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D.C. ex rel. E.B. v. New York City Dep't of Educ.

United States District Court, S.D. New York

March 25, 2013

D.C. EX REL E.B., Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., Defendants

Page 495

For D.C. on behalf of E.B., Plaintiff: Caroline Jean Heller, Greenberg Traurig, LLP, New York, NY; Lauren Callan Harrison, Greenberg Traurig, LLP (NYC), New York, NY.

For New York City Department of Education, Dennis M. Walcott, in his official capacity as Chancellor of the New York City School District, Defendants: David Alan Rosinus, Jr., LEAD ATTORNEY, New York City Law Department, New York, NY.

Page 496

OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiff, D.C., brings this action on behalf of her son, E.B., pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400 et seq., and Section 504 of the Rehabilitation Act of 1973 (" Section 504" ), 29 U.S.C. § § 794 et seq., against the New York City Department of Education and Dennis M. Walcott in his official capacity as Chancellor of the New York City School District (collectively " the Department" ). The plaintiff challenges the decision of the State Review Officer (" SRO" ) denying her claim for payment of E.B.'s tuition for the Rebecca School, a private school at which D.C. unilaterally placed E.B. for the 2010-2011 school year. The SRO's decision affirmed

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in part the decision of an Impartial Hearing Officer (" IHO" ). The plaintiff also alleges that the defendants discriminated against E.B. and violated Section 504 by not accommodating D.C.'s seafood allergy. The parties have cross-moved for summary judgment. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(2)(A).

For the reasons explained below, D.C.'s motion for summary judgment on the IDEA claim is granted and the defendants' motion for summary judgment is denied. All parties' motions for summary judgment on the Section 504 claim are denied.

I.

" Under the IDEA, states receiving federal funds are required to provide 'all children with disabilities' a 'free appropriate public education.'" Gagliardo v. Arlington Cent. Sch. Dist. (" Gagliardo II" ), 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). A free appropriate public education (" FAPE" ) must provide " special education and related services tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak, 142 F.3d at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks and citation omitted)). Because the IDEA expresses a " strong preference for children with disabilities to be educated, 'to the maximum extent appropriate,' together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child's needs." Id. (internal citation omitted); see also R.S. ex rel. A.S. v. Lakeland Cent. School Dist., No. 09 Civ. 9874, 2011 WL 1198458, at *1 (S.D.N.Y. March 30, 2011).

" To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ('IEP') for each such child." R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the " centerpiece" of the IDEA system)). The IDEA requires that an IEP be " reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. In New York, the responsibility for developing an appropriate IEP for a child is assigned to a local Committee on Special Education (" CSE" ). Walczak, 142 F.3d at 123. " CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others." R.E., 694 F.3d at 175 (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). " The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." Id. (citing Gagliardo II, 489 F.3d at 107-08).

Parents in New York who wish to challenge their child's IEP as insufficient under the IDEA may request an impartial due process hearing before an IHO appointed by the local board of education. Walczak, 142 F.3d at 123 (citing 20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1)). A party may appeal the decision of the IHO to an SRO, and the SRO's decision may be challenged in either state or federal court. Id. (citing 20 U.S.C. § 1415(g), 1415(i)(2)(A) and N.Y. Educ. Law § 4404(2)); see also R.S., 2011 WL 1198458, at *1. In addition, if a school district fails to provide a FAPE to a child with disabilities, the child's parents may, at their own financial risk, remove the

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child from the improper placement, enroll the child in an appropriate private school, and retroactively seek reimbursement for the cost of private school from the state. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

Under the IDEA, a district court must conduct an independent review of the administrative record, along with any additional evidence presented by the parties, and must determine by a preponderance of the evidence whether the IDEA's provisions have been met.[1] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380-81, 74 Fed.Appx. 137 (2d Cir. 2003); See also Gagliardo II, 489 F.3d at 112. This independent review, however, is " by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206.[2]

In a recent opinion, the Second Circuit Court of Appeals explained that " the standard for reviewing administrative determinations 'requires a more critical appraisal of the agency determination than clear-error review . . . but . . . nevertheless[] falls well short of complete de novo review. . . . [I]n the course of th[is] oversight, the persuasiveness of a particular administrative finding, or the lack thereof, is likely to tell the tale.'" M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993)). " [T]he district court's analysis will hinge on the kinds of considerations that normally determine whether any particular judgment is persuasive, for example whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court. But the district court's determination of the persuasiveness of an administrative finding must also be colored by an accute [sic] awareness of institutional competence and role." Id.

