author: DRANGINIS, J.

text:
    DOMINIC VINCENZO v. CHAIRMAN, BOARD OF PAROLE
    (AC 19352)
    Schaller, Zarella and Dranginis, Js.

      Argued December 8, 2000 —
    officially released July 10, 2001

      Dominic Vincenzo, pro se, the appellant (plaintiff).

      Steven R. Strom, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard T. Biggar, assistant attorney general, for the appellee (defendant).
   Opinion

DRANGINIS, J.

The plaintiff, Dominic Vincenzo, filed this action against the defendant, the chairman of the board of parole (board), seeking a declaratory judgment that the board is an agency within the meaning of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 etseq., that the conditions of parole contained in his parole agreement are board regulations and that those regulations are invalid because the board did not enact them in accordance with the UAPA, specifically, its rule-making procedures. The board thereafter filed a motion to dismiss, claiming, among other things, that the plaintiff’s claim more properly should be raised in a petition for a writ of habeas corpus. The trial court treated the plaintiff’s complaint as a petition for a writ of habeas corpus and dismissed the action because the “petitioner” had no right to demand parole and no liberty interest allowing him to contest the failure to follow the terms of his parole.

On appeal, the plaintiff claims that the court improperly dismissed the action without a hearing on the merits and urges this court to decide the substantive question of law as to whether the board of parole is an agency within the meaning of the UAPA that must therefore comply with the rule-making procedures of that act. We agree with the court that the plaintiff did not possess a liberty interest in parole release that would allow him to challenge the conditions of his parole in a habeas corpus action, but we reverse the judgment on the basis that the plaintiff had filed an action for a declaratory judgment, not a petition for a writ of habeas corpus. We therefore need not address the substantive question of law raised by the plaintiff.

“The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . Accepting as true the allegations in the complaint and all facts provable thereunder, in deciding whether a declaratory judgment action in a given case is appropriate, we allow the trial court wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete. ... In sum, at least when there is a prayer for general equitable relief, it is the law in our courts, as it is in the federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 308-309, 709 A.2d 1089 (1998).

In this case, the board’s motion to dismiss claimed that the court lacked subject matter jurisdiction because the issue raised was not a proper subject for a declaratory judgment action. That claim prompted the plaintiff to file two subsequent petitions for writs of habeas corpus, seeking identical relief. Both petitions were filed under the same docket number and made part of the file in this declaratory judgment action. Ultimately, when the motion to dismiss was scheduled for a hearing, the court wrote “case dismissed” on the board’s motion and then filed a memorandum of decision that alluded to the plaintiffs claim that he sought to have the conditions of his parole agreement declared invalid.

Although the memorandum of decision notes that the plaintiffs claim is for a declaratory judgment, the court decided the matter as a petition for a writ of habeas corpus and referred to the plaintiff as “petitioner” in the judgment file. Although there is some authority for converting an action for a declaratory judgment into a petition for a writ of habeas corpus, we conclude that the requirement of a finding of a liberty interest to have standing to bring a habeas corpus petition is not the proper disposition of the plaintiffs declaratory judgment action.

Prior to bringing the declaratory judgment action, the plaintiff attempted to raise, in a habeas action, the same claims he raises here. In that case, we affirmed the habeas court’s dismissal of the petition on the basis that the petitioner had no liberty interest to ask for a parole hearing or to demand parole. Vincenzo v. Warden, 26 Conn. App. 132, 599 A.2d 31 (1991). At the hearing on the motion to dismiss the declaratory judgment action, the plaintiff argued that under Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), he acquired the necessary liberty interest when he was released on parole and that the holding in Vincenzo did not apply.

The plaintiff views the Morrissey holding too broadly. Morrissey does, indeed, state that once an inmate is released on parole, he acquires a liberty interest in his continued freedom. Id., 479. Morrissey, however, makes it clear that the benefits that inure as a result of that liberty interest cannot be taken away without the parolee’s being informed of the alleged parole violation and being given a hearing at which he can rebut the allegations. “The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.” Id., 488. Here, the plaintiff does not claim that he was not provided the due process protections that Morrissey requires. Nothing in Morrissey, or elsewhere, suggests that the liberty interest concomitant with parole release is one that would allow an inmate whose parole has been subsequently revoked in a proceeding that comports with the requirements of due process to demand rerelease on parole because the conditions of parole were invalid.

The fact that the plaintiff has no liberty interest that would allow him to file a habeas petition at this time does not prevent him from pursuing a request for a declaratory judgment pursuant to General Statutes § 4-175. As long as a request for a declaratory ruling has first been filed, as was done here, and as long as the conditions enumerated in § 4-175 for the filing of a declaratory judgment action have been met, a declaratory judgment action will he to determine the validity of an agency regulation. There is no requirement that a prisoner must have a liberty interest before he can seek a determination as to the validity of an agency regulation that he claims “interferes with or impairs, or threatens to interfere with or impair, [his] legal rights or privileges . . . .” General Statutes § 4-175 (a).

The judgment is reversed and the case is remanded for adjudication of the declaratory judgment action.

In this opinion the other judges concurred.

       In Coronado v. United States Board of Parole, 540 F.2d 216 (5th Cir. 1976), the plaintiff, who had been released on parole, filed an action asking only for one item of relief — a declaratory judgment that it was a violation of the double jeopardy clause of the United States constitution for the board of parole to impose its standard parole conditions on a federal prisoner who has been released on parole under a statute requiring mandatory release. The United States Court of Appeals for the Fifth Circuit held that the District Court should have taken jurisdiction of the plaintiff s pro se claim by treating it as a habeas corpus petition and thereafter decided the case on its merits. Id., 217.

       We express no opinion as to whether those conditions have been met in this case.


source: Caselaw Access Project

license: Public Domain

text:
    AMY BETH KOPACZ v. DAY KIMBALL HOSPITAL OF WINDHAM COUNTY, INC.
    (AC 19279)
    Lavery, C. J., and Dranginis and Dupont, Js.

      Argued January 17 —
    officially released July 17, 2001

      James E. Mattem, with whom, on the brief, was Thomas M. DeLillo, for the appellant (plaintiff).

      Hugh F. Murray III, with whom, on the brief, was C. Elaine Blackwood, for the appellee (defendant).
   Opinion

DRANGINIS, J.

