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Scott v. New York City Department of Education

United States District Court, S.D. New York

March 25, 2014

LINDA SCOTT, on behalf of and as parent and guardian of C.S., a student with a disability, Plaintiff,

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[Copyrighted Material Omitted]

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For Linda Scott, on Behalf of and as Parent and Guardian of C.S., a student with a disability, Plaintiff: Erin McCormack-Herbert, LEAD ATTORNEY, Partnership For Children's Rights, New York, NY; Michael Dougherty Hampden, Legal Services for Children, Inc., New York, NY.

For New York City Department of Education, Defendant: Elizabeth Sheehan Edmonds, LEAD ATTORNEY, Nyc Law Department, New York, NY.


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ANALISA TORRES, United States District Judge.

Plaintiff, Linda Scott, individually and on behalf of her child, C.S., brings this action against the New York City Department of Education (the " DOE" ) pursuant to the Individuals with Disabilities Education Act (the " IDEA" ), 20 U.S.C. § 1400 et seq. Plaintiff seeks review of the January 5, 2012 decision (the " SRO Op." ) of New York State Review Officer Justyn P. Bates annulling the August 23, 2011 decision (the " IHO Op." ) of Impartial Hearing Officer James P. Walsh, which found the DOE's placement of C.S. substantively inappropriate and directed the DOE to pay for C.S.'s private school tuition. The parties have cross-moved for summary judgment. For the reasons stated below, Plaintiff's motion is GRANTED, and the DOE's motion is DENIED.


" The IDEA requires New York state to 'provide disabled children with a free and appropriate public education ('FAPE').'" M.W. ex rel. S.W. v. New York City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013) (quoting R.E. ex rel. J.E. v. New York City Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012)). " To ensure that qualifying children receive a FAPE, [the DOE] must create an individualized education program ('IEP') for each such child." R.E., 694 F.3d at 175. An IEP is a written statement that " 'describes the specially designed instruction and services that will

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enable the child to meet' stated educational objectives and is reasonably calculated to give educational benefits to the child." M.W., 725 F.3d at 135 (quoting R.E., 694 F.3d at 175); see 20 U.S.C. § 1414(d) (2012).

The DOE creates an IEP through a local Committee on Special Education (the " CSE" ). See N.Y. Educ. Law § 4402(1)(b)(1) (2013). At a minimum, the CSE is composed of the student's parent(s), a regular or special education teacher, a school psychologist, a school district representative, an individual who can interpret the instructional implications of evaluation results, a school physician and a parent of another student with a disability. See N.Y. Educ. Law § 4402(1)(b)(1)(a). Together, the members of " [t]he 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 (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)).

The CSE does not select the specific school where the student will be placed; accordingly, the IEP does not specify a particular school site. See T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009). " The [DOE's] practice is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or FNR[,] identifying a specific school at a later date." R.E., 694 F.3d at 191. Although a parent may visit the placement listed in the FNR before deciding whether to accept it, " [t]he [DOE] may select the specific school without the advice of the parent[] so long as it conforms to the program offered in the IEP." Id. at 191-92 (citing T.Y., 584 F.3d at 420).

If a parent believes that the DOE has breached its obligations under the IDEA " 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., 725 F.3d at 135 (citing Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)). If the parent lacks the financial resources necessary to front the costs of private school tuition, the parent may request direct retroactive payment to the private school. See Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F.Supp.2d 403, 427-29 (S.D.N.Y. 2011).

The process for seeking tuition reimbursement begins when a parent files a due process complaint with the DOE. The due process complaint initiates administrative proceedings involving an impartial due process hearing before an Impartial Hearing Officer (" IHO" ). See M.W., 725 F.3d at 135 (citing 20 U.S.C. § § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)).

The three-pronged Burlington/Carter test, as construed by New York Education Law § 4404(1)(c), governs that hearing: (1) the DOE must establish that the student's IEP [and identified class placement, if at issue,] 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.

Id. (citations and footnote omitted). " An IHO's decision may, in turn, be appealed to a State Review Officer (" SRO" ), who is an officer of the State's Department of Education." M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 (2d Cir. 2012) (citing Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379-80, 74 F.Appx. 137 (2d Cir. 2003)); see N.Y. Educ. Law § 4404(2). Any party aggrieved by the SRO's final administrative decision has the right to seek review

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of it by bringing a civil action in federal court. See M.W., 725 F.3d at 135-36; 20 U.S.C. § 1415(i)(2)(A).


