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D.D-S., Individually and As Parent and Next Friend To B.D-S., A Child v. Southold Union Free

September 2, 2011

D.D-S., INDIVIDUALLY AND AS PARENT AND NEXT FRIEND TO B.D-S., A CHILD WITH A DISABILITY, PLAINTIFF,
v.
SOUTHOLD UNION FREE SCHOOL DISTRICT, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff D.D-S., individually and as parent and next friend to B.D-S., a child with a disability, commenced the instant action pursuant to the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Specifically, Plaintiff challenges the October 8, 2009 decision of the New York State Review Officer ("SRO") denying her request to be reimbursed for her daughter's tuition costs at the Landmark School ("Landmark") for the 2007-2008 and 2008-2009 school years and to receive compensatory educational services based on Defendant Southold Union Free School District's ("Defendant," "District," or "Southold") refusal to offer extended school year services ("ESY") during the summer of 2008.

Pending before the Court is Plaintiff's motion for summary judgment in which she asks the Court to vacate the decision and order of the SRO and award tuition reimbursement for the 2007-2008 and 2008-2009 school years as well as additional services for failure to offer an ESY program for summer 2008. Also pending is Defendant's cross-motion for summary judgment.

For the following reasons, the Court affirms the decision of the SRO. As such, Plaintiff's motion for summary judgment is DENIED, and Defendant's cross-motion for summary judgment is GRANTED.

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] . . . to ensure that the rights of children with disabilities and parents of such children are protected.'" Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006) (alteration in original) (quoting 20 U.S.C. § 1400(d)(1)). "Under the IDEA, states receiving federal funds are required to provide 'all children with disabilities' a 'free appropriate public education.'" Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A); Bd. of Educ. v. Rowley, 458 U.S. 176, 180-81, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)).

"The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written [individualized education program ("IEP")]." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation omitted). "In New York, local committees on special education ("CSEs") are responsible for determining whether a child should be classified as eligible for educational services under the IDEA and, if so, for developing an appropriate IEP for that child." S.H. v. N.Y. City Dep't of Educ., No. 09-CV-6072, 2011 WL 609885, at *1 (S.D.N.Y. Feb. 18, 2011) (citing Walczak, 142 F.3d at 123).

"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. at *1 (citing Walczak, 142 F.3d at 123). The impartial hearing officer's ("IHO") decision may be appealed to an SRO, see 20 U.S.C. § 1415(g), "after which any party still aggrieved may sue in either state or federal court," Walczak, 142 F.3d at 122; accord 20 U.S.C. § 1415(i)(2); S.H., 2011 WL 609885, at *1.

II. Factual Background*fn1

B.D-S., a child with "a long-standing history of developmental and learning problems"*fn2 (Pl. Ex. P-D(1), at 1), received a public education in the District's schools up through and including sixth grade (Tr. 37-38; Cuddy Aff. ¶ 22). During the summer of 2006, B.D-S. attended a program at Landmark at the District's expense.*fn3 D.D-S. then unilaterally placed B.D-S. at Landmark for the 2006-2007 school year and sought reimbursement from the District.*fn4

Landmark is a private school located in Prides Crossing, Massachusetts, for children grades 3-12 that have average or above-average IQs and are diagnosed with a language-based learning disability. (Tr. 579-81.) The school offers residential and day programs. (Tr. 582.) The residential program is only available for grades 9-12, although many eighth grade students dorm at the high school. (Tr. 582, 606.) There are approximately 300 students in the high school program, with the majority enrolled as residential students. (Tr. 579.) Residential students' schedules are managed from the moment they wake up to the moment they go to bed. (Tr. 583-84, 689-90.) The average class size is very small, ranging from 5-8 students, and most students receive at least some 1:1 training or tutorial. Landmark's focus is on remediation, not accommodation; however, the ultimate goal is not necessarily to get a student back in the public school system. (Tr. 579, 609-10.)

