The opinion of the court was delivered by: McMahon, J.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S CROSS- MOTION FOR SUMMARY JUDGMENT DISMISSING CASE
C.S., an autistic child, by her parents, has filed a complaint seeking "modified de novo review" of a decision of a State Review Officer (SRO) dated May 16, 2005. That decision affirmed a February 24, 2005 decision by an Impartial Hearing Officer (IHO), which had concluded that Defendant Rye City School District's Individualized Educational Plan (IEP) for the 2004-05 school year was reasonably calculated to provide C.S. with a free and appropriate public education (FAPE) for that year. The parents disagreed with the IEP and unilaterally enrolled their daughter at the Deveraux Millwood Learning Center, a private institution, for which they paid tuition. They also seek reimbursement for the cost of certain supplemental therapies and interventions that C.S. received during the 2004-05 school year.
The parents move for a modified de novo review of the SRO's decision, and the defendant District cross-moves for summary judgment dismissing the complaint.
Giving appropriate deference to the facts found by the IHO and SRO, and perceiving no error of law whatever, I grant the District's cross-motion, affirm the administrative findings, and dismiss the complaint.
Standards to be Applied to Review of IDEA Administrative Decisions
Plaintiffs who bring suit under the Individuals with Disabilities in Education Act (IDEA) must first exhaust the administrative remedies available to them under the statute. A party who disagrees with his child's Individualized Family Service Plan (IFSP) or other decisions made regarding services for their child must request an impartial due process hearing before the state or local educational agency. See 20 U.S.C. §§ 1415(f), (l). For children in New York's Early Intervention Program (EIP), this means a parent or guardian must initially seek review of her child's placement through an impartial due process hearing conducted before an administrative law judge. See N.Y. Pub. Health Law § 2549. Only after the administrative procedures are exhausted may an aggrieved parent seek court review of the adequacy of the IFSP. See Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981); Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir. 1992); Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987); Hope v. Cortines, 69 F.3d 687 (2d Cir. 1995). The "failure to exhaust deprives a district court of subject matter jurisdiction over the [action]." Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 245 (S.D.N.Y. 2000).
As to the 2004-05 school year, plaintiffs have exhausted their administrative remedies. They have received a decision from both an IHO and a State Review Officer.
The SRO's decision is subject to independent judicial review. However, as the United States Supreme Court has cautioned, this fact "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities..." Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Federal courts may not simply rubber stamp administrative decisions, but they must give "due weight" to the results of administrative proceedings, mindful that judges lack the specialized knowledge and experience required to resolve persistent and difficult questions of educational policy. Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 129 (2d Cir. 2001).
As the Second Circuit noted in Walczak, deference is particularly appropriate where, as here, the state hearing officers' review has been thorough and careful. In this regard, I must note that the decisions of both the IHO and SRO explore the evidence thoroughly, make detailed factual findings that are supported by the evidence, and cogently explain the reasons for the conclusions they reach. The SRO's decision is well-reasoned and well-supported by citations to relevant portions of the record. It is owed the degree of deference I am expected to give it.
Where, as here, we are dealing with the question of reimbursement for a unilateral parental placement, the rules are clear. A board of education may be required to pay for educational services obtained for a student by his or her parent, if (i) the services offered by the board of education were inadequate or inappropriate, (ii) the services selected by the parent were appropriate, and (iii) equitable considerations support the parents' claim. Burlington Sch. Comm. v. Dept. of Educ., 471 U.S. 359 (1985). Traditionally in this Circuit, the district bore the burden of proof on the first issue and the parents bore the burden of proof on the others. M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F. 3d 96, 102, 104 (2d Cir. 2000). However, the United States Supreme Court has recently ruled that the party who requests an impartial hearing bears the burden of proving that the services offered by the Board were inadequate. Schaffer v. West, 126 S. Ct. 528 (2005). Although the Supreme Court stated that this requirement applied equally to whatever party sought to challenge the IEP, it is inconceivable that the school district will ever challenge an IEP that it devises. This means, as a practical matter, that in this case the burden of proving the inadequacy of the IEP rests on the parents.
