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S.F. and Y.D., Individually and Collectively and On Behalf of G.F.D v. the New York City Department of Education

November 9, 2011

S.F. AND Y.D., INDIVIDUALLY AND COLLECTIVELY AND ON BEHALF OF G.F.D.,
PLAINTIFFS,
v.
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
DEFENDANT.



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

OPINION AND ORDER

Plaintiffs S.F. and Y.D., on behalf of their minor child G.F.D. (the "Student"), bring this action pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "IDEA").*fn1 Plaintiffs seek review of the October 25, 2010 administrative decision of State Review Officer Robert G. Bentley (the "SRO") annulling the August 16, 2010 decision of Impartial Hearing Officer Martin Schiff, Esq. (the "IHO") and vacating the IHO's award of tuition payment and reimbursement for the Student's attendance at a private school during the 2009-2010 school year (the "SRO Decision"). Plaintiffs moved for summary judgment on May 31, 2011, seeking an order reversing the SRO Decision and reinstating the IHO's award of tuition payment and reimbursement. The defendant, The New York City Department of Education ("DOE"), cross-moved for summary judgment on July 1, seeking an order upholding the SRO Decision and dismissing the plaintiffs' complaint. For the reasons set forth below, the DOE's motion for summary judgment is granted and the plaintiffs' motion for summary judgment is denied.

STATUTORY BACKGROUND

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); see also Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491-92 (2009) (discussing the purposes of the IDEA); Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523 (2007) (same). States receiving federal funding under the IDEA are required to make a free appropriate public education ("FAPE") available to all children with disabilities residing in the state. 20 U.S.C. § 1412(a)(1)(A). To this end, the IDEA requires that public schools create for each student covered by the Act an individualized education program ("IEP") for the student's education at least annually. 20 U.S.C. § 1414(d)(2)(A); see also Honig v. Doe, 484 U.S. 305, 311 (1988) ("[T]he IEP sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives."); D.D. ex rel. V.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 507 (2d Cir. 2006) (describing the IEP as "[t]he centerpiece of the IDEA's educational delivery system" (citation omitted)).

In New York City, the DOE is charged with providing a FAPE to all students with disabilities between the ages of 3 and 21 who reside in the City, and to develop the IEP for these students by convening local Committees on Special Education ("CSEs"). N.Y. Educ. L. § 4402. "In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007). The IEP must provide "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." Id. at 107 (citation omitted). "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." T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (citation omitted).

The IDEA requires that parents be provided an opportunity to present a complaint with respect to the identification, evaluation, or placement of their child through the IEP process.

20 U.S.C. § 1415(b)(6)(A). Where the parents believe that the school district has not adequately responded to their complaints, the IDEA requires that they be given an opportunity to pursue their grievances through an "impartial due process hearing." Id. § 1415(f)(1)(A). In New York, these hearings are conducted by an IHO, and parties aggrieved by the IHO's decision may appeal to the SRO. See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1) (permitting "any party aggrieved by the findings and decision rendered [by the hearing officer] [to] appeal such findings and decision to the State educational agency"). The IDEA further provides that the final administrative decision may be reviewed "in a district court of the United States" by "bring[ing] a civil action with respect to the complaint." 20 U.S.C. § 1415(i)(2)(A). The district court is empowered to "receive the records of the administrative proceedings," to "hear additional evidence," and to "grant such relief as the court determines is appropriate" based on "the preponderance of the evidence" before it. Id. § 1415(i)(2)(C); see also Forest Grove, 129 S. Ct. at 2492 (noting that the IDEA "gives courts broad authority to grant 'appropriate' relief"). The IDEA specifically contemplates that "when a public school fails to provide a FAPE and a child's parents place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the parents for the cost of the private education." Forest Grove, 129 S. Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).

FACTUAL BACKGROUND

The following facts are taken from the parties' Local Rule 56.1 statements, as supported by the administrative record, and are undisputed unless otherwise indicated.*fn2

I. The Plaintiffs

Plaintiffs S.F. and Y.D. (collectively, the "Parents") are the mother and father, respectively, of the Student. The Student was born on August 14, 1996. The Student attended public school for kindergarten, first and second grade. Since the third grade, and including the 2009-2010 school year which is at issue in this case, the Student has attended the Mary McDowell Center for Learning, a private school that has since changed its name to Mary McDowell Friends School ("MMFS").

