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Is dismissal
from a Due Process hearing an appropriate remedy for parental non-compliance
with a hearing officer's order? Yes says the federal district court
of Connecticut in P.S. v. Brookfield, a short but thoughtful
decision that affirms dismissal of a claim when the parents refused
to allow their child to be evaluated by the board of education's
psychologist.
P.S.,
a sophomore enrolled at a private catholic school in Danbury in
1998, experienced neurological and psychiatric symptoms in December
1998 – so much so that he was admitted to the Yale Psychiatric Institute
for a three-week period for observation and tests. During his stay
at Yale, P.S. was diagnosed as suffering from schizophreniform disorder.
Upon his release, P.S. entered into a daytime treatment program
and began receiving homebound tutoring services from the Brookfield
Public Schools ("Brookfield"). Subsequently, Brookfield convened
a planning and placement ("PPT") team meeting at which the PPT determined
that prior to "identification" as a special education student, P.S.
needed to have his medical and educational needs evaluated – and
P.S.'s mother signed a consent form agreeing for P.S. to be evaluated
by a local psychologist. The next day, P.S. parents, through counsel,
revoked the consent for psychological evaluation, and requested
a Due Process hearing. The grounds for the request were Brookfield's
failure to evaluate P.S., denial of an appropriate program, and
denial of appropriate placement. On April 21, 1999, the Due Process
hearing officer granted Brookfield's motion to allow the P.S. to
be psychologically evaluated. P.S.'s parents did not comply, and
after hearing the case and presentation of evidence, the hearing
officer dismissed P.S.'s claim, concluding that the IEP process
"was stymied by the parents' withdrawal of their permission to evaluate
[PS]."
P.S.'s
parents filed an appeal to federal district court seeking reimbursement
for the cost of his unilateral placement in private school, claiming
that (1) Brookfield failed to provide P.S. with a public placement,
thereby denying him a free appropriate public education; and (2)
his parents' private placement was appropriate.
The
court, in a concise but pointed opinion, makes quick work of the
plaintiff's three-part argument. First, P.S.'s claim that Brookfield
did not have the right to conduct an evaluation prior to identifying
P.S. failed on numerous grounds, including the court's indication
that there is no indication in any of the statutes that a PPT is
required to identify a child before conducting evaluations. In addition,
the parents' claim that a Yale Psychiatric Institute discharge (containing
the diagnosis of schizophreniform disorder), could not stand on
its own as a basis for special education identification. The court
also noted that a psychological evaluation is exceptionally relevant
to identification (citing Regs. of Conn. State Agencies § 10-76d-9(a)).
Second,
there was no evidence to support the parents' contention that Brookfield's
proposed evaluator was not qualified, as there was no indication
that the school wanted to do anything other than perform a psychological
evaluation.
Third,
and most importantly, the parents urged the court to adopt a new
legal standard in the circuit whereby parents' legitimate concern
for their child's health can excuse the need to consent to an evaluation.
Tiptoeing around the legal issue, the court held that there was
no evidence presented that the type of evaluation that would have
been conducted by Brookfield's psychologist would cause harm to
P.S. Indeed, the parents' main concern stemmed not from a legitimate
fear of harm, but mostly because they were concerned that Brookfield's
psychologist would not be impartial and might make a recommendation
they didn't like.
Because
the Board was entitled to perform the requested evaluation, the
plaintiffs lost their right to reimbursement by failing to make
P.S. available for the evaluation. As a result, the court granted
Brookfield's motion for summary judgment.
Judge
Underhill's memorandum decision may be accessed by going to the
District Court's website at www.ctd.uscourts.gov/Opinions/013105.SRU.PS.pdf.
(JES 3/05)
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