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M.F. v. New York City Board of Education

United States District Court, Second Circuit

June 4, 2013

M.F., individually and on behalf of C.F., Plaintiff,
NEW YORK CITY BOARD OF EDUCATION, d.b.a. NEW YORK CITY DEPARTMENT OF EDUCATION, and DENNIS M. WALCOTT, in his official capacity as Chancellor of the New York City School Districts, Defendants


PAUL G. GARDEPHE, District Judge.

Plaintiff M.F. brings this action - on behalf of herself and her son, C.F. - under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Defendants are the New York City Department of Education ("DOE") and its chancellor.

Plaintiff seeks to overturn a State Review Officer's decision reversing an Impartial Hearing Officer's finding that Plaintiff is entitled to tuition reimbursement and a retroactive direct tuition payment for the 2010-11 school year.[1]

Pending before the Court is Plaintiff's motion for summary judgment. For the reasons stated below, Plaintiff's motion will be GRANTED.


Under IDEA, "states receiving federal funds are required to provide all children with disabilities' a free appropriate public education.'" Gagliardo v. Arlington Centr. Sch. Dist. , 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Florida Union Free Sch. Dist. , 142 F.3d 119, 122 (2d Cir. 1998). A "free appropriate public education" ("FAPE") must include "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 (1982) (internal citations omitted)).

Special education and related services under IDEA are provided by a school district pursuant to an annual individualized education program ("IEP"). Walczak , 142 F.3d at 122; see also 20 U.S.C. § 1414(d). In New York, local committees on special education ("CSE") are responsible for developing appropriate IEPs. Id. at 123. "In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs" Gagliardo , 489 F.3d at 107-08 (2d Cir. 2007) (citing N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(ww)(3)(i)).

Parents who wish to challenge the adequacy of an IEP developed by their local CSE may request an impartial due process hearing before an impartial hearing officer ("IHO") appointed by the local school board. Id . (citing 20 U.S.C. § 1415(f) and N.Y. Educ. Law § 4404(1)). An aggrieved party may appeal an IHO's decision to a state review officer ("SRO"), and the SRO's decision may be challenged in either federal or state court. Id . (citing 20 U.S.C. §§ 1415(g), (i)(2)(A) and N.Y. Educ. Law § 4404(2)).

Parents pursuing an administrative challenge "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo , 489 F.3d at 111 (citing Sch. Comm. of Town of Burlington, Massy. Dep't of Educ. of Mass, 471 U.S. 359, 370 (1985)). Such reimbursement covers "expenses that [the school district] should have paid all along.'" T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist. , 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington, 471 U.S. at 370-71).

A request for private school tuition reimbursement, or for a retroactive direct tuition payment, requires a court to consider whether (1) "the school district [has] fail[ed] to provide a FAPE"; (2) "the private-school placement is appropriate"; and (3) the "equities" warrant a tuition reimbursement or direct payment award in full or in part. Forest Grove School Dist. v. T.A. , 557 U.S. 230, 247 (2009); see also Frank G. v. Bd. of Educ. of Hyde Park , 459 F.3d 356, 363-64 (2d Cir. 2006); Mr. & Mrs. A. ex rel. D.A. v. N.Y.C. Dept. of Educ. , 769 F.Supp.2d 403, 415 (S.D.N.Y. 2011); S.W. v. N.Y.C. Dept. of Educ. , 646 F.Supp.2d 346, 360 n.3 (S.D.N.Y. 2009). Because this analytical framework is the product of two Supreme Court decisions - School Committee of Town of Burlington, 471 U.S. at 370 and Florence County School District Four v. Carter , 510 U.S. 7, 15-16 (1993) - it is often referred to as the "Burlington/Carter test." Parents bear the burden of persuasion as to each element of a claim for private school tuition reimbursement. Schaffer v. Weast , 546 U.S. 49, 57-58 (2005).

