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V.M. v. North Colonie Central School Dist.

United States District Court, N.D. New York

June 20, 2013

V.M., individually and on behalf of G.M., a child with a disability, Plaintiff,

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For Plaintiff: JASON H. STERNE, ESQ., OF COUNSEL, OFFICE OF ANDREW K. CUDDY, Williamsville, New York.

For Defendant: KENNETH S. RITZENBERG, ESQ., OF COUNSEL, YOUNG, SOMMER LAW FIRM, Executive Woods, Albany, New York.


Mae A. D'Agostino, U.S. District Judge.

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On November 20, 2011, Plaintiff commenced this action for review of an August 22, 2011 administrative order issued by the New York State Education Department's Office of State Review. The administrative order sustained, in part, the decision and order of an impartial hearing officer (" IHO" ) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 et seq . (" IDEA" ) and Article 89 of the Education Law of the State of New York. See Dkt. No. 1. Defendant moves for summary judgment as to all of Plaintiff's claims, pursuant to Federal Rule of Civil Procedure 56.

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See Dkt. Nos. 9-11. Plaintiff opposes and cross moves for summary judgment. See Dkt. No. 13.


Plaintiff V.M. brings this action on behalf of her daughter, G.M., who was diagnosed with Down Syndrome at birth. See Dkt. No. 9 at ¶ 1. G.M. has been a student in the North Colonie School District since 2002, when she entered kindergarten. See id . at ¶ 7. Plaintiff filed a due process hearing request, alleging that Defendant violated the IDEA by failing to provide G.M. with a free appropriate public education (" FAPE" ) for the 2008-2009, 2009-2010, and 2010-2011 school years. See Dkt. No. 13-3 at 4.[2] After a hearing, the IHO determined that Defendant provided G.M. with a FAPE in 2008-2009 and 2009-2010, but denied her a FAPE in 2010-2011. See Dkt. No. 10-4 at 13. Defendant appealed to the State Review Officer (" SRO" ), who concluded that the IHO was correct in denying the claims with respect to 2008-2009 and 2009-2010; however, the SRO dismissed Plaintiff's claims for the 2010-2011 school year as moot. See Dkt. No. 10-5. The SRO also found that Plaintiff was precluded from alleging that G.M. was denied a FAPE with respect for all three school years because Plaintiff withheld consent for Defendant to conduct updated evaluations recommended by law. See id .


The IDEA is part of " an ambitious federal effort to promote the education of handicapped children." Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To accomplish this goal, Congress provides federal funds to those states that develop plans to assure that all children with disabilities have the right to a " free appropriate public education." 20 U.S.C. § 1412(1); see also Rowley, 458 U.S. at 181. The FAPE mandated by federal law must include special education and the necessary related services that are tailored to meet the unique needs of each particular student, and be " reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. " The 'centerpiece' of the IDEA's education delivery system is the 'individualized education program,' or 'IEP.'" Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)).

A school district has met its obligation to provide a FAPE when (a) the district complies with the procedural requirements of the IDEA, and (b) the IEP developed by the district is reasonably calculated to enable the student to receive educational benefits. See id . (citation omitted). The law expresses a strong preference for children with disabilities to be educated in an integrated setting with their non-disabled peers, to the extent that integration is appropriate. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation omitted). To that end, special education and related services must be provided in the " least restrictive environment" (" LRE" ) that is consistent with a child's needs. See id . A child should be segregated only " when the

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nature or severity" of a child's disability is such " that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(5).

Each year, a school official qualified in special education, the child's teacher, the child's parents, and, where appropriate, the child, should participate in the development of an IEP. See 20 U.S.C. § 1401(a)(20). The IEP should articulate the particular needs of the disabled child as well as the services required to meet those needs. See 20 U.S.C. § 1414(a)(5). Specifically, an IEP must state (1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. See 20 U.S.C. § 1401(a)(20).

Parents who are dissatisfied with a proposed IEP may file a complaint with the state educational agency. See 20 U.S.C. § 1415(b)(1)(E). Complaints are resolved through an " impartial due process hearing," during which school officials have the burden of showing the appropriateness of the proposed IEP. See 20 U.S.C. § 1415(b)(2); N.Y. Educ. Law § 4404(1)(c); see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184 (2d Cir. 2012). A local hearing officer's decision may be appealed to the state educational agency. See 20 U.S.C. § 1415(c). After this appeal, any party still aggrieved may bring suit in either state or federal court. See 20 U.S.C. § 1415(e)(2). A court will fashion appropriate relief based on its independent assessment of a preponderance of the evidence developed at the administrative proceedings and any further evidence presented by the parties. See id .

