Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE C. H., Plaintiff, v. : : : : : C. A. No. 07-cv-00193-MPT : : : : : :

THE CAPE HENLOPEN SCHOOL DISTRICT, et al., Defendants.

PLAINTIFF'S OPENING BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT Bruce L. Hudson, Esq., Delaware Bar No. 1003 800 N. King Street, Suite 302 Wilmington, DE 19801 (302) 656-9850 Wayne D. Steedman, Federal Bar No. 09474 Callegary & Steedman, P.A. 201 N. Charles Street, Suite 1402 Baltimore, Maryland 21201 410-576-7606

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDINGS..........................................................1 SUMMARY OF THE ARGUMENT..................................................................................1 STATEMENT OF FACTS..................................................................................................3 THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)..........7 STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE.............................................................................................................................8 ARGUMENT.....................................................................................................................11 I. Standard of Review For Summary Judgment...............................................11 II. Standard of Review For Hearing Panel's Decision and Order...................11 III. The Hearing Panel Erroneously Concluded That There Was No Need For an IEP To Be In Place At the Beginning Of The School Year.........................12 A. The Panel Erroneously Analogized C.H.'s Situation to an Out-OfState Transfer...........................................................................................12 B. The Panel Erred in Finding That the District Was Not Consistently Responsible for C.H.'s Education..........................................................15 C. The Panel Erred in Holding That C.H. Was Required to Re-enroll in The District Before the District Became Responsible For His Education..................................................................................................15 IV. The Hearing Panel Erroneously Concluded That the District Did Not Commit a Procedural Violation By Failing to Issue a Notice for a September 11, 2006 IEP Meeting...........................................................................................18 V. The District's Procedural Violations Constituted a Denial of FAPE.........21 VI. The Parents Are Entitled to Be Reimbursed For the Costs of The Gow School....................................................................................................................24 CONCLUSION..................................................................................................................24

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TABLE OF AUTHORITIES Cases Bd. of Educ. Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982)....................................................................................................passim Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359 (1985)...........................................................................................................24 Honig v. Doe, 484 U.S. 306 (1988).......................................................................................................7, 21 Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3d Cir. 2004)...............................................................................................12 S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260 (3d Cir. 2003).........................................................................................11, 12 Gadsby By Gadsby v. Grasmick, 109 F.3d 940 (4th Cir. 1997).........................................................................................7, 21 E.H. v. Tirozzi, 779 F.Supp. 53 (D. Conn. 1990)..........................................................................................7 Fisher v. Bd. of Educ. of the Christina Sch. Dist., 856 A.2d 552 (Del. 2004)............................................................................................11, 12 Statutes Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq........................................................................................................1 20 U.S.C. § 1400..................................................................................................................7 20 U.S.C. § 1401..................................................................................................................3 20 U.S.C. § 1412................................................................................................................24 20 U.S.C. § 1414........................................................................................................7, 8, 13 20 U.S.C. § 1415..................................................................................................................8 29 U.S.C. § 705....................................................................................................................3 Fed. R. Civ. P. 56(c)..........................................................................................................11 34 C.F.R. § 300.33.............................................................................................................16 34 C.F.R. § 300.300...........................................................................................................16 34 C.F.R. § 300.321.............................................................................................................7 34 C.F.R. § 300.322...........................................................................................................18 34 C.F.R. § 300.323.....................................................................................................12, 14

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34 C.F.R. § 300.513...........................................................................................................21 14 Del. C. § 202.....................................................................................................13, 14, 15 14 Del. Adm. C. § 925.22..................................................................................................18 14 Del. Adm. C. § 925.22.1.1......................................................................................18, 20 14 Del. Adm. C. § 925.22.1.2............................................................................................19 14 Del. Adm. C. § 925.22.2.1............................................................................................19 14 Del. Adm. C. § 925.22.3...............................................................................................19 14 Del. Adm. C. § 925.22.4...............................................................................................19 14 Del. Adm. C. § 925.23.2...............................................................................................20 14 Del. Adm. C. § 925.23.4...............................................................................................14 14 Del. Adm. C. § 925.23.5...............................................................................................14 14 Del. Adm. C. § 926.3.2.................................................................................................21 Other Authorities Cape Henlopen Sch. Dist., 24 IDELR 1087 (1996)................................................................................................22, 23 In Re: Student with a Disability, 27 IDELR 1170 (1998)......................................................................................................23

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NATURE AND STAGE OF THE PROCEEDINGS On September 7, 2006, the Plaintiff requested an administrative due process hearing alleging that the Cape Henlopen School District (hereinafter, "the District") and the Delaware Department of Education (hereinafter, "the Department") had violated the Individuals with Disabilities Education Act (hereinafter "IDEA"), 20 U.S.C. § 1400 et seq. Specifically, the Plaintiff alleged that the District had failed to timely develop and Individualized Eduation Plan (hereinafter, "IEP") for student C.H.; that the District had failed to provide IEP services in a timely manner, and in compliance with regulations under the IDEA; that the District failed to timely provide the Plaintiff with required notice of a meeting to develop an IEP for C.H.; that the District failed to timely evaluate C.H. for necessary speech and language services; and that the District failed to timely review and consider relevant information in developing an evaluation of C.H. On January 6, 2007, the administrative due process hearing panel (hereinafter, "the Panel") issued its Hearing Order and Decision rejecting four of the Plaintiff's five claims, finding only that the District's notice for an IEP meeting did not provide sufficient information as to content of the meeting. In the Matter of CH, DE DP 07-06. On April 5, 2007, the Plaintiff filed a Complaint for Declaratory and Injunctive Relief (hereinafter "the Complaint") appealing that decision in this Court. Defendants filed an Answer to the Complaint on June 14, 2007. Discovery closed on October 30, 2007. This is the Plaintiff's Opening Brief in support of his Motion for Summary Judgment. SUMMARY OF THE ARGUMENT The Plaintiff is entitled to judgment as a matter of law on all of the claims raised in his complaint:

