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C.U. & N.U. v. N.Y. City Dep't of Educ.

United States District Court, S.D. New York

May 27, 2014

C.U. and N.U., individually and on behalf of G.U., Plaintiffs,

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[Copyrighted Material Omitted]

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For Plaintiffs: Nancy Hampton, New York, NY.

For Defendant: Lesley Berson Mbaye, Assistant Corporation Counsel for the City of New York, New York, NY.

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DENISE COTE, United States District Judge.

Plaintiffs C.U. and N.U. (the " Parents" ), on behalf of their minor child G.U. (the " Student" ), bring this action pursuant to

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the Individuals with Disabilities Education Act, 20 U.S.C. § § 1400 et seq. (the " IDEA" ).[1] The plaintiffs seek review of the June 7, 2013 administrative decision of State Review Officer Stephanie Deyoe (" SRO" ) reversing the July 2, 2012 decision of Impartial Hearing Officer Robert Briglio (" IHO" ) awarding reimbursement for the cost of the Student's 2011-2012 educational program in a private school.

The plaintiffs move for summary judgment, seeking an order reversing the SRO Decision and reinstating the IHO's award of reimbursement. Defendant, the New York City Department of Education (" DOE" ), cross-moves for summary judgment, seeking an order upholding the SRO Decision and dismissing the plaintiffs' complaint.

For the reasons set forth below, the plaintiffs' motion for summary judgment is granted. The plaintiffs have shown that the DOE violated two of their procedural rights: the DOE failed to give the plaintiffs a copy of the Individualized Education Plan (" IEP" ) before the commencement of the 2011-2012 school year, and the DOE failed to provide an opportunity for the plaintiffs to inquire whether the assigned school had certain features which were material to the IEP and the child's educational rights under the IDEA.


Congress enacted the IDEA " to ensure that all children with disabilities have available to them a free appropriate public education [(" FAPE" )] that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § § 1400(d)(1)(A) & (B); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (discussing the purposes of the IDEA); Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (same). Additionally, the IDEA expresses a " strong preference for educating disabled students alongside their non-disabled peers; that is, in their least restrictive environment ('LRE')." C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 831 (2d Cir. 2014) (citation omitted). States receiving federal funding under the IDEA are required to make a FAPE available to all children with disabilities residing in the state. 20 U.S.C. § 1412(a)(1)(A).

To this end, the IDEA requires that public schools create for each student covered by the Act an IEP for the student's education at least annually. 20 U.S.C. § 1414(d)(2)(A). The IDEA envisions " the IEP as the centerpiece" of how a state delivers a FAPE. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). " [T]he IEP 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." Id. " In developing a particular child's IEP, a [school] is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012)

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(citation omitted). " That IEP must be developed in accordance with the procedures laid out in the IDEA, and must be 'reasonably calculated to enable the child to receive educational benefits.'" T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., No. 12-4301, 752 F.3d 145, 2014 WL 1303156, at *1 (2d Cir. Apr. 2, 2014) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).

In New York City, the DOE is charged with providing a FAPE to all students with disabilities between the ages of three and twenty-one who reside in the City, and with developing the IEP for these students by convening local Committees on Special Education (" CSE" ). N.Y. Educ. L. § 4402. CSEs " are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014) (citing N.Y. Educ. L. § 4402(1)(b)(1)(a) & N.Y. Comp. Codes R. & Regs. (" NYCRR" ) tit. 8, § 200.3(a)).

The IDEA requires that parents be provided an opportunity to present a complaint with respect to the identification, evaluation, or placement of their child through the IEP process. 20 U.S.C. § 1415(b)(6)(A). Where the parents believe that the school district has not adequately responded to their complaints, the IDEA requires that they be given an opportunity to pursue their grievances through an " impartial due process hearing." Id. § 1415(f)(1)(A). In New York, these hearings are conducted by an IHO, and parties aggrieved by the IHO's decision may appeal to an SRO. See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1) (permitting " any party aggrieved by the findings and decision rendered [by the hearing officer] [to] appeal such findings and decision to the State educational agency" ).