B. New York's Regulatory Scheme

As a recipient of federal funds under IDEA, New York State is required to comply with the IDEA's requirements. See Walczak, 142 F.3d at 123. New York State has assigned responsibility for developing appropriate IEPs to local Committees for Special Education (" CSEs" ), the members of which are appointed by school boards or the trustees of school districts. See N.Y. Educ. Law § 4402(1)(b)(1); see also Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992). In developing an individual child's IEP, the CSE is required to consider the following factors: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs. See 8 N.Y.C.R.R. § 200.1(kk)(2)(i). An IEP is not required to include short-term objectives or benchmarks unless the CSE has made a determination that the student will participate in alternative assessments, rather than participate in state and local assessments. See 8 N.Y.C.R.R. § 200.4(a)(2)(iv).

New York further requires that an IEP identify the child's specific class placement. See 8 N.Y.C.R.R. § 200.4(c)(2)(ix). In order to be grouped together in the same class, students must have sufficiently similar academic levels and learning characteristics so that each child will have the opportunity to achieve his or her annual goals. See 8 N.Y.C.R.R. § 200.6(a)(3)(i). Students may be grouped together in a special education class if they have the same disabilities or if they have " differing

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disabilities [but] . . . similar individual needs for the purpose of being provided a special education program." 8 N.Y.C.R.R. § 200.1(jj); see also 8 N.Y.C.R.R. § 200.6(g)(3). It is the responsibility of the CSE to assure that the " social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided." 8 N.Y.C.R.R. § 200.6(a)(3)(ii). The New York regulation cautions that the " social needs of a student shall not be the sole determinant" of his or her class placement, and that the CSE must also consider the management needs of the students in a class so that no student unduly interferes with others' ability to learn. 8 N.Y.C.R.R. § 200.6(a)(3)(ii); see also 8 N.Y.C.R.R. § 200.6(a)(3)(iv). Children whose disabilities present particular management concerns should be placed in smaller-than-average size classes, depending on the degree of intervention required. See 8 N.Y.C.R.R. § 200.6(g)(4).

C. Factual Background

1. 2002-2007 School Years

G.M. entered elementary school at Boght Hills Elementary School in the North Colonie Central School District and had the same Certified Special Education Teacher, Mary Yodis, from the time she was in first grade until sixth grade. See Dkt. No. 9 at ¶ 7. During G.M.'s kindergarten year, she underwent a psychological evaluation which found that she functioned in the impaired range with a full scale IQ of 60, and engaged in " shut down" behavior and displayed distractibility. See id . at ¶ ¶ 34, 35. The evaluating psychologist predicted that " mathematics concepts will likely be very difficult for G.M. to acquire" and concluded that " care must be taken to challenge G.M. without setting expectations that are well above her developmental levels," as this could cause " frustration and a decreased sense of efficacy in how she perceives herself academically." See id . at ¶ 38. Generally, G.M. was very social outside of the classroom and other students were very kind to her. See id . at ¶ 30. In the classroom, however, she was very quiet. See id . at ¶ 31. In 2004, near the end of G.M.'s second grade year, an assessment of her academic progress revealed that Defendant's attempt to integrate G.M. in the regular classroom setting for math lessons had " further confuse[d] [G.M.] from her basic concepts." See id . at ¶ 48. The report indicated that G.M. had the ability to learn rote factual information after frequent repetition, but this did not equate into a true conceptualization or actual ability to retain the information. See id . at ¶ 49.

In 2005, Plaintiff withheld consent for G.M.'s triennial reevaluation. See id . at ¶ 51. Instead, the District's Psychologist, Timothy Fowler, conducted a review of G.M.'s education file. See id . Mr. Fowler found that G.M. continued to require significantly modified lessons in all academic areas, new information to be broken down into manageable parts, and the opportunity for small group instruction at her level. See id . at ¶ 53. He recommended that G.M. continue to receive more specialized instruction and have additional testing, and found that the recommendations from G.M.'s kindergarten evaluation continued to be appropriate. See id . at ¶ ¶ 54-55.

