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Stevens ex rel E.L. v. New York City Dep't of Education

March 18, 2010


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


Plaintiff Amy Stevens ("Stevens") brings this action on behalf of her minor son, E.L. ("the Student"), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("the IDEA"). The plaintiff seeks review of the May 12, 2009 administrative decision of State Review Officer Paul F. Kelly ("the SRO"), which annulled in part the February 26, 2009 decision by Impartial Hearing Officer Susan C. Lushing ("the IHO"). The IHO's decision had awarded Stevens tuition reimbursement for the Jump Start portion of the Student's educational program at York Preparatory School ("York Prep") for the 2007-08 school year. The SRO found that no reimbursement was appropriate.

The defendant moves for summary judgment, seeking dismissal of the plaintiff's complaint. The plaintiff cross-moves for summary judgment and is seeking an order overturning the SRO's determination and awarding full tuition reimbursement for both Jump Start and the rest of the Student's educational program at York Prep. Because the defendant conceded that it failed to offer the Student an appropriate education as required by the IDEA, the only issues in dispute are whether the SRO erred in concluding that York Prep was not an appropriate unilateral placement; whether the Jump Start program at York Prep was reimbursable as a special education service, and whether the equities favor reimbursement. For the reasons set forth below, the defendant's motion for summary judgment is granted.


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). 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, there are "Committees on Special Education" ("CSEs") in each community school district that convene with the parents to develop an IEP for a student. N.Y. Educ. L. § 4402(b).

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 IHO, and parties aggrieved by the IHO's decision may appeal to the SRO. See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1). 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).


The following facts are taken from the administrative record, and are undisputed unless otherwise indicated.

A. The Student's Special Education History

Stevens is the mother of the Student. The Student was born on July 18, 1992, and during the 2007-08 school year, he was fifteen years old and in the ninth grade. In the most recent IEP before the 2007-08 school year, the Student was classified as learning disabled. Stevens testified that the Student was diagnosed with autism when he was a toddler, and then with an emotional disturbance, before being diagnosed as learning disabled. Prior to the 2007-08 school year, the Student had always attended private special educational schools.

B. The 2006-07 School Year and Application Process

For the 2006-07 school year, when the Student was in the eighth grade, the Student attended Winston Preparatory School ("Winston Prep"), a private special education school. Stevens testified that in the fall of 2006, she applied for the Student's admission to York Prep, a private regular education school, and that for six months prior to that, the Student had received private tutoring to prepare him for the required entrance examination.

In January 2007, a CSE meeting was held to develop an IEP for the Student for the remainder of the 2006-2007 school year (the "January 2007 IEP"). Stevens attended, as did representatives from the Student's school and the school district. Stevens did not advise the defendant during that meeting that she had applied to admit the Student to York Prep.

The January 2007 IEP was for one year, although it was scheduled to be reviewed at the end of June 2007. The IEP recommended collaborative team teaching with counseling, occupational therapy, and speech/language therapy. According to the IEP, the Student demonstrated strengths in "written mechanics and decoding" and weaknesses in inferencing skills, organization, and percentiles and fractions. The Student's academic performance was described as being below grade level in reading comprehension and written expression, at grade level in "letter-word ID," and below grade level in math computation and problem solving. The IEP listed the Student's "academic management needs" as "semantic maps and outlines to organize thoughts; visual cues-charts." As for social/emotional performance, the Student was noted to be demonstrating "increased maturity and improved self advocacy," but that social problem-solving skills were a weakness.

The IEP noted that other education recommendations had been considered and rejected: general education with special education teacher support services ("SETSS") was "considered inadequate to address [the Student's] academic weaknesses," while a special class in a community school was "too restrictive given [the Student's] academic strengths and weaknesses." Instead, as noted, the IEP recommended collaborative team teaching and a continuation of the Student's existing special services: one session of counseling in a small group per week, one session of one-on-one occupational therapy per week, and two sessions of speech/language therapy in a small group per week. The Student was given the testing accommodations of double time; small group setting; directions read, re-read and re-phrased; and answers recorded in any manner.

York Prep accepted the Student for enrollment for the 2007-08 school year on February 14, 2007. According to the admission letter, York Prep "require[d] that [the Student] enroll in our Jump Start program in order to receive the support he needs in making the transition" to York Prep. On March 1, Stevens signed the Student Enrollment Contract, whereby she agreed to pay all tuition and fees for the 2007-08 school year, including a nonrefundable $4,000 deposit. The total tuition obligation for the year was $46,250,*fn1 which included a separate tuition of $13,800 for the Jump Start program. Stevens paid the $4,000 deposit on March 6, 2007 using a check drawn on her attorney's professional account and signed by him, and paid the balance of the tuition using checks post-dated for May 28, July 18, October 13, and December 10, 2007.*fn2 The Student started his ninth-grade year at York Prep in September 2007. As of that date, Stevens had not yet advised the defendant either that the Student had been admitted to York Prep or that he had begun to attend the school.

C. The 2007-08 School Year at York Prep

York Prep is not approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. At York Prep, the Student was in regular education classes described as being "highly structured" and with a class size of thirteen or fourteen students and one general education teacher. He was assigned daily homework. Stevens could access the Student's grades via a secure website that was updated weekly, and the Student's teachers could write notes to the parent there as ...

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