Here, DOE conceded at the impartial hearing that the placement it offered to C.F. was not appropriate. (Transcript of Impartial Hearing ("Tr.") at 30-31; Pltf. R. 56.1 Stmt. ¶ 47[2]) Given DOE's concession that it did not offer C.F. a FAPE for the 2010-11 school year, the first prong of the Burlington/Carter test is satisfied. Accordingly, this Court must go on to consider whether the private school unilaterally chosen by M.F. - the Aaron School - was an appropriate placement and, if so, whether the equities favor tuition reimbursement and a retroactive direct tuition payment. See Forest Grove , 557 U.S. at 247.


By letters dated September 24, 2010 and September 29, 2010, Plaintiff requested an impartial hearing. (Riccardulli Decl., Exs. A, B; Pltf. R. 56.1 Stmt. ¶¶ 41-42) Plaintiff asserted that the school district's CSE had failed to provide C.F. with a FAPE, as the proposed placement and services did not "meet [C.F.'s] educational and other health needs." (Riccardulli Decl., Ex. B at 2) Plaintiff's letters sought "tuition to attend a 10-month program at the Aaron School... and any school fees and charges in connection therewith." (Id. at 3)

The impartial hearing was conducted on April 5, 2011. ( Id., Ex. D (IHO Decision) at 2) Plaintiff offered testimony from herself, from Dr. Debra Schepard, the director of the Aaron School, and from Regina Barrett, C.F.'s teacher at the Aaron School. (Id. at 4) DOE called no witnesses. (Id.)

A. The Evidence at the Impartial Hearing

C.F. is a nine-year-old boy who was diagnosed with Pervasive Developmental Disorder Not Otherwise Specified ("PPD/NOS") when he was about 18 months old. (Tr. 35-36) PPD/NOS manifests in the form of expressive and pragmatic language delays, physical limitations, and subsequent high anxiety. (Tr. 37-38; Dubinsky Decl. ¶ 3; M.F. Decl. ¶ 5, Exs. A-D (Rusk Institute Reports)). C.F. suffers from language deficits, particularly in connection with expressive and written language, and has trouble organizing and expressing his thoughts. (Tr. 37, 197) While C.F. performs at grade level, he requires "a structured and comfortable environment" as he "often struggles with overwhelming anger and negativity." (Dubinksky Decl. ¶¶ 14-6) C.F. also has deficits in motor planning, coordination, and physical strength (Tr. 38, 40-41), and he has difficulty with social interactions, such as initiating a conversation, staying on topic, and understanding others' perspectives. (Tr. 39) C.F.'s eligibility for special education and related services as a student with an "other health impairment" is not in dispute. (Pltf. R. 56.1 Stmt ¶ 1; M.F. Decl., Exs. E, F)

For school years 2007-08, 2008-09, and 2009-10, a CSE was convened in order to develop an IEP for C.F. (Id. ¶ 13) M.F. rejected the proffered public school placement each year, and enrolled C.F. at the Aaron School. (Id. ¶¶ 14-15) She also filed an impartial hearing request each year. (Id. ¶ 16) DOE entered into a settlement agreement with M.F. each year, in which it agreed to pay C.F.'s tuition at the Aaron School.[3] (Id. ¶ 17) C.F. also received Related Service Authorizations ("RSAs") for therapy outside of school, at DOE's expense. (Id. ¶¶ 18-19) C.F. attended the Aaron School from kindergarten through fourth grade. (Riccardulli Decl., Ex. D (IHO Decision) at 3)

The Aaron School serves children who are "average or better cognitively but need[] a small structured multi sensory approach to learning." (Tr. 133) The school's students have "challenges in the areas of language, attention, sensory, and social skill needs." (Id.) C.F.'s fourth grade class had 12 students with "language development delays, ... anxiety or other social or emotional needs, [and problems with] social skills [and] pragmatic language." (Tr. 59, 196) The class was taught by a teacher and teaching assistant. (Id.) While at the Aaron School, C.F. received occupational therapy, adaptive physical education, speech therapy, social skills therapy, and counseling, and participated in occupational therapy sessions referred to as the Alert Program.[4] (Tr. 60-65, 67-68)

