C.L.K. and J.K. individually, and as Parents of C.K., a minor under the age of 18 years. Plaintiffs,
Arlington School District. Defendant.
OPINION & ORDER
NELSON S. ROMAN, District Judge.
Before the Court is Plaintiffs' and Defendant's cross motions for summary judgment. For the reasons set forth below, this Court now grants Defendant's motion for summary judgment.
This action arises in the context of a special education appeal grounded in the Individuals with Disability Act ("IDEA") and Article 89 of the New York State Education Law. See Affidavit of Triesha Foglia, sworn to on September 3, 2013, hereinafter referred to as the "Foglia Aff." ¶ 4. Federal and state law assures that all children with disabilities have available a free appropriate public education ("FAPE") designed to meet their unique learning needs. See Foglia Aff. ¶ 3. The primary mission of the District's Committee on Special Education ("CSE") is to identify, locate, and evaluate all disabled children within the District's borders and develop individualized education programs ("IEPs") that address their educational needs. See Foglia Aff. ¶ 3.
C.K.'s classification and eligibility for special education programs and services are not in dispute. See Foglia Aff. ¶ 9. The plaintiffs object to the conclusions of the State Review Officer of the New York State Education Department ("SRO"), that the District offered C.K. FAPE in the least restrictive environment ("LRE"), and the dismissal of their request for tuition reimbursement and travel costs associated with their unilateral placement of C.K. at the Pathways School ("Pathways") during the 2011-12 school year. See Foglia Aff. ¶4. Pathways holds itself out as specializing in the remediation of students with autism, however Pathways has not been approved by the New York State Education Department to instruct students with disabilities. See Foglia Aff. ¶ 100.
The SRO found that an overall review of the hearing record showed that despite a decline in formal test scores, C.K. functionally made progress in school academically, socially, and emotionally during prior school years leading up to the May 2011 IEP. See Foglia Aff. ¶ 8. The SRO found that the May 2011 CSE carefully and accurately described the student's present levels of academic achievement, social development, physical development, and management needs, and that the description was consistent with the evaluative information that was available to the CSE. See Foglia Aff. ¶ 8. The SRO further found that the District's recommended program for the 2011-12 school year was designed to address the student's instructional needs and was reasonably calculated to enable the student to receive educational benefits which offered C.K. FAPE in the LRE, thus denying tuition and transportation costs to Pathways. See Foglia Aff. ¶ 8.
At the time of the underlying impartial hearing, which was conducted on six days (November 18, 2011, December 2, 2011, January 11, 2012, January 12, 2012, January 13, 2012, and January 18, 2012), C.K. was an 11-year-old, 6th grade student with a classification of Autism, who attended the Pathways school in Eastchester, New York, as a day student. See Foglia Aff. ¶ 9.
Pathways has not been approved by the Commissioner of Education as a school with which public school districts in this State may contract to instruct students with disabilities. See Foglia Aff. ¶ 9. Boards of education in New York have no authority to contract for the placement of a child with a disability in a private school that has not been approved by the New York State Education Department to instruct students with disabilities. See Foglia Aff. ¶ 100; N.Y. Educ. Law § 4402(2)(b)(2). Pathways does not follow the New York State curriculum and instead presents students with concepts that would be encompassed in different grade levels.
Prior to attending Pathways, C.K. attended the District's schools. She was described as motivated, hardworking, determined, pleasant, cooperative and willing to try, despite her challenges. See Foglia Aff. ¶ 10.
In 3rd grade, the 2008-09 school year, C.K. attended a self-contained Autism program, taught by Lynn Sangaline, certified special education teacher, with twenty years of experience working with students on the autism spectrum. C.K. remained in the program through the end of 5th grade. See Foglia Aff. ¶ 11. This is a very specialized, intensive learning program where opportunities were offered for one-to-one, small and whole group instruction and stressed language and social skills. See Foglia Aff. ¶ 12. Speech language therapy was incorporated into the program and opportunities for mainstreaming were provided. See Foglia Aff. ¶ 12.
In 3rd grade, C.K. had good days and bad days; days when she was able to focus better than others. See Foglia Aff. ¶ 13. Academically, C.K. started as a non-reader who could only read five to ten words consistently. She was unable to write a simple sentence. She was unable to add, subtract or multiply. See Foglia Aff. ¶ 13. Socially, she was anxious to be with other students. Although she had opportunities for mainstreaming with specials, it went slowly. There were times when she was resistant to instruction, would shut down, sometimes cry to be angry and would have a difficult time expressing why. See Foglia Aff. ¶ 14.
