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UNITED
STATES DISTRICT COURT
FOR
THE
DISTRICT
OF CONNECTICUT
J.B.
PLAINTIFF
VS.
CIVIL
ACTION NO.
KILLINGLY BOARD
OF EDUCATION
DAVID CRESSY
Superintendent of the Killingly
Board of Education
CONNECTICUT
DEPARTMENT OF
MENTAL HEALTH
DR. ALBERT SOLNIT
Commissioner of the Connecticut
Department of Mental Health
SEPTEMBER
5, 1997
CONNECTICUT
DEPARTMENT OF
CHILDREN AND FAMILIES
CHRISTINE RAGAGLIA,
Commissioner of the Connecticut
Department of Children and Families*
DEFENDANTS
PLAINTIFF’S
MEMORANDUM IN SUPPORT OF
HIS MOTION FOR A PRELIMINARY INJUNCTION
INTRODUCTION
Plaintiff J.B. seeks a preliminary injunction ordering that the
defendants provide him with a special education residential program
in accordance with the Individuals with Disabilities Education
Act,(IDEA), 20 U.S.C. 1401, et. seq. J.B.'s need
for a special education residential program stems from the horrific
sexual abuse he suffered as a child which caused his personality
to disassociate into multiple parts. Due to this abuse, J.B. is
diagnosed as having a multiple personality disorder and pedophilia,
a repugnant and stigmatizing disability which has compromised
his local Board of Education's willingness to provide special
education to him. Other aspects of his disability include a learning
disability, attention deficit disorder (ADD) and a speech and
language disorder.
In 1995, at age eighteen, J.B.'s guardian, the state Department
of Children and Families (DCF), placed him in a residential program
for children at High Meadows in Hamden, Connecticut. DCF recognized
that High Meadows was unable to meet J.B.’s disability related
needs when it placed him there on a temporary basis. When J.B.
entered High Meadows, DCF terminated most of the special education
program he had received in another residential placement for the
previous four years. This illegally terminated special education
had addressed his disability-related needs for socialization,
daily living skills, community living skills, and appropriate
sexual behavior. Since entering High Meadows, J.B. has received
no meaningful special education to address his primary emotional
disability and no treatment. In planning J.B.'s education, DCF
refused to even consider an evaluation of J.B.’s emotional
disability by a Killingly Board of Education (KBE) specialist,
as well as an evaluation of J.B.’s multiple personality disorder
by a DCF specialist. Consequently, on March 15, 1996, J.B. requested
a special education hearing challenging the adequacy of his DCF
special education program at High Meadows and requesting a residential
special education placement that would reinstate his illegally
terminated goals and objectives for socialization, daily living
skills, living skills, and appropriate sexual behavior and enable
him to receive community based vocational education.
At the hearing, neither the DCF, KBE, nor Department of Mental
Health (DMH) defendants offered any special education program
for J.B., each claiming that other agencies were responsible for
his education. One year and a half after J.B. requested a hearing,
the hearing officer issued a decision concluding that the nature
of J.B.’s disability made him ineligible to receive the special
education previously provided to him by the KBE which addressed
his socialization, daily living skills, community living skills
and behavioral problem. Based on this conclusion, the decision
denied his request for a residential educational placement. The
hearing officer awarded J.B. compensatory education for the two
years he has spent at High Meadows without explaining what special
education he was entitled, other than to require a legal transition
plan with a community based vocational educational component.
The decision does not address the fact that at the hearing the
only testimony regarding J.B.’s availability for community
vocational education concluded that J.B. was not ready for community
vocational education and would require a residential educational
placement before he could receive this essential education.[Testimony
of Diane Cox-Lindenbaum, T. 7/1/96, p. 13].
The decision appealed never identified what J.B.’s special
education needs are or what special education J.B. is entitled
to receive nor did it discuss the special education provided to
J.B. prior to entering High Meadows and throughout his stay at
High Meadows. Instead, the decision orders the parties to meet
and determine what special education J.B. should receive. Presumably,
if J.B. is dissatisfied with their determination, he can request
yet another hearing, bringing J.B. full circle back to the point
at which he originally requested the hearing.
Only J.B. proposed a program at his hearing, requesting a residential
placement based on a KBE evaluation of his primary emotional disability.
The hearing officer rejected the program and ignored Second Circuit
controlling case law in concluding that the nature of plaintiff
J.B.’s disability excluded him from receiving special education
other than to transition him into the community.
The hearing officer's decision is directly contrary to recent
statutory changes in the 1997 Congressional reauthorization of
IDEA. The reauthorization states that its purposes are
to insure that all children with disabilities have available
to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs
and prepare them for employment and independent living.[emphasis
added].
PL 105-17 IDEA Amendments of 1997.
HR5, Sec.101, Part A, sec. 601.
The plaintiff,
in spite of the undesirable nature of his disability, is encompassed
within the Congressional intent to include "all children
with disabilities." The nature of the special education he
sought was to attain the Congressional goal of "independent
living."
J.B.’s primary
disability continues to be his serious emotional disability and
he continues to be denied special education to address this disability.
