimination of stained ceiling tiles, the removal of contaminated carpeting, and the cleaning of each unit ventilator in the school, as well as a diagnostic “walk-through” to identify potential concerns.
See id.
Furthermore, Mr. Cormier testified that he had conducted an unscheduled inspection of Madison Middle School that confirmed that the school’s unit ventilators and air filters were clean. 12/18/03 Hearing Tr. at 73-74 (testimony of Mr. Cormier). He observed that the school building was constructed with materials, such as concrete block walls and terrazzo floor tiles, that are unlikely to breed allergens, and as a result, Mr. Cormier gave the building an overall rating of “very clean.”
Id.
at 75-77. Significantly, he also noted that an effective feedback mechanism was crucial to maintaining good air quality, and testified that formalized procedures existed for school
Evidence also suggests that Frenchtown Elementary School was safe for W.S. The Frenchtown school was only recently constructed and it opened to students in time for the 2003-2004 school year. Mr. Cormier testified that the building’s construction complied with his health safety recommendations, such as the use of a sloped roof. 11/18/03 Hearing Tr. at 78 (testimony of Mr. Cormier). Also, the building’s interior was designed to minimize areas that might harbor allergens, with no carpets near the bathrooms or drinking fountains and with no carpeting in the hallways. Id.; see also id. (“There’s no carpeting in the hallway. That’s critical. That’s important.”). Mr. Cormier testified that the school had implemented appropriate procedures to protect air quality, and that “[t]here was nothing that [he] saw ... in the building that indicated that there may be a problem or ... an existing problem.” Id. at 81. Far from rebutting this conclusion, Plaintiffs offered no evidence that placement at Frenchtown Elementary for the 2003-2004 school year would have been unsafe for W.S. See 10/20/03 Hearing Tr. at 75 (testimony of Mr. W.S.) (“So you don’t have any information to suggest that the air quality is problematic or unsafe at the building, correct?” “No, I have no information.”); 11/19/03 Hearing Tr. at 76 (testimony of Dr. Santilli) (admitting that he did not “have a clue” whether Frenchtown would be safe for W.S.).
Plaintiffs respond, however, that Madison Middle School and Frenchtown Elementary School could not be proven safe unless they were subjected to air quality testing — testing that the Board refused to conduct or permit before placing the children in the schools. The crux of Plaintiffs’ argument is that the IEPs proposed at the May 29, 2003, PPT meetings did not accommodate the Parents’ reasonable request for pre-placement air quality testing. Dr. Santilli recommended that neither child be enrolled in any school until air quality tests showed mold levels below 1,000 spores per cubic meter, and Dr. Danyliw agreed that to enroll them before testing would be inadvisable. Given these recommendations, as well as the children’s history of sensitivity at Tashua Elementary School, Plaintiffs argue that the Board’s refusal to test air quality prior to placement amounted to a denial of a free appropriate public education.
The Court is not unsympathetic to the Parents’ concerns. Certainly, given the experiences of their children at Tashua Elementary School, the Parents were not unreasonable to be concerned about the environment in the new schools and to request testing to be done before exposing their environmentally sensitive children to the new schools. And, of course, the Board might have avoided this dispute entirely had it acceded to the Parents’ request. However, the Hearing Officer found, and on the evidence presented the Court agrees, that the Board did not deny A.S. and W.S. meaningful access to a public education merely by refusing to conduct pre-placement air quality testing at Madison Middle School and Frenchtown Elementary School. The Court reaches this conclusion for several reasons.
First, substantial evidence in the administrative record supports the Hearing Officer’s conclusion that no uniform standard for air quality has been accepted by the scientific community. Though Dr. Santilli set the bar at 1,000 mold spores per cubic meter, Mr. Cormier testified that no such standard had been adopted by the industrial hygiene industry. 11/18/03 Hearing Tr. at 64-65 (testimony of Mr. Cormier). Indeed, Mr. Cormier testified that no meaningful uniform standard for biological
There are no federal or state standards that specify acceptable concentrations of biological origin other than those studied in certain manufacturing environments. The American Conference of Governmental Industrial Hygienists ... does not currently support any existing numerical criteria for interpreting data on biological agents in non-manufacturing environments.
