Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

B.M. v. New York City Department of Education

United States District Court, Second Circuit

May 14, 2013

B.M, individually and on behalf of E.M., Plaintiff,


JESSE M. FURMAN, District Judge.

Plaintiff B.M. brings this action pursuant to the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., challenging the education program offered by the New York City Department of Education ("DOE") to her son, E.M., a student with autism. B.M. asks this Court to vacate the decision and order of the New York State Review Officer and award 960 hours of special education tutoring as compensatory relief for the DOE's alleged denial of a free appropriate public education to E.M. For the reasons discussed below, Plaintiff's motion for summary judgment is DENIED, and Defendant's cross motion for summary judgment is GRANTED.


"Congress enacted the IDEA to promote the education of students with disabilities." M.P.G. ex rel. J.P. v. N.Y.C. Dep't of Educ., No. 08 Civ.8051 (TPG), 2010 WL 3398256, at *1 (S.D.N.Y. Aug. 27, 2010). The statute requires any state receiving federal funds to provide disabled children with a "free and appropriate public education (FAPE')." R.E. ex rel. J.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012). To that end, school districts are required to "create an individualized education program (IEP') for each such child" with disabilities. Id. at 175 (citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)). An IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Id. (internal quotation marks omitted). An IEP must be "reasonably calculated to enable the child to receive educational benefits." Id. (internal quotation marks omitted).

In New York, Committees on Special Education ("CSEs") - composed of the student's parent or parents, a regular or special education teacher, a school board representative, a parent representative, and others appointed by the local school district's board of education - are responsible for developing IEPs. See N.Y. Educ. Law § 4402(1)(b)(1); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). When doing so, a "CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E., 694 F.3d at 175. To comply with its substantive obligations under the IDEA, a school district must provide "an IEP that is likely to produce progress, not regression." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (quoting Walczak, 142 F.3d at 130).

Although the IDEA outlines both procedural and substantive requirements for IEPs, see 20 U.S.C. § 1414, it "does not itself articulate any specific level of educational benefits that must be provided through an IEP, " Walczak, 142 F.3d at 130. If a parent believes that his or her child's IEP is not compliant with the IDEA, the parent may file a due process complaint. See R.E., 694 F.3d at 175 (citing 20 U.S.C. § 1415(b)(6)). If a parent files a due process complaint, the school district has thirty days to remedy any deficiencies identified in the complaint without penalty. See id. at 187-88 (citing 20 U.S.C. § 1415(f)(1)(B)). If, at the end of this thirty-day "resolution period, " the parent feels his or her concerns have not been adequately addressed, the parent can continue with the due process claim. See id. The IDEA then mandates that states provide "impartial due process hearings" before "impartial hearing officers" ("IHOs"). See id. at 175 (citing 20 U.S.C. § 1415(f)). If dissatisfied with the IHO's ruling, either party may appeal the case to a state review officer ("SRO"). Id. (citing N.Y. Educ. Law § 4404(2)). After exhausting administrative remedies through this process, either party may bring a civil action in state or federal court to review the SRO's decision. See id. (citing 20 U.S.C. § 1415(i)(2)(A)).


E.M. was born on October 16, 1996, and is classified as a student with autism. (Pl.'s Resp. to Statement of Material Facts Not in Dispute ("Pl.'s Resp.") (Docket No. 23) §§ 1, 3). As such, E.M. qualifies as a "child with a disability" as defined by the IDEA. In December 2009, an IEP was developed for E.M. ( Id. § 7). Pursuant to that plan, E.M. was enrolled in a twelve-month school program. ( Id. ). He attended P188@MS310("P188"), a DOE District 75 school for students with disabilities. ( Id. § 5). E.M. began the 2010-11 school year in a general education classroom with Special Education Teacher Support Services ("SETSS") provided fifteen periods per week, and support from a paraprofessional forty periods per week. ( Id. § 7). E.M. also received speech-language therapy three times a week, occupational therapy twice a week, and counseling once a week. ( Id. § 9).

