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L.K. v. Northeast Sch. Dist.

United States District Court, S.D. New York

March 19, 2013

L.K. on behalf of her minor son, Q, Plaintiff,
Northeast School District, also known as Webutuck Central School District, Defendant

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For L.K., on behalf of her minor son Q, Plaintiff: Michael Howard Sussman, LEAD ATTORNEY, Sussman & Watkins, Goshen, NY.

For Northeast School District, also known as Webutuck Central School District, Defendant: Christopher P. Langlois, PRO HAC VICE, Girvin & Ferlazzo, P.C., Albany, NY; Karen S. Norlande, Girvin & Ferlazzo, P.C., Albany, NY.

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Edgardo Ramos, U.S.D.J.

Plaintiff L.K. (" Plaintiff" or the " Parent" ) on behalf of her son, Q.S., brings an action against the Northeast School District, also known as Webutuck Central School District (" Defendant" or the " District" ) under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., seeking to overturn the determination of the State Review Officer (" SRO" ) that the District is not required to reimburse the Parent for her unilateral placement of Q.S. at the Kildonan School (" Kildonan" ). The parties have filed cross-motions for summary judgment. Docs. 11, 28. For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED and the Defendant's motion for summary judgment is GRANTED.

I. Factual Background[1]

Plaintiff Q.S., currently nine years old, has been diagnosed as having, among other things, an anxiety disorder and attention deficit hyperactivity disorder (" ADHD" ). He demonstrates a range of needs in sensory processing and fine and gross motor performance. He also has difficulties with writing, reading social cues, initiating activities, and interacting with peers. Finally, Q.S. engages in impulsive behavior and lacks organizational skills. IHO Dec. at 4. The District has classified Q.S. as learning disabled and eligible for special education and related services; his classification is undisputed. Pl.'s Resp. 56.1 ¶ ¶ 1-2.

A. Educational History

In early 2005, when Q.S. was two years old, the Parent enrolled him in a nursery

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school program at the Rose Manor Day School (" Rose Manor" ) in Beacon, New York. Id. ¶ 3. At Rose Manor, Q.S. was placed in a class of ten students. In this setting, he suffered from anxiety and experienced difficulty with sensory integration and transitions. Id. ¶ 4. His anxiety increased when he was moved to a classroom of twenty-two students at the age of three. Id. ¶ 5; Tr. 63-64.

In May 2006, the Parent transferred Q.S. to the Nevaeh Montessori School (" Nevaeh" ), where he was placed in a class with five children and two teachers. Pl.'s Resp. 56.1 ¶ 5. At Nevaeh, Q.S. continued to experience difficulties. Specifically, his teacher advised that he could not work independently, required constant redirection, and had difficulty with fine motor activities and self-regulation. He continued to experience anxiety, was becoming increasingly controlling, and was having trouble socially. Id. ¶ 6.

In May 2007, when Q.S. was four years old, the Parent withdrew him from Nevaeh and enrolled him at the Wimpfheimer Nursery School Program of Vassar College (" Wimpfheimer" ) in Poughkeepsie, New York. At Wimpfheimer, Q.S. attended pre-kindergarten and kindergarten. Id. ¶ 7. His pre-kindergarten class had nineteen students, two full-time teachers and one assistant teacher. His kindergarten class had twenty-two or twenty-three students, together with two full-time teachers and one assistant teacher. IHO Dec. at 6. At Wimpfheimer, Q.S. received the following services: occupational therapy (" OT" ), physical therapy (" PT" ), speech therapy, social skills sessions, and services from a special education itinerant teacher (" SEIT" ). Id. ¶ 9. The Parent testified that during the second half of Q.S.' pre-kindergarten year, she began to receive feedback from Wimpfheimer that her son had difficulties with transitions and self-regulation, was very distracted, was struggling with hyperactivity, and easily became overwhelmed. He continued to struggle with those issues during his kindergarten year. IHO Dec. at 6-7. Also during that year, the Parent privately contracted for her son to receive Orton-Gillingham[2] tutoring in school three days per week. Tr. 72.

At the end of his kindergarten year, the Parent enrolled Q.S. in the first grade program at the Garden Road School (" Garden Road" ) in Crompond, New York after rejecting a public first grade inclusion class offered through the Beacon City School District (" Beacon SD" ). Pl.'s Resp. 56.1 ¶ 31. His class included only ten students. IHO Dec. at 9. There, Q.S. received related services, either through the Beacon SD or the Lakeland School District, which included two hours a week of consultant teacher services, group speech therapy twice a week for thirty minutes, PT and OT. Pl.'s Resp. 56.1 ¶ 36. He remained at Garden Road through the end of the first grade, which was the 2009-10 school year. IHO Dec. at 12.