A.S. Ex. B-44 at 4. Mr. Cormier explicitly rejected Dr. Santilli’s spore-counting approach and suggested that Dr. Santilli lacked the education and training necessary to properly assess air quality. 11/18/03 Hearing Tr. at 66-67 (testimony of Mr. Cormier). Mr. Cormier is an industrial hygienist with over twenty-five years of experience in the field, as well as numerous professional certifications and associational memberships, A.S. Ex. B-116 (curriculum vitae). As such, his testimony about the virtues of a problem-solving approach deserves substantial deference.
Other evidence confirms Mr. Cormier’s conclusions. Dr. Danyliw was an experienced and independent expert. His reports noted that he was “unaware of any agreement on an objective measure of ‘safe’ levels of mold.” A.S. B-77 at 5. He testified that he recommended reducing the mold spore count below 1,000 as a “reasonable compromise” to accommodate the insistence by the Parents and Dr. Santilli on this number, but he expressly observed that no scientific studies supported their proposed standard — which he deemed “arbitrary.” 12/16/03 Hearing Tr. at 26-27 (testimony of Dr. Danyliw). As Dr. Danyliw put it, “I think for somebody to say that the environment is unsafe purely on the basis of a spore count is cavalier at best. So I think that that shouldn’t be said because I don’t think there’s a science to back it.” See id. at 29. Dr. Danyliw also questioned the validity of articles Dr. Santilli cited in support of the 1,000 mold spores metric, noting that the information in some articles had been misinterpreted by Dr. Santilli and that other articles were not based on empirical evidence. Id. at 27-28. Thus when asked point-blank whether “there any reason from your perspective for the school to rely on Dr. Santilli’s recommendation” of a standard of 1,000 mold spores per cubic meter, Dr. Danyliw responded, “No.” Id. at 110. Dr. Danyliw also gave the following testimony before the Hearing Officer after conducting a review of the medical literature on the subject:
Q. Okay. As you sit here today, are you aware of any medical or scientific literature establishing the 1,000 mold spore or colony forming units per cubic meter level as a measurement of safe or unsafe level of exposure?
A. Well, scientific, no. There have been a couple of reports out there which implies that we should get mold spore counts below a thousand. Most notably, Dr. Santilli’s own article which was brought to my attention. But those are not based on any science. And current thinking of people far more knowledgeable in this field than myself have repeatedly indicated that there are no standards. We really don’t know what a safe level is. And that a thousand cubic — a thousand colony forming unit per meter squared is arbitrary.
Id.
26-27 (emphasis added). Finally, the Hearing Officer cited to other scientific articles casting doubt on the soundness of
Second, evidence in the record supports the more flexible, problem-solving approach advocated by Mr. Cormier and adopted by the Board and the Hearing Officer. Mr. Cormier explained that the best way to evaluate whether a school was safe would be to conduct a comprehensive investigation into the school’s building materials, maintenance history, cleaning procedures, and remediation protocols. 12/18/03 Hearing Tr. at 58-59 (testimony of Mr. Cormier). As Mr. Cormier explained, it is most sensible to “focus more on doing the removal or remediation of [problem] materials or of the problem [itself] ... rather than ... spend time on [collecting] air samples.” Id. at 82; see also A.S. Decision at 24 (“In general, it is not necessary to measure the quantity of mold spores in the air of a home or school. If mold is found, the • occupants should start by determining the source of the water problem and fixing it.” (quoting R.A. Etzel, Indoor Air Pollutants in Homes and Schools, 48 Pediatric Clinics of North America 1153 (2001))).
Third, the record shows that the Board had taken steps to implement this problem-solving approach. As explained above, the Board had initiated comprehensive plans at both Madison Middle School and Frenchtown Elementary School to remediate known health risks and prevent future ones from arising. Dr. Danyliw testified that the Board had developed appropriate health plans for A.S. and W.S. to ensure a rapid and proper response to any health incidents. 12/16/03 Hearing Tr. at 42-48 (testimony of Dr. Danyliw). According to Dr. Danyliw, the procedures in place suggested that there was “no medical reason” why the Madison Middle School and the Frenchtown Elementary School would be unsafe for the children or why the schools should be tested before permitting the children to attend the schools. Id. at 43 (regarding W.S.); see id. at 46 (regarding A.S.). Nor did Plaintiffs present any evidence that other children had experienced any allergy problems at either Frenchtown Elementary School or Madison Middle School.