The plaintiff, Amy Beth Kopacz, appeals from the summary judgment rendered in favor of the defendant, Day Kimball Hospital of Windham County, Inc., doing business as Day Kimball Hospital (Day Kimball), in connection with the termination of her employment. On appeal, the plaintiff claims that the trial court improperly found that there was no genuine issue as to any material fact. We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the plaintiffs appeal. The plaintiff was employed by Day Kimball as a full-time, X ray technician-radiographer. In March, 1994, the plaintiff sustained back injuries that arose out of and in the course of her employment, thereby entitling her to workers’ compensation benefits. See General Statutes § 31-275 et seq. As a result of her injuries, she was unable to return to work on a regular basis until November, 1994. In March, 1995, the plaintiff reinjured her back, again entitling her to workers’ compensation benefits. This time, she was given an alternative, part-time position in another department at Day Kimball. Day Kimball hired a per diem employee to fill the plaintiffs previous position. From March, 1995, until March, 1996, the plaintiff did not perform any work in the radiology department. On or about March 20, 1996, the defendant terminated the plaintiffs employment, effective March 15, 1996, and hired the per diem employee on a full-time basis.

In May, 1996, the plaintiff underwent surgery for her injuries and was directed by her physicians to remain out of work. On November 1, 1996, her physician cleared her to return to work as an X ray technician-radiographer on a full-time basis. The plaintiff informed the defendant of her status; however, the defendant refused to reinstate her. Day Kimball eventually hired the plaintiff as a per diem radiographer in January, 1997, and she remains so employed.

The plaintiff filed this action on December 24, 1996, alleging (1) that the defendant’s termination of her employment was wrongful and its refusal to reinstate her was discriminatory in violation of General Statutes § 31-290a, which prohibits private employers from using retaliatory measures against employees who file claims for workers’ compensation benefits, (2) breach of an express or implied in fact contract, and (3) breach of the covenant of good faith and fair dealing.

The defendant claimed that its reasons for the plaintiffs termination were nondiscriminatory: A full year had passed since the plaintiff was able to perform the functions of her regular position; the plaintiff could provide no indication that she would be able to return to work in the near future; the per diem employee who had been performing in the plaintiffs former position indicated that she might leave if the defendant could not offer her a full-time position; and budgetary practices prevented the defendant from hiring an additional full-time employee.

On October 24, 1997, the defendant filed a motion for summary judgment. On January 8,1999, the plaintiff filed a memorandum of law in opposition. The defendant filed its response on January 11,1999. After hearing oral argument on the motion, the court rendered summary judgment in favor of the defendant on January 15, 1999.

“Our review of a trial court’s rendering of summary judgment takes place within certain defined parameters. This court has held that [o]n appeal . . . the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. ... It is appropriate to render summary judgment only where there is no genuine issue of material fact. Summary judgment should be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In passing on the defendant’s motion for summary judgment the trial court was limited to deciding whether an issue of fact existed, but it could not try that issue if it did exist. . . .

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Simply, the granting of summary judgment is appropriate only if a fair and reasonable person could conclude only one way.” (Citations omitted; internal quotation marks omitted.) Raboin v. North American Industries, Inc., 57 Conn. App. 535, 537-38, 749 A.2d 89, cert. denied, 254 Conn. 910, 759 A.2d 505 (2000).

“Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).

“The burden of proof in actions involving § 31-290a is stated in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53, 578 A.2d 1054 (1990), and Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. • • • The plaintiff then must satisfy [the] burden of persuading the factfinder that [the plaintiff] was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. . . . Chiaia reiterates the Ford outline for the burden of proof in § 31-290a (a) cases.” (Citation omitted; internal quotation marks omitted.) Chernovitz v. Preston Trucking Co., 52 Conn. App. 570, 572-73, 729 A.2d 222 (1999).

In Chiaia v. Pepperidge Farm, Inc., supra, 24 Conn. App. 369, this court affirmed the decision of the trial court, which determined that the plaintiffs had failed to meet their burden of proof under § 31-290a where their employer had discharged them solely as a result of the neutral application of a reasonable absence control policy. We held that “§ 31-290a, like its counterpart in other workers’ compensation schemes, does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness. See, e.g., Hines v. United Parcel Service, Inc., 736 F. Sup. 675, 678 (D.S.C. 1990); Fergerstrom v. Datapoint Corporation, 680 F. Sup. 1456 (D. Hawaii 1988); Smith v. Electrical System Division of Bristol Corporation, 557 N.E.2d 711 (Ind. App. 1990); Rowland v. Val-Agri, Inc., 13 Kan. App. 2d 149, 766 P.2d 819 (1988); Mitchell v. St. Louis County, 575 S.W.2d 813 (Mo. App. 1978); Galante v. Sandoz, Inc., 192 N.J. Super. 403, 410, 470 A.2d 45 (1983), aff'd, 196 N.J. Super. 568, 483 A.2d 829 ([App. Div.] 1984) [appeal dismissed, 103 N.J. 492, 511 A.2d 665 (1986)]; Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 470 N.E.2d 820 (1984). Businesses would suffer significant losses if they were prevented from filling employment vacancies after the lapse of a reasonable period of time. See Duncan v. New York State Developmental Center, supra, 135.” Chiaia v. Pepperidge Farm, Inc., supra, 366-67. We also found, in Erisoty v. Merrow Machine Co., 34 Conn. App. 708, 712-13, 643 A.2d 898, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994), that the plaintiff had failed to state a claim under § 31-290a where she was discharged solely as a result of her employer’s inability to accommodate her medical condition, there being no available, long-term position suited to her work restrictions and qualifications.

In this case, the plaintiff first claims that the court improperly found that she did not present evidence from which the trier of fact could find that the defendant had discriminatory intent, as is required to state aprima facie case under § 31-290a. Specifically, she argues that the court improperly granted the defendant’s motion for summary judgment because the record demonstrates that the defendant (1) knew that the plaintiff filed a workers’ compensation claim, (2) knew that the plaintiff would be able to return to work within six to eight months of her second surgery, (3) decided to hire the per diem employee to replace the plaintiff when the per diem employee demanded full-time employment, even though the plaintiff was a senior member of the department with an exemplary employment record and (4) discharged the plaintiff because she had filed a claim for and was receiving workers’ compensation benefits. The plaintiff claims that the record reveals that the defendant did not have a policy regarding absence control, that an administrative director at the plaintiffs department was under the impression that the defendant was holding the plaintiffs position open for her, and that the defendant knew the plaintiff was approved for surgery and offered contradictory explanations for the plaintiffs termination, thereby raising a reasonable inference of discrimination.

We conclude, on the basis of our review of the pleadings and affidavits, that the plaintiff offered no evidence that raises an inference of discrimination and, therefore, failed to present a genuine issue of material fact as to the real reason for her termination. In support of its motion for summary judgment, the defendant, by contrast, offered the affidavit of its employment and benefits coordinator, Cindy Gaucher. Gaucher attested that the plaintiff was unable to perform any work for the radiology department for one full year after reinjuring her back and could not give any indication of when she would be able to return. Gaucher further stated that budgetary practices prevented the defendant from hiring a full-time employee to perform the duties that had been carried out by the per diem employee and that the defendant therefore terminated the plaintiffs employment to open a position for the per diem employee. The defendant’s evidence also revealed that the per diem employee had indicated her intent to leave if she did not receive an offer for full-time employment.

