The opinion of the court was delivered by: Seibel, J.
Before the Court are Defendant's Motion for Summary Judgment, (Doc. 8), and Plaintiffs' Cross-Motion for Summary Judgment, (Doc. 13). Plaintiff M.R. ("MR") brings this action on behalf of her minor son Plaintiff S.T. ("ST") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Article 89 of the New York State Education Law, N.Y. Educ. Law §§ 4401--4410-b, against Defendant South Orangetown Central School District ("the district"). Plaintiffs seek review of an administrative decision by a State Review Officer ("SRO") at the New York State Education Department ("SED") upholding the administrative decision of an Impartial Hearing Officer ("IHO"). The IHO held that (1) ST's classification as other health impaired ("OHI"), rather than autistic, was appropriate; (2) the district provided ST with a free, appropriate public education ("FAPE") for the 2007--08 school year; (3) the district did not provide ST with a FAPE for the 2008--09 school year; and (4) despite the failure of the district in the 2008--09 school year, Plaintiffs were not entitled to an equitable remedy, such as compensatory services, because MR defeated the district's ability to properly accommodate ST. (See generally IHO Decision.)*fn1 The SRO agreed with the IHO on all four issues, but held that Plaintiffs were not entitled to the equitable remedy they sought for different reasons-namely, that they had failed to timely request such relief and the record did not reflect a deprivation of educational services that could be remedied by a compensatory education award. (See generally SRO Decision.)*fn2
Plaintiffs seek an order reversing the SRO decision and providing an equitable remedy to compensate ST for deprivation of instruction. Defendant seeks an order upholding the SRO decision and dismissing Plaintiffs' complaint. For the reasons set forth below, the Court grants Defendant's Motion for Summary Judgment and denies Plaintiffs' Cross-Motion for Summary Judgment.
The following facts are undisputed except where noted.
ST is a child with a host of physical, mental, and emotional maladies, including "a learning disability, a seizure disorder, possible bipolar disorder, anxiety issues, attentional and working memory deficits, processing speed deficits, sensory motor deficits, impaired stamina and low frustration tolerance," as well as Asperger's Syndrome, a subcategory of autism. (D's 56.1 ¶ 5.)*fn3 In June 2003, when ST was in fourth grade, the district classified him as a student with a learning disability, and has provided him educational supports since that time. (Id. ¶¶ 2--3.) ST's classification remained unchanged until June 2008 when the district changed it to OHI. (Id. ¶ 3.)
As ST was aging into middle school, he was placed in the district's Keys for Educational Achievement ("KEA") program, which is located in the district's middle school. (Id. ¶ 6.) KEA is designed to accommodate students who are not succeeding in the normal channels of the district's programs by providing a ratio of twelve students to one teacher and one teaching assistant (12:1:1). (Id. ¶ 7.) The intent of KEA is to provide supports, specifically for reading and math, to such students so that after sixth and seventh grades, they may transition to 15:1 special class programs for eighth grade that prepare them for integrated and 15:1 special classes at the district's high school. (Id. ¶ 8.) Plaintiffs contend that this "one-size-fits-all design was not specifically designed to meet S.T.'s needs, and failed to do so." (Ps' 56.1 ¶ 8.)*fn4 For students who would not be successful in the 15:1 program in eighth grade, the district generally locates out-of-district placements, as there is no KEA-like program in the high school. (D's 56.1 ¶ 10.)
KEA students are reviewed yearly by the Committee on Special Education ("CSE") to determine their progress. At ST's April, 24, 2006 annual review, when he was in sixth grade, the CSE determined, with resistance from MR, that ST was doing well enough to introduce him to a 15:1 special class for math. (D's 56.1 ¶ 11; Ps' 56.1 ¶ 11.) At a June 14, 2006 meeting, however, the CSE placed him back in the KEA-supported math class. (D's 56.1 ¶ 11.)