Finally, the Board’s actions demonstrate a willingness to accommodate the children’s needs should problems occur. The Board developed a Section 504 plan for W.S. to accommodate his environmental sensitivities. The plan called for him to receive “preferential seating,” for him to be excused from gym class (due to allergens in the gymnasium), for him to “sit at the peanut free table in [the] cafeteria,” and for the Board to install special filters in his classroom to improve air quality. W.S. Ex. B-21 at 1. When A.S. and W.S. developed adverse symptoms at the start of the 2001-2002 school year, their PPTs developed education plans that allowed them to study at home. A.S. Decision at 9; W.S. Decision at 6-7. The Board also permitted Dr. Santilli to conduct on-site testing when problems developed. Id. at 5. And, as detailed above, the Board conducted testing and performed extensive remediation at Tashua Elementary School on multiple occasions. A.S. Decision at 8, 11-12, 18-19; A.S. Ex. B-58 at 4-7. Indeed, Plaintiffs’ attorney admitted at oral argument that Plaintiffs had no problems with the approach taken by the Board during the 2001-2002 and 2002-2003 school years, conceding that the Board had been appropriately responsive.
B. Section 504
The Rehabilitation Act of. 1973 “was enacted to promote ... the inclusion and integration of persons with disabilities into mainstream society.”
J.D. ex rel. J.D. v. Pawlet School District,
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ...
29 U.S.C. § 794(a). This provision means that no student may be denied access to an appropriate education because of his or her disabilities, no matter how severe. See 34 C.F.R. § 104.33(a) (“A recipient [of federal funds] that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.”). To establish a Section 504 violation, a plaintiff must show:
(1) that the student is disabled; (2) that the student is “otherwise qualified” to participate in school activities; (3) the school or the board receives federal financial assistance; and (4) the student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school.
Gabel ex rel. L.G. v. Board of Educ. of Hyde Park Central School Dist.,
1. Supplementation of the Record
At the Court’s request, the parties provided supplemental briefing regarding whether, even if the Court denied Plaintiffs’ request to supplement the record with respect to their IDEA claims, Plaintiffs should nevertheless be allowed to supplement it with additional evidence bearing on their Section 504 claims. At oral argument, Plaintiffs’ counsel had suggested that Plaintiffs’ Section 504 claims were not confined, as their IDEA claims were, to the 2003-2004 school year. However, in their supplemental briefing, Plaintiffs disa
Plaintiffs seek to supplement their Section 504 claims with precisely the same educational and health records they sought to introduce in support of their IDEA claims. The permissibility of supplementing the record with such “retrospective” evidence under Section 504 is even less clear than in the IDEA context. Indeed, the extent to which a Section 504 claimant is
ever
entitled to supplement the administrative record is questionable.
See, e.g., Monticello School Dist. No. 25 v. George L.,
However, even if supplementation were permissible in appropriate circumstances, this case does not present such circumstances. Plaintiffs’ Section 504 claims rest on their allegations that the Board denied A.S. and W.S. access to an appropriate public education by refusing to address their safety needs during the 2003-2004 school year. In particular, Plaintiffs argue that the placements offered at the May 29, 2003, PPT meetings inadequately accommodated the children’s environmental sensitivities. See Plaintiffs’ Supplemental Memorandum of Law Re: Section 504 [doc. # 74-1] at 7-8; Pis’ Reply Mem. of Law [doc. # 75] at 3. As explained above,. the 2004-2005 records have questionable, if any, relevance for determining whether the Board acted permissibly at or before those PPT meetings. Nor do Plaintiffs explain what light the records might shed on any other aspect of their discrimination claims. Moreover, also explained above, to permit the requested supplementation would necessitate the reopening of discovery over a year after its completion and would require the Court to receive substantial testimony to put the evidence in proper context. Given the questionable relevance of the records Plaintiffs offer, and the substantial delay and drain on resources supplementation would entail, the Court denies Plaintiffs’ request to supplement the record with respect to their Section 504 claims.
2. Alleged Discrimination
Plaintiffs maintain that the Board discriminated against A.S. and W.S. by “den[ying] Plaintiffs’ requests for an accommodation in the form of an aseptic public school environment that would be medically safe for their respective medical needs in order to receive an appropriate education.” Plaintiffs [sic] Memorandum of Law in Support of Motion for Summary Judgment [doc. # 53] at 5. According to Plaintiffs, the Board’s refusal to conduct pre-placement air quality testing at Madison Middle School and Frenchtown Elementary School — or, in the alternative, to fund the children’s placement at Villa Maria — constituted discrimination on the basis of the children’s health limitations.
