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E. Z.-L., By Her Parents R.L. and A.Z v. New York City Department of Education

January 24, 2011


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


Plaintiffs R.L. and A.Z. bring this action on behalf of their minor child E. Z.-L. pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400, et seq. ("IDEA"). In March of 2009, Impartial Hearing Officer ("IHO") Gary D. Peters awarded plaintiffs full reimbursement for Z.-L.'s placement at the Rebecca School for the 2008-2009 school year and for after-school therapy services. However, three months later, State Review Officer ("SRO") Paul F. Kelly reversed that determination and found that no reimbursement was appropriate. Plaintiffs now seek review of that determination and defendant New York City Department of Education ("DOE" or "the school district") also seeks review of the SRO's decision to the extent that he denied the DOE's request to recoup payments it had advanced to plaintiffs for Z.-L.'s tuition and therapy services during the pendency of these proceedings. Both parties now move for summary judgment. For the reasons set forth below, the parents' motion is denied and the school district's motion is granted insofar as it seeks dismissal of the complaint and denied insofar as it requests recovery of the payments it has already made to plaintiffs.


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). States receiving federal funding under the IDEA are required to provide a free appropriate public education ("FAPE") to all children with disabilities. Id. § 1412(a)(1)(A). To this end, the IDEA requires that the relevant local or state educational agency create an individualized education program ("IEP") at least annually for each disabled student. Id. § 1414(d)(2)(A).

In New York City, a Committee on Special Education ("CSE") develops each student's IEP. N.Y. Educ. L. § 4402(b). Parents are "members" of the CSE that formulates their child's IEP, id., and the IDEA requires that they be provided an opportunity to present complaints with respect to the identification, evaluation, or placement of their child during the IEP process. 20 U.S.C. § 1415(b)(6)(A). Where parents believe that the school district has not adequately responded to their complaints, they may pursue their grievances through an "impartial due process hearing." Id. § 1415(f)(1)(A). In New York, an IHO conducts these hearings, and parties who disagree with the IHO's decision may appeal to the SRO. See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1). The SRO's decision, in turn, may be challenged in either state or federal court. 20 U.S.C. § 1415(i)(2)(A). The district court shall "receive the records of the administrative proceedings," "hear additional evidence," and "grant such relief as the court determines is appropriate" based on "the preponderance of the evidence" before it. Id. § 1415(i)(2)(C).


The following facts are undisputed unless otherwise noted.

A. Z.-L.'s Educational History

Z.-L., now nine years old, has been classified by the DOE as "autistic" (Compl. ¶ 1), and is thus a "child with a disability" under the IDEA. See 20 U.S.C. § 1401(3)(A)(i). In September 2005, Z.-L. began attending preschool and receiving occupational and speech-language therapy. (Administrative Record, Parents Exhibit JJ at 15.)*fn1 Z.-L. has been attending the Rebecca School, a private day school in Manhattan for students with "autism and other developmental disabilities," since September 2006. (Compl. ¶ 11.)

In May 2007, the Committee on Special Education met to formulate Z.-L.'s educational program for the 2007-2008 school year. (Parents Ex. C at 3.) Following that meeting, the School District recommended a school, which the parents rejected. (Id.) The parents then requested an impartial hearing, alleging that the school district had failed to offer Z.-L. a FAPE for the 2007-2008 school year. (Id.) At the impartial hearing, the DOE conceded that it failed to offer a FAPE to the child, but maintained that the Rebecca School was not an appropriate placement and that the private therapy services Z.-L. was receiving were excessive. (Id. at 4.) In June 2008, IHO Susan K. Markus found that Z.-L.'s attendance at the Rebecca School plus 20 hours per week of "Floortime" therapy constituted an appropriate educational program. (Id. at 17.) The DOE did not appeal that decision.

B. Development of the 2008-2009 IEP

The committee met again in April of 2008 to formulate the child's educational program for the 2008-2009 school year. The committee included Z.-L.'s mother, a special education teacher (who also acted as the District Representative), a school psychologist, a general education teacher, and Z.-L.'s teacher from the Rebecca School. The resulting IEP recommended that Z.-L. be placed in a special class with a 6:1:1 ratio (six disabled children for every teacher and teacher's aide) and set forth long and short-term goals for Z.-L. in the areas of speech-language, communication, social-emotional issues, problem solving, motor planning, sequencing, and academics. (See Sch. Dist. Ex. 1 ("2008-2009 IEP").) It also recommended that she receive the following services on a weekly basis: (1) four 30-minute sessions of individualized occupational therapy; (2) three 30-minute sessions of individualized speech-language therapy, (3) one 30-minute session of 3:1 speech-language therapy; (4) one 30-minute session of individualized counseling; and (5) one 30-minute session of 2:1 group counseling. (Id.)

Z.-L.'s parents then received a notice recommending that Z.-L. be placed in a specialized class with a 6:1:1 ratio at the Children's Workshop School, not the Rebecca School. (Sch. Dist. Ex. 2.) Z.-L.'s mother visited the proposed placement and, after observing several classes and meeting with an assistant principal, found it unsuitable for her child. (Impartial Hearing Transcript ("Tr.") at 240:22-254:4.) In a letter dated May 22, 2008, Z.-L.'s parents rejected the Children's Workshop School and advised the DOE that, in the absence of an appropriate placement, they intended to reenroll Z.-L. at the Rebecca School at the DOE's expense. (Parents Ex. MM.) They then requested an impartial hearing on the ground that the DOE had failed to offer Z.-L. a FAPE for the 2008-2009 school year. (Parents Ex. A.) They also requested reimbursement for Z.-L.'s Rebecca School transportation and tuition and for her after-school services-specifically, her participation in the "Throwback Sports" program, two hours per week of speech-language therapy, and 20 hours per week of "Floortime" therapy. (Id., Parents Ex. HH.) Plaintiffs then reenrolled Z.-L. in the Rebecca School for the 2008-2009 school year. (Parents Ex. Z.)

C. Proceedings before the IHO

When the impartial hearing commenced in July 2008, the parties stipulated that pursuant to the IDEA's "stay put" provision, see 20 U.S.C. § 1415(j), Z.-L. was entitled to continue receiving, at the DOE's expense, tuition and transportation costs at the Rebecca School and 20 hours of "Floortime" therapy during the pendency of the proceedings.*fn2 (Tr. at 3:9-5:11.) The impartial hearing then took place before IHO Peters between September 2008 and January 2009.

The DOE presented two witnesses who primarily discussed the CSE procedure and the educational programs and services offered at the Children's Workshop School. Specifically, Feng Ye, a special education teacher for the DOE, testified about the CSE meeting that occurred on April 30, 2008. Prior to that meeting, Ye stated that she had reviewed the following background material related to Z.-L.: a speech progress report, an occupational therapy progress report, a teacher report from the Rebecca School, observation reports, psychological reports, and Z.-L.'s previous IEP. (Id. at 41:13-18.) Ye explained that, after considering and rejecting a program placing Z.-L. in a community school with a 12:1:1 ratio, the CSE team ultimately recommended a "specialized class in a specialized school district" for Z.-L. with a recommended staffing ratio of 6:1:1. (Id. at 43:11-21, 50:16-20.) Ye stated that Z.-L.'s deficits at the time of the CSE meeting consisted of "academic delays," "d[y]sregulation,"*fn3 a need for "instant gratification," and "biting her hands or hitting herself." (Id. at 45:16-23.) According to Ye, the CSE team addressed these deficits by "develop[ing] goals to ...

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