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A.D. v. Board of Education of the City School District of the City of New York

February 9, 2010

A.D. AND M.D., INDIVIDUALLY AND ON BEHALF OF E.D., PLAINTIFFS,
v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, A/K/A AND D/B/A, THE NEW YORK CITY DEPARTMENT OF EDUCATION AND JOEL KLEIN, IN HIS OFFICIAL CAPACITY AS THE CHANCELLOR OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Plaintiffs A.D. and M.D., on behalf of their minor child E.D., bring this action pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "IDEA"). Plaintiffs seek review of the August 13, 2008 administrative decision of State Review Officer Paul F. Kelly (the "SRO") annulling the May 19, 2008 decision of Impartial Hearing Officer Barbara J. Ebenstein (the "IHO") and vacating the IHO's award of tuition payment and reimbursement for E.D.'s attendance at the Rebecca School between July 2007 and August 2008. Plaintiffs move for summary judgment, seeking an order reversing the SRO's decision in part and reinstating the IHO's award of tuition payment and reimbursement. Defendants cross-move for summary judgment, seeking an order upholding the SRO's decision and dismissing plaintiffs' complaint. Defendants also move to strike certain additional materials submitted by plaintiffs pursuant to Rule 56(e)(1).

Because the defendants do not contest the SRO's finding that they failed to offer E.D. an appropriate education as required by the IDEA, the principal issue in dispute is whether the SRO erred in concluding that Rebecca was not an appropriate unilateral placement for E.D. For the reasons set forth below, plaintiffs' and defendants' motions for summary judgment are each granted in part; defendants' motion to strike is granted; and defendants are ordered to provide tuition payment and reimbursement for E.D.'s attendance at the Rebecca School during the 2007-08 statutory school year.

STATUTORY BACKGROUND

Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A) & (B); see also Forest Grove Sch. Dist. v. T.A., __ U.S. __, 129 S.Ct. 2484, 2491-92 (2009) ("Forest Grove") (discussing the purposes of the IDEA); Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523 (2007) (same). States receiving federal funding under the IDEA are required to make a free appropriate public education ("FAPE") available to all children with disabilities residing in the state. 20 U.S.C. § 1412(a)(1)(A). To this end, IDEA requires that public schools create for each student covered by the Act an individualized education program ("IEP") for the student's education at least annually. 20 U.S.C. § 1414(d)(2)(A); see also Honig v. Doe, 484 U.S. 305, 311 (1988) ("[T]he IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives."); D.D. ex rel. V.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 507 (2d Cir. 2006) (describing the IEP as "[t]he centerpiece of the IDEA's educational delivery system" (citation omitted)).

In New York City, the City Department of Education ("DOE") is charged with providing a FAPE to all students with disabilities between the ages of 3 and 21 who reside in the City, and to develop the IEP for these students by convening local Committees on Special Education ("CSEs"). N.Y. Educ. L. § 4402. "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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007). The IEP 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. at 107 (citation omitted). "A school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement."

T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (citation omitted).

The IDEA requires that parents be provided an opportunity to present a complaint with respect to the identification, evaluation, or placement of their child through the IEP process.

20 U.S.C. § 1415(b)(6)(A). Where the parents believe that the school district has not adequately responded to their complaints, the IDEA requires that they be given an opportunity to pursue their grievances through an "impartial due process hearing." Id. § 1415(f)(1)(A). In New York, these hearings are conducted by an Impartial Hearing Officer (the "IHO"), and parties aggrieved by the IHO's decision may appeal to the State Review Officer (the "SRO"). See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1) (permitting "any party aggrieved by the findings and decision rendered [by the hearing officer] [to] appeal such findings and decision to the State educational agency"). The IDEA further provides that the final administrative decision may be reviewed "in a district court of the United States" by "bring[ing] a civil action with respect to the complaint." 20 U.S.C. § 1415(i)(2)(A). The district court is empowered to "receive the records of the administrative proceedings," to "hear additional evidence," and to "grant such relief as the court determines is appropriate" based on "the preponderance of the evidence" before it. Id. § 1415(i)(2)(C); see also Forest Grove, 129 S.Ct. at 2492 (noting that the IDEA "gives courts broad authority to grant 'appropriate' relief"). The IDEA specifically contemplates that "when a public school fails to provide a FAPE and a child's parents place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the parents for the cost of the private education." Forest Grove, 129 S.Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).

