Opinion
FSTCV116008466S
07-10-2017
Kimberly Graham v. Janie Friedlander
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO REARGUE (#145.00 AND #146.00)
Kenneth B. Povodator, J.
Procedural Context/Facts
The plaintiffs are four students and their parents, claiming that the students lost irreplaceable opportunities for special education services as a result of the conduct of an allegedly unscrupulous service provider, a service provider who allegedly was unqualified, uncertified, and unable to provide the required remedial services needed by the students as part of their special educational programs.
The plaintiffs go further, and allege that the service provider provided some services that were deleterious.
With the exception of that service provider and its principal, all of the defendants are governmental officials or governmental entities, and they moved to dismiss the claims against them, based on claimed lack of subject matter jurisdiction. In particular, the Board defendants asserted sovereign immunity and a failure to exhaust administrative remedies, as grounds for dismissal. The City, as claimed statutory indemnitor, contended that the claims asserted against it were untimely under the statute creating the cause of action (General Statutes § 7-465), and that that untimeliness deprived the court of subject matter jurisdiction over all statutory indemnification claims directed to it. The City also relied upon the motions and issues raised by the Board defendants.
The corporate service provider, Spectrum Kids, LLC, has been defaulted for failing to appear (#105.87). The entity's principal, Stacy Lore, has filed an appearance but has not filed an answer or other responsive pleading. The court will continue to refer to these two defendants as the non-participating defendants.
The court will continue to use the term " Board defendants" when referring to defendants Janie R. Friedlander, Dr. Salvatore J. Corda, and Dr. Beatrice Krawiecki, and the Norwalk Board of Education. As a subset, the court will continue to use the term " individual defendants" or " individual Board defendants" to refer to Janie R. Friedlander, Dr. Salvatore J. Corda, and Dr. Beatrice Krawiecki as appropriate.
The plaintiffs contended that sovereign immunity does not apply to this situation, and that the concept of exhaustion of administrative remedies does not apply to the specific claims being advanced by the plaintiffs.
After extensive briefing and argument, the court issued a memorandum of decision on January 13, 2017, rejecting the claim of sovereign immunity but dismissing the case based on a failure to exhaust administrative remedies. The plaintiffs timely moved for reargument with respect to the granting of the motion to dismiss, and the City also moved for reargument based on the court's failure to grant the City's motion to dismiss to the extent that it had articulated a statutory basis for dismissal.
The parties submitted briefs relating to reargument and the plaintiffs also submitted evidentiary-type materials. Additionally, after the motions to reargue had been filed but before argument, the United States Supreme Court issued a decision relating to the issues presented here, and there were submissions and argument relating to that decision, as well. The court will address both the issues presented by the motion to reargue as filed and the relevance of the recent Supreme Court decision.
Both sides were allowed to file post-argument memoranda relating to that Supreme Court decision; the plaintiffs filed a memorandum on March 15, 2017, and the Board defendants filed a memorandum on March 17, 2017.
Preliminarily, the court must note that while the court is addressing these two areas as if they were independent, there is substantial overlap, such that assignment of certain aspects of the discussion to one or the other section of this memorandum of decision may be perceived as arbitrary. The court recognizes the interrelatedness of the areas, but for purposes of some semblance of organization, the court has attempted to assign discussions as seems appropriate.
Discussion
I. Futility
The plaintiffs continue to insist that this proceeding does not arise under IDEA or any other statutory basis implicating an exhaustion requirement, and that therefore, they do not need to satisfy any such requirement. In their legal papers, they deny that the issues implicate the provision of a free appropriate public educational program (FAPE) for the minor plaintiffs, all of whom were diagnosed with autism. Further, even if there were such a requirement, the plaintiffs continue to contend that the assertions in the complaint, which they contend must be accepted as true for purposes of a motion to dismiss absent a factual submission by the defendants, sufficed to establish the futility exception to exhaustion. (They have augmented the record with affidavits, discussed in some detail below.)
Before addressing/discussing the recent Supreme Court decision, the court will address aspects of the motion to reargue that are not implicated by that decision.
As acknowledged during argument, perhaps the most difficult issue for the court in the process or ruling on the motions to dismiss was the standard for futility. The plaintiff asserted and have offered evidence that it would be futile to offer remedial or catch-up (compensatory) services, as the children had been deprived of a " sweet spot" in their ability to absorb educational benefits (up to age 7), based on a developmental perspective, and having aged through that sweet spot, there had been a loss that could not be remedied--other than by monetary compensation. The defendants offered no formal evidence, and even if they had, the issue would be the proper handling of presumptively-conflicting evidence. As the plaintiffs argued, if there were a factual issue that needed to be resolved in order to decide the jurisdictional challenge, an evidentiary hearing would be required; see, e.g., Conboy v. State, 292 Conn. 642, 650-54, 974 A.2d 669 (2009); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
Argument included references to the availability of compensatory services intended to allow the minor plaintiffs to advance to the levels that would have been attained in the absence of the situation described. The plaintiffs did not question the availability of services aimed at compensating for earlier problems, but maintained that the time lost could never be made up, pointing to their evidentiary submission in that regard.
