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

United States District Court, S.D. New York

July 24, 2014

P.S., et al., Plaintiffs,


LORNA G. SCHOFIELD, District Judge.

Plaintiffs P.S. and K.S., individually and on behalf of their child, M.S., bring this action against the New York City Department of Education ("DOE") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiffs seek review of the April 22, 2013, decision of the New York State Review Officer ("SRO Decision") reversing the July 23, 2012, decision of the Impartial Hearing Officer ("IHO Decision"), which found that the DOE had failed to provide a free and appropriate education ("FAPE") to M.S. during the 2011-2012 school year. The parties have cross-moved for summary judgment. Because the SRO's reversal of the IHO's decision is sufficiently supported by the record, Plaintiffs' motion is denied and the DOE's motion is granted.


The IDEA mandates that states receiving federal special education funding provide disabled children with a FAPE. 20 U.S.C. § 1412(a)(1)(A); M.W. ex rel. S.W. v. New York City Dep't of Educ. , 725 F.3d 131, 135 (2d Cir. 2013). "To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (IEP') for each such child." R.E. v. New York City Dep't of Educ. , 694 F.3d 167, 175 (2d Cir. 2012). An IEP is a written statement that "describes the specially designed instruction and services that will enable the child to meet' stated educational objectives and is reasonably calculated to give educational benefits to the child." M.W. , 725 F.3d at 135 (quoting R.E. , 694 F.3d at 175); see 20 U.S.C. § 1414(d).

New York delegates the development of an IEP to a local Committee on Special Education ("CSE"). See N.Y. Educ. Law § 4402(1)(b)(1) (McKinney). At a minimum, the CSE is composed of the student's parent(s), a special education teacher, a regular education teacher if the student participates in a regular education program, a school psychologist, a school district representative, an individual who can interpret the instructional implications of evaluation results, a school physician and a parent of another student with a disability. See Educ. § 4402(1)(b)(1)(a). "The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E. , 694 F.3d at 175.

If a parent believes that the DOE has failed to provide a FAPE to his or her child, the parent may "unilaterally place their child in a private school at their own financial risk and seek tuition reimbursement." M.W. , 725 F.3d at 135 (citing Florence Cnty. Sch. Dist. Four v. Carter , 510 U.S. 7, 9-10, 16 (1993)). To seek reimbursement, the parent must first file a due process complaint with the DOE, which triggers administrative proceedings involving an impartial due process hearing before an Impartial Hearing Officer ("IHO"). See M.W. , 725 F.3d at 135 (citing 20 U.S.C. §§ 1415(b)(6), (f); Educ. § 4404(1)). The IHO hearing is governed by the three-part Burlington/Carter test, as construed by New York Education Law § 4404(1)(c): "(1) the DOE must establish that the student's IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them." M.W. , 725 F.3d at 135 (footnote omitted).

The IHO's decision may be appealed to a State Review Officer ("SRO"). See Educ. § 4404(2); M.H. v. New York City Dep't of Educ. , 685 F.3d 217, 225 (2d Cir. 2012) (citing Grim v. Rhinebeck Cent. Sch. Dist. , 346 F.3d 377, 379-80 (2d Cir. 2003)). The SRO's decision is the final administrative decision. An aggrieved party, however, may seek review of the SRO's decision by commencing an action in federal district court. See 20 U.S.C. § 1415(i)(2)(A); M.W. , 725 F.3d at 135-36.


A. M.S.'s Educational History

M.S. is a 14-year-old boy with autism spectrum disorder. M.S. presents with maladaptive behaviors such as tantrums, verbal perseveration, non-contextual laughing, refusal to follow adult orders and self-injurious behaviors. At the time of the most recent test available in the record, at age eleven years, seven months, the receptive skills of M.S. corresponded to an age equivalency of three years, four months; his expressive language skills corresponded to an age equivalency of below three years; and his reading and writing skills corresponded to an age equivalency of six years, ten months.

For the ten years prior to the 2011-2012 school year at issue here, M.S. attended the McCarton School ("McCarton"). McCarton is a not-for-profit school that educates children and young adults with autism spectrum disorder using a combination of Applied Behavior Analysis ("ABA") and speech, language and occupational therapy, often in a one-on-one teacher-student setting.

