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Intravaia ex rel. Intravaia v. Rocky Point Union Free School Dist.

United States District Court, E.D. New York

January 30, 2013

Skylar INTRAVAIA, by her parents and natural guardians Jennifer INTRAVAIA and Robert Intravaia, individually, Plaintiffs,
v.
ROCKY POINT UNION FREE SCHOOL DISTRICT, Michael F. Ring, Superintendent, David Pearl, Esq., Defendants.

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[Copyrighted Material Omitted]

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John Ray & Associates by John W. Ray, Esq., Vesselin V. Mitev, Esq., Miller Place, NY, for Plaintiffs.

Ahmuty, Demers & McManus, Esqs. by Lourdes M. Ventura, Esq., Maureen Casey, Esq., Albertson, NY, for Rocky Point Union Free School District Defendants.

Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP by David N. Yaffe, Esq.,

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Melville, NY, for Defendant David Pearl, Esq.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Plaintiffs Jennifer and Robert Intravaia bring this action individually and on behalf of their disabled infant daughter, Skylar Intravaia (" Skylar" ), against the Rocky Point Union Free School District (" School District" ), Superintendent Michael F. Ring (" Ring" ), and David Pearl, Esq. (" Pearl" ) (" collectively, the " defendants" ), seeking to redress violations of their rights under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400, et seq., the American with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq., and 42 U.S.C. § 1983. Plaintiffs allege that defendants failed to provide Skylar with a free and appropriate public education (" FAPE" ) based on their failure to provide required special education services and by initiating an impartial hearing in order to block and frustrate an investigation by the New York State Education Department (" NYSED" ).

Presently before the Court are the defendants' respective motions to dismiss. The School District and Ring (hereafter, the " School District defendants" ) move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure (" Rule" ) 12(b)(1) alleging that the Court lacks subject-matter jurisdiction on the grounds that plaintiffs have failed to exhaust their administrative remedies pursuant to the IDEA. Defendant Pearl moves to dismiss the Complaint pursuant to Rule 12(b)(1) on the same grounds as the School District defendants, and in the alternative, pursuant to Rule 12(b)(6) for failure to state a claim against him. Contemporaneous with his motion to dismiss, defendant Pearl also requests that plaintiffs and their attorneys be sanctioned under Rule 11. For the reasons that follow, the defendants' motions to dismiss are GRANTED and defendant Pearl's motion for sanctions is DENIED without prejudice.

BACKGROUND

Skylar, a disabled student attending school within the School District, is classified as having autism. (Compl. ¶¶ 3, 15.) More specifically, Skylar is a high-functioning eighth-grader who has Asperger's syndrome, " which is an autism spectrum disorder characterized by high cognitive function and low social/behavioral function." ( Id. ¶ 20.) In light of her classified disability, the School District was required to provide Skylar with special education and related services, set forth in an Individualized Education Program (" IEP" ). ( Id. ¶¶ 13, 21.) Skylar's IEPs, dating back to 2002, included such services as social worker counseling, summer therapy sessions, and special class learning labs and aides. ( Id. ¶ 22.) As of October 4, 2010, Skylar's IEP specifically provided that she receive: a daily individual aide; weekly group counseling; monthly one-to-one counseling; and parent counseling and training four times yearly. ( Id. ¶ 23.) As of February 15, 2011, Skylar's IEP remained the same, with the exception of the individual aide, which was removed with the plaintiffs' consent. ( Id. ¶ 24.) Thereafter, plaintiffs claim that defendants failed to provide the necessary services they were required to provide Skylar under her IEP. ( Id. ¶¶ 25-26.)

For example, plaintiffs allege that in 2011, defendants: (1) failed to provide group services to Skylar on at least seven occasions; (2) removed the director of special education without notification; (3) eliminated all special education coordinators without notification; (4) removed the full-time autism consultant, Denise Valvo, who worked individually with Skylar; (5) hired an autism consultant to work one

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day per week who has no individual contact with Skylar; (6) divided Ms. Valvo's former responsibilities and duties between the school's social worker and psychologist; (7) hired unqualified counselors who have no training on how to work with autistic children; (8) punished Skylar for her disability by sending her back to class on more than one occasion for failing to answer a question correctly during a counseling session; (9) failed to coordinate and communicate with plaintiffs, resulting in Skylar having missed over thirty days of gym, a required class; (10) failed to adhere to the services that the School District was required to provide to Skylar, per her IEP; and (11) provided " progress reports" that do not properly measure the goals set by Skylar's IEP. (Compl. ¶ 26.)

On October 20, 2011, Jennifer Intravaia wrote to defendant Ring to advise him of the above issues and concerns. The following day, District Interim Special Education Coordinator Andrea Moscatiello (" Moscatiello" ) responded by stating that Skylar's " services are in place and remain the same" and to contact her " sponsor teacher." ( Id. ¶¶ 27-28.) In November 2011, Jennifer Intravia again raised her issues and concerns, this time at a Board of Education meeting where she met with defendant Ring, Moscatiello, and other School District officials regarding compliance with Skylar's IEP. ( Id. ¶¶ 29-30.) Jennifer Intravia attended another Board of Education meeting on December 19, 2011, to once more implore the School District to reinstate Skylar's services, including the full-time autism consultant. ( Id. ¶ 34.) On December 29, 2011, Jennifer Intravaia prepared and filed a complaint with NYSED detailing the above violations. ( Id. ¶ 38.)

On January 9, 2012, counsel for the School District, David Pearl, Esq., wrote to plaintiffs indicating that his letter " serve[s] as a formal request for an impartial hearing" regarding the allegations " that the School District is failing to provide your daughter, Skylar, with a Free and Appropriate Public Education (‘ FAPE’ ) and also continuously failing to provide related services required on Skylar's Individualized Education Program (‘ IEP’ )." (Ring Aff., Ex. N.) In a letter dated January 13, 2012, the NYSED also wrote to plaintiff indicating the following:

Federal and State regulations require that the State set aside (not proceed with) an investigation of allegations contained in a State complaint if any of the allegations are currently being addressed in an impartial hearing or an appeal of the hearing decision. NYSED has determined that all of the allegations are currently involved in a due process hearing.... In accordance with Part 300 of the Code of Federal Regulations and Part 200 of the Regulations of the Commissioner of Education relating to the education of ...

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