The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action, pursuant to the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and Article 89 of the New York Stated Education Law, seeking review of a decision of the New York State Department of Education. Now before the Court are the parties' cross-motions for summary judgment. (Docket Nos. [#17] [#19]). For the reasons that follow, the applications are each granted in part and denied in part.
The Court has reviewed the administrative record in this action, which comprises several reams of paper. The following statement of facts will merely set forth the relevant highlights. Plaintiff CB ("Plaintiff")*fn1 is the parent of EB, a minor child with a disability. EB's learning disabilities, consisting primarily of dysgraphia*fn2, caused him to struggle academically in such areas as written expression, organization, and self-advocacy. EB's 2005-2006 individualized education program ("IEP") described him, in relevant part, as follows:
[EB] has a severe discrepancy between his cognitive ability and his achievement in written expression. He has been diagnosed with dysgraphia. He expends [a] tremendous amount of energy just for handwriting, leaving little energy left to put his creative thoughts with proper mechanics accurately on paper. This causes a high level of frustration, and [EB] may be dealing with this frustration by activating defenses, such as delayed engagement in classroom activities. However, he is absorbing significant amounts of knowledge, in keeping with his cognitive ability.
He is functioning in the high average range of cognitive ability. Test scores suggest that he is functioning in the superior range for nonverbal problem solving and in the average range for verbal reasoning skills, yet these scores are not commensurate with results of two previous sets of testing, indicating that his performance has not been consistent across evaluations.
[EB] continues to need consistent reminders to follow through with a verbal request [from a teacher]. It has also been noted that [EB] has trouble advocating for himself. He finds it difficult to ask for assistance from peers or adults when he does not understand an activity.
In the area of mathematics, [EB] scored in the 98th percentile for math reasoning and 88th percentile for numerical operations. [EB] is able to grasp math concepts well and apply them to daily assignments and assessments. However, it has been noted that [EB] makes careless errors,*fn3 especially involving computation.
[W]e have tried to encourage [EB] to use strategies for dysgraphia. For example, a word processor or scribe for any lengthy written work is one strategy. In the beginning of the year, [EB] was more receptive to using one of these two methods, but as the year progressed, he has been inconsistent with his cooperation. Just recently, [EB] has been carrying his personal tablet PC to classes to use for notetaking; however, teachers do not see it being used on a consistent basis.... The following are other strategies that have been practiced with [EB]: using a palm pilot or IPAQ to record assignments, using graph paper for math calculations, utilizing a scribe to record homework or test answers; and proofreading written work for errors. These strategies have not been successful because of [EB's] reluctance to use them consistently and/or independently. (2005-2006 IEP at 3-4).
During the 2005-2006 school year, EB was enrolled in the eighth grade in the Pittsford Central School District ("Defendant"). EB's 2005-2006 IEP called for him to be placed in a general education classroom, with resource room daily for 37 minutes, occupational therapy ("OT") twice a month for 37 minutes, and OT consultation for 40 minutes once per month. Resource Room was intended to address EB's writing deficiencies. (2005-2006 IEP at 2) ("[EB] has difficulty with many aspects of the writing process, including brainstorming, organization, editing, and revising. Resource room support is necessary for [EB] to be provided with support in the area of writing."). OT consultation was intended to address EB's dysgraphia, and to improve fine motor skills and provide modification strategies. The district provided EB with a word processor to use at school, and Plaintiff also provided EB with a tablet personal computer ("Tablet PC"), which he carried with him to classes. The IEP called for the district to conduct an Assistive Technology evaluation for EB. On October 31, 2005, the district completed such evaluation, which "revealed a need for continued training and support for the use of [EB's] tablet PC and other current technology within all academic settings." (2005-2006 IEP as amended, December 16, 2005). On November 2, 2005, Plaintiff complained to the district that EB was not receiving appropriate support in assistive technology. (Mrs. EB hearing testimony, at 661-662) ("It is now the beginning of November. [EB] is not receiving any assistive technology training nor exploration of additional technology to ease his dysgraphic difficulties and help him with notetaking."). Subsequently, the district modified the IEP to include 20 hours of assistive technology support in the resource room. (Id.). On March 31, 2006, Christie Rochester ("Rochester"), the district's Assistive Technology Coordinator, indicated that EB was familiar with Efofex software, but did not need it to complete his assignments. (Rochester Report dated March 31, 2006). Rochester further noted that, although she had previously recommended that EB use "word prediction or draft writing software," "[h]is keyboarding skills [were] too advanced to utilize the word prediction [software] and the draft writing software ha[d] been replaced by hard copy outlines provided by the teacher." (Id.). Rochester further recommended that EB receive ten hours of assistive technology support during the next academic year. (Id.). However, as discussed further below, the Committee on Special Education ("CSE") increased that recommendation to twenty hours of assistive technology support. At the impartial hearing, Rochester testified that EB was a proficient typist, and that although he was able to use the supportive software, he did not use it consistently. (Rochester hearing testimony at 119-124). Rochester indicated that EB did not need a scribe*fn4 as part of his 2006-2007 IEP, because he was able to type his class notes. (Rochester hearing testimony at 132-133) ("He was a proficient typist, he could have typed notes. His tablet PC that he had also had handwriting recognition software, there were times he would scribble notes on it.").
