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S.H. On Behalf of Her Minor Child, W.H v. Eastchester Union Free School District

December 8, 2011

S.H. ON BEHALF OF HER MINOR CHILD, W.H., PLAINTIFF
v.
EASTCHESTER UNION FREE SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:

OPINION AND ORDER

I. Introduction

Plaintiff S.H., on behalf of her minor child, student W.H., brings this action against Defendant Eastchester Union Free School District ("the District") seeking relief under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Both parties have moved for summary judgment.

S.H. seeks reversal of the decision of the State Review Officer for the New York State Department of Education ("SRO"), who affirmed the Impartial Hearing Officer's ("IHO") determination that S.H. is not entitled to tuition reimbursement for the unilateral placement of W.H. at a private residential school for the 2008-09 academic year. For the reasons set forth below, the District's motion for summary judgment is granted and S.H.'s motion for summary judgment is denied.

II. Overview of Applicable Law

The IDEA mandates that a child with a disability receive a free appropriate education, including special education and related services, provided at the public expense, and in conformity with an Individualized Education Program ("IEP"). See 20 U.S.C. § 1400(d)(1)(A);

20 U.S.C. § 1401(9); M.P.G. ex rel. J.P. v. New York City Dep't of Educ., No. 08 Civ. 8051, 2010 WL 3398256, at *1 (S.D.N.Y. Aug. 27, 2010) (Griesa, J.). A school district provides a free appropriate education to a child with a disability when the child's educational program is tailored to meet that child's unique needs and is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). The school district must provide that educational program in the least restrictive environment. 20 U.S.C. § 1412(a)(5).

The central mechanism of the IDEA is the IEP, "an educational program tailored to provide appropriate educational benefits to individual disabled students." Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 377 (S.D.N.Y. 2006) (Conner, J.) (internal quotations omitted). Pursuant to the IDEA, a written 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., citing 20 U.S.C. § 1414(d)(4)(A)(i).

Parents who are dissatisfied with a school district's proposed program may unilaterally place their child in a private school and then seek retroactive tuition reimbursement from the local school district. See 20 U.S.C. 1412 (a)(10)(c); M.P.G., 2010 WL 3398256, at *2. The District is required to reimburse parents if all three factors of the Burlington-Carter test are met:

(1) the district's recommended educational program was inadequate or insufficient; (2) the program selected by the parents was appropriate; and (3) the equities support the parents' claim. M.P.G., 2010 WL 3398256, at *2 (citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985)); see also Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). In addressing the first factor, a court considers (1) whether the student's IEP was developed according to the IDEA's procedural requirements, and (2) whether the educational plan set forth in the IEP was reasonably calculated to confer educational benefit on the student. M.P.G., 2010 WL 3398256, at *2. If a court determines that the district's proposed IEP is appropriate, it need not address the second and third factors. Id.

Parents who are dissatisfied with the district's proposed IEP may contest it at an impartial due process hearing in front of an IHO. See 20 U.S.C. § 1415(f). The IHO's decision "may be appealed to the state educational agency., and the state educational agency's decision may in turn be appealed in either state or federal court.." Viola, 414 F. Supp. 2dat 377.

III. Facts*fn1

a. Background*fn2

W.H. was born in the Czech Republic on October 23, 1993, and was adopted there by S.H. when he was eighteen months old. (Plaintiff's Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 1, 4; Defendant's Rule 56.1 Statement ("Def.'s 56.1") ¶ 10.) W.H. was educated in the Czech Republic through third grade, at which time S.H. moved to Eastchester, New York with W.H. (Def.'s 56.1 ¶¶ 12-14.) When W.H. began attending school in the District in fourth grade, he displayed behavior indicating that he was struggling both emotionally and academically. (Pl.'s 56.1 ¶ 7.)

