MEMORANDUM-DECISION AND ORDER*fn1
Plaintiff Jessica Paige Johnson, by her parent Susan Johnson, and Plaintiff Susan Johnson (collectively "Plaintiffs") brought this action pursuant to the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400, et seq.; the Rehabilitation Act of 1973 ("§ 504"), 29 U.S.C. § 792, et seq.; Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq.; the Civil Rights Act of 1871 ("§ 1983"), 42 U.S.C. §§ 1983, 1988; New York Education Law § 4401, et seq.; and Article XI, Section 1 of the New York State Constitution. Plaintiffs filed a Complaint on March 3, 2005, and thereafter filed an Amended Complaint on April 6, 2005. See Complaint (Dkt. No. 1); Amended Complaint (Dkt. No. 4). Defendants filed an Answer on April 25, 2005. See Answer (Dkt. No. 6).
On February 17, 2006, this Court received the Report of the Mediator stating that the case did not settle, and would be proceeding toward trial. See Report of Mediator (Dkt. No. 10).
Thereafter, on April 30, 2006, Defendants filed a Motion seeking summary judgment (Dkt. No. 12), and Plaintiffs filed a Motion seeking partial summary judgment (Dkt. No. 13).
The following are the pertinent facts.
Plaintiff Student was first identified as having a disability in pre-kindergarten, and was diagnosed as having attention deficit hyperactivity disorder ("ADHD"), oppositional defiant disorder ("ODD"), anxiety disorder, physical impairment by a clubbed foot, and severe hearing loss in her right ear. See Plntfs' State. of Mat. Facts (Dkt. No. 13, Attach. 2) at ¶¶ 6-7. Through her completion of the third grade in the Glens Falls City School District,*fn2 Plaintiff Student was classified by the Committee on Special Education ("CSE") of the City School District as having a handicapping condition - Other Health Impairment ("OHI") - and she received special educational services as spelled out in her Individual Educational Plan ("IEP"). Id. at ¶8. Even as of April 2003 - just before Plaintiff Student entered the Defendant District as a student - the City School District CSE classified Plaintiff Student as OHI, and specified services and counseling in her IEP for the 2003-04 school year. Id. at ¶¶ 9-10.
Plaintiff Student enrolled in the Defendant Glens Falls Common School District in September of 2003, as a fourth grade student, and the CSE of the Defendant District determined that the recommendations of the City School District would be implemented - thereafter memorializing that determination, and the related services, in an IEP. Id. at ¶ 10-15.
Evaluations of Plaintiff Student were conducted over the next several months, and a CSE meeting was scheduled for December 18, 2003. Id. at ¶¶ 16-17. Although Plaintiff Parent was unable to attend the December 2003 meeting, the CSE modified the IEP to reflect a determination that Plaintiff Student receive preferential seating in class, and follow-up by the teacher to confirm understanding of lessons. Otherwise, the IEP remained unchanged from prior versions. Id. at ¶¶ 18-19. Plaintiff Student's behavior in class, and academic performance deteriorated over the course of the 2003-04 school year. Id. at ¶¶ 20-21.
While Plaintiff Parent had not received minutes from the prior CSE meetings, the CSE scheduled another meeting for February 9, 2004, which Plaintiff Parent also was not able to attend. In addition, the meeting notice sent to Plaintiff Parent did not contain the notice of procedural rights mandated by the IDEA, and the CSE did not notify Plaintiff Parent that Plaintiff Student could be declassified at the meeting. Id. at ¶¶ 24-27. The February 9, 2004 CSE team at the meeting also did not have all of the mandated members in attendance. Id. at ¶ 28.
Although Plaintiff Parent was not present at the meeting, and did not waive her rights, the CSE team declassified Plaintiff Student at the February 9, 2004 meeting, creating an IEP that stated her need "[could] be met under a 504 plan." Id. at ¶¶ 29-33. Therefore, since Plaintiff Student was declassified, she was thereafter ineligible for special education services. Id.
Defendants again recommended that Plaintiff Student be declassified at a March 4, 2004 CSE meeting - a meeting for which the notice to Plaintiff Parent again did not contain the notice of procedural rights mandated by the IDEA, and the CSE did not notify Plaintiff Parent that the CSE would be recommending declassification. Id. at ¶¶ 38-43.
Following behavioral issues, Plaintiff Student was suspended on several occasions, and was placed in a one-to-one student-teacher environment at the request of Plaintiff Parent. Plaintiff Student remained in that setting until May or June of 2004. Id. at ¶¶ 45-48. Thereafter, Plaintiff Parent requested a referral back to the CSE, and requested an evaluation by a neuropsychologist but the CSE refused both. Id. at ¶¶ 49-50. Plaintiff Parent then demanded a due process hearing before an Impartial Hearing Officer ("IHO"), on May 27, 2004. Id. at 51.
According to Plaintiffs, following a hearing the IHO determined, on September 15, 2004, that:
Jessica was entitled to services under § 504, denied Plaintiffs' request for compensatory education, and a neuropsychological evaluation, and directed that a CSE should conduct evaluations, including a neurological evaluation, that the school physician should attend the next CSE meeting, and that after the evaluation ...