During the 2009-10 school year, the Student was a thirteen-year-old in eighth grade at MMFS. The Student is classified as a "child with a disability" as that term is defined under the IDEA.

II. The CSE Meeting and the Student's IEP

On February 24, 2009, a CSE was convened to create an IEP for the Student for the 2009-2010 school year. The CSE consisted of Ann Parise ("Parise"), as the general education teacher; the Parents; Shirley Piccola, a school psychologist; a parent member; and Soo Feingold ("Feingold"), the Student's homeroom teacher at MMFS, as the special education teacher. Parise, although certified as a general education teacher, has not taught in a general education classroom since the late 1980s. Feingold participated in the CSE meeting by telephone for approximately twenty minutes, after which, Y.D. testified, she asked if the CSE needed anything further from her and was told that they did not. She then hung up the telephone.

At the meeting, the CSE considered placing the Student in a Collaborative Team Teaching ("CTT") class,*fn3 but rejected that possibility because the Student might feel overwhelmed in such a large class. The CSE also considered a class environment with a 12:1 or 12:1:1 ratio of students to teachers. The 12:1:1 classroom includes one teacher and one paraprofessional in a class of no more than twelve students. The input of Feingold and the Parents, led the team to conclude that a 12:1:1 classroom would be more beneficial, as the Student would benefit from the presence of the additional adult in the classroom, someone who could provide prompts, redirection, check-ins, and additional support throughout the day.

As the CSE meeting was an annual review, no new testing was conducted. The team did review a teacher report from the Student's teachers at MMFS ("MMFS Report"), which includes, inter alia, a narrative description of the Student's academic progress in the classroom, tabular evaluations of her academic and social-emotional functional levels, and standardized test results in reading and mathematics. The MMFS Report included a lengthy narrative about the Student's academic and social progress in each of her classes at MMFS. Among other things, the MMFS Report indicated that the Student was actively engaged in class and requested assistance from teachers when needed.

In addition, Feingold provided the CSE with the Student's academic levels and described her academic and social/emotional functioning strengths and weaknesses. According to Feingold, the Student was functioning at a mid-sixth grade level in decoding and spelling, a high-fifth grade level in reading comprehension and writing, a mid-fifth grade level in computation, and a fourth grade level in problem solving. Feingold informed the team that the Student was having a great year socially, and that she was respectful and compliant with school rules.

The IEP reflects this information and contains an assessment of the Student's levels of academic performance and learning characteristics. A narrative assessment of the Student's performance reflects that her reading skills were progressing, literal comprehension skills were strong, and math skills were improving. The narrative assessment also reflected that the Student struggled with problem-solving, that she sometimes rushed through computations, leading to careless errors, and that she was resistant to editing her work. The IEP also contains a tabular assessment of the Student's instructional grade-level in the areas of decoding, reading comprehension, writing, computation, problem solving, and spelling. The assessment reflects that the Student's instructional levels ranged from fourth grade to the middle of sixth grade.

The CSE determined that the Student would benefit from certain academic management strategies and tools: an FM unit;*fn4 graphic organizers; visual aids; review and repetition of learned skills; repetition and/or re-wording of directions; and teacher redirection. The FM unit was recommended based upon the Student's auditory processing deficit with the intent of allowing her to screen out extraneous noise and improve her focus. The IEP also recommended various additional services, including thrice weekly thirty-minute speech-language therapy sessions in a group of three, one weekly thirty-minute individual occupational therapy session, and one weekly thirty-minute counseling session in a group of three.

The IEP also noted the Student's "social emotional performance." It states that socially, [Student] is having a 'great year' according to her teacher. One of her goals this year is to make some new friends, and she has been able to do so. [Student] is described as 'respectful' towards adults in school. She is also compliant with school rules. [The Student's] parents report she is involved in extra-curricular activities such as sports, music lessons and dance.

Finally, the IEP lists a series of annual goals in various areas. These are decoding, reading comprehension, writing, computation, math word problems, auditory processing, pragmatic language skills, graphomotor skills and counseling.

