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S.A. v. New York City Department of Education

United States District Court, E.D. New York

March 30, 2014

S.A., by his parents, M.A.K. and K.S., Plaintiffs,


ROSLYNN R. MAUSKOPF, District Judge.

Parents M.A.K. and K.S. (the "parents"), on behalf of their child, S.A. (the "student"), bring this action against defendant New York City Department of Education ("DOE") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., seeking modified de novo review and reversal of the State Review Officer's ("SRO") October 3, 2011 decision, in which the SRO (1) affirmed the Impartial Hearing Officer's ("IHO") June 15, 2011 determination that DOE offered the student a free and appropriate public education ("FAPE") for the 2010-2011 school year but (2) reversed certain other relief the IHO granted. DOE crossmoves for summary judgment.

After reviewing the administrative record under the modified de novo review standard, and considering additional evidence ordered during discovery in this action, the Court finds that the sole violation that rises to the level of denying the student a FAPE is DOE's failure to provide the parents with appropriate training and counseling.[1] Accordingly, with respect to all issues other than parental training and counseling, the SRO's decision is affirmed, plaintiffs' motion for summary judgment is denied, and DOE's cross-motion for summary judgment is granted. However, the SRO erred in annulling the IHO's determination that the parents were entitled to at-home training. In this limited respect, the SRO's decision is reversed, plaintiffs' motion for summary judgment is granted, and DOE's cross-motion for summary judgment is denied. Plaintiffs are granted leave to file an application for attorneys' fees and costs consistent with this opinion.


The SRO's findings of fact are generally due appropriate deference by this Court, which is not an expert on education or childhood learning disabilities. This Court, therefore, adopts the SRO's findings of fact as its own unless otherwise noted below. See W.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134, 145 (S.D.N.Y. 2006) (adopting SRO's well-articulated factual findings). For the sake of convenience, however, the facts relevant to the instant determination are restated in summary fashion as follows.

I. Developing the IEP

A. Committee on Special Education Meeting

On April 28, 2010, a Committee on Special Education ("CSE") convened to develop an IEP for the student, an eight-year-old diagnosed with autism. Except for making some one-word communications, the student was largely non-verbal. He also had difficulty focusing, was easily distracted, required frequent prompts, disliked loud noises, and engaged in self-stimulatory behaviors such as flapping his arms non-purposefully. Since 2008, he had attended P.S. 256, a special DOE school with ninety students that employs the Treatment and Education for Autistic and Other Communication Handicapped Children ("TEACCH") method.

The CSE meeting participants included the parents (by telephone); Assistant Principal Kris Melbourne; Theresa Hoffman, the student's special education teacher for the 2009-2010 school year; Christine Mahoney-Schneider and Luanne Horne, respectively the student's speechlanguage and occupational therapists for the 2009-2010 and 2010-2011 school years; and a school psychologist and general education teacher who observed the student in his classroom. The team discussed documents including a classroom observation and reports from Hoffman, Mahoney-Schneider, and Horne. Although the parents provided independent evaluations from the private McCarton Center for Developmental Pediatrics (the "McCarton Center"), the CSE did not discuss these evaluations.

The parents were not physically present at the CSE meeting but participated by telephone. They had, approximately two months earlier, submitted a request for an IHO hearing concerning the previous school year (2009-2010), seeking a program incorporating the McCarton Center's recommendations. This submission from the parents prompted the CSE to convene in April 2010 concerning the upcoming school year (2010-2011) and was before the CSE when it convened. Before the CSE meeting, the parents received draft goals for the student, and the CSE solicited their opinions. At the parents' request, the CSE added a feeding goal to the IEP.

The CSE discussed the student's general academic functioning, including his speechlanguage functioning; his health and physical development, including occupational therapy needs; and his deficits in academic, social, and emotional functioning. The CSE considered the fact that while the student had difficulty focusing, was easily distracted, required frequent prompts, disliked loud noises, and engaged in self-stimulatory behaviors, he had made some progress. The CSE determined that conducting a functional behavioral assessment ("FBA") and devising a specific behavior intervention plan ("BIP") were unnecessary. The parents informed the CSE that they were unable to attend parent trainings at the school because DOE offered them on weekdays, when the father's employment in New Jersey and the mother's other childcare obligations prevented them from attending.