The plaintiff next claims that the court improperly granted summary judgment as to the second and third counts of her complaint. Specifically, she contends that the court failed to address the issue of whether the defendant breached an express or implied in fact employment contract with the plaintiff or violated the covenant of good faith and fair dealing as a result of its failure to follow the termination procedures set forth in its policy manual. She further asserts that summary judgment in favor of the defendant was improper on those counts because she presented evidence that created a material issue of fact as to whether the defendant had complied with its termination procedures. We disagree.

At the hearing on the defendant’s motion for summary judgment, the court asked the plaintiff’s counsel to clarify the distinctions between the three counts alleged. The plaintiffs counsel clearly conceded that the gravamen of all three counts was that the plaintiff was discharged in retaliation for filing a workers’ compensation claim or subsequently receiving those benefits. Finding that counsel’s representation constituted a judicial admission, the court determined that there was no genuine issue of material fact as to counts two and three, and rendered summary judgment in favor of the defendant. The plaintiff in her reply brief argues, however, that counsel made no such admission because the court did not inquire as to the factual basis of counts two and three: “Plaintiffs counsel focused upon a narrow question from the court regarding the [facts of the] plaintiffs discharge.” Specifically, the plaintiff argues that counsel was responding to the question of why the plaintiff alleged that she had been wrongfully discharged and not to the question of whether the alleged violation of § 31-290a was the only basis for her claims of breach of contract, and breach of the covenant of good faith and fair dealing.

“Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. ... A judicial admission is, in truth, a substitute for evidence, in that it does away with the need for evidence.” (Citation omitted; internal quotation marks omitted.) State v. Nguyen, 52 Conn. App. 85, 89-90, 726 A.2d 119 (1999), aff'd, 253 Conn. 639, 756 A.2d 833 (2000). “A party is bound by a judicial admission unless the court, in the exercise of its discretion, permits the admission to be withdrawn, explained or modified.” (Internal quotation marks omitted.) Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 127, 739 A.2d 280 (1999).

We conclude that the colloquy between the plaintiff s counsel and the court could not have been more clear. The plaintiffs counsel clearly indicated, in fact conceded, that the factual basis for counts two and three was the plaintiffs alleged discharge in violation of § 31-290a. The plaintiff makes no claim that she could prevail on her causes of action as stated in counts two and three without proof of a wrongful discharge in violation of § 31-290a. If the plaintiffs counsel misunderstood the court’s question, he should have sought to correct the misunderstanding by making a motion to reargue. Having made no such attempt, the plaintiff cannot now ask this court to disregard the statement.

We therefore conclude that the plaintiff has failed to show that the court’s rendering of summary judgment in favor of the defendant was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff returned to work for a short time in April, 1994, but was then directed by her physician to remain out of work. She underwent surgery in June, 1994, and returned to work on a part-time basis in August, 1994.

       Per diem employees do not receive benefits and have less security than full-time employees.

       General Statutes § 31-290a provides: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded. The hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The plaintiffs physician had indicated that she would be able to return to work approximately six to eight months after surgery. The record reveals, however, that as of March, 1996, the plaintiffs surgery had not yet been scheduled.

       The followed colloquy occurred between the court and the plaintiffs counsel:
      “The Court: A question I have for plaintiff’s counsel. There’s three counts here. The first count is the statutory retaliatory discharge under § 31-290a. The second count’s the implied contract with the — the employee handbook, etc. The way I read the pleadings on the second count — the violation is still that they discharged her because she filed a workmen — workers’ compensation claim.
      “[Plaintiffs Counsel]: That’s correct, Your Honor.
      “The Court: And not on any other grounds.
      “[Plaintiffs Counsel]: No other ground.
      “The Court: All right. And the third ground is a violation of their obligation of fair dealing.
      “[Plaintiffs Counsel]: Correct.
      “The Court: Is it limited to the same act of discharging her because she filed the workers’ comp or is that some other ground? That wasn’t clear to me, reading that third count.
      “[Plaintiffs Counsel]: The claim of bad faith in fair dealing arises out of the facts that are the basis of the second count. I’ll concede that.
      “The Court: All right. So the gravamen of all three counts is the same— that she was discharged because of the filing of the workmens’ compensation claim or the receiving of the benefits.
      “[Plaintiffs Counsel]: That’s correct.”

       See footnote 5.

       See Practice Book § 11-12.


author: SCHALLER, J.

text:
    UNIFIED SCHOOL DISTRICT NO. 1 v. CONNECTICUT DEPARTMENT OF EDUCATION ET AL.
    (AC 19311)
    Schaller, Zarella and Peters, Js.

      Argued December 5, 2000
    officially released July 17, 2001

      AnnE. Lynch, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (plaintiff).

      Gwendolyn K. McDonald, for the appellee (defendant A).
   Opinion

SCHALLER, J.

The plaintiff, Unified School District No. I, appeals from the judgment of the trial court upholding the decision of a hearing officer of the defendant department of education to grant to the defendant A one year of compensatory education. On appeal, the plaintiff claims that the court improperly (1) upheld the award to A because the award was barred by laches, (2) awarded compensatory education from March 21, 1997, through August 27, 1997, (3) failed to consider the fact that A conceded that he did not regress between March 21, 1997, and August 27, 1997, and, thus, was not entitled to compensatoiy education during this period, (4) found that the program offered to A between March 21,1997, and August 27,1997, was inappropriate, (5) awarded compensatory education for the periods of February 20, 1996, to May 2, 1996, and from June 5, 1996, to September 9, 1996, (6) upheld the award for compensatoiy education notwithstanding the finding that A was incompetent and (7) upheld the order that the plaintiff hold a pupil placement team meeting for A within forty-five days of issuance of the order in light of the uncertainty surrounding the release of A from Connecticut Valley Hospital. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. A is a twenty-one year old man who, in 1990, at the age of eleven, moved to Connecticut from Puerto Rico. On October 23, 1991, a public school psychologist evaluated A and found him to have an IQ of sixty-one, placing him in the mildly mentally retarded range. Other testing administered at that time also suggested that A had very low cognitive functioning. On January 21, 1993, A was classified as learning disabled. The public middle school developed an individualized education program for A. During the 1993-1994 school year, A was reclassified as being educable mentally retarded and was placed in a highly structured, self-contained, bilingual special education program at a public high school.

In April, 1995, A was arrested. On July 18, 1995, A was admitted to Riverview Hospital (Riverview) for a determination of competency. Upon admission to Riverview in 1995, A underwent psychological, psychosocial and psychiatric assessments.