4
In any event, the Court agrees with the Hearing Officer that the Board reasonably accommodated the health concerns of both A.S. and W.S.,
5
and so rejects Plaintiffs’ claim that the children were discriminated against in violation of Section 504. The Court has already explained why the Board’s suggested placements of A.S. at Madison Middle School and W.S. at Frenchtown Elementary School were reasonably safe. The Board went to great lengths to ensure that the children’s learning environment would not aggravate children’s sensitivities, and also demonstrated a willingness to accommodate any future health issues that might arise. In finding the Board’s actions appropriate, the Court concludes that the Board did not display the sort of “bad faith or gross misjudgment” that a Section 504 violation entails.
See B.L. v. New Britain Bd. of Educ.,
C. Connecticut’s Special Education Law
Plaintiffs’ third cause of action alleges that “[t]he final decision of the Due Process Hearing Officer has violated the rights of A.S. and W.S. to receive appropriate special education services under State law, Conn. Gen.Stat. § 10-76 et seq. and regulations thereunder.” First Am. Compl. [doc. # 8] at 20. Plaintiffs do not indicate how the state right to appropriate educational services differs, if at all, from the standards provided under the IDEA. Indeed, Connecticut enacted Conn. Gen. Stat. § 10-76a et seq. “to meet its requirements [for receipt of federal funding] un
D. Uniform Administrative Procedures Act
Plaintiffs’ fourth cause of action charges that “[t]he final decisions of the Due Process Hearing Officer ha[ve] violated the substantial rights of A.S. and W.S. as provided for in [the Connecticut Uniform Admiriistrative Procedure Act] insofar as [her] final decisions] ... were not based on substantial evidence on the record of the administrative proceeding, contrary to the evidence on the record, based upon unlawful procedures, and were arbitrary, capricious and illegal.” First Am. Compl. [doc. # 8] at 20. ■ The UAPA governs appeals to the Connecticut Superior Court of cases decided by state agencies.
See
Conn. Gen.Stat. § 4-183. The Court doubts whether the UAPA has any application to these proceedings.
See B.L. v. New Britain Bd. of Educ.,
In any event, the Court has already disposed of Plaintiffs’ claim that the Hearing Officer’s decision was arbitrary and capricious or not based upon substantial evidence. As to Plaintiffs’ allegations of “unlawful procedures,” the substance of this claim is that the Hearing Officer improperly relied on the Guidelines for Assistive Technology in reaching her conclusion that the Board was not obligated to fund the assistive technology requested by Mr. and Mrs. W.S. As explained above, Hearing Officer did not base her decision on the
E. Settlement Agreement
Finally, Plaintiffs ask this Court to enforce the terms of the parties’ 2002 settlement agreement, which they claim the Board has breached. In particular, Plaintiffs assert that the Board has violated paragraph 3 of the agreement, which provides that the Board will pay the costs, up to $5,000, of “any assistive technology” necessary for the children’s education while at Villa Maria. The Board counters that Plaintiffs themselves have breached the agreement by refusing to “return any and all assistive technology and materials purchased,” Affidavit of Brenda McNeal [doc. # 69] Ex. 1, and that this failure excuses the Board from its obligation to reimburse Villa Maria for $5,000. At oral argument, the Board’s counsel represented that the Board remained willing at that time to pay Villa Maria the $5,000 at issue, provided that the software programs and hardware devices purchased under the settlement agreement were returned to the Board. Plaintiffs respond that the term “assistive technology” in paragraph 3 includes expenses incurred for training services, and that it would be impossible to “return” such training services, the costs of which exceed $5,000.
Connecticut law requires a court, when interpreting a contract, to effectuate the parties’ intentions, which are discerned from “the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.”
Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P.,
Plaintiffs’ claim that “assistive technology” encompasses services as well as equipment is belied by the plain terms of the agreement. First, the ordinary meaning and usage of the word “technology” suggests items like software programs and hardware devices, not services such as training.
8
Second, the agreement notes
Plaintiffs have thus breached paragraph 3 of the settlement agreement by failing to return the software programs and hardware devices purchased. A party that has materially breached a contract may not recover under it.