The starting point presumably is a working definition of " futility" for purposes of the exhaustion doctrine. " It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Internal quotation marks and citation, omitted; emphasis as in cited case.) Neiman v. Yale University, 270 Conn. 244, 259, 851 A.2d 1165, 1174 (2004). Emphasizing the point, the court in Neiman went on to observe that " [w]e have held that utilizing administrative remedies is not futile for purposes of the futility exception even when a decision maker has indicated that it will rule against the [complaining party, " id., citing Housing Authority v. Papandrea, 222 Conn. 414, 432, 610 A.2d 637 (1992).
A likelihood of a less-than-satisfactory (or desired) result is not enough. The standard is futility, measured by a standard of " could not result in a favorable decision, " 270 Conn. at 260, citing for a second time Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995). Given this legal standard, the court must observe that the evidence submitted more recently, and especially the affidavit of an expert, present the claimed deficiencies in terms of probabilities.
As noted later, this is perhaps attributable to conflation of the burden of proof for establishing damages (if the case were to proceed to that point), and the current issue of futility. Alternatively, it perhaps demonstrates the problem with treating futility as a factual issue, discussed in some detail below.
The critical issue then becomes: How does a court determine futility? Is this a purely factual determination, e.g., based on a preponderance of the evidence standard? Or. is it a legal issue, possibly informed by factual context?
The court has been unable to find any appellate authority explaining how a court makes such a determination (and counsel during argument seems to have reached the same conclusion). If preponderance of the evidence is the proper standard, then the court would be dealing with something of a legal oxymoron, with the virtual certainty of futility--a standard defined in terms of " invariably" and similar near-absolute or absolute terms--being established by a more-probable-than-not burden of proof. Simplistically, that equates to a standard whereby a concept implicating near or virtual certainty is to be established to a 51% level of confidence. An alternate/opposite perspective makes the point perhaps even more clearly--near or virtual certainty is to be established but subject to as much as a 49+% uncertainty or doubt.
As an overlay, a preponderance of evidence standard would seem to conflict with the high bar established for purposes of the futility exception to exhaustion. Articulating such a standard would encourage parties to attempt to satisfy that burden, particularly given the likelihood of an economic incentive to do so as compared to a governmental or administrative body contending that administrative remedies suffice.
Although not necessarily dispositive on this point, Neiman and the Papandrea decision discussed in Neiman appear to point away from treatment of futility as a factual issue. In both cases, the head of an administrative body had engaged in conduct, at least preliminarily, indicating a position adverse to that of the plaintiff, leading to the claim that any further proceedings would be futile. In Papandrea, it was a letter from the Commissioner; in Neiman, there were a number of factors, including a claim that the administrator already " had indicated to the plaintiff that she had done everything possible to make the tenure evaluation fair, " 270 Conn. at 259, such that there was nothing further to be done.
The court also emphasized that the unavailability of the plaintiff's preferred/requested remedy was not dispositive: " It is not the plaintiff's preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be adequate, need not comport with the plaintiffs' opinion of what a perfect remedy would be." (Internal quotation marks and citations, omitted.) 270 Conn. 260.
To the extent that inadequate remedies comprise part of the justification for failure to exhaust administrative remedies, Neiman is again instructive. " It is not the plaintiff's preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be adequate, need not comport with the plaintiffs' opinion of what a perfect remedy would be." (Internal quotation marks and citations, omitted.) 270 Conn. 260. Citing and comparing the situation to that in Hunt v. Prior, 236 Conn. 421, 673 A.2d 514 (1996), the court stated that " we were not persuaded that the plaintiff's administrative remedies were inadequate because had the plaintiff followed the [administrative] procedures, he would have received immediate consideration and review of the very issue . . . that the plaintiff raises in this action, " 270 Conn. 260.
In none of these situations involving a contention--explicit or implicit--that the administrative decision-maker already had made up his/her mind on the dispute, did the court seem to require an evidentiary submission that the decision-maker would have been open-minded had the issue proceeded through the appropriate administrative procedure, and none of these cases seem to have required a trial court to weigh the facts in that regard. (If there were an evidentiary issue, would the court be asked to determine the credibility of a decision-maker stating that he/she would have been open-minded, had the issue been presented for " final" determination?) To the contrary, there was a recognition of the possible availability of review after administrative avenues had been pursued. Exhaustion implicates a recognition that the administrative professionals are in a better position to determine, at least initially, the proper remedies (if any are needed) for a situation within the jurisdiction of that administrative body/official, yet the plaintiffs, here, are asking the court to make that decision instead.
