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

United States District Court, E.D. New York

March 31, 2014


Decided March 28, 2014.

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For B.K., Y.K., individually and on behalf of G.K., Plaintiffs: Randi Michelle Rothberg, LEAD ATTORNEY, Thivierge & Rothberg, P.C., New York, NY.

For New York City Department of Education, Defendant: Charles Edward Carey Jr., LEAD ATTORNEY, New York City Law Department, New York, NY; Emily Sweet, Corporation Counsel for the City of New York Law Department, New York, NY.


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NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs B.K. and Y.K. (the " Parents" ) bring this action against the New York City Department of Education (" Defendant" or " Department" ) on behalf of their son, G.K. (collectively with Parents, " Plaintiffs" ), who is diagnosed as having an Autism Spectrum Disorder and presents with significant delays in cognitive, adaptive, and interpersonal skills. Plaintiffs contend the Department failed to offer G.K. a

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free and appropriate public education for the 2011-2012 school year as required under the Individuals with Disabilities Education Improvement Act (the " IDEIA" ), 20 U.S.C. § 1400 et seq.[1] Plaintiffs move for summary judgment seeking reversal of an administrative decision denying their claim for tuition reimbursement for G.K.'s private special education program during the 2011-2012 school year and direct funding for 10 hours per week of home-based therapy, among other relief. (Pl.'s Mot. for Summ. J. (Dkt. 15).) The Department cross-moves for summary judgment, contending that the administrative decision should not be reversed. (Def.'s Cross-Mot. for Summ. J. (Dkt. 19).) For the reasons set forth below, Plaintiffs' motion for summary judgment is DENIED in its entirety and the Department's cross-motion is GRANTED.


Before addressing the merits of the parties' competing motions for summary judgment, a brief introduction to the IDEIA's statutory landscape and plentiful array of acronyms is beneficial.[2] To receive federal funds under the IDEIA, a state must, among other things, provide all children with disabilities access to a free and appropriate public education (" FAPE" ). 20 U.S.C. § 1412(a)(1)(A); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). In providing a FAPE, the school district is required to provide " special education and related services tailored to meet the unique needs of a particular child" that are " reasonably calculated to enable the child to receive educational benefits." Walczak v. Fl. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). To achieve that end, the IDEIA directs school districts to prepare an Individualized Education Program (" IEP" ) for each eligible child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the " centerpiece" of the IDEA system). An IEP is " a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (internal citation and quotation marks omitted).

In New York, the responsibility for developing IEPs has been assigned to local Committees on Special Education (" CSEs" ), the members of which are appointed by the local school board or the trustees of school district. N.Y. Educ. Law § 4402(1)(b)(1); Walczak, 142 F.3d at 123. To ensure that a student's " level of achievement and specific needs" is appropriately taken into account when determining his or her educational program, R.E., 694 F.3d at 175, a CSE team will include the student's parents, his or her regular or special education teachers, a school psychologist, a representative of the school district knowledgeable about the general curriculum and availability of resources in the school district, and a parent representative, among others, see N.Y. Educ. Law. § 4402(1)(b)(1)(a);

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N.Y. Comp. Codes R. & Regs. tit. 8, § 200.3 (2014).

If a student's parents believe that the IEP prepared by the CSE is inappropriate for their child, or otherwise fails to conform to the procedural and substantive requirements of the IDEIA, they may place their child in an appropriate private school and seek retroactive tuition reimbursement from the state. See Sch. Cmte. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Under New York's administrative review system, parents challenge an IEP and seek tuition reimbursement by filing a " due process complaint" before an impartial hearing officer (" IHO" ). N.Y. Educ. Law § 4404(1). The IHO will conduct an impartial hearing and issue a decision on the merits of the challenge, which may be appealed by either the parents or the school district to a state review officer (" SRO" ). Id. § 4404(2); see also 20 U.S.C. § 1415(g) (requiring availability of appeal in certain contexts). Finally, as required by the IDEIA, either party may bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002). In effect, therefore, the instant suit functions as an appeal from the administrative decisions below.


