Searching over 5,500,000 cases.


searching
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.

M.W. v. Board of Education of Enlarged City School District of Middletown

United States District Court, Second Circuit

June 12, 2013

M.W., on behalf of her minor daughter, A.W., Plaintiff,
v.
BOARD OF EDUCATION OF THE ENLARGED CITY SCHOOL DISTRICT OF MIDDLETOWN, NEW YORK, Defendant.

OPINION AND ORDER

EDGARDO RAMOS, District Judge.

Plaintiff M.W. (the "Parent") on behalf of her daughter, A.W. (the "Student"), brings this action against the Board of Education of the Enlarged City School District of Middletown, New York ("Defendant" or the "District") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., seeking to overturn the decision of the State Review Officer ("SRO") that the District is not required to reimburse the Parent for her unilateral placement of A.W. at the Franklin Academy ("Franklin") for a portion of the 2009-2010 school year and the entirety of the 2010-2011 school year. The parties have filed cross-motions for summary judgment. Docs. 10, 14. For the reasons set forth below, Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Motion for Summary Judgment is GRANTED.

I. Statutory Framework

Congress enacted the IDEA to encourage the education of children with disabilities. E.A.M. v. N.Y.C. Dep't of Educ., 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1 (S.D.N.Y. Sept. 29, 2012) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)). Under the statute, any state receiving federal funds must provide a free appropriate public education ("FAPE") to disabled children. 20 U.S.C. § 1412(a)(1)(A); Rowley, 458 U.S. at 180-81. Because New York State receives federal funds under the IDEA, it must comply with the requirements of the statute. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998).

To satisfy its obligation, the FAPE provided by the State must include "special education and related services" tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(9), and be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. These services must be administered in accordance with an Individualized Education Plan ("IEP"), which school districts must have in place at the beginning of each school year.[1] See 20 U.S.C. § 1414(d)(2)(A). An IEP is a written statement, collaboratively developed by the parents, educators, and specialists, 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.'" D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)), amended on denial of rehearing by 480 F.3d 138 (2d Cir. 2007); see also 20 U.S.C. § 1414(d)(1)(A)(i) (defining "IEP").

In New York, the task of developing an IEP rests with the local Committee on Special Education ("CSE"), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1); Heldman ex rel. T.H. v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992). "In developing a child's IEP, the 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.'" E.A.M., 2012 WL 4571794, at *1 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)). The IEP must be "reasonably calculated to enable the child to receive educational benefits, ... likely to produce progress, not regression, and [] afford[] the student with an opportunity greater than mere trivial advancement." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (internal quotation marks and citations omitted). However, a school district is not required to provide "every special service necessary to maximize each handicapped child's potential, " id. (citation and internal quotation marks omitted), or "everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132 (citation and internal quotation marks omitted).

The IDEA requires a school district to review a child's IEP "periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved, " 20 U.S.C. § 1414(d)(4)(A)(i), and to revise a student's IEP "as appropriate." 20 U.S.C. § 1414(d)(4)(A)(ii); see also 20 U.S.C. § 1414(d)(3)(D)-(d)(3)(F) (regarding the process for making changes to a child's IEP after the annual IEP meeting for a school year).

In New York, if a parent disagrees with an IEP prepared by a school district, the parent may challenge the IEP by requesting an "[i]mpartial due process hearing, " 20 U.S.C. § 1415(f), before an impartial hearing officer ("IHO") appointed by a local school board of education. See N.Y. Educ. Law § 4404(1)(a). The decision of the IHO may be appealed to a SRO, see N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g), and the SRO's decision may be challenged by any aggrieved party in either state or federal court. 20 U.S.C. § 1415(i)(2)(A). When reviewing the SRO's decision, a district court "shall receive the records of the administrative proceedings, " and "hear additional evidence at the request of a party." 20 U.S.C. § 1415(i)(2)(C)(i-ii). The district court shall then "grant such relief as the court determines is appropriate, " based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). Under the statute, appropriate relief may include reimbursement for the cost of a private school placement. E.A.M., 2012 WL 4571794, at *2 (citations omitted).

II. Factual Background[2]

A.W., currently eighteen years old, has been classified as learning disabled since kindergarten. Tr. 62, 522. The Student's classification is not in dispute. In this action, the Parent challenges the SRO's decision that the District provided A.W. with a FAPE for the 2009-2010 school year, including the portion of the year when A.W. attended Franklin Academy ("Franklin"), and the SRO's finding that Franklin was not an appropriate placement for A.W. for the 2010-2011 school year.

