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Bougades v. Pine Plains Central School Dist.

August 25, 2009

ARTHUR AND MARGARET BOUGADES, PARENTS OF A DISABLED CHILD, M.B., PLAINTIFFS,
v.
PINE PLAINS CENTRAL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

In this action, Plaintiffs seek reimbursement under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., for their son M.B.'s tuition at the Kildonan School for the 2003-2004 school year. Plaintiffs assert that they are entitled to tuition reimbursement because Defendant Pine Plains Central School District (the "District") failed to provide M.B., who has a learning disability, with an appropriate individualized education program ("IEP")*fn1 for the 2003-2004 school year. (Cmplt. ¶¶ 2, 15-18, 57-59) The parties have cross-moved for summary judgment on Plaintiffs' claim. For the reasons stated below, Plaintiffs' motion (Docket No. 15) is GRANTED, and Defendant's motion (Docket No. 19) is DENIED.

DISCUSSION

"Under the IDEA, 'states receiving federal funds are required to provide "all children with disabilities" a "free appropriate public education."'" R.R. ex rel. M.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 287 (S.D.N.Y. 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quoting IDEA)). "A free appropriate public education ('FAPE') must provide 'special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.'" Id. (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)). "These services are administered through a written individualized education program ('IEP'), which must be updated at least annually." Id.

"Parents who believe that the state has failed to provide... [a FAPE] may pay for private services and seek reimbursement from the school district for 'expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.'" T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (internal citation omitted). Tuition reimbursement is warranted where "(i) the services offered by the state were inadequate or inappropriate, (ii) the services selected by the parents were appropriate, and (iii) equitable considerations support the parents' claim." R.R. ex rel. M.R., 615 F. Supp. 2d at 292.

"The responsibility for determining whether a challenged IEP will provide a child with an appropriate public education rests in the first instance with administrative hearing and review officers." Walczak, 142 F.3d at 129. Plaintiffs here brought an administrative claim asserting that M.B.'s proposed IEP for 2003-04 would not provide a FAPE, and seeking tuition reimbursement after unilaterally placing M.B. at the Kildonan School for the 2003-04 school year. Plaintiffs' claim was rejected by an impartial hearing officer ("IHO"), whose decision was sustained on administrative appeal by a New York State Review Officer ("SRO"). (See Pltf. Rule 56.1 Stat. ¶¶ 71-72; Def. Rule 56.1 Stat. ¶¶ 9, 11) Plaintiffs then filed this action seeking reversal of the administrative decisions.

The sole issue before this Court in deciding the parties' summary judgment motions is whether Plaintiffs have established the first element of the test for tuition reimbursement -- i.e., that the services offered by the District in the 2003-04 IEP were inadequate or inappropriate.*fn2 In deciding this issue, the Court must first "examine whether the [District] has complied with the procedures set forth in the IDEA," and second "consider whether the proposed IEP is substantively appropriate in that it is 'reasonably calculated to enable the child to receive educational benefits.'" T.P. ex rel. S.P., 554 F.3d at 252, quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034 (1982). Plaintiffs "bear the burden of persuasion as to the inappropriateness of... [the challenged] IEP...." Id.*fn3

I. FACTS*fn4

M.B. began attending school in the District in 1999. (Def. Rule 56.1 Stat. ¶ 2) During each school year from 1999-2000 through 2002-03, M.B. was classified as learning disabled due to reading and language difficulties stemming from dyslexia, and was provided with an IEP. (Id.; Ex. 17 at 1 (2002-03 IEP (describing disability)); Ex. 16 at 5 (neurological and educational evaluation stating that "test results indicate a clinical diagnosis of Dyslexia"))

A. Services Provided to M.B. in 2002-03

M.B.'s 2002-03 IEP states that he would receive one reading intervention period per week, one writing intervention period per week, and five resource room periods per week for multi-sensory reading.*fn5 (Ex. 17 at 1, 4) It also provides for various program modifications, including a reduction in the length of assignments. (Id. at 1 (listing "reduce length of assignments" under "Program Modifications"))

The services M.B. received in 2002-03, however, varied somewhat from the program described in the 2002-03 IEP. Instead of having one resource room period per day, M.B. received four or five periods per day of "inclusion" programming with direct classroom support.*fn6 (Pltf. Rule 56.1 Stat. ¶¶ 38-39) He also received one hour per week of one-to-one multi-sensory reading tutoring at his home.*fn7 (Id. ¶ 38) And for the first few months of the 2002-03 school year, M.B. attended multi-sensory reading for one period every day, but did not attend a separate writing intervention period.*fn8 (Pltf. Rule 56.1 Stat. ¶ 38; Def. Rule 56.1 Response ¶ 38; Tr. 117:4-120:20 (testimony of District witness that M.B. did not participate in a separate writing intervention period in 2002-03)) After November 1, 2002, M.B. was taken out of his multi-sensory reading class on alternate days and placed in a separate writing intervention class. (See Ex. BB at 5 & Tr. 309:14-15 (multi-sensory reading teacher stating that beginning November 1, M.B. worked with her only every other day); Tr. 787:15-788:15 (Plaintiff Margaret Bougades testifying that M.B. began attending multi-sensory reading every other day and writing intervention every other day)) During the first half of 2002-03, M.B., like other students, was required to attend after-school study hall to receive homework assistance when he had failed to complete earlier homework assignments. (Pltf. Rule 56.1 Stat. ¶¶ 36, 38; Tr. 405-07 (Pine Plains Principal Hess explaining purpose of after-school study hall)) The school stopped requiring M.B. to attend study hall, however, after Plaintiffs requested on various occasions that he be excused. (Tr. 412 (Principal Hess decided that M.B. would not be required to attend after-school study hall after repeated requests by M.B.'s parents that he be excused); see also Ex. BB at 10 (Plaintiff Arthur Bougades stating "I had stopped after school detention for not completing homework because he is too stressed out"))

