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Tarlowe v. New York City Board of Education

July 3, 2008

ROCHELLE TARLOWE, AND SETH JONAS, COLLECTIVELY AND INDIVIDUALLY, AND ON BEHALF OF ZACHARY JONAS, A MINOR, PLAINTIFFS,
v.
NEW YORK CITY BOARD OF EDUCATION, D.B.A NEW YORK CITY DEPARTMENT OF EDUCATION, AND JOEL KLEIN, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE NEW YORK CITY SCHOOL DISTRICTS, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

The Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq., requires states to provide a "free appropriate public education . . . to all children with disabilities." Where a public school system fails to do so, parents may place their child in a private school and seek reimbursement. Plaintiffs Rochelle Tarlowe and Seth Jonas, parents of Zachary Jonas, did exactly that, but an Impartial Hearing Officer of the defendant New York City Department of Education, found that a free appropriate public education had been available and denied reimbursement. After the State Education Department's State Review Officer affirmed the decision of the Impartial Hearing Officer, plaintiffs brought this action to seek reimbursement. Both parties have moved for summary judgment. For the reasons set forth below, plaintiffs' motion is denied and defendants' motion is granted.

BACKGROUND

I. Statutory Framework

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., requires states to provide a "free appropriate public education . . . to all children with disabilities," id. § 1412(a)(1)(A). The term "free appropriate public education" encompasses both "special education and related services." 20 U.S.C. § 1401(9). A "special education" is an education "specially designed . . . to meet the unique needs of a handicapped child." Id. § 1401(9). "Related services" include "such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education." Id. § 1401(26).

Although the IDEA "leaves to the States the primary responsibility for developing and executing educational programs for handicapped children," it "imposes significant requirements to be followed in the discharge of that responsibility." Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 183 (1982). To determine what services are appropriate, states must develop an "individualized education program" ("IEP") for each child. 20 U.S.C. § 1412(a)(4). In New York, a Committee on Special Education ("CSE") in each school district is responsible for the development of an IEP. N.Y. Educ. L. § 4402(1)(b)(1). Under both federal and state law, this CSE must include the child's parents, a special education teacher, a representative from the local educational agency, and, "if the child is, or may be, participating in the regular education environment," a general education teacher. 20 U.S.C. § 1414(d)(1)(B); N.Y. Comp. Codes R. & Regs. tit. 8, § 200.3(a).

The IDEA establishes three levels of review for challenging the adequacy of an IEP. Parents' first step is to request an "impartial due process hearing" from the local educational agency. 20 U.S.C. § 1415(f). If parents are not satisfied with the outcome of the hearing, they may appeal to the state educational agency. Id. § 1415(g). If parents are dissatisfied with the state decision, they may bring an action in either state or federal court. Id. § 1415(i)(2); see also Schaffer v. Weast, 546 U.S. 49, 54 (2005). Parents may bring such an action only after they have exhausted the state review process. Polera v. Bd. of Educ. of Newburgh Enlarged City School Dist., 288 F. 3d 478, 481 (2d Cir. 2002). During the pendency of these proceedings, parents have three options as to their child's educational placement. They can allow the child to remain in his or her current placement, 20 U.S.C. § 1415(j); they can enroll their child in the newly recommended placement, id; or they can place their child in a private school and seek reimbursement, 20 U.S.C. § 1412(a)(10)(C).

The right to reimbursement is not automatic, and "parents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk." School Comm. of the Town of Burlington v. Dept. of Educ. of Mass., 471 U.S. 359, 373-74 (1985). To succeed on a claim for reimbursement, parents must show: (1) that the services offered by the board of education were "inadequate or inappropriate"; (2) that the services selected by the parents were "appropriate"; and (3) that "equitable considerations" support the parents' claim for reimbursement. Bettinger v. New York City Dept. of Educ., No. 06 CV 6889, 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007), citing Burlington, 471 U.S. at 367-70. Parents bear the burden of proof as to each of these elements. Schaffer, 546 U.S. at 62.

II. Factual and Procedural Background

Although "[t]he record is sparse regarding the child's early educational history" (SRO Decision 2), the following facts are not in dispute. Zachary Jonas was born on May 7, 2001. (IHO Ex. D at D1.*fn1 ) When he was one year and nine months old, he began to receive early intervention services to address what a pediatric neurologist found to be a range of developmental delays in his language and play skills. (IHO Hr'g Tr. 142.) At age two and a half, a second pediatric neurologist diagnosed Zachary with pervasive developmental disorder -- not otherwise specified ("PDD-NOS"). (SRO Decision 2.) When Zachary was three and a half, he received a diagnosis of developmental dyspraxia, which is a speech disorder that "made it difficult for him to control the oral motor movements necessary for speech production." (Id.)

