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E.H. v. Board of Education of the Shenendehowa Central School Dist.

August 20, 2008

E.H. AND K.H. ON THEIR OWN BEHALF, AND AS PARENTS AND NEXT FRIENDS OF C.H., A MINOR, PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE SHENENDEHOWA CENTRAL SCHOOL DISTRICT; SHENENDEHOWA CENTRAL SCHOOL DISTRICT; KAREN BOIKO; WILLIAM CASEY; CHARLES HUFF; ERIKA RIEBEL; DR. ROBERT MCCLURE, AND MICHAEL SMITH, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

DECISION AND ORDER

I. Introduction

Plaintiffs EH and KH commenced these consolidated actions pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. § 1983 for violations of § 504 and the ADA, claiming that defendants failed to provide their son CH with an appropriate public education and discriminated against him based on his disability. The plaintiffs move for summary judgment on the IDEA claim, and the defendants move for summary judgment on all claims. For the reasons that follow defendants' motion is granted.

II. FACTS

A. 05-CV-972

1. Summer 2001

CH is a child with a disability under the IDEA. (Pl. SMF ¶ 2, Dkt. No. 65:6.) EH and KH are his adoptive parents. Id. at ¶ 1. In April of 2001, when CH was five, he was diagnosed with Pervasive Developmental Disorder ("PDD") which is on the autistic spectrum. Id. at ¶ 12. He exhibited symptoms including hand flapping, difficulty expressing his needs, echolalia,*fn1 a dislike of loud noises and being touched, and impaired social skills. Id. at ¶¶ 13, 14.

KH referred CH to the Shenendehowa Committee on Special Education ("CSE") in April 2001. Id. at ¶¶ 16, 17. Throughout May and June, various evaluations of CH confirmed his PDD diagnosis and noted that he was still wearing diapers, exhibited self stimulatory behaviors, and had delays in fine motor skills and sensory integration difficulties. Id. at ¶¶ 18, 22, 23, 24. Summer services were recommended, including coping skills, speech and language services, occupational therapy ("OT"), cooperative social interactions, and an assessment prior to confirming a 2001-02 placement. Id.

Subsequently, the CSE met on July 18th to develop an Individualized Education Program ("IEP") for the Summer. Id. at ¶¶ 25-27. The CSE identified CH as other health impaired based on his PDD diagnosis. Id. An IEP was developed that provided for academic instruction, speech and language therapy, OT, and recommended a placement at Arongen Elementary School. Id. at ¶¶ 25-28. KH gave her consent to the placement recommended by the CSE. Id. at ¶ 28. The parents contend that the School District (the "District" or "Shen") subsequently refused to provide summer services due to a staff shortage, which the District denies. Id. at ¶¶ 28-31.

2. 2001-02 School Year

A CSE meeting was held on August 30, 2001 to develop CH's IEP for the 2001-02 school year. Id. At ¶ 32. KH alleges that she was not allowed to discuss documents regarding proposed goals and parental concerns she had brought to the meeting, which is again contested. Id. at ¶¶ 32, 33. The 2001-02 IEP placed CH in an out of district 12:1:4*fn2 BOCES placement known as BOCES BEARS. Among the services provided for were a one on one teaching aide, individual speech language therapy, individual and group OT and physical therapy and speech evaluations in the Fall of 2001. Id. at ¶¶ 34, 35. CH attended this placement for only five days before it became clear that he functioned at a higher level than the other children and he was removed.

(Def. SMF ¶ 3, Dkt. No. 58:14.)

Accordingly, the CSE reconvened on October 1st and developed an IEP which placed CH in a mainstream Kindergarten classroom for the morning and a 12:1:1 self contained language concepts classroom for the afternoon. Id. at ¶ 3. The parents again claim they were denied participation in this process. (Pl. SMF ¶ 39, Dkt. No. 65:6.) The IEP noted that CH's primary areas of concern were in social interactions and social language skills. Id. It provided for a shared aide, slightly reduced individual and group OT and speech language therapy services, and an OT sensory diet consult.*fn3 Id. at ¶¶ 40-45. The physical therapy and speech evaluation provided for in the August IEP were also removed. Id. At ¶¶ 41-42. On October 18, 2001, the District referred CH to Karner Intensive Development Services ("KIDS") because of difficulties transitioning CH to school, but no functional behavioral assessment ("FBA"), behavioral intervention plan ("BIP"), or transition plan was recommended by the CSE.*fn4 Id. at ¶ 48. KH undertook the responsibility of transporting CH to school, as she was dissatisfied with the special transportation provided by the District. Id. At ¶ 52.