In 4th grade, 2009-10, C.K. cautiously adjusted to a larger class (two to seven students); was mainstreamed for specials; would occasionally push into a 3rd grade class; and became class representative in student government. Socially, she was showing them how much she enjoyed being in the mainstream. See Foglia Aff. ¶ 15.
In 5th grade, 2010-11, C.K. made slow and consistent progress in reading and started to show more interest. See Foglia Aff. ¶ 16. In speech therapy, C.K.'s confidence level grew. She appeared ready to learn; shutting down was rare, but if she did, she was able to work through it more quickly and efficiently. Her disfluencies were minimal. She was capable of following three step directions. She made progress with sequencing and re-telling of narratives. See Foglia Aff. ¶ 17. C.K. had good use and understanding of language was able to listen to what was asked of her and formulate answers on target. See Foglia Aff. ¶ 17. C.K. was happy, confident, and social. She helped other students in the classroom, said hello to students and teachers in the hallway and enjoyed going to the mainstream class, which was scheduled after speech. See Foglia Aff. ¶ 18. C.K. participated in the mainstream 5th grade Science and Social Studies class, with a teacher's assistant, and her needs were accommodated in the classroom. See Foglia Aff. ¶ 19. In the beginning, C.K. was very nervous in class but then warmed up and eventually began participating in group projects and working with other students. Avoidance behaviors were not seen. See Foglia Aff. ¶ 19. Academically in the mainstream classes, C.K. struggled with writing but was given opportunities to speak her responses. In one particular research project, C.K. was able to stand in front of the room and present from a PowerPoint presentation. On another occasion, C.K. participated in a group activity where she delegated jobs to other students. See Foglia Aff. ¶ 20. Socially, she made a lot of growth. She was able to socialize appropriately with the other 5th graders. See Foglia Aff. ¶ 21. At first, C.K. was not aware of personal space during conversation but by the end of the year, she understood personal space. She would speak and interact appropriately with others. See Foglia Aff. ¶ 21. It was observed the she benefitted by learning to model the typical students in the class. See Foglia Aff. ¶ 21.
In 5th grade, C.K. received occupational therapy ("OT") and physical therapy ("PT") services from licensed therapists as her gross and fine motor skills were very impaired. See Foglia Aff. ¶ 22. C.K. had low tone throughout her body, which made it difficult for her to sit for long periods of time without slouching, learning or holding her head with both arms. She had difficulty with visual tracking, which was reflected in her writing and her ability to copy from the board. She had motor planning problems, which affected her speed. Her writing was legible, but large for her age. See Foglia Aff. ¶ 23. From September 2010 to June 2011, C.K. improved in her OT skills. She developed good postural control. She was able to sit for longer amounts of time. Her writing was smaller and legible. Her keyboarding was improving, as well as her fine motor skills, visual perceptual ability, and ability to copy from the board. See Foglia Aff. ¶ 24. In PT, C.K. presented with incoordination in her muscle movements, ataxia (jerky movements), and unawareness of where her body was in space, poor endurance, overall muscle weakness, compromised dynamic balance and motor planning issues. It was challenging for C.K. to use a large therapy ball or stand on an unstable surface. See Foglia Aff. ¶ 25. In the classroom if she got up from her chair to line up at the door, she would bump into students or knock her books off the table. She would lean on walls and stumble. She was unaware of where her arms were and had a lot of jerky arm movements as she walked down the hall. With stairs, she had poor shaft awareness, and would stumble which made her unstable motorically. See Foglia Aff. ¶ 25. Towards the end of the year, C.K. was able to walk to and from her classroom by herself. She was able to negotiate staircases by herself with her arms by her side, without bumping into anything or stumbling. C.K.'s biggest improvement was her awareness of her body in space. See Foglia Aff. ¶ 26. There were small improvements with dynamic balance, improvement in motor planning and endurance. Although C.K. still required rest periods during a 30 minute session, they were much less. C.K. had also developed compensatory strategies to handle her ataxia, which also improved. See Foglia Aff. ¶ 26 & 27. C.K. showed improvement in making eye contact. She was able to listen and follow three step directions, where in the beginning of the year, it was only one. See Foglia Aff. ¶ 27. There were also gains with gross motor function, muscle strength and upper body strength. In September, she was unable to wheelbarrow and would collapse right away. By the end of the year, she could walk a few feet. See Foglia Aff. ¶ 28.
