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Antignano v. Wantagh Union Free School Dist.

January 4, 2010

IN THE MATTER OF VINCENT ANTIGNANO AND DOMENICA ANTIGNANO, PARENTS ON BEHALF OF THE INFANT DISABLED CHILD R.A. PLAINTIFFS,
v.
WANTAGH UNION FREE SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

Plaintiffs Vincent and Domenica Antignano (the "parents"), parents of behalf of their minor child R.A. ("R.A.") (collectively "Plaintiffs") commenced this action against the Wantagh Union Free School District (the "District") pursuant to the Individuals with Disabilities Act ("IDEA") seeking reversal of the decision of a State Review Office ("SRO") denying Plaintiffs' request for tuition reimbursement for educational services provided to R.A. during the 2005-2006 school year. Presently before the Court are Plaintiffs' motion for summary judgment and the District's cross-motion for summary judgment. For the reasons set forth below, Plaintiffs' motion is denied and the District's cross-motion is granted.

Statutory Background

The IDEA represents Congress's effort "to promote the education of handicapped children." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (internal quotations omitted). "The goals of IDEA include "ensur[ing] that all children with disabilities have available to them a free appropriate public education" and "ensur[ing] that the rights of children with disabilities and parents of such children are protected." Winkelman v. Parma City School Dist., 550 U.S. 516, 523 (2007)(quoting 20 U.S.C. §§ 1400(d)(1)(A)-(B) (2000 ed., Supp. IV)); accord Forest Grove Sch. Dist v. T.A., --U.S. --, 129 S.Ct. 2484, 2491 (2009). The statute requires that all states receiving federal funds must provide "all children with disabilities" a "free appropriate public education." 20 U.S.C. § 1412(a)(1)(A). "To meet these requirements, a school district's program 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." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (internal quotations omitted). "Such services must be administered according to an [Individualized Educational Plan ("] IEP[")], which school districts must implement annually." Id. (citing 20 U.S.C. 1414(d).

Among other things, the IDEA contains provisions governing the development of "a child's IEP; criteria governing the sufficiency of an education provided to a child; mechanisms for review that must be made available when there are objections to the IEP or to other aspects of IDEA proceedings; and the requirement in certain circumstances that States reimburse parents for various expenses." Winkelman, 550 U.S. at 523(citing 20 U.S.C. §§ 1412(a)(10), 1414, 1415).

"To meet [its] obligations [under the IDEA] and to implement its own policies regarding the education of disabled children, New York has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ('CSE'), the members of which are appointed by school boards or the trustees of school districts. In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Gagliardo, 489 F.3d at 107-08 (internal citations omitted). "New York parents who disagree with their child's IEP may challenge it in an 'impartial due process hearing,' 20 U.S.C. § 1415(f), before an [Impartial Hearing Officer ("] IHO[")] appointed by the local board of education, see N.Y. Educ. Law § 4404(1). The resulting decision may be appealed to a [State Review Officer ("] SRO [)"], see N.Y. Educ. Law § 4404(2); see also 20 U.S.C. 1415(g), and the SRO's decision in turn may be challenged in either state or federal court, see 20 U.S.C. § 1415(i)(2)(A)." Id. at 108.

Factual and Procedural Background

The following facts, taken from the administrative record and the parties' 56.1 statements, are undisputed unless otherwise noted.*fn1

R.A. was born on May 30, 1992. She was classified and received special education services in preschool. She was declassified for kindergarten and began attending District schools. R.A. was diagnosed with attention deficit hyperactivity disorder (ADHD), Pervasive Developmental Disorder (PDD) - not otherwise specified (NOS), Developmental Reading Disorder and Developmental Arithmetic Disorder by Dr. Kent, her treating psychiatrist. She suffered from frequent ear infections from infancy to age 8 and from benign neutropenia*fn2 between 9 months and 3 years of age. Her family history is significant for ADHD and learning problems; she was late in speaking and walking.

R.A.'s CSE History Prior to the Year at Issue

In first grade R.A. was classified as speech and language impaired. An IEP was developed and she was placed in an inclusion program with half the day spend in a mainstream class and the other half in a self-contained class. R.A. remained in this program from first through fifth grade. During each of these years, R.A.'s goals were repeated and instructional objectives added; however, no progress reports on the IEP goals were reported to her parents. In fifth grade (2002-03), her parents noticed a significant decline in R.A.'s abilities; her teachers reported that R.A. was not making progress but rather was increasingly falling behind. For the 2003-04 school year (sixth grade) R.A. was in a self contained classroom 15:1:1*fn3. She had ten goals and one hundred-thirty instructional objectives to meet those goals. She met only three of her objectives.

For seventh grade (2004-05), the CSE recommended R.A. be placed in a 15:1:1 self contained special education class and receive counseling services and speech services. The CSE also recommended that R.A. receive extended school year services and attend Wantagh's summer PARISS program. The PARISS program is a summer program that provides instruction in reading, math, and writing, and is designed to prevent regression. In the IEP prepared for her for 2004-05, the CSE wrote:

The student had multi sensory learning style and demonstrates a severe disability in academic concepts.... the student does not demonstrate conceptual knowledge in content areas appropriate to grade level. The student performs assignments with 1:1 assistance.

There are many days when she shuts down, works at a very slow pace and becomes lethargic with little verbal exchange. It can be extremely difficult to motivate her on those days and 1:1 assistance is then needed for completion of tasks.