He remains institutionalized in a facility which cannot meet his
needs and which is unwilling to even consider what needs result
from his primary disability. He continues to be denied meaningful
special education. He has willingly given up his freedom for two
years to protect children in the community and to protect himself
while he has sought special education which includes treatment,
to enable him to function in a community setting.
When J.B. was
in pre-school, the defendant KBE first documented J.B.'s behavior
and attention problems. [Exhibits, P-9, 10,13]. The defendant
KBE first identified J.B. as eligible for special education in
April of 1986 when he was in third grade.[Exhibits P-29,P-30].
Although J.B. already had been diagnosed as having attention deficit
hyperactivity disorder in kindergarten, the KBE never evaluated
him for this disability. In 1989, while in the sixth grade, the
KBE identified J.B. as learning disabled.[Exhibits P-74-76, 78].
J.B. first entered
a residential placement on April 15, 1991, at age thirteen, when
DCF placed him at the Harmony Hill residential school as an adjudicated
delinquent for committing sex offenses against younger boys.[Exhibits
P-114,117, 124]. After J.B. reached the age of sixteen and his
juvenile delinquency commitment expired, he was committed to defendant
DCF as an uncared for child, making DCF J.B.’s legal guardian.
[Decision, p. 7, #27].
On May 31, 1995,
DCF admitted J.B. to High Meadows, after Harmony Hill terminated
his placement because they could no longer meet his needs. [Decision,
p. 7, #27, #26; P-12]. High Meadows, a DCF institutional facility,
was the only facility in which DCF was willing to place J.B. [B-7;
P-12, p.3]. Upon entry to High Meadows, however, DCF deleted all
of J.B.’s pre-existing special education goals and objectives
relating to his community living and socialization skills and
appropriate sexual behavior, in violation of state and federal
law.[B-14, B-30, B-50, B-61; U-33, U-107-125; Testimony of DCF
Asst. Supt. of Schools, T. 5/28/96, pp. 70-73, 7/1/96, p. 99].
Since that time, J.B. has voluntarily relinquished his freedom,
remaining institutionalized at High Meadows to protect the community
and himself while he has attempted to obtain an appropriate special
education program that will address his disability-related educational
needs. [P-3; P-8].
J.B.’s placement
at High Meadows was solely for the purpose of obtaining evaluations
to help determine what placement would be appropriate for him.[P-8;
p.7, B-7]. When neither the DCF nor the KBE conducted those evaluations,
J.B. filed for a special education due process hearing and obtained
the evaluations. As part of the November 17, 1995 settlement of
that hearing, the KBE commissioned an evaluation by a specialist,
Diane Cox-Lindenbaum, in the treatment and education of sexually
abused children. [Decision, p.2; T. 5/28/96, p.77]. The evaluator
recommended a special education for J.B. consisting of educational
programming in the following areas; social skills (Testimony of
Diane Cox-Lindenbaum, T. 5/28/96 pp. 89,90,113, 114; P-1, p. 9,
11), sex education (P-1, p. 9; T. 5/28/96 pp.86, 112, 113, T.
7/1/96 pp. 25,26), assertiveness (P-1, p. 9; T. 5/28/96 pp.90,91,
108), relapse prevention (P-1, p. 9, 12; T. 5/28/96 pp. 91, 92,
108), cognitive retraining (P-1, p. 9; T. 5/28/96 pp. 91,92),
anger management (P-1, p. 9; T. 5/28/96 pp. 97-99, 108), controlling
deviant arousal (P-1, p. 9; T. 5/28/96 pp.100, 101, 105, 106,
108), responsibility (P-1, p. 9; T. 5/28/96 pp. 103, 104), coping
skills (P-1, p. 9; T. 5/28/96 pp. 107, 108), problem solving techniques
(P-1, p. 9; T. 5/28/96 pp. 110, 111), and empathy training (P-1,
p. 9; T. 5/28/96 pp. 121). Treatment modalities she recommended
include exploration of victimization as a child (P-1, p. 9; T.
5/28/96 pp. 94-95), family therapy (T. 5/28/96 pp. 114-118), and
individual therapy (P-1, p. 9; T. 5/28/96 pp. 116, 119). Throughout
her testimony Diane Cox-Lindenbaum indicated the availability
of materials and training for teachers and residential staff to
implement all but the therapeutic components of programs like
the one proposed for J.B.; e.g. teaching and reinforcing social
skills, sex education, assertiveness, anger management, responsibility,
coping skills, problem solving techniques and empathy training.
DCF refused to
consider, much less implement, any of the KBE’s evaluator's
recommendations for J.B. [Testimony of DCF Asst. Supt. of Schools,
T. 5/28/96, pp. 62, 69]. The education program at High Meadows
did not address J.B.’s needs for special education related
to his serious emotional disorder, (other than through objectives
regarding J.B.’s classroom behavior),for his learning disability,
or for his attention deficit disorder. [Testimony of DCF Asst.
Supt. of Schools, T. 5/28/96,, p. 31, pp. 42-43, pp. 70-73, T.