In preparation for the 2010-11 school year, Q.S.' second grade year and the relevant school year in this case, the Parent researched and visited a number of private schools, including Kildonan, in search of a special needs school for her child. The Parent's search occurred during the period from Fall 2009 to March 2010. Pl.'s Resp. 56.1 ¶ 50. On April 9, 2010, the Beacon

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SD, Q.S.' then-district of residence, held an annual meeting of the Committee on Special Education (" CSE" ) to create an individualized education program (" IEP" ) for his 2010-11 school year. Id. ¶ 51. The resulting IEP recommended placement in a 12:1 integrated co-teaching second grade classroom at Beacon SD's elementary school with the support of a special education teacher's assistant, related services of 1:1 counseling twice a week and 1:1 OT two times a week. Ex. 4 at 1-2, 6-7; Pl.'s Resp. 56.1 ¶ 52. The Parent rejected Beacon SD's IEP. Pl.'s Resp. 56.1 ¶ 53. Then, on April 14, 2010, the Parent signed a Student Enrollment Agreement with Kildonan for the 2010-11 school year. Id. ¶ 54.

B. Testing of the Student

In February 2007, an OT evaluation conducted by Carolyn Machonis documented Q.S.' difficulty with sensory processing, sensory-motor abilities, and modulation, including modulation of motor skills, emotional reactivity and states of attention. Ex. 18 at 5. Dr. Patricia Thomas, Ph.D. (" Dr. Thomas" ), a licensed psychologist who was privately hired by the Parent and first met Q.S. when he was four years old, reviewed Machonis' evaluation and commented that difficulty with modulation can have a range of manifestations, including those identified by Machonis. Id.; IHO Dec. at 33; Def.'s Resp. 56.1 ¶ 12.

In March 2007, St. Francis Hospital and Health Centers (" SFFHC" ) conducted preschool program evaluations of Q.S. which included an educational assessment, a speech-language diagnostic evaluation, an OT evaluation and a psychological evaluation. Ex. 18 at 5-6. The educational assessment concluded that his readiness skills fell within the normal range of development. Id. at 5. The speech-language evaluation reported that Q.S. presented with inconsistent attention, weak pragmatic language skills, had difficulty organizing his language to express his thoughts and feelings when upset, and had difficulty staying on topic during a conversation. He also " worked to control the conversation interaction" by refusing to respond to certain topics. Id. The OT evaluation noted that Q.S. had difficulties with sensory processing, visual-motor integration, gravitational security, fine motor coordination, and postural control, which potentially impacted his capacity to engage with preschool materials, master developmental tasks and interact with his peers. Id. at 6. Finally, the psychological evaluation noted a " statistically significant discrepancy" between Q.S.' measured Verbal IQ of 131 and his measured Performance IQ of 108, and noted that behavioral profiles were " significant for emotional reactivity, anxiety or depression, somatic problems, withdrawn behavior, sleep problems, attention problems, and difficulty with aggression." Id.

In June 2007, Dr. Thomas conducted a psychological diagnostic testing evaluation which determined that Q.S. had a " disruption in the baseline of executive/regulatory functions to organize and modulate" which impacted a broad range of functions, including his sensory processing, emotional intensity, behavioral expression and motor coordination. Id. She also noted that he was " presenting reactivity (modulation) without sufficient form (organization)" in various domains of self-expression, including behavioral, emotional, attentional and motoric areas. Id. at 6-7. Additionally, his efforts to " self-regulate" included shutting down, avoidance and attempting to control a situation. Q.S. also exhibited difficulty with social reciprocity and reading social cues, which contributed to his feeling of social anxiety. Id. at 7; Pl.'s Resp. 56.1 ¶ 18.

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In May 2008, SFFHC conducted additional preschool evaluations of Q.S. which included an educational assessment and a speech and language evaluation. Ex. 18 at 7; Pl.'s Resp. 56.1 ¶ 19. The educational assessment noted that Q.S. experienced " significant delay" with self-help skills and challenges with gross motor skills. Ex. 18 at 7. The speech and language evaluation noted " inconsistency" in his ability to follow directions, found that he had difficulty following a conversational topic, and that he needed frequent repetition and clarification of information. Id. The assessment also noted that Q.S.' thinking was " literal and concrete," which caused problems in relation to abstract concepts. Id.

A June 2008 Psychiatric Treatment Report prepared by Dr. Flemming Graae noted that the Q.S. " struggle[d] massively with an array of anxieties and challenges" including phobic anxieties, fears of catastrophe, separation or loss, and anxiety negotiating the social world. The report also noted development delays in pragmatic language, sensory integration, attention and motor control. Id. at 7-8.

In September 2008, a Test of Language Competence and Assessment of Literacy and Language performed by Dr. Thomas noted that Q.S. had difficulty discerning intent if something was not clearly spelled out and had difficulty shifting his thinking. Id. at 8.

A November 7, 2008 School Consultation report prepared by Dr. Suzi Tortora, a dance movement psychotherapist who first began working with Q.S. when he was eighteen months old, observed that he had difficulty reading nonverbal cues, which contributed to controlling and avoiding behavior and hindered meaningful interaction with his peers. Id. Dr. Tortora's report also noted that Q.S. experienced distractibility, which made completing tasks difficult, and avoided activities that were challenging for him. Id.

