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New York City Department of v. V.S.

July 29, 2011

NEW YORK CITY DEPARTMENT OF
EDUCATION, PLAINTIFF,
v.
V.S., A MINOR CHILD WITH A DISABILITY, AND D.S.,
HIS MOTHER AND GUARDIAN, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

The New York City Department of Education ("DOE" or "department") brings this action pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400, et seq. ("IDEIA"). The action concerns the obligations of the DOE stemming from the IDEIA's mandate to provide defendant V.S. with a free appropriate public education for the 2009-2010 school year. V.S., who has been diagnosed with autism, attended the Rebecca School, a private, for-profit school, during the 2008-2009 school year. In May 2009, the DOE developed an individualized education program ("IEP") for V.S., which provided for his placement in a special class for severely disabled children. The class was to be located in the building that houses PS 268, a general education school. According to D.S., V.S.'s mother, the IEP failed to offer a free appropriate public education. She therefore re-enrolled V.S. in the Rebecca School for the 2009-2010 school year and requested a hearing before an Impartial Hearing Officer ("IHO") to challenge the proposed IEP. On April 5, 2010, the IHO issued a Findings of Fact and Decision ("IHO decision"), in which she agreed with D.S. that the proposed IEP for the 2009-2010 school year did not provide V.S. with a free appropriate public education. The IHO concluded that the Rebecca School was a proper placement for V.S. and awarded D.S. a tuition reimbursement and prospective payment for the Rebecca School tuition. On May 5, 2010, the DOE appealed the IHO decision to a State Review Officer ("SRO"). In Appeal Decision No. 10-041, dated July 7, 2010 ("SRO decision"), the SRO concluded that the DOE would be liable for V.S.'s 2009-2010 tuition regardless of the appeal's outcome. He therefore declared the action moot and dismissed the DOE's appeal without ruling on the merits.

Both parties argue that the action is not moot. The DOE seeks a vacatur of the SRO's decision and a remand to the agency for a decision on the merits. In the alternative, it asks me to enter judgment on the merits in the DOE's favor. Defendants cross-move for a judgment affirming the IHO's determination on the merits. For the reasons stated below, I conclude that the present action is not moot. I decline to remand to the SRO and affirm the IHO's determination on the merits.

BACKGROUND

A. The Statutory Framework

The IDEIA -- the most recent reauthorization of the Individuals with Disabilities Education Act ("IDEA") -- provides federal funds to states that provide a free appropriate public education to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A). "The 'free appropriate public education' mandated by federal law must include '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.'" Walczak v.Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). Special education services are administered pursuant to an individualized education program, or "a written statement for each child with a disability," that sets out the child's educational performance and goals and the services that will be provided to enable the child to meet those goals. 20 U.S.C. § 1414(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 53(2005). The IEP is developed collaboratively by the child's parents, educators and representatives of the local education agency, among others. 20 U.S.C. § 1414(d)(1)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (citing Honig v. Doe, 484 U.S. 305, 311 (1988)). A new IEP must be implemented each year. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007).

The IDEIA "does not itself articulate any specific level of educational benefits that must be provided through an IEP," Walczak, 142 F.3d at 130, but the courts have developed standards to determine what the statute requires. To provide a FAPE, an IEP must "be sufficient to confer some educational benefit upon the handicapped child," but the statute does not require "the furnishing of every special service necessary to maximize each handicapped child's potential[.]" Rowley, 458 U.S. at 200, 199. "Rather, a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement." Cerra v. Pawling Cent. Sch. Dis., 427 F.3d 186 (2d Cir. 2005) (quotation marks omitted).

Although it does not explicitly set out substantive requirements, the IDEIA "provides a variety of 'procedural safeguards with respect to the provision of a free appropriate public education' by school districts." Mackey ex rel. Thomas M. v. Bd. of Educ, 386 F.3d 158, 160 (2d Cir. 2004) (quoting 20 U.S.C. § 1415(a)), supplemented, 112 F. App'x. 89 (2d Cir. 2004). "To meet these obligations and to implement its own policies regarding the education of disabled children, New York has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ('CSE'), the members of which are appointed by school boards or the trustees of school districts." Gagliardo, 489 F.3d at 107 (quotation marks and brackets omitted) (citing N.Y. Educ. Law § 4402(1)(b)(1)). A CSE developing a child's IEP is required to consider four factors: "(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Id. (citing N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(ww)(3)(i)).

