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N.K. v. New York City Dep't of Education

United States District Court, S.D. New York

August 13, 2013

N.K. AND L.W., individually and on behalf of J.K., Plaintiffs,

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For N.K. and L.W., Individually and on behalf of J.K., Plaintiff: Jesse Cole Cutler, Skyer, Castro, Foley & Gersten, New York, NY.

For New York City Department of Education, Defendant: Lesley Berson Mbaye, LEAD ATTORNEY, New York City Law Department, New York, NY; Emily Sweet, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY.


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JESSE M. FURMAN, United States District Judge.

Plaintiffs N.K. and L.W., individually and on behalf of their minor child J.K., bring this action against the New York City Department of Education (" DOE" ) pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq .; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq. Plaintiffs contend that the DOE failed to provide J.K. a free and appropriate public education for the 2011-2012 school year. An impartial hearing officer as well as a state review officer held otherwise.

Plaintiffs move for summary judgment, seeking an order reversing the decision of the State Review Officer; holding that the DOE failed to provide J.K. with a free and appropriate public education for the 2011-2012 school year; and ordering the DOE to reimburse Plaintiffs for tuition paid to

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the Rebecca School, the private school in which they unilaterally placed J.K. for the 2011-2012 school year. Defendant cross-moves for summary judgment, arguing that the DOE offered J.K. a free and appropriate public education. For the reasons discussed below, Defendant's motion for summary judgment is GRANTED and Plaintiff's cross-motion for summary judgment is DENIED.


A. Legal Framework

" 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 " free and appropriate public education ('FAPE')." R.E. ex rel. J.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012). To that end, school districts are required to " create an individualized education program ('IEP') for each such child" with disabilities. Id . at 175 (citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)). 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 enable the child to receive educational benefits." Id . (internal quotation marks omitted).

In New York, Committees on Special Education (" CSEs" ) -- composed of the student's parent or parents, a regular or special education teacher, 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); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). When doing so, a " 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 comply with its substantive obligations under the IDEA, a school district must provide " an IEP that is likely to produce progress, not regression." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (quoting Walczak, 142 F.3d at 130). " Should a parent believe that the school district breached these IDEA duties by failing to provide their disabled child a FAPE, the parent may unilaterally place their child in a private school at their own financial risk and seek tuition reimbursement." M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 2013 WL 3868594, at *1 (2d Cir. July 29, 2013).

" To begin the tuition-reimbursement process, a parent must first file a due-process complaint which triggers an administrative-review process. . . ." Id . (citing 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)). 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 an impartial due process hearing before an impartial hearing officer (" IHO" ). See id . at 175 (citing 20 U.S.C. § 1415(f)). " The three-pronged Burlington/Carter test, as construed by New York Education Law § 4404(1)(c),

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governs that hearing." M.W., 725 F.3d 131, 2013 WL 3868594, at *1; see Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). That test provides that: " (1) the DOE must establish that the student's IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them." M.W., 725 F.3d 131, 2013 WL 3868594, at *1 (internal footnote omitted). If dissatisfied with the IHO's ruling, either party may appeal the case to a state review officer (" SRO" ). R.E., 694 F.3d at 175 (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)).

B. Factual Background

J.K. was born on February 17, 1999. (IEP 1). J.K. has multiple disabilities,[1] including an absent corpus callosum, hypotonia, and motor apraxia, which result in significant integration and attentional deficits as well as delays in cognition and language. (IEP 3; Tr. 39-40). There is no dispute that J.K. is thus a " child with a disability," who is entitled to a free appropriate education under the IDEA, 20 U.S.C. § 1401(3)(A)(i). (SRO Decision 2).

On February 14, 2011, a CSE convened to develop J.K.'s IEP for the 2011-2012 school year. (IEP at 1, 2; SRO Decision at 3). Meeting attendees included a DOE special education teacher, who also served as the DOE representative; a DOE school psychologist; a parent member; an independent neuropsychologist; a social worker from the Rebecca School; J.K.'s mother; and her attorney. (IEP 2; IHO Decision 11). The CSE considered several evaluations of J.K., including: a 2010 report from the Rebecca School that included individual reports from each of J.K.'s service providers (DOE Ex. 4, at 5; Tr. 31); an independent psychoeducational evaluation commissioned by DOE, dated October 29, 2010 (DOE Ex. 7, at 1); a psychological evaluation commissioned by J.K.'s parents, consisting of three observations between May 29 and August 23, 2010 (DOE Ex. 6, at 1); and a classroom observation conducted by a special education teacher on October 14, 2010 (DOE Ex. 5, at 1). In addition, J.K.'s mother provided substantial information about J.K.'s functioning and input into the proper educational placement for him. ( See Tr. 36-37; DOE Ex. 2).