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(1)

The Panel erred in finding that the District had no obligation to have

developed an Individualized Education Plan (hereinafter, "IEP") for C.H. by the first day of the 2006-2007 school year. In the process of reaching that conclusion, the Panel committed a legal error when it erroneously analogized C.H. to a student transferring into the District for the first time, that the District did not have a continuous responsibility to provide C.H. a "free appropriate public education" (FAPE), and that the District had no obligation to educate C.H. until his parents re-enrolled him into the District. (2) The Panel erred in finding that the District was not required to provide

notice to C.H.'s parents that an IEP meeting would occur on September 11, 2006. In the process of reaching that conclusion, the Panel erroneously found that neither federal nor state laws require the District to issue more than one meeting notice, as long as the District "continues" the IEP development process at the end of the noticed meeting. (3) The procedural violations of IDEA and state regulations committed by the

District deprived C.H. of educational benefits and impeded the opportunity of C.H.'s parents to participate which constituted a denial of the provision of a FAPE to C.H. (4) The District's failure to offer C.H. a FAPE forced the parents to place

C.H. back at the Gow School for the 2006-2007 school year. Gow provided and continues to provide an appropriate education to C.H. Therefore the parents are entitled to be reimbursed for all expenses related to C.H.'s placement at Gow for the 2006-2007 school year and continuing until the District offers C.H. a FAPE. Therefore, the Plaintiff is entitled to judgment as a matter of law.

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STATEMENT OF FACTS C.H. is a minor child, born November 11, 1990. He has been diagnosed with Dyslexia, Dysgraphia and a Severe Language Disorder. Since the 1998-1999 school year he has been identified as a child with a specific learning disability, within the definition of that term in 20 U.S.C. § 1401 and 29 U.S.C. § 705. C.H. moved with his family into the District in 2000, and they have remained residents of the District for all relevant times thereafter. He was first enrolled in the District's schools in 2000, and attended fourth grade in the District during the 2000-2001 school year. His parents and the District repeatedly disagreed with whether and how the District was providing FAPE, and C.H.'s mother and father requested and conducted Due Process Hearings in 2001 and 2002. In January 2002, when C.H. was in the fifth grade, his parents unilaterally placed him at the Greenwood School, a private school in Vermont, and sought reimbursement from the District. A Due Process Hearing Panel denied the Parents' request for reimbursement. C.H. returned to seventh grade in the District in fall 2003. The Parents and the District engaged in the IEP process, and agreed on an IEP for C.H. However, the parents and the District were unable to agree on placement for C.H. within the District. In February 2004, when C.H. was in the seventh grade, his parents unilaterally placed him at the Gow School, a private residential school in South Wales, New York, specializing in education for boys with dyslexia and language-based learning disorders. On June 9, 2005, the District offered a placement to C.H. C.H.'s parents rejected that placement and requested a due process hearing to request reimbursement for C.H.'s private placement. The District filed a counter-complaint. On September 2, 2005,

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parents and the District entered into a settlement agreement. The settlement agreement resolved all disputes arising from the District's obligation to provide FAPE and appropriate placement for C.H. for the 2005-2006 school year. Pursuant to the settlement, the District funded C.H.'s private placement at the Gow School for the 20052006 school year. See Exhibit 6 (hereinafter "Ex. 6") at 3: ¶ 1.1 In return, the parents agreed to release to the District reports and records of C.H.'s performance at the Gow School. See id. at 3: ¶ 4. Finally, the parents agreed as a condition of the settlement that the District, and not the Gow School, would be C.H.'s "stay-put" placement in the event that the parents filed another due process request during the 2005-2006 school year.2 See id. at 3: ¶ 18. C.H. attended the Gow School for ninth grade during the 2005-2006 school year. Over the course of that school year, the District's Supervisor of Special Programs (hereinafter, "the Supervisor") and C.H.'s mother met and discussed possible placement for C.H. for the 2006-2007 school year. See Exhibit 2 (hereinafter "Ex. 2") at 138: 3-14. The supervisor and parent met repeatedly over the course of the 2005-2006 school year. See id. at 140: 2-9. C.H.'s parent and the District employee had discussed scheduling evaluations for C.H. as early as December 2005. See Exhibit 3 (hereinafter "Ex. 3") at 47: 7-19. The Supervisor had access to C.H.'s during vacation periods from his private placement, when he was in the District and available for evaluation. See Ex. 2 at 141: 912.
1

For the convenience of the Court, and because the Administrative Record is tabbed and not consecutively paginated, citations to that record in this Memorandum will take the format of "Exhibit [Tab Number] at [page number]." Exhibit 6 contains the entirety of Parent's Exhibits admitted into evidence by the Hearing Panel; therefore, citations to one of Parent's Exhibits will be formatted as "Exhibit 6 at [Exhibit Number]: [page or paragraph number]" as necessary. The Plaintiff apologizes for any inconvenience. 2 Stay-put refers to the IDEA's requirement that during the pendency of any administrative or judicial proceedings conducted pursuant to a due process complaint, the child remains in his current educational placement. 34 C.F.R. § 300.518(a).