A. Development of 2007-2008 IEP

On June 15, 2007, the CSE convened to conduct B.D-S.'s annual review and to develop her IEP for the 2007-2008 school year. (Cuddy Aff. ¶ 29; Fine Aff. ¶ 39; Pl. Ex. P-B(6), at 1.) In attendance from Southold were Ginny Thompson, CSE Director; the school psychologist; Southold's special education teachers and an additional parent member. (Pl. Ex. H, at 1.) In attendance from Landmark were Karl Pulkinnen, the public-school liaison, B.D-S.'s case manager, and five of her teachers: Jennifer Carr, Scott Harlan, Julia Littlefield, Richard Mangano, and Lisa Nichols. (Id.) D.D-S., B.D-S. and four of their family friends also attended the meeting. (Id.) Before it began, Landmark provided the District with a Student Report, dated January 12, 2007, which included progress reports prepared by B.D-S.'s Landmark teachers during the 2006-2007 year (Def. Ex. D-7; Tr. 279-80), as well as a draft IEP, results of tests that Landmark administered, and samples of work B.D-S. completed while at Landmark (Def. Exs. 11-13; Tr. 281-84).

At the meeting, the CSE performed a "page by page" review of Landmark's draft IEP. After hearing brief statements from D.D-S. and B.D-S. regarding their concerns for the upcoming school year, the CSE reviewed and discussed B.D-S.'s strengths, interests, personal attributes and accomplishments listed on the draft IEP, making minor additions and changes to the draft along the way. (Pl. Ex. P-H, at 3-6.) The representatives from the District, although present, did not contribute at all to the discussion. The CSE then reviewed B.D-S.'s academic test scores, which reflected improvement in "word identification, work attack, reading rate, reading accuracy, passage fluency, spelling, reading vocabulary, reading comprehension, mathematics problem solving, and mathematics procedures." Application of a Child With a Disability, Appeal No. 09-088, at 3 (citing Pl. Ex. P-H, at 6-9; Def. Ex. 11, at 3). No one from the District had any questions, but Ms. Thompson commented that they were "solid scores," and that B.D-S. had made "tremendous progress." (Pl. Ex. P-H, at 8.) B.D-S.'s Landmark teachers then presented her current performance level in each of their respective courses, and the CSE discussed each of the suggested annual goals and benchmarks as set out in the draft IEP. (Tr. 791-94; Def. Ex. D-11, at 3-9; Pl. Ex. P-H, at 10-32.) Again, no one from the District had any questions or contributed anything to the discussion. (Tr. 793; Pl. Ex. P-H.)*fn5 On the other hand, D.D-S. and B.D-S. both contributed significantly to the discussions by asking questions and providing feedback. (See generally Pl. Ex. P-H.) Mr. Pulkinnen then described how Landmark would implement services and programs to address B.D-S.'s needs and goals. (Id. at 32-33.)

Ms. Thompson responded with the CSE's recommendation: "a return to district." (Id. at 33.) She proposed that B.D-S. be placed in "inclusion" classes--classes comprised of approximately 20-23 students, no more than a third of whom would be special education students, with a regular education teacher and a special education teacher in the room at all times. (Id.)

Ms. Thompson's proposal also included a daily 1:1 reading tutorial and daily resource room, in addition to use of Kurtzweil software on a laptop computer and the Read Naturally program. (Id. at 33-34.) Although the District recommended a different setting, the goals in the final IEP would mirror the goals in Landmark's draft. (Id. at 34.)

Finally, Ms. Thompson stated that "it's extremely important that [B.D-S.] be exposed to the traditional school setting," and "her scores do not support anything other than the public school as the least restrictive environment." (Id. at 33-34.) D.D-S. objected, at length, expressing disagreement with the District's decision to recommend placement at Southold. (Id. at 33-41.)

The CSE then briefly discussed B.D-S.'s eligibility for ESY, and the District concluded that her test scores made her ineligible. (Id. at 42-48.)

The content of the final IEP reflected what was discussed at the meeting: enrollment in inclusion classes with daily resource room, 1:1 reading tutorial, use of a graphic organizer and the "Inspiration Software" computer program, modified homework assignments and testing conditions, use of an auditory enhancer ("FM" unit or system), and use of a laptop with Kurzweil and Read Naturally software. (Pl. Ex. P-B(6), at 1-2, 6.)

On July 2, 2007, the District forwarded a copy of the updated and final IEP for the 2007-2008 school year to D.D-S. with a consent form for her to send back indicating whether or not she agreed with the District's recommendations. (Def. Ex. D-16.) D.D-S. met with the District on July 16, 2007*fn6 and expressed concern regarding the content of the IEP stating that she did not believe that it "exactly reflect[ed] the meeting." Application of a Child With a Disability, Appeal No. 09-088, at 6 (quoting Pl. Ex. P-RR). In response, the District agreed to secure and fund updated neuropsychological and auditory and language processing evaluations and to reconvene at a later date to discuss what had been allegedly "left out" of the IEP. Id.

