P.S. v. Brookfield Bd. of Educ.

Federal District Court

___ F. Supp 3d ___, 2005 U.S. Dist. LEXIS 1278 (D. Conn. 2005)

January 31, 2005

Is dismissal from a Due Process hearing an appropriate remedy for parental non-compliance with a hearing officer’s order? Yes says the federal district court of Connecticut in P.S. v. Brookfield, a short but thoughtful decision that affirms dismissal of a claim when the parents refused to allow their child to be evaluated by the board of education’s psychologist.

P.S., a sophomore enrolled at a private catholic school in Danbury in 1998, experienced neurological and psychiatric symptoms in December 1998 – so much so that he was admitted to the Yale Psychiatric Institute for a three-week period for observation and tests. During his stay at Yale, P.S. was diagnosed as suffering from schizophreniform disorder. Upon his release, P.S. entered into a daytime treatment program and began receiving homebound tutoring services from the Brookfield Public Schools (“Brookfield”). Subsequently, Brookfield convened a planning and placement (“PPT”) team meeting at which the PPT determined that prior to “identification” as a special education student, P.S. needed to have his medical and educational needs evaluated – and P.S.’s mother signed a consent form agreeing for P.S. to be evaluated by a local psychologist. The next day, P.S. parents, through counsel, revoked the consent for psychological evaluation, and requested a Due Process hearing. The grounds for the request were Brookfield’s failure to evaluate P.S., denial of an appropriate program, and denial of appropriate placement. On April 21, 1999, the Due Process hearing officer granted Brookfield’s motion to allow the P.S. to be psychologically evaluated. P.S.’s parents did not comply, and after hearing the case and presentation of evidence, the hearing officer dismissed P.S.’s claim, concluding that the IEP process “was stymied by the parents’ withdrawal of their permission to evaluate [PS].”

P.S.’s parents filed an appeal to federal district court seeking reimbursement for the cost of his unilateral placement in private school, claiming that (1) Brookfield failed to provide P.S. with a public placement, thereby denying him a free appropriate public education; and (2) his parents’ private placement was appropriate.

The court, in a concise but pointed opinion, makes quick work of the plaintiff’s three-part argument. First, P.S.’s claim that Brookfield did not have the right to conduct an evaluation prior to identifying P.S. failed on numerous grounds, including the court’s indication that there is no indication in any of the statutes that a PPT is required to identify a child before conducting evaluations. In addition, the parents’ claim that a Yale Psychiatric Institute discharge (containing the diagnosis of schizophreniform disorder), could not stand on its own as a basis for special education identification. The court also noted that a psychological evaluation is exceptionally relevant to identification (citing Regs. of Conn. State Agencies § 10-76d-9(a)).

Second, there was no evidence to support the parents’ contention that Brookfield’s proposed evaluator was not qualified, as there was no indication that the school wanted to do anything other than perform a psychological evaluation.

Third, and most importantly, the parents urged the court to adopt a new legal standard in the circuit whereby parents’ legitimate concern for their child’s health can excuse the need to consent to an evaluation. Tiptoeing around the legal issue, the court held that there was no evidence presented that the type of evaluation that would have been conducted by Brookfield’s psychologist would cause harm to P.S. Indeed, the parents’ main concern stemmed not from a legitimate fear of harm, but mostly because they were concerned that Brookfield’s psychologist would not be impartial and might make a recommendation they didn’t like.

Because the Board was entitled to perform the requested evaluation, the plaintiffs lost their right to reimbursement by failing to make P.S. available for the evaluation. As a result, the court granted Brookfield’s motion for summary judgment.

Judge Underhill’s memorandum decision may be accessed by going to the District Court’s website at www.ctd.uscourts.gov/Opinions/013105.SRU.PS.pdf.

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