FACTUAL BACKGROUND

The following facts are taken from the parties' Local Rule 56.1 statements, as supported by the administrative record, and are undisputed unless otherwise indicated.*fn1

I. The Plaintiffs

Plaintiffs A.D. and M.D. are the father and mother of E.D. A.D. and M.D. are originally from the Dominican Republic and moved to New York in 1988. M.D. speaks only Spanish.

E.D. was born on October 27, 1995, and has resided in New York since birth. E.D. is classified as a student with autism and is thus a "child with a disability" under the IDEA. See 20 U.S.C. § 1401(3)(A)(i). Until 2006, E.D. attended first through fifth grades at Public School 48 ("P.S. 48"). During her time at P.S. 48, E.D. had tantrums and engaged in self-injurious behaviors. E.D. shows "significant deficits" with respect to "expressive language, receptive language, fine motor, sensory processing, auditory processing, reading (decoding and comprehension), transition, gross motor, and writing skills." According to a DOE representative, E.D. is in the "moderately deficient range" of "overall cognitive functioning," and E.D. suffers from "difficulty interacting socially with peers" and difficulty with "communicat[ing]" and "regulat[ing] her feelings." E.D. speaks English at school, and at home mostly speaks Spanish.

II. The 2006-07 School Year

A. The Rebecca School

In September 2006, E.D. began attending the Rebecca School ("Rebecca"), a private day school in Manhattan for students with neurodevelopmental disorders, including autism. The Rebecca School first opened in September 2006 and is not approved by the New York Commissioner of Education as a private school with which school districts may contract to instruct students with disabilities. See 8 N.Y. Comp. Codes R. & Regs. § 200.7. As of February 2008, Rebecca had 85 students ranging in age from four to sixteen; a typical class at Rebecca includes eight students, one teacher, and three teacher assistants.

Rebecca's curriculum is based on the Developmental Individual-difference Relationship-based ("DIR") model pioneered by Dr. Stanley Greenspan, who is a consultant to the school, and Dr. Serena Wieder. As described by defendants, the DIR model "identifies nine developmental levels, which are as follows: 1) regulation, 2) shared attention, 3) back and forth communication, 4) shared social problem-solving, 5) symbolic thinking, 6) building logical bridges between ideas, 7) multi-causal thinking, 8) grey area thinking, and 9) self-reflective thinking."*fn2 DIR is a developmentally oriented methodology for working with autistic children, in contrast with behaviorally oriented methodologies such as applied behavioral analysis ("ABA"). According to Rebecca, DIR "proceeds from the core belief that relationships are the foundation of learning." "DIR considers each child's functional emotional developmental level, how the child processes information and the learning relationships that enable him or her to progress." In accordance with the DIR model, students at Rebecca are assigned to classes based on their age, verbal ability, sensory needs, academic abilities, and "functional emotional developmental level," and within each class, the educational and therapeutic program is individually "tailor[ed] . . . to each child's needs," i.e., to the "individual differences" of each student. A cornerstone of the DIR method is "Floortime," an educational technique centered around playful one-on-one interactions between students and staff members while engaged in an activity of the student's choice, by which staff aim to "meet the child at their developmental level and then to move them ahead."

With respect to the 2006-07 school year, A.D. and M.D. commenced a due process proceeding against the DOE seeking reimbursement for tuition paid to Rebecca and prospective payment of amounts still owed. The plaintiffs and the DOE subsequently entered into a settlement agreement whereby the DOE paid for E.D.'s attendance at Rebecca during the 2006-07 school year.

B. Formal and Informal Assessments During the School Year

Rebecca conducted various assessments of E.D. during the 2006-07 school year to track E.D.'s educational and therapeutic progress and set curricular goals. These assessments were relied upon by the CSE in formulating E.D.'s IEP for the 2007-08 school year. Because the accuracy and sufficiency of these assessments have been challenged by both plaintiffs and defendants at various stages of the proceedings, insofar as the assessments relate to the appropriateness of the IEP and of Rebecca, they will be considered here in some detail.

First, on August 31, 2006, Rebecca conducted an emotional evaluation of E.D. using the Functional Emotional Assessment Scale (the "FEAS"). The FEAS was created by Dr. Greenspan and is standardized against three- and four-year-old non-disabled children, but is used by Rebecca for students with neurodevelopmental disorders of various ages. The FEAS is conducted by a psychologist who observes the child's behavior while the child interacts with his or her "caregiver," usually a parent. Rebecca performs the FEAS once each year. The August 31, 2006 FEAS revealed that E.D.'s emotional development was deficient in each of six categories tested. The FEAS also determined that M.D.'s caregiver abilities were deficient in all areas with the exception of "self-regulation and interest in the world," which was credited as normal.