Even with respect to constitutional challenges implicated in administrative proceedings, the exhaustion requirement applies:
[W]e must limit circumvention of administrative proceedings to instances in which those proceedings would be futile because no adequate administrative remedy exists. Moreover, the mere assertion in an administrative proceeding of a constitutional challenge to a statute or agency procedure does not automatically satisfy the futility exception to the exhaustion doctrine. To determine whether a party properly may seek court intervention prior to the completion of administrative proceedings, we examine whether the court has been asked to address issues entrusted to the [commissioner] and whether the [commissioner] could issue appropriate relief. (Internal quotation marks and citations, omitted.) St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 814, 12 A.3d 852, 862 (2011).
Ultimately, the court is left with the conclusion that the determination of futility is essentially a legal/contextual determination by the court, with the recognition that the unavailability of a particular remedy does not constitute futility, Neiman, supra, 270 Conn. 260, citing Hunt, supra, 236 Conn. 434. There is the backstop of available judicial review, after exhaustion of administrative remedies.
Note that even if it were a factual issue, the evidence submitted would not establish futility as defined above. As a threshold matter, conclusory statements are not facts--whether alleged in a complaint or contained in an affidavit. To the extent that the plaintiffs submitted affidavits in connection with the motion to reargue--presumably to emphasize and crystallize the facts alleged relating to futility--the court will focus on those affidavits, and quote them in some detail.
In support of the motion to reargue, the plaintiffs submitted a detailed affidavit from Erik A. Mayville, Ph.D. (attached to #145.00), an expert on autism and education of children with that condition. (" I am a licensed clinical psychologist and a board certified behavior analyst specializing in applied behavior analytic education and treatment services provided in home and school environments to children with autism spectrum disorders.")
After reciting his background and credentials in detail, the affiant recites the following:
13. In March of 2006, I evaluated [student B], one of the minor plaintiffs in this matter, and reviewed in detail the educational records, including testing results, of two other minor plaintiffs, [student N] and [student V].
14. I have been retained to opine on the nature and extent of the damages sustained by all four families in this matter and have rendered a final opinion as to the nature and extent of damages in two of the four minor plaintiffs; I have not yet completed my review of the remaining two minor plaintiffs' educational records.
15. It is my professional opinion that the actions of the City of Norwalk Board of Education and its employees, representatives and/or agents created irreparable harm in the two plaintiffs referenced above.
16. I have reviewed in detail the program materials provided by Stacy Lore to each minor plaintiff and the " program book" kept on each child by Stacy Lore to document the work she performed with them. In addition, I have reviewed in detail educational and psychological testing performed on each child both prior and subsequent to Stacy Lore's intervention.
17. My review of these materials led me to conclude that while the children exhibited significant skill deficits, they exhibited some skills prior to Stacy Lore's purported ABA intervention on which progress could have been built (for example, with respect to one child, [student V], responding to some language, imitating some actions and sounds, and making discriminations based on relatively abstract concepts such as color).
18. A review of the children's " program books, " however, strongly suggests that Stacy Lore did not in fact provide a proper ABA program, and that the children's progress during the period of time during which Stacy Lore was providing autism-related services was negligible. There is evidence in several program documents that key elements of learning were either arranged inappropriately (e.g., discrimination training or prompting) or were not addressed at all (e.g., reinforcement and generalization). As such, the problem behavior(s) seen in [student V] persisted throughout the program developed by Stacy Lore and thereafter.
19. It is also apparent from a review of the records that there were shortcomings associated with the purported ABA program occurring at home under Stacy Lore's oversight, such as the absence of appropriate supervision to ensure that the ABA programming was individualized, detailed, and data-based. Available program documentation describing intervention procedures was scant. That which was provided suggested that key instructional variables were either not described or described with insufficient detail to inform appropriate implementation. There is no description of key instructional variables such as prompting, prompt fading, reinforcement, and generalization procedures. Rather, the only statement is, " prompts: verbal, demonstrative, gestural, voice inflection, and/or facial expression." This statement is wholly insufficient to inform a program which could include relatively complex intervention variables.
20. The goal of intensive Applied Behavioral Analysis such as that which Stacy Lore was hired to provide is to significantly accelerate the learner's skill repertoire. There is only a limited critical period in which accelerating a student's learning trajectory is possible. Scholarly literature defines that window of opportunity as extending to about 7 years of age.
21. For children who lose a significant portion of that critical window of time, it is more likely than not that they will be unable to make up the lost learning opportunity regardless of what services are provided in the future. Elimination of proper services for periods of between three and 18 months can undoubtedly negatively affect the trajectory of a child's development.
21. [sic] In addition to lost opportunity during critical periods of the minor plaintiffs' development, it is likely that the minor plaintiffs were left with faulty learning repertoires and maladaptive responses.
22. Even if the minor plaintiffs are provided subsequent correct interventional services, it is more likely than not that they would have been capable of greater improvement had they not been provided faulty educational services. In other words, their trajectory is more likely than not permanently negatively affected by the loss of a significant percent of foundational learning time.