A. Educational History

1. 2005-2006 School Year

The earliest IEP contained in the administrative record relates to a CSE Program Review meeting for the 2005-2006 school year, which was held on July 27, 2005. D. Ex. 2. At that time, A.W. was enrolled in a twelve month program at Green Chimneys, a special day school, in accordance with a previous placement recommendation by the CSE. Id. at 1-2. According to the Parent, A.W. attended Green Chimneys for approximately two years. See Tr. 523; see also P. Ex. F, at 3.

The amended IEP that was developed at the July 27, 2005 CSE meeting indicates that A.W., who was in the sixth grade, was working with a 1:1 teaching assistant within a combined 16:2:2 special class setting, in which the Student had been placed by the school. D. Ex. 2, at 1. A.W. was also receiving related services of individual counseling for thirty minutes once a week, individual occupational therapy for thirty minutes twice a week, 3:1 occupational therapy for thirty minutes once a week, individual physical therapy for thirty minutes once a week, and individual vision services for thirty minutes twice a week. Id. at 2. Additionally, A.W. required daily access to a word processor and a number of testing accommodations. Id. at 2.

According to the IEP, A.W.'s cognitive ability was measured in the average to superior range, but A.W. had a "significant delay in math calculation, math concepts, written expression, [and] social skills, which inhibit[ed] participation in age appropriate activities." Id. at 3. In the area of social development, the IEP indicates that A.W. had a "difficult time regulating anger and frustration when things don't go her way, " a "very difficult time accepting limits and consequences for negative behavior, " and that A.W. could "become extremely verbally abusive when she does not get her way, often threatening staff and making up elaborate lies about teacher and other supportive staff." Id. at 4. In the area of physical development, the IEP notes the Student's "difficulties with fine motor coordination, handwriting, bimanual coordination, gross motor coordination, [and] processing and modulating sensory information." Id.

The discussion at the July 27, 2005 CSE Program Review meeting resulted in a recommendation that A.W. be placed in an 8:1:1 special class setting with an individual aide. Id. at 1. The CSE also recommended that related services continue "per the student's current IEP." Id.

On November 1, 2005, the CSE convened at the Parent's request to conduct another Program Review for the 2005-2006 school year. D. Ex. 1, at 1. According to the IEP, M.W. had requested that the CSE consider a different school placement for A.W. Id. After a lengthy discussion, the CSE recommended a residential placement for A.W., because of her "inconsistent progress" at Green Chimneys. Id. The IEP developed at the November 1, 2005 CSE meeting indicates that A.W. was to remain at Green Chimneys "pending placement in a more structured setting." Id.

On November 23, 2005, a Subcommittee on Special Education ("SCSE") convened for another Program Review for the 2005-2006 school year.[3] See D. Ex. 3. According to the IEP developed at the meeting, A.W. had been accepted at Devereux-Glenholme ("Glenholme"), id. at 1, an out-of-state nonpublic residential school which had been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. See N.Y. Comp. Codes R. & Regs. tit. 8, §§ 200.1(d), 200.7. Accordingly, the CSE recommended a twelve-month residential placement at Glenholme with a special 12:1:1 class setting. D. Ex. 3, at 1. The CSE also recommend related services of individual counseling for sixty minutes once a week, individual occupational therapy for thirty minutes twice a week, and 5:1 occupational therapy for thirty minutes once a week. Id. at 1, 2.

A.W. began attending Glenholme on December 12, 2005. Id. at 2. A discharge report prepared by Glenholme on June 1, 2010 indicates that A.W. was placed at Glenholme to address "oppositional behavior, poor social skills, verbal aggression, tantrums, poor self control, lying, anxiety, attention problems, challenging authority, social isolation, and parent/child conflicts." D. Ex. 10, at 1; see also Tr. 523-25.

On June 13, 2006, the CSE convened for another Program Review for the 2005-2006 school year. D. Ex. 5. According to the Meeting Minutes, A.W.'s teachers reported that she "continue[d] to do well in school, " and that she was "beginning to settle in to the routine of the program" at Glenholme. Id. at 1. After reviewing an assistive technology evaluation, the CSE made various recommendations regarding new supplementary services and assistive technology devices/services. Id. The Meeting Minutes state: "No changes are made to [A.W.'s] program at this time." Id.

2. 2006-2007 School Year

On March 22, 2006, the CSE convened to conduct another Program Review for the 2005-2006 school year, and an Annual Review for the 2006-2007 school year. See D. Ex. 4. The IEP developed for the 2006-2007 school year indicates that A.W. had "adjusted well to [the] program" at Glenholme, but that she continued to struggle with multiple step directions, organizational skills, and various behavioral problems. Id. at 1. Additionally, the IEP indicates that A.W., who was in the sixth grade, was performing at a fourth grade math level. Id. The CSE determined that a 12:1:1 special class setting at Glenholme continued to be appropriate for the 2006-2007 school year with related services of individual counseling for sixty minutes once a week and individual occupational therapy for sixty minutes once a week. Id. at 1-2. The Student's IEP for the 2006-2007 school year also included various supplementary aids, assistive technology devices/services and testing accommodations. Id. at 2-3.

