MEMORANDUM-DECISION AND ORDER*fn1
M.V. ("Plaintiff"or "Parent"), acting on her own behalf and as representative of her minor child A.V., brings this action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Article 89 of the New York State Education Law. N.Y. EDUC. LAW §§ 4401-4410-b (McKinney 2007). Plaintiff is seeking review of an administrative decision of the State Review Officer ("SRO") that declined to award tuition reimbursement for her placement of A.V., a disabled student, in a private school for the 2004-2005 school year. Compl. (Dkt. No. 1) at ¶¶ 1, 40, 41. Plaintiff also seeks attorneys' fees and expenses pursuant to 20 U.S.C. § 1415(i)(3). Id. at ¶ 43.
Defendant Shenendehowa School District ("Defendant" or "District") answered and cross claimed, asserting that the SRO had "ignored the facts and misapplied the law when he found that the Hampshire Country School was a proper placement for A.V." Am. Answer with Countercl. (Dkt. No. 5) at ¶¶ 2, 34. Defendant also seeks attorneys' fees and costs. Id. at ¶ 3.
Presently, Plaintiff moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Notice of Mot. (Dkt. No. 13) at 1.
Defendant opposes and cross motions for summary judgment. Notice of Mot. (Dkt. No. 14) at 1.
A.V. was born on April 24, 1991. Statement of Material Facts Not in Dispute (hereinafter "Material Facts") (Dkt. No. 14, Attach. 9) at ¶ 1. He first attended District schools in September of 2000 as a student in the regular fourth grade classroom. Id. Shortly after beginning the fourth grade, A.V.'s parents referred him to the District's Committee on Special Education ("CSE") because they were concerned that he was experiencing difficulty with basic academics. Id. After evaluating A.V., the CSE determined in February of 2001 that A.V. was a student with a disability. Id. at ¶¶ 2-5.
Since the incipient evaluation in 2000, A.V.'s educational needs have been evaluated at numerous points in his school career by various professionals. As a result, A.V. has received several diagnoses, including Pervasive Developmental Disorder. Pl.'s Mem. of Law (Dkt. No. 13, Attach. 7) at 1. A.V.'s level of functioning was described in August of 2004 as "requiring constant adult support to help him master basic classroom survival skills and support in the areas of organization, work completion, social interactions and maintaining focus in class." Id. at 2.
In the fall of 2003, A.V. began to display escalating inappropriate classroom behaviors in school, several of which were severe enough to warrant out-of-school suspensions. Id. at 1. From the period between November 23, 2003, and August 9, 2004, the CSE met at least five times to try to formulate an effective individual educational plan ("IEP") for A.V. The issue of an out-of-district placement was first raised by A.V.'s parents at the November 23, 2003 meeting. Material Facts (Dkt. No. 14, Attach. 9) at ¶¶ 15-16. At that meeting, the District agreed to research appropriate outside placements for A.V. Id. at ¶ 16.
During the spring of 2004, District representatives and Plaintiff visited a number of out-of-district special education programs. Pl.'s Mem. of Law (Dkt. No. 13, Attach. 7) at 1. Also, A.V. was evaluated by Dr. Sharma, a neuropsychologist, in May 2004. Material Facts (Dkt. No. 14, Attach. 9) at ¶ 28. Dr. Sharma recommended that A.V. not be placed in an environment for "children with primary externalizing behavior problems or emotional disturbance," as such a placement would be inappropriate and contrary to A.V.'s best interest. Pl.'s Mem. of Law (Dkt. No. 21, Attach. 2) at 6. On that basis, A.V's parents decided that the programs they had visited were inappropriate for A.V. Pl.'s Mem. of Law (Dkt. No. 13, Attach. 7) at 1.
As a result, by June 1, 2004, A.V.'s parents became concerned that no program would be in place by the start of the 2004-2005 school year and wrote a letter to the District expressing their concerns. Pl.'s Mem. of Law (Dkt. No. 13, Attach. 7) at 18. During July and August 2004, parents investigated private residential schools for their son without the District's assistance. Id. at 3. Parents, along with A.V., visited Hampshire Country School, located in New Hampshire, on August 25, 2004, and Hampshire Country School notified them of A.V.'s acceptance the following day. Id.
A.V.'s parents unilaterally decided to place him at Hampshire Country School on the day he was accepted. Material Facts (Dkt. No. 14, Attach. 9) at ¶ 49. Parents mailed a letter to the District on the same day, notifying it of their decision to privately place A.V. Pl. Mem. of Law (Dkt. No. 13, Attach. 7) at 3.
Meanwhile, in a letter dated August 20, 2004, District notified A.V.'s parents that an intake interview had been scheduled for August 27, 2004 at one of the District's proposed residential placements in Washington, Connecticut. See Material Facts (Dkt. No. 14, Attach. 9) at ¶¶ 44, 45. The interview was ultimately cancelled because A.V.'s parents did not ...