Within one month after A’s admission to Riverview, a pupil placement team meeting was convened to review his previous and current assessments, to determine A’s eligibility for special education and related services, and to develop an individualized education program for him. The hearing officer found that the pupil placement team at Riverview had determined that A was eligible to receive special education services because of his social and emotional maladjustment, that “further assessment regarding his speech and language impairment was required in order to develop appropriate goals and objectives, that ‘consultation’ with an [English as a second language] teacher would be provided, and that neither an extended school year nor other residential placement was required in order for A to benefit from his education.”

On the basis of the 1995 individualized education program developed by Riverview, A was placed in an ungraded self-contained classroom in a residential facility at Riverview and provided with language therapy and individual counseling. On October 17, 1995, Riverview discharged A, finding him competent to stand trial.

On November 13, 1995, the public high school in the town in which A’s mother lived held a pupil placement team meeting and identified A as a special education, multihandicapped student. On February 20,1996, A was arrested for burglary and larceny, and was incarcerated at the Hartford Correctional Center (center), at which time a department of correction social worker at the South Block Mental Health Unit observed and assessed him. The department psychiatric social worker interviewed A on February 20, 1996, at which time A indicated that he was not interested in a referral for educational services. On March 21, 1996, A completed a form, however, indicating that he was interested in special education and that he did not have a history of special education, and authorizing the release of his records to the center.

Personnel at the center did not attempt to obtain A’s records at that time. The hearing officer found that “ [according to ‘District Student Find Procedures’ . . . all inmates who choose to attend school are to be screened for potential handicapping conditions within two weeks of their assignment to school. Such screening is to include ‘the administration of standardized group intelligence and achievement tests and an interview by the school psychologist or special education teacher.’ ” A was placed in an English as a second language class at the center on March 21, 1996.

On March 25, 1996, the center placed A in the restricted housing unit administrative detention for his having committed arson and, subsequently, in punitive segregation until May 3, 1996. An inmate placed in restrictive housing or punitive segregation is not permitted to attend classes.

On May 3, 1996, A was released from the custody of the department, he was arrested on June 5, 1996, on new charges and again incarcerated at the center. In June, 1996, the center social worker referred A to the state of Connecticut office of protection and advocacy for persons with disabilities (office of protection and advocacy) in the belief that the office could assist A in obtaining postincarceration services from the state of Connecticut department of children and families. On July 8, 1996, A again was enrolled in an English as a second language class. On July 9, 1996, A was released from the custody of the center. A returned to the center on July 10, 1996, for unknown reasons.

From July, 1996, until September 8,1996, A was seen on an outpatient basis at the center. In August, 1996, A was placed in punitive segregation as a result of several disciplinary reports. On September 9, 1996, A was released to Riverview for a court-ordered competency determination and remained at Riverview until October 31, 1996. On September 9, 1996, a child study team meeting was held at Riverview to evaluate A as an incoming student. Riverview staff certified the previous public school district’s determination of A’s special education eligibility on November 13, 1995, and implemented the previous school’s individualized education program.

A pupil placement team meeting at Riverview was scheduled for October 4,1996. According to the hearing officer, at that meeting the team determined that (1) “no further assessment of A was warranted at that time,” (2) “A was eligible to receive special education services based on the exceptionality of serious emotional disturbance,” (3) “[A] should participate in the regular behavior management program at Riverview,” (4) “A should receive, as related services, individual counseling and speech and language therapy to address A’s emotional issues and language difficulties” and (5) “the goals and objectives developed at the 8-17-95 [pupil placement team meeting] were appropriate for current implementation . . . .”

On November 1,1996, A was released from Riverview and returned to department custody at the center. Upon his return to the center, A signed a consent form for admission to the mental health unit. The hearing officer found that “according to ‘District Student Find Procedures’ . . . ‘the schools at each institution/center within [Unified School District No. 1] continually survey all places within each institution/center in which disabled students may be found.’ ” The Unified principal and the special education teacher at the center did not survey the mental health unit.

A was evaluated in November, 1996, by Nelson Rivera, a psychologist, who had been asked to review all previous psychological and educational testing of A. Rivera interviewed and tested A, finding A’s thought processes to be normal, A’s attention and concentration skills to be slightly below normal, A’s intellectual ability low, his fund of information “below expectation,” his abstract ability poor and his computational skills below average. Rivera found A’s adaptive skills low and, along with A’s mentally deficient functioning, suggestive of mental retardation requiring a supervised but not institutional setting. Rivera’s prognosis for A was “guarded” given his behavioral problems, limited cognitive functioning, learning problems and lack of structure and family support. Rivera set forth the results of the evaluation in a written report dated December 3, 1996. The report was not brought to the attention of the plaintiff, nor was a pupil placement team meeting on behalf of A requested by the plaintiff at that time.

The department of children and families education consultant learned that A’s involvement in his English as a second language course had declined to the point to which he was transferred to self-study due to poor attendance and later dropped entirely from the program for failure to complete assignments. On March 21,1997, the consultant informed the center school psychologist that A was a special education student and that Riverview had developed an individualized education program on October 4,1996. On March 27, 1997, the center school psychologist, the special education teacher and the English as a second language teacher met and concluded that A’s record from Riverview must be obtained to ascertain A’s background and educational needs. On April 1,1997, A submitted a form indicating his interest in attending school.

At some time prior to April 10,1997, a representative of the office of protection and advocacy contacted Lillian Cruz, the executive director of Humanidad, Inc., a social service agency serving persons with developmental disabilities. Cruz and the office of protection and advocacy representative visited A at the center for approximately forty-five minutes. On April 10, 1997, Humanidad, Inc., submitted a proposal for services to the office of protection and advocacy. Cruz did not review any of A’s educational records prior to submitting the proposal and had no specific program or plan to address A’s particular situation.

On April 25,1997, the center school psychologist, the special education teacher and the English as a second language instructor determined that beginning on May 2, 1997, the special education teacher would provide instruction to A in the segregated housing unit at the center to assess his educational needs. On April 29, 1997, the office of protection and advocacy received the proposed decision of the department of mental retardation denying A’s eligibility for services from the department because A was capable of performing within the low average range of intelligence on psychological evaluations conducted in 1991, 1995 and 1996.

On May 9, 1997, the special education teacher, after three visits with A over a seven day period, concluded that A could read at a prefirst grade level, that his limited understanding of English impeded progress and that he could multiply and divide, making his math skills a relative strength. On May 22, 1997, following this assessment, a pupil placement team meeting was convened at the center to formulate an appropriate education program for A. A representative of the office of protection and advocacy stated that the office first became involved in A’s case in July, 1996. The attorney for the office of protection and advocacy produced the reports of Rivera’s psychological evaluations of A that had been performed at the center in November, 1996, and April, 1997. The meeting was adjourned until June 6, 1997, to allow the center time to review Rivera’s reports.