A. G.K.'s General Background

G.K, who currently is eight years old, has been diagnosed as having an Autism Spectrum Disorder and presents with significant delays in cognitive skills, adaptive skills, and interpersonal skills. (Pls. 56.1 ¶ 2.) According to an evaluation performed on behalf of the Department in 2009, G.K. displays similar deficits in his motor, communication, daily living, and socialization skills. (Id. ¶ 5.) When he was approximately eighteen months old, G.K. began receiving home-based therapy using an applied behavior analysis (" ABA" ) approach, as well as other support services, through the state's Early Intervention Program. (SRO Op. at 2.)[4] At age three, on the Department's recommendation, G.K. was enrolled at Otsar, a non-public preschool, but was withdrawn by his parents soon thereafter. (Pls. 56.1 ¶ 4; SRO Op. at 2.)

In September 2009, G.K. was enrolled by his parents at Reach for the Stars Learning Center (" RFTS" ), where he remains a student principally at the Department's expense. (See Def. 56.1 ¶ 1; Pls. 56.1 Resp. ¶ 1; Compl. (Dkt. 1) at ¶ 41 & Ex. C (Interim Order on Pendency).) According to the testimony of RFTS staff, the Center provides G.K. with all-day ABA instruction on a 1:1 student-teacher basis. (Pls. 56.1 ¶ ¶ 43-44.) During the 2011-2012 school year, for example, he reportedly

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was placed in a classroom with four students, four teachers, and a speech pathologist. (Id. ¶ 41.) As will be discussed in greater detail, G.K.'s parents and his instructors at RFTS believe that the structured 1:1 learning environment provided at RFTS is important to G.K.'s continued educational, social, and behavioral development. (See Pls. 56.1 ¶ 44; Mem. of Law in Supp. of Pls.' Mot. for Summ. J. (" Pls. Mot." ) (Dkt. 18) at 2-3, 30-33.)

B. The May 2011 IEP

On May 3, 2011, the Department convened an annual meeting of the CSE to create a new IEP for then-six-year-old G.K in anticipation of the 2011-2012 school year. (Def. 56.1 ¶ 2; Pls. 56.1 ¶ 9.) In attendance were G.K.'s parents, District Representative and Special Education Teacher Melody Fuchs, a Department school psychologist, a Department social worker, a parent member, and three or four representatives from RFTS, including G.K.'s then-current teacher and the Center's Assistant Director. (Def. 56.1 ¶ 2; Pls. 56.1 ¶ 9.) Prior to the CSE meeting, Ms. Fuchs conducted an on-site evaluation of G.K. at RFTS, during which time he was supported 1:1 by a RFTS teacher. (Pls. 56.1 ¶ 7; Tr. at 47, 49.)[5] Concerned by the lack of socialization opportunities available to G.K. in the 1:1 RFTS program, Ms. Fuchs recommended that he be placed in a " comfortable," " therapeutic," and " carefully individualized" classroom where six students are supported by one teacher and one classroom paraprofessional--commonly referred to as a 6:1:1 program. (See Def. 56.1 ¶ 4; Pls. 56.1 ¶ 7; Tr. at 34-35, 40-41, 44-48.) Also before the CSE was an education services report from Dr. Carol Fiorile, a behavioral analyst retained by the Parents, recommending placement in a 1:1 program due to G.K.'s maladaptive behaviors. (Pls. 56.1 ¶ 8.) G.K.'s parents and the RFTS staff present at the CSE meeting likewise expressed a preference that G.K. remain in RFTS's 1:1 program. (Id. ¶ ¶ 14-16.)