B. Development of the 2003-04 IEP

On March 18, 2003, the District's Committee on Special Education ("CSE")*fn9 met "to approve a program for [2003-04]... and to determine modifications for [M.B.'s] IEP." (Pltf. Rule 56.1 Stat. ¶ 51; Ex. 44 at 1) The CSE reviewed the results of the Terra Nova standardized test that M.B. had taken on January 27, 2003, which showed "slight regression" in reading. (Pltf. Rule 56.1 Stat. ¶ 53; Ex. 44 at 1) However, "[n]o objective measures of basic reading skills," such as decoding, were "conducted, considered or reviewed." (Pltf. Rule 56.1 Stat. ¶ 53)

At the meeting, several of M.B.'s teachers gave informal assessments of his performance. (See Pltf. Rule 56.1 Stat. ¶¶ 53, 55) Although M.B.'s science teacher stated that he was a "good student" and "does well" (Ex. 44 at 2), M.B.'s other teachers gave uniformly negative appraisals of his educational performance that year. M.B.'s multi-sensory reading teacher stated that "everything was going along fine" until M.B.'s daily multi-sensory reading class was modified to every other day. (Id. at 2-3) She identified M.B.'s "weakest area" as "writing and spelling." (Id. at 2) M.B.'s writing teacher reported that M.B. absorbed concepts quickly, but that his "biggest problems" and "downfall" were in the areas of editing and spelling. (Id. at 4) M.B.'s special education teacher also stated that she was "concerned about his writing abilities." (Id. at 1) M.B.'s reading skills teacher reported that M.B.'s interim grade was 64 and that his "[h]omework is failing at this point" because of incomplete assignments. (Id. at 4; Ex. BB at 1, 9-10) M.B.'s English teacher stated that she saw "a lack of effort in the homework," with numerous incomplete assignments, and that M.B. had recently failed a test and a quiz. (Ex. 44 at 5) M.B.'s social studies teacher similarly reported that M.B. had failed to complete several recent homework assignments and that his grades on others ranged from 50 to 78. (Id. at 5-6 (reporting comments of Mr. Ray); Ex. 23 (identifying Ray as social studies teacher))

After M.B.'s teachers spoke, Assistant Superintendent Steve Throne commented that M.B. "has been passing his courses up through most of the year and now we are currently on a downside." (Ex. 44 at 7) Plaintiffs requested "progress reports for the school year," but were told that these had not yet been completed, and that the review of IEP goals and objectives "ha[d] not been done formally." (Pltf. Rule 56.1 Stat. ¶ 55; Ex. 44 at 8) Plaintiffs also requested approval for an independent educational evaluation, which was denied. (Pltf. Rule 56.1 Stat. ¶ 54; Ex. 44 at 3)

The CSE agreed to recommend -- for the 2003-04 school year -- that M.B. receive both remedial writing and multi-sensory reading instruction five times per week. (Ex. 44 at 1-2, 8) Although the CSE discussed testing modifications and agreed to recommend that M.B. be given additional time to complete tests, the CSE did not make any suggestions for program modifications relating to homework completion or after-school study hall attendance. (Id. at 7-8) At the conclusion of the meeting, Assistant Superintendent Throne stated that M.B.'s recommended program would consist of four "inclusion" periods with classroom support per day, one period of multi-sensory reading per day, and one period of writing intervention per day. (Id. at 8)

C. June 2003 Assessments of M.B.'s Performance

In June 2003, Plaintiffs received fourth quarter notes from M.B.'s Remedial Reading teacher, who reported that M.B.'s "reading fluency has improved." (Pltf. Rule 56.1 Stat. ¶ 56 & Ex. 9) Plaintiffs also received a progress report concerning 29 "short-term" goals set forth in M.B.'s 2002-03 IEP. (Ex. 50) M.B. had mastered or made satisfactory progress with respect to only two goals -- one relating to transitioning from room to room within the school building and one relating to transitioning between classroom tasks. (Pltf. Rule 56.1 Stat. ¶ 57 & Ex. 50) Finally, Plaintiffs received ...


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