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E.T. and D.T., On Behalf of Their Minor Child, E.T v. the Board of Education of the Pine Bush Central School District

November 26, 2012

E.T. AND D.T., ON BEHALF OF THEIR MINOR CHILD, E.T., PLAINTIFFS,
v.
THE BOARD OF EDUCATION OF THE PINE BUSH CENTRAL SCHOOL DISTRICT,
DEFENDANT.



The opinion of the court was delivered by: Ramos, D.J.

OPINION AND ORDER

E.T. and D.T. (the "parents" or "Plaintiffs") are the parents of a disabled child ("E.T.") as defined in the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400 et seq. The parents reside within the Pine Bush Central School District (the "district" or "Pine Bush"). The parents unilaterally placed E.T. in the Ridge School, a private school located within the Hyde Park Central School District ("Hyde Park") for the 2010-2011 school year and sought tuition reimbursement from the district under the IDEA. The parents' claim was heard by an Impartial Hearing Officer ("IHO"), who conducted a four-day due process hearing. On January 18, 2011, the IHO found that the district had no obligation to provide E.T. with a free appropriate public education (a "FAPE") because the parents had made clear their intention to enroll E.T. at the Ridge School prior to giving the district an opportunity to prepare an Individualized Education Program ("IEP") for E.T. for the 2010-2011 year. The IHO thus concluded that the district was not responsible for tuition reimbursement to the parents for that year. The parents appealed to a State Review Officer ("SRO"), who affirmed the IHO in a decision dated April 11, 2011. The parents then brought suit in this Court seeking review of the SRO's decision and now move for summary judgment. The Defendant has cross-moved for summary judgment. For the reasons set forth below, Plaintiffs' motion and Defendant's cross motion are denied without prejudice and the Court orders the case to be stayed and remanded to the SRO for further findings. See Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98 (2d Cir. 2005) (discussing district court's ability to remand issues to an administrative agency); Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 318 (S.D.N.Y. 2005); Maine Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 20 (1st Cir. 2003).

I.Background

E.T. has attended the Ridge School ("Ridge") since the 2008-2009 school year. Pursuant to two settlement agreements between the parents and the district, the district paid for E.T.'s tuition at Ridge for the 2008-2009 and 2009-2010 school years. The parents now seek reimbursement for the costs of E.T.'s private placement for the 2010-2011 school year. The Court has reviewed the contents of the administrative record submitted by the parties, and draws the following facts from the parties' Local Rule 56.1 Statements, the transcript of the testimony heard by the IHO, the exhibits introduced at the hearing, the IHO's Findings of Fact and Decision of January 18, 2011, and the Decision of the SRO of April 11, 2011.

A.E.T.'s Educational Background

E.T. is currently seventeen years old, classified as autistic, and diagnosed with Asperger's Syndrome and school phobia. (Joint Ex. 13 at 1.) He was first classified with a disability and found to be eligible for special education and related services when he was in preschool. (Tr. at 405.) In kindergarten, he was classified by the district as a student with a speech or language impairment. (Id.) Since then, E.T. has been on various medications for his conditions. (Joint Ex. 13 at 1.) In the 2003-2004 school year, when E.T. was in the third grade, the district's Committee on Special Education ("CSE") classified E.T. as learning disabled. (Joint Ex. 1 at 3; Tr. at 405.) He maintained that classification for the 2004-2005 school year. (Joint Ex. 2 at 1.) In April 2006, E.T. was classified as autistic. (Tr. at 405; Joint Ex. 4 at 1.)

E.T. is cognitively of average to above average intelligence, but has significant weaknesses in reading, writing, and other tasks requiring auditory processing and memory. (Tr. at 4-5.) He also has difficulty in language and social skills, and can be easily frustrated by academic tasks. (Id. at 5.) Historically, he has had difficulty trusting others and experiences fear frequently based on having been mistreated and bullied by others in school. (Joint Ex. 12 at 2.) His resultant phobia of school causes him to experience "an extreme level of fear, panic, and escape-avoidance thoughts." (Id.) E.T. also exhibits features of Asperger's Syndrome including obsessive-compulsiveness, difficulty with social and emotional expression, and resistance to change in routine and transition. (Id.)

B.The 2005-2006 School Year

E.T. began to exhibit behavioral and social difficulty in the fall of 2005, when he was in the fifth grade at Circleville Elementary School ("Circleville"). (Parents' Ex. C.) He was reported to have engaged in "rude, discourteous, uncooperative, and destructive behavior" and was involved in fights with other students and staff. (State Review Officer Decision ("SRO Dec.") at 22.) He also reported to his mother that he was bullied by other students at Circleville. (Tr. at 409-10.) On one occasion, after slapping his teacher's hand, attempting to throw furniture, and breaking headphones, E.T. was suspended from school for one day. (Parents' Exs. C, H.) On November 4, 2005, as a result of his behavior, E.T. was hospitalized for approximately six days so that his treating physicians could alter his medication. (Parents' Ex. D; Tr. at 406-07.) When he was released from the hospital, he returned to Circleville with a recommendation that he be placed in a classroom with a small number of students. (Tr. at 407.)