Once an IEP is developed and proposed, a parent may challenge it before an IHO appointed by the local board of education. N.Y. Educ. Law § 4404(1); see also 20 U.S.C. § 1415(f) (setting forth requirements for impartial due process hearing and allowing state to determine whether hearing is conducted by state or local educational agency). Either the parent or the school board may appeal an adverse decision by the IHO to an SRO. N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g) (requiring availability of appeal to state educational agency if initial due process hearing is conducted by local educational agency). As required by the IDEIA, the SRO's decision may be challenged in either state or federal court. N.Y. Educ. Law § 4404(3); 20 U.S.C. § 1415(i)(2)(A).

In addition, a dissatisfied parent may unilaterally place her child in a private school and seek reimbursement from the state for the expense of educating the child privately. School Committee of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985); 20 U.S.C. § 1412(a)(10)(C). "In determining whether the parents are entitled to reimbursement, the Supreme Court has established a two part test: (1) was the IEP proposed by the school district inappropriate; (2) was the private placement appropriate to the child's needs." Gagliardo, 489 F.3d at 111-12 (citing Burlington, 471 U.S. at 370; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007)). A district court may also consider equitable factors in determining whether to order reimbursement for private placement. Id. at 112 (citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993)). A parent who determines that a proposed IEP is unsatisfactory and unilaterally places her child in private school usually "do[es] so at [her] own financial risk," as a parent generally cannot obtain reimbursement for a private school placement where the courts ultimately determine that the proposed IEP was appropriate. Burlington, 471 U.S. 374.

However, in some circumstances, parents are entitled to reimbursement for private school placement pending the outcome of a challenge regardless of an IEP's adequacy. The IDEIA's "stay put" provision, 20 U.S.C. § 1415(j), provides that during the pendency of any proceedings challenging the appropriateness of a proposed IEP, "unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child[.]" This provision aims to preserve public funding for an educational placement "consented to by the parent before the parent requested a due process hearing. To cut off public funds would amount to a unilateral change in placement, prohibited by the Act." Mackey, 386 F.3d at 163 (quoting Zvi D. v. Ambach, 649 F.2d 904, 906 (2d Cir. 1982)). Therefore, regardless of the merits of the parent's challenge to an IEP, id. at 161, a state must continue to fund the child's last agreed-upon placement unless and until a new placement is established, which occurs when (1) the parents and the state agree on a new placement, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); (2) an SRO decision "agrees with the parents that a change of placement is appropriate," Mackey, 386 F.3d at 163 (quoting 34 C.F.R. § 300.514(a), (c); 34 C.F.R. § 518(d)); (3) an administrative decision agreeing with either the parents or the state goes unappealed, 34 C.F.R. § 300.514(a); Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002); or (4) a court upholds a change in placement, Schutz, 290 F.3d at 484. Student X v. N.Y. City Dep't of Educ., No. 07-CV-2316 (NGG) (RER), 2008 WL 4890440, at *20 (E.D.N.Y. 2008).

B. Factual Background*fn1

1. The Proposed IEP

V.S., who was nine years old in the summer of 2009, is classified as autistic. His reading skills are at a first-grade level, and he has basic math skills. During the 2008-2009 school year, V.S. attended the Rebecca School pursuant to an unappealed IHO decision dated December 9, 2008, which found that D.S. was entitled to tuition reimbursement for her son's placement at the Rebecca School that year. (Tr. 6-9; SRO Dec'n 1 n.1.) On May 20, 2009, the DOE convened a CSE to develop an IEP for V.S. for the 2009-2010 school year. The team was comprised of D.S.; DOE District Representative and special education teacher Feng Ye; psychologist Rose Fochetta; the Rebecca School social worker; V.S.'s special education teacher at the Rebecca School, Carter Swope; a parent member*fn2 ; D.S.'s educational advocate; and a friend of D.S.

A neuropsychological evaluation of that had been conducted in July 2008 was available to the CSE. (School Dist. Ex. 3, ECF No. 11-4, at 21-24.) It reported that V.S. had poor motor skills, as well as "significant linguistic and social pragmatic difficulty . . . marked functional communication difficulty, and a poor attention span, as well as heightened level of frustration." His imitated language, "which reflects over-learned responses, is better than his more spontaneous production from the standpoint of both structure and length." The evaluator, Dr. Herman N. Davidovicz, who has a Ph.D in clinical neuropsychology, recommended that V.S. be placed "in a program designed specifically for youngsters on the Autistic spectrum," meaning "a very small, structured, and sheltered setting, with a small pupil to teacher ratio, and staff trained to work with youngsters on the Autistic spectrum." (Id.)

