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M.V., Individually and On Behalf of, G.V., A Student With A Disability v. Shenendehowa Cent. Sch. Dist

March 7, 2013

M.V., INDIVIDUALLY AND ON BEHALF OF, G.V., A STUDENT WITH A DISABILITY, PLAINTIFF,
v.
SHENENDEHOWA CENT. SCH. DIST., DEFENDANT.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this civil rights action filed by M.V. ("Plaintiff") individually and on behalf of G.V. (a student with a disability) against Shenendehowa Central School District ("Defendant" or "the District") pursuant to the Individuals with Disabilities Education Act and Article 89 of New York Education Law (and their promulgating regulations), is Defendant's motion for summary judgment (Dkt. No. 15), and Plaintiff's cross-motion for summary judgment (Dkt. No. 16). For the reasons set forth below, Defendant's motion is granted, Plaintiff's cross-motion is denied, and Plaintiff's Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, liberally construed, Plaintiff's Complaint claims that, between approximately April 2010 and approximately February 2011, in New York State, Defendant violated the right of Plaintiff's son, G.V., to a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA") and Article 89 of New York Education Law (and their promulgating regulations), by imposing a District-wide cap of $1,800 on a previously approved Independent Educational Evaluation ("IEE") for G.V., who suffers from a speech or language impairment and had an Individualized Education Program ("IEP") from the District, even though that IEE cost an additional $500 to $700, which Plaintiff was unable to pay. (See generally Dkt. No. 1 [Plf.'s Compl.].) As relief for this alleged violation, Plaintiff's Complaint requests (1) declaratory and injunctive relief aimed at directing Defendant to fund an IEE of G.V. at the true and total cost, a cost that exceeds the $1,800 limit imposed by Defendant, and (2) attorneys fees and costs due to Plaintiff as a prevailing party on her IDEA claim. (Id.) Familiarity with the particular nature of the claim, supporting factual allegations and requested relief in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Undisputed Material Facts

After carefully considering the record evidence presented by the parties on their motions, the Court finds that the following material facts are undisputed.

1. Events Occurring Before 2009-2010 School Year

Prior to September 2009, Plaintiff's son was parentally enrolled at the St. Ambrose School, a nonpublic school located within the North Colonie Central School District, for at least the 2008-2009 school year. During the time that Plaintiff's son was in attendance at the St. Ambrose School, the North Colonie Central School District developed his Individualized Education Services Program ("IESP"). (Dkt. No. 12, Attach. 4, at 24-32.)

2. Events Occurring During 2009-2010 School Year

During the 2009-2010 school year, Plaintiff's son was a minor child who qualified under the IDEA and Article 89 of the New York Education Law as a student with a disability.

In September 2009, Plaintiff enrolled her son in the District's schools for the 2009-2010 school year. On September 17, 2009, and November 24, 2009, the District's Committee on Special Education ("CSE") met to prepare an IEP for Plaintiff's son for the 2009-2010 school year.

On April 15, 2010, the District's CSE met to conduct an annual review of Plaintiff's son's IEP and to develop the IEP that was to be in effect during the 2010-2011 school year. At the CSE meeting on April 15, 2010, Plaintiff requested that the District pay for an IEE by Dr. Alison Curley in order to, among other things, assess her child's progress in academics. (Dkt. No. 12, Attach. 5, at 10-22, 63-64, 114-16; Dkt. No. 12, Attach. 3, at 16.) At the CSE meeting on April 15, 2010, the District approved the IEE request up to an $1,800 limit.

On January 12, 2010, the District adopted Administrative Regulation 7680R stating the criteria for IEEs. (Dkt. No. 12, Attach. 3, at 17, 23; Dkt. No. 12, Attach. 4, at 16-18.) The regulation specifies $1,800 as the amount over which the District "may refuse to pay" for an IEE. (Dkt. No. 12, Attach. 3, at 17-18; Dkt. No. 12, Attach. 4, at 17.) In addition, the regulation provides, among other things, that, if a parent desires an IEE outside of the District's criteria, the parent has the "opportunity to demonstrate that their child's unique circumstances justify an IEE outside of the District's criteria. If the total cost of an IEE obtained by the parent . . . exceeds the District's cost criteria and there is no justification for the excess cost, the IEE will be publicly funded only to the extent of the District's maximum allowable charge." (Dkt. No. 12, Attach. 4, at 17.)

By letter dated April 19, 2010, Plaintiff stated, "As you know from my participation in the CSE meeting, I disagree/d with the Draft IEP 2010-11 and I also disagree/d with the recommendations on that Draft IEP for next school year." (Dkt. No. 12, Attach. 5, at 63.)

After April 22, 2010, Plaintiff reported that she had learned that an evaluation by Dr. Curley would cost in excess of $1,800. Plaintiff did not obtain an evaluation by Dr. Curley.

3. Plaintiff's Due Process Hearing and Appeal

By letter dated July 8, 2010, Plaintiff (by her attorneys) filed a Request for a Due Process Hearing. The Request complained that the District had approved Plaintiff's request for an IEE by Dr. Curley but capped its payment at $1,800, when the estimate full cost of the evaluation exceeded that amount. The Request did not allege that Plaintiff disagreed with an evaluation obtained by the District.

On or about July 14, 2010, the District provided Plaintiff with a written list of low-cost independent evaluators. (Dkt. No. 12, Attach. 5, at 99, 113 [attaching letter and list]; Dkt. No. 12, Attach. 5, at 115 [attaching Paragraph 11 of Plaintiff's Affidavit].) On that list was, among other information, the names of six clinics (public and private) qualified to perform independent evaluations for children suspected of having disabilities. (Id.) More specifically, these six clinics were as follows: (1) the Saratoga Mental Health Clinic; (2) the Child Guidance and Family Psychiatric Clinic; (3) the Child Research & Study Center; (4) the Child Guidance Center; (5) the Sunnyview Hospital & Rehab. Center; and (6) Four Winds--Saratoga. (Dkt. No. 12, Attach. 5, at 113 [attaching list].)

No admissible record evidence exists that, between July 14, 2010, and September 2010, Plaintiff attempted to call any of those clinics. (See, e.g., Dkt. No. 12, Attach. 5, at 115 [attaching Paragraphs 13 and 14 of Plaintiff's Affidavit, stating, on September 14, 2010, that she "recently" called those clinics, and that she made telephone calls in "September of 2010"].)*fn1 Finally, while the record contains evidence that, as of July 9, 2010, the first and fifth of the six above-listed clinics were not performing neuropsychological evaluations, ...


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