At a June 20, 2007 CSE meeting, ST's KEA teacher reported that he had passed all seventh grade subjects and that, in her view, he was ready for the eighth grade component of the KEA model, which would help determine whether ST could be successful in mainstream high school classes or if an out-of-district placement would be necessary. (Id. ¶ 12.) At this meeting, MR requested, for the first time since a Fall 2005 Asperger's diagnosis, that ST's classification be changed from learning disabled to a student with autism, and that the CSE place ST in the therapeutic support program ("TSP") in the district or look for an out-of-district placement. (Id. ¶¶ 13, 15.) MR did not, however, provide documentation to the CSE to support her request for reclassification. (Id. ¶ 17.) Furthermore, MR's request was in tension with reviews of a specialist, with whom MR consulted, who opined that an IDEA classification of OHI with a notation of Asperger's was more appropriate than an autism classification. (Id.) Ultimately, the CSE: (1) recommended an eighth grade program comprised of 15:1:1 special class support in math, science, and social studies; (2) supplied ST with 1.5 hours per day of KEA support, counseling, occupational therapy, program modifications, and testing accommodations; and (3) made a determination, because it lacked the requisite documentation, that a reclassification to autism was inappropriate. (Id. ¶ 18.)
ST's eighth grade year proved to be very difficult for him, and the district recommended, consistent with MR's previous request, that it look for an out-of-district placement for ST. (Id. ¶ 19.) MR signed consent forms to release ST's records to out-of-district placements on December 3, 2007, (id. ¶ 20), but revoked her consent within the hour in order to get more information, (Ps' 56.1 ¶ 20). After several attempts to schedule a meeting with the district concerning out-of-district placements, a meeting occurred on December 19, 2007. (D's 56.1 ¶¶ 22--23.) At the meeting, MR read a letter to the district's representatives that stated that she would only provide consent to potential out-of-district placements if changes-including a reclassification to autistic-were made to ST's 2007--08 Individualized Education Program ("IEP"). (Id. ¶¶ 24-- 25.) The district clarified that it did not need MR's consent to send out-of-district placement packets, but that it desired to have the search process be collaborative. (Id. ¶ 26.) Although no agreement was reached at the meeting as to where the out-of-district placement packets would be sent, (id.), the district nonetheless sent them to certain potential placements that had previously been identified to MR. (Id. ¶ 29.)
As is customary for out-of-district placements, MR was contacted by the Board of Cooperative Educational Services ("BOCES") and advised that she would have to produce ST for intake at each of the potential placements. (See id. ¶ 30.) The district sent follow-up letters to MR on January 29, 2008, and February 19, 2008, in which it enclosed information regarding the potential programs that had previously been forwarded to MR on December 4, 2007. (Id. ¶¶ 32, 35.) The district reminded MR that ST had to be present for intake for an out-of-district placement to be made. (Id. ¶¶ 32, 35.) MR had to cancel some scheduled meetings with certain placements because of problems at work and because her other son got sick. (See id. ¶¶ 36--42.) Although MR visited two programs in February and March, she did so without ST, and did not take ST to participate in a "full intake" until June 2008, when she brought him to the West Nyack Rockland BOCES program, the Learning Center at Walden at Putnam/Northern Westchester BOCES, and the Karafin School. (See id. ¶¶ 30, 44.)*fn5 MR agreed that ST's presence was necessary for intake purposes, but believed that it was unnecessary for him to attend intake at programs she thought were inappropriate, and she was unwilling to take ST out of school to visit a program that was not a good fit. (Ps' 56.1 ¶¶ 31, 44, 45.) To MR's mind, the district never identified an appropriate placement, did not vet programs before sending out applications, and thus only demanded that she visit placements that did not meet ST's needs. (Id. ¶ 45.)
Unbeknownst to the district, MR sent out-of-district placement materials to the Forum School, an out-of-state private school, which on April 28, 2008 notified her that ST was accepted for immediate placement for the remainder of the 2007--08 school year. (D's 56.1 ¶ 46.) By e-mail on April 30, 2008, MR advised the district that she had "ruled out" the "only two programs" recommended by it, that the Forum School was an appropriate placement, and that the district should forward ST's records there. (Id. ¶ 48.) In a May 20, 2008 letter, the district notified MR that it was required to pursue all New York placements before it looked into out-of-state programs for ST. (Parent's Exhibit 49 at 1.) If the district could not find an appropriate program in the state, it "would then have to show such documentation to NYSED and they would then provide [the district] with the necessary approval to pursue out of state programs such as The Forum School." (Id.) MR informed the district over the summer that ST had already been accepted at the Forum School, after which the district applied on ST's behalf for the 2008--09 school year, but ST was then rejected by the Forum School because he was inappropriate for one program, and another, which fit his needs, was full. (D's 56.1 ¶ 49; Ps' 56.1 ¶ 49.)