Second, a series of progress reports were produced in November 2006. A Speech-Language Therapy Progress Report was written by Jennifer Bailey on or about November 14, 2006 (the "November Speech Report"). The November Speech Report is a two-page document containing specific observations, pedagogical updates, and conclusions with respect to E.D.'s skills and deficits in four areas: "receptive language," "expressive language," "pragmatics," and "oral motor/articulation." For example, with respect to E.D.'s receptive language abilities, the November Speech Report concluded that E.D. "appears to have an adequate receptive vocabulary for common nouns and verbs, but her comprehension of spatial and descriptive concepts is significantly limited." The November Speech Report also stated that E.D. "seem[s] to display a moderately severe auditory processing delay characterized by increased response time for questions and directions." The November Speech Report cautioned, however, that "[E.D.]'s receptive language is somewhat difficult to assess due to the fact that [she] is bilingual and has limited expressive output" and that "it is difficult to determine whether [E.D.'s auditory processing delay] is because of an inherent processing disorder or because English is not her first language." The November Speech Report concluded by setting twelve specific goals for E.D. across three categories -- receptive language, expressive language, and pragmatic skills.*fn3

The same day, November 14, E.D.'s classroom teacher Alex Klein produced a four-page progress report (the "November Teacher Report"). The November Teacher Report stated that "[E.D.] is a very happy and energetic child who has come a long way in the last seven weeks since she first starting [sic] coming to the Rebecca School in September 2006." Klein observed, inter alia, that E.D. is "hyper-sensitive to sound" and that "[t]ransitions into and out of certain activities can be hard for [her]." After making general observations concerning E.D.'s interests, therapeutic needs, and classroom demeanor, the November Teacher Report described E.D.'s progress with respect to each of the first four developmental levels within the DIR framework.

Also in November 2006, Melissa Frey prepared a one-page Occupational Therapy Progress Report (the "November OT Report"). The November OT Report noted that E.D. is "hyper sensitive to auditory, tactile and visual input"; is "easily distracted"; frequently "becomes deregulated"; and has difficulty "engaging and relating" with others. At that time, E.D. was receiving occupational therapy twice each week for thirty minutes each session. The November OT Report set three long-term goals, each of which contained two or three sub-goals.

Third, a Confidential Psychological Report was written on or about December 18, 2006 by Coral Ballister in conjunction with Melissa Frey and Jennifer Bailey (the "Psychological Report"). The eight-page Psychological Report -- carried out "as part of the standard assessment procedure for students enrolled at the Rebecca School" -- was "conducted to establish a baseline level of cognitive and behavioral development, as well as to more thoroughly assess [E.D.'s] individual sensory system functioning." The Psychological Report was based upon a battery of various tests conducted on November 2, November 17, and December 8, 2006, including a Wechsler Intelligence Scale for Children-Fourth Edition assessment (the "WISC-IV"); a Vineland Adaptive Behavior Scales-Second Edition assessment ("VinelandII"); a "sensory profile"; a Temperament and Atypical Behavior Scale ("TABS") test; and a Comprehensive Assessment of Spoken Language ("CASL") test. The Psychological Report stated that E.D. "presented as a curious and playful child who was easily distracted and had difficult[y] sustaining attention throughout the assessment." The Report noted that "[t]esting took place over three sessions in an attempt to maximize her ability to perform at her best," but that "[s]everal attempts at testing were discontinued because of marked interference in her ability to attend to testing that appeared to be due to pain, discomfort, and/or sensory dysregulation." In addition, "[E.D.'s] speech was also difficult to understand at times, and it was difficult to tell sometimes whether she was speaking in English or Spanish," even with the translation assistance of E.D.'s Spanish-speaking teacher assistant. Ballister, who interpreted the WISC-IV results, cautioned that due to E.D.'s bilingualism, Spanish dominance, and autism, the results of the WISC-IV "should be interpreted with extreme caution and should only be used as estimates of her current level of functioning" rather than as an "authoritative appraisal of her actual cognitive abilities."*fn4 Ballister also concluded that, owing to E.D.'s "bilingual status and uneven language development . . . a bilingual evaluation may be more appropriate for assessing her language and verbal development." Ballister suggested, moreover, that "[a] nonverbal test of cognitive functioning may provide a more accurate assessment of [E.D.'s] true cognitive abilities." With respect to the Vineland-II test of personal and social self-sufficiency, E.D.'s test results put her at the first percentile, but Ballister cautioned that the test (which included an evaluation form completed by M.D.) contained certain inconsistencies, probably owing to M.D.'s misunderstanding of the test.*fn5