On March 30, 2006, Rebecca Davidson ("Davidson"), Occupational Therapist, completed a report concerning attempts to improve EB's handwriting. Davidson stated that EB had been provided with direct OT support "and a variety of strategies," but his handwriting was inconsistent. (Davidson Report dated 3/30/05 at 1) ("[EB] does not consistently utilize the strategies and modifications provided in order to help him with the challenges of dysgraphia."). Davidson stated that EB "can demonstrate functional handwriting skills when [he] uses good handwriting posture and slows the pace of his writing." (Id.). Davidson further indicated that EB would not need direct OT support in high school, but that he should continue to receive OT consultative support:
This year the occupational therapist was able to provide [EB] with strategies to help improve his fine motor skills as well as the opportunity to practice the strategies. It is now up to [EB] to consistently utilize these strategies in the High School setting. It is recommended that [OT] consultation be provided next year 5 times per year in order to monitor [EB's] progress and provide [his] teachers with support as needed. (Id.).
On May 13, 2006, Jessica Sabbour ("Sabbour"), Learning Specialist for the district, completed a report detailing the results of various evaluations completed between December 2005 and May 2006. Sabbour stated that EB "continue[d] to show average to above average achievement across all academic areas." (Sabbour report at 2). Sabbour noted that EB's handwriting "indicates that he has graphomotor difficulties which often impact the readability of his writing," and that EB performed somewhat better using a word processor. Sabbour further observed:
[EB] has difficulty with homework completion and organization. Time management is also a challenge for him. It is difficult for [EB] to complete work independently during class, regardless of the environment, as he gets distracted or avoids the task being asked of him. Graphomotor tasks are challenging for him, however, he typically slouches down completely in his chair while doing work and uses only one hand while writing, thus the paper moves and his handwriting is unsteady. When reminded that it would improve legibility of his work, he will take mini-steps requiring further prompting until he is in the proper position, or he will refuse to change altogether. He receives a great deal of assistance at home although he is resistant to help offered to him there and at school. [EB] has been shown many different strategies and has had a wealth of resources made available to him that he appears to be resistant to using. He does not like to go in for extra help and often misses appointments that are scheduled for him. [EB] needs constant reminders to attend to a task, bring the required materials to class, and show up for appointments. These difficulties prevent him from achieving the success he is capable of on a daily basis. (Id. at 4-5).
Comments by EB's teachers at the end of the 2005-2006 school year generally indicate that EB resisted using the various strategies that he had been shown. For example, EB's English teacher stated:
[EB] still needs quite a bit of prompting to use pre writing strategies during writing assignments. Even with that prompting, he finds limited success in accomplishing the task at an eighth grade level of development. He is resistant to accept help so it is difficult to do much else than prompting and that can become a frustrating situation. (Englerth 40-week comments). EB's Spanish teacher stated:
I am disappointed with [EB's] performance in Spanish. He seemed to be starting out the year relatively well and then by the middle of the third quarter he seemed to completely shut down. He began to become more unfocused and although I would use a variety of cues, prompts, [and] multisensory approaches he would continue to be unresponsive. He did not come in for extra practice with the oral part of the state exam and his score this section was low. He finished out the year completing almost next to nothing. I gave him opportunities to make up the missed homework assignments however he never handed anything in to me. (Laboarne 40-week comments). Nevertheless, EB "finished 8th grade with 4 courses in the 'C' range for final grades, 3 courses in the 'B' range and 'E' (i.e. 60) in Spanish and A- in physical education." (Plaintiff's Notice of Intention to Seek Review ¶ 44). According to Patricia Brogan ("Brogan"), Defendant's Director of Special Education, EB "did pretty well in 8th grade." (Brogan hearing testimony at 231).