B. The IEP

The IEP contains seemingly contradictory statements about the extent to which the student's problematic behaviors impede his ability to learn. On the one hand, the IEP states that the student's need for redirection has decreased and the teacher can manage the behavior, which does not seriously interfere with instruction. On the other hand, the IEP reports that the student's cravings for constant movement pose a frequent challenge to his staying seated and participating in classroom desktop work, and that his self-stimulatory movements significantly impede his ability to learn.

In the IEP, the CSE recommended a twelve-month program, to be implemented as of April 29, 2010, in a special school with a staffing ratio of six students to one teacher and one paraprofessional ("6:1:1"); 1:1 speech-language therapy once per week for thirty minutes; 2:1 speech-language therapy twice per week for thirty minutes; 1:1 physical therapy twice per week for thirty minutes, and 1:1 occupational therapy three times per week for thirty minutes. The IEP provides goals for the student relating to attention span, reading comprehension, math, social interaction, feeding, motor skills, communication, and adaptive physical education, including twelve annual goals and thirty-five short-term objectives.

The IEP contains only two references to parent training and counseling. First, the IEP states that the student's mother "report[s] that she has received invitations to parent trainings but is unable to attend due to the school being too far from home." IEP at 3-2. Second, the IEP states that "Parent trainings are offered." Id. at 4.

On May 3, 2010, DOE sent the parents a final notice of its IEP recommendation. By letter dated June 10, 2010, the parents rejected the student's placement and some of the items on his IEP and informed DOE that they intended to place him at the McCarton Center as soon as they were able.

The student, however, was never enrolled in private school, and remained in DOE programs for the entire 2010-2011 school year, which began with the summer 2010 session.

II. IHO Review

A. Due Process Complaint

On July 7, 2010, the parents filed an amended due process complaint, alleging that DOE failed to offer the student a FAPE for the 2010-2011 school year. As relief, plaintiffs requested compensatory education for services the student should have received during the 2009-2010 school year; reimbursement for any amounts they had paid; and prospective funding for private school tuition and other private services during the 2010-2011 school year, including a minimum of forty weekly hours of 1:1 applied behavioral analysis ("ABA") therapy at school and at home, four weekly hours of program supervision and coordination by a Board Certified Behavior Analyst, five weekly hours of 1:1 speech-language therapy, three weekly hours of feeding therapy, four weekly hours of occupational therapy, two thirty-minute physical therapy sessions per week, auditory integration therapy, monthly team meetings, evaluation and possible integration of a picture exchange communication system ("PECS"), parent training and counseling, and transportation to and from school with a commute no longer than one hour each way. The parents did not, at this point, specify whether they wished for the private services to occur at any particular school or program. Nor, as stated above, did they enroll the student in a private program.

B. IHO Hearing

The IHO hearing spanned twelve non-consecutive dates between September 2010 and May 2011. The IHO heard testimony from DOE witnesses including Assistant Principal Melbourne; teacher Shandel Horowitz, who began teaching the student in September 2010; speech-language therapist Mahoney-Schneider; occupational therapist Horne; and physical therapist Karen Ronen. The IHO also heard testimony from several witnesses plaintiffs presented, including witnesses from the McCarton Center; a behavioral specialist who evaluated the student; Ivon Jules, the classroom paraprofessional assigned to the student's class since September 2010; the Director of Placement for DOE District 75; and the student's father.

Assistant Principal Melbourne testified that the CSE decided an FBA was unnecessary because the student's interfering behaviors, though not completely extinguished, had decreased during the previous school year and were not interfering with his ability to function and participate in the classroom, as he could be easily redirected and brought back to task. Horowitz, Mahoney-Schneider, Horne, and Ronen, who all had familiarity with the student over an extended period, testified about their techniques and reported both that the student was making progress, and that they expected him to reach his annual IEP goals. For example, Horowitz, Ronen, and Mahoney-Schneider testified that the student was progressing in socialization and peer interactions. Horowitz and Mahoney-Schneider also testified that the student's behaviors were not interfering with instruction.