On December 14, 2010, a DOE CSE convened to create a new, superseding IEP for E.M. for the upcoming twelve-month period. ( Id. § 10). The CSE was composed of E.M.'s mother, B.M.; an Assistant Principal of P188; E.M.'s SETSS teacher; a guidance counselor; an occupational therapist; and a speech-language pathologist. ( Id. ) . The new IEP recommended that the previous IEP be extended an additional twelve months and set forth ten annual goals, each with several short-term objectives. ( Id. §§ 11-12).

On May 17, 2011, E.M.'s parents filed a due process complaint ("Complaint") asking for an impartial hearing and alleging that the DOE had not provided E.M. with a FAPE for the 2010-11 school year. ( Id. § 25; Compl., Hearing Officer's Decision, Parent Ex. A ("Compl.")). The Complaint alleged that E.M. was denied a FAPE on nine grounds. (Compl. 2-3). First and foremost, it alleged that the IEP was not appropriate. ( Id. 2). It stated, for example, that the IEP did not challenge E.M. academically and that the paraprofessional was not working with him constructively. ( Id. ). It alleged that the paraprofessional did E.M.'s work for him and failed to sufficiently monitor him, noting an occasion when E.M. left school in the Bronx and was found by police in Manhattan. ( Id. ). The Complaint took issue with the way E.M.'s teachers handled his negative behavior and alleged that "the mainstream teachers d[id] not seem to have training to work with students on the autism spectrum." ( Id. ).

In addition to alleging an inadequate IEP, the Complaint also alleged that the DOE failed to (1) indicate accurate Present Levels of Educational Performance; (2) develop appropriate goals and objectives; (3) provide required progress reports to E.M.'s parents; (4) provide transitional services or parent counseling and training; (5) conduct a legally compliant CSE; (6) conduct an appropriate Functional Behavioral Assessment; (7) develop a Behavioral Intervention Plan ("BIP"); or (8) properly evaluate E.M. ( Id. 2-3).

On May 31, 2011, the DOE convened a resolution session to address Plaintiff's allegations. (Hearing Officer's Findings of Fact and Decision ("IHO Decision") 2). At the session, the DOE offered to enter into a resolution agreement in which it would conduct a triennial evaluation of E.M., perform a Functional Behavioral Assessment and develop a Behavioral Intervention Plan. ( Id. ) . It was further agreed that "a CSE review would be held to review updated evaluations with full parental participation where the concerns raised in the hearing request would be addressed." (IHO Decision 2-3). At the session, DOE representatives asked E.M.'s parents' advocate to clarify what "corrective services" they sought. (IHO Decision 2; Pls.' Resp. §§ 31-32). According to the IHO, the advocate "refused to make a demand and the issue of corrective services was not further discussed and left to be determined at [the] hearing." (IHO Decision 2). The IHO concluded that "all the substantive issues raised in the parents' due process complaint notice were resolved." ( Id. ).

At a pre-hearing conference held on June 16, 2011, the remaining issues for the upcoming hearing were discussed. ( Id. at 3). Evaluations had already been conducted, and the CSE meeting was scheduled for July 12, 2011. ( Id. ). The IHO stated that E.M.'s parents were satisfied with the resolution that had been reached and that, according to the parents' attorney, the only remaining issue for the IHO's determination was "whether the student is entitled to corrective services as a result of the parents' claim that services were not provided to the student during the 2010-11 school year." ( Id. ). In order to make that determination, the IHO explained that she must first determine whether the 2010 IEP denied E.M. a FAPE. ( Id. ).[1] Neither party objected to, or further clarified, the IHO's summary of the foregoing events, and the hearing was held on July 5, 2011, and August 22, 2011. (Decision of the State Review Officer ("SRO Decision") 5).

In their closing brief, submitted after the hearing but before the IHO's decision, E.M.'s parents argued that, among other things, the DOE had failed to offer E.M. a FAPE because his SETSS teacher for the 2009-10 and 2010-11 school years, John Sardo, was not certified to teach special education. ( Id. at 5). They alleged that this was a "failure to implement the IEP as written." ( Id. (internal quotation marks omitted)). E.M.'s parents requested an award of 960 hours of "direct education tutoring services, to be provided at [their] discretion, and available for the remainder of [E.M.'s] eligibility for services." ( Id. at 6 (internal quotation marks omitted)). The ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.