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M.C., Individually and On Behalf of W.C., A Child With A Disability v. Lake George Central School District

September 6, 2012

M.C., INDIVIDUALLY AND ON BEHALF OF W.C., A CHILD WITH A DISABILITY, PLAINTIFF,
v.
LAKE GEORGE CENTRAL SCHOOL DISTRICT, DEFENDANT.



DECISION and ORDER

I. INTRODUCTION

Plaintiff M.C., individually and on behalf of W.C., a child with a disability ("Plaintiff"), commenced the instant action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 28 U.S.C. § 1400 et seq. and New York Education Law Article 89 seeking: (1) annulment of the decision of the State Review Officer and reinstatement of the relief granted by the Impartial Hearing Officer; and (2) attorneys' fees and costs pursuant to 20 U.S.C. § 1415(i)(3). Dkt. No. 1 ("Complaint"). Defendant Lake George Central School District ("Defendant LGSD") has asserted a counterclaim seeking reversal of that portion of the State Review Officer's decision that found that the District had not set forth an argument on appeal challenging the Impartial Hearing Officer's award of compensatory education. Dkt. No. 4 ("Counterclaim"). Presently before the Court are Defendant's Motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the claims against it and Plaintiff's Cross-Mmotion for summary judgment. Dkt. Nos. 13 ("Motion"), 14 ("Cross-Motion"). Defendant has also filed a Reply to the Cross-Motion. Dkt. No. 15 ("Reply").

II. COMPLIANCE WITH LOCAL RULES

Many of the facts considered by the Court are based on Defendant's Statement of Material Facts submitted pursuant to N.D.N.Y.L.R. 7.1(a)(3). Dkt. No. 13-20. Although Plaintiff submitted a responsive Statement of Material Facts in the Cross-Motion, the Statement does not comply with the Local Rules. Dkt. No. 14-2. Local Rule 7.1(a)(3) requires that, in opposing a summary judgment motion, the "non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." The Rule provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." Id. Plaintiff, who is represented by counsel, has failed to provide a response that mirrors Defendant's Statement of Material Facts and -- in many instances -- failed to provide citations to the record.*fn1 While the Court will -- on this one occasion -- overlook Plaintiff's failure to provide a response that mirrors the movant's Statement of Material Facts,*fn2 the Court deems Defendant's facts admitted where Plaintiff denies and/or objects to Defendant's facts without a supporting citation to the record.

III. BACKGROUND

W.C. was born in 1990. Dkt. No 13-9 at 1. At all times relevant hereto, he was classified as a student with a learning disability. Cross-Mot. at 1 (citations omitted). On August 24, 2007, a Committee on Special Education ("CSE") was convened to develop an Individualized Education Program ("IEP") for W.C. Dkt. No. 13-20 ¶ 20. It was determined at that time that W.C.'s special education services would be changed. Id. ¶ 15. The recommendations in the August 24, 2007 IEP were based, in part, on an evaluation completed by School Psychologist Stephen Clark on October 1, 2005. Id. ¶ 16. Clark testified that W.C. had significant deficits in all tested academic skill areas. Id.

¶ 17. Accordingly, the CSE recommended a special class with a 12:1 ratio;*fn3 speech and language therapy twice weekly; science and social studies every other day for 40 minutes; math daily for 40 minutes; English daily for 40 minutes; reading and writing support; testing accommodations; and program modifications, supplementary aids, and services. Id. ¶ 18. According to the LGSD, it could not provide education services in a less restrictive environment because W.C. required primary instruction in the areas of science, social studies, math ,and English that could not be provided through consultant teacher or resource room services. Id. ¶ 22; Dkt. No. 14-2 at 7. Nancy Damoretcki, CSE Chairperson, testified that direct reading instruction was not recommended because W.C. was in a 12:1 environment with intensive reading instruction that was conducted throughout the school day in and across all subjects. Dkt. No. 13-20 ¶ 24.

In the Fall of 2007, W.C.'s parents expressed concerns with W.C.'s educational program. It was agreed that W.C.'s program would be re-evaluated. Id. ¶ 60. In October 2007, W.C.'s parents unilaterally withdrew W.C. from the LGSD and enrolled him at the Waldorf School. Id. ¶ 62. A CSE meeting was held on November 16, 2007 at which time transition activities and goals were developed and incorporated into W.C.'s IEP. Id. ¶¶ 64, 67. The CSE recommended that W.C. continue placement in the 12:1 program, with related services of speech and language therapy and reading and writing support.

The Saratoga Springs City School District ("SSCSD") developed an Individualized Education Services Program ("IESP") for W.C. for the remainder of the 2007-2008 school year while he was at the Walford School. Id. ¶ 84. This included a consultant teacher and speech/language therapy. Id. ¶ 85.

W.C.'s parents kept W.C. enrolled in the Waldorf School for the 2008-2009 school year. Id. ¶ 87. The SSCSD again developed an IESP for W.C. that included consultant teacher services. Id.

¶ 93. In May 2009, W.C.'s parents removed W.C. from the Walford School. They contacted the LGSD concerning services for W.C. to transition to college. Id. ¶ 146-47.

In October 2009, W.C.'s parents requested a due process hearing from the LGSD. Id. ¶ 1. After several days of hearings, in May 2010, the Impartial Hearing Officer issued a decision directing the LGSD to reimburse W.C.'s parents for all tuition and related expenses for W.C.'s placements at the Walford School for the 2007-2008 school year from November 16, 2007 and for the entire 2008-2009 school year. Dkt. No. 13-14. The LGSD was further directed to conduct a triennial evaluation of W.C. and to provide one on one reading instruction with a certified reading instructor from the Wilson program for two hours per day, five days per week from June 1, 2010 to September 1, 2010. See id. Defendant appealed this determination to the New York State Education Department's Office of State Review. Dkt. No. 13-20 ¶ 6. By decision dated June 28, 2010, the State Review Officer annulled those portions of the impartial hearing officer's decision that directed the LGSD to reimburse W.C.'s parents for tuition and related expenses. See id. ¶ 8; Dkt. No. 13-16. The State Review Officer further modified the impartial hearing officer's decision concerning the time period within which reading instruction was to be provided. Dkt. No. 13-16. The State Review Officer found that Defendant failed to appeal the issue concerning compensatory education (i.e. providing one on one reading instruction). See generally id.

Plaintiff then commenced the instant action seeking: (1) annulment of the determination of the State Review Officer and reinstatement of the Impartial Hearing Officer's order; and (2) attorneys' fees and costs. Compl. Defendant filed a counterclaim seeking an order finding that it did properly appeal the compensatory education issue to the State Review Officer. Presently before the ...


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