I. C.S.'s 2010-2011 IEP and Identified Class Placement

In kindergarten, Plaintiff's son C.S. was diagnosed with autism. fro that point until C.S. completed junior high school, the DOE provided him with special education services. Pl.'s 56.1 Statement of Material Facts (" Pl.'s 56.1" ) ¶ ¶ 4, 8. In September 2008, Plaintiff enrolled C.S. at the Cooke Center Academy (" CCA" ), a private special education high school in Manhattan. Id. ¶ 9. The DOE paid C.S.'s tuition at CCA for the 2008-2009 and 2009-2010 school years. Id. ¶ 10.

On March 4, 2010, the CSE convened to conduct C.S.'s annual review and develop his IEP for the upcoming 2010-2011 school year. Id. ¶ 33; Transcript of Proceedings before Impartial Hearing Officer (" Tr." ) 262. The following individuals attended the meeting: Plaintiff; Jacqueline Giurato, a special education teacher and district representative; Nancy Levine, a school psychologist and Gloria Gonzalves, the parent member. Pl.'s 56.1 ¶ 34. The following CCA staff participated in the meeting by telephone: Francis Tabone, the assistant head of CCA; Leonard Plaia, C.S.'s math teacher; Chaya Gray, C.S.'s English language arts teacher and Virginia Trainor, C.S.'s speech-language pathologist. Id.

In developing the IEP, the CSE relied on a sixteen-page report from CCA dated November 2009, which identified C.S.'s progress and needs in various areas, R. Ex. 5, Giurato's November 17, 2009 classroom observation report, prepared after she observed C.S.'s performance during a math lesson at CCA, R. Ex. 6, and the verbal input of Plaintiff and C.S.'s then-current teachers at CCA. Tr. 278. The CSE did not consider C.S.'s last triennial evaluation report, dated January 15, 2008, or his last speech-language evaluation from 2005. Tr. 308-11, 330; R. Ex. 7.

As a result of its March 4, 2010 meeting, the CSE issued an IEP designating C.S., who was sixteen years old, as an eleventh grader for the 2010-2011 school year. R. Ex. 3. The IEP recommended his placement in a 12:1:1 (student : teacher : paraprofessional) ratio, twelve-month special class in a specialized school and found him eligible to receive the related services of counseling, three times weekly for forty-five minutes in a group of three, and speech therapy, also three times weekly for forty-five minutes in a group of three. R. Ex. 3 at 1, 13. In addition, the IEP set forth C.S.'s annual goals and short-term objectives and provided for post-educational transition services. R. Ex. 3.

On June 14, 2010, the DOE sent a final notice of recommendation (" FNR" ) to Plaintiff, which designated P373K @ Brooklyn Transition Center (" P373K" ) as C.S.'s public school placement for the 2010-2011 school year. R. Ex. 8. Although C.S.'s IEP recommended a twelve-month class, the DOE allows parents to accept or decline summer services. Pl.'s 56.1 ¶ 45; Def.'s Resp. to Pl.'s 56.1 Statement of Material Facts (" Def.'s Resp. 56.1" ) ¶ 45. Plaintiff had previously notified the CSE of her family's summer vacation plans at the March 4, 2010 meeting, and Plaintiff declined summer services for C.S in a letter to the CSE, dated June 25, 2010. IHO Op. at 12; Tr. 515; R. Ex. V.

II. C.S.'s Identified Placement Class and Plaintiff's Unilateral Placement at CCA

In the June 25, 2010 letter, Plaintiff expressed concern about the appropriateness of P373K following her visit to the school on June 18, 2010. R. Ex. V. She

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had met with the school's guidance counselor, Sharon Williams, but Plaintiff was neither shown any classes nor given specific information about the type of class C.S. would attend and the related services he would receive. Tr. 489-90; R. Ex. V. Because the DOE would automatically enroll C.S. in the recommended placement unless it received a timely response to the FNR, Plaintiff explained in the letter that she would reserve her decision to challenge the placement until after her second visit to the school on July 13, 2010, " the earliest date [she] could get for the appointment." R. Ex. V.