When the meeting was reconvened, all parties characterized A as being educable mentally retarded. Attendees discussed A’s self-inflicted wounds. Attendees further noted that the center placed A in a restrictive housing unit due to chronic disciplinary problems and for his own safety. The center’s special education teacher presented an educational plan in which the special education teacher and the english as a second language teacher would work one on one with A in the restricted housing unit with a goal of transitioning A back to the general population so that he could attend regular classes. The attorney and representative for the office of protection and advocacy both questioned the goal of the proposed transition plan as not conforming to suitable educational objectives under the Individuals with Disabilities Education Act. 20 U.S.C. § 1400 et seq. (act). Following a statement by the plaintiffs principal to “cut to the chase,” the attorney stated that the plan was unacceptable and that A was entitled to compensatory education. The meeting adjourned without resolution, and, on June 9, 1997, the office of protection and advocacy requested a due process hearing on behalf of A.

Between July 10, 1997, and September 26, 1997, the department of education held a series of hearings on this matter. On January 20, 1998, the hearing officer ordered the plaintiff to provide one year of compensatory education to A. On appeal, the trial court affirmed the decision of the hearing officer and dismissed the appeal. This appeal followed.

We begin by articulating the standard of review for an appeal from the decision of an administrative agency. “Judicial review of [an administrative agency’s] action is governed by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.] . . . and the scope of that review is very restricted. . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Prolection, 253 Conn. 661, 668-69, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).

General Statutes § 10-76h (d) (4) governs review of the special education determinations at issue in the present case. Section 10-76h (d) (4) provides in relevant part that “[a]ppeals from the decision of the hearing officer or board shall be taken in the manner set forth in section 4-183 . . . .” Furthermore, “[s]ection 10-76h provides for the administrative review of complaints relating to the classification and placement of children under the [Individuals with Disabilities Education] Act. The administrative proceedings in this case were conducted pursuant to that section. Under the federal statute, 20 U.S.C. § 1415 (1982), the state administrative hearing system must conform to federal procedural standards . . . .” Dubois v. Connecticut State Board of Education, 727 F.2d 44, 46 n.2 (2d Cir. 1984). “Connecticut has chosen to participate in the [Individuals with Disabilities Education Act] and has enacted legislation to implement the Act’s requirements. See [General Statutes] § 10-76h.” Mrs. C. v. Wheaton, 916 F.2d 69, 71 (2d Cir. 1990).

I

The plaintiff first claims that the court improperly upheld the award of compensatory education to A rather than determining that the award was barred by laches. Specifically, the plaintiff argues that because the office of protection and advocacy believed that A was eligible for special education services as early as November, 1996, and first raised these concerns in a May, 1997 pupil placement team meeting, the doctrine of laches should have precluded A from recovering compensatory education pursuant to the act during this period. We disagree.

The act is a federal act, and, as such, “we look to the federal courts for guidance in resolving issues of federal law.” Turner v. Frowein, 253 Conn. 312, 340, 752 A.2d 955 (2000). Federal courts apply principles of equity, including the defense of laches, when reviewing claims under the act. See, e.g., Pihl v. Massachusetts Dept. of Education, 9 F.3d 184, 188-90 (1st Cir. 1993). “The equitable doctrine of laches is an affirmative defense that serves as a bar to a claim for equitable relief where a party’s delay in bringing suit was (1) unreasonable, and (2) resulted in prejudice to the opposing party.” (Internal quotation marks omitted.) Murphy v. Timberlane Regional School District, 973 F.2d 13, 16 (1st Cir. 1992). “The burden is on the party alleging laches to establish the defense. . . . Whether a plaintiff has been guilty of laches is an issue of fact for the trier, which cannot be made by an appellate court unless the subordinate facts found make such a conclusion inevitable as a matter of law.” (Citation omitted.) Castonguay v. Plourde, 46 Conn. App. 251, 265, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). Upon review of the relevant findings, we conclude that the plaintiff failed to establish either that there was unreasonable delay or that it was prejudiced by such delay.

The plaintiff argues that the office of protection and advocacy knew of A’s eligibility for educational services as early as November, 1996, but failed to raise the issue until the May, 1997 meeting. The healing officer concluded that he was “unwilling to ascribe [the office of protection and advocacy’s] unreasonable delay to A or to inflict consequences for such delay on A’s prayer for relief.” The court, reviewing this conclusion, stated that “[w]hile [the office of protection and advocacy] did fail to disclose Dr. Rivera’s report from November, 1996, until May, 1997, knowing that [A] was probably eligible for special education services, that delay is not attributable to [A] on a laches theory and does not preclude compensatory education. . . . Compliance with the [act] is the responsibility of the school district, not the student.”

The plaintiff first argues that the law of agency renders A responsible for any delays attributable to the office of protection and advocacy for educational entitlements. We are not persuaded.

At the outset, we note that the plaintiff was created pursuant to General Statutes § 18-99a “for the education or assistance of any person confined in any institution of the department [of correction], ...” Section 18-99a places the responsibility of tending to the educational needs of those incarcerated with the plaintiff. Furthermore, General Statutes § 10-76d (a) (1) requires that “each local or regional board of education shall provide the professional services requisite to identification of school-age children requiring special education, identify each such child within its jurisdiction, determine the eligibility of such children for special education . . . prescribe suitable educational programs for eligible children, maintain a record thereof and make such reports as the commissioner may require.”

The purpose of the act, which is the basis of the Connecticut special education scheme, is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected . . . .” 20 U.S.C. § 1400 (d) (1) (A), (B). The act “confers upon disabled students an enforceable substantive right to public education in participating States . . . .” Honig v. Doe, 484 U.S. 305, 310, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988). The “primary vehicle” of implementing the act’s goals is the individualized educational program. Id., 311. The plaintiffs argument that inactivity on the part of an agency charged with representing a child can cause a child to lose that entitlement does not comport with the purpose of the act, that is, “to ensure that the rights of children with disabilities and parents of such children are protected.” The delay is not attributable to A, and the laches defense fails.

The court, in reviewing the plaintiffs laches defense, also stated that “[e]ven if the delay could be attributable to [A] based on an agency theory, [the plaintiff] has failed to demonstrate resultant prejudice. The testimony before the hearing officer established that [the plaintiff] simply was not able to provide a [free and appropriate public education] to [A], In terms of costs to [the plaintiff] as a ground for prejudice, there would have been costs for providing a [free and appropriate public education] to [A] if done in a timely fashion. . . . Thus, the plaintiffs laches argument must fail.” The court properly concluded that the plaintiff failed to establish prejudice.

