UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Mark and Linda Lessard

v. Civil No. 06-cv-423-JD

Opinion No. 2007 DNH 090

Wilton-Lyndeborough

Cooperative School District

O R D E R

Mark and Linda Lessard seek judicial review under the

Individuals with Disabilities in Education Act ("IDEA") of the

decision of the New Hampshire Department of Education ("DOE"),

approving the Individual Education Plan ("IEP") and placement

proposed for their daughter, S.L., by the Wilton-Lyndeborough

Cooperative School District ("District"). As a preliminary

issue, the Lessards move for an evidentiary hearing to add

documents to the administrative record. The District opposes the

motion.

The Lessards do not seek a testimonial hearing but instead

want to supplement the record with documents that they contend

are pertinent to the issues for review. Therefore, the Lessards'

motion to supplement the record may be decided based on the

parties' filings without scheduling a hearing.

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Standard of Review

Under the IDEA, the "court reviews the administrative

record, which may be supplemented by additional evidence from the

parties, and makes an independent ruling based on the

preponderance of the evidence." Lt. T.B. ex rel. N.B. v. Warwich

Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004) (internal quotation

marks omitted); accord Mr. I. ex rel. L.I. v. Me. Sch. Admin.

Dist. No. 55, 480 F.3d 1, 5 (1st Cir. 2007). See also 20 U.S.C.

§ 1415(i)(2)(B). The court's review, however, is not a de novo

trial. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997 (1st

Cir. 1990). While the court may accept additional evidence,

"such evidence is merely supplemental to the administrative

record." L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974

(10th Cir. 2004); Town of Burlington v. Dep't of Educ., 736 F.2d

773, 790-91 (1st Cir. 1984). Appropriate reasons for

supplementation include: "gaps in the administrative transcript

owing to mechanical failure, unavailability of a witness, an

improper exclusion of evidence by the administrative agency, and

evidence concerning relevant events occurring subsequent to the

administrative hearing." Id. at 790.

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Discussion

The Lessards move to add documents that they contend should

have been part of the administrative record, would correct

alleged discrepancies in the DOE's transcription of the due

process hearing, were not available at the time of the hearing,

and would provide updated information about S.L.'s post-hearing

status. The District objects, contending that none of the

offered evidence meets the criteria for supplementing the record. 

The Lessards filed a reply further arguing in favor of their

additional evidence.

By way of brief background, S.L. is twenty years old and is

disabled physically and mentally with multiple impairments. She

attended school at Crotched Mountain Rehabilitation Center

("CMRC") from July of 2001 to December of 2005. The Lessards

challenge the IEP and placement at CMRC proposed by the District

for S.L. for the 2005 to 2006 school year and the District's

prior offer to place S.L. at the Merrimack Education Center. 

More specifically, they charge that the District's proposed IEP

failed to provide, among other things, an adequate behavior

intervention plan, an appropriate transition plan, an appropriate

plan to address S.L.'s literacy skills, one-on-one assistance,

and multi-disciplinary and community based instruction. They

also contend that the District's proposal to place S.L. at the

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Merrimack Education Center, as an alternative to CMRC and its

subsequent proposal to continue placement at CMRC were both

inappropriate for S.L. The Lessards unsuccessfully challenged

the District's IEP for S.L. at CMRC for the 2004 to 2005 school

year based on many of the same issues. Lessard v. WiltonLyndeborough Coop. Sch. Dist., 2007 WL 1221103 (D.N.H. Apr. 23,

2007) (affirming the District's IEP for 2004-2005).

A. Completing and Correcting the Record

The Lessards contend that the record should include

documentary evidence that was used during the administrative

hearing, audio recordings of meetings and telephone messages, and

corrections to the DOE's transcript of the administrative

hearing. The District objects to all of the supplemental

evidence offered by the Lessards.

The Lessards contend that four pages of information from an

IEP Team meeting held on April 14, 2005, were not included with

the DOE's administrative record despite having been introduced

during the hearing. The Lessards also want to add a document

obtained from the DOE website, "New Hampshire Charter, Private

and Other Non-District Approved Special Education Programs," that

was used during the administrative hearing but not formally

introduced into the record. They also ask to be permitted to

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submit tape recordings of meetings and telephone messages that

are covered by transcripts and notes in the administrative

record. They contend that the tapes are necessary to offset

accusations that Mrs. Lessard's notes from the meetings were

inaccurate. The District objects that these items were available

to the Lessards, that it is their fault that they were not

included in the record, and that much of the information is

duplicative of the record that was submitted.

The Lessards contend that the DOE's transcript of the

hearing is "riddled with errors." They ask to be permitted to

submit a list of "significant transcript discrepancies." The

District objects that the Lessards are instead providing a

selective and personal version of the administrative proceedings.

The Lessards may submit the documentary evidence, the four

pages and information from the DOE website. With respect to the

accuracy of notes of the IEP meetings and telephone messages and

the accuracy of the hearing transcript, the parties shall limit

their dispute to those parts that are material to the issues

raised here. Any party who disputes the accuracy of notes or

parts of the transcript that are not material to the issues in

this case may be subject to sanctions.

If the District challenges the accuracy of Mrs. Lessard's

notes of the IEP meetings and telephone messages, the Lessards

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shall provide transcripts of the tapes of the disputed parts to

the District, and counsel shall use all reasonable efforts to

agree on a version of the proceedings in question. If agreement

on any part is not possible and the disagreement is material to

the claims in this case, each side shall submit its own version. 

Similarly, the Lessards shall submit their list of

"significant transcript discrepancies" to the District, following

which counsel shall use all reasonable efforts to agree on a

version of that transcript. If agreement is not possible as to

material parts of the transcript, then each side shall submit its

own version. 

B. Unavailable Evidence

The Lessards ask to supplement the record with information

about S.L.'s recent physical therapy evaluation, whether the

Merrimack Education Center was state-approved when the District

proposed S.L.'s placement there, and credentials of two teachers

at CMRC. The District objects that the proffered evidence is

duplicative, irrelevant, and not properly justified. The

information the Lessards propose may be added to the record. 

That permission, however, does not in any way indicate whether

the proffered information will be relevant or persuasive in

deciding the case.

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C. Recent Progress Evidence

The Lessards want to include evidence of S.L.'s status since

the administrative hearing. They argue that such evidence is

appropriate to show that S.L. has made progress by not being

placed at CMRC, as the District proposed. The District objects

that the opinions offered in the proposed evidence are not

relevant, are merely augmenting opinions offered at the hearing

that were subject to cross-examination, and are unfair because

the District has not had an opportunity to challenge the

evidence.

Although the evidence of S.L.'s status since the hearing is

not likely to be relevant, that determination is best made in the

context of the case as it is presented on the merits. The

Lessards will be allowed to submit the proffered evidence. The

District will have the opportunity in the context of arguing the

claims in this case to demonstrate that the new evidence is

irrelevant or should be stricken as unfairly prejudicial to the

District. 

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Conclusion

For the foregoing reasons, the plaintiffs' motion to

supplement the record (document no. 14) is granted as is more

specifically provided in this order.

 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

July 24, 2007

cc: Katherine W. Bubar, Esquire

Jennifer A. Eber, Esquire

Eric R. Herlan, Esquire

Richard L. O'Meara, Esquire

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