See Shah v. Cover-It, Inc.,
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; [and] (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
Strouth v. Pools By Murphy and Sons, Inc.,
Applying this test to the present case, the Court concludes on the basis of the undisputed evidence that Plaintiffs’ breach was material. The Board has already complied with its primary obligation under the settlement agreement, set out in paragraph 1, which required the Board to reimburse the Parents up to $50,000 for the costs of Villa Maria tuition during the 2002-2003 school year. Moreover, the Board has repeatedly indicated its willingness to pay for the software and equipment purchased if those items were returned to the Board. Yet, time and again Plaintiffs have refused to do so (for no legitimate reason, in the Court’s view). Any forfeiture that Plaintiffs suffer will therefore be of their own making. However, if the Board is deprived of the return of the hardware and software, after paying for the same, the Board will be deprived of the bargain it reasonably expected when it entered into the settlement agreement. Because Plaintiffs did not fulfill their obligations under paragraph 3, neither need the Board fulfill its obligation.
See
Restatement (Second) Contracts § 241 cmt. a (1981) (observing that section 241 “is to be applied in the light of the facts of each case in such a way as to further the purpose of securing for each party his expectation of an exchange of performances”). The Court emphasizes that this wound is entirely self-inflicted, since the Board has
Ill
In sum, the Court: (1) DENIES Plaintiffs’ motion to supplement the record [doc. # 45]; (2) DENIES Plaintiffs’ motions for judgment [doc. # 49] and for summary judgment [doc. # 52]; and (3) GRANTS the Board’s motion for judgment on the administrative record [doc. # 65]. Judgment is for the Board is hereby granted on all claims.
IT IS SO ORDERED,
Notes
. At the September 22, 2003, hearing session, the Board argued that the Hearing Officer lacked authority to enforce the settlement agreement, and that issues regarding services under that agreement could not be considered by the Hearing Officer. Id. After receiving briefing from both sides, the Hearing Officer agreed that she lacked authority to enforce the settlement agreement. Id. Therefore, her Decision did not address the parties’ arguments regarding the settlement agreement.
. The Hearing Officer quoted the Guidelines for Assistive Technology for the proposition that "If a low-tech device meets the child's particular needs, then the school is not obligated to purchase the high-tech device which may also solve the same problem.” Id. at 26.
. At other points in the same brief, Plaintiffs do appear to make arguments addressed to the Board's compliance with the IDEA’S procedural requirements. For instance, Plaintiffs allege that while "Villa Maria had presented the Defendant with copies of its 2002-2003 progress and evaluation reports for A.S. ... the Defendant was entirely dismissive of any of Villa Maria's recommendations for the 2002-2004 school year." Memorandum of Law in Support of Plaintiffs’ Motion for Judgment [doc. #50] at 21. To the extent that this and similar allegations by Plaintiffs relate to the procedure by which the Board formulated A.S.’s and W.S.’s IEPs — rather than to the IEPs' content — the Court does not consider them in light of Plaintiffs' express statement that they do not allege a procedural violation.
. Plaintiffs at times seem to suggest that their Section 504 claims include health-related
. The Board disputes whether A.S. has a "disability” within the meaning of Section 504. See Defendant’s Memorandum in Support of Motion for Judgment on the Administrative Record, and Opposition to Plaintiffs’ Motion for Judgment on Counts One, Three and Four, and Plaintiffs’ Motion for Summary Judgment on Counts Two and Five of the Amended Complaint [doc. # 66] at 45-53. The Court does not resolve this dispute because, even assuming that A.S.'s health issues rendered her disabled within the meaning of the statute, the Court concludes that the Board appropriately accommodated her.
. Only Counts One and Two of Plaintiffs’ complaint asserted federal causes of action. Though the Court has already dispensed with these federal claims, the Court has chosen to exercise supplemental jurisdiction over the remaining state-law claims, rather than to dismiss them, because both parties have asked the Court to address these claims; because the issues involved in Counts Three and Four are subsumed under the now-decided issues involved in Counts One and Two; and because the parties and the Court have already invested a substantial amount of time and effort considering these issues.
See Motorola Credit Corp. v. Uzan,
. Neither party has requested to further supplement the record with respect to this claim.
. As evidence that the agreement meant to include training services, Plaintiffs note that the regulations interpreting the IDEA use "assistive technology” to mean both devices and services.
See
34 C.F.R. § 300.6 (defining "Assistive technology service” to include "Training or technical assistance”). However, the settlement agreement's language, which the Court finds to be clear, contains no reference to the Code of Federal Regulations or any other external document.
See United Illuminating Co. v. Wisvest-Connecticut, LLC, 259
Conn. 665, 666,