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L.M. v. E. Meadow Sch. Dist.

United States District Court, E.D. New York

March 31, 2014

L.M. AND A.M., INDIVIDUALLY AND AS PARENTS OF THEIR DISABLED MINOR CHILD, A.M., Plaintiffs,
v.
THE EAST MEADOW SCHOOL DISTRICT, Defendant

For Plaintiffs: GEORGE PETER ZELMA, ESQ., THE LAW OFFICES OF GEORGE ZELMA, New York, New York.

For Defendants: CAROLE A. MELNICK, ESQ., STANLEY A. CAMHI, ESQ., JASPAN SCHLESINGER LLP, Garden City, New York.

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MEMORANDUM AND ORDER

LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE.

This case involves the education plan provided by the defendant East Meadow School District (" East Meadow," " School District" or " Defendant" ) to the disabled son, A.M., of the Plaintiffs L.M. and A.M. (" Plaintiffs" or " Parents" ) for the school year 2011-2012. Claiming that the District's plan was not " appropriate" for A.M., Plaintiffs seek reimbursement of the tuition expenses to send A.M. to a private school for that school year.

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Plaintiffs bring this action pursuant to the Individuals with Disabilities Education Improvement Act (" IDEA" ), 20 U.S.C. § 1400, et seq. They seek review and reversal of the decision of the New York State Education Department's State Review Officer (" SRO" ) (affirming the decision of an Impartial Hearing Officer (" IHO" )) that the education plan provided by the East Meadow School District for the 2011-2012 school year was " appropriate" for A.M.'s needs, thus precluding Plaintiff's claim for tuition reimbursement. Before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, the Court denies Plaintiffs' motion and grants summary judgment to the Defendant.

BACKGROUND

I. Factual Background

The facts set forth below are taken from the materials submitted to the Court, namely, the certified copy of the administrative record, including the transcript and exhibits of the impartial hearing, and the parties' Local Rule 56.1 Statements.

Plaintiffs L.M. and A.M. are the parents of A.M., a child who resides in the Defendant East Meadow School District. A.M., who was five years old in the 2010-2011 school year, has been diagnosed with PDD NOS, an Autism Spectrum Disorder, and is classified as a child with a disability within the meaning of the IDEA. He has major developmental delays and deficits in chewing, eating, social attention, speech and language, and motor skills, which interfere with his participation in age-appropriate activities and learning. Defendant's Local Rule 56.1 Statement (" Def. 56.1 Stmt." , ¶ ¶ 1-3; Plaintiffs' Local Rule 56.1 Statement (" P1. 56.1 Stmt." ), ¶ ¶ 1-2, 5, 7.

Once a child is classified as having a disability, the District is required by the IDEA and New York law to provide him or her with a " free appropriate public education" (" FAPE" ) within the " least restrictive environment" (" LRE" ). Def. 56.1 Stmt., ¶ 3-4.

A. The 2010-2011 School Year

On August 10, 2010, as A.M.'s transition to a school-age program for the 2010-2011 school year approached,[1] the District's Committee on Special Education (" CSE" ), including A.M.'s parents, met to develop an Individual Education Plan (" IEP" ) for A.M. for the upcoming school year. The IEP that was generated from that meeting recommended that A.M. attend the Board of Cooperative Education Services, Children's Readiness Center (" BOCES-CRC" ). He was recommended for a class with a 6:1 student/teacher ratio, meaning six students, one special education teacher with expertise in educating students with autism, and two teaching assistants. The IEP also provided for A.M. to receive the following related services: a 1:1 individual aide, feeding therapy, occupational therapy, physical; therapy, speech/language therapy and parent training for A.M.'s parents. Def. 56.1 Stmt., ¶ 8-9; Plaintiffs' Counter-Local Rule 56.1 Statement (" P1. Counter-56.1 Stmt." ), ¶ 8-9. The CSE also recommended that A.M. receive feeding therapy at home. P1. 56.1 Stmt, ¶ 12; Defendant's Counter-Local Rule 56.1 Statement (" Def. Counter-56.1 Stmt." ), ¶ 12. There were also 18 annual goals and 35 corresponding short-term objectives on the IEP to address A.M.'s needs in reading, mathematics, speech/language skills, social/emotional/behavioral skills, motor skills, and basic cognitive/daily

