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D.B. v. New York City Dep't of Educ.

United States District Court, S.D. New York

August 19, 2013

D.B. and M.C., individually and on behalf of E.B., Plaintiffs,

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For plaintiffs: Christina D. Thivierge, Thivierge & Rothberg, P.C., New York, NY.

For defendant: Michael A. Cardozo, Eric Porter, New York City Law Department, New York, NY.


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DENISE COTE, United States District Judge.

Plaintiffs D.B. and M.C. (the " Parents" ), on behalf of their minor child E.B. (the " Student" ), bring this action pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § § 1400 et seq. (the " IDEA" or the " Act" ).[1] The plaintiffs seek review of the April 5, 2012 administrative decision of State Review Officer Justyn P. Bates (" SRO Decision" and " SRO", respectively) annulling the January 10, 2012 decision of Impartial Hearing Officer Mindy G. Wolman (" IHO Decision" and " IHO", respectively) and vacating the IHO's award of reimbursement for the cost of the Student's 2010-2011 educational program. The plaintiffs move for summary judgment, seeking an order reversing the SRO Decision and reinstating the IHO's award of reimbursement. Defendant the New York City Department of Education (" DOE" ) cross-moves for summary judgment, seeking an order upholding the SRO Decision and dismissing the plaintiffs' complaint. For the reasons set forth below,

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the DOE's cross-motion for summary judgment is granted and the plaintiffs' motion for summary judgment is denied.


Congress enacted the IDEA " to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § § 1400(d)(1)(A) & (B); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (discussing the purposes of the IDEA); Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (same). States receiving federal funding under the IDEA are required to make a free appropriate public education (" FAPE" ) available to all children with disabilities residing in the state. 20 U.S.C. § 1412(a)(1)(A). To this end, the IDEA requires that public schools create for each student covered by the Act an individualized education program (" IEP" ) for the student's education at least annually. 20 U.S.C. § 1414(d)(2)(A). " [T]he IEP 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." Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see M.H. v. New York City Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (describing the IEP as " [t]he centerpiece of the IDEA's educational delivery system" (citation omitted)).

In New York City, the DOE is charged with providing a FAPE to all students with disabilities between the ages of three and twenty-one who reside in the City, and with developing the IEP for these students by convening local Committees on Special Education (" CSE" ). N.Y. Educ. L. § 4402. " In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." M.H., 685 F.3d at 224 (citation omitted). The IEP must provide " 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." Id. (citation omitted). " [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." T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (citation omitted).

The IDEA requires that parents be provided an opportunity to present a complaint with respect to the identification, evaluation, or placement of their child through the IEP process. 20 U.S.C. § 1415(b)(6)(A). Where the parents believe that the school district has not adequately responded to their complaints, the IDEA requires that they be given an opportunity to pursue their grievances through an " impartial due process hearing." Id. § 1415(f)(1)(A). In New York, these hearings are conducted by an IHO, and parties aggrieved by the IHO's decision may appeal to an SRO. See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1) (permitting " any party aggrieved by the findings and decision rendered [by the hearing officer] [to] appeal such findings

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and decision to the State educational agency" ).

The IDEA further provides that the final administrative decision may be reviewed " in a district court of the United States" by " bring[ing] a civil action with respect to the complaint." 20 U.S.C. § 1415(i)(2)(A). The district court is empowered to " receive the records of the administrative proceedings," to " hear additional evidence," and to " grant such relief as the court determines is appropriate" based on " the preponderance of the evidence" before it. Id. § 1415(i)(2)(C); see also Forest Grove, 557 U.S. at 239 (noting that the IDEA " gives courts broad authority to grant 'appropriate' relief" ). The IDEA specifically contemplates that " when a public school fails to provide a FAPE and a child's parents place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the parents for the cost of the private education." Forest Grove, 557 U.S. at 232; see 20 U.S.C. § 1412(a)(10)(C).


The following facts are taken from the parties' submissions and the underlying administrative record, and are undisputed unless otherwise indicated. Plaintiffs D.B. and M.C. are the father and mother, respectively, of the Student. At the onset of the 2010-2011 school year, which is at issue in this case, the Student was twelve years old. The Student is classified as a student with autism and is a " child with a disability" under the IDEA. See 20 U.S.C. § 1401(3)(A)(i).