In March 2006, E.T. began to have difficulty and became more frustrated and anxious at Circleville. (Tr. at 408.) He was given a one-on-one aide and a reduced schedule to meet his needs. (Id.) On March 15, 2006, E.T. was placed in an "inclusion class" with over thirty other students, which caused him to have a "major meltdown." (Id. at 408-09.) The district called emergency services and the parents, and when the parents arrived at the school he was laying on the floor of the vice principal's office crying and shaking. (Id. at 409.) After this incident, E.T. was placed on home instruction and did not return to Circleville. (Tr. at 410.)

At the end of April 2006, on the recommendation of the district, E.T. was placed in an intensive day treatment program in Middletown, New York offered through the Board of Cooperative Educational Services ("BOCES"). (Tr. at 410; SRO Dec. at 2.) However, on his first day there, he had a "major meltdown" several hours after arriving. (Tr. at 410-11.) He was then placed on home instruction for the remainder of the school year and received two hours of tutoring daily from the district. (Id. at 411.)

C.The 2006-2007 School Year

The district offered two proposed placements for E.T. for the 2006-2007 school year- Green Chimneys and Westchester Exceptional. (Tr. at 411-12.) The parents visited both facilities, and found Green Chimneys to be inappropriate for E.T. because it did not have a program for students with Asperger's Syndrome. (Id. at 412.) The parents found Westchester Exceptional to be an appropriate placement, and they enrolled E.T. in that program. (Id. at 412-13.)

In September 2006, on his first day at Westchester Exceptional, E.T. had another "meltdown." (Tr. at 413.) After staying home for a day, he returned to the school and had a "meltdown" again within several hours. (Id.) The school told his mother at that point that it was not an appropriate placement for her son, and he did not return to the school thereafter. (Id. at 414.) He was again placed on home instruction for the duration of the school year. (Id.)

On November 30, 2006, at the request of the parents, the district's CSE met to review E.T.'s IEP. (Joint Ex. 4 at 1; SRO Dec. at 3.) E.T.'s home tutor reported that he was making "steady academic progress, ha[d] improved his frustration tolerance and [was] much more motivated in task completion." (Joint Ex. 4 at 5.) The CSE recommended that E.T. receive an occupational therapy evaluation, speech therapy, and multisensory reading instruction. (Id.) The CSE also provided the parents with a list of day schools approved by the state that specialized in programs for autistic students in the Hudson Valley area of New York. (Id.; SRO Dec. at 3.)

After E.T. underwent the occupational therapy evaluation, the CSE reconvened on March 6, 2007 and concluded that E.T. should remain on home instruction. (Joint Ex. 5 at 5; SRO Dec. at 3.) While on home instruction that year, E.T.'s mother brought him to a social skills group on her own for six weeks to promote his socialization skills. (Tr. at 414-15.)

D.The 2007-2008 School Year

On May 2, 2007, the CSE held a meeting to develop E.T.'s IEP for the 2007-2008 year, at which the district explained it was "imperative [to] begin to prepare [E.T.] for a transition back into a regular special education program for the 2007-08 school year." (Joint Ex. 6 at 5.) The CSE thus recommended providing E.T. with transitional opportunities over the summer to prepare him for re-entry into a structured school program, continuing home instruction pending placement in the Asperger's Program for Independent Education ("APIE")*fn1 at BOCES or a similar program, and other services, such as speech-language therapy, occupational therapy, and counseling. (Id.)

In the spring of 2007, the parents visited the APIE program but decided it would not meet E.T.'s needs. (Tr. at 32-33, 415-17.) The parents learned that there were approximately 150 students in the school-many of whom were classified as emotionally disturbed-and that it was located in a very large school building. (Id. at 416-17.) Based on an earlier diagnosis of Dr. Linda Klein ("Klein"), E.T.'s private treating psychologist, that E.T. experienced school phobia, the parents did not believe E.T. would be able to attend a school of that size. (Id. at 417.) The parents determined they would not enroll E.T. in the APIE program for the 2007-2008 school year, and he remained on home instruction for the duration of the year. (Joint Ex. 6 at 5; Tr. at 419.)