The IDEA further provides that the final administrative decision may be reviewed " in a district court of the United States" by " bring[ing] a civil action with respect to the complaint." 20 U.S.C. § 1415(i)(2)(A). The district court is empowered to " receive the records of the administrative proceedings," to " hear additional evidence," and to " grant such relief as the court determines is appropriate" based on " the preponderance of the evidence" before it. Id. § 1415(i)(2)(C); see also Forest Grove, 557 U.S. at 239 (noting that the IDEA " gives courts broad authority to grant 'appropriate' relief" ).

When a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's parents or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Sch. Comm. of Burlington, Mass. v. Dep't of Educ., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (" Burlington" ); Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (" Carter" ). Under the Burlington-Carter test for tuition reimbursement, " the parents will be entitled to reimbursement if (1) the school district's proposed placement violated the IDEA, (2) the parents' alternative private placement was appropriate, and (3) equitable considerations favor reimbursement." T.M., 2014 WL 1303156, at *2 (citation omitted); see also Forest Grove, 557 U.S. at 246-47 (" Parents are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under

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the Act . . . [a]nd even then courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant . . . ." (citation omitted)). Finally, " [u]nder New York law, at the due process hearing, the Department bears the burden of establishing the validity of the IEP, while the parents bear the burden of establishing the appropriateness of the private placement." C.F., 746 F.3d at 76 (citing N.Y. Educ. Law § 4404(1)(c)).


The following facts are taken from the parties' submissions and the underlying administrative record, and are undisputed unless otherwise indicated. Plaintiffs C.U. and N.U. are the Mother and Father, respectively, of the Student. At the onset of the 2011-2012 school year, which is at issue in this case, the Student was fifteen years old. The Student is classified as a student with autism and is a " child with a disability" under the IDEA. See 20 U.S.C. § 1401(3)(A)(i).

I. The Student's Background and Seizure Disorder

In addition to autism, the Student suffers from another disability: severe retractable seizure disorder. This disorder began at the age of seven and manifests in multiple seizures a week, and sometimes multiple seizures in the same day. Smaller seizures do not generally require medication to be administered, but larger or successive seizures do.

The Student's seizure disorder has proven a challenge to get under control, and she has been examined by approximately thirty different doctors and been prescribed approximately thirty different medications. Medication does not, however, prevent the onset of the seizures, which are difficult to predict. Most significantly for present purposes, the seizure disorder is the primary cause of the Student's behavioral issues, namely aggression towards others and self-injurious behavior. Some schools have not been willing to accept the Student, stating that they do not have the facilities, staff, or services to manage her seizures.

Prior to the 2010-2011 school year at issue here, the DOE had never made a public school placement for the Student. For nursery school through fifth grade, the Student attended three private school programs (funded by the DOE), all of which either explicitly or effectively used a Developmental, Individual-Difference, Relationship-Based model (" DIR" ), a special education teaching methodology based on following the lead of the child to help the child develop communication skills and to create social relationships. The Student progressed, both socially and academically, in these programs.

For sixth grade, the 2007-2008 school year, the Student was placed in the private school, Imagine Academy (" Imagine" ), also funded by the DOE. Imagine used DIR, but it also used the Applied Behavior Analysis (" ABA" ) model, which differs from DIR in that it is more structured and focuses less on development and more on correcting problematic behaviors. According to the Mother, the Student's experience at Imagine was " [a]wful." The Student did well with DIR teaching but her seizures increased dramatically with the ABA teaching, to the point where the Student was having three or four seizures each day. Moreover, Imagine's staff was not capable of anticipating or responding to the seizures. In March of 2009, Imagine advised the Parents that they were using aversive restraints on the Student. The Parents withdrew the Student from the school immediately. During her time at Imagine, the Student had regressed significantly and become almost nonverbal.

