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FB v. New York City Dept. of Educ.

United States District Court, S.D. New York

February 14, 2013

FB and EB, individually and on behalf of LB, Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION and Dennis Walcott, in his official capacity as the Chancellor of the New York City Department of Education, Defendants.

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Steven Laurence Goldstein, Steven L. Goldstein, Attorney-at-Law, New York, NY, Harold Jeffrey Marcus, Law Offices of H. Jeffrey Marcus, P.C., Williamsville, NY, for Plaintiff.

Emily Sweet, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

Plaintiffs FB and EB (the " Parents" ), individually and on behalf of their minor son, LB, bring this action against the New York City Department of Education and its Chancellor, Dennis Walcott (collectively, " DOE" ), pursuant to the Individuals with Disabilities Education Improvement Act (" IDEA" ), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. Law §§ 4401 et seq. The Parents seek review of a November 25, 2011, administrative decision of the State Review Officer (the " SRO" ) that (1) annulled the decision of the Impartial Hearing Officer (the " IHO" ), concluding that the Individualized Education Program (" IEP" ) developed for LB for the 2010-2011 school year violated his right to a free appropriate public education (" FAPE" ) and (2) vacated the IHO's award of tuition reimbursement for LB's unilateral placement at the Rebecca School during that year. The parties have cross-moved for summary judgment.

For the reasons that follow, the Court agrees with the SRO that the three specific deficiencies that the IHO found in LB's IEP, whether viewed singly or together, did not deny LB a FAPE. Accordingly, summary judgment is granted for the DOE on LB's claims based on those specific

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issues. However, because the SRO did not address the Parents' claims of other deficiencies in LB's IEP, the Court remands those issues to the SRO for review.

I. Background

A. Facts[1]

LB is a nine-year-old student classified with autism. Pl. 56.1 ¶ 6; Def. 56.1 ¶ 1. He has received services from New York City continuously from the age of two years old, first from the Department of Health and later from the DOE. Pl. 56.1 ¶ 7. Since kindergarten, beginning fall 2008, LB has attended the Rebecca School, a private therapeutic special education school. Id. ¶ 8; Def. 56.1 ¶ 2. For the 2008-2009 and 2009-2010 school years, the DOE has reimbursed the Parents for the tuition they paid for the Rebecca School, pursuant to settlements. Pl. 56.1 ¶ 10.

On February 5, 2010, the DOE held a meeting of the Committee on Special Education (" CSE" ) to formulate LB's annual IEP for the 2010-2011 school year, as required by the IDEA, see 20 U.S.C. § 1414. Pl. 56.1 ¶ 11; Def. 56.1 ¶ 3. The CSE consisted of: FB and EB, LB's parents; Dr. Patricia Pape, a school psychologist for the DOE; Ellen Gordon, a special education teacher who was also serving in her capacity as district representative member of the CSE; Sandra Morabito, a district parent; and Karin Robertson, LB's Rebecca School teacher at that time, who participated by telephone. Def. 56.1 ¶ 4; IHO Tr. 19; DOE Ex. 3. At the meeting, the CSE consulted a number of reports on and evaluations of LB, including: LB's 2008-2009 IEP; LB's December 2009 progress report from Rebecca; and a classroom observation conducted on November 6, 2009. Def. 56.1 ¶ 6; SRO Dec. 13; IHO Tr. 22-23. The extent to which the CSE adequately consulted these documents, and whether or not it consulted certain other documents, including, most significantly, a 2009 psychoeducational update, is disputed. See infra § III(A)(1); see also SRO Dec. 13; compare Pl. 56.1 ¶¶ 21-23, with Def. 56.1 ¶ 6.