In its brief, the plaintiff states that it would have taken the necessary steps had it known of A’s entitlement to special education services. “Prejudice by delay in instituting an equitable action is an essential element of laches. . . . Laches in legal significance is not mere delay but delay that works a disadvantage to another.” (Citation omitted; internal quotation marks omitted.) Bahr Corp. v. O'Brion, 146 Conn. 237, 249, 149 A.2d 691 (1959). “The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant ... as where, for example, the defendant is led to change his position with respect to the matter in question.” (Internal quotation marks omitted.) Burrier v. Burrier, 59 Conn. App. 593, 596, 758 A.2d 373 (2000). Since the plaintiff can identify no consequence of the delay, it has failed to establish prejudice.

The decision of the United States Court of Appeals for the First Circuit in Murphy v. Timberlane Regional School District, supra, 973 F.2d 14, reversing a District Court decision granting amotion for summary judgment on the basis of a defense of laches, is instructive. The court initially stated that “[w]e have been unable to find any cases applying the laches doctrine to a claim brought under the Act, indicating that perhaps the doctrine should be applied sparingly to facilitate Congress’ policy concerning the education of children with disabilities.” Id., 16. The court held that a six year delay in seeking relief was not unreasonable when attributed to negotiations by the child’s parents with a school for adequate services or a misunderstanding as to a child’s entitlement to special education beyond the age of twenty-one. Id. Furthermore, the court was troubled by the school district’s attempt to place blame on parents for failure to pursue rights under the act when the state scheme placed the obligation on the school district. Id., 17. We further note that, unlike the situation in Murphy, the plaintiff in the present case does not claim that it actually identified A as a special education candidate. It is difficult, therefore, to accept the argument that A failed to resort to the procedural mechanisms for disagreements with a prescribed special education program when, for much of the time at issue, no program was prescribed.

The Murphy court similarly rejected arguments that the school district was prejudiced by the six year delay, including arguments that “because [the student] is now over 21 years of age, the state will not reimburse [the school district] for the costs associated with compensatory education; memories of witnesses from the 1981-83 period have faded; most of the principal actors from the 1981-83 period have left the jurisdiction of Timberlane; and in light of the posture of this case, no stay-put provision was in place, and [the student] has been out of any publicly funded educational system since 1989.” Id., 17. The court responded that “[t]he laches doctrine may be invoked only where the prejudice to the defendant flows from the plaintiffs delay. . . . Two of the factors relied on by the district court have nothing to do with the [parents’] delay in filing their claim. Although it may be true that the state would not contribute to [the school district’s] expenditures on compensatory education, that hardship is not attributable to the parents’ delay. If the [parents] had sought and received a compensatory education award in 1984, [the school district] would still be required to bear the cost without assistance from the state. Similarly, any prejudice to [the school district] that might result from the fact that [the student] has been out of school throughout the course of these proceedings is not attributable to the parents’ delay. The two remaining factors upon which the district court relied also do not support a grant of summary judgment. First, there was no evidence before the district court that the memories of witnesses had failed. Second, the district court’s finding that key witnesses were unavailable was premature. [The school district] measures unavailability by reference to the subpoena power of the administrative agency.” (Citations omitted.) Id., 17-18.

In contrast to Murphy, the plaintiff here claims only that it has suffered a delay in acting on A’s educational needs. It does not claim any loss of witnesses produced by the delay. We therefore conclude that the court properly found that a laches defense did not preclude the grant of compensatory education.

II

In several remaining claims, the plaintiff argues that the hearing officer made a series of rulings without substantial evidence to support the rulings. Specifically, the plaintiff claims that the hearing officer improperly (1) awarded compensatory education from March 21, 1997, through August 27, 1997, (2) ignored the fact that A was not entitled to compensatory education between March 21, 1997, and August 27, 1997, because A had conceded that he had not regressed during that period, (3) found that the program that was offered to A between March 21,1997, and August 27,1997, was inappropriate and (4) awarded compensatory education for the periods of February 20, 1996, to May 2, 1996, and from June 5, 1996, to September 9, 1996.

“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, supra, 253 Conn. 676-77.

“[A] court’s inquiry in suits brought under [the Act] is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.” Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 206-207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). With these standards in mind, we review the various substantial evidence claims.

A

The plaintiff first claims that the award of compensatory education from March 21, 1997, through August 27, 1997, is not supported by substantial evidence. We disagree.

The hearing officer reviewed the evidence presented regarding the time period from March 21, 1997, to August 27, 1997, and concluded that “since there is no evidence in the record to demonstrate that [the plaintiff], during the time periods set forth above, followed the procedural requirements of the [act] or offered a program from which A could derive educational benefit, it is held that [the plaintiff] has failed to satisfy either prong of the [Rowley] standard for an appropriate special education program . . . .” We conclude that substantial evidence supports this conclusion.

The plaintiff argues that the following facts controvert the hearing officer’s conclusion. The plaintiff did not have the October, 1996 individualized education program, through no fault of its own. Both A and the office of protection and advocacy knew that the plaintiff did not have the relevant individualized education program, and the office of protection and advocacy did not provide the individualized education program to the plaintiff. We find these assertions unpersuasive.

As we stated in part I of this opinion, General Statutes § 18-99a requires that school districts identify students in need of special education. A number of other federal and state provisions impose a similar burden on agencies such as the plaintiff to provide for the special education needs of students within its district. See 34 C.F.R. § 300.343; Regs., Conn. State Agencies § 10-76d-6; Regs., Conn. State Agencies § 10-76d-13; Regs., Conn. State Agencies § 10-76d-14.

Under the express language of those provisions, the plaintiffs argument that it was not responsible must fail. The March 21,1997 telephone call from the department of children and families put the plaintiff on notice that the plan existed. At that point, it was incumbent on the plaintiff to retrieve the plan.

The plaintiff further argues that, pursuant to federal regulations, the court improperly concluded that it was required to implement the October, 1996 plan on the day that it had received notice from the department of children and families, contrary to federal and state regulations that afford various time periods for implementations of plans. This argument overlooks the fact that, from February, 1996, to March, 1997, A was incarcerated at the center. Although the volume of short-term residents may be daunting, this factor does not relieve the plaintiff from the burden of upholding the right of a special education student to a free and appropriate public education. See Alexander S. v. Boyd, 876 F. Sup. 773, 801-802 (D.S.C. 1995).

B

The plaintiff next argues that the conclusion of the court that A was entitled to compensatory education from May, 1997, to August, 1997, is not supported by substantial evidence because A conceded that he had not regressed from the academic level he maintained while at Riverview. We disagree.

The court found the plaintiffs assertion that the hearing officer ignored A’s concession that he had not regressed “unavailing.” Testimony was provided that A had relapsed into a pattern of self injury. The plaintiff presented evidence that pointed to sustained levels of performance in mathematics and reading in support of its argument that A had not regressed to previous academic levels.