7/1/96, p. 96, p. 99; U-33, U-107-125]. Consequently, J.B. has
not received any programming targeted at redressing his emotional
disabilities since 1995 or targeting his learning disabilities/ADD
since 1991. Ed., T. 7/2/96, p. 124].
J.B. filed a
second due process hearing request in 1996, seeking a special
education residential placement. The proposed placement is a residential
community based educational placement program consisting of a
24 hour intertwined program of education and treatment.[Testimony
of Eric Brown, T. 7/2/96, pp. 26-7, 29-31,36-40; Testimony of
Cox-Lindenbaum, T. 5/28/96, p.123].[Testimony of KBE Dir. of Spec.
Ed., T. 7/2/96 - pp. 160-1]. Such a program is essential for J.B.
to make meaningful progress to work and live independently in
the community. [P-1, Testimony of Eric Brown, T. 7/2/96, pp.29-31,
36-40; Testimony of Cox-Lindenbaum, T. 5/28/96, p.123; P-1]. At
the hearing, neither the KBE, DMH nor the DCF defendants proposed
an alternative educational program for J.B. on the grounds that
they had no continuing legal responsibility for his education.
[Testimony of KBE Dir. of Spec. Ed., T. 7/2/96, pp. 94; Testimony
of DCF Asst. Supt. of Schools, T. 5/28/96 p. 71-74].
Although the
hearing officer ruled that J.B. was not entitled to a residential
special education program due to the nature of his disability,
she failed to make findings defining what components an appropriate
program for J.B. should contain, leaving that decision up to defendants.[Decision,
pp. 14-#17 15-#18,19, 17-#1] The hearing officer did order the
KBE to provide to J.B. up to two years of compensatory education
due to his inadequate transition plan. [Decision, pp. 12-#11,
18-#4]. J.B. has therefore appealed the hearing decision, seeking
a residential special education program and a preliminary injunction.
J.B. meets the
dual standards for the issuance of a preliminary injunction. Under
Second Circuit case law, a plaintiff must show that there is possible
irreparable harm and "either (1) likelihood of success on
the merits of its case, or (2) sufficiently serious questions
going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly in [the] favor"
of the party requesting the preliminary relief. Reuters Ltd.
v. United Press Int'l., Inc., 903 F.2d 904, 907 (2nd Cir.
1990); See also Ruso-Lino Beverage Distributor v. Coca-Cola
Bottling Co., 749 F 2d. 124 (2nd Cir. 1984).
Additionally,
it is generally accepted that
"[t]he burden
(of showing probable success) is less where the balance of hardships
tips decidedly toward the party requesting the temporary relief."
Dino DeLaurentis, Cinematografica, A.P.A. v. D-150, Inc.
366 F.2d. 373 (2nd Cir. 1966). In such a case, a moving party
may obtain a preliminary injunction if he has raised questions
going to the merits that are serious, substantial, and difficult
as to make them a fair ground for litigation and thus for more
deliberate investigation. Unicorn Management Corp. v. Koopers
Co., 366 F. 2d. 199 (2nd. Cir. 1966); Dino DeLaurentis,
366 F.2d. 373; Hamilton Watch Co. v. Benrus Watch Co.,
206 F.2d. 738, 740 (2nd. Cir. 1953). Thus, irreparable injury
is a pre-requisite which must be coupled with either a showing
of a likelihood of success on the merits or a serious enough legal
question to justify litigating the case and a balance of interest
in favor of the moving party.
In this case,
if the court fails to issue a preliminary injunction, J.B. will
continue to suffer the loss of his freedom in an institutional
setting that exacerbates his disability and fails to provide him
with essential special education and treatment. Moreover, given
the nature of J.B.'s disability and the age of the student population
at High Meadows, each day J.B. spends in that institution endangers
him and these children. Certainly J.B.'s loss of freedom, lack
of educational services, and the dangerous nature of his current
placement rise to the level of irreparable harm required for the
court to issue an injunction. The threats to the health and safety
of J.B. "...are not remote or speculative but actual and
imminent." New York v. Nuclear Regulatory Commission,
550 F.2d. 745, 755 (2nd Cir. 1977) (internal citations omitted).
Moreover, the harm to J.B. is a "possible injury" which
is the contingency required before a preliminary injunction will
be issued. Stuart v. Nappi, 443 F. Supp. 1235, 1240 (D.
Conn. 1978).
In balancing
the interests of the parties, the court should look to see if
"...the importance of the injunction to the plaintiffs is
such that it outweighs the inconvenience which will be visited
upon the defendant from the issuance of the injunction.."
Linesman v. World Hockey Association, 439 F. Supp. 1315,
1319 (D. Conn., 1977). In this case, while an injunction is of
critical importance to J.B., defendants are only required to continue
the cost of a residential placement for J.B., with the addition
of the appropriate special education, a legal obligation they
have collectively breached for the past six years. Moreover, J.B.
has languished in High Meadows without appropriate special education
for over two years while he exhausted his administrative remedies.