The Court of Appeals has also explained that " federal courts reviewing administrative decisions must give 'due weight' to these proceedings, mindful that the judiciary generally 'lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Gagliardo II, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005). Deference to the decision in the administrative record is particularly appropriate when the administrative officers' review has been thorough and careful, and when the court's decision is based solely on the administrative record. See Walczak, 142 F.3d at 129; Frank G. v. Bd. of Educ., 459 F.3d 356, 367 (2d Cir. 2006); see also R.S., 2011 WL 1198458, at *1.

II.

The following facts and procedural background are taken from the administrative record and the submissions of the parties.

Page 499

The facts are undisputed unless otherwise noted.

A. IEP AND PLACEMENT

D.C is the mother of E.B., a child classified with autism and diagnosed with pervasive development disorder, mild mental retardation, and severe language disorder. (Pl.'s R. 56.1 Stmt. ¶ 1; Defs.' Resp. to Pl.'s R. 56.1 Stmt. (" Defs.' 56.1 Resp." ) ¶ 1; Ex. 1 (" IEP" ) at 5.)[3] E.B. was born in 2000 and was ten years old at the time of the 2010-2011 school year. (IEP at 1.) E.B. has also been diagnosed with asthma and has severe allergies to seafood. (Pl.'s R. 56.1 Stmt. ¶ ¶ 1-2; Defs.' 56.1 Resp. ¶ ¶ 1-2.) E.B.'s seafood allergy is triggered not only by ingestion of seafood particles, but also by skin exposure, such as by touch, or aerosol exposure, such as by smell. (Ex. X at 3; see also Tr. 289-96.)[4] The allergy is so severe that it causes anaphylaxis, the most severe form of allergic reaction which is, by definition, life threatening. (Ex. X at 3.)

E.B. has attended the Rebecca School, a non-public school in New York City, since 2007. (Tr. 296.) The plaintiff represents that the Department paid for the Rebecca School for the 2007-2008, 2008-2009, and 2009-2010 school years.[5] (Tr. 27; Exs. R & S; Verified Pet.[6] ¶ 7.)

As of April 2010, there had not been a CSE meeting and E.B. had not received an IEP for the 2010-2011 school year. (See IEP; Ex. F.) On April 30, 2010, D.C. entered into an enrollment contract with the Rebecca School for E.B. for the 2010-2011 school year. (Ex. Q.) The plaintiff represents that D.C. entered into the enrollment contract because she was concerned that the Department would fail to place E.B. at a school for the 2010-2011 school year, as it had in years past, and E.B. would lose his spot at the Rebecca School. (Verified Ans.[7] ¶ ¶ 44-45; Hr'g Tr. 8, Feb. 22, 2013.) The enrollment contract provided that D.C. would pay tuition of $92,100. (Ex. Q at 1.) The contract further provided that D.C. would have no obligation to pay tuition if she subsequently placed E.B. in a school in accordance with the as-of-yet undeveloped IEP for the 2010-2011 school year:

[D.C.] will be released from continuing responsibility for tuition payments under this contract, and Rebecca School will reimburse [D.C.] for all prior payments, excluding the non-refundable deposit, upon written notice, no later than September 7, 2010, that [E.B.] has been enrolled in a class or school recommended by the Department of Education

Page 500

. . . in accordance with an IEP prepared by a [CSE].

(Ex. Q at 2.)

On or about May 25, 2010, the Department convened a CSE meeting to develop an IEP for E.B. for the 2010-2011 school year. (Pl.'s R. 56.1 Stmt. ¶ 4; Defs.' 56.1 Resp. ¶ 4.) Present at this meeting were D.C., E.B.'s mother; Spencer Leeds, E.B.'s teacher from the Rebecca School; Gwen Levine, E.B.'s social worker from the Rebecca School; Ellen Gordon, a school district representative and special education teacher; Dr. Patricia Pape, a school psychologist; a parent representative; and D.C.'s attorney. (Pl.'s R. 56.1 Stmt. ¶ 4; Defs.' 56.1 Resp. ¶ 4.)