The student needs 1:1 assistance many times throughout the day. Concepts present difficulty and re-direction and re-teaching is often necessary. Student needs additional time to complete tasks as well as repeated direction. The student needs to develop age appropriate social and emotional skills with peers. The student needs to develop independent problem solving skills.

The student requires intensive supervision to function in the educational setting... with minimal distractions.

Subsequent to the CSE meeting, the parents sent a letter to the CSE, dated May 24, 2004, stating in pertinent part as follows:

According to [R.A.'s] test scores from 1998 to the present, she has had inconsistent progress and from last year to this year has significantly regresses in some areas.... As we discussed with the IEP team... we are concerned about [R.A.]'s lack of progress, especially in the area of reading, and how this in turn inhibits her successful involvement and progression in the general curriculum. In January 2003 we raised similar concerns, and as a result, we jointly explored providing [R.A.] a tutor using the Wilson Reading program as a way to help remediate [R.A.]'s reading deficits, and we were advised that this was not possible through the school's auspices, but that [R.A.] would receive supportive reading in 6th grade to help address her deficits. Seeing no significant improvements in [R.A.]'s reading, on May 14, 2004, we has R.A. independently evaluated with specific focus on her reading skills.

Her recent test scores continue to indicate a lack of progress in closing the gap between her reading level and the reading level of average children her age.... Clearly, as [R.A.] is on the cusp of entering 7th grade time is of the essence if she is to be afforded the opportunity to 'catch up.' Toward that end we have done some extensive research into these types of programs and have identified the Lindamood-Bell [LmB] Learning Processes. This research-based program has been in existence since 1975, and is on the New York State Education Department list of approved providers....

We would therefore like to explore with you how to incorporate such a program (as previously described) into [R.A.]'s IEP at our [upcoming] meeting.

Thereafter, the parents rejected the CSE's summer recommendation and enrolled R.A. in the LmB summer program.

LmB is an integrated global approach to development of literacy and language that works to develop phonological processing skills in students who exhibit deficits in sensory cognitive functions. Each student enrolled at LmB goes through an initial evaluation to determine strengths and weaknesses in areas of sensory cognitive processing. LmB is a scientifically based program that provides focused intensive instruction in the five components required for effective reading instruction. The key to LmB is to provide continuous instruction in all different components so ultimately there is an integrated model where the student can perform independently.

In September 2004, the parents wrote to the District and advised it that they were enrolling R.A. in LmB for 2004-05 school year and that she would be attending there from 8:30 am to 10:30 am Monday through Friday after which she would be attending Wantagh Middle School. The 2004-2005 school year was settled by the parties.

The CSE Review for the 2005-06 School Year

The CSE held a review to develop R.A.'s IEP for the 2005-06 school year on June 7, 2005 and July 12, 2005. The parents provided the CSE with a recent independent neuropsychological evaluation of R.A. by Dr. Davidovicz, as well as evaluations and other materials from LmB.

According to Dr. Davidovicz, R.A. had great difficulty formulating and understanding complex language and difficulty with auditory processing, visual spatial skills, fine motor skills, speech articulation, phonetic awareness and attention, and math. Specifically, as to math, he noted that with the exception of multiplication, her basic computational skills across operations were "markedly problematic." He opined that the most appropriate classification for R.A. would be learning disabled. R.A. required intensive, individualized multi-sensory instruction in order to make her " as functional as possible in the time remaining in her educational career. According to the doctor:

Academically, she is starting to make some progress with basic reading skills but also demonstrates significant difficulty with reading comprehension secondary to her language comprehension difficulty. There are also significant problems with basic spelling and writing as well as math.... Given the current findings, it is felt that [R.A.] needs to continue the intensive individual, multisensory reading instruction that she is receiving, since it is clearly having a positive impact on her acquisition of skills. She, however, would need a similar approach to her acquisition of other basic skills, including math and writing. She also should have intensive speech/language remediation for the maximum amount of time allowable to address her difficulties with regard to lexical and structural aspects of language, as well as to teach her strategies to compensate for her language processing difficulty. It is also felt that intensive, multisensory program should continue during the summer, as should speech/language services. It is recognized that [R.A.] is in a self-contained class, however, even within such a setting, there need to be major modifications made for her. The special education staff and/or the speech/language pathologist need to spend time with her to prepare her for lessons in helping her deal with the vocabulary concepts, as well as the language she will encounter. They also need to reinforce and simplify such materials after lessons are completed. Clearly, there also needs to be major modifications in the classroom and during testing due to the fact that she cannot functionally read, write or do math. Assistive technology can be utilized in the future, but not as a substitute for teaching her these basic skills on an intensive basis at this point. Should it be too difficult to adapt R.A.'s program in school and through Lindamood-Bell, then an alternative placement in the private sector will need to be sought. (Ex. F.)

At the June 7, 2005 annual review, a draft IEP was reviewed. R.A.'s independent reading level was identified as grade two, instructional reading level as grade three and frustration level as grade four. The proposed program, which included special class counseling one time per six day cycle, and daily speech-language therapy, was reviewed. The chairperson indicated that the IEP would reflect a recommendation for daily reading instruction. The parents expressed concern regarding R.A.'s math abilities and requested an individualized math program to address her needs. The CSE chairperson agreed to investigate whether or not supportive math, in addition to a special education math class would be available to the student. The parents also expressed concern regarding the proposed goals and the chairperson recommended they meet with R.A.'s service providers to edit the goals, a recommendation the parents later declined. The CSE recommended that the student attend the District's PARISS summer program, where in addition to the regular program, R.A. would receive daily 1:1 reading instruction for 40 minutes and speech-language therapy three times per week. ...


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