Thus, J.B. meets the likelihood of success and the hardship balancing
standard for the granting of a preliminary injunction, and respectfully
prevails upon the court for its issuance. J.B.’s plight is
the collective fault of the defendants, all of whom have denied
responsibility for his special education while allowing him to
be warehoused, at the expense at be of his freedom and receipt
of special education.
Although the
reviewing court normally gives due weight to an administrative
proceeding, this "due weight" deference standard is
not applied where the hearing officer makes a conclusion concerning
an issue of law. See Mrs. B. v. Milford Board of Education,
103 F.3d 1114, 1122 (2d Cir. 1997). In Mrs. B., the Second
Circuit stated:
[T]he `due
weight' we ordinarily must give to state administrative
proceedings is not implicated with respect to that conclusion,
because it concerns an issue of law, namely, the proper
interpretation of the federal statute and its requirements.
Id.
Consequently,
in J.B.'s case, where the hearing officer failed to follow IDEA
mandates in neglecting to decide what components J.B.'s current
educational program should contain, failed to apply IDEA regulations
in excluding J.B. from related services, ruled against J.B. without
applying IDEA legal mandates regarding the standard for determining
residential placement or the standard for determining what issues
are treatment and which are education, the hearing officer's decision
should be reviewed de novo. Id.
Moreover, in
Board of Education v. Rowley, the Supreme Court explained
that in reviewing an administrative decision "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."
Board of Education v. Rowley, 458 U.S. 176, 205-207, 102
S. Ct. 3034 (1982). In J.B.'s case, since the Board violated significant
procedural requirements of IDEA, this court need not reach the
second step of deferential substantive review of J.B.'s program
at all. Id. at 206.
J.B. introduced
unrebutted evidence that only through a community based program
could he learn essential community living and working skills and
only a community based program could stop the continuing harm
to him resulting from institutionalization. The decision, however,
concluded J.B. was not making educational progress in these areas.
The KBE conceded that J.B. would be unavailable for education
in the community without a 24 hour residential placement and that
the components of the program proposed for J.B. were intertwined.[Testimony
of KBE Dir. of Spec. Ed. T.7/2/96 pp. 100, 105].
The IDEA requires
the provision of a special educational residential placement if
placement
in a public or private residential program is necessary
to provide special education and related services to a child
with a disability.
34 C.F.R.§ 300.302.
Additionally,
a residential placement is required for a child’s emotional
problems when the child’s emotional problems prevent the
child from making meaningful educational progress, Mrs. B.
v. Milford Board of Education, 103 F.3d at 1121. An educational
residential placement will be required even if medical, social
or emotional problems require psychiatric hospitalization when
they "create or are intertwined with the educational problem."
Id.
At the hearing,
the testimony introduced on J.B.’s behalf that he requires
a residential placement to receive educational benefit in the
areas of socialization, appropriate behavior, daily living skills,
and community living and working skills was unequivocable.[Testimony
of Cox-Lindenbaum, T. 5/28/96, p.123; P-1; Testimony of Eric Brown,
T. 7/2/96, pp.29-31,36-40] The same is true of testimony that
continuation of J.B.’s institutionalization at High Meadows
is damaging to J.B. and prevents J.B. from learning essential
community and working living skills.[P-1, Testimony of Eric Brown,
T. 7/2/96, pp.29-30, 36-40]. No defendant presented testimony
at the hearing to the effect that J.B. could be educated without
a residential placement.
The hearing officer
misconstrued testimony from the expert who evaluated J.B. and
who presented the educational residential program proposed for
J.B. at the hearing. This expert testified that if J.B. received
a 24 hour residential special education program, he might be able
to attend a community public school. The hearing officer ignored
the context of this testimony just as the testimony that J.B.
required a residential placement to participate in community vocational
education was ignored. The uncontested testimony was to the effect
that J.B. could only attend a public school if he received the
residential placement program with 24 hour reinforcement of components
implemented throughout the day. Instead, the hearing officer concluded
erroneously that the expert testified that J.B. could be educated
in a community school without such a program. [Decision, p.14-#6].
There was no evidence at the hearing that J.B. could be educated
in a community school without a residential placement or that
J.B. could make educational progress in socialization, behavior
and community living or in community based vocational education,
which the hearing officer determined was an essential component
of J.B.’s special education, without a residential educational
placement. In fact, at the hearing, the KBE Director of Special
Education testified that J.B. would not be available for community
education without a residential placement.
Recently, J.B.
received a favorable Social Security Administration hearing decision
on his application for Supplemental Security Income (SSI)benefits.
The decision was based on the testimony of an independent psychiatrist.
It concluded that J.B. suffers from "severe special limitations"
which result in "limitations in social functioning; in his
abilities to perform activities of daily living" as well
as "intense and unstable interpersonal relationships and
impulsive and damaging behavior." The decision concluded
that J.B. had marked "restriction of activities of daily
living", marked "difficulties in maintaining social
functioning", "deficiencies of concentration" and
"dysthymia." This decision is entirely consistent with
the unrebutted testimony presented on J.B.’s behalf that
his disabilities are so severe that he requires a residential
placement to make meaningful educational progress. After six consecutive
years of institutionalization from age fourteen through twenty,
J.B. does not possess the skills, knowledge, and cognitive skills
to survive in a community setting without 24 hour support.