Because E.B. had attended the Rebecca School for the prior academic year, the CSE relied primarily on two interdisciplinary progress reports it received from the Rebecca School. (See Exs. R & S; Tr. 26-27.) At the Rebecca School, E.B. had been in a classroom with seven other students, one head teacher, and four assistant teachers (" 8:1:4" ). (Ex. S at 1.) The May 2010 Interdisciplinary Report indicated that with respect to communication and reading comprehension, E.B. had improved through the help of " maximum adult support." (Ex. S at 2-3.) Additionally, Ellen Gordon, a Department employee, observed E.B. for one day at the Rebecca School. (Ex. O.) Her report made no recommendation.

The CSE considered and rejected an IEP with student/teacher/paraprofessional ratios of 12:1:1 and 8:1:1 because they were insufficiently supportive of E.B.'s needs. (IEP at 16; Ex. F at 2.) The CSE recognized that E.B.'s social development was still " highly dependent o[n] adult engagement" but believed that E.B. " was improving and expanding his ability to respond to his peers . . . ." (Tr. 53.) The CSE decided that a class ratio of six students to one teacher and one paraprofessional (" 6:1:1" ) ratio was appropriate for E.B. (Pl.'s R. 56.1 Stmt. ¶ 6; Defs.' 56.1 Resp. ¶ 6.) At the CSE meeting, E.B.'s mother, teacher, social worker, and attorney each expressed their opinions that E.B. needed more individualized support--closer to 1:1 as the 8:1:4 class at the Rebecca School had provided--than a 6:1:1 class could offer. (Tr. 49-51, Ex. F at 2.) However, the CSE did not consider an 8:1:4 class, or any class with a ratio lower than 6:1:1. (Tr. 52.) There was no dispute at the CSE meeting that E.B. required an environment that was seafood free. (Tr. 35.)

The resulting IEP classified E.B. as autistic with a number of other disabilities and recommended a twelve-month school year. (Pl.'s R. 56.1 Stmt. ¶ 6; Defs.' 56.1 Resp. ¶ 6; IEP at 5.) The plaintiff represents that twelve-month school years begin in the summer term; therefore the May 2010 IEP called for E.B. to begin his new program in July 2010. (Pl.'s Mem. Supp. Mot. Summ. J. at 6.) The IEP provided that E.B. would be placed into a special class in a specialized school with a staffing ratio of 6:1:1 for the 2010-2011 school year. (Pl.'s R. 56.1 Stmt. ¶ 6; Defs.' 56.1 Resp. ¶ 6.) The IEP recommended related services in speech therapy, adaptive education and program accessibility. (Pl.'s R. 56.1 Stmt. ¶ 6; Defs.' 56.1 Resp. ¶ 6.) The IEP set a number of academic, physical, social and emotional goals as well. (See generally IEP at 8-20.) The IEP also indicated that E.B. had a severe seafood and fish allergy and there could be " no seafood in his environment" because he could go into anaphylactic shock. (IEP at 1, 5.) The IEP further provided that E.B. required an Epi-pen and a nurse on site to monitor his allergies and asthma.[8] (IEP at 5.)

Page 501

On June 14, 2010, the Department mailed D.C. a final notice of recommendation (" FNR" ) offering a classroom at P188X @ P034X (" P188" ) that allegedly provided the services listed in the IEP. (Ex. 5.) The FNR stated that " [i]f we do not hear from you by June 28, 2010, the recommended services will be put into effect for the 2010-2011 school year." (Ex. 5.) D.C. received the FNR on June 16, 2010. (Ex. B.) The following day, D.C. contacted P188 to arrange a tour and was informed that the earliest available tour date was July 13, 2010. (Ex. B.) During her phone call to P188, D.C. was allegedly told that all of the children at P188 were served lunch together in the cafeteria. (Ex. C.)