The recommendations that emerged from the CSE meeting were that: (1) LB be placed in a 12-month school-year program; (2) LB be placed in a special class with a 6:1:1 staffing ratio [2] within a specialized school; and (3) LB receive related services, including counseling, occupational

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therapy, speech and language therapy, and physical therapy. See DOE Exs. 1 & 2. Importantly, the parties do not dispute that the CSE did not conduct a functional behavior assessment (" FBA" ) of LB in advance of the meeting or that the CSE did not develop a behavior intervention plan (" BIP" ) for LB. See Pl. 56.1 ¶ 25; Def. Counter Statement ¶ 25.

On or around June 15, 2010, LB and the Parents received notice of LB's placement for the 2010-2011 school year, at P 169 M@ P 146 M (" P.S. 169" ). See Pl. 56.1 ¶ 51; Def. 56.1 ¶ 13; Pl. Counter Statement ¶ 9. Before receiving that notification, however, the Parents had sent a letter to the CSE informing it that the DOE had failed to provide LB with a free appropriate public education, as required by the IDEA, and that they would therefore be unilaterally enrolling LB at the Rebecca School for the 2010-2011 school year and seeking reimbursement from the DOE. See Def. 56.1 ¶ 13; Pl. Counter Statement ¶ 9; Pl. 56.1 ¶ 68. On July 9, 2010, the Parents visited P.S. 169 to determine whether it was an appropriate placement for LB. See Pl. 56.1 ¶¶ 51-52; Def. 56.1 ¶ 14. The parents allege that the school was an inappropriate placement for LB and that the program proposed by the DOE was, inter alia, " grossly deficient with respect to addressing L[B]'s sensory needs." Pl. 56.1 ¶ 44. Thereafter, on July 20, 2010, the Parents sent another letter to the DOE, advising it of their concerns and reiterating their belief that the DOE had failed to provide a FAPE for LB and their intention to seek tuition reimbursement for LB's attendance at the Rebecca School during the 2010-2011 school year.

B. Due Process Complaint and Impartial Hearing

On October 21, 2010, the Parents filed a due process complaint, challenging the DOE's program on the grounds that: (1) the DOE had improperly refused to consider placing LB in a more restrictive program; (2) the February 5, 2010, CSE Review Team had not been duly constituted; (3) the DOE's recommendations had been improperly predetermined before the meeting; (4) the IEP that grew out of the CSE meeting was based on insufficient and/or unreliable evaluative information; (5) the IEP's proposed goals were insufficient and inappropriate; (6) the IEP's proposed goals could not be implemented in the program that the DOE recommended; (7) the IEP improperly lacked a provision for transitional support services to aid LB in the transition from the Rebecca School to the DOE's recommended program; (8) the DOE failed to conduct a FBA in advance of the meeting; (9) the DOE failed to consider whether to develop and include a BIP in the proposed IEP; (10) the DOE's recommended placement was inappropriate; (11) the CSE failed to consider whether to recommend sufficient related services for LB; and (12) the Parents were denied the right to meaningfully participate in planning for LB's education. See Parents' Ex. A3-A10.

An impartial hearing began on March 11, 2011, and concluded on June 10, 2011. See IHO Tr.; Def. 56.1 ¶ 29. At that hearing, the IHO held that the DOE had not provided LB with a FAPE. The IHO granted the Parents' request for tuition reimbursement for the 2010-2011 school year, on the grounds that: (1) the CSE had not consulted sufficient evaluative data on which to base LB's 2010-2011 IEP (in particular, because the record did not show that the CSE reviewed the 2009 psychoeducational update, see IHO Dec. 5); (2) the CSE had not conducted a FBA and developed a BIP for LB, see id. at 5-6; and (3) the IEP failed to provide for parent counseling and training, see id. at 6. The IHO held that the Rebecca School was an appropriate unilateral placement for LB, see

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id. at 8, and that the equities favored the Parents in the matter, see id. at 9.