Ultimately, the IEP prepared by the CSE recommended a " 12-month school year for G.K. in a special class with a 6:1:1 ratio" in a special school in District 75. (Id. ¶ 3; see also Administrative Record (" Record" ) (Dkt. 14) (filed under seal) at 1048.) All related services, however, were to be provided on an individualized basis, including: 1:1 speech and language therapy (" Speech" ) for five 45-minute sessions per week; 1:1 occupational therapy (" OT" ) for five 30-minute sessions per week; and 1:1 physical therapy (" PT" ) for two 30-minute sessions per week. (Def. 56.1 ¶ 3; Pls. Resp. ¶ 3; Tr. at 34-35.) The IEP further provided that G.K. would receive full-time support on a 1:1 basis from a dedicated health paraprofessional, both in and out of the classroom. (Def. 56.1 ¶ 3.) The IEP set forth seventeen long-term goals for G.K. across a variety of skill categories--as well as sixty-three subsidiary short-term objectives--for G.K.'s 2011-2012 school year. (Id. ¶ 11.) The CSE also considered a special class in a community school for G.K.--though the parties dispute whether that class was a 1:1 program like RFTS--but elected not to place the student in such a program. (Id. ¶ 7; Pls. Resp. ¶ 7; Tr. at 68-70.) The IEP did not provide for parent counseling or training, however. (See SRO Op. at 22-23.)

Recognizing that G.K. " demonstrated behaviors that significantly interfered with

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learning," the CSE also prepared a Behavior Intervention Plan (" BIP" ) to accompany the IEP. (Def. 56.1 ¶ 8; Pls. Resp. ¶ 8; Tr. at 52-54.) The BIP detailed G.K.'s maladaptive behaviors, which included " body tensing, hand flopping, crying, vocal protests, screaming and biting his clothing," and set out specific strategies and supports to be employed by his instructors in the recommended 6:1:1 program in their efforts to redress them. (Record at 1067 (BIP); Def. 56.1 ¶ 8.) As required by the IDEIA, the BIP was generated on the basis of a Functional Behavioral Assessment (" FBA" ) that was also prepared at the CSE meeting, which was in turn based on classroom observations of G.K., verbal reports from CSE attendees, therapists' progress reports, and the report by Dr. Fiorile. (Record at 1068 (FBA); Def. 56.1 ¶ 9.) The FBA and BIP were prepared by the CSE without reference to the BIP developed by G.K.'s instructors at RFTS, which was not provided to the CSE due to ethical concerns. (Id.; Tr. at 328-30.)

C. Recommended Placement

In a notice dated June 8, 2011, the Department offered G.K. placement at P4 @ P852 (" P4" ) for the 2011-2012 school year. (Pls. 56.1 ¶ 30.) Located in Brooklyn, New York, P4 is a public school with a total enrollment of 30 students. (Def. 56.1 ¶ 15; Pls. 56.1 ¶ 30.) Before the IHO, the lead teacher at P4, Ms. Debbie Henry, testified that P4 has two speech and language therapists on staff, as well as an occupational therapist, a physical therapist, and a vision therapist. (Def. 56.1 ¶ 16; Tr. at 134-35, 140-41.) She further testified that for the 2011-2012 school year, P4 had three 6:1:1 classes with students in kindergarten through second grade. (Id. at 134-35.) However, the placement notice received by the Parents did not indicate to which class their son would be assigned. (Id. at 169-70.) Indeed, while Ms. Henry testified that a 6:1:1 class run by Ms. Meredith Williams would have been the likeliest class placement for G.K., the student was never formally assigned to Ms. Williams' class and there is no indication that the Parents were aware of that slot at the time of their placement decision. (Def. 56.1 ¶ ¶ 22-26; Pls. 56.1 ¶ ¶ 33-34; Tr. at 141-42, 169-70.)

On June 23, 2011, the student's father, Y.K., and a teacher from RFTS, Ms. Barnett, visited P4 to determine whether the proposed placement would be appropriate for G.K. (Pls. 56.1 ¶ 31.) Later the same day, Y.K sent a letter to the Department formally rejecting the proposed placement. (Id. ¶ 32; Tr. at 527-30.) The rejection letter outlined several reasons why the Parents believed P4 to be inappropriate for their child, including: " (a) P4 did not offer sufficient 1:1 instruction from ABA-trained professionals; (b) G.K. would not be grouped based on his individual needs; (c) P4 lacked a sensory gym and could not meet G.K.'s OT needs; and (d) G.K. would be required to eat lunch with approximately 35 students, which would be overwhelming for him." (Pls. 56.1 ¶ 32; see also Def. 56.1 ¶ 27.) The letter further indicated that unless the Department proposed an appropriate placement, the Parents planned to enroll G.K. at RFTS for the 2011-2012 school year and provide him with additional home-based ABA services, and that they would look to the Department for reimbursement and direct funding under the IDEIA. (Def. 56.1 ¶ 27; Tr. at 527-30.)

