The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Plaintiffs Stephen and Linda Maus, on behalf of their minor child, K.M., bring this action against Defendants Wappingers Central School District and Superintendent Richard Powell under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.Pursuant to IDEA, Plaintiffs appeal from the decision of a New York State Review Officer ("SRO") denying K.M.'s classification as a student with a disability under IDEA, and denying Plaintiffs' request for tuition reimbursement for their unilateral placement of K.M. in a private school for the latter half of the 2003-04 school year. Pursuant to Section 504 of the Rehabilitation Act and the ADA, Plaintiffs claim that Defendants failed to provide K.M. with an appropriate plan or reasonable accommodation as required by these statutes.
Plaintiffs have moved for partial summary judgment on their IDEA claims, while Defendants have moved for summary judgment on all of Plaintiffs' claims. For the reasons stated below, Defendants' motion is GRANTED, and Plaintiffs' motion is DENIED.
Congress enacted 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 prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The term "children with disabilities" includes children with various physical impairments as well as children with a "serious emotional disturbance." 20 U.S.C. § 1401(3)(A). "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, 20 U.S.C. § 1400(d)(1)(A))). "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)).
A school district administers special education services through the development of an "individualized education program" ("IEP") for each disabled child.
20 U.S.C. § 1414(d). In New York, local committees on special education ("CSE") are responsible for developing appropriate IEPs. Walczak, 142 F.3d at 123 (citing Heldman v. Sobol, 962 F.2d 152 (2d Cir. 1992)). A CSE is also responsible for determining whether a child should be classified as eligible for educational services under IDEA. Parents who believe that the state has failed to provide their child with a free appropriate public education "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo, 489 F.3d at 111 (citing Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985)). "Parents 'may present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.'" See N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 473 F. Supp. 2d 532, 535 (S.D.N.Y. 2007), aff'd, 300 F. App'x 11 (2d Cir. 2008) (quoting 20 U.S.C. § 1415(b)(6)). "The parents involved in such a complaint 'shall have an opportunity for an impartial due process hearing.'" Id. (quoting 20 U.S.C. § 1415(f)).
In New York, these hearings are conducted before an Independent Hearing Officer ("IHO"), who is appointed by the local board of education. See id. The IHO's decision may be appealed to an SRO, and the SRO's decision may be challenged in either a state court of competent jurisdiction or in federal court. See id. (citing 20 U.S.C. § 1415(i)(2)(A)).
The statutory purpose of the Rehabilitation Act is similar to that of IDEA, but the Rehabilitation Act is broader in scope. See Muller ex rel. Muller v. Comm. on Special Educ. of the E. Islip Union Free Sch. Dist., 145 F.3d 95, 100 n.2 (2d Cir. 1998). The Rehabilitation Act provides that "no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). "The definition of 'individual with a disability' under Section 504 of the Rehabilitation Act is broader in certain respects than the definition of a 'child with [a] disability' under the IDEA." Muller ex rel. Muller, 145 F.3d at 100 n.2. For example, "Section 504's reach extends not only to individuals who in fact have a disability, but also to individuals who are regarded as having such a disability (whether or not that perception is correct)." Id. A student could therefore qualify for accommodations under Section 504 of the Rehabilitation Act and yet not be entitled to special education services under IDEA.
Both the Rehabilitation Act and the ADA protect disabled persons from discrimination in the provision of public services. In similar terms to those used in Section 504 of the Rehabilitation Act, the ADA declares that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "Apart from the Rehabilitation Act's limitation to denials of benefits 'solely' by reason of disability and its reach of only federally funded -- as opposed to 'public' -- entities, the reach and requirements of both statutes are precisely the same." Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 n.5 (2d Cir. 2002).
II. K.M.'S PSYCHOLOGICAL CONDITION AND EDUCATIONAL HISTORY
As discussed below, the record demonstrates that K.M. suffers from a variety of psychological disorders and learning disabilities that have interfered with, inter alia, her social integration, but that she nonetheless has managed to excel in her academic subjects.
