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September 4, 1997

MR. X, Plaintiff,

The opinion of the court was delivered by: MOTLEY


 On September 16, 1996, plaintiff ("Mr. X") commenced this action on behalf of his son ("E") alleging that E had been deprived of a free and appropriate education ("FAPE") which he is entitled to under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 1400 et seq. and New York Education Law. After plaintiff applied to defendant Community School District 2 ("School District") for educational services for E, the School District's Committee on Pre-School Special Education ("CPSE") developed an Individualized Education Plan ("IEP") for E, which plaintiff rejected. Pursuant to IDEA, plaintiff demanded an impartial hearing on the IEP. The Impartial Hearing Officer ("HRO") determined that the CPSE had recommended a FAPE as required by law. Plaintiff appealed the decision to the State Review Officer ("SRO") who dismissed the appeal. This action followed challenging these decisions.

 On November 21, 1996, defendant New York State Education Department ("SED") filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12 (b)(6). On November 27, 1996, New York City Board of Education and School District (collectively, "City defendants") filed an answer. On January 7, 1997, plaintiff filed a cross-motion for summary judgment and an opposition to SED's motion to dismiss. On the same day, City defendants moved for leave to amend their answer to assert a cross-claim against SED. On February 18, 1997, City defendants filed a cross-motion for summary judgment against plaintiff. On April 8, 1997, SED and City defendants submitted a stipulation, which was so ordered by this court, stating that SED would not oppose City defendants' application to amend their answer and that SED could move to dismiss any cross-claims asserted against it by City defendants if any claims against any defendants survived this court's disposition of the pending motions to dismiss and for summary judgment. Parties were notified by stipulations so ordered by this court and dated January 2, 1997 and February 14, 1997 that any motions or cross-motions would be taken on submission.


 The facts as alleged in the complaint are as follows: E was born on August 9, 1991. Since March, 1994, E has been receiving, at the expense of his parents, remediation for his autistic symptoms in a home based program which incorporates discrete trial instructions using Applied Behavioral Analysis ("ABA"). *fn1" ABA has been recognized as the only method with any real success in the remediation of autistic symptoms. Discrete trial instruction using ABA is conducted by paraprofessionals on a one-to-one basis under skilled supervision. Remediation requires intensive formal instruction by paraprofessionals and is supplemented by continuous incidental teaching by parents and care givers. Autistic children, including E, often lack motivation to learn new tasks, participate in social environments, and utilize important cues set before them in an educational setting. E's home based program was conducted 40 hours a week by three paraprofessionals, who were supervised by a professional trained in ABA and who spent two to three hours with E improving his motivation and ability to recognize environmental cues, and was supplemented by instruction from his parents. E's ABA instruction was also supplemented with mainstream activities with children without disabilities, particularly two music classes and a mother/child play group several days a week.

 On January 18, 1994, two months before plaintiff began E's home based ABA program, plaintiff applied to the School district for public preschool educational services for E, services E would become eligible for on July 1, 1994. Thereafter, E was evaluated and his educational needs were assessed by a multi-disciplined team of experts who plaintiff alleges determined that E should continue in the home based program. Plaintiff alleges that in fall, 1994, CPSE forwarded E's evaluation report to several privately owned nursery schools, including the Association in Manhattan for Autistic Children ("AMAC"), and asked each to indicate whether it thought it could provide an appropriate education for E. Each school, except AMAC, allegedly informed CPSE that they had no vacancies. Plaintiff also claims that although CPSE had not yet formulated an IEP for E, a Board of Education representative on the CPSE informed him that the CPSE would be recommending E to AMAC.

 On January 23, 1995, a year after plaintiff applied for educational services and six months after E was eligible for such services, at a meeting in which plaintiff was present, CPSE allegedly recommended that E be placed in AMAC, formulated short term goals and objectives some of which where ultimately deleted following plaintiff's contention that E had already met those objectives, and provided 25 hours of ABA instruction per week. When informed by plaintiff that AMAC did not have a one-to-one aide for E to administer ABA instruction, CPSE allegedly made the availability of one-to-one ABA instruction for E subject to SED's approval of Board funding to hire such an aide. Additionally, plaintiff alleges that CPSE revised the draft IEP to conform to AMAC's resources once it was informed by AMAC's director that AMAC could not fulfill certain requirements in the draft IEP.