C. SRO Appeal

The DOE appealed the IHO Decision to the State Review Officer (" SRO" ). Addressing the three points on which the IHO had relied, the DOE argued that: (1) it in fact had based the IEP on sufficient evaluative data and information; (2) the absence of a FBA and a BIP did not result in the denial of a FAPE to LB; and (3) the IEP's failure to provide for parent counseling and training did not rise to the level of denial of a FAPE. In its Petition to the State Review Officer (" Petition" ), the DOE also addressed the remaining issues in the Parents' due process complaint that the IHO had not reached. Specifically, DOE argued that: (1) the CSE had been properly constituted; (2) the Parents could have provided LB's current teacher with the materials she needed to participate in the CSE meeting; (3) the program recommendation had not been predetermined; (4) the lack of transitional support services did not amount to denial of a FAPE; (5) the Parents' claims regarding the offered placement were all " speculative, as they never accepted the offered placement and the IEP was never implemented" ; and (6) LB would have received related services at P.S. 169. See Petition ¶¶ 39-46. The DOE further argued that the Rebecca School was not an appropriate placement for LB, id. ¶¶ 47-52, and that equitable considerations precluded reimbursement, most notably because " [r]espondents [the Parents] did not intend to send their child to public school," id. ¶ 35.

The SRO overturned the IHO's decision. He found that: (1) the CSE based its IEP on sufficient evaluative data of LB to develop " an IEP that accurately reflected [his] special education needs," SRO Dec. 14; (2) the CSE was not required to conduct a FBA or develop a BIP, because the hearing record demonstrated that LB's behavior " did not seriously interfere with instruction and could be addressed by the special education classroom teacher," id. at 17; and (3) the failure of the IEP to include parent counseling and training did not amount to denial of a FAPE, because the record reflected that " the assigned school would have provided this service," id. at 18. The SRO also held that the various claims the Parents had made in their due process complaint that the IHO did not address in his decision had not been preserved for his review by the Parents, because they had not cross-appealed the IHO's decision. See id. at 12. These were that (1) the CSE improperly refused to consider placement in a more restrictive program; (2) the CSE was improperly constituted, because the district representative and special education teacher were unqualified to fulfill their roles on that committee; (3) LB's teacher, Karin Robertson, was denied the opportunity to participate meaningfully in the meeting, because the CSE had not provided her with access to the materials being considered; (4) the CSE's recommendations were predetermined; (5) the goals of the IEP were insufficient; (6) the annual goals in the IEP were not individually tailored to address LB's educational deficits; (7) the goals of the IEP lacked adequately objective criteria to measure LB's progress; (8) many of the goals in the IEP could not have been implemented in the recommended program; (9) the IEP should have included transitional support services to aid LB in moving from the Rebecca School to P.S. 169; and (10) P.S. 169 was not an appropriate placement.

D. Procedural History

On March 7, 2012, having thus exhausted the administrative process as required, the Parents filed the Complaint in this case. Dkt. 1. On August 31, 2012, the Parents filed a motion for summary judgment.

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Dkt. 17. In support, on September 4, 2012, the Parents filed an Affidavit of Steven Goldstein, Dkt. 21, a memorandum of law (" Pl. SJ Br." ), Dkt. 23, and their Local Rule 56.1 Statement of Material Facts, Dkt. 22.

On October 12, 2012, the DOE filed its own motion for summary judgment, Dkt. 25, an accompanying memorandum of law addressing the parties' respective such motions (" Def. SJ Br." ), Dkt. 27, its Local Rule 56.1 Statement of Material Facts, Dkt. 26, and its Counter Statement to Plaintiffs' Local Rule 56.1 Statement of Material Facts (" Def. Counter Statement" ), Dkt. 28. On November 30, 2012, the Parents filed their Counter Statement to Defendants' Local Rule 56.1 Statement of Material Facts (" Pl. Counter Statement" ), Dkt. 30, and their opposition to the DOE's motion for summary judgment (" Pl. Opp. Br." ), Dkt. 31. On December 12, 2012, the DOE filed ...


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