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School for Language and Communication Development v. New York State Dep't of Education

September 26, 2006

SCHOOL FOR LANGUAGE AND COMMUNICATION DEVELOPMENT, ET AL., PLAINTIFFS,
v.
NEW YORK STATE DEPARTMENT OF EDUCATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

ORDER

INTRODUCTION

This action was commenced over four years ago by the School for Language and Communication Development ("SLCD"), its founder and executive director Dr. Ellenmorris Tiegerman-Farber ("Tiegerman") and five parents of disabled children who attend(ed) SLCD. The action was brought against the New York State Education Department ("NYSED"); Richard P. Mills, the New York State Commissioner of Education; Lawrence Gloeckler, the Deputy Commissioner for Vocational and Educational Services for Individuals with Disabilities; Rebecca Cort, the Statewide Coordinator of the Office of Special Education Quality Assurance; Steven Berman, the Regional Supervisor of NYSED and Vesid Special Education Quality Assurance (collectively, the "Defendants"). The Plaintiffs alleged that Defendants, inter alia, violated their rights guaranteed by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., by adopting a policy that had the effect of imposing an arbitrary "cap" on the number school-age children eligible to attend SLCD.

The Complaint has been amended twice and additional parents of SLCD students have joined the litigation; in addition, parents of two SLCD students have separately intervened. The Parties have appeared before this Court on several occasions, most recently in June of this year, when they reached an agreement to keep certain students enrolled at SLCD for the upcoming school year. Presently pending before the Court are Plaintiffs' (including the intervenor Plaintiffs) and Defendants' summary judgment motions concerning the issue at the heart of this case: whether NYSED's policy violates the IDEA. For the reasons explained below, the Court finds that NYSED's policy is not in contravention of the statute.

BACKGROUND

SLCD is a private school that is located in Glen Cove, New York. (Pls.' R. 56.1 Statement ¶ 1.) Teigerman is its founder and executive director. SLCD provides programs and services to both pre-school (pre-Kindergarten) and school-age children with severe language and communication disorders. (Pls.' 56.1 ¶ 2.) SLCD was permanently chartered by the State of New York Board of Regents in 1985. (Defs.' R. 56.1 Statement ¶ 3.*fn1 ) SLCD's charter was most recently amended on Febrauary 8, 2005 to grant SLCD provisional authority to, inter alia, educate children from ages 5-21 and operate grades 7-12. (Sheffel Reply Aff., Ex. 56.)

NYSED is a state educational agency within the meaning of the IDEA; as such, it is charged with ensuring proper compliance with the IDEA. (Pls.' ¶¶ 6, 7.) NYSED grants programmatic approval to private institutions, such as SLCD, that provide special education to children with disabilities. (Defs.' 56.1 ¶ 5; Pls.' 56.1 Counter-Statement to Defendants' R. 56.1 Statement ¶ 5.) Programmatic approval is different from a certificate of authorization from the Board of Regents. It refers to NYSED's funding authorization of grades that can be taught, and the number of students that may be enrolled at a school.*fn2 The direct result of being an institution that lacks programmatic approval is that the NYSED will not reimburse school districts for students that are enrolled beyond your cap number, or outside your instructional level authorization. (See Defs.' 56.1 ¶ 5; Pls.' 56.1 ¶¶ 27-34.) The practical result is that school districts will not recommend your school, irrespective of its ability to take additional students on. (Id. ¶¶ 27-34.)

NYSED has authorized SLCD to serve pre-school children with disabilities who have significant developmental delays and children without disabilities. (Pl.'s 56.1 ¶ 3.) NYSED has also authorized SLCD to serve school-age children in grades Kindergarten through Third (K-3) who are severely speech and language impaired, and who may also have additional handicapping conditions. (Id. ¶ 4.) In addition, through several waivers, NYSED has authorized SLCD to continue servicing currently enrolled students up to and including 9th grade. (Id. ¶¶ 24-26; Stipulation dated 6/26/2006.) SLCD is permitted to service these students if there is no appropriate alternative recommendation made by a Committee on Special Education ("CSE"). The CSE is responsible for evaluating children with disabilities and recommending a placement for them based upon their individual needs. (Pls.' 56.1 ¶ 8.) The CSEs develop a plan, called an Individualized Education Program ("IEP"), for each child; the IEP sets forth the specific special education program and services to be provided for a learning disabled student.

Notwithstanding the foregoing waivers (which allow SLCD relief from any cap), the current enrollment caps at SLCD are as follows: 66 full-time school-age; 24 full-time pre-school; and 81 part-time pre-school. (Pls.' 56.1 ¶ 9.)