The IEP in this case was reviewed by the IHO and the SRO using pre-Schaffer standards (i.e., placing the burden on the school district to demonstrate the adequacy of the IEP, rather than placing on the parents who challenged the IEP the burden of proving the inadequacy of the IEP). However, that does not mean that this court can ignore Schaffer in reviewing the administrative decisions. In this lawsuit, it is the plaintiff-parents' burden to demonstrate that the administrative decision was wrong because the IEP was inadequate. The parents cannot prevail by arguing that the school District failed to meet the pre-Schaffer burden of proof at the administrative level.
The parents can satisfy their burden of proving that the District's plan did not afford their child a FAPE by establishing either (1) that the state did not comply with the procedural requirements of IDEA; or (2) that the challenged IEP was not "reasonably calculated to enable the child to receive educational benefits." Rowley, supra, 458 U.S. at 206-07.
Procedural flaws do not automatically require a finding of a denial of a FAPE, but procedural inadequacies that individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP constitute a denial of FAPE. Knable v. Bexley City Sch. Dist., 238 F. 3d 755, 766 (6th Cir. 2001), cert. denied, 533 U.S. 950 (2001).
In this case, the parents allege two procedural flaws: namely, failure by the defendant District to administer a test known as an Functional Behavioral Assessment (FBA) on the child; and failure by the District to send out packets to alternative, non-public schools, and so to consider those as alternative placements, prior to completing the child's IEP.
The parents also allege that the IEP failed to provide their daughter with a FAPE. In this regard, it is noteworthy that IDEA does not articulate any specific level of educational benefits that must be provided through an IEP. As the United States Supreme Court has noted, IDEA does not require states to maximize the potential of disabled children; it is required only "to open the door of public education to handicapped children on appropriate terms," not "to guarantee any particular level of education once inside." Walczak, supra., 142 F.3d at 129 (citing Rowley, supra, 458 U.S. at 206). As the Second Circuit has noted, because public resources are not infinite, federal law "does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child." Id. (citing Lenceford v. Dist. of Columbia Bd. Of Educ., 745 F. 2d 1577, 1583 (D.C. Cir. 1984)) (Ginsburg, J.).
Only if the parents prove that the IEP confers no educational benefit will a court go on to consider the other Burlington factors. Id. at 134.
The test for the parents' private placement is that it is appropriate, not that it is perfect. M.S., 231 F. 3d at 105; see also Warren G. v. Cumberland County Sch. Dist., 190 F. 3d 80, 84 (3d Cir. 1999). The parents satisfy their Burlington burden by showing that their unilateral placement offered an educational program that met their child's special needs. Id. at 102; Walczak, supra., 142 F. 3d at 149. The parents' unilateral placement need not have certified special education teachers or an IEP for the disabled student in order to qualify as appropriate. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993).
Moreover, while students with disabilities should be educated in the least restrictive environment, 20 U.S.C. § 1412(a)(5), parents are not held to the same strict standard of placement as are school districts. See M.S., supra., 231 F. 3d at 105; see also Rafferty v. Cranston Pub. Sch. Comm., 315 F. 3d 21, 26-27 (1st Cir. 2002). While a court may consider the least restrictive environment issue, a parent's inability to place his child in the least restrictive environment does not bar parental reimbursement. Id. (citing Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F. 3d 391, 400 (6th Cir. 1998)).
IDEA itself empowers a Court to consider material outside the administrative record. 20 U.S.C. § 1415 (i)(2)(B)(I)-(iii). No materials other than the administrative record have been forwarded to the court.*fn1
Factual and Procedural Background
The parents' brief and moving papers make repeated references to problems with the 2003-04 and the 2004-05 school years. The parties stipulated that the impartial hearing was to cover only the 2004-05 school year (Tr. 16), and the SRO correctly concluded that claims relating to alleged inadequacies in the child's program during the 2003-04 school year were not properly before him. They are also not properly before this Court, and thus will not be addressed.