On July 13, 2010, Plaintiff returned to P373K and again met with Sharon Williams. Tr. 491. Williams showed Plaintiff a 3:1:3 class for autistic students, informing her that no other class was available for viewing. Tr. 492; R. Ex. W. According to Plaintiff, a paraprofessional told her that most students at P373K were not receiving their required services. Tr. 495. By letter to the CSE dated July 20, 2010, Plaintiff reiterated her concerns about P373K, noting that the class she was shown had an inappropriate staffing ratio and the students she had seen were significantly more autistic than C.S. R. Ex. W. Plaintiff's letter also indicated that she had spoken with the assistant principal of P373K, Linda Lublin-Brookoff, on July 16, 2010, and that Lublin-Brookoff stated that she would be unable to provide Plaintiff with information about C.S.'s specific class until the second week of August. R. Ex. W. Plaintiff's letter stated that " before [making] a final decision" to challenge the DOE's placement, she needed to obtain adequate information about P373K. R. Ex. W. When Plaintiff called Lublin-Brookoff on August 9, 2010, Lublin-Brookoff said she could not provide Plaintiff with information until September. Tr. 496-98; R. Ex. Z. The CSE did not respond to Plaintiff's letters.

Following Plaintiff's repeated, unsuccessful attempts to contact the CSE and the DOE, including an August 12, 2010 call to the placement representative listed on the FNR, Plaintiff's attorney informed the DOE, by letter dated August 24, 2010, that Plaintiff would reenroll C.S. in CCA for the 2010-2011 school year and seek an order directing that the DOE pay C.S.'s tuition. R. Ex. Y. The letter also alleged inadequacies in the preparation of C.S.'s IEP and the inappropriateness of P373K.

Prior to these events, Plaintiff had already signed an enrollment contract with CCA for the 2010-2011 school year on April 23, 2010. R. Ex. K. Section 9(c) of the contract obligated Plaintiff to pay tuition in the amount of $46,500 even if Plaintiff were to fail to obtain tuition funding from the DOE. Section 10(b), however, released Plaintiff from the contract if she were to accept the DOE's placement and withdraw C.S. from CCA by October 31, 2010. R. Ex. K.

Persisting in her effort to gain further information about C.S.'s proposed class at P373K, Plaintiff phoned Lublin-Brookoff on September 7, 2010. R. Ex. Z. Lublin-Brookoff returned the call on September 14, and they scheduled a visit for September 17, 2010. On that day, Plaintiff " had a very short meeting" with Lublin-Brookoff, and an administrative assistant then showed Plaintiff a 6:1:1 class. Lublin-Brookoff, the class teacher and the administrative assistant identified the 6:1:1 class as the one where C.S. would be placed. Tr. 501. The teacher also told Plaintiff that two of the students were nonverbal and that one student was asleep and another almost asleep due to medication. The students appeared to Plaintiff to be functioning at significantly lower academic and social levels compared to C.S. Tr. 502-04; R. Ex. Z. Plaintiff told the teacher that C.S. required a 12:1:1 class and, upon leaving

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the school, asked the administrative assistant to convey to Lublin-Brookoff that the proposed class would be inappropriate. Tr. 505. Plaintiff was not shown a 12:1:1 class at P373K where C.S. could be placed. Tr. 521-24. By letter to the CSE dated September 23, 2010, Plaintiff recounted her multiple attempts to gain information about C.S.'s proposed class and her final conclusion that P373K would be inappropriate for C.S. R. Ex. Z.

III. Plaintiff's Due Process Complaint and the IHO Hearing

On April 12, 2011, Plaintiff filed a due process complaint with the DOE seeking direct payment of C.S's tuition for the 2010-2011 school year at CCA. R. Ex. 1. The complaint alleged that " the DOE denied C.S. a FAPE because it failed to adequately evaluate C.S., failed to prepare an appropriate IEP for him, and failed to offer him an appropriate public school placement." Pl.'s 56.1 ¶ 106.

