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A.M. v. The New York City Department of Education

United States District Court, S.D. New York

August 9, 2013

A.M., by her parent, Y.N., Plaintiff,

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For A.M., by her parent, Y.N., Plaintiff: Neal Howard Rosenberg, Law Office of Neal Rosenberg, New York, NY.

For The New York City Department of Education, Defendant: David Alan Rosinus, Jr., LEAD ATTORNEY, New York City Law Department, New York, NY.


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JESSE M. FURMAN, United States District Judge.

Plaintiff A.M., a student diagnosed with intellectual[1] and learning disabilities, brings this action by her parent, Y.N., pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400 et seq., challenging the education program offered by the New York City Department of Education (" DOE" ). A.M. asks this Court to vacate the decision and order of a New York State Review Officer (" SRO" ) and award tuition reimbursement as a result of the DOE's alleged denial of a free appropriate public education (" FAPE" ). Defendant has filed a cross-motion for summary judgment affirming the SRO's Decision. For the reasons discussed below, Plaintiff's motion for summary judgment is denied, and Defendant's cross-motion for summary judgment is granted.


" Congress enacted the IDEA to promote the education of students with disabilities." M.P.G. ex rel. J.P. v. N.Y.C. Dep't of Educ., No. 08 Civ. 8051 (TPG), 2010 WL 3398256, at *1 (S.D.N.Y. Aug. 27, 2010). The statute requires any state receiving federal funds to provide disabled children with a FAPE. See, e.g., M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, No. 12-2720-CV, 2013 WL 3868594, at *1 (2d Cir. July 29, 2013). To that end, school districts are required to " create an individualized education program ('IEP') for each such child" with a disability. R.E. ex rel. J.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)), cert. denied, 133 S.Ct. 2802, 186 L.Ed.2d 861 (2013). An IEP is " a written statement 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." R.E., 694 F.3d at 175 (internal quotation marks omitted). An IEP must be " reasonably calculated to give educational

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benefits to the child." M.W., 2013 WL 3868594, at *1 (citing R.E., 694 F.3d at 175).

In New York, Committees on Special Education (" CSEs" ) -- composed of the student's parent or parents, a regular and special education teacher of the student, a school board representative, a parent representative, and others appointed by the local school district's board of education -- are responsible for developing IEPs. See N.Y. Educ. Law § 4402(1)(b)(1)(a); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). " The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E., 694 F.3d at 175. To satisfy the IDEA, a school district must provide " an IEP that is 'likely to produce progress, not regression,'" and that offers " opportunity greater than mere 'trivial advancement.'" Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (quoting Walczak, 142 F.3d at 130).

Although the IDEA outlines both procedural and substantive requirements for IEPs, see 20 U.S.C. § 1414, it " does not itself articulate any specific level of educational benefits that must be provided through an IEP," Walczak, 142 F.3d at 130. If a parent believes that his or her child's IEP is not compliant with the IDEA, the parent may file a due process complaint. See M.W., 2013 WL 3868594, at *1 (citing 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. L. § 4404(1)); R.E., 694 F.3d at 175 (citing 20 U.S.C. § 1415(b)(6)). If a parent files a due process complaint, the school district has thirty days to remedy any deficiencies identified in the complaint without penalty. See R.E., 694 F.3d at 187-88 (citing 20 U.S.C. § 1415(f)(1)(B)). If, at the end of this thirty-day " resolution period," the parent feels his or her concerns have not been adequately addressed, the parent can continue with the due process claim. See id . The IDEA then " mandates that states provide 'impartial due process hearings' before impartial hearing officers ('IHOs')." Id . at 175 (quoting 20 U.S.C. § 1415(f)). If dissatisfied with the IHO's ruling, either party may appeal the case to a state review officer (" SRO" ). Id . (citing N.Y. Educ. Law § 4404(2)). After exhausting administrative remedies through this process, either party may bring a civil action in state or federal court to review the SRO's decision. See id . (citing 20 U.S.C. § 1415(i)(2)(A)).


At the beginning of the 2010-2011 school year, A.M. was a fourteen-year-old girl, classified by the DOE as a student with an intellectual disability. (R. Ex. 1).[2] A.M. had also been diagnosed with a number of learning and other disabilities -- namely, expressive language disorder; auditory processing disorder; and fine motor, gross motor, and graphomotor deficits. (R. Ex. 4). A.M. attended public schools through the fourth grade. (Tr. 615). For fifth and sixth grade, she attended Cooke Center Academy (" Cooke" or " Cooke Center" ), before returning to public school for seventh grade. (Tr. 615-16). By the end of that year, it was apparent that the public school placement was inappropriate for A.M., and Y.N. elected to return A.M. to Cooke for the 2009-2010 school year. (Tr. 553, 617).