During the relevant time period -- 1998 to 2003 -- K.M. was diagnosed and treated by a variety of physicians and specialists, including psychologists, a pediatrician, a pediatric neurologist, a neuro-psychologist, and a language pathologist. She was diagnosed with attention deficit hyperactivity disorder ("ADHD") (Def. Ex. 29 at 8), dysgraphia*fn1 (Def. Ex. 29 at 8; Pltf. Exs. S, JJ), generalized anxiety disorder (Def. Ex. 29 at 8; Def. Ex. 19), Asperger's syndrome (Pltf. Exs. HH at 1, JJ), and pervasive developmental disorder (Tr. At 310-14), and was found to have a moderate language-based learning disability (Pltf. Rule 56.1 Stat.¶ 29; Pltf. Ex. II) and significant processing deficits in the areas of primary visuo-spatial processing, including perception of spatial orientation, spatial tracking, spatial memory, and visuomotor integration. (Pltf. Rule 56.1 Stat.¶ 40; Def. Ex. 25 at 11)
In July 1998, when K.M. was six years old, a psychologist -- Dr. Stephen B. Silverman -- diagnosed ADHD (Pltf. Ex. X; Pltf. Rule 56.1 Stat. ¶ 2). K.M.'s pediatrician -- Dr. Stephen Charnay -- confirmed that diagnosis on August 12, 1998. (Pltf. Ex. P; Pltf. Rule 56.1 Stat.¶ 3)
In September 2002, Dr. Charnay determined that K.M. was experiencing dysgraphia and linguistic difficulties and recommended a neuro-psychological evaluation. (Pltf. Ex. S) A neurological report dated September 6, 2002, written by Dr. Robert Wolff, states that K.M.'s writing is compromised by multiple erasures and spatial irregularity (Def. Ex. 3; Pltf. Rule 56.1 Stat.¶ 17). In November 2002, the School District referred K.M., then age 11, for evaluation by Dr. Gabrielle Stutman, a neuro-psychologist. Dr. Stutman diagnosed ADHD, dysgraphia, generalized anxiety disorder and left visual hemianopia.*fn2 (Pltf. Rule 56.1 Stat.¶ 19, Def. Ex. 29 at 8) Her neurological examination revealed a clinically significant cognitive deficit in the "domains of visual and aural attention and response inhibition, visuo-spatial processing and response speed." (Def. Ex. 29) Dr. Stutman also stated that "anxiety is secondary to [K.M.'s] increasing consciousness of the negative social and academic effects of her cognitive deficits." (Def. Ex. 29. at 7)
A school psychologist conducted a psychological evaluation of K.M. in September 2002. The Wechsler Intelligence Scale for Children (WISC-III) test indicated that K.M. had a Verbal IQ in the 98th percentile, Performance IQ in the 34th percentile, Verbal Comprehension Index in the 96th percentile, Perceptual Organization Index in the 63rd percentile, Freedom from Distractibility in the 98th percentile, and Processing speed in the 6th percentile. (Def. Ex. 31)
In January 2003, K.M. again saw neurologist Dr. Robert Wolff, who diagnosed K.M. with "high functioning autistic spectrum disorder of the Asperger's type." (Pltf. Rule 56.1 Stat.¶ 26, Pltf. Ex. HH at 1) Thereafter, K.M.'s parents obtained a speech-language assessment at the Center for Communication Disorders in Poughkeepsie, New York. The language pathologist diagnosed a "moderate language-based learning disability" on February 19, 2003. (Pltf. Rule 56.1 Stat.¶ 29; Pltf. Ex. II)
While in sixth grade in February 2003, K.M. began seeing social worker Rhonda Hauge for weekly counseling sessions. Ms. Hauge noted that K.M. had been experiencing "symptoms of anxiety and depression that appear to be a residual effect of her diagnoses of Asperger's or Pervasive Developmental Disorder." (Pltf. Ex. E)
In March 2003, K.M. was seen for emergency psychiatric treatment at St. Francis Hospital, where she was evaluated for "unstable mood, debilitating anxiety, impaired attention, deficient interpersonal skills and assorted learning deficits contributing to persistent and progressive episodes of inconsolable agitation and lability." (Pltf. Rule 56.1 Stat.¶ 30; Def. Ex 19) Dr. Mark Cerbone treated K.M. at that time and summarized her condition as follows:
[K.M.] is suffering from clinical disorders including anxiety disorder not otherwise specified, attention deficit disorder not otherwise specified, Asperger's syndrome, learning disorder not otherwise specified (including dysgraphia), with a differential diagnosis including consideration of other severe syndromes. (Pltf. Rule 56.1 Stat.¶ 30, Def. Ex. 19) Dr. Cerbone recommended that K.M. "receive a formal classification as being emotionally disturbed as well as learning disabled." (Def. Ex. 19)
In June 2003, Dr. Marion Rissenberg conducted a neuro-psychological reexamination of K.M. Dr. Rissenberg found that K.M. continued to demonstrate "general intellectual ability in the Superior range" but found evidence of "significant processing deficits in the areas of visuospatial processing including perception of spatial orientation, spatial tracking and spatial memory, and visuomotor integration." (Pltf. Rule 56.1 Stat.¶ 40; Def. Ex. 25 at 11) Dr. Rissenberg confirmed K.M.'s earlier diagnoses and stated that the results of his examination were consistent with specific developmental visuospatial and visuomotor (graphomotor) learning disabilities, or processing deficits, attentional and organizational deficits consistent with attention deficit hyperactivity disorder, and temperament issues including emotional sensitivity, anxiety, inflexibility, and limited social perception consistent with Asperger's syndrome. (Def. Ex. 25, at 12)
B. K.M.'s Educational Record and Section 504 Accommodations
The record reveals that although K.M. received Section 504 accommodations, she excelled academically while in public school during the 1998 through 2003 period.