In an action
challenging the adequacy of a special educational program, a determination
must be made whether that educational program is reasonably calculated
to allow the child to receive meaningful educational benefits.
Mrs. B v Milford Board of Education, 103 F.3d at 1120-1.
In the instant case, however, the hearing officer did not make
that determination. Rather, the hearing officer stated that "[i]t
is uncertain whether J.'s progress was reasonable in light of
his ability" and ordered that the parties meet to determine
appropriate goals and objectives for J.B., precisely the dispute
which led to the hearing originally. [Decision, pp. 13-#13, 18-#4].
In reaching this non-decision, the hearing officer ignored the
fact that J.B. had not received any special education for the
past six years for his academic related disabilities of learning
disabilities and ADD. The hearing officer also ignored J.B.’s
test scores which reported such lack of education benefit as two
years progress over a nine year span in math. [Decision, p. 14-#17;
P-22; U-33].
The hearing officer's
failure to make a determination regarding the components for an
appropriate program for J.B. is inexplicable considering the fact
that she awarded up to two years of compensatory vocational education
to him. [Decision, p. 18-#4]. Under IDEA case law, compensatory
education is awarded to compensate for a legally insufficient
educational program and begins after the student's entitlement
to special education ends. Burr by Burr v. Ambach, 863
F.2d 1071 (2d Cir., 1988), vacated and remanded sub nom,
Sobol V. Burr, 492 U.S. 902 (1988), reaff'd, 888
F.2d 258 (2d Cir.), cert. denied, 494 U.S. 1005 (1990).
In J.B.'s case, he is eligible to receive special education through
the school year in which he turns 21, followed by the compensatory
education. In awarding compensatory education to J.B.,the hearing
officer recognized the inadequacies of J.B.'s current program
but did not rule on what he should receive.
The hearing officer's
failure to make a determination regarding what an appropriate
current program should contain, is especially significant
since at the hearing below, none of the defendants proposed any
special education program for J.B. The KBE, DMH and the DCF defendants
all claimed that they had no continuing legal responsibility for
his education. Only plaintiff J.B. proposed a educational program,
a residential educational program based on the KBE sexual evaluation
of J.B. Neither the defendants nor the hearing officer were able
to develop a plausible educational program for plaintiff without
a residential placement. Since the decision rejected the special
education program proposed by J.B., the end result was that the
hearing officer left J.B. without a meaningful special education
program.
The proposed
residential educational program for J.B. is an attempt to reinstate
the illegally terminated goals and objectives J.B. received, albeit
without meaningful progress, for the four years proceeding his
placement at High Meadows. 34 C.F.R.§§300.344,300.532, 34 C.F.R.§104.35(a).
These goals and objectives addressed J.B.’s critical need
for socialization, behavior, and community living skills. In light
of the previous failure to provide J.B. with meaningful education
in these areas, the proposed program included 24 reinforcement
of educational programming, to be provided in a community based
home through intertwined components, as well as special education
addressing his previously ignored academic related disabilities.
IDEA requires
the provision of a broad range of "related services"
to assist disabled children to benefit from special education.
34 C.F.R. §300.16. Include among these related services are speech
pathology, psychological services, physical and occupational therapy,
family therapy, social work, and community living skills. 34 C.F.R.
§300.16.
The concept
of education under the Act clearly embodies both academic
instruction and a broad range of associated services traditionally
grouped under the rubric of ‘treatment.’ Any attempt
to distinguish academics from treatment when defining ‘educational’
placement runs counter to the clear language of the Act.
Tilton v. Jefferson County Bd. of Education, 705
F.2d 800, 803 (6th Cir. 1983).
IDEA, in establishing
required related service, limits medical services to "services
provided by a licensed physician to determine a child’s medically
related disability." 34 C.F.R. §300.16(b)(4). The decision
under appeal consistently confuses treatment, which is mandatory
under IDEA, with medical services, which are restricted to eligibility
determination by IDEA.[Decision, pp. 14-#17, 15-#18,19]. The decision
mistakenly concludes that the special education program proposed
for J.B. does not constitute special education because it includes
"clinical components" which the decision mistakenly
equates with medical services. [Decision, p. 15-#18,19]. The decision
never explains what is meant by "clinical components"
nor does it identify which components of the proposed program
it classifies as "clinical components." The plaintiff
can only guess which components of the proposed program the hearing
officer believes are "clinical components." The most
likely components seem to be "exploration of victimization
as a child", "family therapy," and "individual
therapy." All of these components fall within the IDEA definitions
of related services; i.e. psychological services, family therapy,
and social work. Labeling them as "clinical components"
does not change the fact they fall within the IDEA definition
of required related services. The decision under appeal never
discusses related services and does not appear to recognize their
validity under IDEA.