In the summer of 2008, A.M. was evaluated using developmental and skills tests by Dr. Cecelia McCarton. (R. Ex. 4).

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A.M.'s test scores mostly placed her in the lowest decile of her peers, although on a written language subtest she ranked in the thirteenth percentile, and on a test of her visual perception skills she ranked in the thirty-second percentile. ( Id . at 4-7 to 4-8). Dr. McCarton recommended that A.M. be placed " in a small classroom for students with language learning disabilities, but not behavior problems" and that she " receive social skills training with girls in her own age group." (R. Ex. 4 at 4-5). Dr. McCarton also recommended that A.M. be provided with " some one-to-one instruction in mathematical computation as well as applied math" and that A.M. be placed in a twelve-month educational program. ( Id . at 4-5 to 4-6).

In or about November 2009, A.M.'s teachers at Cooke produced a " Skills-Based Progress Report" laying out A.M.'s " instructional grade levels" in various subjects as of the start of September 2009, the beginning of the academic year. (R. Ex. 3; Tr. 569-70). According to the Progress Report, A.M.'s levels in reading and listening comprehension, writing, and certain mathematical functions ranged from a first-grade level to a third-grade level. (R. Ex. 3).

On January 4, 2013, a CSE convened to consider A.M.'s IEP for the 2010-2011 school year. (R. Ex. 1). The participants in the meeting were Y.N. (A.M.'s mother), Gavin Schneider (as special education teacher and district representative), Ivy Marcus (as general education teacher), Anna Valentine (as school psychologist), Isadora DeVeaux (as parent member), Amanda Tarpey (as A.M.'s classroom teacher at Cooke), Cindy Surdi (as educational services supervisor at Cooke), and Nadine Rothman (as director of Cooke's middle school). ( Id .). After reviewing Dr. McCarton's 2008 psychoeducational evaluation, the November 2009 progress report from Cooke, and a medical report (which the DOE did not enter into the record), and discussing these materials with Y.N., the CSE recommended a twelve-month Extended School Year (" ESY" ) program rather than the standard ten-month academic calendar. (R. Exs. 1-2). In addition, the CSE recommended that A.M. be educated in a 12:1:1 special class (meaning twelve students with one professional and one paraprofessional) in a specialized school, with related counseling, occupational therapy, and speech/language therapy services. (R. Ex. 1). Y.N. visited P721M, the school that the DOE proposed for A.M., in July 2010. (Tr. 622-24). The school maintained several sites, and at the time of the visit, P721M not yet determined which site A.M. would attend. ( Id . at 629, 647). Y.N. ultimately rejected the proposed placement for A.M. and re-enrolled her daughter at Cooke for the 2010-2011 school year. (R. Ex. A).

On March 24, 2011, Y.N. filed a due process complaint seeking tuition reimbursement based on the DOE's alleged denial of a FAPE to A.M. (R. Ex. 6). An IHO held a hearing over five dates from June 24, 2011 through October 24, 2011. (IHO Decision 3). On December 6, 2011, the IHO issued a decision rejecting all of the claims raised in Y.N.'s due process complaint. Nevertheless, the IHO found that the DOE had " opened the door" to consideration of the appropriateness of an ESY program by raising that issue during the hearing. ( Id . at 12). On that issue, the IHO concluded that the requirement that the DOE educate A.M. in the Least Restrictive Environment (" LRE" ) applied to the decision to recommend an ESY program, and that because the ESY program recommended by the CSE was not the least restrictive environment appropriate for A.M., that recommendation constituted the denial of a FAPE . ( Id . at 12-13). The IHO also found that Y.N.'s choice of

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Cooke was appropriate and awarded tuition reimbursement on that basis. ( Id . at 13). The IHO reduced the tuition award by $6,500, however, because she found that Y.N. provided late notice to the DOE of her rejection of the IEP placement. ( Id .).

Following the IHO's decision, both parties appealed to the Office of State Review, with Y.N. seeking reversal of the reduction of the tuition award and the DOE seeking dismissal of Y.N.'s claim. (SRO Decision 1). On April 23, 2012, the SRO reversed the IHO's finding that the DOE had raised the ESY program issue in its case-in-chief and, in the alternative, found that the LRE requirement did not apply to the decision to recommend an ESY program. ( Id . at 7-10). The SRO affirmed the IHO's denial of Y.N.'s other claimed grounds for the denial of a FAPE, and found that the DOE had in fact offered a FAPE to A.M. ( Id . at 10-20). Accordingly, the SRO reversed the tuition award to Y.N. (SRO Decision 20).[ ...

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