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Between March and December 2009, the Student received home instruction while the DOE attempted to find a placement. The DOE made certain program recommendations, but the identified schools did not accept the Student, either because no seat was available or out of concern regarding the Student's seizure disorder. In December 2009, the Parents placed the Student at the Rebecca School (" Rebecca" ), which uses the DIR method. The DOE funded the Rebecca placement for the remainder of the 2009-2010 school year, as well as for the 2010-2011 school year. During that approximate 18 months at Rebecca, the Student made progress, both emotionally and academically.

At Rebecca, the staff has been trained to manage the Student's seizures in a number of ways. First, the staff tries to anticipate possible triggers for her behavior, and minimize those triggers as they arise (e.g., by moving her to a quiet space) to prevent a seizure from occurring. Second, if a seizure does occur, the other students are removed from the space, chairs and tables are moved out of the way, and an adult stays with the Student until the seizure passes and she feels safe. The staff is also trained to differentiate small seizures from large ones; the latter call for medical intervention from a nurse and may require contacting the Parents.

II. The CSE Meeting and the Student's IEP

On March 2, 2011, the CSE met to develop the Student's IEP for the 2011-2012 school year. The CSE consisted of: (1) the Student's Parents, (2) Feng Ye (" Ye" ), a certified special education teacher serving also as district representative; (3) Rose Fochetta (" Fochetta" ), a district psychologist; (4) a parent representative; (5) a social worker from Rebecca; and (6) the Student's current teacher at Rebecca. The CSE considered three sources: an April 2009 DOE evaluation of the Student, a December 2010 interim report from Rebecca, and a November 2010 classroom observation conducted by Ye. The April 2009 evaluation states that the Student had been referred for an evaluation by her Parents upon her school's request to obtain a " one to one paraprofessional for her in school."

A draft IEP had been prepared for the meeting, based largely on the academic and social functioning levels and goals set forth in the 2010 Rebecca report. The draft was read aloud and modified to reflect concerns expressed by the Parents and current teacher. The CSE considered and rejected a staff ratio of 12:1, i.e., 12 children, 1 teacher, and 1 assistant. It also considered and rejected an 8:1 ratio. It also considered and rejected a 6:1:1 ratio without a one-on-one crisis management paraprofessional (" 1:1 crisis para" ) as insufficiently supportive.[2]

According to the minutes, the Mother also voiced concerns about the Student's seizure activity. No specific educational programs were discussed, as the placement was to be determined after the IEP had been finalized. After the meeting, the modified draft IEP was typed up into final form.

The relevant portions of the final IEP can be summarized as follows. The IEP classifies the Student as autistic and notes her seizure disorder. It recommends a

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12-month placement in a special education classroom with a 6:1 ratio, and a 1:1 crisis para. The IEP also recommends various related services, such as occupational training, speech therapy, and counseling.

In the category of " Social/Emotional Performance," the IEP describes the Student's current performance as follows: when regulated in a favorable environment, the Student is able to interact with others and express emotions. The Student can become dysregulated easily and, in extreme times of dysregulation, may become aggressive or self-injurious. The Student's behavior " seriously interferes with instruction and requires additional support." In identifying the Student's needs on these issues, the IEP recommends, inter alia, access to a quiet environment; refocus by a calm, soothing adult; a 1:1 crisis para; and counseling services. It further notes that a behavior intervention plan (" BIP" ) has been developed.

The BIP lists the Student's problematic behaviors as " significant anxiety that impedes her ability to function." It states that this anxiety manifests in her heavy breathing, facial tics, biting her wrists, banging her arms, and swatting at others. It notes that her seizure activity may result in behavioral concerns. The BIP describes the Student's goals as follows: " [The student] will demonstrate a reduction in anxiety, which will lead to a reduction in aggressive and self injurious behaviors." Another goal reads: " [The student] will become more aware of her negative behaviors in order to reduce them." The BIP's recommended strategies and supports include the 1:1 crisis para, limiting changes to the Student's visual environment, and taking breaks.