 Plaintiff alleges that CPSE's recommendations in the IEP were arbitrary and capricious and contrary to federal and state laws. Plaintiff claims that AMAC consists only of children with various disabilities including some that are autistic and argues that the law requires CPSE to avoid separating children with disabilities from children without disabilities. Plaintiff maintains that placing E, an autistic infant, in AMAC would harm his development and that the IEP, suggesting said placement, was in violation of the law since it was not based on the needs of E but on the resources of the educational institution. Lastly, plaintiff claims that at the meeting, CPSE failed to provide him with an explanation as to why it recommended a program contrary to that preferred by him and the specialists, i.e., the home based program, and that four months after the meeting, CPSE erroneously informed him by letter that the home based program he requested did not fall within the confines of available services provided by the State Education Regulations.

 On February 22, 1995, plaintiff rejected the IEP and the AMAC placement and demanded an impartial hearing. Plaintiff claims that CPSE failed to meet its burden of proving that its recommendations were appropriate by not offering any written reports, evaluations, or recommendations other than those previously furnished by plaintiff. Plaintiff alleges that CPSE's principal witness, Frederica Blausten ("Blausten"), AMAC's executive director, admitted that she had not interviewed E, personally, but that a staff psychiatrist had, although neither he nor his report were submitted into evidence at the hearing. Blausten also allegedly testified that AMAC could only provide intermittently 25 hours of education to E on a one-to-one basis. Moreover, plaintiff claims that the Board submitted no evidence showing that the State Education Department had approved the Board's funding for the one-to-one aide mentioned in the IEP.

 Plaintiff appealed the decision of the HRO to a SRO claiming that the HRO's decision was arbitrary and capricious due to her misconstruing of the law in holding that segregated education of disabled children is not the most restrictive environment and in determining that the short term objectives were appropriate because they could be modified. Plaintiff maintained that the HRO erroneously shifted the burden from the City defendants to prove the appropriateness of their recommended placement and erroneously determined that plaintiff was partially responsible for the delay in the formulation of the IEP.

 On July 26, 1996, the SRO dismissed plaintiff's appeal despite her finding that CPSE failed to comply with state law by not providing Mr. X, at the time of its recommendation, with a reason for its recommendation of a program other than that preferred by the parent. Plaintiff claims that both the HRO and SRO ignored the fact that the IEP conditioned the ABA one-to-one instruction on State approval of Board funding for the additional staff member at AMAC. Furthermore, plaintiff maintains that although the SRO found that the HRO erred in ruling that the IEP was appropriate because the short term objectives could be modified, the SRO also misconstrued the IDEA mandate against placement of a child with a disability in a classroom with other children with disabilities. Plaintiff alleges that since defendants failed to provide a FAPE to E, they should reimburse him $ 88,000.00, the sum of the expenses incurred in providing such education. He also seeks attorney's fees and punitive damages in the amount of $ 250,000.00. *fn2"


 A. Motion to Dismiss

 A court may grant a motion to dismiss only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Although a court must take "as true the facts alleged in the complaint and [draw] all reasonable inferences in the plaintiff's favor," Jackson National Life Insurance Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994), a complaint that consists of nothing more than bald assertions and claims with no facts upon which a court could find a violation fails to state a claim under Rule 12(b)(6). Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994).

 1. SED's Argument

 In this case, SED moves to dismiss arguing that it is not a proper defendant in this action challenging the decision of the SRO because the Commissioner of SED no longer acts as the SRO in administrative appeals under IDEA. SED also argues that plaintiff fails to allege in his complaint any wrong doing by SED. In reply, plaintiff asserts that the 1990 amendment of the State Education Law removing the Commissioner and creating a separate and neutral SRO does not exonerate SED from liability for failure to comply with IDEA mandates. Plaintiff contends that although the SRO is required under the IDEA to be impartial and neutral, the SRO is still a state official who acted on behalf of the state when she denied plaintiff's appeal from the HRO's decision. Plaintiff also maintains that there were numerous due process violations during the review ...

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