D. Due Process Complaint

On October 18, 2011, the Parents filed a due process complaint alleging that the May 2011 IEP denied G.K. a FAPE and requested as relief, among other things, reimbursement for tuition paid to RFTS for the 2011-2012 school year and direct

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funding for 10 hours per week of private after-school ABA instruction. (Def. 56.1 ¶ 28; Pls. 56.1 ¶ 60; SRO Op. at 3.) In support of their contention that the Department had denied G.K. a FAPE, the Parents' due process complaint set out over thirty-five alleged deficiencies in the IEP, fourteen of which were discussed by the SRO. (See SRO Op. at 3; see also Record at 820-23.) The student's parents likewise challenged the proposed placement, asserting that P4: did not offer sufficient 1:1 instruction; did not offer sufficient staff training and supervision; did not have a sensory gym and did not prepare sensory diets for students; that it lacked individualized and sufficient behavioral supports; that G.K. would have been grouped based solely upon his age rather than his capabilities; and that G.K. could not learn or eat lunch in a group setting, among other objections. (See SRO Op. at 3.)

Citing the IDEIA's pendency or " stay put" provision, the Parents also argued that G.K. should remain enrolled at RFTS at the Department's expense during the pendency of their challenge to the 2011 IEP. (Id.) That request was granted on November 9, 2011, by the IHO's Interim Order on Pendency. (See Compl., Ex. C.) To the best of the court's knowledge, G.K. has remained a student at RFTS during the intervening two and a half years.[6]

E. Due Process Hearing and IHO Decision

An impartial hearing was held before an IHO over five non-consecutive days between November 9, 2011, and February 7, 2012. (Def. 56.1 ¶ 29; Pls. 56.1 ¶ 61; SRO Op. at 4.) Melody Fuchs, a special education teacher and district representative who attended the CSE meeting (IHO Op. at 4-7; Tr. at 32-122), and Debbie Henry, the lead teacher at P4 (IHO Op. at 7-91; Tr. at 133-222), testified on behalf of the Department. For the Plaintiffs, the IHO heard testimony from Y.K., the student's father (IHO Op. at 9-11; Tr. at 517-57), Helene Wasserman, the Educational Director at RFTS (IHO Op. at 11-19; Tr. at 235-393), Carol Fiorile, a board certified behavior analyst who examined G.K. in 2009 and again in 2011 (IHO Op. at 19-22; Tr. at 393-428), Hope Rice, a speech and language pathologist at RFTS (IHO Op. at 22-23; Tr. at 428-50), Efrat Nakash, an occupational therapist at RFTS (IHO Op. at 23-25; Tr. at 462-94), and Nicole Barnett, the lead teacher at RFTS (IHO Op. at 25-27; Tr. at 494-517). The court has reviewed transcript of proceedings before the IHO and will, where pertinent, discuss the content of each witness's testimony in subsequent sections.

By order dated March 2, 2012, the IHO determined that the Department had offered G.K. a FAPE for the 2011-2012 school year, and denied the Plaintiffs' requested relief. (IHO Op. at 30-32.) After summarizing the testimony of each witness presented at the hearing (id. at 3-27), the IHO concluded that the 6:1:1 program recommended by the May 2011 IEP was appropriate for a first-grade student who demonstrates the capacity to begin academic instruction and can make his needs known, and that G.K.'s specific behavioral issues were " not a basis for continuing a program that is isolating and controlled." (Id. at 31.) The IHO's opinion also found, albeit unnecessarily, that the " extraordinarily restrictive setting" and " lack of an academic base" at RFTS was no longer appropriate for G.K. during the 2011-2012

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school year, noting that he is " at an age where any program he receives must include the teaching of academics and socialization." (Id. at 31, 34-35.) The IHO's decision did ...

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