The IEP developed at this meeting set forth several annual goals and short-term objectives for J.K. (IEP 6-11). To meet these goals, the IEP recommended that J.K. be placed in a 6:1:1 classroom -- that is, a classroom with six students, one teacher, and one paraprofessional aide, R.E., 694 F.3d at 175 -- in a specialized school for certain students with special needs. (IEP 1). In addition, the IEP recommended a 1:1 crisis management paraprofessional be assigned exclusively to support J.K. through transitions during the day and help ensure that he remained calm and able to learn. ( Id . at 12; Tr. 43). It provided four forty-minute individual

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speech, occupational, and physical therapy sessions per week, as well as one session per week of each kind of therapy with a peer. (IEP 14). The IEP recognized J.K.'s significant sensory needs and recommended sensory supports. ( Id . 4-5, 16). It also provided that J.K. was to have access to music throughout the day. ( Id . 4, 16). Although the IEP did not itself include information on parent training and counseling, J.K.'s mother was informed at the CSE meeting that parent training was available. (Tr. 44).

The IEP indicates that it was mailed to J.K.'s parents on February 15, 2011. (IEP 2). On June 10, 2011, the DOE mailed J.K.'s parents its Final Notice of Recommendation, offering J.K. placement in a twelve-month 6:1:1 class at P226. (DOE Ex. 3). On June 17, 2011, J.K.'s parents sent the DOE a letter notifying it that they planned to unilaterally enroll J.K. at the Rebecca School . (Parent Ex. C, at 1). J.K.'s mother visited P226 with a social worker from the Rebecca School on June 21, 2011. (Tr. 415-16).

On July 5, 2011 J.K.'s parents filed a due process complaint requesting an impartial hearing; alleging that the DOE had denied J.K. a FAPE for the 2011-2012 school year; and seeking tuition reimbursement for their unilateral placement of J.K. at the Rebecca School. (Due Process Compl. 1). The complaint alleged the IEP was inadequate for nine reasons: (1) The CSE failed to conduct the triennial reevaluations required under New York law; (2) the CSE failed to comply with state regulations regarding participation in a CSE meeting by teleconference; (3) the 1:1 paraprofessional the CSE recommended to provide support to J.K. throughout the day was insufficient; (4) the IEP failed to recommend parent training and counseling; (5) the DOE's recommended placement at P226 was inappropriate for J.K. because the school was housed with several other schools, and thus the size of the space and number of students would be overwhelming for him; (6) P226 lacked the sensory equipment J.K. required; (7) J.K. required the use of music, and there was no music teacher or music therapist at P226; (8) it was unlikely that P226 could satisfy the occupational, physical, and speech therapy requirements of the IEP; and (9) the composition of the class in which J.K. would likely be placed at P226 did not provide an appropriate peer group. ( Id . 3-5). Significantly, although the complaint took issue with the failure of the " proposed IEP" to list parent training and counseling as a related service to which J.K. was entitled ( id . 4), it also alleged that the parents had not yet received a copy of the IEP ( id . 5). The parents therefore purported to " reserve the right to amend th[e] hearing request" to raise other issues that came to their attention when they received the IEP. ( Id . 5).

On September 20, 2011, J.K.'s parents filed an amended due process complaint. (Pls.' 56.1 Statement Ex. 1, at 1). The amended complaint alleged that J.K.'s parents had first received a copy of the IEP on September 19, 2011 and contended that because they had reserved their right to amend their due process notice, such amendment was proper. ( See id . at 8). Both the DOE and the IHO, however, refused to grant permission for this amendment. ( See Pls. 56.1 Statement Exs. 2, 3).

An impartial hearing was held on the merits of J.K.'s parents' claims over four days in late 2011. (IHO Decision 5). The IHO found that the substantive claims lacked merit and that no substantive harm resulted from any procedural violations. ( See id . at ...

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