IHO James P. Walsh held a hearing over three nonconsecutive days from June 14 to July 12, 2011. The DOE presented the testimony of four witnesses: Mark Horosky, a P373K special education teacher; Linda Lublin-Brookoff, an assistant principal at P373K; Jaqueline Giurato, a CSE special education teacher and Joyce Pariser, a CCA employee. Id. ¶ 111. Plaintiff testified on her own behalf and called seven witnesses from CCA. Id. ¶ 112.

A portion of the testimony of Horosky and Lublin-Brookoff touched on the critical question of which classroom C.S. would have been assigned to had he enrolled in P373K.

A. Horosky's Testimony

Mark Horosky stated that he is a certified special education teacher and has worked at P373K for six years. Tr. 36-37. During the twelve-month 2010-2011 school year (July through June), he taught a class with a 12:1:1 (student : teacher : paraprofessional) ratio. Tr. 40-41. Horosky observed that " summer school is a different program from September," Tr. 127, because " [i]t's looser," Tr. 96, and " more relaxed," Tr. 127, " [with] a shorter school day . . . [and] more social [and] physical activities." Tr. 128. Horosky noted that some parents elect not to enroll their child for the summer session. Tr. 44. He also explained that students entering P373K in July 2010 were assigned to classrooms according to age, not grade, but that during the school year, students are assigned by grade. Tr. 94-96. It was not Horosky's job, however, to determine where to place students. Tr. 91.

According to Horosky, by the first week of July, Horosky's class had reached full capacity with twelve students ranging in age from fifteen to seventeen years old. Tr. 45, 127. Based on Horosky's assessment of C.S.'s academic skills using C.S.'s IEP, Horosky surmised at the hearing that had C.S. enrolled in Horosky's class in July, " [C.S.] would have fit in my classroom," and " [h]e would have been on top . . . [i]n both reading and math." Tr. 74. By September, Horosky's class was composed of ninth and tenth graders exclusively and had a full complement of twelve students. Tr. 96, 101. Because Horosky's 2010-2011 school year class was composed exclusively of ninth and tenth graders and because students were assigned according to grade by September, Horosky agreed that C.S., as an eleventh grader, would not have been placed in Horosky's class in September 2010. Tr. 105-06.

B. Lublin-Brookoff's Testimony

Linda Lublin-Brookoff stated that she had served as assistant principal of P373K for six years and that she holds early childhood and special education licenses and certificates. Tr. 441-42. She testified

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that in her capacity as assistant principal, she was responsible for placing students and that placements were determined on an ungraded basis during the summer. Tr. 442, 445. Lublin-Brookoff stated that she would have assigned C.S. to Horosky's 12:1:1 class and that C.S. would have remained there for the 2010-2011 school year " unless there was some issue for any other reason during the summer that [she] could not predict." Tr. 447. Lublin-Brookoff was not asked and did not say what C.S.'s class assignment would have been had he arrived in September. On cross-examination, Lublin-Brookoff disclosed that she made the determination of C.S.'s class placement retrospectively, after October 2010, " [w]hen it was brought to [her] attention . . . that there was a case." Tr. 452. When asked whether Lublin-Brookoff made C.S.'s placement determination " for the purpose of this litigation," she responded, " [c]orrect." Tr. 452. Lublin-Brookoff also noted that " if a student doesn't show up . . . I don't have the student's IEP, I could not tell you at that moment in July, you know. He would have had to come here. And at that time, when I would have seen it, I would have made the determination at that time." Tr. 452-53.

IV. IHO Decision

The IHO issued his decision on August 23, 2011. First, he determined that the CSE had adequate evaluative data to prepare C.S.'s IEP. IHO Op. at 10. Specifically, the IHO found that the information provided in the sixteen-page CCA progress report and the verbal input of Plaintiff and C.S.'s then-current CCA teachers at the March 4, 2010 CSE meeting was sufficient to develop the IEP. Id. at 9-10. Although the IHO observed that C.S.'s January 2008 evaluations were " less than satisfactory," the IHO found that the CSE did not rely on those evaluations. Second, the IHO determined that C.S.'s IEP was appropriate. Id. at 11. The IHO also concluded that the IEP's recommendation of speech therapy three times weekly for forty-five minutes in a ...

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