While teacher notes indicate CH made progress and mastered some OT objectives under the October IEP, he apparently had problems transitioning to school due to anxiety and he allegedly began exhibiting behavioral problems. Id. At ¶ 49. By the end of the 2001-02 school year, CH was not attending his morning placement and was, on average, attending his afternoon 12:1:1 placement 3 days a week. Id. At ¶ 56.

3. Summer 2002

Throughout May and June of 2002, the District and CH's parents had a number of evaluations completed for CH. Id. at ¶ 63. A school psychologist and KIDS indicated that generally CH had successfully transitioned to school. Id. At ¶¶ 63-64. A private psychiatrist, Dr. Atkin, recommended, inter alia, a smaller placement for CH for the summer and 2002-03 school year, a non-punitive teacher knowledgeable in PDD and a social skills class. Id. at ¶ 68. KIDS recommended, inter alia, a very structured classroom for 2002-03, a behavioral specialist, a behavioral plan for toilet training and transitioning to school, a plan to deal with sensory issues and anxiety and visual schedules. Id. At ¶ 69.

For the summer, Shen offered CH a 10:1:2 placement with OT services twice a week. CH's parents rejected this as inappropriate and he received no services from Shen during the summer. Id. at ¶¶ 59, 61. Instead, his parents paid for him to have OT services three times a week from an independent provider during the summer. Id. At ¶ 67. CH would not attend school again.

4. 2002-03 School Year

On August 16, 2002, the CSE met to develop CH's IEP for the 2002-03 school year and changed his classification to autism. Id. at ¶ 70. The August IEP placed CH in a regular education first grade classroom, with an hour a day in a 12:1:2 classroom. Id. at ¶ 70. It provided for either a shared or oneon-one aide,*fn5 30 minutes of individual OT services twice a week, a 30 minute OT consult once a week and 30 minutes of group counseling once a week. The areas of counseling included behavior therapy, social skills, FBA and BIP. Id. at ¶ 71. Some of the previously mentioned recommendations of KIDS and Dr. Atkin were not included in the IEP. Id. at ¶ 76, 77.

The parents did not agree to this IEP and indicated to the CSE that they felt they had been denied participation in its formulation. Id. at ¶¶ 79, 80. As such, another CSE meeting was scheduled for September 5th. (Def. SMF ¶ 10, Dkt. No. 58:14.) The parents subsequently cancelled this meeting, indicated to the District that they had decided to home school CH and requested that his IEP services be pushed into the home. Id. Despite multiple requests, they failed to submit an Individualized Home Instruction Plan, necessary for the District to approve home schooling. Id. at ¶ 83.

In September, CH was evaluated at public expense by neuropsychologist, Dr. Zuffante. Id. at ¶ 86. Testing revealed generally average academic abilities with weakness in nonverbal and executive functioning and anxiety in unpredictable social settings. (Def. SMF ¶¶ 11, 12, Dkt. No. 58:14.) A small placement was recommended with fewer transitions and specific behavioral and sensory therapies. Id. An independent speech language pathologist recommended speech therapy in a small group and a one-on-one aide, among other services. (Pl. SMF ¶ 87, Dkt. No. 65:6.) In a brief letter, CH's pediatrician, Dr. Buckley, recommended that the District should provide a special education teacher trained in the area of autism, OT, speech and language therapy and physical therapy in the home. Id. at ¶ 84.

