J.C.S. and D.S. on behalf of their minor child, J.S., Plaintiffs,
BLIND BROOK-RYE UNION FREE SCHOOL DISTRICT, Defendant.
Neal H. Rosenberg, Law Offices of Neal H. Rosenberg, New York, New York Counsel for Plaintiffs.
Christopher P. Langlois, Girvin & Ferlazzo, P.C., Albany, New York, Counsel for Defendant.
OPINION AND ORDER
CATHY SEIBEL, District Judge.
Before the Court are Defendant's Motion for Summary Judgment, (Doc. 7), and Plaintiffs' Cross-Motion for Summary Judgment, (Doc. 20). Plaintiffs J.C.S. and D.S. (collectively, "the Parents") bring this action on behalf of their child J.S. ("JS"), pursuant to the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. § 1401 et seq.,  against Defendant Blind Brook-Rye Union Free School District (the "District"). Plaintiffs seek review of an administrative decision by a State Review Officer ("SRO") at the New York State Education Department reversing the decision of an Impartial Hearing Officer ("IHO").
The IHO found that (1) the District had failed to offer JS a free and appropriate public education ("FAPE") for the 2010-2011 school year, (IHO Decision 10-12), (2) the day portion of the private school - Eagle Hill School ("Eagle Hill") in Greenwich, Connecticut - at which JS's parents placed him for the 2010-2011 school year was an appropriate placement for JS, but the residential portion was not, ( id. at 12-15), and (3) there were no equitable considerations precluding tuition reimbursement for the day program, ( id. at 15). Accordingly, the IHO ordered the District to reimburse the Parents for the day program portion of Eagle Hill's tuition in the amount of $54, 800. ( Id. at 16.)
The SRO disagreed with the IHO and determined that the District had offered JS a FAPE for the 2010-2011 school year. (SRO Decision 12-20.) Because the SRO concluded that the District had offered JS a FAPE, the SRO did not find it necessary to determine whether Eagle Hill was an appropriate placement for JS or whether equitable considerations undermined the Parents' claim, and dismissed the Parents' cross-appeal accordingly. ( Id. at 20.)
Defendant seeks an Order from this Court affirming the decision of the SRO that a FAPE was offered for the 2010-2011 school year. (D's Mem. 1.) Plaintiffs seek an Order vacating the SRO's decision, granting the relief directed by the IHO, and further granting reimbursement for Eagle Hill's residential program. (Ps' Mem. 24.)
For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED and Plaintiffs' Motion for Summary Judgment is DENIED.
The relevant facts are undisputed except where noted. The reader is directed to the decision of the SRO, which provides a thorough recounting of the factual background of this case. I recount here only some of the facts.
JS was born in 1998. (Ps' 56.1 Resp. ¶ 3.) Shortly before his fifth birthday, he was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"). ( Id. ¶ 4.) At the age of five, JS entered the District as a kindergarten student for the 2003-2004 school year. ( Id. ¶ 5; D's 56.1 Resp. ¶ 2.) In October 2003, JS was referred to the District's Committee on Special Education ("CSE") for evaluation, and the CSE classified him as "other health impaired." (Ps' 56.1 Resp. ¶ 6.) JS repeated kindergarten during the 2004-2005 school year and remained enrolled in the District through fourth grade (2008-2009). ( Id. ¶ 7; SRO Decision 2 n.1.)
During fourth grade, JS initially participated in a 30-minute social skills group once every six days and received two hours per week of indirect consultant teacher services, a full-time shared aide, and various program modifications and testing accommodations. (SRO Decision 2; 2008-09 IEP 1-2.) Additionally, the Parents hired two special education tutors to assist JS outside of school. (Tr. 240.) JS's mother testified that despite these special education supports, JS was not having a successful fourth-grade year. ( Id. ) Accordingly, the Parents requested a program review during the middle of the year to get JS additional support in school. ( Id. at 241; see Parent Ex. L.) For the remainder of his fourth-grade year, the District provided JS with, among other supports, direct consultant teacher services, resource room services, and individual counseling services, but JS's mother testified that she still did not notice any change in JS's performance. (Tr. 242; SRO Decision 2.)