In September 1997,K.M. entered Gayhead Elementary School ("Gayhead") at first grade. Her parents expressed concerns about her attentional difficulties and the school recommended that K.M. repeat first grade. (Pltf. Ex. LL) K.M.'s parents rejected that advice (Pltf. Ex. LL), however, and after first grade, K.M. began to excel.
In second grade, K.M. received A's in English, Social Studies and Reading, and a B in Math. (Def. Ex. 25 at 2) In third grade, K.M. earned A's, B's and C's throughout the year and showed strength in English, Math and Reading. (Id. at 3) In fourth grade, K.M. earned a B in Social Studies in the first quarter and A's in all other academic classes throughout the year. (Id.) In fifth grade, K.M. earned all A's except for a few B's in the third quarter. (Id.)
In September 2002, K.M. entered the sixth grade at Van Wyck Junior High School, part of the Wappingers Central School District. Her grades ranged "from the low-80s to mid-90s" in sixth grade. (Def. Ex. 25 at 3) K.M. continued to perform well in the first quarter of seventh grade, earning high grades in English (94), Social Studies (90), German (94), Science (86), and Math (87). (Def. Ex. 28) Midway through seventh grade, however, K.M.'s parents removed her from public school and enrolled her in the private Oakwood Friends School. There, her grades were once again in the 80s and 90s. (Def. Ex. 28)
2. Educational Accommodations
Between 1998 and 2003, K.M. received classroom modifications and other counseling services under a Section 504 Accommodation Plan. The School District's CSE, however, consistently denied K.M. eligibility for special education services under IDEA. (IHO Dec. at 2)
Beginning in second grade, K.M. received accommodations that included preferential seating in the front of the classroom and two thirty-minute occupational therapy sessions per week. (Pltf. Ex. MM, PP) In March of 1999, when K.M. was still in second grade, she was moved into an "inclusion class"*fn3 (SRO Dec. at 2), where she remained throughout third and fourth grade. In June of 1999, K.M.'s Section 504 Accommodation Plan was modified to provide for weekly counseling by a social worker in the area of behavior modification. (Pltf. Ex. QQ) By the 2001-02 school year, K.M.'s Section 504 Accommodation Plan included, among other things, preferential seating in the front of the classroom, the breaking down of complex instructions, untimed testing, and access tonotes. (Pltf. Ex. EEEE) K.M. entered a regular education class in fifth grade (SRO Dec. at 2), where she earned nearly all A's. (Def. Ex. 25 at 3)
In June 2002 -- in preparation for sixth grade -- the School District announced that the services K.M. would receive under her Section 504 Plan would be "significantly reduced." She was discharged from occupational therapy, and counseling was limited to ten sessions per year. (Def. Ex. 34; IHO Dec. at 2) K.M.'s parents then requested that the School District conduct an educational evaluation of K.M. (IHO Dec. at 2) In January 2003, the School District's504 Plan team decided that K.M. would receive additional accommodations such as "preferential seating when practical," "[i]nclusion team placement as a non-handicapped student," "adaptive testing-extended time as needed," and expanded social workercounseling in the form of six group sessions and four individual sessions over a six-month period. (Pltf. Ex. WW)
In August 2003, in preparation for the 2003-04 school year, K.M.'s parents again requested that the School District's CSE conduct a complete evaluation of K.M. and classify her as eligible to receive special education services under IDEA. (Def. Ex. 23)As discussed below, the CSE rejected that request in September 2003, and determined that K.M.'s 504 Accommodation Plan was adequate to meet her educational needs. (Def. Ex. 27) In January 2004, K.M.'s parents removed K.M. from ...