United States District Court, S.D. New York
N.S. and O.S., individually and on behalf of: their daughter S.S., a minor, : Plaintiffs-Appellants,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee.
OPINION AND ORDER
VALERIE E. CAPRONI, District Judge.
This is another case brought under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.,  in which parents of a disabled child seek reimbursement from their school district for private school tuition. The Court's heart goes out to the plaintiffs, who want the very best for their significantly disabled child. The Court does not begrudge the parents' desire to place their child in the school that they believe is best. But the law does not guarantee disabled children - or, for that matter, gifted or normally-talented children - the best education that money can buy. What it guarantees disabled children is a free and appropriate public education ("FAPE"). In this case, the Department of Education ("DOE") proposed just that; the parents unilaterally elected to keep their child in the private school that she has attended for several years. That was their prerogative, but they have not demonstrated that the public should reimburse their tuition.
N.S. and O.S., on behalf of their minor daughter S.S., challenge the Individualized Education Program ("IEP") that the New York City Department of Education created for S.S. and challenge the school to which S.S. was assigned. They unilaterally elected not to send S.S. to the public school to which she was assigned and sent her instead to Imagine Academy, the private school that she had attended for several years previously. After a two-round State review process in which the parents prevailed at their first hearing and lost at their second, the parents appealed to this Court, seeking reinstatement of the first administrative decision or a de novo review. The parties cross-moved for summary judgment. The parents' motion for summary judgment is DENIED and the DOE's motion for summary judgment is GRANTED.
I. S.S.'s background
Plaintiffs seek tuition reimbursement for the 2011-12 school year. At that time, S.S. was 14 years old. She has "multiple disabilities" that qualify her for special education services under the IDEA. Ex. C at 1. As of that school year, S.S. was essentially nonverbal; she was not toilet trained and could not safely eat without supervision. Tr. 66. Although she could walk, she had a tendency to swallow solid non-food objects; she therefore required constant supervision at all times. Tr. 67, 71-72. A DOE examination of S.S. indicated that she had an IQ score below 50 (placing her in the bottom 0.1 percentile) and had an estimated age equivalence of less than two years. Ex. 8 at 2.
S.S. began attending Imagine Academy ("Imagine") in Brooklyn when she was 11 years old, having transferred from the McCarton School, another private school. Tr. 139, 150. Although she showed improvements in some basic functions, by May 2011 she still could not read, write, or hold a pencil. Tr. 145. Much of her "academic" learning at Imagine was focused on basic skills such as self-feeding using a spoon, identifying body parts, picking up objects, and toilet training. Tr. 72-73. Imagine had a ratio of five students to one teacher and one aide (5:1:1), plus three other adults identified at times in the record as paraprofessionals. Ex. 6. Imagine uses Developmental Individual Difference Relationship-based ("DIR") and Applied Behavior Analysis ("ABA") therapy. Tr. 104, Ex. 2 at 1.
Imagine reported that S.S. was best able to learn and to perform simple tasks when given attention and rewards. Ex 2 at 2, Tr. 71. S.S. was not deliberately aggressive towards others, though she would hurt herself when she was frustrated (for example, by biting her hand). Tr. 142. Almost all of S.S.'s communication was nonverbal. Tr. 74. She had two words in her vocabulary: she said the word "mo, " for "more, " "pretty consistently, " as a "lower guttural vocalization, " Tr. 75, Ex. 3 at 2, and, she "ha[d] said mama at times, " Tr. 76. Although she was capable of making eye contact, for the most part such contact was fleeting. Ex. 3 at 1, Ex. 6. At times, S.S. would wave hello and goodbye to people. Tr. 77.
II. The Committee on Special Education's IEP
On May 5, 2011, the DOE held a Committee on Special Education ("CSE") meeting to determine S.S.'s IEP for the 2011-12 school year. Ex. 11, Tr. 20. During the meeting, N.S. and Imagine Principal Elisa Chrem argued that S.S.'s placement at Imagine was the best possible placement for S.S. Ex. 11. Chrem focused on the student-teacher ratio at Imagine; the CSE was considering a placement with six students, one teacher and one teacher's aide (6:1:1), whereas Imagine had S.S. in a class with a 5:1:1 ratio. Tr. 29-30. Chrem argued that Imagine's program, which included paraprofessional assistance so that an adult was always with each student, was preferable to what the DOE proposed. Tr. 30.
The CSE also considered a number of reports, including some from Imagine, Ex. 2, Ex. 3; some from S.S.'s Imagine therapists, Ex. 4, Ex. 5; a classroom observation by a DOE social worker, Ex. 6; a social history, Ex. 7; and a psychological evaluation by a DOE-licensed psychologist, Ex. 8. With these reports and the testimony of N.S., Chrem, and Elizabeth Jordan, S.S.'s teacher at Imagine, in mind, the CSE prepared S.S.'s IEP. Tr. 21-22, Ex. C at 2.
The IEP noted that S.S.'s language and pragmatic skills were "severely below age level." Ex. C at 3. It recommended fifteen one-on-one breakout sessions per week, five for occupational therapy, five for physical therapy, and five for speech and language therapy. Id. at 24. It noted that S.S. required "[a]ssistance with daily hygiene needs" and "during mealtimes, pacing food and fluid intake and control of utensils, " as well as supervision while she was entering and exiting "chairs, stairs and the classroom." Id. at 8. To ensure that S.S. received the personal attention she required, the IEP recommended placement in a 6:1:1 environment with a separate full-time paraprofessional dedicated exclusively to assisting her with basic tasks. Id. at 8, 24.