In spring 2009, JS underwent a comprehensive psychoeducational evaluation by Dr. Gottesfeld, a private psychologist. (SRO Decision 2.) Dr. Gottesfeld administered numerous formal tests during the course of this evaluation, the results of which are recounted in great detail in his report dated June 10, 2009, ( see generally Gottesfeld 2009 Report),  and are fairly summarized by both the IHO, ( see IHO Decision 7), and the SRO, ( see SRO Decision 2-3). Although Dr. Gottesfeld found that JS was a "bright boy" with "fundamental academic skills [that] are relatively well established, " he also noted that JS "struggles with the day to day demands in the academic arena [and] is awkward in the social arena." (Gottesfeld 2009 Report 15.) Specifically, Dr. Gottesfeld diagnosed JS with a hybrid learning disability, which he described as a combination of "trouble formulating and conveying what it is he means to say (language processing deficit), difficulty organizing his perceptions and differentiating what is essential from what is less important (perceptual deficit), and significant inattention ([ADHD])." ( Id. ) Dr. Gottesfeld made eleven specific recommendations including that the Parents consider making an application to Eagle Hill; several multisensory and structured programs to address JS's academic needs; a physician consult to reassess JS's medical regimen; a comprehensive speech-language assessment; and counseling to increase coping skills and social prowess. ( Id. at 17-19.)
The Parents decided to withdraw JS from the District in fifth grade (2009-2010) and enrolled him as a day student at Eagle Hill. (Ps' 56.1 Resp. ¶ 8.) The Parents did not file an impartial hearing request or seek tuition reimbursement with respect to JS's unilateral placement at Eagle Hill for the 2009-2010 school year. ( Id. ¶ 9.)
In December 2009, the District contacted the Parents for consent to evaluate JS as part of a triennial review. (SRO Decision 3.) The parties subsequently agreed, however, that Dr. Gottesfeld's June 2009 evaluation would provide sufficient evaluative information for JS, and therefore no evaluation was performed at that time. ( Id.; P's 56.1 Resp. ¶ 14.)
On February 18, 2010, in preparation for the 2010-2011 CSE meeting, the District's Director of Pupil Services, Harry Burg, observed JS during a 35-minute literature class at Eagle Hill. (Ps' 56.1 Resp. ¶ 12; Tr. 61-62; District Ex. 6.) There were six other students present in the class. (District Ex. 6.) Mr. Burg's observation report reflected that JS was able to answer questions and, as the class went over homework, JS "appeared to follow along and correct his answers if necessary, " despite the presence of a disruptive student in the classroom. ( Id. ) Mr. Burg also noted that JS participated in a class discussion, copied his homework assignment in his assignment pad, and worked proficiently on his computer during a vocabulary exercise. ( Id. )
In June 2010, Christine Tone, JS's educational advisor at Eagle Hill, sent a letter to the Parents summarizing JS's performance during the 2009-2010 school year. (District Ex. 9.) Ms. Tone stated that JS had made "huge gains in his interpersonal skills" including that he was "more available to suggestions, advice, and assistance from others, " and was beginning to exhibit flexibility in certain peer interactions. ( Id. at 1.) With regard to academics, Ms. Tone noted that JS was "respond[ing] well to the structure and routine of his classes, " and his "ability to participate appropriately... has improved, " which allowed him to share his ideas more effectively as well as listen to and appreciate the ideas and thoughts of others. ( Id. ) JS was "able to participate in small group tasks more effectively, " and although Ms. Tone noted that "[c]ompromise and cooperation remain[ed] challenging, " she also stated that JS was much more resilient when things did not go his way. ( Id. at 1-2.) Overall, Ms. Tone believed that JS "had a very successful year, both academically and socially." ( Id. at 2.) Enclosed with Ms. Tone's letter were reports from each of JS's teachers indicating the specific skills on which they had worked in each subject, JS's current performance in each skill, and a list of the special education supports that were used with JS in each classroom. ( See id. at 3-17.)
The parties initially scheduled JS's annual review, at which the CSE would develop an IEP for the 2010-2011 school year, for June 10, 2010. (SRO Decision 4.) The Parents canceled the meeting, however, because: (1) they were awaiting receipt of updated academic testing by Dr. Gottesfeld; and (2) Eagle Hill had approached the Parents with a request that JS be placed in its residential program and the Parents wanted to get the opinions of JS's specialists before making that decision. ( Id.; Ps' 56.1 Resp. ¶ 16.) Mr. Burg agreed to reschedule the meeting to a later date. (District Ex. 10.)