A copy of the IEP was not provided to the Parents at the CSE meeting. Parise testified, and there is no testimony to the contrary, that although the IEP was drafted by hand at the meeting based on the goals discussed at that time, Parise typed up the formal, finalized pages of the IEP containing the goals after the meeting. A copy of the IEP was mailed to the Parents on April 16, 2009. The IEP did not, itself, contain a recommendation for a specific school for the Student. Upon receiving the IEP, the Parents, who had counsel they had previously retained in connection with the Student's IEPs in previous years, "pass[ed] [the IEP] on to [their] attorneys." The 2009-2010 school year started on September 9, 2009.

III. The Placement Classroom

A Final Notice of Recommendation ("FNR"), dated August 13, 2009, was mailed to the plaintiffs offering a placement for the Student in a 12:1:1 class at M.S. 002 (the "Placement Classroom"). The plaintiffs were on vacation during the month of August, so did not receive the FNR until their return in September. Counsel for the plaintiffs sent a letter dated August 24, 2009 to Deborah Jackson, Chairperson of CSE Region 8. The letter indicated that the Parents had decided to unilaterally place the Student at MMFS for the 2009-2010 school year. The letter stated that "as of the date that this notice is being filed the parent has not been offered a specific placement." The letter also indicated the Parents' intent to seek tuition reimbursement from the DOE.

The Placement Classroom was an eighth-grade class at M.S. 002 taught by Adewale Ogungbemi ("Ogungbemi"), designated a 12:1:1 classroom. The Placement Classroom had ten students; eight of the students were classified as learning disabled, one as other health impaired, and one as emotionally disturbed. Ogungbemi has a master's degree in special education and is a certified special education teacher. Ogungbemi had been teaching at M.S. 002 for four years at the time of the hearing; prior to arriving at M.S. 002, he taught at M.S. 246. The classroom paraprofessional has a master's degree in economics and had worked at M.S. 002 for five years. An additional "health paraprofessional" with a bachelor's degree in education and eleven years of experience was assigned to a particular student. But this health paraprofessional also works occasionally with the other students in the class, providing academic or social assistance.

The reading, writing, and listening comprehension levels of the students in the Placement Classroom ranged from third grade to seventh grade. For reading, three students were at a seventh-grade level, two were at a third-grade level, and the other students ranged from a fourth to a sixth-grade level. For math, four students were at a seventh-grade level, two were at a third-grade level, and the others students ranged from a fourth to a sixth-grade level.

The Placement Classroom uses a multisensory program for decoding and the Teacher's College model for reading and writing. The school has a math coach who works closely with the teachers to provide differentiation strategies. Burnett testified that the adults of the Placement Classroom differentiate instruction by content, product, and process, assess students' interest and ability, and develop activities and assignments that assist each student to move as close to grade level as possible. Burnett, the special education teachers at M.S. 002, the math coach, and the assistant principal have a common planning period each Monday to review the students' work, share strategies, and discuss how to move the students closer to grade level.

M.S. 002 has one full-time and one part-time speech provider. There is a speech room, and speech therapy is provided on a push-in and pull-out basis. The school has an occupational therapist four days per week, and a full-time counselor who sees all mandated and at-risk students. The school would have been able to provide all of the mandated related services on the Student's IEP.

The Parents did not contact M.S. 002 until November 2009 and S.F. visited the school in early December. During the visit, Arlene Burnett ("Burnett"), the special needs coordinator for M.S. 002, took S.F. on a tour of the school and past the Placement Classroom. S.F. asked to sit in on the Placement Classroom while it was in session, but the principal, Ms. Spencer, told Burnett that the school would not be able to accommodate a sit-in visit.

IV. The Student's Placement at MMFS for the 2009-2010 School Year

On February 6, 2009, before the CSE meeting, the Parents signed a contract with MMFS to enroll the Student at that school for the 2009-2010 school year (the "MMFS Contract"). The Parents did not mention the MMFS Contract to anyone at the CSE meeting.

The tuition at MMFS for that year was $41,000. The MMFS Contract required the Parents to pay a non-refundable deposit to MMFS in the amount of $6,500 on or before February 6, 2009. The MMFS Contract also required the Parents to pay 60 percent of the full tuition amount -- $20,760 -- by July 1, 2009, but they paid this amount on September 3, 2009. The Parents paid an additional $8,000 on January 5, 2010. The MMFS Contract included a program, in which the Parents enrolled, which permitted them to pay an extra ...


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