The IEP included a Behavior Intervention Plan ("BIP") that briefly described the behavior of S.S. that interfered with learning and the strategies that DOE recommended to address the behavior. Id. at 26. Although the BIP referred to a Functional Behavioral Analysis ("FBA"), no FBA is on record in this case. The BIP proposed rewarding S.S. "for appropriate participation in activities while maintaining appropriate body position and handling objects, " using "immediate tangible and intermittent reward systems, " and discussed a number of the "supports" that should help to decrease undesirable behavior. Id.
The IEP included several academic and behavioral goals for S.S. that were to be measured at varying intervals. Some annual goals were measurable - for example, "within one year, [S.S.] will improve readiness skills by identifying colors, numbers, [and] shapes with 80% accuracy as measured monthly by her teacher." Ex. C at 10. Other annual goals were more abstract - for example, "[S.S.] will improve her expressive language skills." Id. at 11. For these abstract goals, the IEP included short-term objectives to verify that S.S. was progressing. For example, to measure her expressive language skills progress, one of five short-term objectives was that "[S.S.] will consistently exchange a picture in her PECS (picture exchange communication system) book for a desirable item with minimal prompting with 80% accuracy over 10 sessions." Id. The IEP listed fourteen annual objectives, with an average of just over three short-term measurable objectives that were to be reported in three periodic progress reports. Id. at 10-20. Several of these goals were formulated with input from Imagine and from S.S.'s speech, physical, and occupational therapists. Tr. 33-41.
III. The placement at Horan
S.S.'s IEP did not designate a school, but the final notice of recommendation ("FNR"), which the DOE transmitted to N.S. and S.S. on June 15, 2011, identified the Horan School ("Horan") as S.S.'s placement. Ex. 12, Ex. D. At Horan, S.S. would have been placed in a 6:1:1 class with a paraprofessional assigned full-time to her; she would also have received extensive one-on-one therapy sessions proposed by the IEP. Id. 
N.S. visited Horan on August 18, 2011, accompanied by Chrem, Imagine's Principal, purportedly to determine whether S.S. would attend Horan or continue at Imagine for another year. Ex. D at 2; Tr. 143; Ex. M at 1. N.S. testified that when he arrived at the school, Chrem was "flustered" and indicated that she had "witnessed an altercation in the hallway and the police had been summoned and carted away a few of the kids." Tr. 143. N.S. testified that he and Chrem believed that the classes that they observed were too high-functioning for S.S. to participate. Tr. 143-44, Ex. D at 2. N.S. also testified that in his view S.S. would not be "safe" at Horan, citing rough-housing and the high boy-girl ratio among the students. Id.
N.S. testified that Horan personnel told him that they used standardized charts that N.S. believed did not apply to students like S.S., who "are not testable on a regular spectrum." Tr. 145. N.S. - who had trouble contacting Horan and therefore arrived unannounced - was able to observe three or four classes. Ex. D at 2, Tr. 163-65; see also Tr. 143-45. The teachers he spoke to mentioned only one class with a 6:1:1 ratio; that class was "all boys." Tr. 165. It is not clear whether N.S. observed a 6:1:1 class or was just told about it. Id. Although N.S. had no exposure to 6:1:1 programs, he felt that they were not suitable for S.S. Tr. 172. N.S. also disliked the absence of a "sensory gym" at Horan. Ex. D at 2. Shortly after visiting Horan, N.S. notified DOE that S.S. would be enrolled at Imagine and that the parents reserved the right to seek tuition reimbursement.
At Imagine, S.S. was in a class with a 5:1:1 ratio but there were always enough adults in the room to provide one-on-one supervision of each child. Tr. 101. Of the adults in the Imagine class, one - Jordan - was a teacher with a master's degree. One was working on a bachelor's degree, but may not have had a degree prior to the 2011-12 school year. Tr. 102. The other three adults ranged from having no college schooling to having some. Tr. 101-03. Individuals assigned to S.S. would rotate; no one was assigned to one student full time. Tr. 103. All of the Imagine instructors engaged in DIR Floor Time and ABA, techniques that they believe encourage development. Tr. 103-04. Imagine recorded data about S.S.'s performance in these activities and sent the data to N.S. and O.S. every day. Tr. 159-61.
IV. The administrative proceedings
Eight months after notifying DOE that they would not accept a placement in a public school, in April 2012 S.S.'s parents filed a due process complaint ("DPC") requesting an impartial hearing on the question of tuition reimbursement. At that time they asserted that S.S.'s IEP did not provide her a FAPE. The DPC, which is intended to put the DOE on notice of the specific deficiencies in the IEP, discussed at least five concerns with Horan, including the altercation in the hallway, the lack of ABA in the curriculum, the advanced curriculum beyond S.S.'s capabilities, the absence of a sensory gym, and the boy-girl ratio. DPC at 1-3. The DPC also identified perceived deficiencies in the IEP, including "vague, immeasurable language such as improve'" in some of the annual goals; the absence of any goals regarding S.S.'s paraprofessional, and the absence of an FBA informing the BIP. Id. at 2. The DPC also contained a catchall provision; pursuant to this provision, N.S. and O.S. purported to:
reserve the right to challenge the appropriateness of any recommended placement, as well as [their] daughter's entire IEP including, but not limited to, the appropriateness of any: services, programs, classes, staffing ratios, performance levels, learning characteristics, needs, student participation, accommodations, transition services, diploma objectives and drafted annual goals.
Id. The DPC was filed by a non-attorney advocate retained by N.S. and O.S., id. at 1, who also represented N.S. and O.S. ...