In contrast, plaintiffs presented testimony from witnesses including (1) Carol Fiorile, a behavior analyst who observed the student once in his home, did not provide a written report, and testified that the student had made absolutely no progress since August 2009 and had such poor instructional control that he could not be instructed; (2) Dr. Cecilia McCarton, a developmental pediatrician, who evaluated the student and testified that he could not learn in a classroom and required ABA instruction; (3) Meredith Weprin, a McCarton Center speechlanguage therapist, who testified that the student needed 1:1 behavior therapy for instructional control, some of his IEP goals were too high, and he would surely regress if he did not receive the services she recommended; and (4) Maria Bruzzaro, a McCarton Center occupational therapist, who never observed the student in the classroom or provided him services but testified that his IEP goals were too few and rudimentary, and that he could not make meaningful gains in the classroom.

With regard to the summer 2010 session, DOE presented little evidence that it fulfilled the student's IEP mandate. While the parties agreed that the student was placed in a school across the street from P.S. 256 for the summer session due to construction, the hearing witnesses were unaware who taught the student and provided his related services during the summer, or what methods they used. The parents claimed that the summer teacher was switched midway through the session, and that the student was bitten by a peer and sustained other minor injuries. An IEP goals update from August 10, 2010, indicates that the student had made progress toward half of his annual IEP goals and little progress toward the remaining half but was expected to meet all of them. The student's October 2010 Brigance Inventory also reflected that he had made progress over the summer.

C. The IHO's Decision

The IHO issued a lengthy, well-reasoned decision on June 15, 2011, after the bulk of the 2010-2011 school year had elapsed. In this decision, the IHO concluded that, viewing the 2010-2011 school year as a whole, DOE provided the student with a FAPE. Specifically, the IHO found:

• With regard to the portion of the 2009-2010 school year during which the April 28, 2010, IEP was in place (April 29, 2010, through June 30, 2010), the student was not entitled to compensatory education because the alleged FAPE deprivation was neither gross nor for a substantial time period, and because the requested relief of 1:1 ABA instruction was not tailored to the student's circumstances;
• With regard to the summer of 2010, DOE failed to meet its burden to prove that the student received a FAPE, and the CSE must reconvene to provide compensatory services for this six-week lapse. However, the IHO also found that this lapse did not deprive the student a FAPE for the entire 2010-2011 school year;
• In the limited sense that DOE failed to provide the parents with appropriate training, DOE violated the student's right to a FAPE. However, this violation did not require invalidating the entire IEP, and the appropriate remedy was for plaintiffs to receive five weekly hours of at-home parental training for a period of fifty-two weeks;
• Viewing the 2010-2011 school year as a whole, DOE offered the student a FAPE because (1) the CSE was comprised of the student's then-current teacher and related service providers, who believed he had progressed using the TEACCH method; (2) the CSE reasonably credited these DOE professionals, who, unlike the witnesses from the McCarton Center, worked with the student in a classroom setting over an extended time period (3) the student's instructional staff and related service providers for the 2010-2011 school year corroborated the IEP by testifying persuasively at the IHO hearing that the student was able to learn in a classroom and had met, or was expected to meet, his IEP goals; and (4) any procedural errors relating to the IEP did not deprive the student of a FAPE or significantly impede the parents' opportunity to participate in the decision-making process;
• Because DOE did not deprive the student of a FAPE, plaintiffs were not entitled to private school tuition pursuant to Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985); and
• The student should receive an auditory integration evaluation, and the CSE must reconvene immediately to review his commute time and add appropriate transportation requirements to the IEP.[2]

III. SRO Review

Plaintiffs appealed to the SRO, and DOE cross-appealed. In a lengthy and detailed decision dated October 3, 2011, the SRO affirmed the IHO's decision to the extent the IHO ruled for DOE but reversed the IHO's award of compensatory education for plaintiffs. More specifically, the SRO found that the IHO exceeded the amended due process complaint's scope by making a determination regarding the summer 2010 program, and that even if DOE failed to provide a FAPE for summer 2010, that deprivation did not affect the student in a material way because he made progress over the summer. With regard to parental training, the SRO found that although DOE erred in failing to detail such training in the IEP, this procedural violation did not violate the student's right to a FAPE. Accordingly, the SRO vacated the IHO's order for athome parental training. As discussed below, in doing so, the SRO did not address the parental training claim in light of plaintiffs' general argument that ...

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