1. The 2010-11 School Year

On April 26, 2010, the CSE conducted a meeting at which an IEP was developed for C.F. for the 2010-11 school year - C.F.'s fourth grade year. (Pltf. R. 56.1. Stmt. ¶ 20) M.F. attended the meeting, along with C.F.'s psychologist and his teacher at the Aaron School. (Tr. 45) The CSE recommended the following program for C.F.: "special class in a community school" with a staffing ratio of 12:1 and related services, including counseling, and occupational, physical, and speech therapy. (M.F. Decl., Ex. E (2010-11 IEP) at 8-9; Tr. 46) The CSE determined that C.F. did not require a 12-month school year, but the IEP included a notation that C.F. required counseling and occupational, physical, and speech therapy in July and August 2010 in order to prevent regression. (Id. at 1)

On July 16, 2010, DOE notified M.F. that C.F.'s placement for his 10-month school program would be P.S. 112 in Dutch Kills. (Pltf. R. 56.1 Stmt. ¶ 27; M.F. Decl., Ex. F) M.F. contacted the school, but was unable to arrange a visit until the school opened in September. (Tr. 51) Although the IEP called for the above-referenced RSAs during July and August 2010, the DOE refused to provide these services, telling M.F. that she would have to sue DOE in order to obtain them. (Tr. 46-47, 120) C.F.'s psychologist continued to work with C.F. during these summer months, agreeing to wait for payment. (Tr. 47-48; M.F. Decl. ¶ 16; Dubinsky Decl. ¶ 8)

M.F. signed a re-enrollment contract with the Aaron School on August 16, 2010, with the understanding that if DOE provided an appropriate placement for C.F., she would be permitted to withdraw him from the Aaron School. (M.F. Decl., Ex. G; Pltf. R. 56.1. Stmt. ¶ 30) The contract provides for tuition of $45, 675, with a non-refundable deposit of $5000 and the balance "due upon payment by [the] Department of Education." (Id.; Pltf. R. 56.1 Stmt. ¶¶ 32-33)

In an August 24, 2010 letter, Plaintiff informed DOE that she was rejecting the public school placement and intended to enroll C.F. at the Aaron School. (M.F. Decl., Ex. H) M.F. nonetheless visited DOE's proposed placement on September 8, 2010 - the first day of school - and met with the school's IEP facilitator and C.F.'s prospective teacher, and observed the proposed class. (Tr. 50-52; Pltf. R. 56.1 Stmt. ¶¶ 28-29) This visit confirmed M.F.'s view that the proposed public school placement was inappropriate for C.F., and C.F. remained enrolled at the Aaron School for fourth grade. (Tr. 52-53; Pltf. R. 56.1 Stmt. 30, 35)

Because Plaintiff was unable to afford more than the $5, 000 deposit, she still owes $40, 675 in tuition to the Aaron School for the 2010-11 school year. Accordingly, Plaintiff seeks reimbursement of her out of pocket expenses of $5, 000 and a retroactive direct tuition payment to the Aaron School of $40, 675. In addition to the services C.F. received at the Aaron School, he received one hour of counseling per week from his psychologist, who agreed to work without pay until the dispute between M.F. and the DOE was resolved. (Dubinksky Decl. ¶ 8)

B. Impartial Hearing Officer's Decision

On May 24, 2011, the IHO issued a decision in Plaintiff's favor, ordering DOE to (1) "directly pay $40, 675 to the Aaron School and pay $5000 as reimbursement to the parent for tuition for the 2010-2011 school year"; (2) issue RSAs for speech, occupational, and physical therapy - one hour per week - from May 24, 2011 through August 31, 2011; (3) directly pay for counseling services provided to C.F. from July 1, 2010 to May 24, 2011; and (4) issue RSAs for ...

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