This argument misapprehends the role of regression in the analysis of violations of the act. Regression is considered when a court reviews the adequacy of the individualized education program. See Burilovich v. Board of Education, 208 F.3d 560, 571 (6th Cir. 2000). “[F]or an [individualized education program] to be reasonably calculated to enable the child to receive educational benefits ... it must be likely to produce progress, not regression . . . .” (Citations omitted; internal quotation marks omitted.) M.S. ex rel. S.S. v. Board of Education, 231 F.3d 96, 103 (2d Cir. 2000). The regression argument is not relevant to the analysis of education given a student in the absence of an individualized education program.

A stated objective of the act is to provide special education students with “a free and appropriate public education.” The act defines a “free appropriate public education” as a “special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with [an] individualized education program.” (Emphasis added; internal quotation marks omitted.) School Committee v. Massachusetts Dept. of Education, 471 U.S. 359, 367-68, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985). The United States Supreme Court has stated that “[a]lmost as a checklist for adequacy under the Act, [a free and appropriate public education] also requires that . . . instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s [individualized education program].” (Emphasis added.) Hendrick Hudson District Board of Education v. Rowley, supra, 458 U.S. 189. The plaintiff cannot point to any evidence of an individualized education program complying with the strictures of an individualized education program as delineated in § 10-76d-ll of the Regulations of Connecticut State Agencies. The plaintiff cites to no legal authority that affords it the option of implementing a program under alternate criteria that would satisfy the requirements of § 10-76d-ll.

Even if such a program were possible, “the educational benefit to which the Act refers and to which an [individualized education program] must be geared cannot be a mere modicum or de minimis; rather, an [individualized education program] must be likely to produce progress, not regression or trivial educational advancement. In short, the educational benefit that an [individualized education program] is designed to achieve must be meaningful.” (Internal quotation marks omitted.) Houston Independent School District v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000). Because the plaintiff failed to generate a new individualized education plan or to implement the October, 1996 plan, the court’s conclusion that the plaintiff failed to provide A with a free and appropriate public education pursuant to the act is supported by substantial evidence.

C

The plaintiff further claims that the court improperly concluded without substantial evidence that the program offered to A between May, 1997, and August, 1997, was not appropriate. We are not persuaded.

The United States Department of Education has interpreted the act to require each public agency to “(1) Provide special education and related services to a child with a disability in accordance with the child’s [individualized education program]; and (2) Make a good faith effort to assist the child to achieve the goals and objectives or benchmarks listed in the [individualized education program].” 34 C.F.R. § 300.350 (a).

The plaintiff specifically claims that the decision of the hearing officer was improper because the education provided “conferred some educational benefit to A” and he progressed in the areas of mathematics and reading. As indicated in part II of this opinion, the act requires more than an improvement in some subject areas; see, e.g., Houston Independent School District v. Bobby R., supra, 200 F.3d 350 (once plan implemented, act does not mandate improvement in every subject area); it requires implementation of a program tailored to the special needs of the student, which is not evidenced in the present case. As such, the decision of the court is supported by substantial evidence.

D

The plaintiff further claims that the conclusion that A was entitled to compensatory education for the periods of February 20, 1996, to May 2, 1996, and from June 5, 1996, to September 9, 1996, is not supported by substantial evidence. We disagree.

The plaintiff again relies on § 10-76d-13 of the Regulations of Connecticut State Agencies for the proposition that the district is allowed forty-five days, exclusive of obtaining parental consent, to implement an individualized education plan. The fact that a plan must be implemented within forty-five days does not bar an entitlement to an education during that period. The forty-five day time limit imposed by the act requires state defendants to provide timely hearing determinations. Lillbask ex rel. Mauclaire v. Sergi, 117 F. Sup. 2d 182, 189 (D. Conn. 2000). This provision imposes a procedural requirement on the state to ensure access to an education within a reasonable time period, not an elimination of the student’s substantive right to a free and appropriate public education during that forty-five day period.

Similarly, General Statutes § 10-76d requires the identification of those entitled to special education services irrespective of procedural timelines, precluding a denial of benefits as a result of such timelines. “The statutory definition of ‘free appropriate public education,’ in addition to requiring that States provide each child with ‘specially designed instruction,’ expressly requires the provision of ‘such . . . supportive services ... as may be required to assist a handicapped child to benefit from special education.’ [20 U.S.C.] § 1401 (17). . . . We therefore conclude that the ‘basic floor of opportunity’ provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Hendrick Hudson District Board of Education v. Rowley, supra, 458 U.S. 201. The conclusion of the court that A is entitled to compensatory education is supported by substantial evidence.

Ill

The plaintiff further claims that the court improperly upheld the award for compensatory education notwithstanding the finding that A was incompetent. We disagree.

The fact that A was declared incompetent in criminal proceedings has no bearing on whether he is competent for purposes of civil matters, since declarations of civil and criminal competence arise out of different proceedings and involve different standards. Under General Statutes § 54-56d (2), a party raising the issue of competence must establish that the defendant is not competent to stand trial by a preponderance of the evidence. In contrast, “our provisions for civil commitment; see General Statutes § 17a-498 (c); and for conservatorship proceedings, which govern the appointment of a conservator of the person for an individual incapable of caring for himself or herself; see General Statutes § 45a-650 (c); require proof by clear and convincing evidence . . . .” (Emphasis added.) State v. Garcia, 233 Conn. 44, 87-88, 658 A.2d 947 (1995). It would be unreasonable for the court to equate criminal incompetence with civil incompetence, given the disparate standards. See In re Valerie D., 223 Conn. 492, 533-34, 613 A.2d 748 (1992). The court properly rejected the argument that criminal incompetence should be considered in an award of compensatory education.

rv

The plaintiff finally claims that the court improperly ordered it to hold a pupil placement team meeting for A within forty-five days of the issuance of the decision in light of the uncertainty surrounding the release of A from Connecticut Valley Hospital. We disagree.

The plaintiff appears to speculate that A may remain institutionalized beyond the forty-five days granted to it by the court for convening a pupil placement team meeting. We will not reverse the decision of the court on the basis of speculation that compliance may not be possible due to some future occurrence.

The plaintiff, alternatively, may be arguing that it is uncertain regarding the actions that must be taken. “A judgment must so dispose of the matters in issue that the parties and other persons affected will be able to determine with reasonable certainty the extent to which their rights and obligations have been determined.” Contegni v. Payne, 18 Conn. App. 47, 59, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989). The order sufficiently describes the actions to be taken by the plaintiff, and, should the occasion arise in which compliance is not possible, adequate safeguards are accorded the plaintiff. See Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998) (“ ‘[t]he inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt’ ”). The court, therefore, properly rendered its order.

The judgment is affirmed.

In this opinion the other judges concurred.

       Uinified School District No. 1 is a special school district within the department of correction established pursuant to General Statutes § 18-99a.

       The name of the defendant is not disclosed pursuant to General Statutes § 10-76h (d) (1).