A number of observations immediately come to the fore. The affidavit is dated January 31, 2017, two days before the motion to reargue was filed. The only dated activities seem to have been in March of 2006, when the affiant evaluated one student and reviewed records of two others (" In March of 2006, I evaluated [student B], one of the minor plaintiffs in this matter, and reviewed in detail the educational records, including testing results, of two other minor plaintiffs, [student N] and [student V]")--but that was before the involvement of Ms. Lore, and almost eleven years prior to the submission of the affidavit. As of the date of the affidavit, the affiant had " rendered a final opinion as to the nature and extent of damages in two of the four minor plaintiffs." Presumably, at some time after Ms. Lore was no longer involved in providing services, her records and educational materials pertaining to the students were reviewed, leading to the conclusion that at least two of the students were irreparably injured.
The court recognizes that the reference to 2006 might be a typographical error, but the court has no way to determine its accuracy in the present context.
Also attached to #145.00 was an affidavit from one of the parents (the mother of student N), who identified herself as somewhat of a liaison or coordinator for the affected families.
5. Once questions arose in early 2008 as to Stacy Lore's lack of credentials, as well as after her fraud was revealed in August 2008, each plaintiff family participated in multiple Planning and Placement Team (" PPT") meetings and other communications with representatives of the City of Norwalk Board of Education (" BOE") and its Pupil Personnel Services Department (Special Education) in an attempt to: a) determine whether any remedial services were appropriate and/or available for the minor plaintiffs; and b) receive the hours of service that had not been delivered by Stacy Lore in violation of the children's Individualized Educational Plans (" IEPs").
6. With respect to [student N], my then-husband and I communicated repeatedly with the Norwalk Board of Education and/or its agents. The following is a small representative sample of such communications which were frequent, and which continued both before and after Stacy Lore disappeared in August 2008:
On April 1, 2008, I sent an email to Dr. Beatrice Krawiecki, Administrator for the Norwalk BOE of the Pupil Personnel Services (Special Education) Department and the BOE representative assigned to be [student N's] Case Manager, and Stacy Lore, regarding, among other issues, missed hours of ABA services, missed hours of home consultation services, and my deep concerns with Lore's insufficient ABA and Verbal Behavior programming and staff training. This email is attached as Exhibit A to this Affidavit.
On April 11, 2008, I sent an email to Dr. Krawiecki detailing over 50 missed therapy hours, over 15 missed consultation hours, the significant decline in [student N's] growth and his loss of irretrievable therapy, and the need for immediate attention. This email is attached as Exhibit B hereto.
In or about April 2008, a meeting was held between Dr. Krawiecki, Karen Simon (our ABA/education advocate), and us regarding grave concerns about the services.
At a PPT in June 2009, the Norwalk BOE promised services that were not given. It never gave [student N] an annual review, it let his IEP expire, and, in our opinion, it was in non-compliance with his IEP and its responsibilities to [student N] was receiving from Stacy Lore and the hours of missing ABA therapy and consultation time.
During April-May 2008, I sent numerous e-mails to Dr. Krawiecki requesting an emergency PPT and a change of agency (i.e., the provision of an ABA specialist other than Stacy Lore).
On or about September 2, 2008, at [student N's] school year planning PPT after Stacy Lore's fraud was confirmed, Dr. Krawiecki dismissed our request to make up the missing hours; we were advised that we needed to address the missing hours and services with Stacy Lore directly, as the school was not responsible for providing them.
On or about September 19, 2008, we attended a continued PPT for school planning, and Norwalk again refused to address the missing hours to be made up.
On or about October 7, 2008, our FOIA request for Stacy Lore's credentials still had not been granted. By this point, the BOE owed us over 100 hours of therapy and consultation.
On or about October 8, 2008, Janie Friedlander, the Director of Norwalk's People Pupil Personnel Services, sent a letter to the families receiving Stacy Lore's services requesting us to bring in all materials of Stacy's to be copied at the Norwalk Public Schools for investigation by the law firm of Berchem, Moses, & Devlin. This was the first indication that Norwalk was investigating the situation.
On February 10, 2009, attorney Marsha Moses of the law firm Berchem, Moses, & Devlin presented a report at the Norwalk BOE meeting admitting that Norwalk never obtained copies of or checked Stacy Lore's credentials.
In March 2009, pursuant to the recommendations of Marsha Moses' report, Superintendent of Schools Salvatore Corda reported Stacy Lore's actions to the Norwalk Police Department.
In or about May 2009, Janie Friedlander resigned as Norwalk Public School Special Education Director.
In or about June 2009, Salvatore Corda resigned as Superintendent of the Norwalk Public Schools.
At a PPT in June 2009, the Norwalk BOE promised services that were not given. It never gave [student N] an annual review, it let his IEP expire, and, in our opinion, it was in non-compliance with his IEP and its responsibilities to [student N].
In or about January 2010, we had conversations and email exchanges with Steven Colarossi (the new BOE/Finance Chairman) explaining the situation with Stacy Lore. I asked him to look into the therapy and consultation hours owed.
In or about February 2010, I also emailed all BOE members and Michael Nast, the interim Norwalk Superintendent of Schools, asking for their help in obtaining the hours and services owed.
