Plaintiff’s Memorandum in Support of His Motion for a Preliminary Injunction









Superintendent of the Killingly
Board of Education


Commissioner of the Connecticut
Department of Mental Health


Commissioner of the Connecticut
Department of Children and Families*






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, etseq. 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 novoId.

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 appropriatecurrent 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. TheClovis 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 anacute 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. SeeVander 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 Educationsupra, 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 theDavid 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 disabilitieshave 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); seealso 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,


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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