       Riverview is associated with Unified School District No. 2, a special school district within the department of children and families established pursuant to General Statutes § 17a-37.

         Neither of A’s parents participated in this proceeding. On August 27,1997, the center released A to Connecticut Valley Hospital for a determination of his competency to stand trial. On November 25, 1997, the hospital found A not competent to stand trial, and he remains a voluntary inpatient at the hospital.

       Even though A is now over the age of twenty-one, this appeal is not moot. A student who has been deprived of services to which he or she was entitled under the act has a right to compensatory education, regardless of whether he or she has passed the age of eligibility for current or future services under the act. See Pihl v. Massachusetts Dept. of Education, 9 F.3d 184, 188-89 (1st Cir. 1993).

       General Statutes § 4-183 (j) provides: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       Title 34, § 300.343, of the Code of Federal Regulations provides in relevant part:
      “(a) General. Each public agency is responsible for initiating and conducting meetings for the purpose of developing, reviewing, and revising the [individualized education program] of a child with a disability ....
      “(b) Initial [individualized education programs]; provision of services.

        “(1) Each public agency shall ensure that within a reasonable period of time following the agency’s receipt of parent consent to an initial evaluation of a child—
      “(i) The child is evaluated; and
      “(ii) If determined eligible under this part, special education and related services are made available to the child in accordance with an [individualized education program].
      “(2) In meeting the requirement in paragraph (b) (1) of this section, a meeting to develop an [individualized education program] for the child must be conducted within 30-days of a determination that the child needs special education and related services. . . .”

       Section 10-76d-6 of the Regulations of Connecticut State Agencies provides: “Each board of education is responsible for the identification of children requiring special education and related services. This responsibility shall include cooperating with other agencies in a position to identify children requiring special education and related services. Determination of a child’s eligibility to receive special education and related services shall be based on documented evidence, as required by these regulations, that the child requires special education.”

       Section 10-76d-13 of the Regulations of Connecticut State Agencies provides:
      “Special education and related services shall be provided as soon as possible after the planning and placement team meeting held to review, revise or develop the child’s individualized education program, but in any event not later than the following timelines.
      “(a) School year. In the case of a referral made during the academic year, the timelines shall be as follows.
      “(1) The individualized education program shall be implemented within forty-five days of referral or notice, exclusive of the time required to obtain parental consent.
      “(2) In the case of a child whose individualized education program calls for out-of-district or private placement, the individualized education program shall be implemented within sixty days of referral or notice, exclusive of the time required to obtain parental consent. If difficulty of placement is such as to occasion a delay beyond this period, the board of education shall submit to the state board of education written documentation of its efforts to obtain placement in a timely manner.
      “(3) Notice shall be sent to the parents in accordance with the requirements of Section 10-76d-8 of these regulations.
      “(4) Where necessary, parental consent shall be given within ten days of the date of notice or, where appropriate, of the date of the planning and placement team meeting in which the parents participated. Consent shall be as specified in Section 10-76d-8 of these regulations.
      “(5) Notice of a planning and placement team meeting to develop, review or revise the child’s individualized education program shall be sent to the parents in accordance with Section 10-76d-12 (c) of these regulations.
      “(6) A full copy of the individualized education program shall be sent to the parents within five days after the planning and placement team meeting to develop, review or revise the individualized education program.
      “(b) Between school years. In the case of a referral made in between school years, the effective date of the referral may be deemed to be the first school day of the next school year.”

       Section 10-76d-14 of the Regulations of Connecticut State Agencies provides in relevant part: “Each board of education shall provide each child requiring special education and related services with a program appropriate to the child’s needs as set forth in the child’s individualized education program. . . .”

       The court in Alexander S. v. Boyd, supra, 876 F. Sup. 801-802, addressed the same issue in the context of juvenile facilities in which over2000juveniles would pass through the institution per year, staying an average of twenty-one days but no longer than forty-five days. The court stated that the obligation to screen juveniles and, if necessary, to create a new individualized training plan commenced upon assignment to the institution. The court further noted the various obstacles present in the transfer of juvenile education records.
      The court in that case contacted the United States Department of Education for a potential solution. The department replied in a memorandum in which it concluded that: “In the case of short-term, temporary confinement, the State may meet its obligation under [the Individuals with Disabilities Education Act] and Section 504 ... by implementing the [individualized education program] from the previous school district or placement instead of developing a new one. The [individualized education program] must be implemented to the extent possible in the temporary setting. To the extent the implementation of the old [individualized education program] is impossible, services that approximate, as close as possible, the old [individualized education program] must be provided.” (Internal quotation marks omitted.) Id., 802.

       Section 10-76d-ll of the Regulations of Connecticut State Agencies, governing individualized education programs, provides: “Each board of education shall establish policies and procedures for developing, implementing, reviewing, maintaining and evaluating an individualized education program for each child requiring special education and related services. The individualized education program shall be based upon the diagnostic findings of the evaluation study. The planning and placement team shall base recommendations for any changes in a child’s individualized education program upon the child’s current individualized education program and any information relating to the child’s current educational performance.

        “(a) Development or revision. Each planning and placement team shall develop, or revise, whichever is appropriate, the individualized education program for each child requiring special education and related services prior to the beginning of the school year. In the case of a student enrolled after the last day of the previous school year, this process shall be completed by October first of the school year.
      “(b) Review. Each planning and placement team shall review and, if appropriate, revise each child’s individualized education program periodically but not less than annually. In addition, a review shall be made upon request of the parents or personnel working with the child, provided the child’s educational performance indicates the need for a review.
      “(c) Components. Components of the individualized education program shall include the following.
      “(1) A statement of the child’s present level of educational performance, including, where appropriate, academic achievement, social adaptation, prevocational and vocational skills, psychomotor skills and self-help skills;
      “(2) A statement of annual educational goals for the school year under the child’s individualized educational program;
      “(3) A statement of short-term instructional objectives derived from the annual educational goals. This shall include objective criteria, evaluation procedures and schedules for determining, on a regular basis, whether the short-term instructional objectives are being achieved;
      “(4) A statement of specific educational services needed by the child, including a description of special education and related services which are needed to meet the needs of the child. Such description shall include the type of transportation necessary and a statement of the recommended instructional settings;
      “(5) The date when those services will begin and length of time the services will be given with the length of the school day and school year needed to meet the child’s special education needs, including criteria to determine when services will no longer be needed;
      “(6) A description of the extent to which the child will participate in the regular education program. This shall include a description of how the regular education program will be modified to meet the child’s needs;
      “(7) A list of the individuals who shall implement the individualized education program; and
      “(8) In the case of a residential placement, whether such placement is being recommended because of the need for services other than educational services.
      “(d) Individualized education program form. Each board of education shall use a standardized individualized education program form. Said form shall be subject to the approval of the state board of education.”