Plaintiff disagreed, and stated that in the Spring of 2006, she realized that Defendant was not providing EB with an appropriate education.*fn5 In June 2006, Plaintiff "accepted the likelihood" that Defendant would not provide EB with an appropriate education, and she notified Defendant that she was "poised to remove [EB] from the public school and place him at the Gow School [("Gow")]," a residential school for dyslexic boys in grades seven through twelve.*fn6 (Plaintiff's Affidavit at ¶ 8).*fn7 Gow's highly-structured program included scheduling of each day's academic and non-academic activities. Gow students attend classes each week day, and half a day on Saturday. Additionally, Gow students attend faculty-monitored study halls each night, and on Saturday afternoons as needed. (David Mendlewski hearing testimony at 503-505) (See also, Mari Jo Clayback hearing testimony at 588) ("[W]e know that our [Gow] students do better with that sort of structure. If work is predictable, if their time is predictable and they know exactly what they need to do and when and they are in a routine, then they are going to do better and EB fits right in with those students.").
Plaintiff had EB independently evaluated by Dr. Peter Sorman ("Sorman"), a pediatric neuropsychologist. Sorman concluded that EB's writing is very poor and is as good as it is going to get graphomotor-wise. Extensive efforts to improve his penmanship aren't likely to pay off, so we should figure out how to use technology to replace his graphomotor writing deficiencies, and continue to take advantage of simple technology to improve the graphomotor writing that [EB] does have to do. (Plaintiff 8/3/06 letter to CSE summarizing Sorman report).
Subsequently, the CSE completed the proposed IEP for the 2006-2007 school year. Such process involved six separate meetings, which was an unusually high number. Brogan explained why so many meetings were required: "We had a lot of information to cover, parents had a lot of questions about his programs and services, we have evaluations that were taking place to address and review. There was a lot of information to cover and a lot of questions to answer." (Brogan hearing testimony at 195). The IEP recommended placing EB in a general education classroom, with consultant teacher services in English and Social Studies,*fn8 and with forty minutes of resource room each day. Brogan indicated that the consultant teacher arrangement in English and Social Studies would provide EB with writing support. (Brogan hearing testimony at 352) ("Within the general education classroom, the writing support is build right into the classroom with the special education teacher in the classroom."). Brogan stated that the consultant teacher arrangement was appropriate in English and Social Studies classes, since they are "heavily laden with writing responsibilities." (Id. at 373). Brogan testified that the consultant teacher arrangement "was the best way to address [EB's] organizational, written expression and attentional motivational issues as well as then maintaining a resource room program for additional skill development and support in all of those areas." (Id. at 408).
The resource room was recommended to help EB with organization, homework completion and management, and writing. (Sabbour hearing testimony at 62-63). The IEP also recommended five 40-minute OT consultations and 20 hours of assistive technology support. The IEP indicated that the resource room was intended to help EB with organization, self-advocacy, time management, and writing skills. The IEP further stated that, "[d]ue to [EB's] dysgraphia, OT consultation will be provided to monitor [his] fine motor skills and provide modification strategies as necessary." The IEP also provided for various testing accommodations related to EB's dysgraphia. With regard to transitional services, Brogan indicated that the IEP contained activities designed to support EB in is plan to eventually attend college. (Brogan hearing testimony at 213) ("We certainly identified [that EB] had an interest in going to college, so that was placed in the IEP with appropriate activities to support that.").
Plaintiff rejected the IEP proposed for the 2006-2007 school year. In general, Plaintiff indicated that the IEP failed to ascertain the reasons for EB's inconsistent use of technology and instructional strategies, and failed to provide EB with sufficient structure and support to enable him to complete his homework. More specifically, Plaintiff maintained that the IEP called for consultant teacher services in an 8:1 ratio, without distinguishing between direct and indirect services. Plaintiff did not think that a co-taught class would be helpful to EB: "I felt that students who did not have IEPs would be taking the attention of the two teachers and my child would still be in trouble." (Mrs. EB testimony at 682). Brogan testified that in a co-teaching classroom, both teachers share responsibility for the entire instructional process, and "[t]he special education teacher has responsibility for the 8 students [with disabilities]." (Brogan hearing testimony at 474). Brogan indicated that both the general education teacher and the special education teacher would "share responsibility for making sure that all of the students in the class were using strategies that were expected of them[.]" (Id. at 475).
By letter dated June 23, 2006, Plaintiff informed Defendant that she was removing EB from the Pittsford School District and enrolling him at Gow. (Plaintiffs' Statement of Material Facts [#19-2] ¶ 49). ...