The district held additional meetings and traded correspondence with MR concerning ST's out-of-district placement-including sending her a list of state-approved schools and inviting her input-but the parties did not reach an agreement. (See generally D's 56.1 ¶¶ 50--53.) On June 5, 2008, the CSE conducted a review for ST's 2008--09 school year, during which it recommended changing ST's classification from learning disabled to OHI "[b]ased upon S.T.'s co-morbid features of epilepsy, seizure activity, learning difficulties in reading, writing, and mathematics, sensory motor difficulties, Asperger's Disorder and emotional and attentional difficulties." (Id. ¶ 54.) MR disagreed and noted that she wanted his classification changed to autism, which the CSE did not support. (Id. ¶ 55.) Between June 2008 and July 2008, as noted, MR and ST participated in intake at three of the five potential schools discussed at a May 12, 2008 CSE meeting. (Id. ¶ 56.) On July 7, 2008, MR wrote an e-mail to the district indicating that the district's out-of-district placement recommendations were "sorely inappropriate," and she refused to meet with one placement for the same reason. (Id. ¶¶ 57--58.) At ST's July 15, 2008 program review, the district recommended a placement at the BOCES High School at West Nyack, a suggestion that MR rejected because the program was geared toward emotionally disturbed and chemically-dependent children. (Id. ¶ 59; Ps' 56.1 ¶ 59.)
On September 11, 2008, MR filed a due process complaint notifying the district of her disagreement with ST's classification, 2008--09 IEP, services, placement, and program, and stating that the district had failed to offer ST a FAPE in both the 2007--08 and 2008--09 school years for many reasons. (See D's 56.1 ¶ 62.) Plaintiff made a variety of requests for relief in her due process complaint, (see id. ¶ 63), but did not include a request for compensatory education as a remedy, (id. ¶ 64).
The IHO, Susan Lushing, commenced impartial hearings on November 13, 2008 and heard argument and testimony over eleven days through June 16, 2009. (Id. ¶ 67.) In a thirty-six-page, double-spaced decision, the IHO concluded that (1) ST was properly classified as OHI given the combination of disorders and disabilities he faced; (2) the recommendation to place ST in the KEA program for eighth grade provided a FAPE; (3) by not bringing ST for intake at potential placements, MR did not display a sense of urgency or participate in the process; (4) the district had acted promptly to find an out-of-district placement for ST for 2007--08, and any denial of educational services that year was attributable to delays caused by MR; (5) the district failed to offer ST a FAPE for the 2008--09 school year because the evidence failed to show that the West Nyack placement would have addressed the Asperger's component of ST's disabilities, but it was MR who reduced the district's recommendations down to this sole option, and therefore she "effectively defeated most of the possibilities"; (6) because of MR's contribution to the situation, ST was not entitled to any equitable remedy such as compensatory services; and (7) the case was not moot as to the years that had already ended because the parties deserved a conclusion on the merits. (Id. ¶¶ 70--77.)
The parties cross-appealed to the SRO. In a twenty-six-page, single-spaced opinion, the SRO held that plaintiffs' claims as to the 2007--08 and 2008--09 IEPs were moot because the respective school years had already ended. (Id. ¶ 80.) In the alternative, he adopted the IHO's findings of fact and conclusions of law, with the exception of the rationale asserted for declining to award compensatory educational services. (Id. ¶ 84.) The SRO instead held that Plaintiffs could not raise the request for compensatory educational services as relief for the first time in their closing brief to the IHO, and that the need for such services was not supported by the record. (Id. ¶¶ 81--82.)
II.APPLICABLE LEGAL STANDARDS
The IDEA was enacted to promote the education of children with disabilities. See, e.g., Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982)). Under the statute, states that receive federal funding must provide disabled children with a FAPE, 20 U.S.C. § 1412(a)(1), which includes "special education and related services" tailored to meet the unique needs of the particular child, id. § 1401(a)(18), and ...