Finally, in the category of " Health and Physical Development," the IEP describes the Student's present health status as follows. It notes her seizure disorder and that she may need medication at school if she experiences multiple seizures in the same day. It further notes her sensitivities to loud noises, light, and touching. It lists medication under Student's medical needs. In listing the Student's health and physical development needs, the IEP states that the Student " will need rest time after a seizure," that occupational therapy continues to be warranted, and that a nurse should be on site to administer medication when needed for seizures.

On March 4, two days after the CSE meeting, the Parents signed a 12-month consent form, consenting for the Student to receive education services in July and August for the 2011-2012 school year. Accordingly, the 2011-2012 school year for the Student was set to begin on July 5, 2011.

A document dated March 2, 2011, the same date as the CSE meeting, and titled " Notice of Recommended Deferred Placement," states that, because the IEP was for the next school year, the DOE recommends deferring the Student's placement until June 15, 2011. It states that the Parents will receive a Final Notice of Recommendation (" FNR" ) notifying the Parents of the specific school placement on or before June 15, 2011. It further states that if the Parents wish to visit a sample of the type of program recommended, they could contact Nancy Funke (" Funke" ), and provides Funke's telephone number and address.

III. The Student's Recommended Placement

In a letter dated June 14, 2011, the Parents wrote to Funke to advise that, as of that date, they had not received a copy of the IEP or the FNR with the recommended

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school placement. This letter did not yield a response.

The Parents left for a vacation from on or about June 18 through June 27. On or about June 18, the FNR -- which was dated June 14, 2011 -- arrived at the Parents' home.

The FNR sets forth the IEP's general educational recommendation (e.g., 6:1 staffing ratio and a 1:1 crisis para) and identifies a placement at " M79@P79" located on 55 East 120th Street in Manhattan, New York. M79@P79 is the Horan School (" Horan" ). The FNR states that a copy of the IEP is attached. The FNR further states that, if the Parents wish to discuss this final recommendation further, they could contact Funke or Gerard Donegan (" Donegan" ), the chairperson of the Student's CSE, to arrange a meeting. The FNR notes that the law provides the Parents with certain rights, including procedural safeguards, in connection with this recommendation, referring them to a document, titled " A Parent's Guide to Special Education for Children, 5-21." The FNR concludes by stating that, if the Parents do not contact Funke or Donegan by June 28, the recommended changes will be put into effect.

Prior the Parents' departure, they had prepared a " 10-day notice letter" stating that the DOE had not developed an appropriate IEP and that the Parents were placing her in Rebecca and would be seeking reimbursement. That letter, dated June 22, was mailed by Parents' counsel to Donegan on the same day.

On June 27, upon their return from vacation, the Parents received the FNR, which did not have an IEP attached to it, and attempted to contact Horan. The Mother called the school's telephone number and received a message stating that the voicemail was full and asking the caller to call back. The Mother called back the same day, received the same message, and called twice a day every day thereafter until July 4. Her calls were not returned.

Additionally, in a letter dated June 29 and faxed the same day, the Parents wrote to Donegan (with Funke copied) stating they had repeatedly attempted to contact Horan since June 27 and that the voicemail system was not accepting messages indicating that the voicemail box was full. The Parents further stated that they would continue to attempt to reach the Horan vice principal. In a separate letter dated and faxed the same day, the Parents wrote to Donegan (with Funke copied) stating that they had still not received the Student's final IEP for the 2011-2012 school year. These letters too did not yield a response.

On July 5, the first day of the 12-month school year for 2011-2012, the Parents placed the Student in Rebecca and paid the first deposit of $10,000. Another payment for $20,000 was made on July 22. The ...

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