3. 2007-2008 School Year

On May 2, 2007, the CSE convened to conduct an Annual Review for the 2007-2008 School Year. D. Ex. 6. The Comments section of the IEP indicates that A.W. had made "slow, steady gains" behaviorally, but that certain behavioral issues persisted. Id. at 1. A Glenholme treatment plan for the period April 2008-April 2009, which includes a list of inappropriate behaviors exhibited by A.W. in March 2008, indicates that A.W. continued to struggle with a number of behavioral problems throughout the 2007-2008 school year. See D. Ex. 17, at 22.[4]

Academically, A.W. was functioning at grade level in reading, but "[m]ath continue[d] to be an area of delay, " which was reportedly a source of frustration for the Student. D. Ex. 6, at 1. The IEP states, however, that "the student's frustration has decreased over the school year through [the] use of various modifications utilized so the student does not become overwhelmed." Id. The IEP also indicates that A.W.'s use of medication had decreased. Id. Additionally, A.W. had made "significant progress" in occupational therapy. Id.

As a result of the May 2, 2007 Annual Review, the CSE recommended that the Student's twelve-month residential placement at Glenholme in a special 12:1:1 class setting and related services of individual counseling for sixty minutes once a week and individual occupational therapy for thirty minutes once a week continue for the 2007-2008 school year. Id. at 1-2. A.W.'s IEP for the 2007-2008 school year also includes various program modifications, assistive technology devices/services and a number of testing accommodations. Id. at 2-3. Additionally, the CSE referred the Student for a speech language evaluation "to assess the need for therapy in pragmatics." Id. at 1.

The report of the Pragmatic and Spoken Language Evaluation, which was conducted on November 5, 2007, indicates that A.W. had received informal speech/language therapy services on a weekly basis since her admission to Glenholme in 2005. D. Ex. 15, at 1. The report also notes that A.W. was attending a "social communication skills group with female peers once a week to address her needs in the areas of pragmatic language, social problem solving, and conflict resolution." Id. The results of the evaluation "suggest[ed] mild difficulties in the area of pragmatic language that are exacerbated by [A.W.'s] emotional and behavioral challenges." Id. at 3. Based on the results of the testing, A.W. did not qualify for direct speech/language therapy services; however, the speech/language pathologist who conducted the evaluation recommended that A.W. "continue to be involved in structured group activities to learn and practice strategies for social awareness and problem solving, conflict resolution, and communicative competence." Id. The report notes that A.W. "continue[d] to benefit from the social teaching and structure provided by the Glenholme School, from the numerous classroom modifications and accommodations, and from her participation in the social-communication skills group." Id.

On June 12, 2008, the Glenholme school psychologist performed a psycho-educational evaluation of A.W. D. Ex. 16. According to the report of the evaluation, A.W. had been referred for assessment by the District's Planning and Placement Team for the purpose of determining her cognitive strengths and weakness, and how those strengths and weaknesses affected her academic performance. Id. at 1. In order to assess the Student's cognitive functioning, the Weschler Intelligence Scale for Children, Fourth Edition ("WISC-IV") was administered. Id. The WISC-IV yields a Full-Scale intelligence ("IQ") score that reflects a student's combined performance on 10 subtests and provides a composite measure of the student's verbal and nonverbal skills. Id. A.W. obtained a Full-Scale IQ of 89, which measured within the low average range. Id. at 2. The examiner noted that A.W. demonstrated variability across the subtests that comprise the Full-Scale IQ; for example, A.W.'s verbal expression and comprehension skills were described as "significantly more developed than her short-term auditory memory, visual scanning speed, and visual motor integration skills." Id. According to the report, the test results indicated that the Student was functioning "within the low average range of intelligence." Id. at 3.

As a result of the cognitive assessment, the examiner recommended, inter alia, teaching styles that "accent [A.W.'s] significant verbal comprehension and verbal expression strengths, " the consistent use of an assignment pad, planner or device to record daily assignments, and providing A.W. with models and samples on tasks requiring visual/spatial relationship skills. Id.

4. 2008-2009 School Year

a. 2008-2009 IEP

The IEP that was developed by the CSE for the 2008-2009 school year is not among the documents in the administrative record; however, an IEP from a March 4, 2009 Program Review meeting indicates that, for the 2008-2009 school year, A.W. remained in the twelve-month residential placement at Glenholme with related services of individual counseling for sixty minutes once a week and individual occupational therapy for thirty minutes once a week. D. Ex. 7, at 1-2. Additionally, according to a Glenholme annual update dated March 4, 2009, A.W. "continued to receive speech/language therapy services on an informal basis within the context of a collaboratively facilitated social communication skills group, " as well as structured group lessons and "social coaching throughout the day in every aspect of Glenholme's program." D. Ex. 17, at 21.