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Nevertheless, the District did not initiate the IEP development process until May 30, 2006, when the Supervisor sent a letter seeking the parents' permission to evaluate C.H. See Ex. 6 at 6.3 On June 9, 2006, the parent returned a signed form and attached a letter requesting that the District consider the qualifications of prospective evaluators, and use only experts in the relevant disorders. See id. at 6.4 Following parent's return of the form and accompanying letter, the District took no action to evaluate C.H. or contact parent until July, 2006. See Ex. 6 at 7. During that period, the person employed as Supervisor took a new job with the District. See Ex. 2 at 89: 18 (noting that Elizabeth Joynes was employed as Supervisor until "June 2006"). She continued, however, to "juggle[] both positions." See id. at 91: 16-18. The Supervisor admitted that, in her two roles, "there was a lot going on," and some preparations for the IEP meeting "slipped her mind." Ex. 2 at 114: 16-20 On July 5, 2006, the outgoing Supervisor sent a letter stating that it was unclear whether parent had actually given permission to evaluate C.H. because the form lacked a checkmark. See Ex. 6 at 7.5 Parent returned the form, with a checkmark, on July 6, 2006. See Ex. 6 at 7.6 A District psychologist evaluated C.H. on August 7 and August 14, 2006, and completed a report of his evaluation on August 15, 2006. See Ex. 6 at 19. On August 18, 2006, the District sent an IEP meeting notice to parent scheduling an IEP team meeting for August 22, 2006. See Ex. 6 at 10.7 Notice for the meeting stated that the purpose of the meeting was to review the results of recent evaluations, determine eligibility for special education services and to develop review or revise an IEP. See id.
3 4

For the convenience of the Court, the citation here refers to the unnumbered first page of Ex. 6 at 6. For the convenience of the Court, the citation here refers to the unnumbered second page of Ex. 6 at 6. 5 For the convenience of the Court, the citation here refers to the unnumbered first page of Ex. 6 at 7. 6 For the convenience of the Court, the citation here refers to the unnumbered second page of Ex. 6 at 7. 7 For the convenience of the Court, the citation here refers to the unnumbered fourth page of Ex. 6 at 10.

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The IEP meeting convened on August 22. Over the course of the meeting, the psychologist reviewed the contents of his report, and the team found that C.H. remained eligible for special education. See Ex. 6 at 18: 1-2. The team did not develop an IEP for C.H.'s tenth grade year during the meeting. Meeting minutes do not reflect a date for a subsequent meeting to develop an IEP for C.H. See id. A new Supervisor of Special Programs began working for the District on Friday, September 1, 2006. See Exhibit 1 at 48: 17-18. The first day of school in the District was September 5, 2006. See id. at 48: 21-49: 1. No meeting to develop or revise an IEP for C.H. had taken place by that day, nor had parent received notice of such a meeting. The parents never received a written notice for a second IEP meeting. The District convened a meeting on September 11, 2006, without parents in attendance. Not having a school program or placement identified nor an IEP ready at the beginning of the school year, the Parents unilaterally placed C.H. at the Gow School for the 2006-2007 school year. On September 7, 2006, the parents filed a due process hearing request on behalf of C.H., alleging that the District had committed procedural errors in the process of developing an IEP for C.H. The Parents alleged that those errors rose to the level of denial of FAPE, and as a remedy requested that the District pay full tuition and costs for C.H. to attend the Gow School for the 2006-2007 school year. The Department was added as a party on motion of the District, because the requested relief included reimbursement for an out-of-state private program. A due process hearing was convened on December 4 and 12, 2006. On December 22, 2006, both parent and the District filed closing arguments. The panel issued its decision on January 6, 2007, finding in favor of the District on all but one of the parent's

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claims. The Panel found in parent's favor that the (uncomplained-of) notice for the August 22 IEP meeting should have contained notice that the meeting would consider transition services for C.H. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) The IDEA represents an ambitious federal effort to ensure that children with disabilities receive a "free and appropriate public education" (FAPE). See 20 U.S.C. § 1400(d); see also Bd. of Educ. Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982). A FAPE must be designed to meet the unique needs of each individual child through special education and related services. See 20 U.S.C. 1400(d)(1)(A). Implicit in the guarantee of a FAPE is "the requirement that the education to which access is provided be sufficient to confer some educational benefit" on the child. See Rowley, 458 U.S. at 200. School districts must develop a comprehensive plan ­ an Individualized Education Program (hereinafter, "IEP") tailored to the unique needs of the child. See Rowley, 458 U.S. at 181; see also 20 U.S.C. 1414(d). The IEP is developed by a team of individuals which includes, inter alia, the child's parents. See 34 C.F.R. § 300.321. The IDEA repeatedly emphasizes the "importance and necessity of parental participation in developing the IEP and assessing its effectiveness." See E.H. v. Tirozzi, 779 F.Supp. 53, 57 (D.Conn. 1990)(citing Honig v. Doe, 484 U.S. 305, 311 (1988)). The statute includes "a comprehensive set of procedural safeguards to ensure that the parents or guardians of a handicapped child . . . have an opportunity" to participate in, and contest, decisions affecting the education of their child. See Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 944 (4th Cir. 1997). These safeguards include a guarantee, to