7. After Stacy Lore's fraud was revealed, the four plaintiff families continued to explore and seek all educational alternatives available for their children, including moving out of the Norwalk public school district and/or seeking compensation from the Norwalk BOE for out-placement at an appropriate school or program.
8. In the case of the family of minor plaintiff [student V], the family was advised for months by the Norwalk BOE that no services were available that would be appropriate for [student V], and that his parents should make alternative plans. They eventually moved out of the Norwalk school district in order to obtain alternative educational and autism services for [student V].
9. In the case of the three other plaintiff families, educational services were either provided for the children within the Norwalk public school district or the City of Norwalk paid for educational out-placement.
10. In none of the four cases did the remedial educational services return the children to the position they were in or would have been in but for Stacy Lore's fraudulent intervention. We have been told by medical and autism professionals that the damage inflicted during that time has not and cannot be made up.
Although not wholly unrelated, a claim of irreparable harm is not the same as a claim of futility, especially without a particularized context. The expert opines that the minor plaintiffs suffered irreparable injuries, but aside from the somewhat conclusory quality of a general assertion of that nature, it does not necessarily equate to futility. Thus, the statement was made as to all minor plaintiffs notwithstanding the more particularized statement that the expert only had reached a final opinion as to two of the four minor plaintiffs--suggesting that the statement, itself, was based on generalities rather than a particularized assessment of each minor plaintiff. He also notes that there was an apparent deprivation of services for periods ranging from three to eighteen months--all claimed to result in irreparable harm. The court cannot ignore that this is the state of proof as of January of 2017, when the involvement of Ms. Lore and her company ceased in mid-2008, almost 8 1/2 years earlier.
Which leads to a necessary but as yet unarticulated question: When is futility to be measured? At the latest, it would seem to be the commencement of this litigation, in 2011. More likely, the issue of timing of a determination of futility should reflect the timing of available administrative procedures--otherwise, a party would be able to await the expiration of time limits for seeking available administrative remedies or could wait until the remedies became legally inadequate due to passage of time, and then assert futility. That would require a focus on futility as of mid-2008 into 2009 and perhaps into 2010.
Note, too, the implications of the expert's assertions. Is the ideal learning age of up to age 7 applicable to all students or just autistic students? Is the loss of opportunity during that " sweet spot" for learning always to be deemed irreparable, whether all students or just those with autism? In other words, whether limited to autism or more generally applicable to all special education students, is a substantial deficit in a program, for a period of 3 months or more (for a student below age 7), presumptively irreparable to the extent that administrative remedies are insufficient, as a matter of law? Is that not the necessary consequence of the plaintiffs' arguments--perhaps not intentionally, but unavoidably?
Is there any minimum below which the assertion of irreparable would not apply, given inclusion of a period of 3 months, or is 3 months that minimum? Even if it were more probable than not that there would be irreparable harm, that does not translate into futility--absent virtual certainty of irreparable harm, the inference is that a significant percentage of students would be able to recover for lost time. Is not the rationale for exhaustion of administrative remedies the notion that those remedies should be given a try?
According to the complaint, student N was with Ms. Lore for approximately 6 months, starting at age 3. That would leave 3 1/2 years in which to take advantage of the enhanced learning ability prior to age 7, after termination of involvement of Ms. Lore.
Notwithstanding the denial of applicability of IDEA and related concepts, it is clear that the students were utilizing the special education programs available. The affidavit of the mother of student N, in ¶ 6, recites a partial history of events in the relevant time frame. Many of the instances described were within the framework of the provision of educational services (and there are explicit references to IEPs and PPTs), and to the extent that there were unsatisfactory results (or the requests were ignored), why were appropriate administrative remedies not invoked, in a timely manner (assuming that they were not invoked), i.e., immediately after the unsatisfactory results or responses became known? Some of the incidents identified above were:
In or about April 2008, a meeting was held between Dr. Krawiecki, Karen Simon (our ABA/education advocate), and us regarding grave concerns about the services [student N] was receiving from Stacy Lore and the hours of missing ABA therapy and consultation time.
During April-May 2008, I sent numerous e-mails to Dr. Krawiecki requesting an emergency PPT and a change of agency (i.e., the provision of an ABA specialist other than Stacy Lore).
On or about September 2, 2008, at [student N's] school year planning PPT after Stacy Lore's fraud was confirmed, Dr. Krawiecki dismissed our request to make up the missing hours; we were advised that we needed to address the missing hours and services with Stacy Lore directly, as the school was not responsible for providing them.
On or about September 19, 2008, we attended a continued PPT for school planning, and Norwalk again refused to address the missing hours to be made up.
. . .
At a PPT in June 2009, the Norwalk BOE promised services that were not given. It never gave [student N] an annual review, it let his IEP expire, and, in our opinion, it was in non-compliance with his IEP and its responsibilities to [student N].
Each incident would seem to have been amenable to some level of IDEA-type review, but there is no indication of whether there was such follow-up (until this litigation was commenced). Conversely, ¶ ¶ 7-9 recite continuing involvement with public education officials, primarily in Norwalk, relating to the educational services to be provided to the minor plaintiffs (with one minor plaintiff moving out of the district, receiving services in a new/different district).