On June 22, 2010, D.C. notified the defendants of her intention to place E.B. unilaterally in the Rebecca School for the 2010 summer session and the 2010-2011 school year. (Pl.'s R. 56.1 Stmt. ¶ 9; Defs.' 56.1 Resp. ¶ 9; Ex. C.) The 2010 summer session at the Rebecca School was set to begin July 6, 2010, a week before D.C. was scheduled to tour P188. (Ex. C.) D.C. alleges that she provided notice of unilateral placement in order to comply with IDEA's procedural requirement[9] and also to insure that if, upon a tour of P188 she found the facility inadequate, E.B. would have no interruption in his education. (Hr'g Tr. 8; Pl.'s Mem. Supp. Summ. J. at 4; Tr. 306-07.) In the notice of unilateral placement, D.C.'s attorney explained that because D.C. was informed over the phone that all of the children at P188 were served lunch together in the cafeteria, D.C. had reservations regarding whether the school could accommodate E.B.'s allergy and provide a seafood free environment as the IEP required. (Ex. C.) The letter indicated that D.C. would be seeking tuition payment for the 2010-2011 school year as well as the provision of roundtrip air conditioned transportation for E.B. to and from the Rebecca School, which he required for his disability. (Ex. C.)

On June 23, 2010, D.C. wrote another letter informing the Department that because P188 was unable to provide a tour until July, she would be unable to accept or reject the proposed placement at P188 by the FNR deadline of June 28, 2010. (Ex. B.) D.C. requested an extension of time to decide whether to accept or reject the placement until she had taken a tour of P188. (Ex. B.) Defense counsel conceded at the argument of the pending motions that the Department did not respond.

D.C. placed E.B. into the Rebecca School for the summer session. (Tr. 307.) On July 14, 2010, D.C. took a tour of P188 with her attorney, and with E.B.'s social worker, Gwen Levine. (Ex. D at 1; Hearing Officer's Finding of Facts & Decision (" IHO Op." ) at 12.).[10] On the day of the visit, seafood was posted on the third floor cafeteria lunch menu. (IHO Op. at 12.) During the tour, the P188 Parent Coordinator, Dawn Zerbo, informed the visitors

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that the cafeteria was not seafood free and that P188 participated in the New York City School Lunch Program, which included fish on its menu. (Tr. 393-95; Ex. Z at 2.) Moreover, students were allowed to bring lunch from home and that lunch could include seafood. (Tr. 394.) The Parent Coordinator also informed D.C. and Ms. Levine that seafood was prepared by high school students in the on-campus work site cafeteria on the third floor and was served in the teacher's lounge next door.[11] (IHO Op. at 12; Tr. 310, 393; Ex. D at 2; Ex. Z at 2.)

D.C. also spoke with one of the school nurses who confirmed that, at the time of the tour, the environment was not seafood free. The nurse informed her that the school could not control for the " airborne allergy" or the " smell trigger when the food was being cooked." (Tr. 310, 395; IHO Op. at 12; Ex. D at 2; Ex. Z at 2-3.) The nurse explained that " [E.B.] would be isolated for lunch during the days when fish [was] served" by eating in his classroom with a paraprofessional. (Tr. 395; IHO Op. at 12; Ex. D at 2; Ex. Z at 2-3.)

On July 21, 2010, after the visit to P188, D.C. informed the Department, by a letter from her attorney, that she was rejecting the placement at P188 as inappropriate for E.B. (Ex. D.) The rejection letter explained that D.C. was rejecting the placement for several reasons: First, based on the information provided to D.C. during the tour, which the letter recounted in detail, P188 was not a seafood free environment as required in the IEP. Second, the school lacked the proper occupational therapy equipment and the ability to accommodate E.B.'s therapy regime. Third, the school used a teaching method, TEACCH[12] that was inappropriate and ineffective for E.B. Fourth, E.B. would receive no more than 6:1:1 support, despite the requests during the CSE meeting for a lower ratio and more individualized support.[13] (Ex. D at 1-2.) The letter stated that if the Department recommended an appropriate placement, D.C. would be willing to take a tour to assess its adequacy. (Ex. D at 3.)

The Department neither offered an alternative placement nor attempted to correct any misimpression that may have been created during D.C.'s tour regarding the allergy protocol or lunch ...


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