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parents, of an opportunity to participate in the IEP development process. See 20 U.S.C. § 1415(b)(1). In fact, the statute allows parental participation in the meeting through a variety of means, including "video conferences and conference calls." See 20 U.S.C. § 1414(f). In Rowley, the Court established a two-prong inquiry to determine whether a school district has provided a FAPE. See 458 U.S. at 206. The first prong asks whether the school system has complied with the IDEA's procedural requirements in arriving at a particular child's IEP. See id. The second prong asks whether the student's IEP is reasonably calculated to provide meaningful educational benefit. See id. at 207. A school system must demonstrate that both requirements have been met to prove that it has provided a FAPE. See id.

STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE Pursuant to Fed. R. Civ. P. 56, the Plaintiff hereby submits that the following Statement of Material Facts as to Which There Is No Genuine Dispute: 1. C.H. is a minor child eligible for special education services. See Exhibit 7 (hereinafter, "Ex. 7") at B: 2. 2. C.H. and his parents have been, at all relevant times, residents of the District. See Ex. 1 at 97: 15-16. 3. In February 2004, when C.H. was in the eighth grade, his parents unilaterally placed him in the Gow School. See Ex. 9 at 5. 4. As settlement of administrative actions commenced by both parties, the District and C.H.'s parents agreed that the District would fund C.H. at the

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Gow School for the 2005-2006 school year. See Ex. 7 at Q: ¶ 1. 5. As a condition of that settlement, C.H.'s parents agreed that the District would be C.H.'s "stay-put" placement, within the meaning of 20 U.S.C. § 1415(j), if parents requested a due process hearing at any time during the course of the 2005-2006 school year. See Ex. 7 at Q: ¶ 18. 6. C.H. attended the Gow School during the 2005-2006 school year, and his parents did not file for a due process hearing during that period. See Ex. 7 at G. 7. Over the course of the 2005-2006 school year, C.H.'s mother and the District's Supervisor of Special Programs met in person multiple times. See Ex. 2 at 140: 2-19. 8. The District, through the Supervisor, did not seek permission for or attempt to schedule evaluations for the purposes of IEP development until May 30, 2006. See Ex. 6 at 6. 9. On June 9, 2006, C.H.'s parent returned the District's Permission to Evaluate form signed, but without a checkmark. See Ex. 6 at 6; see also Ex. 7 at O. 10. The District took no further action to schedule an evaluation for C.H. until July 5, 2006. See Ex. 6 at 7. 11. A District psychologist evaluated C.H. on August 7 and August 14, 2006. See Ex. 7 at A: 1. 12. On August 18, 2006, the District sent a notice of an IEP meeting to the parent, scheduling an IEP team meeting for August 22, 2006. See Ex. 6 at

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10. 13. 14. On August 22, 2006, an IEP meeting convened. See Ex. 7 at B. Over the course of the meeting, the team found C.H. eligible for special education services, but took no action to develop an IEP for C.H. See id. at B: 3. 15. The District did not send to the parent any notice for any subsequent IEP meeting. See Ex. 2 at 113: 17-21. 16. The District's first day of the 2006-2007 school year was September 5, 2006. See Ex. 1 at 48: 21-49: 1. 17. The District had not developed an IEP for C.H. prior to September 5, 2006. See Ex. 7 at K: 2. 18. C.H.'s parents filed a request for a due process hearing on September 7, 2006. See Exhibit 58 (hereinafter, "Ex. 5"). 19. C.H.'s parents alleged that the District had committed four separate procedural errors and one substantive error in the IEP development process. See id. 20. As a remedy, C.H.'s parents requested that the District pay C.H.'s full tuition and costs for C.H.'s attendance at the Gow School for the 20062007 school year. See id. 21. The Due Process Hearing Panel convened a hearing on C.H.'s claims on December 4 and 12, 2006. See Ex. 1 at 1; see also Ex. 2 at 1. 22. On December 22, 2006, both parent and the District filed closing

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arguments. See Ex. 8. 23. 24. The Hearing Panel issued its decision on January 6, 2007. See Ex. 9 at 11. The Panel did not include any determinations of testimonial credibility in its Findings of Fact. See Ex. 9 at 5-6. 25. In its Decision, the Hearing Panel found in favor of the District on four of C.H.'s claims. See Ex. 9 at 10. 26. The Hearing Panel found in favor of C.H. on one claim, but found that it did not merit awarding the requested relief. See id. ARGUMENT I. Standard of Review For Summary Judgment To grant a motion for summary judgment, the Court must find that there are no issues of material fact as to which there is a genuine dispute, and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The party seeking summary judgment must demonstrate an absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)); see also Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991). II. Standard of Review For Hearing Panel's Decision and Order In considering an appeal from a special education due process panel's decision, the Court should apply a modified de novo standard of review. See S.H. v. StateOperated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003); see also Fisher v. Bd. Of Educ. of the Christina Sch. Dist., 856 A.2d 552, 557-58 (Del. 2004).