Paragraph 10 of that affidavit summarizes the position of the plaintiffs but it is speculative and conclusory, and at best hearsay:
In none of the four cases did the remedial educational services return the children to the position they were in or would have been in but for Stacy Lore's fraudulent intervention. We have been told by medical and autism professionals that the damage inflicted during that time has not and cannot be made up.(Note, however, that the paragraph recites continuing involvement with obtaining remedial services.)
As a segue to a more detailed discussion below, the United States Supreme Court discussion in Fry v. Napoleon Community Schools, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017) contains language relating to this last point.
A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA's formal procedures to handle the dispute--thus starting to exhaust the Act's remedies before switching midstream. Recall that a parent dissatisfied with her child's education initiates those administrative procedures by filing a complaint, which triggers a preliminary meeting (or possibly mediation) and then a due process hearing. See supra, at 748-49. A plaintiff's initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE--with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely. But prior pursuit of the IDEA's administrative remedies will often provide strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term. 137 S.Ct. 757.
To be sure, footnote 11--appended to the passage quoted above--notes that the focus should be on formal invocation of IDEA procedures, as parents are likely to utilize informal avenues when confronted with problems The record presented to the court in this regard is minimal, and the court cannot discern the level, if any, of utilization of formal procedures, but the ongoing involvement of education officials and persistent complaints to and about them, over an extended period of time, while perhaps not " strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE" is nonetheless evidence. The nature of the claims, themselves, is " strong evidence that the substance of a plaintiff's claim concerns the denial of a FAPE."
II. Fry v. Napoleon Community Schools
During argument on the motion to reargue, the parties referred to a then-very-recent United States Supreme Court decision, Fry v. Napoleon Community Schools, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017), and the plaintiffs pressed the claim that the case established the proposition that in the absence of a claim under IDEA, exhaustion is not a requirement. Before discussing the case in any detail, some preliminary observations are appropriate.
In ruling on the motion to dismiss, the court noted in its decision that a complaint crafted in such a manner as not to invoke--facially--a particular theory of liability or remedy does not control, but rather the court is required to examine the true nature of the facts and complaint. Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001). As discussed below, that is a concept that is emphasized in Fry .
The second paragraph of the plaintiffs' brief in opposition to the motion to dismiss--the first somewhat substantive paragraph after an introductory paragraph identifying the parties--sets forth the following allegations:
This case involves the shocking failure of the Norwalk Board of Education to ensure that the person charged with formulating and providing special educational services to some of the most vulnerable of public school populations--autistic children--was adequately licensed, credentialed and qualified to perform her job. Stacy Lore was hired by the Norwalk Board of Education in March 2007 to devise and implement a curriculum geared to providing autism-related education and services to four autistic children in the Norwalk, CT public school system. The BOE failed to check Ms. Lore's credentials to ensure that she met the mandatory Connecticut certification and licensure requirements for teachers, administrators, or special service staff members in Connecticut public schools either before she was hired, or at any time thereafter. This was not a discretionary task; on the contrary, the BOE was specifically required by the State of Connecticut to ensure that Ms. Lore was suitably qualified, licensed, and credentialed. These requirements were clearly spelled out in the written and published Regulations of the Connecticut State Board of Education, as well as elsewhere. The BOE had no discretion regarding whether or not to comply with these regulations. As plainly provided in the Regulations, checking certification and licensure competencies was a mandatory, ministerial task with which the BOE was required to comply before it hired Ms. Lore. Had the BOE done what it was required to do, it would have discovered that rather than being eminently qualified to devise, supervise and administer autism services within the public school context, as Ms. Lore claimed to be, she was nothing more than a fake who had never even graduated from high school.
However characterized in legal terms elsewhere in their submissions, the plaintiffs were alleging a deficiency in the educational--specifically, special educational--services provided to the minor plaintiffs, all in need of services designed for autistic children.
The defendants failed " to ensure that the person charged with formulating and providing special educational services to [the minor plaintiffs] was adequately licensed, credentialed and qualified to perform her job." Necessarily, it is not simply that she was not " adequately licensed, credentialed and qualified to perform her job" but rather that because of those inadequacies, she did not provide the intended and expected (needed) services. Credentials, etc., were the filter that should have prevented the minor plaintiffs from being exposed to defendant Lore and her company in the first instance (according to the plaintiffs), but the claimed deficiencies in the services she provided that are alleged to have resulted in (compensable) harm.
Adopting a perspective based on the alleged harm also leads to the centrality of educational services. As to all minor plaintiffs, the claimed injuries consisted of:
a. A regression of the progress made to alleviate the symptoms of ASD.
b. Lack of progress in the symptoms of ASD.
c. Inability to communicate effectively.
ASD is the acronym for Autism Spectrum Disorder.
As to one of the plaintiffs, there are two additional if related claims:
d. Regression into nonverbal communications.
e. Inability to communicate verbally.
