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P.G. v. New York City Dep't of Educ.

United States District Court, S.D. New York

July 22, 2013

P.G. and D.G., Plaintiffs,
The New York City Department of Education, Defendant

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For P.G., individually and on behalf of J.G., D.G., individually and on behalf of J.G., Plaintiffs: Lauren A. Baum, Lauren A. Baum, P.C., New York, NY.

For The New York City Department of Education, Defendant: Carolyn Elizabeth Kruk, LEAD ATTORNEY, NYC Law Department, New York, NY.


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ALISON J. NATHAN, United States District Judge.

Plaintiffs, P.G. and D.G. (" the Parents" ), individually and on behalf of their minor child, J.G., bring this action pursuant to the Individuals with Disabilities Education Improvement Act against Defendant New York City Department of Education (" DOE" ). Plaintiffs seek review of the April 6, 2012 administrative decision of State Review Officer (" SRO" ) Justyn P. Bates, which concluded that the DOE had provided J.G. with an adequate individualized education program, and reversed the prior decision of a state Impartial Hearing Officer (" IHO" ) who had found otherwise. Because Plaintiffs assert that the DOE failed to provide a fair and appropriate public education for their child, they seek reimbursement for the cost of his enrollment in the Eagle Hill School (" Eagle Hill" ), a " non-profit" private school in which they unilaterally opted to enroll J.G.

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for the 2010-2011 academic year. The parties have filed cross motions for summary judgment. For the reasons that follow, Plaintiffs' motion is DENIED in part and Defendant's motion is GRANTED in part, and the matter is REMANDED in part to the SRO for further consideration of the record.


A. Background on the IDEA

The Individuals with Disabilities Education Improvement Act (" IDEIA" ), 20 U.S.C. § 1400 et seq .--the most recent iteration of the Individuals with Disabilities Education Act (" IDEA" )--provides federal funds to states that provide a free appropriate public education (" FAPE" ) to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A). " The ['FAPE'] mandated by federal law 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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley , 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Special education services are administered pursuant to an individualized education program (" IEP" ), or " a written statement for each child with a disability," that sets out the child's educational performance and goals and the services that will be provided to enable the child to meet those goals. 20 U.S.C. § 1414(d)(1)(A); Schaffer v. Weast , 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). The IEP is to be developed collaboratively by the child's parents, educators and representatives of the local education authority (including at least one special education teacher), among others. 20 U.S.C. § 1414(d)(1)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (citing Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). A new IEP must be implemented each year. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007).

While the IDEA " does not itself articulate any specific level of educational benefits that must be provided through an IEP," Walczak , 142 F.3d at 130, " the courts have developed standards to determine what the statute requires." New York City Dep't of Educ. v. V.S., 2011 WL 3273822 (E.D.N.Y. July 29, 2011). To provide a FAPE, an IEP must " be sufficient to confer some educational benefit upon the handicapped child," but the statute does not require " the furnishing of every special service necessary to maximize each handicapped child's potential[.]" Bd. Of Educ. of Hendrick Hudson Cent. Sch. Dist, Westchester Cnty. v. Rowley , 458 U.S. 176, 199-200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). " Rather, a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 (2d Cir. 2005) (quotation marks omitted).

B. The IEP Process in New York

Though it does not set out substantive requirements, the IDEA " provides a variety of 'procedural safeguards with respect to the provision of a free appropriate public education' by school districts." Mackey ex rel. Thomas M. v. Bd. of Educ., 386 F.3d 158, 160 (2d Cir. 2004) (quoting 20 U.S.C. § 1415(a)), supplemented , 112 F. App'x. 89 (2d Cir. 2004). " To meet these obligations and to implement its own policies regarding the education of disabled children, New York has assigned responsibility

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for developing appropriate IEPs to local Committees on Special Education ('CSE'), the members of which are appointed by school boards or the trustees of school districts." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quotation marks and brackets omitted) (citing N.Y. Educ. Law § 4402(1)(b)(1)). Pursuant to New York regulatory law, a CSE developing a child's IEP is required to consider four factors: " (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Id . (citing N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(ww)(3)(i)).

Once an IEP is developed and proposed, a parent may challenge it before an IHO appointed by the local board of education. N.Y. Educ. Law § 4404(1); see also 20 U.S.C. § 1415(f) (setting forth requirements for impartial due process hearing and allowing state to determine whether hearing is conducted by state or local educational agency). Either the parent or the school board may appeal an adverse decision by the IHO to a State Review Officer (" SRO" ). N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g) (requiring availability of appeal to state educational agency if initial due process hearing is conducted by local educational agency). As required by the IDEA, the SRO's decision may be challenged in either state or federal court. N.Y. Educ. Law § 4404(3); 20 U.S.C. § 1415(i)(2)(A).