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Under this standard, the Court should defer to the panel's findings "unless it can point to contrary non-testimonial extrinsic evidence on the record." See S.H., 336 F.3d at 270. If the state administrative panel made determinations regarding the credibility of witness testimony, the Court must accept those determinations unless "non-testimonial, extrinsic evidence would justify a contrary conclusion." See Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004); see also Fisher, 856 A.2d at 557-58. In the instant case the Panel made no findings of fact based on determinations of testimonial credibility. See Exhibit 9 (hereinafter, "Ex. 9"). Thus, the Court may conduct de novo review of the Panel's findings, deferring to the Panel only to the degree that its findings are supported by extrinsic evidence already on the record. III. The Hearing Panel Erroneously Concluded That There Was No Need For an IEP To Be In Place At the Beginning Of The School Year

The Hearing Panel concluded, as a matter of law, that there was no need for the District to develop and implement an IEP for C.H. prior to the beginning of the 20062007 school year because (A) it considered C.H. a transfer student from another school district, (B) it determined that the District was not responsible C.H.'s education during the 2005-2006 school year, and (C) the parents failed to re-enroll C.H. into the District prior to the start of the 2006-2007 school year. For the reasons explained below the Hearing Panel's findings were factually and legally incorrect and its holding should be reversed. A. The Panel Erroneously Analogized C.H.'s Situation to an Out-OfState Transfer "At the beginning of each school year, each public agency must have in effect, for each child with disability within its jurisdiction, an IEP." See 34 C.F.R. § 300.323(a)

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(Emphasis added); see also 20 U.S.C. § 1414(d)(2)(A). The Hearing Panel concluded, as a matter of law, that there was no need for the District to develop and implement an IEP for C.H. prior to the beginning of the 2006-2007 school year. The Panel concluded that "[n]either the law nor common sense requires that an IEP be in place and fully implemented on the first day of any school year." See Ex. 9 at 8. The Panel misstates the law. The IDEA and it implementing regulations are unequivocal in their requirement that an IEP be in effect at the beginning of each school year. To explain its departure from clearly established law, the Hearing Panel analogized C.H. to a student who transfers within the State, or a student who transfers from another State, which justified the District's delay in developing and implementing an IEP. See Ex. 9 at 7-8. But Delaware law clearly states that students are residents of "the school district in which that student's parents . . . reside." See 14 Del. C. § 202(e)(1). The Hearing Panel erroneously accepted the District's argument that because C.H. attended school outside of Delaware during the 2005-2006 school year, he should be considered an out-of -state student who transferred to the District at the start of the 20062007 school year. See id. Citing the Department's Administrative Manual for Special Education Services, the Hearing Panel concluded that a district has 30 days to develop an IEP for an in-state transfer student, or 60 days to develop an IEP for an out-of-state transfer student. See Ex. 9 at 7. The Panel concluded, therefore, that the District had "a period of time" to develop an IEP for C.H, but did not specify which specific period of time it thought was appropriate, why it believed that period of time was appropriate, or identify any particular evidence that made C.H. analogous to an in-state or out-of-state transfer student.

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The Panel and the District misconstrue state law. C.H.'s parents resided continuously in the District during the entirety of this matter, meaning that, contrary to the Hearing Panel's holding, C.H. was a resident of the District during the 2005-2006 school year. Delaware law imposes an obligation on public school districts to provide an education for all students who are "residents of this State." See 14 Del. C. § 202(a). Therefore, the Hearing Panel erred as a matter of law in finding that the District was justified in not developing an IEP for C.H. by the beginning of the school year. Even if C.H. was a transfer student the Hearing Panel, nevertheless, erred in finding that the District did not have to have an IEP in effect for C.H. at the beginning of the school year. The Hearing Panel relied on 34 C.F.R. § 300.323(e) and (f), and 14 Del. Adm. C. § 925.23.4 and 23.5 in determining that the District had "some period of time" to develop an IEP for C.H. But the regulations only pertain to a student who transfers within the same school year. See id. C.H.'s parents contacted the District during the 2005-2006 school year with the goal of initiating the IEP process so that C.H. could return to the District the next school year. The regulations do not allow a school district to delay the development and implementation of an IEP under such circumstances. Wherefore, the Hearing Panel erred in all aspects of its analysis of this issue. B. The Panel Erred In Finding That the District Was Not Consistently Responsible For C.H.'s Education Although C.H. attended the Gow School, an out-of-state private school, during the 2005-2006 school year, the District continued to be responsible for his education at all times because C.H.'s placement at Gow was funded and monitored by the District pursuant to a settlement agreement. See Ex. 6 at 3: ¶¶ 1, 4, 6. The settlement agreement included provisions for the District to review records from Gow and monitor C.H.'s