The decision
builds on its conclusion that the proposed program contains prohibited
"clinical components" to finally hold that the whole
of J.B.’s proposed program is tainted by the presence of
"clinical components" and therefore does not constitute
special education.[Decision, p. 15-#18,19]. To support this unique
line of legal reasoning, the hearing officer cited long since
discarded dicta found in Clovis Unified School District
v. Cal. Office of Admen Hearings, 903 F.2d 635 (9th
Cir. 1990), a decision which concluded that psychiatric hospitalization
constituted medical services prohibited by IDEA. The Clovis
dicta relied upon by the hearing officer indicated that
any services, even when the provider was not a member of the medical
profession, provided to treat an underlying physical or psychological
illness, could constitute medical services. As medical services,
they would not constitute special education under IDEA. Id.
at 643-4. This dicta has been repudiated and the holding
in the decision modified in subsequent Ninth Circuit decisions.
Since Clovis, the Ninth Circuit has ruled that only where
psychiatric hospitalization is primarily for medical, as
opposed to educational, reasons to treat an acute psychiatric
crisis, are the services medical and the placement non-educational.
Taylor v. Honig, 910 F.2nd 627, 632 (9th Cir.
1990). See also County of San Diego v. California Special Education
Hearing Office, 93 F.3rd 1458,1468 (9th Cir. 1996).
Even in instances
where medical services are integral components of an education
program, courts have determined that the placement as a whole
constitute a special education program. Within the Second Circuit,
the decision in Vander Malle v. Ambach, cited with approval
in Mrs. B. v. Milford Board of Education, found a psychiatric
hospitalization constituted recommendations a residential educational
placement. See Vander Malle, 667 F.Supp. 1015, 1039 (S.D.N.Y.
1987), cited in Mrs. B. v. Milford, 103 F.3d at 1122, see
also Babb v. The Knox County School System, 965 F.2d 104
(6th Cir. 1992). Under the holding in Mrs. B v Milford Board
of Education, supra, special education under IDEA does
include treatment of a mental illness.
Although under
Second Circuit case law J.B. could request a special education
program with integrated medical services, even to the point of
psychiatric hospitalization, he has not. The educational residential
placement proposed for J.B. does not include any medical services
components. The proposed program does include psychological services,
family counseling, and social worker services, all of which are
IDEA related services all of which, contrary to the hearing decision,
constitute special education.
The objective
of these related services is to break down unconsciously formed
barriers to the child’s pain and suffering experienced through
sexual abuse. By helping the individual to understand the reality
of his victimization, empathy is created for other individuals,
who might normally be his victims.[Testimony of Cox-Lindenbaum,
T. 5/28/96, pp. 84-7,115, 121]. The pain and horror suffered by
victims, like J.B., of long term sexual abuse, creates incredible
internal turmoil which makes concentration and learning difficult.
In J.B.’s case, the pain was so great that his personality
disassociated into multiple personalities. Treatment of sexually
abused individuals can be successful and in J.B.’s case,
the prognosis is positive.[Testimony of Cox-Lindenbaum, T. 5/28/96,
pp. 97,100, 121,124]. Moreover, the provision of the requested
related services should enable J.B. to attain appropriate academic
instructional goals and goals for socialization, community living
and working skills, and successful integration into the community.
IDEA, its legislative
history, and its relevant case law require special education under
IDEA to address disabled children’s deficits, with a goal
of enabling them ultimately to live in a community setting. The
legislative history of the original enactment of IDEA demonstrates
the clear intent of Congress to provide the range of services
sought on behalf of J.B. to accomplish the same objectives; i.e.
community living capability. In 1997, Congress reaffirmed and
underscored the importance of community living capability for
disabled students by incorporating the legislative history in
the 1997 Congressional reauthorization of IDEA.
With proper education
services many [handicapped children] would be able to become productive
citizens, contributing to society instead of being forced to remain
burdens. Others, through such services, would increase their independence,
thus reducing their dependance on society.
Providing educational
services will ensure against persons needlessly being forced into
institutional settings.
Senate Report
No. 168, 94th Congress, 1st Sess. 2, reprinted in 1975
U.S. Code Cong. & Ad. News 1433.
The Senate Report
stressed the long range taxpayer savings that could be achieved
through the avoidance of institutionalization by providing special
education to handicapped children. The special education sought
for J.B. seeks identical goals and encompasses identical related
services to those specifically included as special education.
In addition to
IDEA's clear Congressional directive, case law also supports J.B.'s
need for residential education. The courts have consistently held
that IDEA special education includes treatment of children's disabilities
through related services and the attainment of self-sufficiency.
Notably, the first Supreme Court decision interpreting federal
special education laws found that self-sufficiency was a goal
of special education. Hendrick Hudson Dist. Bd. of Ed. v. Rowley,
458 U.S. 176, 205 (1982).
The decision
most similar to the instant case addresses the same disability
and the same requested special education at issue in this
case. David D. v Dartmouth, 775 F.2nd 411 (1st
Cir. 1985). The disabled child in David D. v Dartmouth,
had sexually deviant behavior that caused him to be dangerous
to children in the community. Id. at 415-416. The First
Circuit Court of Appeals held that IDEA requires the provision
of special education to redress these behaviors and their underlying
disability. This is precisely what J.B. is requesting for his
special education and what the David D. v Dartmouth, holding
requires be provided. Id. at 423.