Fourth, on January 25, 2007, Jennifer Bailey conducted an "initial speech and language evaluation" of E.D., which despite the recommendations of the earlier reports was conducted in English only. The results were detailed in a three-page report (the "January Speech Report"). The January Speech Report noted that formal testing (including a CASL assessment) could not be completed because E.D. could not focus on the test, even though it was conducted in the sensory gym, "where [E.D.] tends to be most regulated and attentive." The January Speech Report therefore reflected only Bailey's "informal assessment and clinical observation" with respect to the same four categories that were described in the November Speech Report, namely, receptive language, expressive language, pragmatic skills, and articulation/oral motor. Bailey's observations in the January Speech Report reached the same general conclusions, at times using identical words, as did the November Speech Report.

Fifth, on March 1, 2007, Victoria A. Ritvo completed an Occupational Therapy Progress Report (the "March OT Report"). The two-page March OT Report reflected Ritvo's "professional opinions and informal evaluation . . . over the past two weeks," and described E.D. as "a child who displays with sensory processing and modulation issues." E.D. craves "light touch" and "is easily distracted by external stimuli (visual and auditory) and becomes over stimulated in noisy environments." The March OT Report recommended that E.D. "continue to receive occupational therapy services on a 1:1 basis at least three times per week" and identified three general therapeutic goals.

On March 9, 2007, Bailey filed another Speech-Language Therapy Progress Report (the "March Speech Report"). The March Speech Report noted that E.D. was receiving speech-language therapy four times per week on a one-to-one basis. The March Speech Report stated that E.D. was continuing to work on the developmental levels of "shared attention and regulation," "engagement and relating," "purposeful two-way communication," and "shared problem-solving." After making observations about E.D.'s abilities with respect to the four categories of receptive language, expressive language, pragmatic skills, and oral motor/articulation, the Report concluded that "it is difficult to ascertain if her difficulty in following directions independently is due to a language processing deficit or a lack of compliance; it is likely a combination of both factors." The Report then identified twelve specific goals for E.D. across the three areas of receptive language, expressive language, and pragmatic skills.

Finally, on March 13, a Teacher Progress Report was prepared by E.D.'s teacher, Alex Klein (the "March Teacher Report"). Klein stated that E.D. was "fluctuat[ing] between levels 1-3" on the DIR scale and had showed "islands of ability" at levels 4 and 5 with the help of a teacher or therapist. The March Teacher Report concluded that the "challenges [E.D.] has in mastering levels 1-5 are a result of her difficulty with self-regulation." The March Teacher Report went on to establish five specific developmental goals for E.D.

III. Planning for the 2007-08 School Year

On March 5, 2007, E.D.'s CSE convened an annual review meeting to develop a plan for E.D.'s education during the upcoming 2007-08 school year. Various reports produced by Rebecca were considered by the CSE, including the November and January Reports; the November Teacher Report; the Psychological Report; the November OT Report; and a school observation report conducted by Towanna Soto, a DOE special education teacher.*fn6 The CSE considered and rejected a private school placement for E.D. for 2007-08, concluding that E.D. "can meet her IEP goals in a less restrictive setting at this time." At the CSE meeting, E.D.'s parents expressed disagreement with defendants' recommendations, and in particular, M.D. made clear that she wished for E.D. to remain at Rebecca, noting that she was making progress there.

As a result of the meeting, the DOE produced an IEP that proposed placing E.D. in District 75, New York City's district of full-time special education schools, for the 2007-08 school year. Within the District 75 program, E.D. would be placed in a specialized class with a student-to-teacher-to-paraprofessional ratio of 6:1:1. The IEP provided for individual occupational therapy in three sessions per week for 30 minutes; individual speech and language therapy in two sessions per week for 30 minutes; and group speech and language therapy once per week for 30 minutes in a group size of two. The IEP discontinued ...


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