In December of 2003, W.H. began to see a private psychiatrist who prescribed medication for him. (Def.'s 56.1. ¶ 15; Pl.'s 56.1 ¶ 8.) W.H. continued to be educated within the District in fifth grade, and he continued to struggle academically. (Pl.'s 56.1 ¶ 11.) In March of 2005, during fifth grade, W.H. was hospitalized at Four Winds Hospital ("Four Winds"). (Def.'s 56.1 ¶ 17.) At Four Winds, a Psychodiagnostic Evaluation was performed. (Id. ¶ 18; Dist. Ex. 9.) The evaluation indicated that W.H. fell within the average range of intellectual functioning and within the low average range of selective attention; his command of rules and procedures of arithmetic was at the sixth-grade level; his spelling skills were at the second-grade level; and both reading and arithmetic skills were within the average range. (Def.'s 56.1 ¶ ¶ 19-21; Dist. Ex. 9.) The evaluation indicated that emotionally W.H. has "little ability to constructively process or adaptively express his feelings," and that he is "a psychologically immature individual with very limited coping resources, who is likely to react to even ordinary levels of psychological stress with symptoms including both impulsivity and emotional distress." (Def.'s 56.1 ¶ 22; Dist. Ex. 9 at 7.)

At the end of fifth grade, W.H. was referred to the District's Committee on Special Education ("CSE") and was found eligible for special education and related services with a classification of "emotional disability." (Pl.'s 56.1 ¶ 12; Def.'s 56.1 ¶ 27.)

In November of 2007, Westchester Jewish Community Services conducted a Forensic Mental Health Evaluation of W.H. (Def.'s 56.1 ¶ 31; Dist. Ex. 10.) The evaluator identified the following diagnoses: Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Learning Disorder Not Otherwise Specified ("NOS"), Impulse Control Disorder NOS, and Depressive Disorder NOS. (Def.'s 56.1 ¶ 35; Dist. Ex. 10 at 7.) The evaluator concluded that because of W.H.'s attachment difficulties, "placing [W.H.] in a residential facility would likely exacerbate his sense of loneliness and interpersonal ambivalence. As such, it is recommended that [W.H.] be placed under the supervision of the probation department." (Dist. Ex. 10 at 8).

W.H. began the 2007-08 school year (eighth grade) at the District's middle school, but sometime in the fall, the school and S.H. became aware that W.H. had threatened to stab the assistant principal. (Pl.'s 56.1 ¶ 23; Def.'s 56.1 ¶¶ 38, 40.) Thereafter, a state court removed W.H. from the middle school and placed him at Children's Village, a non-secure detention center, where he stayed for five weeks. (Pl.'s 56.1 ¶ 24; Def.'s 56.1 ¶ 41.) A Psychiatric Evaluation Report was prepared while he was at Children's Village. (Def.'s 56.1 ¶ 46; Dist. Ex. 12.) This evaluation recommended that W.H.'s probation be extended, that he should be supervised in the community rather than in a residential placement facility because the latter would only further W.H.'s feelings of estrangement and alienation, and that he should be placed in a highly structured academic environment such as a therapeutic support program. (Def.'s 56.1 ¶ 48; Dist. Ex. 12 at 4.)

After his discharge from Children's Village, W.H. was provided home tutoring by the District until the CSE could recommend and secure a placement for him. (Def.'s 56.1 ¶¶ 43, 45.) When the CSE met on January 25, 2008, it recommended that W.H. be placed at Southern Westchester Collaborative High School ("CHS"). (Dist. Ex. 26.) CHS is a Regents-track, full-day alternative high school and therapeutic support program for up to thirty-two classified and nonclassified students. (Def.'s 56.1 ¶ 50.) CHS is designed for students who have emotional and/or social disabilities that impact their academic performance in a regular high school environment. (Id. ¶ 55.) The core academic classes - science, English, math, and history - are all staffed by both a special education teacher and a teaching assistant. (Id. ¶ 57.)

On March 11, 2008, W.H. began attending CHS. (Def.'s 56.1 ¶ 51.) On March 14, 2008, the CSE convened to plan a program for the remainder of the 2007-08 school year. (Def.'s 56.1 ¶ 52; Mar. 14, 2008 IEP ("Dist. Ex. 3").) At this meeting, the CSE recommended continued placement at CHS, a special class program with a student-to-teacher ratio of 12:1 with related services of weekly individual counseling sessions, monthly psychiatric consultations, weekly group counseling sessions, and weekly math tutoring. (Def.'s 56.1 ¶ 53; Dist. Ex. 3 at 1.)

On June 20, 2008, prior to the conclusion of the 2007-08 school year, S.H. removed W.H. from CHS and placed him in the Anasazi Foundation ("Anasazi") wilderness program in Mesa, ...


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