In the hearing
decision below, however, the hearing officer wrongly concluded
that the David D. case is inapplicable in Connecticut because
Massachusetts, where David D. resided, has a state statute that
requires educational maximization rather than the Connecticut
and federal standard of appropriate education. The David D.
decision, however, did not rely on the Massachusetts statute in
that portion of the First Circuit decision relating to the scope
of special education. Id. at 423; 644-5.
The validity
of the David D. v Dartmouth decision is buttressed by the
subsequent amendment to the IDEA regulations which added rehabilitation
counseling to focus specifically on achieving independence and
integration into the community. 34 C.F.R. 300.16. These are precisely
the goals and objectives J.B. is requesting.
At the hearing,
the KBE Director of Special Education and the Assistant Superintendent
of the USD#2 conceded that the scope of mandatory special education
extends to daily living skills, socialization, and behavior in
the community. [Testimony of DCF Asst. Supt. of Schools, T. 5/28/96,
pp. 70-74; Testimony of KBE Dir. of Spec. Ed., T. 7/2/96, pp 151-157].
The KBE Director of Special Education further testified that special
education which enables mentally retarded and traumatic brain
injured children to live in the community is regularly provided
and that J.B., although his disability is different, is entitled
to this same education to enable him to live in a community setting.
[Testimony of KBE Dir. of Spec. Ed., T. 7/2/96, pp 151-157].
Recent statutory
changes in the 1997 Congressional reauthorization of IDEA emphasize
the intent of Congress to provide special education to "all
children with disabilities." The reauthorization states that
its purposes are
"to
insure that all children with disabilities have available
to them a free appropriate public education that emphasizes
special education and related services designed to meet
their unique needs and prepare them for employment and independent
living.[emphasis added].
P.L. 105-17 IDEA
Amendments of 1997.
HR5, Sec.101, Part A, sec. 601.
The plaintiff,
in spite of the repugnant nature of his disability, is encompassed
within the Congressional intent to include all children with disabilities.
In its findings added to IDEA in the 1997 Reauthorization Congress
stated its:
national
policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiency for individuals
with disabilities.
HR5, Sec.101,
Part A, sec. 601.
It is uncontested
that J.B. meets the IDEA eligibility standards with an emotional
disability. There are no exceptions for the provision of special
education under IDEA based on the stigmatizing nature of an individual’s
disability. J.B. is entitled to special education to achieve the
Congressional goal of self-sufficiency and independent community
living in spite of the nature of his disability. The hearing decision
has denied him this right by leaving him without a meaningful
special education program.
Under Connecticut
common law, "a party may maintain a claim for damages based
upon a promise which induces the party's action or forbearance,
if such action or forbearance is undertaken in reasonable reliance
upon the promise" under a theory of promissory estoppel.
Finley v. Aetna Life & Cas. Co., 520 A.2d 208, 216,
202 Conn. 190 (1987); see also Sheets v. Teddy's
Frosted Foods, Inc., 179 Conn 471,475, 427 A.2d 385 (1980);
Hebrew Univ. Assn. v. Nye, 148 Conn 223, 232, 169 A.2d
641 (1961); 1 Restatement (Second), Contracts (1981) §90.
There are three
essential elements for a successful claim of promissory estoppel:
"[1] a clear and unambiguous promise; [2] a reasonable and
foreseeable reliance by the party to whom the promise is made;
and [3] an injury sustained by... reason of his reliance."
R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69,78
(2nd Cir 1984); Dacourt Group, Inc. v. Babcock Industries,
Inc., 747 F. Supp. 157, 161 (D. Conn. 1990); see also
Chem-Tek, Inc. v. General Motors Corp., 816 F. Supp. 123,
131 (D. Conn. 1993).
The DMH unconditionally
promised to provide a residential treatment program to J.B. on
September 4, 1996. (T. page 3 of 9/4/96 hearing.) The parties
to this hearing agreed to the following: The Killingly Board of
Education would provide J.B. with an appropriate education program,
coordinated with treatment services provided by DMH. Hearing Officer
Mangs would retain jurisdiction of this case for six months. At
the end of this six month period, all outstanding claims between
any parties to the hearing would be settled, provided there is
no further action in the six month period. (T., page 3 of 9/4/96
hearing.) The Killingly Board of Education agreed to provide J.B.
with an appropriate education program ("...agrees to this
responsibility...") "through the school year of J.B.’s
21st birthday." (T., page 4 of 9/4/96 hearing.)
In addition,
DMH agreed to provide treatment services to J.B. beginning no
later than November 15, 1996. (T., page 4 of 9/4/96 hearing.)
DMH breached
the agreement of September 4, 1996, to provide treatment services
for J.B. to address his disability. As Assistant Attorney General
Gerner conceded at the May 9, 1997, hearing: "...we attempted
to do something, we said we would do it, and were unable to do
it, and we aren't proposing anything in its place."(T., page
19 of 9/4/96 hearing.) DMH made an unconditional promise which
it has not fulfilled and did not represent that its provision
of residential treatment services was conditioned on securing
funding, or any other matter.