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progress. See Ex. 6 at 3: ¶ 4. The District, as a steward of public funds, has a fiduciary duty, not only to C.H. and his parents, but to the citizens of Delaware to ensure that when public funds are used, the services they intend to purchase are provided. Thus, the District had a continuing fiduciary, contractual, and legal obligation to monitor C.H.'s placement at Gow during the 2005-2006 school year. Any argument that the District did not have responsibility for C.H.'s education during the 2005-2006 school year is simply without merit. C. The Panel Erred In Holding that C.H. Was Required to Re-enroll in the District Before the District Became Responsible For His Education. Neither Delaware law, nor state administrative code, nor local regulations impose an obligation upon a parent to re-enroll his or her child every school year. Delaware law imposes an obligation on public schools to provide an education for all students who are "residents of this State." See 14 Del. C. § 202(a). The state imposes an obligation on parents that they not enroll their children in more than one "residential district" at one time. See 14 Del. C. § 202(e)(1). The District itself implements this obligation through a form seeking information on parental residence, special needs, and transportation requirements. See Exhibit 10 (attached), Cape Henlopen School District Enrollment form. No section of this form requires parents to re-enroll children. Neither the evidence introduced by the District at the hearing, nor legal or factual citations by the Panel, establish any requirement that the parent "re-enroll" C.H. as a prerequisite for the District to be responsible for his special education services. By the admission of the District's own witnesses, C.H. had attended school in the District previously, and was enrolled in the District at that time. See Ex. 2 at 147: 4-5 (noting the

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District's "history that we have on IEP development with [C.H.]"); see also Ex. 6 at 14 (documenting the District's inclusion of a neurological evaluation in its development of a 2003-2004 IEP for C.H.). The District further admitted that it was responsible for C.H.'s special education by beginning the IEP planning process in May 2006. During the hearing, the Parent offered uncontroverted testimony that she had asked an employee of the District in December 2005 to begin testing C.H. in order to complete an IEP. See Ex. 3 at 47: 7-19. The District did not initiate the IEP process at that point, but on May 30, 2006, sought parental permission to evaluate C.H. for IEP purposes. See Ex. 6 at 6.9 In its Closing, the District argued that it began the process in May 2006 "in case [the parent] ultimately decided to return [C.H.] to the District and attempted to do so." See Exhibit 8 (hereinafter "Ex. 8") at District's Argument 5. The District's action was in fact an admission of responsibility for developing an IEP for C.H., because federal regulations only require that "public agencies" seek permission from parents prior to conducting evaluations, and the regulations identify a public agency as the state and local education agencies "that are responsible for providing education to children with disabilities." See 34 CFR §§ 300.300, 300.33 (emphasis added). By initiating the evaluation process, the District accepted its responsibility for providing education to a child with a disability under IDEA, and was bound to adhere to the concomitant procedures. The District argued that the parent had not "re-enrolled" C.H. in the District for the 2006-2007 school year, and did not inform the District that she intended to return C.H. to the District. See Ex. 8 at District's Argument 5. The District argued that because C.H. had not been re-enrolled there was no obligation on the District to develop an IEP for C.H., and so its failure to do so could not be a violation of IDEA procedure.
9

For the convenience of the Court, the citation refers to the first page of Exhibit 6 at 6.

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The Hearing Panel noted that "no regulation specifically relates to the reenrollment of a child from a private placement." See Ex. 9 at 6. Nevertheless, the Hearing Panel held that the District was not required to develop an IEP for C.H. because he was not "enrolled" in the District at the end of the 2005-2006 school year. Prior to the parent filing a due process complaint, the District had made no indication that there was a need for the parent to "re-enroll" C.H. in the District. The Supervisor testified at the hearing that she had never sought C.H.'s re-enrollment in the District prior to developing an IEP for the 2006-2007 school year. See Ex. 2 at 147: 1621. The District and parent introduced documentary evidence of correspondence between them spanning May 2006 to October 2006. No documentary evidence prior to parent's due process hearing request indicated a need for C.H. to "re-enroll" in the District. See Ex. 6 at 6 (letter from Supervisor to parent dated May 30, 2006)10; Ex. 6 at 711 (letter from Supervisor to parent dated July 5, 2006); Ex. 6 at 10 (three e-mails from Supervisor to parent, dated August 14 and 18, 2006); Ex. 6 at 11 (letter from Supervisor to C.H.'s private placement dated September 8, 2006). The first indication that C.H. needed to "reenroll" in the District was a letter from the District's counsel to the parent on September 15, 2006, replying to the parent's due process hearing request; 10 days after the first day of school. See Ex. 6 at 12: 2. The District's contention that it was not responsible for C.H.'s IEP until C.H. "re-enrolled" is undermined by the sheer number of documents predating the first IEP meeting that omit any mention of that requirement and exposes the District's purported "re-enrollment requirement" as a disingenuous manufactured argument with no support in fact or law.

10 11

The citation refers to the first page of Ex. 6 at 6 The citation refers to the first page of Ex. 6 at 7.