On September 6, 2007, the CSE reconvened at the request of the parents. (Joint Ex. 6 at 1, 5; SRO Dec. at 4.) The CSE recommended that "[s]upported gradual attempts . . . be made to increase [E.T.'s] toleration to a school environment and to include his participation in some small group activities for added growth in social skills." (Joint Ex. 6 at 5.) The committee also recommended a follow-up meeting in six to ten weeks to monitor the progress of E.T.'s program. (Id.) In the meantime, E.T. remained on home instruction, receiving two hours of tutoring daily and speech therapy twice a week. (Tr. at 419.) He also received counseling sessions with Klein pursuant to the parents' request as well as speech and occupational therapy. (Id. at 420; Joint Ex. 6 at 5; SRO Dec. at 4.)

In December 2007, E.T.'s mother visited Ridge with him for the first time, which is located within the Hyde Park Central School District. (Tr. at 423-24; Def.'s Stmt. Material Facts Pursuant to Local Rule 56.1 ("Def.'s 56.1 Stmt.") ¶ 4.) Ridge was founded by Michael Kondor ("Kondor") in 2005 to educate students with Asperger's Syndrome.*fn2 (Def.'s 56.1 Stmt. ¶ 5.) After her initial visit, E.T.'s mother requested that the district send a referral packet for E.T. to Ridge in February 2008. (Id. ¶ 4; Tr. at 422.) Pursuant to the parents' request, representatives from the district sent a referral packet and visited the program at Ridge. (Tr. at 422-23.) By letter dated March 13, 2008, E.T.'s mother requested that the CSE convene to discuss placing E.T. at Ridge.*fn3 (Joint Ex. 22.)

During the winter of 2008, when E.T.'s mother brought him to Ridge to be evaluated, Kondor invited E.T. to join the program for weekly field trips to begin socializing with other students. (Tr. at 424.) E.T. agreed to go on the field trips, and one of his parents was with him on each trip he attended. (Id. at 424-25.) The total enrollment at Ridge at that time was six students, all of whom had Asperger's Syndrome and were at least 2 years older than E.T. (Id. at 425-26.)

E.The 2008-2009 School Year

The district recommended that E.T. attend the APIE program for the 2008-2009 year, and the parents signed a consent form to have a packet sent there.*fn4 (Tr. at 34, 426-27.) The parents, however, claim that they were never invited to visit the APIE program, nor did they ever receive notification as to whether E.T. had been accepted into the program for the 2008-2009 school year. (Id. at 427.) On August 13, 2008, E.T.'s mother advised the district by letter that the parents had placed him at Ridge for the 2008-2009 school year, and requested that the district pay for E.T.'s tuition to Ridge and provide transportation. (Joint Ex. 23 at 2.)

Klein issued a report on August 28, 2008, in which she concluded that E.T. had significantly improved his ability to develop trust after having experienced bullying and mistreatment in school at a younger age. (Joint Ex. 12 at 2.) She reported that he had improved in his ability to adapt to change and that although he expressed fear of his previous school and the bullies there, he also expressed an interest in attending a school again to be around other students. (Id.) Klein stated that E.T. continued to experience fear of being teased and bullied by peers, but that his school phobia could be resolved "over time with intervention." (Id.) Thus, she recommended that E.T. attend an educational program that accommodates students with Asperger's Syndrome as well as his other needs so that he could gradually develop skills and emotional competence. (Id.)

When E.T. began attending Ridge, there were five other students enrolled in the school. (Tr. at 429.) It was a very difficult transition for him at first, and his mother frequently attended the school with him as a volunteer one-on-one aide. (Id. at 428-30.) E.T. did not begin to feel comfortable with Kondor, his other teachers, or the school psychologist, Dr. Hudak ("Hudak") until the end of the school year. (Id. at 428.) He also began to socialize with the other students by the end of the year, and became willing to attend school on a daily basis. (Id. at 428, 431.) On December 16, 2008, the district entered an agreement with the parents to pay them $30,000 for E.T.'s tuition to Ridge for the 2008-2009 school year. (Dist. Ex. 1; Tr. at 428.)

F.The 2009-2010 School Year

On June 19, 2009, a sub-committee of the CSE of Hyde Park met to develop an Individualized Education Service Program ("IESP") for E.T. for the 2009-2010 year. (Joint. Ex. 7 at 1.) The Hyde Park CSE found that E.T. had a very successful first year at Ridge and made "remarkable improvements socially and academically," though he still exhibited difficulty with reading and writing tasks. (Id. at 5.) The IESP stated that E.T. had been parentally placed at the Ridge School for the 2009-2010 year, and the Hyde Park CSE made recommendations for the summer of 2009, including one-on-one home tutoring. (Id. at 2.) The Hyde Park CSE additionally recommended that E.T. receive a ...


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