In 2004, the Committee on Preschool Special Education ("CPSE")*fn2 placed Zachary in a mainstream preschool program (that is, one not designed for students with special needs), although he continued to receive supplementary services, including speech, language, and occupational therapies. (SRO Decision 2; IHO Hr'g Tr. 145-47.) In 2005, the CPSE changed his placement to the Center for Child Development ("CDC"), a special needs preschool. (SRO Decision 2.)

In December 2005, Zachary underwent a private evaluation by Dr. Cecilia McCarton, who administered a series of intelligence, behavior, and developmental tests. (Id. at 4.) One test was the complete Stanford-Binet Intelligence Scale - Fifth Edition ("SB5"), on which Zachary received "very low range" verbal, nonverbal, and overall IQ scores. (Id.) The evaluation categorized Zachary as having an autism spectrum disorder, as well as speech and language deficits. (Id. at 5.) The evaluation also indicated that Zachary had difficulty focusing, and that he had been "very easily distracted and frustrated" during the evaluation. (Id. at 4.) The evaluation cautioned that Zachary's speech and language problems had made it difficult for him to understand and comply with instructions given during the evaluation, and together with his distractibility, this had negatively affected his performance on the standardized tests. (Id. at 5.) Thus, he was likely "capable of more than he was able/willing to display" during the evaluation session. (Id.)

To help get a more accurate picture of Zachary's "potential," plaintiffs sought a second evaluation. (IHO Hr'g Tr. 159-60.) In April and May 2006, Zachary underwent an evaluation by Dr. David Salsberg. (SRO Decision 5.) The Salsberg evaluation administered just two subtests of the SB5, plus some other tests not administered by Dr. McCarton. (Id.) The Salsberg evaluation sought to "control for some of the more significant language issues" identified in the McCarton evaluation (IHO Hr'g Tr. 355), for example, through "repetition, and at times rephrasing of oral instructions" (IHO Ex. D at D2). On one of the SB5 subtests -- one that tested verbal knowledge -- Zachary scored approximately the same as he had on the McCarton evaluation, in the "very low range." (IHO Hr'g Tr. 357.) However, on the other SB5 test -- one that tested nonverbal reasoning -- Zachary scored substantially higher, in the "average" range for a child his age. (Id. 357-59.) Overall, Zachary had an "Abbreviated IQ" score in the "low average" range. (IHO Ex. D at D3.) Like the McCarton evaluation, the Salsberg evaluation concluded that Zachary's test scores did not accurately reflect his "abilities and potential" because of "his significant language disabilities." (Id. at D2.)

As Zachary would be entering the public school system for the first time, the CSE convened a meeting on May 24, 2006, to develop an IEP for Zachary's 2006-07 kindergarten year. (Def.'s R. 56.1 Statement ¶ 2.) Present for the meeting were Zachary's parents, his CDC special education teacher, his CDC social worker, a Department of Education ("DOE") school psychologist, a parent advocate, and a special education teacher designated by the DOE. (IHO Ex. B at B2.) The CSE considered "education reports and teacher input." (SRO Decision 6.) The IEP developed by the CSE classified Zachary as autistic (IHO Ex. B at B1), with delayed speech and language skills that impeded his ability to fully participate in classroom activities and interact with his peers (SRO Decision 6). It found that Zachary's reading, writing, and math skills were at a pre-kindergarten level, though he had made progress in all areas and demonstrated an understanding of several concepts from preschool. (Id.) The IEP found Zachary to be "sweet and friendly," though also "highly distractible" and "easily over-stimulated," requiring "intense adult support to maintain focus on tasks" and a "small class-size in a calm environment." (IHO Ex. B at B5, B6.) The CSE recommended a twelve-month school year program consisting of a 6:1*fn3 special class in a specialized school, as well as speech- language therapy, occupational therapy, and counseling. (SRO Decision 6.) The IEP did not identify the specific school where Zachary would be placed. (Id.)

On June 16, 2006, after the CSE meeting, but before learning of Zachary's specific placement, plaintiffs placed a non-refundable ten percent deposit with the Forum School ("Forum"), a special needs private school located in New Jersey. (Def.'s R. 56.1 Statement ΒΆ 7.) Due to miscommunication by the DOE, plaintiffs did not learn of Zachary's placement until August 2006, when they received an invitation from the DOE to attend a parent orientation. (SRO Decision 6.) The DOE explained that the orientation ...


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