The SRO found the following facts, all of which are amply supported by the record:
Plaintiffs' daughter was diagnosed with pervasive developmental disorder as a preschool student. She received specialized preschool instruction and support services, including speech-language therapy, occupational therapy and Applied Behavioral Analysis (ABA). She attended the Keller School, a private, not-for-profit, publicly funded preschool for children with disabilities.
During the 2003-04 school year, the child attended kindergarten in the special class at Midland, as recommended by the defendant District's Committee on Special Education (CSE). The class, which had a recommended student to stuff ratio of 8:1 (eight students to one teacher plus two teachers' aides), contained four students, a full-time special education teacher and two aides. Related services included individual speech-language therapy once a week for 30 minutes, speech-language therapy twice a week in a group of three for 30 minutes, and occupational therapy twice a week in a group of three for 30 minutes.
As part of its triennial reevaluation of C.S., the District administered a number of evaluative tests to the child in the autumn of 2003. The first of these was the Wechsler Preschool and Primary Scales of Intelligence -- Third Edition (WPPSI-III), on which the child scored a verbal IQ of 57 (.2 percentile), a performance IQ of 49 ( < .01="" percentile)="" and="" a="" full-scale="" iq="" of="" 49="">< .01="" percentile).="" testing="" demonstrated="" significant="" weaknesses="" in="" the="" child's="" ability="" to="" combine="" motor,="" perceptual="" skill,="" speed="" to="" a="" task,="" and="" the="" ability="" to="" follow="" directions="" --="" thereby="" impacting="" her="" cognitive="" functioning="" and="" overall="" performance="" in="">
The mother completed the Vineland Adaptive Behavior Scales: Interview Edition in September 2003. The results indicated that C.S., who was at that time 5 years and 7 months old, evidenced moderate delays in communications and a mild delay in daily living skills. Communication was her greatest area of weakness. The child was able to take a bath with assistance, put toys away when asked and was toilet trained through the night. She could imitate simple adult movements, show a desire to please others, and reach for a familiar person. She could not help with chores, understand the function of money, answer the telephone properly, play with toys alone, interact with others for a simple game or imitate a complex task.
A classroom observation conducted as part of the psychological evaluation revealed that C.S. was able to follow simple one-step directions, answer simple questions, read, identify words in print, complete certain math tasks independently, state the day of the week, and follow simple calendar patterns using colors. However, she did not spontaneously generate language. Her play skills were repetitive and perseverative. From time to time she threw herself to the floor, but was able to be redirected by the teacher.
The child also took the Wechsler Individual Achievement Test -- II (WIAT-II). Her math, reading and written subject test scores placed her close to grade level. Indeed, on the word-reading subtest, C.S. achieved a superior range score of 127, placing her in the 97th percentile, and on the spelling subtest she scored 135, which put her in the 99th percentile. She fell below grade level on listening comprehension and math reasoning, where she placed in the 13th and 10th percentiles, respectively. The child's teacher reported that her scores on the WIAT-II were consistent with her performance in the classroom. The teacher also indicated that the child had difficulty performing tasks that were presented in more complex language.
On a Clinical Evaluation of Language Functions -- Preschool, administered in November 2003, C.S. scored only in the first percentile in receptive language, and no score could be calculated for expressive language. The evaluator concluded that the child demonstrated serious receptive and expressive language delays, with weaknesses in the areas of attending to language, processing auditory information and spontaneous expressive language skills. This made it difficult for C.S. to follow a story or mainstream whole class activities, although she was able to follow simple directions, understand routines and greet familiar people when they entered a room.
An occupational therapist concluded, after evaluation in November 2003, that plaintiffs' daughter demonstrated several high level skill areas, but that she demonstrated difficulty processing sensory ...