Also in November 2008, the Arlington Central School District (" Arlington SD" ) conducted a speech and language evaluation of Q.S. which indicated " a widened gap" between his receptive and expressive language skills. Id. at 9; Ex. 24 at 3.

A December 15, 2008 OT evaluation by Suzanna Ward, physical therapist, noted that Q.S. presented with " a significant sensory processing disorder" which negatively impacted his ability to function successfully in the classroom and at home. He appeared to be unable to use auditory, visual and movement input effectively to make sense of what was happening around him. He had an inability to process movement and touch input effectively. His decreased tolerance for sensory input could cause him to become distressed and have difficulty working with peers. Further, Q.S.' delays in his visual motor skills, if not addressed, could have a negative impact on his handwriting skills. Exs. 18 at 9; 20 at 4-5.

A December 16, 2008 PT report noted that Q.S. demonstrated low average gross motor skills and he showed " significant delays" in the area of postural skills, which impacted his motor planning skills, bilateral coordination, core strength and overall physical endurance. Ex. 24 at 4. The report also stated that Q.S. used " much cognitive energy" to perform ordinary physical movements, and recommended PT services. Exs. 18 at 9; 21 at 3-4.

In October and November 2009, Dr. Thomas presented a Diagnostic Psychological Testing Evaluation of the Student. Ex. 18 at 1. As part of her evaluation, Dr. Thomas conducted a classroom observation of Q.S. at Garden Road and noted that he would stare off at times in his interactions with teachers and peers and that he avoided

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writing " at all cost." Id. at 1, 3-4. Dr. Thomas noted that: (1) he " conveyed a level of internal pressure to perform that ran high; " (2) he presented as " anxious, pressured, distractible and highly sensitive to what felt hard for him; " (3) he had difficulty with writing and working efficiently; and (4) he found it hard to listen to directions and explanations. Id. at 4-5. Dr. Thomas' noted that his sensory processing disorder affected his ability to coordinate smooth motor responses, his ability to make sense of " cause-and-effect," and his ability to understand the meaning of events in his life. Id. at 10. Further, his sensory processing difficulties affected his ability to regulate his inner states of emotion, attention and impulsivity, and to engage in social reciprocity. Id. Dr. Thomas also noted deficits in his executive function in the areas of organization and sequencing, social perception and attunement, visual discrimination, visual tracking, motor coordination, motor planning, visual-spatial orientation, and in graphomotor functioning. Id. at 11-20; Pl.'s Resp. 56.1 ¶ 41. Further, based on an examination of Q.S.' early reading skills and test results, Dr. Thomas reported that " while it would be accurate to say that he is reading at a first grade level he has been struggling to pull it off and he is not a fluent reader" and " [t]he picture that [Q.S.] presents is consistent with the diagnosis of dyslexia." Ex. 18 at 20-22; Pl.'s Resp. 56.1 ¶ 42.[3]

Finally, Dr. Thomas recommended that Q.S. receive a highly individualized academic program which offered structure and support for executive functions and which minimized the potential for Q.S. to become overstimulated or overwhelmed. Intervention for his learning disabilities and support therapies (speech-language and OT) should be integrated into the school day. Dr. Thomas also recommended a program of remedial reading which specifically addressed the " difficulty that he is experiencing conceptualizing where sounds fall in words and how to sequentially manipulate those sounds for spelling and reading." Ex. 18 at 24-25.

A December 7, 2009 PT Quarterly Progress Note reported that Q.S. continued to present with significant weakness of his trunk/core muscles; noted delays in gross motor development, balance, running speed and ability, strength, and motor planning and execution; and recommended the continuation of PT services. Ex. 16 at 1-2; Pl.'s Resp. 56.1 ¶ 45.

A December 8, 2009 OT Evaluation noted that Q.S. scored below average on testing for fine motor precision and upper limb coordination, which would impact his ability to successfully print or write letters and words; that he reflected difficulties in motor planning and vestibular skills; and recommended continuation of OT services. Ex. 15 at 1-2; Pl.'s Resp. 56.1 ¶ 46.

During the 2009-10 school year, Q.S. received OT services on a weekly basis. Ex. 12 at 1. An April 2, 2010 OT Annual Report stated that the Student showed continued needs in both fine and gross motor performance and sensory processing, and recommended that OT services be increased to two forty-five minute sessions per week for the 2010-11 school year. Id. at 1-2; Pl.'s Resp. 56.1 ¶ 47.

An April 5, 2010 PT report noted that Q.S. reflected " definite muscle weakness . . . [and problems with] static and dynamic balance, coordination and the execution of motor patterns," although noting that " poor attendance over the pas[t] 3 months

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makes it difficult to provide an accurate measurement of [his] level of motor performance." Ex. 14 at 2; Pl.'s Resp. 56.1 ¶ 48.

Finally, an April 6, 2010 Annual Report from Q.S.' consultant teacher noted, among other things, that he exhibited " difficulty executing control over the sizing of his print," " makes several letter reversals when he writes," and that behavioral issues impeded his ability to be successful in his writing skills. The report also noted that his organization skills continued to be an area of weakness, and that his impulsive behavior and hyperactivity ...

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