The 1996 "Moratorium"

In July 1996, the New York State Legislature imposed a 7-year moratorium on the approval of any new or expanded programs for pre-school students with disabilities. (Pls.' 56.1 ¶.) The legislature created an exception where school districts "document a critical need for a new or expanded program in a setting which includes only preschool children with disabilities, to meet the projected demand for services for preschool children in the least restrictive environment." N.Y. Educ. Law § 44109(a)(iii). Schools seeking to rely upon the exception are required to submit such documentation to the attention of NYSED. (Pls.' 56.1 ¶ 14.)

Approximately four months later, Lawrence Gloeckler, the Deputy Commissioner for Vocational and Educational Services for Individuals with Disabilities ("Gloeckler"), issued a NYSED "department memoranda" entitled "Procedures for Program Application and Expansion of In-State Private Schools and Center-Based Preschool Programs for Students with Disabilities." (Sheffel Aff. Ex. 5.) The memoranda provides, in relevant part:

Applications for approval of private school programs or center-based preschool programs or applications from an approved private school or center-based preschool program seeking to expand its existing program for students with disabilities will be considered only when there is a demonstrated need for the expansion of such services in that particular region of the State. Private day schools or center-based preschool programs should submit a letter of intent with supporting documentation to the appropriate regional special education office of the Office of Vocational and Educational Services for Individuals with Disabilities . . . . Private residential schools should submit such letter and documentation to the Residential Placement System (RPS) Unit . . . . This letter and documentation must include a description of the program the agency intends to open or expand and all required information noted below. Applications which do not address each of these factors will not be considered for approval.

Id. (emphasis added).

The aim of the procedures is apparent, and is effectively conceded by NYSED. NYSED believes that too many children are being educated in overly restrictive environments, i.e., facilities such as SLCD that serve primarily or exclusively students with disabilities. (See Id. at 2; Defs.' Mem. of Law in Opp. to Pls.' Mot. for Partial S.J.) When explaining the type of written documentation that an applicant for expansion must obtain from the school district, Gloeckler states that the documentation should include a "projected number of students . . . whose educational needs would be appropriately met by the program and for whom appropriate less restrictive public facilities or private schools are not available. This number should include only students for whom there is documentation of efforts to place the students in less restrictive public facilities or consideration of such placements. . . ." (Id. at 3 (emphasis added).)

In January 2000, SLCD submitted an application for expansion to NYSED. SLCD sought to expand the existing program to include grades 4-6. (Pls.' 56.1 ¶ 18.) The NYSED declined to review the application because SLCD did not submit documentation demonstrating a "local need" for expansion. (Id. ¶ 19.) In March 2002, SLCD submitted another application to NYSED. It is worth noting that at this point, SLCD had already commenced the instant action against the above-captioned Defendants. The March 2002 application sought authorization to expand the program to include grades 6-9. (Id. ¶ 20.) NYSED did not respond to the March 2002 letter. (Id. ¶ 21.) In May 2002, SLCD sent NYSED a letter requesting an expansion to accommodate students that had been placed on the New York City waiting list because SLCD had not been approved for expansion to serve these children (Id. ¶ 22.) SLCD was advised to direct the correspondence to NYSED's counsel. Impact On The Students NYSED has taken several steps to enforce the enrollment caps at SLCD. In November 2000, NYSED informed the New York City Board of Education ("NYCBOE") and all local school districts on Long Island that it would not reimburse them for any children that they place at SLCD with an admission date from November 28, 2000 forward until SLCD reduced its enrollment to the enrollment cap level. (Id. ¶ 27.) In March 2001, NYSED continued to inform school districts that they would not be reimbursed for any recommendations that CSE's and CPSE's (Committees on Preschool Education) made to place new children at SLCD for the 2001-02 school year. (Pls.' 56.1 ¶ 28.) In October 2001, the NYCBOE informed CSE chairpersons that the SLCD students that had been permitted to remain at SLCD in grades 4 and 5 had to be recommended for new placements. (Id. ¶ 29.)

In September 2002, NYSED required school districts to secure documentation that there were no other programs in its district for a disabled child before approving a waiver to attend SLCD. (Id. ¶ 30.) In 2004, NYSED instructed the Central Based Support Team ("CBST") - the New York City agency that evaluates and approves IEPs - that CSE's may not recommend SLCD for children ages 4-7 for the 2004-05 school year. (Id. ¶ 31.) As a result of the directive, SLCD was expected ...


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