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Further, the settlement agreement resolving the Parent's dispute with the District for the 2005-2006 school year, retains the District's responsibility for C.H.'s education following the 2005-2006 school year. The settlement agreement provided that "[i]f Parents file a subsequent due process hearing request during [C.H.]'s placement at the Gow School, the parties agree [C.H.]'s `stay-put' placement shall be the District, and not the Gow School." See Ex. 6. at 13: ¶ 18. Thus, the settlement agreement contemplated educational placement for C.H. in the District. Finally, the credibility of the District's argument that it had no responsibility for CH.'s education because of his enrollment status is simply impugned by its actions. It makes no sense that the District would conduct a psychological evaluation, hold an IEP meeting to review that evaluation and determine C.H's eligibility for special education, and then hold another meeting to develop an IEP for a student for whom it had no responsibility. Thus, the District's "re-enrollment argument" and the Hearing Panel's acceptance of it, is misguided and reversible error. IV. The Hearing Panel Erroneously Concluded That the District Did Not Commit a Procedural Violation By Failing To Issue a Notice for a September 11, 2006 IEP Meeting. Federal and state laws require parent participation in the development of a child's IEP. "Each public agency must take steps to ensure that one or both of the parents of the child with a disability are present at each IEP Team meeting or are afforded the opportunity to participate." See 34 C.F.R. § 300.322; see also 14 Del. Adm. C. § 925.22. Delaware law requires the school district to notify parents at least ten business days in advance of an IEP meeting to ensure they have an opportunity to attend. See 14 Del. Adm. C. § 925.22.1.1. The meeting must be scheduled at a mutually agreed on time and

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place. See 14 Del. Adm. C. § 925.22.1.2. The notice of the meeting must include the time, location, purpose of the meeting, and the names of who will be in attendance. See 14 Del. Adm. C. § 925.22.2.1. If neither parent can attend, the school district must use other methods to ensure parent participation including individual or conference telephone calls. See 14 Del. Adm. C. § 925.22.3. If the school district is "unable to convince the parents that they should attend," the IEP meeting may be held without the parents but the school district must maintain detailed records of telephone calls made or attempted and the results of those calls, copies of correspondence sent to the parents and any response received, and detailed records of visits made to the parents' home or place of employment and the results of those meetings. See 14 Del. Adm. C. § 925.22.4. Clearly there is a heavy burden placed on the school district to ensure parent participation in the IEP process. The Supreme Court has noted the importance Congress placed on school districts' compliance with the procedural requirements of the law. It seems to us no exaggeration to say the Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process as it did upon measurement of the resulting IEP against a substantive standard. See Rowley, 458 U.S. 176, 205 (1982). (Internal citations omitted). The District held an IEP meeting on September 11, 2006, without the parents in attendance and without having given any notice of the meeting to the parents. The District offered no evidence at the Hearing of attempts to ensure the parents' participation in the IEP meeting as required by law. Nevertheless, the Hearing Panel concluded that the District did not violate the IDEA's procedural requirements. See Ex. 9 at 8.

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The Panel determined that there was no procedural requirement that the school issue any notice because, at a meeting on August 22, 2006, the parent had "waived her rights to the 10-day notice for that meeting." See id. The Panel then determined, without citation to any legal authority, that when IEP development is incomplete at the conclusion of a meeting, there is never a need to issue notice for any subsequent meetings "continuing" the process. The Panel's conclusion is erroneous, and is contradicted by law. In accordance with Delaware law, the District sent a notice of the August 22, 2006 IEP meeting, ten business days in advance. See Ex. 6 at 10. The meeting lasted two hours and focused exclusively on a review of the psychological evaluation and discussion of C.H.'s eligibility for special education. See Ex. 6 at 18: 1-3. Once a child is determined by the IEP team to be eligible for special education, another IEP meeting must be held within 30 days to develop an IEP. See 14 Del. Adm. C. § 925.23.2. The District argued at the Hearing that the purpose of the September 11, 2006 IEP meeting, was to develop an IEP for C.H. See Ex. 2 at 111: 19-22. The District's argument exposes that the September 11, 2006 IEP meeting, was a separate and distinct IEP meeting which required its own notice to the parent ten business days in advance of the meeting. See 14 Del. Adm. C. § 925.22.1.1. In the instant case, the factual circumstances make the District's failure to live up to procedural requirements even more incomprehensible. The District and parent convened an IEP meeting on August 22, 2006. See Ex. 6 at 18. At the conclusion of that meeting, it was apparent to all parties that an IEP was needed.. See Ex. 6 at 18: 3. The minutes of the meeting, created by the District and presented at the hearing do not reflect

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any agreement on, or even discussion of, when the meeting to develop the IEP should convene. The District alleges that there was mutual agreement to convene another meeting on September 11 ­ fully three weeks after the August 22, 2006 IEP meeting. The window was sufficient for the District to have sent even a redundant scheduling notice. Given the importance the law places on parent participation in the IEP process, it was incumbent on the District to ensure the Parents' participation. The provision of a notice of the September 11, 2006, IEP meeting was one of many steps required of the District which it failed to take. Thus, the Hearing Panel erred in concluding that the District did not violate IDEA's procedural requirements by failing to give proper notice to the parents of the September 11, 2006 IEP meeting, or making efforts to ensure their participation. V. The District's Procedural Violations Constituted A Denial of FAPE Procedural violations constitute a denial of FAPE if the procedural inadequacies (i) [i]mpeded the child's right to a FAPE; (ii) [s]ignificantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or (iii) [c]aused a deprivation of educational benefit.