Dr. Gottesfeld completed his re-evaluation of JS in May 2010, and the Parents delivered it to the District on June 24, 2010. (Gottesfeld 2010 Report (Cover Letter).) The report noted that the Parents requested the updated assessment to determine the quantitative and qualitative development of JS's academic skills after attending Eagle Hill for one year. ( Id. at 1.) Dr. Gottesfeld observed JS for two hours on two different days, and his report reflected that JS was distracted and overly chatty at both sessions, though his "level of effort, overall demeanor, and attitude towards performing academic tasks" had vastly improved from his prior assessment. ( Id. at 2-3.) Dr. Gottesfeld administered several of the same assessments he used in June 2009, and the report contained comparisons of JS's performance for each year. ( See id. at 3-7.) The test results revealed that JS had made progress in several areas, including his overall reading, reading rate, accuracy and comprehension, and math calculation. ( See id. ) Dr. Gottesfeld indicated, however, that some of JS's results reflected a decrease in performance, which he believed was due to JS's lack of attention during the test session. ( See id. at 5.) Dr. Gottesfeld concluded that JS had "demonstrat[ed] significant academic improvement and emotional growth" while at Eagle Hill, but believed that even with academic supports and accommodations, JS was not ready for a mainstream environment. ( Id. at 8.)
On August 9, 2010, the CSE convened to discuss JS's education program for the 2010-2011 school year - when JS would be in sixth grade - and to formulate his IEP for that year. (SRO Decision 5; D's 56.1 Resp. ¶ 4.) Among those in attendance were Mr. Burg as chairperson, JS's mother, Carrie Merlo (a District school psychologist), Penny Weistrop (a District special education teacher), Martha Rosen (a District general education teacher), and Linda Glucksman (a parent member). (SRO Decision 5; 2010-11 IEP 6.) At the meeting, the CSE relied upon the Gottesfeld 2009 Report, the Gottesfeld 2010 Report, the February 18, 2010 classroom observation by Mr. Burg, the June 2010 progress reports from Eagle Hill, a July 2010 progress report from Eagle Hill, and letters dated July 2010 from Ms. Tone, July 9, 2010 from Dr. Klaus Schreiber (a psychiatrist who met with JS), July 15, 2010 from Dr. Gottesfeld, and August 5, 2010 from Dr. William Levinson (JS's pediatrician), all of which recommended JS be placed in Eagle Hill's residential boarding program. (SRO Report 5; 2010-11 IEP 7; Tr. 58-65.)
During the meeting, the CSE discussed JS's present needs and developed a statement of present levels of performance in the areas of academic and functional performance and social/emotional performance. (Tr. 76-82.) The CSE recommended a general education setting, but proposed certain special education program and testing modifications and accommodations to address JS's needs, including: direct consultant teacher services of three 40-minute sessions in a six-day cycle in English/language arts ("ELA") and math; resource room services 40 minutes per day; two 30-minute direct/indirect psychological consultation sessions in a six-day cycle; assistant teacher support (when not supported by a special education teacher) in ELA, writing workshop, math, science, and social studies; shared aide support in specials, physical education, and lunch; and two 40-minute parent counseling sessions per month. (2010-11 IEP 1-3; see IHO Decision 3; SRO Decision 6.) The 2010-11 IEP also indicated that JS was exempt from taking a foreign language. (2010-11 IEP 6.) In addition, the CSE set forth eighteen annual goals in the 2010-11 IEP, addressing the areas of study skills, reading, writing, mathematics, and social/emotional/behavioral skills. (SRO Decision 5.) The IEP reflected that the CSE considered a general education setting without support services but had rejected it because JS's needs required a more intensive setting. (2010-11 IEP 7.)
At the meeting, JS's mother indicated that she did not believe the District's middle school was appropriate for JS. ( Id. ) On August 17, 2010, she hand delivered a letter to Mr. Burg, which stated that the letter served as a "10 day notice" and that the Parents would be seeking tuition reimbursement for Eagle Hill for the 2010-2011 school year. (District Ex. 18.)
The District sent the Parents a copy of JS's 2010-11 IEP on September 1, 2010. (District Ex. 19.) Although JS began school at Eagle Hill on September 7, 2010, JS's mother responded to the District's letter on September 20, 2010 and requested: JS's proposed schedule; "a class profile, including the number of students in each class, the number of special education students, and a student to teacher ratio for each class; and the student to teacher ratio for the shared aide.'" (District Ex. 21.) JS's mother testified that despite JS's enrollment at Eagle Hill, she wanted more information about the District's offered program to "convince [herself]... [they] were doing the right thing...." (Tr. 278-79.) Mr. Burg replied by letter dated September 28, 2010, inviting JS's mother to call him to discuss any outstanding questions or concerns she had regarding ...