In addition, a dissatisfied parent may unilaterally place her child in a private school and seek reimbursement from the state for the expense of educating the child privately. School Committee of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); 20 U.S.C. § 1412(a)(10)(C). " In determining whether the parents are entitled to reimbursement, the Supreme Court has established a two part test: (1) was the IEP proposed by the school district inappropriate; [and] (2) was the private placement appropriate to the child's needs." Gagliardo , 489 F.3d at 111-12 (citing Burlington , 471 U.S. at 370; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir.2006), cert. denied , 552 U.S. 985, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007)). A district court may also consider equitable factors in determining whether to order reimbursement for private placement. Id . at 112 (citing Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)). A parent who determines that a proposed IEP is unsatisfactory and unilaterally places her child in private school usually " do[es] so at [her] own financial risk," as a parent generally cannot obtain reimbursement for a private school placement if the courts ultimately determine that the proposed IEP was appropriate. Burlington , 471 U.S. at 373-74.

C. Standard of Review

Although, as is typical in IDEA cases, the parties have submitted their papers in the form of summary judgment motions--filing competing " 56.1 statements" along with their notices of motion--judges in this district have observed that " the procedure [in a federal IDEA appeal] is in substance an appeal from an administrative determination, not a summary judgment." S.F. v. New York City Dep't of Educ., 2011 WL 5419847 (S.D.N.Y. Nov. 9, 2011) (quoting Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 83 n. 3 (2d Cir. 2005)). " As such, summary judgment in IDEA cases often triggers more than an inquiry into possible disputed issues of fact." Id . Instead, the court conducts an " independent" review of the administrative record, basing its decision on the " preponderance of the evidence." Bd. of Educ. of Hendrick Hudson

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Cent. Sch. Dist., Westchester Cnty. v. Rowley , 458 U.S. 176, 205, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (citation omitted); see also Jennifer D. ex. Rel. Travis D. v. New York City Dep't of Educ., 550 F.Supp.2d 420, 429 n.10 (S.D.N.Y. 2009) (" The inquiry . . . is not directed to discerning whether there are disputed issues of fact, but rather, whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed." ).

Though the statute requires a " preponderance of the evidence" standard, 20 U.S.C. § 1415(i)(2)(C)(iii), the Second Circuit has observed that the analysis is complicated " by the fact that it occurs in the context of a complex statutory scheme involving institutional actors at different levels and within different branches of state and federal government." M.H. v. New York City Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012). In the Second Circuit, this analysis requires more than a " clear error" but less than a full de novo review. Id . Judicial deference to the administrative proceedings " is particularly appropriate when . . . the state hearing officers' review has been thorough and careful." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). If " the SRO's decision conflicts with the earlier decision of the IHO, the IHO's decision may be afforded diminished weight." A.C., 553 F.3d at 171.

Importantly, " the district court's determination of the persuasiveness of an administrative finding must [] be colored by an acute awareness of institutional competence and role." M.H., 685 F.3d at 244 (" [T]he purpose of the IDEA is to provide funding to states so that they can provide a decent education for disabled students consistent with their traditional role in educating their residents." ) (emphasis in original). As a result, " determinations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures" and " [d]ecisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress." Id .


As is typical in IDEA cases, the Court's inquiry is " fact-intensive" and it is therefore " necessary to set forth in some detail the facts" presented in the record. R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012). The following facts are undisputed except where noted.

Plaintiffs, P.G. and D.G., are parents who bring this action on behalf of themselves and their child, J.G. (Pl. 56.1 ¶ 1). J.G. has been diagnosed with Learning Disability, Not Otherwise Specified (" LD-NOS" ) and exhibits speech and language delays, in addition to difficulty with fine motor coordination, anxiety, cognitive inflexibility, social/emotional concerns, and low frustration tolerance. (Pl. 56.1 ¶ 7-8; Def. 56.1 ¶ 7). However, the student's cognitive abilities are " overall" in the " average range." (Def. 56.1 ¶ 9).

P.G. asserts that J.G. was classified as having a disability in pre-school by the Committee on Pre-school Special Education (" CPSE" ) and began to receive services from the City at that time to address his deficits. (Tr. 818-19; Pl. 56.1 ¶ 3).