On May 27, 2011, the CSE met for C.K.'s annual review and recommendations for 6th grade. See Foglia Aff. ¶ 29. The CSE reviewed an independent neuropsychological evaluation by Dr. O'Leary that indicated that C.K.'s intellectual ability was within average range, as were verbal comprehension and perceptual reasoning. See Foglia Aff. ¶ 30. The results regarding C.K.'s intellectual ability were consistent with previous administrations of cognitive testing. See Foglia Aff. ¶ 30. C.K.'s teachers and service providers disagreed with portions of Dr. O'Leary's report, such as: the description of C.K. attempting to escape demands, as it was described that she often needed time to formulate responses; the standard score of 6 on the Understanding Spoken Paragraphs, since she was such a strong auditory learner; and the low score on Concepts and Following Directions, as it was described that there was a motor component involved and C.K. had shown she was able to follow multi-step auditory directions. See Foglia Aff. ¶ 31.
The CSE recommended that C.K. attend the Union Vale Middle School and receive integrated co-teaching services ("ICT") every other day for her core academic subjects: English Language Arts ("ELA"), Math, Social Studies and Science; Special class Study Skills daily; Special class Reading daily; Consultant teacher services ("CTS") for Writing and Math every other day. See Foglia Aff. ¶ 32. Related services included; speech language therapy in a group twice a week and individually once a week; individual OT once a week; and individual PT twice a week. See Foglia Aff. ¶ 32. The CSE also recommended program modifications including: a copy of class notes, leave class before bell, refocusing and redirection, directions repeated and revised, visual supports, break down assignments into smaller segments, access to word processor and check for understanding; test accommodations including: extended time (2.0), special location, refocus and redirect, test passages, questions, items and multiple choice responses read to the student, language in directions simplified and revised; and a 1:1 aide throughout the school day to assist her in negotiating the school environment. See Foglia Aff. ¶ 32. The CSE also recommended goals (most of which would have been addressed, by more than one teacher, and in more than one class) to target her documented deficits in the areas of study skills, reading, math, writing, speech, OT and PT. See Foglia Aff. ¶ 33. Graph paper was recommended as a visual technique to help align numbers, assist with handwriting ability and keep assignments organized. See Foglia Aff. ¶ 36. The CSE recommended the use of a computer as a compensatory strategy and computers were available in each of her classes. See Foglia Aff. ¶ 37. To address the spelling goal, strategies included: the Read to Write program (word prediction and spelling); review of vocabulary; and spell check on the computer. See Foglia Aff. ¶ 42.
At the end of the meeting, the parents declined the CSE's recommendation and gave the CSE a list of programs that they wanted considered. See Foglia Aff. ¶ 50. The SAIL program, housed at the Bedford School District, was a program for severely autistic students, many of which were nonverbal, alternately assessed and on a path toward an IEP diploma. Based on C.K.'s description of being verbal, an auditory learning, doing well in language, and participating in the mainstream 5th grade class, Bedford opined that it was not an appropriate program, and too restrictive. See Foglia Aff. ¶ 51. The Eastchester Union Free School District was given information from Dr. O'Leary's report regarding C.K.'s academic and cognitive levels and some anecdotal information from the annual review, to which they stated they had a very similar program to what the District had recommended and opined that it was not practical to recommend a similar program with such a long commute. See Foglia Aff. ¶ 52. The Pleasantville Union Free School District informed the District that they were not taking any outside referrals for the school year. See Foglia Aff. ¶ 53.
Ms. Foglia shared her findings with the parents in two separate letters and informed them that Dutchess BOCES had similar programs as SW BOCES available locally in district based programs, specifically C.K.'s home school, Union Vale and offered to reconvene a CSE meeting if they were interested in discussing the Dutchess BOCES programs. Plaintiffs never contacted her. See Foglia Aff. ¶ 55. Ms. Sangaline also looked into another District program, similar to hers, at the LaGrange middle school. However, the students going into that program still required work on their social skills and C.K. no longer needed that. See Foglia Aff. ¶ 56. Ms. Sangaline opined that C.K. was moving at a good pace and that with adult support she would continue to make progress with her same age peers, which she believed was very critical for C.K. See Foglia Aff. ¶ 56.
On August 12, 2011, the District received a 10-day notice with a letter from the parents detailing concerns they had with the recommendations in the May IEP. See Foglia Aff. ¶ 57. Based on the parents' concerns (not previously expressed at the May CSE meeting) a CSE meeting was scheduled for September 15, 2011, to include teachers and ...