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

United States District Court, S.D. New York

March 26, 2014

R.B., et al, Plaintiffs,
New York City Department of Education, Defendant

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For R.B., individually, R.B., on behalf of D.B., M.L.B., individually, M.L.B., on behalf of D.B., Plaintiffs: Jesse Cole Cutler, Skyer, Castro, Foley & Gersten, New York, NY.

For New York City Department of Education, Defendant: David Alan Rosinus, Jr., LEAD ATTORNEY, New York City Law Department, New York, NY.

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ALISON J. NATHAN, United States District Judge.

Plaintiffs R.B. and M.L.B. bring this action, individually and on behalf of their minor child D.B., against Defendant New York City Department of Education (" DOE" or " Department" ), seeking review of the October 17, 2012, administrative decision of State Review Officer (" SRO" ) Justyn P. Bates, which affirmed the decision of Impartial Hearing Officer (" IHO" ) Christine Moore that the individualized education plan (" IEP" ) developed for D.B. by the DOE was sufficient to provide D.B. with the free appropriate public education (" FAPE" ) to which he is entitled under the Individuals with Disabilities Education Act (" IDEA" ). Plaintiffs challenge this decision and seek reimbursement for the cost of his enrollment in the Rebecca School, a private school in which they unilaterally opted to enroll D.B. for the 2011-12 school year. The parties have filed cross motions for summary judgment. Dkt. Nos. 11, 15. For the reasons that follow, the Court grants Defendant's Motion for Summary Judgment and denies Plaintiffs' motion for the same.


D.B's educational history is described in R.B. v. N.Y.C. Dep't of Educ., No. 12 Civ. 3763 (AJN), 2013 WL 5438605 (S.D.N.Y. Sept. 27, 2013) (" R.B. I" ), which held that D.B.'s 2010-11 IEP was both procedurally and substantively adequate and denied tuition reimbursement for that school year. The Court will not repeat that history in detail here. D.B. has been diagnosed with autism, and his local Committee on Special Education (" CSE" ) has classified him as a " child with a disability," as defined in the IDEA, 20 U.S.C. § 1401(3), who is eligible to receive an IEP. R.B. I, 2013 WL 5438605, at *1. At the time of the events at issue in this litigation, D.B. was twelve years old. See Ex. 1 at 1.

A. The CSE Meeting

Prior to the CSE meeting to develop D.B.'s 2011-12 IEP, Ms. Feng Ye (a DOE special education teacher) prepared a draft IEP based on her review of D.B.'s December 2010 Report of Progress from the Rebecca School (the " 2010 Report" ), a January 2011 Addendum to the 2010 Report (the " 2011 Addendum" ), the DOE's November 2010 psychoeducational evaluation of D.B., and a November 2010 classroom observation of D.B. Def. 56.1 ¶ 10; Tr. 21-22; Exs. 4-8. At the time, Ms. Ye was in her fifth year as a special education teacher assigned to the CSE, in which capacity she " [went] to schools and observe[d] children with disabilities" and " participate[d] in developing. IEPs." Pl. 56.1 Statement ¶ 10; Def. 56.1 Counterstatement ¶ 10; Tr. 19-20. Prior to taking on that role, Ms. Ye spent approximately ten years as a classroom special education teacher, and approximately seven or eight years as an education evaluator. Tr. 19. Her qualifications include a Master's degree in Special Education and Educational Evaluation and a permanent Special Education teacher's license for grades K through 12. Tr. 20-21.

The CSE team--which consisted of M.L.B., Ms. Kalvin (a social worker from the Rebecca School), Ms. Cohn (D.B.'s teacher at the Rebecca School), Ms. Fochetta (a DOE school psychologist), and a parent member [1]--met to develop D.B.'s 2011-12 IEP on February 9, 2011. Pl. 56.1 ¶ 2. Shortly before the meeting began, the CSE team reviewed an August 2010 psychoeducational evaluation of D.B. that

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M.L.B. provided. Def. 56.1 ¶ 10; Tr. 21-22. During the meeting, the CSE team reviewed the draft IEP that Ms. Ye had previously prepared. Def. 56.1 ¶ 10; Tr. 80. First, the team revised the descriptions of D.B.'s academic, socio-emotional, and physical development in the IEP based on input from M.L.B. and Ms. Cohn. Tr. 29-37; Ex. 2. Next, the team discussed the annual goals and short-term objectives in the IEP, many of which were copied directly from the 2010 Report and the 2011 Addendum. Compare Ex. 1 with Ex. 6. M.L.B. requested that the IEP include specific goals (detailed below), and the CSE team considered those requests. Def. 56.1 Statement ¶ 12; Tr. 51, 54, 101, 103, 106, 125, 398; Ex. 2 at 2.

The CSE team then considered what type of program to recommend for D.B. The team agreed that D.B. required a twelve-month program. Def. 56.1 Statement ¶ 12; Ex. 1 at 15. After consideration, 12:1:1 and 8:1:1 staffing ratios (student: teacher : paraprofessional) were rejected as " insufficiently supportive," and the team recommended a 6:1:1 ratio. Def. 56.1 Statement ¶ 12; Ex. 1 at 15. M.L.B. was concerned about this recommendation because " the 6:1:1 classes that they have so far assigned him to have been really low functioning." Tr. 399. In response to these concerns, Ms. Fochetta and Ms. Ye " assured [M.L.B]. that there were plenty of 6:1:1 classes that are functionally grouped." Tr. 83, 399. The CSE team also recommended a 1:1 transitional paraprofessional. Ex. 1 at 17. M.L.B. disagreed with the recommendation of a paraprofessional, based on her belief that " [D.B.] doesn't need a one-to-one person, he needs a small class ratio, because sometimes he needs one-to-one help with academics." Tr. 399.