By letter dated June 8, 2009, the DOE provided D.S. with final notice of its IEP recommendation. It proposed a "special class," one composed entirely of students with disabilities, with a ratio of six students to one special education teacher to one paraprofessional (i.e., a 6:1:1 ratio, or a 3:2 student-to-adult ratio), with two hours weekly of occupational therapy, two and one-half hours weekly of speech and language therapy, and one and one-half hours weekly of physical therapy. Swope had instead recommended a class with a student-to-adult ratio of 2:1. The class offered in the IEP was in school P9 in District 75, which serves students with moderate to severe disabilities. P9 is comprised of seven special classes located on two floors of a building that otherwise houses a general education school, PS 268.

2. D.S.'s Rejection of the Proposed IEP and V.S.'s Unilateral

Placement On June 23, 2009, D.S. visited the recommended program. The following day, she wrote to the DOE to say that she was unsatisfied with the proposed placement. She explained her specific objections to the placement and stated that, because V.S. required year-round schooling and the 2009-2010 school year would begin for him on July 1, 2009, she would maintain him at the Rebecca School and seek tuition reimbursement unless the DOE proposed a new, appropriate placement for V.S. by then. D.S. received no response to her letter. (Tr. 444.)

Meanwhile, on May 12, 2009, D.S. had signed an enrollment contract with the Rebecca School for the 2009-2010 school year. (Parent's Ex. DD, ECF No. 11-3, at 11-12.) In two installments, on May 12 and June 9, D.S. paid a deposit of $8,000, of which all but $2,500 would be refunded if the DOE offered V.S. a satisfactory public school placement. (Tr. 434-35.) D.S. made a further payment of $15,725 on August 20. (Parent's Ex. FF, ECF No. 11-3, at 15-17.) D.S.'s income had not exceeded $26,000 in the previous two years. (Parent's Ex. CC, ECF No. 11-3, at 10; Tr. 445-47.) She receives $150 per week in child support, and pays $150 per week for two hours V.S. spends working with a special education teacher in an occupational therapy sensory gym each Saturday. (Tr. 450-51.) She does not seek reimbursement from the DOE for this expense.

3. The Initiation of Administrative Proceedings

On July 1, 2009, D.S. filed an impartial hearing request. She objected to the proposed IEP on both procedural and substantive grounds. Procedurally, D.S. complained that the CSE was improperly constituted, the goals and objectives set out in the IEP were not developed at the May 20, 2009 meeting, the proposed IEP was not timely made, and D.S. was deprived of a meaningful opportunity to participate in the placement process because the CSE did not recommend a specific placement at the May 20, 2009 meeting and because the CSE ignored D.S.'s expressed concerns about the proposed placement's inappropriateness. Substantively, D.S. objected that the goals and objectives in the proposed IEP did not reflect all of V.S.'s educational, social and emotional needs, the teaching methodology at P9 was inappropriate, the size of the school building in which P9 was located was inappropriate, and the classroom behavior management plan was inappropriate. (Letter Requesting Hearing, July 1, 2009, Tr. at Parent Ex. A1-A5.) On July 29, 2009, IHO Jean Marie Brescia issued an order directing the DOE to pay V.S.'s Rebecca School tuition during the pendency of the case.

4. The Administrative Hearing a. The Proposed Public School Placement

At the impartial hearing Janet Lee, the assistant principal of P9, testified that when a new student enters P9, he is evaluated and the curriculum is adapted to meet his needs. An appropriate classroom placement is decided by a team of classroom teachers, cluster teachers, related services providers, and sometimes the school nurse. The class that was recommended for V.S. contained five students, who were nine or ten years old, who were in third, fourth, and fifth grades, and whose functioning levels ranged from pre-kindergarten to first grade in reading and math. Beginning in the fall of 2009, V.S.'s class would have had six students whose math and reading levels ranged from pre-primer to grade 4.5. (Tr. School Dist. Ex. 8.)

Lee testified that Molly Bornstein would have been V.S.'s classroom teacher in July and August 2009, and that she would have been assisted by two classroom paraprofessionals and a one-to-one paraprofessional.*fn3 Both Lee and Bornstein testified that V.S. would have received a free appropriate education at P9, where the staff could help him achieve the goals set out in his IEP. However, Bornstein also testified that, while she personally ensures that the students in her class receive mandated services, "there are some times when students don't get their services perhaps." (Tr. 333.)

Borenstein is trained in the applied behavioral analysis methodology and the treatment and education of the autistic and related communication of handicapped children ("TEACCH") methodology, and she uses both methodologies in her classroom. Bornstein testified that she would have assessed V.S. when he entered her class, and that his academic functioning would have been in the middle of the other students in the class. In September 2009, Bornstein would have been replaced by Hannah Opsfeld. Bornstein testified that she did not speak to Opsfeld about the students in the class, because most of them would move to a different class, and ...


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