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In the Matter of S.H., Parent of A Student With A v. the New York City Department of

February 18, 2011

IN THE MATTER OF S.H., PARENT OF A STUDENT WITH A
DISABILITY, J.G., PLAINTIFF,
v.
THE NEW YORK CITY DEPARTMENT OF
EDUCATION [THE BOARD OF EDUCATION OF THE CITY
OF NEW YORK AND THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: x Paul G. Gardephe, U.S.D.J.:

MEMORANDUMOPINION & ORDER

Plaintiff S.H., on behalf of her minor child, J.G., brings this action against the New York City Department of Education and the City of New York ("DOE") under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq. Plaintiff appeals from a New York State Review Officer's decision denying tuition reimbursement for Plaintiff's unilateral placement of J.G. in a private school for the 2008-09 school year. Both sides have moved for summary judgment. For the reasons stated below, Defendants' motion will be granted and Plaintiff's motion will be denied.

BACKGROUND

I.STATUTORY FRAMEWORK

"Congress enacted the IDEA to promote the education of children with disabilities, '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, and] . . . to ensure that the rights of children with disabilities and parents of such children are protected.'" Frank G. v.Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006) (quoting 20 U.S.C. § 1400(d)(1) and citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367 (1985)). "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 20 U.S.C. § 1400(d)(1)(A))).

A school district administers special education services through the development of an "individualized education program" ("IEP") for each child with disabilities. 20 U.S.C. § 1414(d). In New York, local committees on special education ("CSE") are responsible for determining whether a child should be classified as eligible for educational services under IDEA and, if so, for developing an appropriate IEP for that child. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998) (citing Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992)).

An IEP must state (1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

Id. at 122 (citing 20 U.S.C. § 1401(a)(20)).

Parents who believe that their school district has failed to provide their child with a free appropriate public education ("FAPE") -- due to an inadequate IEP or otherwise -- may file a complaint with the state educational agency and request an impartial due process hearing before a hearing officer. Id. (citing 20 U.S.C. § 1415(b)(1)(E)); see also 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). The decision of an impartial hearing officer ("IHO") may be appealed to a state review officer ("SRO"), "after which any party still aggrieved may sue in either state or federal court." Id. (citing 20 U.S.C. § 1415(e)(2)).

It is well settled that parents pursuing an administrative challenge "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 Burlington, 471 U.S. at 370). Such reimbursement covers "'expenses that [the school district] should have paid all along.'" T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington, 471 U.S. at 370-71). Courts considering a reimbursement request for the cost of private special education services must consider (1) whether "the school district [has] fail[ed] to provide a FAPE"; (2) whether "the private school placement is appropriate"; and (3) whether the "equities" warrant a reimbursement award in full or in part. Forest Grove Sch. Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009); see also Frank G., 459

F.3d at 363-64. "Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate. . . ." Frank G., 459 F.3d at 364.

II.ADMINISTRATIVE PROCEEDINGS

In a letter to DOE dated September 8, 2008, Plaintiff requested an impartial hearing concerning a CSE's determination that her child was non-handicapped. (Pltf. R. 56.1 Stat. ¶ 36;*fn1 Parent Ex. A) Plaintiff's letter contended that (1) the CSE's decision that general education was appropriate for J.G. was incorrect; (2) the school district had failed to offer J.G. a FAPE; (3) the Landmark School, the private school chosen by the parent, was appropriate for J.G.; and (4) the parent was entitled to tuition reimbursement for the cost of J.G.'s education at the Landmark School for the 2008-09 school year. (Parent Ex. A)

The impartial hearing commenced on October 30, 2008, and concluded on December 10, 2008. (Transcript of Proceedings before Impartial Hearing Officer ("Tr.") at 1, 324; IHO Findings of Fact and Decision ("Dec.") at 2)

A.The Evidence at the Impartial Hearing

1.Development of J.G.'s IEP for 2008-09

At the time of the hearing before the IHO in the fall of 2008, J.G. -- who suffers from attention deficit hyperactivity disorder ("ADHD") -- was 17 years old. (Tr. 5, 33) Plaintiff has placed J.G. in private school since 2003. (Id. at 69) For every school year between 2003 and 2006, a CSE issued an IEP classifying J.G. as "other health impaired," and the school district reimbursed the parent for private school tuition. (Pltf. R. 56.1 Stat. ¶ 2; IHO Dec. 2; DOE Ex. 3 at 1, 4; Tr. 69) Beginning with the 2006-07 school year -- when J.G. entered tenth grade -- Plaintiff placed him at the Landmark School, a private, residential facility in Massachusetts. (Tr. 70-71; Parent Ex. W) DOE provided partial reimbursement for J.G.'s tuition at Landmark for the 2006-07 school year. (Tr. 71)

On June 30, 2007, a CSE issued an IEP classifying J.G. as "Other Health Impaired." (Parent Ex. D at 1) The CSE recommended a program of general education with special education support services and counseling twice a week. (Id. at 1, 9-11) Although the CSE considered placing J.G. in a special education class, it chose a general education setting because J.G. was "functioning at or close to grade level and [did] not require a fully modified curriculum." (Id. at 10) The CSE further found that J.G. could "be expected to derive benefit from instruction and interaction with non-disabled peers." (Id.) Plaintiff opted to place J.G. at Landmark for the 2007-08 school year, and DOE subsequently entered into a stipulation with Plaintiff in which it agreed to pay a portion of J.G.'s tuition at the Landmark School. (Pltf. R. 56.1 Stat. ¶ 3; Tr. 71)

On June 17, 2008, a CSE met to conduct its annual IEP review for J.G. in preparation for the 2008-09 school year. (Pltf. R. 56.1. Stat. ¶ 4; Parent Ex. O) Plaintiff did not appear at this meeting. (Pltf. R. 56.1. Resp. ¶ 7) A few minutes before the meeting began, a member of the CSE left a message on Plaintiff's cell phone stating that if the CSE did not hear from her in five minutes, the CSE meeting would proceed without her. (Tr. 75-76) Plaintiff did not receive the call, because she was inside a building where there was no cellular reception. (Id.) She did not retrieve the message until that evening. (Pltf. R. 56.1 ¶¶ 8, 9; Parent Ex. Q; Tr. 75-76) Accordingly, the CSE's annual IEP review went forward without Plaintiff's attendance or participation. (Pltf. R. 56.1 Stat. ¶ 10) Plaintiff later sent a letter to the CSE stating that ...


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