A. The CSE Meeting

A CSE review meeting was held on April 26, 2010, to develop an IEP for J.G. for the 2010-2011 school year. (" April 26

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Meeting" ) (Pl. 56.1 ¶ 13). The participants in the meeting included Feng Ye, a CSE special education teacher, who was also acting as the District representative; Rose Foschetta, the CSE psychologist; Carmen Garcia, a " parent member; " Victor Benavente, the CSE general education teacher; P.G., who is J.G.'s mother; Carol Courtadon, the parent advocate; and Alexis Williams, J.G.'s then-current special education teacher from the Aaron School, who appeared by phone. (Pl. 56.1 ¶ 14; Def 56.1 ¶ 16). Foschetta testified before the IHO that everyone who was present at the meeting participated in J.G.'s IEP review. (Def. 56.1 ¶ 23).

Foschetta, Courtadon, and J.G.'s mother testified at the IHO hearing that, at the April 26 Meeting, there was no discussion regarding J.G.'s PDD-NOS diagnosis, and the CSE team appeared to rely solely upon its conversation with Ms. Williams and some of the parents' comments to draft the IPE. (Tr. 234-35, 760, 821). Courtadon testified that no psychological evaluation nor psycho-education evaluation was reviewed, discussed, or provided to the parent, Ms. Courtadon, or Ms. Williams during the course of the meeting. (Pl. 56.1 ¶ 18; Tr. at 201-04, 758-59, 822). Rose Foschetta testified that she did not have the 2007 psychological evaluation on the table at the CSE meeting, though she had " take[n] it in" beforehand. (Tr. 201-05; 821-22).

Courtadon and P.G. testified that the CSE team members read the 2009-2010 IEP quickly, and that it was difficult for Courtadon and the mother to keep track of and evaluate everything that the team members were saying, and to participate meaningfully in the meeting. (Pl. 56.1 ¶ 26). Nonetheless, neither Courtadon nor the Parent requested a copy of the draft IEP that was being read so that they could review it themselves at their own pace. (Def. 56.1 ¶ 25).

Courtadon also testified that she believed that neither Ms. Ye nor Ms. Foschetta read the academic performance and learning characteristics page or the social/emotional performance page as they were written for the 2010-2011 IEP, and neither Ye nor Foschetta asked the mother if she agreed with those descriptions. (Pl. 56.1 ¶ 27). Courtadon further testified that the CSE team did not read to the mother, Ms. Williams, or Ms. Courtadon the actual academic goals that it was proposing for the 2010-2011 IEP. (Pl. 56.1 ¶ 28).

Courtadon testified that when she was asked if there was anything that she wanted to add to the proposed goals, she stated that she wanted the opportunity to speak with J.G.'s therapist, but was told that that was not necessary because J.G.'s therapist wrote the goals. (Pl. 56.1 ¶ 29). Courtadon testified that J.G.'s mother was not given a meaningful opportunity to look at, read, understand, or comment on what the CSE was discussing during the meeting. (T. 808-09; Pl. 56.1 ¶ 32).

A request was made for the CSE team to consider a deferral to the Central Based Support Team (" CBST" ),[1] and Courtadon testified that Ms. Ye responded that this could not be considered because the team had to recommend a public school placement. (Pl. 56.1 ¶ 36).

Courtadon and J.G.'s mother testified that the team did not offer to evaluate J.G. or ask P.G. to make J.G. available for such testing by DOE, nor did they inform J.G.'s mother of her right to ask for an evaluation. (Pl. 56.1 ¶ 38).

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Though J.G.'s mother asked the CSE team to consider Eagle Hill, a New York State-approved emergency interim placement, Ms. Foschetta testified that she did not consider it. (T. 608-09; Pl. 56.1 ¶ 39). Foschetta also testified that she did not consider " mainstreaming" J.G. during the 2010-2011 school year. (Pl. 56.1 ¶ 40).

Ms. Williams, J.G.'s then-current special education teacher, only attended half of the meeting. (Pl. 56.1 ¶ 41). Williams indicated at the beginning of the meeting that she could only participate for 30 minutes, and the CSE team therefore commenced the meeting by discussing J.G.'s academics and " gathering the teacher's input." (Def. 56.1 ¶ 27).[2] Ms. Williams was no longer present for the discussion of J.G.'s speech goals, counseling goals, or occupational therapy goals. (Pl. 56.1 ¶ 41). Foschetta testified that J.G.'s mother never requested that the meeting be adjourned to another time when Williams could be present. (Def. 56.1 ¶ ¶ 28-29).

No one at the meeting was a speech and language pathologist or an occupational therapist, and the CSE had not spoken to J.G.'s Aaron School therapists in ...

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