J.B. relied to
his detriment on DMH's promise in that he changed his litigation
position based upon it. The DMH attorney admitted the same: "...everyone
did rely on our efforts to try to do something between then and
now." (T., page 25 of 9/4/96 hearing.) J.B. gave up his freedom
for a period in excess of nine months during which time he received
no treatment for his severe disability.
In the instant
case, DMH indicated a present intention to undertake a definite
obligation, the provision of treatment and 24 hour supervised
residential services for J.B.. DMH's representations were not
a mere expectation of a future contract since DMH promised the
program would be in place by a date certain. DMH could reasonably
have expected that its offer to provide supervised residential
treatment for J.B. would induce reliance, as its offer was definite
and unconditional. DMH's promise did in fact induce reliance,
as J.B. changed his litigation position agreeing to an unlimited
continuance of this action which has extended for 9 months during
which time he has voluntarily remained in a locked placement without
critically needed treatment for his severe disability. Consequently,
DMH has breached a valid and enforceable contract with J.B. which
it should be required to comply with.
J.B. has languished
in an inappropriate program for two years while his local board
of education and various state agencies try to shift responsibility
for J.B.’s educational program to one another. The language
of the IDEA anticipated this situation and addressed it very clearly.
The statute states that the State Educational Agency (SEA) shall
be responsible for assuring that all IDEA requirements are carried
out by all programs in the state, including programs administered
by any other state or local agency. 20 U.S.C. §1412(6). The statute
further explicitly states that it
shall not be
construed to limit the responsibility of agencies other than educational
agencies in a State from providing or paying for some or all of
the costs of a free appropriate public education to be provided
children with disabilities in the State.
20 U.S.C. §1412(6).
Finally, 20 U.S.C. § 1413(a)(13) mandates that the interagency
agreements must resolve disputes among agencies.
34 C.F.R. §300.152
tracks the language of its authorizing statute, 20 U.S.C. 1413(a)(13).
Appendix C to 34 C.F.R. Part 300, states that the SEA bears ultimate
responsibility for ensuring that each agency is in compliance
with the IDEA, regardless of which agency is responsible for the
child. Additionally, it states that: "[w]hile the SEA has
flexibility in deciding the best means to meet this obligation
(e.g., through interagency agreements), there can be no failure
to provide FAPE due to jurisdictional disputes among agencies."
(emphasis added). Moreover, Section 300.2(b) states that the IDEA
applies to all subdivisions of the State which are involved in
the education of children with disabilities. Appendix C specifically
identifies Department of Mental Health as such an agency.
On July 1, 1996,
the hearing officer added the Department of Mental Health as a
party to this hearing over its objection and in response to J.B.'s
request. J.B.'s situation is precisely that which the IDEA tried
to avoid through its inter-agency provision. It is the result
of the collective failure of DMH as well as the KBE, the DCF,
and the State of Connecticut to adopt and enforce meaningful inter-agency
agreements, in violation of IDEA's mandate. Although a DMH/DCF
interagency agreement exists, it fails to delineate responsibility
for the provision of special education between DCF and DMH in
the agreement. [See Interagency Agreement, Client Transition
From Department of Children and Families and Department of Mental
Health; Exhibit U-155]. It fails to set forth standards for
eligibility and has no standards for what services will be rendered.
As such, the document is a nullity for all practical purposes.
The agreement provides no basis to determine what individuals
will eligible for services or what services they will be eligible
for. Consequently, it fails to satisfy the IDEA requirement for
interagency agreements.
If Connecticut
had complied with the IDEA requirement for such interagency agreement
and co-operation, in all likelihood, this case would be unnecessary.
The KBE and DCF have conceded the legal insufficiency of J.B.'s
Individualized Transition Plans (ITPs). These documents contain
absolutely no transition planning for J.B. The absence of transition
planning for J.B. is the direct result of the lack of a meaningful
interagency agreement delineating what agency or agencies will
be responsible for disabled individuals like J.B., post age eighteen.
The consequence for J.B. from the failure to comply with IDEA’s
mandate for interagency agreements and resulting lack of transition
planning has been two lost years in an institution that is not
equipped to provide the appropriate education and treatment required
by the severity of his disability. DMHAS, as a state agency subject
to the IDEA is partially responsible for this situation.
J.B.’s primary
disability continues to be his serious emotional disability and
he continues to be denied special education to address this disability.
He remains institutionalized in a facility which cannot meet his
needs and which is unwilling to even consider what needs result
from his primary disability. He continues to be denied meaningful
special education. He has willingly given up his freedom for two
years to protect children in the community and to protect himself
while he has sought special education, including treatment, to
enable him to be able to function in a community setting. J.B.
should not be denied the same special education programming enabling
children with different disabilities to learn to live in a community
setting.
Respectfully
submitted on behalf of the plaintiff,
By________________________________
Douglas M. Crockett
Anne Louise Blanchard
Connecticut Legal Services, Inc.
P.O. Box 258; 872 Main Street
Willimantic, CT 06226
Tel. (860) 225-8678
Fed. Bar #06166; Fed. Bar #ct08718
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