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B.C. v. Pine Plains Central School District

United States District Court, S.D. New York

September 6, 2013

B.C., on behalf of her minor son, B.M., Plaintiff, -

Decided September 5, 2013

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[Copyrighted Material Omitted]

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For B.C. on behalf of her minor son, B.M., Plaintiff: Mary Jo Whateley, LEAD ATTORNEY, Michael Howard Sussman, Sussman & Watkins, Goshen, NY.

For Pine Plains Central School District, Defendant: Mark Craig Rushfield, LEAD ATTORNEY, Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY.


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Edgardo Ramos, Judge

Plaintiff B.C., on behalf of her minor child, B.M. (the " Plaintiff" ), brings an action against Pine Plains Central School District (" Defendant" or the " District" ) under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1415(e)(2), challenging the District's placement of her son, asserting that the District failed to provide him with a free appropriate public education (" FAPE" ), and seeking reimbursement for his private school tuition. Compl., Doc. 1. Plaintiff also requests that this Court convene de novo proceedings to accept and review new evidence relating to the student's progress at his private school during the 2011-2012 school year. Plaintiff brings this case as an appeal from a decision of the State Review Officer (" SRO" ), who found in favor of the District. Defendant has moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def. Mot., Doc. 6. For the reasons set forth below, Defendant's motion to dismiss is GRANTED.

I. Statutory Framework

Congress enacted the IDEA to encourage the education of children with disabilities. E.A.M ex rel. E.M. v. N.Y.C. Dep't of Educ., 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1 (S.D.N.Y. Sept. 29, 2012) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). The statute mandates that any state receiving federal funds must provide a free appropriate public education (" FAPE" ) to disabled children. 20 U.S.C. § 1412(a)(1)(A); Rowley, 458 U.S. at 179. The FAPE provided by the state must include " special education and related services" tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(9), and be " reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207.

A public school ensures that a student with disabilities receives a FAPE by providing the student with an Individualized Education Plan (" IEP" ). Polera v. Bd. Of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482 (2d Cir. 2002). An IEP is a written statement, collaboratively developed by the parents, educators, and specialists, that " sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and

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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), superseded by statute, Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir. 2009).

Because New York State receives federal funds under the IDEA, it must comply with the requirements of the statute. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). In New York, the task of developing an IEP rests with local Committees on Special Education (" CSEs" ), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1); Heldman on Behalf of T.H. v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992). In developing a child's IEP, the CSE must consider four factors: " (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." E.A.M. ex rel. E.M., 2012 WL 4571794, at *1 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)) (internal quotation marks omitted). The IEP must " be reasonably calculated to enable the child to receive educational benefits," Gagliardo, 489 F.3d at 107 (citation and internal quotation marks omitted), " likely to produce progress, not regression," and afford the student with an 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) (internal quotation marks omitted). However, a school district is not required to provide " every special service necessary to maximize each handicapped child's potential," id. (citation and internal quotation marks omitted), or " everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132 (citation and internal quotation marks omitted). Furthermore, under an IEP, " education [must] be provided in the 'least restrictive setting consistent with a child's needs'" and the CSE must " be mindful of the IDEA's strong preference for 'mainstreaming,' or educating children with disabilities 'to the maximum extent appropriate' alongside their non-disabled peers." M.H. v. NYC Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (citations omitted).

In addition to imposing the IEP requirement, the IDEA provides for due process procedures to promptly resolve disputes that arise between parents and school districts, so that children will receive appropriate special education services. 20 U.S.C. § 1415(b)(6)-(7). New York State has implemented a two-tiered system of administrative review for disputes regarding " any matter relating to the identification, evaluation or educational placement of a student with a disability...or the provision of a [FAPE] to such a student." Id.; 8 NYCRR § 200.5(i)(1). First, " [p]arents may challenge the adequacy of their child's IEP in an 'impartial due process hearing' before an [Impartial Hearing Officer (" IHO" )] appointed by the local board of education." E.A.M. ex rel. E.M., 2012 WL 4571794, at *2 (quoting Gagliardo, 489 F.3d at 109). Either party may then appeal the IHO's decision to a State Review Officer (" SRO" ), an officer of the State's Board of Education tasked with conducting an impartial review of the proceedings. Id.; 34 C.F.R. 300.514(b)(2); 8 NYCRR § 279.1(d).

To initiate an appeal from the IHO's decision to the SRO, state regulations require the petitioning party to effectuate timely personal service of a verified petition upon the respondent. 8 NYCRR § § 279.2(b), 279.7, 279.13. If the parent is the party seeking review, the regulations also require the parent to personally serve

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a notice of intention to seek review upon the school district, " not less than ten days before the service of a copy of the petition upon such school district, and within 25 days from the date of the IHO's decision sought to be reviewed." 8 NYCRR § 279.2(b). Petitions for review to the SRO must be served " within 35 days from the date of the decision sought to be reviewed," and, " [i]f the decision has been served by mail upon the petitioner, the date of mailing and the four days thereafter shall be excluded in computing the 25- or 35-day period." 8 NYCRR § 279.2(b); 8 NYCRR § 279.13. If a petitioner fails to timely initiate an appeal to the SRO, the reasons for failure to timely seek review must be set forth in the petition, and " ...

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