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living skills Defendant's Exhibit[2] 15 (" Def. Ex." ): 2010-2011 IEP, at 7-13. A.M.'s parents accepted the CSE's recommendation that A.M. be placed at BOCES-CRC. P1. 56.1 Stmt, ¶ 12; Def. Counter-56.1 Stmt, ¶ 12. A.M. began attending BOCES-CRC on September 8, 2010. Def. 56.1 Stmt., ¶ 10; P1. Counter-56.1 Stmt., ¶ 10.

1. October 2010 - Feeding Intervention Plan

Once the school year was underway, the Parents grew concerned about A.M.'s feeding problem, and by letter dated October 13, 2010, they requested a CSE meeting to discuss A.M.'s feeding and to request " another feeding evaluation." Def. Ex. 22. A Feeding Intervention Plan was created on October 14, 2010. Def. Ex. 23; Pl. Ex. P. The plan was to provide A.M. two feeding sessions a day for 15 minutes each, with food presented for a fixed 30 second interval. Id. The target was to achieve " food acceptance" of an entire spoon of food in the mouth within 5 seconds of presentation, have the food swallowed, and to eliminate " inappropriate behavior," such as batting the spoon, and " negative vocalization," such as crying. Reinforcers were to be used, and data on A.M.'s progress would be collected on a daily basis. Id.

During the hearing before the IHO, A.M.'s classroom teacher testified that from the beginning of the school year, A.M.'s mother expressed her desire that A.M. eat all of the food that was sent in with him for lunch. On one occasion, the mother came to school and demonstrated how A.M. was fed, and the teacher testified that A.M. was " crying and protesting," and that A.M. was " forced to eat the food." (Transcript, at 302-303). The teacher stated the school was not in a position to forcibly feed him and run the risk of him choking (id.), and that the school " wanted him to make the choice to eat." Id. The teacher noted that A.M. would swallow the food without chewing it. Id., at 304. The goal was to work with him to become more comfortable with his lunch, with less protest, then work on the chewing. Id., at 305. Around this time, A.M.'s mother would often come to school at lunch time and remove him from the building to feed him.[3] She was not permitted to feed him in school. Id., 305-307.

On October 22, 2010, unsatisfied with the revised plan, Plaintiffs sent the District a letter expressing their disagreement with the BOCES-CRC staff as to how A.M.'s feeding problem was being handled, and that they did not feel BOCES was an appropriate placement for A.M. Def. Ex. 27. Plaintiffs also requested that they take the student out of school " everyday" at noon and arrange for an agency to provide home-based services. Def. Ex. 27 at 1-2.

2. October 29, 2010 CSE Meeting

A meeting of the CSE was convened on October 29, 2010 to discuss the Parent's dissatisfaction with the feeding plan and to discuss them not being allowed to feed A.M. in the building, or come into A.M.'s classroom without an appointment. Def. Ex. 29: IEP of Oct. 29, 2010 meeting. The IEP notes that " A.M.'s rate of food

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consumption has declined since making the transition to the school age program at BOCES-CRC," and that the parents were picking him up early to feed him his lunch. The parents were encouraged to " be patient with the feeding plan developed by CRC," and to feed him later in the morning and keep him in school as long as possible before coming to pick him up, to help A.M. make progress on his educational goals. The Parents agreed to do this.[4] Also, the IEP notes the staff opinion that the feeding issues were largely behavioral, and that the District was seeking a feeding therapist to help A.M. at home after the school day. Finally, it notes that while the District believes BOCES-CRC is the appropriate placement, in light of the Parent's dissatisfaction, it would make applications for A.M.'s ...


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