All of these allegations relate to the adequacy--or from the plaintiffs' perspective, glaring inadequacy--of the services provided and resulting consequences, but they are inexorably linked to educational services, notwithstanding the efforts to characterize them otherwise.
No one will confuse this situation with a shining moment in the history of special educational services provided to students in Norwalk, but it does involve special educational services. The prototypical situation involves a challenge to the adequacy of a program being provided. The situation as described by the plaintiffs is the extreme--a program so defective and deficient as arguably to constitute the absence of a program, but the plaintiffs cannot avoid the core centrality of the quality of the services provided in providing an appropriate educational program for these students. (Paragraphs 16-20 of the expert's affidavit discuss the inadequacies of the educational program as provided by Ms. Lore.)
Returning to the relevance/applicability of Fry : As noted earlier, after the plaintiffs' motion to reargue had been filed but approximately five weeks prior to argument, the United States Supreme Court issued its decision in Fry . Many of the issues in this case, including exhaustion and when exhaustion is required, were considered. In Fry as in this case, the claim was made by the plaintiff that the underlying claims did not pertain to a denial of an appropriate educational program (FAPE) but rather more generally, were asserting essentially non-educational claims--there, specifically under the ADA. In addition to addressing the merits of the dispute before it, the court also identified the general problem and set forth a framework by which a court could or should make the appropriate determinations.
" Still, an important question remains: How is a court to tell when a plaintiff " seeks" relief for the denial of a FAPE and when she does not? . . . What matters is the crux--or, in legal-speak, the gravamen--of the plaintiff's complaint, setting aside any attempts at artful pleading.
. . . A court deciding whether § 1415(l ) applies must therefore examine whether a plaintiff's complaint--the principal instrument by which she describes her case--seeks relief for the denial of an appropriate education.
But that examination should consider substance, not surface. The use (or non-use) of particular labels and terms is not what matters. The inquiry, for example, does not ride on whether a complaint includes (or, alternatively, omits) the precise words(?) " FAPE" or " IEP." After all, § 1415(l )'s premise is that the plaintiff is suing under a statute other than the IDEA, like the Rehabilitation Act; in such a suit, the plaintiff might see no need to use the IDEA's distinctive language--even if she is in essence contesting the adequacy of a special education program. And still more critically, a " magic words" approach would make § 1415( l )'s exhaustion rule too easy to bypass . . . So too here. Section 1415(l ) is not merely a pleading hurdle. It requires exhaustion when the gravamen of a complaint seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in precisely that way. 137 S.Ct. 755-56.
Having identified the problem, the court suggested an analytic approach:
One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school--say, a public theater or library? And second, could an adult at the school--say, an employee or visitor--have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim.
Take two contrasting examples. Suppose first that a wheelchair-bound child sues his school for discrimination under Title II (again, without mentioning the denial of a FAPE) because the building lacks access ramps. In some sense, that architectural feature has educational consequences, and a different lawsuit might have alleged that it violates the IDEA: After all, if the child cannot get inside the school, he cannot receive instruction there; and if he must be carried inside, he may not achieve the sense of independence conducive to academic (or later to real-world) success. But is the denial of a FAPE really the gravamen of the plaintiff's Title II complaint? Consider that the child could file the same basic complaint if a municipal library or theater had no ramps. And similarly, an employee or visitor could bring a mostly identical complaint against the school. That the claim can stay the same in those alternative scenarios suggests that its essence is equality of access to public facilities, not adequacy of special education. See supra, at 751-52 (describing OCR's use of a similar example). And so § 1415(l ) does not require exhaustion.
But suppose next that a student with a learning disability sues his school under Title II for failing to provide remedial tutoring in mathematics. That suit, too, might be cast as one for disability-based discrimination, grounded on the school's refusal to make a reasonable accommodation; the complaint might make no reference at all to a FAPE or an IEP. But can anyone imagine the student making the same claim against a public theater or library? Or, similarly, imagine an adult visitor or employee suing the school to obtain a math tutorial? The difficulty of transplanting the complaint to those other contexts suggests that its essence--even though not its wording--is the provision of a FAPE, thus bringing § 1415(l ) into play. 137 S.Ct. 756-57.
In their supplemental brief devoted to discussing Fry, the plaintiffs acknowledge and discuss the analysis set forth in the decision, but the manner in which the plaintiffs attempt to apply the situation here to the Fry framework is suggestive of a Procrustean bed, forcing this case to fit the desired Fry -based outcome. Thus, the plaintiffs again deny any FAPE involvement and attempt to analogize to personal injury cases by asserting that the minor plaintiffs had sustained injuries to their brains. As set forth in the affidavit excerpts quoted and discussed above, the record is replete with references to the educational programs provided to the minor plaintiffs--including references to IEPs and PPTs--all of which are part of the IDEA legal framework.