See 34 C.F.R. § 300.513(a)(2); see also 14 Del. Adm. C. § 926.3.2. The IEP is the primary vehicle by which a FAPE is provided. Honig v. Doe, 484 U.S. 306 (1988). Failure to have an IEP in effect at the beginning of the school year deprives a child of a FAPE. See Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 950 (4th Cir. 1997) (finding that failure to develop an IEP prior to the beginning of the school year is a serious violation of the IDEA, and merits reimbursement of parents' consequential unilateral placement). The District's failure to have an IEP in effect for C.H. at the start of the

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school year deprived him of any opportunity to receive a FAPE. Further, the District's failure to provide the parents with ten days notice of an IEP meeting to develop an IEP for C.H., or to ensure their participation in the IEP meeting on September 11, 2006, significantly impeded the parents' right to participate in the decision-making process and constituted a denial of FAPE. The District argued that the failure to develop and implement an IEP prior to the start of school was inconsequential because it was not obligated to develop an IEP for C.H., and because "the first two days of school are primarily orientation days." See Ex. 8 at 13. The District also blamed the procedural violations on the parent, arguing that "it was [the parent's] own scheduling conflicts that prevented the August 22, 2006 meeting, from being reconvened until September 11, 2006," and that the District was absolved of any violations when the parent requested a Due Process Hearing. See id. at 14-15. There is no factual or legal support for the District's argument. Further, the District's argument is not unlike an argument it made in a previous similar case. In 1996, a Delaware hearing panel considered the actions of this District in failing to provide an IEP for a student returning from a private placement funded through a settlement agreement. See Cape Henlopen Sch. Dist., 24 IDELR 1087 (1996), (attached). The hearing panel in that case noted that "[b]y late July or early August the District had at least constructive knowledge that [the child] was home," but the District failed to gather information to timely revise the child's IEP. See id. at 1094. The panel rejected the District's rationale for why it was unable to timely complete an IEP. "The excuse that relevant District officials were on vacation and changing assignments is inadequate. Too much time, effort and resources had been devoted to [the child] by that point, and his

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needs were too great, to permit him to fall through the cracks in this fashion." See id. at 1094. In yet another case, a state hearing panel found that it was inappropriate to place the responsibility on parents for timely scheduling IEP development meetings. "To say that the parents asked for it to occur this way is too easy[; t]he Statute says that responsibility for the IEP meeting is on the school, not the parents." See In Re: Student with a Disability, 27 IDELR 1170 (1998) (attached). The panel found that procedural violations, leading to the absence of an appropriately developed IEP, were violations of the school district's statutory responsibility and led to a denial of FAPE. The panel decided that such violations justified the parents' decision to unilaterally place their child in a private school. In the instant case, although the parent requested an evaluation in December, 2005, the District did not initiate the evaluation process until May 30, 2006. When the parent mistakenly returned an incomplete "Permission to Evaluate" form (a checkmark was lacking), the Supervisor took no action to remedy that problem for nearly four weeks. Ex. 6 at 7. The parent promptly returned the completed form (with the checkmark) as soon as she was asked but it took the District another four weeks to schedule an evaluation. See Ex. 6 at 19. The psychological evaluation was conducted on August 7, 2006, eight months after the parent's initial request. See id. The IEP meeting to consider the results of that evaluation occurred on August 22, 2006. Thus, as with the two cases noted above, the District's attempt to blame the parent for its dilatory actions is without merit and its procedural violations resulted in no development of an IEP prior to

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the start of the school year and exclusion of the parents from the decision-making process and thus denied the student a FAPE.

VI. The Parents are Entitled to Be Reimbursed For The Costs of The Gow School. If a school district fails to offer a child with a disability a FAPE and the child's parents place the child in a private school that can meet the child's needs, a court or hearing panel may require the school system to reimburse the parents for the costs of the private placement. See 20 U.S.C. §1412(a)(10)(C); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985). As noted above, the District failed to develop an IEP for C.H. at the beginning of the school year. With no IEP and, consequently, no offer of an appropriate program from the District designed to meet C.H.'s needs, the parent was left little choice but to return C.H. to the school in which he had been successful. The District conceded at the hearing that the Gow School is an appropriate placement for C.H. See Ex. 1 at 220: 8-12. Because the District failed to offer an appropriate placement and educational program for C.H., and the parents took it upon themselves to provide both appropriate program and appropriate placement, the Court should award reimbursement for those expenses to parents.

CONCLUSION WHEREFORE, for the reasons set forth in this brief the Plaintiffs respectfully request that the Honorable Court reverse the ruling of the State Hearing Panel and enter judgment in favor of the Defendants.

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RESPECTFULLY SUBMITTED, /s/ Wayne D. Steedman Wayne D. Steedman, Esq. Federal Bar No. 9474 Callegary & Steedman, P.A. 201 N. Charles St., Suite 1402 Baltimore, MD 21201 (410) 576-7606 [email protected] Attorney for Plaintiffs /s/ Bruce L. Hudson Bruce L. Hudson, Esq. Delaware Bar No. 1003 Law Office of Bruce L. Hudson 800 N. King St., Suite 302 Wilmington, DE 19801 (302) 656-9850 [email protected] Attorney for Plaintiffs

CERTIFICATION I hereby certify that a copy of the foregoing, including all attachments, was filed this 24th day of December, 2007, and was served electronically on the parties.

/s/ Wayne Steedman Attorney for Plaintiffs

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