A. The CSE Meeting and the Student's IEP

On May 21, 2010, a CSE was convened to develop an IEP for the Student for the 2010-2011 school year. At the time, the Student was unilaterally enrolled in Celebrate the Children (" CTC" ), a private special education school. The CSE consisted of M.C., the Student's mother; [2] representatives from the DOE, including Rose Fochetta (" Fochetta" ), a certified school psychologist with a masters in educational psychology; Jane O'Connor, a special education teacher who also served as the DOE representative at the CSE; Sharon Wechsler, a general education teacher; Monica Osgood, the CTC Executive Director; and a number of E.B.'s then-current teachers and service providers at CTC, including Elizabeth Kali, E.B.'s occupational therapist; Alyssa Golden, E.B.'s speech therapist; Danielle Dieckmann, E.B.'s physical therapist; and Desmond Lloyd, E.B.'s 1:1 paraprofessional (collectively, " CSE Members" ).[3]

The CSE Members principally utilized " teacher estimates," information from the Student's then-current teachers and service providers at CTC, to formulate the Student's IEP. The CSE also reviewed a number of additional reports documenting the Student's abilities, including his 2009-2010 IEP, various progress reports from 2010, and a psychological evaluation from 2007. No new tests were conducted. Based on the considered evaluative data, the CSE determined that the Student functioned at a kindergarten level, which was reflected in the Student's IEP. All the CSE Members agreed with the descriptions of the Student's performance levels at the time, including M.C.

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The CSE also developed E.B.'s educational and behavioral goals and objectives for the 2010-2011 school year. The final IEP contained approximately twenty-six goals and eighty-four short-term objectives, such as rhyming words and identifying sounds, matching shapes and coins, and extending simple patterns. All of the goals and objectives were reviewed at the CSE meeting; each CSE Member, including M.C., agreed on the goals' and objectives' suitability for E.B. and capacity for implementation in a public school.

B. The Student's Recommended Placement for the 2010-2011 School Year

The final IEP for the 2010-2011 school year recommended placing the Student in District 75,[4] in a specialized class with a student-to-teacher-to-paraprofessional ratio of six-to-one-to-one (" 6:1:1" ), and assigning to E.B. a one-to-one (" 1:1" ) full-time crisis management paraprofessional (together, " 6:1:1 1:1" ). The IEP also recommended that each week the Student receive four thirty-minute sessions of occupational therapy (" OT" ), two thirty-minute sessions of physical therapy (" PT" ), four thirty-minute sessions of individual speech/language (" S/L" ) therapy, and two thirty-minute sessions of individual counseling.

The DOE issued a Final Notice of Recommendation (" FNR" ) to the Parents on June 8, 2010, which briefly described the DOE's proposed classroom program and school placement. The FNR placed the Student at P94M at 188M (" P94" ), a special education school at which the Student's recommended 6:1:1 1:1 program with related services would be implemented. The Parents also received a copy of the IEP via mail.

C. The Student's Unilateral Placement for the 2010-2011 School Year

On June 22, M.C. visited P94 and observed two classrooms that the DOE offered as suitable placements for the Student. The first class was a fifth and sixth grade classroom, which M.C. described as containing students who were " severely impaired and nonverbal." The second class was a third and fourth grade classroom, which M.C. felt contained students functioning at levels that surpassed E.B.'s. M.C. also expressed dissatisfaction with the cafeteria and sensory gym at P94. As a result, M.C. came to believe that the recommended placement was inappropriate for the Student.

By letter dated June 22, M.C. timely rejected the DOE's proposed placement at P94, and stated that the Student would continue his education at CTC. At CTC, the Student was placed in a classroom with a ratio of ten children to one teacher and six classroom paraprofessionals. The Student attended CTC on a limited basis from September through December 2010, while also receiving approximately twenty-two hours of programming per week from the Communication Clinic of Connecticut (" CCC" ).[5] The Student's program at CCC taught him language skills and functional living skills, including personal grooming, cooking, and cleaning.[6] The Student also

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received supplemental services such as social and emotional therapy, supervision, parent training, communication therapy, S/L therapy, language development therapy, and relationship development intervention contemporaneously with his CCC programming (" Supplemental Services" ).

The plaintiffs contend that E.B.'s CCC program helped him feel competent and motivated. As a result, in January 2011, the Parents removed E.B. from CTC and placed him in the CCC program full-time. The Student received CCC services at home two days per week and attended the CCC clinic three days per week. The plaintiffs contend that by the end of the 2010-2011 school year, the Student had progressed in all areas and his problem behaviors were significantly reduced.

D. The IHO Proceedings and Decision

On July 2, 2010, the plaintiffs requested services under pendency and an impartial due process hearing (the " Hearing" ) to address the DOE's alleged failure to provide the Student a FAPE and to obtain tuition reimbursement for the cost of tuition at CTC and any Supplemental Services provided during the 2010-2011 school year.[7] On October 13, the plaintiffs amended their Due Process Complaint to withdraw their request for pendency services (" Amended Due Process Complaint" ...

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