Upon request for such services in the home, the District indicated it would provide a weekly sensory diet consult and OT twice a week for 30 minutes, as stated in the August 16, 2002 IEP, until they were provided the relevant evaluations. Id. at ¶ 90. CH received such OT services for a short time at the beginning of the 2002-2003 school year. Id. at ¶ 92. However, CH's parents postponed the services due to a dispute about the lack of OT goals in his IEP. Id. at ¶ 92. These services were not renewed as no agreement was reached. Id. at ¶ 94.

5. 2003-04 School Year

On June 18, 2003, Dr. Atkin wrote to the CSE informing it that CH had asperger's syndrome, ADHD and anxiety disorder. Id. at ¶ 102. She recommended a 6:1:2 class for high functioning PDD students and various services. Id. On June 24th a CSE meeting was held to discuss CH's IEP for 2003-004, which ended without consensus. Id. at ¶ 97. On July 14th, Dr. Buckley recommended that CH be placed in a six child classroom with 45 minutes of OT three times a week and 30 minutes of speech and language therapy three times a week. Id. at ¶ 101. On August 4th, the parents wrote to the District indicating interest in a 6:1:2 placement, and requesting specific home services. Id. at ¶¶ 103, 104. In response, the CSE wrote to the parents indicating that they had rejected numerous in and out of district placements discussed at the June 24th meeting, some of which were 6:1:2 classrooms. Id.

A CSE meeting was held on August 13th to again attempt development of CH's IEP for the 2003-04 school year. Id. at ¶ 105. It was recommended that home instruction continue until September 30th, while the parents observed four classrooms with the school psychologist in the interim. (Def. SMF ¶ 17, Dkt. No. 58:14.) An interim home placement IEP was developed which provided for the following home services: three one hour OT sessions every two weeks, three one hour speech language therapy sessions every two weeks, and three behavioral intervention consultations a month. (Pl. SMF ¶ 105, Dkt. No. 65:6.) A CSE meeting was scheduled for October 2nd. (D1 Ex. 90.)*fn6 On August 15th, the District approved the services of Dr. Cosgrove, a behavioral psychologist, for the behavioral intervention consult. (D1 Ex. 91.)

On August 20th, the parents objected to the CSE's proposed placements and indicated their belief that the CSE had already rejected some of the placements as inappropriate. (Pl. SMF ¶ 108, Dkt. No. 65:6.) On August 22nd, the parents discontinued the behavioral intervention consult because they felt the school had misled Dr. Cosgrove about CH's needs. (Def. SMF ¶ 18, Dkt. No. 58:14.) On August 28th, the parents indicated they would not attend the October 2nd CSE meeting. (D1 Ex. 98.) They also informed the CSE that they were denying the occupational therapist and speech and language therapist access to CH due to inappropriate and missing goals and objectives in the August IEP. (Def. SMF ¶ 19, Dkt. No. 58:14.) In September, the parents filed a complaint with the NY Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") alleging violations of the IDEA during the 2001-02 and 2002-03 school years. Id.

A CSE meeting was rescheduled for October 22nd, when a 2003-04 IEP was developed which provided for a 12:1:3 classroom. Id. at ¶ 21. Services included five 30 minute OT sessions every two weeks, five 30 minute speech/language therapy sessions every two weeks, and three behavioral intervention consultations a month to help CH transition to school. Id. The IEP also provided program modifications including preferential seating, a sensory diet, extended time to complete tasks and simplified directions, transitions, activities, and assignments. Id. The parents rejected this IEP. On October 24th, CH was evaluated using WIAT-II testing, which revealed average reading skills and low average spelling and math skills. Id. at ¶ 22.

On December 1, 2003, VESID found that CH's IEP lacked specific measurable annual goals, but rejected or declined to address the remainder of the parents' objections. Id. At ¶ 23. The CSE was required to reconvene and submit measurable annual goals to VESID for the 2003-04 school year by January 10, 2004, which it did. Id. At ¶ 24. On January 19th, the parents terminated the home speech/language therapist provided by the school because they found her behavior towards CH "inappropriate." Id. The District was unable to find another therapist due to staff shortages at various independent providers. Id. at ¶ 26. On February 6th, the CSE met again ...


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