Next, the CSE discussed D.B.'s related service mandates. The final version of the IEP recommended: two thirty-minute session of counseling per week (once per week individually, once per week in a group of two); four thirty-minute sessions of occupational therapy (" OT" ) per week (twice per week individually, twice per week in a group of two); and five thirty-minute sessions of speech and language therapy (" SLT" ) per week (three times per week individually, twice per week in a group of two). Ex. 1 at 16. No one at the IEP meeting objected to these recommendations. Tr. 38; Ex. 2 at 2. The IEP also recommended adapted physical education (" PE" ), which Ms. Ye described as " programmatic." Ex. 1 at 1; Tr. 91. The IEP did not include goals specifically related to PE, nor did it expressly provide for parent counseling and training. Pl. 56.1 ¶ 16; see Ex. 1.

B. The Recommended Placement

On June 17, 2011, Plaintiffs sent the district a letter indicating that they " intend[ed] to place [D.B.] at the Rebecca School . . . for academic year 2011-2012, and seek reimbursement for this placement from the District." Ex. C at 1. For a description of the Rebecca School's program, see R.B. I, 2013 WL 5438605, at *5. In addition to objecting to the failure of the district to identify a specific placement, Plaintiffs indicated that they considered the IEP to be " inappropriate to address [D.B.'s] individual needs." Ex. C. at 2.

On June 24, 2011, Plaintiffs received a Final Notice of Recommendation (" FNR" ) dated June 14, 2011, which restated the CSE's recommendation of a 6:1:1 program in a specialized school and offered D.B. a placement in P.S. 79, the Horan School (" P.S. 79" ). Ex. 3. The FNR stated that D.B. was to receive a " crisis para [professional]," Ex. 3, rather than the " transitional para [professional]" recommended in his IEP, Ex. 1 at 17.

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M.L.B. visited P.S. 79 on June 28, 2011 and met the parent coordinator, Ms. Ortega, who stated that P.S. 79 currently housed a vocational high school, and " that the junior high kids were housed at another school." Tr. 405. Ms. Ortega also informed M.L.B. that " there were going to be some changes for the summer, and maybe there would be a junior high class there." Tr. 405. At Ms. Ortega's suggestion, M.L.B. called P.S. 79 on July 9, 2011, the first day of the summer session, and " learned that there was one 6:1:1 class for junior high age kids." Tr. 405-06. On July 13, M.L.B. returned to P.S. 79 with Ms. Kalvin, a social worker from the Rebecca School. Pl. 56.1 ¶ 33. They were introduced to Ms. Grammer, who said that she was the teacher of " the class that D.B. would be placed in." Pl. 56.1 ¶ ¶ 33-34. M.L.B. also spoke with the coordinator of the school's vocational program, which began in ninth grade. Tr. 408. M.L.B. told the coordinator that she " would rather [D.B.] focus on learning academics." Tr. 409. Plaintiffs did not accept the DOE's placement, and D.B. attended the Rebecca School for the 2011-12 school year. Tr. 409-10.

C. The Administrative Proceedings

On July 5, 2011, M.L.B. and R.B. filed a due process complaint requesting a hearing before an IHO. Def. 56.1 ¶ ¶ 31. After receiving this request, the IHO ordered the DOE to reimburse Plaintiffs for 80% of D.B.'s tuition at the Rebecca School during the pendency of the administrative proceedings. Def. 56.1 ¶ 32; Pendency Dec. at 3. This order was based on D.B.'s placement at the Rebecca School in 2009-10, which was the last placement agreed upon by Plaintiffs and Defendants. Tr. 6.

Portions of the impartial hearing occurred from October 26, 2011 to January 4, 2012. Pl. 56.1 ¶ 61. Plaintiffs called four witnesses: Ms. McCourt (the Rebecca School's director), Ms. Kalvin (a social worker at the Rebecca School), Ms. Cohn (D.B.'s teacher at the Rebecca School), and M.L.B. Tr. 244, 296, 308, 383. Defendant called Ms. Ye and Ms. Sencion, a DOE special education teacher, as witnesses. Tr. 17, 141. The testimony of these witnesses has been incorporated into the facts above, and will not be repeated here.

In a February 28, 2010 decision, the IHO found that the recommended program " provide[d] the support and structure necessary to address [D.B.]'s needs." IHO Dec. at 14. The IHO determined that the recommended school " was able to implement [D.B.'s 2011-12] IEP and was capable of providing [D.B.] with the recommendations set forth in that IEP . . . [which] would have provided [D.B.] with a meaningful educational benefit." IHO Dec. at 17-18.

The parents appealed this decision to an SRO on April 3, 2012. Pl. 56.1 ¶ 69. Though an SRO is required to issue a decision within 30 days upon receipt of an appeal, the deadline for a decision in this case was extended to May 30, 2012. Compl. ¶ ¶ 65, 66. On October 17, 2012, the SRO issued a decision holding that " the district offered [D.B.] a free and appropriate public education for the 2011-12 school year." Def. 56.1 ¶ 44. The SRO's specific findings are described in the body of this opinion. Plaintiffs challenged the SRO's decision by filing this action on February 19, 2013.


A. Burlington/Carter Test

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