2. 2007-2008 School Year

During the 2007-2008 school year, when G.M. was in the sixth grade, it became increasingly difficult to integrate G.M. with her peers, and very little integration took place between G.M. and students in regular classes. See id . at ¶ 11. She received special education consultant teacher

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services in science, social studies, language arts and writing, which took place in the typical classroom. See id . at ¶ 12. While in the regular classroom, a teaching assistant was present and G.M. received modified presentations that were based on similar concepts as those presented to other students. See id . at ¶ ¶ 14-18. For reading and math, G.M. received private instruction outside the classroom. See id . at ¶ 13. The special education teacher who provided services to G.M. worked in collaboration with the general education teacher, and the two met daily to exchange lesson plans and discuss how best to modify and present G.M.'s lessons. See id . at ¶ 19. Ms. Yodus, who was G.M.'s resource room teacher, consultant teacher, and tutor over the summers in reading and math, attempted to obtain text at a second grade reading level that would present sixth grade concepts. See id . at ¶ ¶ 9, 20.

G.M. needed instructions broken down, language simplified, and responded better when information was presented visually. See id . at ¶ 21. Due to her visual style, G.M. lost interest in reading material that did not have pictures. See id . at ¶ 23. She was able to decipher vocabulary and decode words, but struggled with reading comprehension. See id . at ¶ 21.

Just prior to the beginning of the 2007-2008 school year, Plaintiff continued to withhold consent for any reevaluation or cognitive testing. See id . at ¶ 56. This included the sixth grade cognitive ability testing, and meant that the CSE had to prepare G.M.'s IEP without the benefit of any new evaluative material. See id . at ¶ ¶ 56-57.

3. 2008-2009 School Year

Since Plaintiff withheld consent for further evaluations and cognitive testing, G.M.'s 2008-2009 IEP was developed without the benefit of new evaluative material. See id . at ¶ 58. For the 2008-2009 school year, G.M.'s IEP included placement in regular core classes to be taught by regular education teachers, with a special education consultant teacher assigned to work exclusively with G.M. in each class for thirty minutes per period. See id . at ¶ 112. The regular education teacher worked with the consultant teacher to modify the curriculum presented to G.M. See id . at ¶ 113. G.M. was also assigned an aide to assist her with organization. See id . at ¶ 116. The IEP did not contain short-term objectives, because G.M. did not receive an alternative assessment; instead, she was expected to participate in the same state and local assessments administered to typical students. See id . at ¶ 117.

On November 17, 2008, the CSE amended G.M.'s IEP to provide an Academic Skills-II class daily, which the CSE felt would better address her academic needs. See id . at ¶ 125. Plaintiff agreed to this change. See id . at ¶ 126. At the beginning of the school year, Ms. Betts was G.M.'s consultant teacher, however, in December, Ms. Kibler assumed this role. See id . at ¶ 132. After Plaintiff and Ms. Kibler had a disagreement over the services provided to G.M., she was replaced by Ms. Betts for the remainder of the 2008-2009 school year. See id . at ¶ ¶ 133, 135. The basis for the disagreement was that Ms. Kibler believed that G.M.'s consultant teacher services were not sufficient and that G.M. was not benefitting from her time in mainstreamed classes. See id . at ¶ 134. The parties do not dispute that G.M. received each and every special education and related service, modification, and accommodation contained in her 2008-2009 IEP. See id . at ¶ 137.

4. 2009-2010 School Year

In the 2009-2010 school year, when G.M. was in the eighth grade, she continued

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to struggle to comprehend the instruction in the classroom and was increasingly demonstrating emotional behavioral issues, including crying in the classroom, falling asleep in the classroom, and not complying with directions. See id . at ¶ 40. She received significantly modified curriculum in her mainstream classes and was responsible for understanding only a few key classroom concepts. See id . at ¶ 66. She received modified testing and limited multiple choice responses as accommodations. See id . During an October 2009 observation, G.M. was on task approximately 50 percent of the time and, when she was not paying attention, she was " putting her head on her desk, rubbing her eyes, looking around the room, looking for papers, observing other students, poking at peers, playing with her shoe laces, getting tissues, getting a drink, going to the bathroom, asking to call her mother, crying and closing her eyes." See id . at ¶ 68.

For the 2009-2010 school year, G.M.'s Academic Skills Class (" ACS" ) teacher, Gregory Bell, worked with Plaintiff to develop the IEP. See id . at ¶ 139. On June 23, 2009, the CSE met to plan G.M.'s 2009-2010 school year. See id . at ΒΆ 140. The CSE and Plaintiff agreed on an IEP that included special reading instruction with no more than five other students, special math instruction, special ASC-II instruction, a consultant teacher for the same three subjects as the prior school year, speech/language therapy, occupational ...

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