It is clear that applying these Fry analytic tools, and looking beyond the language used in the complaint and pleadings, the plaintiffs are asserting the denial of appropriate educational services. Whereas perhaps generically, most special education claims assert flaws and inadequacies in the program, these plaintiffs are asserting that the services provided were essentially a nullity due to the fraud perpetrated by defendant Lore and her business. But that is really a matter of degree--in a very loose sense, on a scale of 1 to 10, they claim that these students received services properly rated as a 0, but the frame of reference always remains the provision of appropriate educational services.
Utilizing the Fry framework, the claims are not of a nature that could have been brought " against a public theater or library." The claims are not of a nature that could have been brought by " an adult visitor or employee." These are claims that only could be brought against the parties legally responsible for providing educational services to students entitled to educational services tailored to their particularized needs.
In their brief addressing this decision, the plaintiffs state:
Here, the gravamen of plaintiffs' Complaint was that by negligently hiring a person who was unlicensed, uncertified and unqualified in every way, the defendants caused the minor plaintiffs to suffer a permanent bio-neurologically-based injury. The plaintiffs' Complaint clearly alleges that the services provided to the minor plaintiffs were inadequate and that the provision of these inadequate services caused plaintiffs permanent harm . (Emphasis as in original.)
In a related footnote, the plaintiffs claim that the " physical injury" they allege is " not unlike the injuries alleged in other cases by special education students, where a negligence claim against a school board of education or the relevant municipality did not trigger a requirement to exhaust the IDEA's administrative remedies . . ."
To the extent that, at times, the plaintiffs have attempted to focus on the claimed negligent conduct of the Board defendants in a vacuum, this passage recognizes that it was not the failures that they have identified, themselves, that led to claimed harm (" hiring a person who was unlicensed, uncertified and unqualified in every way"), but rather the consequences of providing appropriate educational services (" the services provided to the minor plaintiffs were inadequate and that the provision of these inadequate services caused plaintiffs permanent harm .")
In the quoted passage, the plaintiffs assert that " the defendants caused the minor plaintiffs to suffer a permanent bio-neurologically-based injury, " as a basis for analogizing to cases in which negligence of educational officials had not been deemed to invoke IDEA. Again, the court notes the clear linkage between educational services and claimed injuries, in the language immediately preceding the claim of permanent harm. The court must note, however, that the claim of " permanent bio-neurologically-based injury" seems to be a new characterization of the nature of the injuries sustained, without apparent foundation in the record. Even assuming the court were to accept the characterization without question or were to take judicial notice (in general terms) of the physiological implications of learning and/or autism, are the plaintiffs contending that the assertion of a " permanent bio-neurologically-based injury" in connection with deficiencies in educational services provided to autistic students creates an automatic exemption from exhaustion? Are the plaintiffs contending that the assertion of a " permanent bio-neurologically-based injury" in connection with deficiencies in educational services provided to students prior to age 7 creates an automatic exemption from exhaustion? It may not be intended, but how is the court to limit the broad implications of the futility claims being made--effectively, as a matter of law, is resort to administrative remedies futile in the case of all special education students under age 7, or all autistic students, or all autistic students under age 7?
Conclusion
The plaintiff families, in addition to being forced to deal with the anguish inherently associated with autistic children, had their problems exacerbated by the claimed negligence (or worse) of the Board defendants with respect to their selection and assignment of a provider of special education services. However sympathetic their plight, the court must strive to avoid letting a hard case make bad law.
As documented in this decision, at times the plaintiffs clearly assert an education connection (with IDEA the only basis for such a link), while at other times they seek to negate such a relationship in an effort to avoid the necessity of exhaustion of administrative remedies. This case does not implicate ordinary negligence in the sense of the general duty of supervision of students, providing safe premises, etc., but goes to the very heart of the special educational services that were provided, or more accurately were supposed to have been provided. The IDEA created the obligation to provide the services to these children--all or almost all minor plaintiffs having started at age 3--and the obligation to continue to provide such services survived the discovery of the extent to which Ms. Lore had deceived everyone (and went to prison as a consequence).
The concept of exhaustion of administrative remedies is somewhat related to the concept of primary jurisdiction--courts should defer to administrative personnel and entities with expertise in a particular area, and that is especially the case with IDEA. Exhaustion of administrative remedies does not deprive parties of any right of judicial review, but defers it and may limit the scope of review, but with the benefit of a record created at the administrative level, with the benefit of administrative experience and expertise.
Notwithstanding the vigor with which the arguments have been made, the plaintiffs have not convinced the court that there is a basis for altering its decision to dismiss the plaintiffs' claims based on failure to exhaust administrative remedies. Fry, as interpreted by the court, only emphasizes the court's belief that its earlier decision was correct.
Accordingly, although the court granted the motion to reargue in the sense of allowing the parties to present additional arguments, and the court has, as reflected in this decision, considered the arguments made (and authorities cited), the court denies the aspect of the motion that seeks relief in the form of a modification of the court's earlier decision.
Accordingly, the court does not believe it necessary or appropriate to reconsider the ruling with respect to the defendant City--the only claim against the city was based on statutory indemnification, and the court has dismissed all underlying claims, such that the claim for indemnification is (remains) effectively moot.