As a result of the discussion at the March 4, 2009 CSE meeting, three program modifications were added to the IEP: a copy of class notes, preferential seating, and shortened material on pages. D. Ex. 7, at 1, 2. As in prior years, the IEP for the 2008-2009 school year included a program modification of access to graph paper, as well as a recommendation regarding two assistive technology devices, and a number of testing accommodations. Id. at 2. Apart from the three new program modifications, the CSE recommended that A.W.'s program and related services remain the same. Id. at 1. The IEP states that M.W. was in agreement with the CSE's recommendations. Id.

b. Academic Performance

According to the IEP from the March 4, 2009 CSE meeting, A.W.'s teachers described her as "a good student who is motivated and works hard at all academic tasks presented, " but noted that she continued to perform below grade level in math and failed to demonstrate grade-appropriate organizational and study skills. Id. at 1, 4. The reports of A.W.'s academic performance provided by her teachers at a May 20, 2009 CSE meeting were largely the same. See D. Ex. 8, at 1.

A Glenholme teacher report prepared by A.W.'s math teacher in May 2009 indicates that she continued to receive instruction at an eighth grade level, and that she also required "modified work, with a significant amount of review and extra practice." D. Ex. 17, at 9. The math teacher's March 2009 report indicates that A.W. required extra help on several occasions, but she had declined the teacher's recommendation that A.W. attend "math help" one day per week. Id. at 17. The math teacher's report states that A.W. was "working very hard in math, " but was "putting a considerable amount of pressure on herself and [was] displaying characteristics of stress including rambling, short outbursts, and irritability." Id. The report also states that A.W.'s preoccupation with her placement in pre-Algebra, rather than Algebra, hindered her progress in the class. Id.

A Glenholme report card for the 2008-2009 school year shows that A.W. received grades of As and Bs in all of her academic subjects for both effort and achievement, and that she was on the honor roll for each of the four quarters of the 2008-2009 school year. D. Ex. 12, at 1-2.

c. Behavioral Progress

The Glenholme treatment plan for the April 2008-April 2009 period indicates that, as of February 2009, A.W. continued to exhibit the twelve inappropriate behaviors identified as problematic in March 2008, see supra note 4, as well as two newly identified inappropriate behaviors that were added her current treatment plan and to the treatment plan for the March 2009-March 2010 period.[5] D. Ex. 17, at 22-23. The February 2009 report summary states: "[w]ith regards to the twelve familiar behavioral objectives; three have increased in frequency, two have decreased in frequency and seven have remained consistent in frequency [sic] since her review last year." Id. at 24.

At the March 4, 2009 CSE meeting, A.W.'s teachers reported "a decrease in negative behaviors, " and noted that A.W. was not taking any medications and was "doing well." D. Ex. 7, at 1. In the area of social development, the IEP states that A.W. had "made a good adjustment to the school environment, " but notes that A.W. needed to "increase [her] ability to cope with frustration, " and "to develop age appropriate social/emotional skills with peers." Id. at 4. At the May 20, 2009 CSE Annual Review, A.W.'s teachers reported that she continued to exhibit inappropriate behaviors such as "interrupting and tattling" several times a week, but noted that A.W. had shown improvement with respect to several other inappropriate behaviors. D. Ex. 8, at 1. The IEP developed at the May 20, 2009 CSE meeting indicates that A.W. continued to struggle with coping skills, changes in environment, and appropriately handling frustrations, but that a "token economy"[6] was being employed with success. Id. The IEP also indicates that A.W. had started the "self-dependent process" in Glenholme's behavioral program, which she seemed to enjoy. Id. The Student was described as "positively engaged in the program." Id. A.W. was also making steady progress in occupational therapy. Id.

A Glenholme School Review Progress Update, dated May 20, 2009, indicates that A.W. continued to struggle with all fourteen of the inappropriate behaviors included in her March 2009-March 2010 treatment plan, and that the frequency of most of the behaviors had not changed since the March 2009 review. D. Ex. 17, at 13.

An updated clinical treatment plan created by Glenholme in late June 2009, with input from M.W. and A.W., indicates that A.W. had "made gains within the structure of the program and continue[d] to respond favorably to the structure of the program, " P. Ex. G, at 1, but that she continued to struggle with "recogniz[ing] and utilize[ing] appropriate coping skills for handling things that don't go her way, " communicating her needs in "emotionally charged situations, " and appropriately interacting with adults and peers. Id. at 2-4. The treatment plan created by Glenholme included goals, and objectives within each goal, to address A.W.'s problems with coping skills, interpersonal relations, social skills, ...


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.