B. Updated Evaluations

B.D-S. was evaluated by neuropsychologist Dr. Herman Davidovicz on August 8-9, 2007. He found that B.D-S.'s general abilities, according to one test, were in the bright-normal range in the 90th percentile. (Pl. Ex. P-D(1), at 3.) However, she did demonstrate difficulty with working memory, organization, planning skills, and reading rate. (Id. at 3-5.) He recommended (i) extended time for homework and testing; (ii) assistive technology in the form of a scanner/reader; (iii) direct academic instruction in math; (iv) a personal FM system; and (v) in larger settings, to work more closely with teachers. (Id. at 6-7.) He did not recommend that B.D-S. be educated in a residential setting or believe that a residential placement was necessary for her to progress. (Tr. 1294-95.)*fn7

On August 8, 2007, B.D-S. was also evaluated by speech-language pathologist Dr. Donna Geffner. (Pl. Ex. P-D.) Dr. Geffner concluded that B.D-S. has an auditory processing disorder that contributes to her language-based learning disability. (Id. at 7.) She stated that B.D-S. "will continue to struggle with clarity of the message, especially in a noisy environment, with short-term memory and word retrieval problems." (Id. at 8.) She recommended (i) continued placement at Landmark; (ii) preferential seating; (iii) testing accommodations; (iv) assistance with note taking and study guides; (v) use of a personal FM unit; (vi) speech-language therapy two times per week; (vii) ESY services; (viii) a multisensory reading program; and (ix) support services for writing. (Id. at 9.)

C. Continued Enrollment at Landmark

On August 17, 2007, D.D-S. notified the District that B.D-S. would be attending Landmark for the 2007-2008 school year because she believed that the District failed to offer her FAPE. (Pl. Ex. P-G(64).) Although B.D-S. was in the eighth grade, she was residing and taking classes in the high school. (Tr. 606.) Her classes included a language arts tutorial, Language Arts, Algebra I,*fn8 Marine Science, US History I, Reading Literature and Chorus and her grades for the first quarter ranged from B to A. (Def. Ex. D-33.)

D. CSE Review of Updated Evaluations

D.D-S. wrote to the District on October 16 and 24, 2007 requesting an additional CSE meeting to discuss the updated evaluations. (Pl. Exs. P-C(32), P-C(33).) The CSE reconvened on December 12, 2007 to review the updated evaluations and to discuss ESY services for summer 2008. (Pl. Ex. P-N.) In addition to D.D-S. and B.D-S., there were again representatives from both the District and Landmark. And both Dr. Davidovicz and Dr. Geffner participated by phone. (Id. at 1) They were unable to finish the meeting in the time allotted, so they reconvened on January 15, 2008. (Pl. Ex. P-N(1).) The CSE heard from both doctors as well as B.D-S. and her teachers at Landmark. (Pl. Exs. P-N, P-N(1).)

They also discussed ESY. Ms. Cashman, B.D-S.'s Reading Literature teacher noted that it often takes her a "few days to get back in the swing of things . . . back into the routine and into the structure" after a break. (Pl. Ex. P-N(1), at 15.) However, the CSE chairman, Bruce Kollmar, stated that "there has been nothing brought forth that shows that . . . [B.D-S.] has a problem with regression . . . that is any different than the last time." (Id. at 26.) But, again, because of time constraints, they were unable to finish the session.

E. Return to Southold

On Friday, March 14, 2008, D.D-S. wrote a letter to the District stating that because their "family [was] financially strapped, [B.D-S.] [would] be attending Southold Junior High on Monday, March 17." (Pl. Ex. P-G(47).) D.D-S. noted her expectation that B.D-S.'s IEP would be "fully implemented." (Id.) Ms. Thompson created a class schedule for B.D-S. that afternoon based on the June 15, 2007 IEP; however, under such short notice, she was unable to arrange for 1:1 tutorial, an up-and-running FM system, and an inclusion Science class by Monday morning. (Tr. 293-96; Pl. Ex. P-G(48).) During the following week, she ordered the FM unit which she anticipated would be installed within one-to-two weeks, received board approval for a 1:1 tutorial, and ...


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