B. M.S.'s Individualized Education Program for 2011-2012

On May 16, 2011, the DOE convened a meeting of the CSE to develop M.S.'s IEP for the 2011-2012 school year. The CSE consisted of M.S.'s mother, K.S., a district special education teacher, a district social worker, a district school psychologist, a parent member, M.S.'s headclassroom teacher at McCarton, M.S.'s board-certified behavior analyst from McCarton, M.S.'s occupational therapist from McCarton, and M.S.'s speech and language therapist from McCarton.

The CSE considered various reports generated by McCarton in evaluating M.S.'s behavior and needs, including a Speech and Language Department Progress Report dated December 2010, an Occupational Therapy Progress Report dated January 2011, an Educational Progress Report dated January 2011 and proposed IEP goals for M.S. for the 2010-2011 school year. The CSE also considered an observation report conducted by the district's school psychologist in December 2010. M.S.'s McCarton teachers and his mother also provided input on M.S.'s needs, including his need for one-on-one speech and language therapy and occupational therapy. The CSE discussed M.S.'s behaviors, including tantrumming, "aggressing and some self-injuries [sic] behaviors, " and the tendency to "get[] very upset when things do not go according to plan or the way he expects." The CSE determined that M.S.'s needs could be met by placing him in a class with six students, one special education teacher and a behavior management paraprofessional devoted exclusively to M.S. (a "6:1:1 class").

After the meeting, the CSE completed an IEP for M.S. The IEP, also dated May 16, 2011, addressed different aspects of M.S.'s performance, including academic performance, social and emotional performance and health and physical development. As to M.S.'s academic performance, the IEP noted that M.S. required a "highly structured, predictable learning environment, clear and consistent expectations and routines, consistent positive reinforcement schedule (i.e. token system) [and] tasks broken down into small steps...." In addressing M.S.'s social and emotional performance, the IEP recorded that M.S. could "quickly grow noncompliant, " "coping with the unexpected [was] difficult, " and M.S. engaged in tantrums which "can progress to aggression." The IEP concluded that M.S.'s behavior "seriously interferes with instruction and requires additional support." As to M.S.'s health and physical development, the IEP noted that M.S. was in "overall good health" but "continue[d] to have difficulty with sensory processing skills" as well as organization, self-regulation and gross motor skills. The IEP recommended a "special class environment" for M.S., observing that he "require[d] intensive adult support in a small class setting to meet IEP goals."

The IEP did not include a functional behavior assessment ("FBA").[1] The IEP did, however, include a Behavior Intervention Plan ("BIP").[2] The BIP identified the behaviors that impaired M.S.'s ability to learn effectively, including "non-compliant behavior [such as] laughing and verbal perseveration, throwing/destroying materials, lack of attention to task, non-contextual vocalization and dropping to the floor, [and] tantrumming." It set forth objectives to change those behaviors, as well as strategies and supports to assist in achieving the asserted objectives. The recommended strategies and supports included a behavior management paraprofessional, a small class setting, a special education teacher, "related service providers, " collaboration between the home and school and a rewards system.

In accordance with the recommendations made at the CSE meeting and in the BIP, the IEP proposed that M.S. be placed in a special class in a specialized school, with a 6:1 studentteacher ratio, for a twelve-month school year. In addition, the IEP proposed a 1:1 behavior management paraprofessional, adaptive physical education, occupational therapy (two forty-five minute sessions per week with a 2:1 student-therapist ratio), and speech and language therapy (five sixty-minute sessions per week with a 1:1 student-therapist ratio, one forty-five minute session per week with a 5:1 student-therapist ratio, and one forty-five minute session per week with a 2:1 student-therapist ratio). The IEP did not recommend a particular school where M.S. would be placed.

C. Rejection of the Recommended School Placement

On May 30, 2011, M.S.'s mother enrolled him at McCarton for the 2011-2012 school year. On June 15, 2011, M.S.'s parents notified the DOE that they had not received a copy of M.S.'s IEP or a recommended school placement and that they intended to enroll M.S. at McCarton if they did not receive a recommended placement. On an unspecified date thereafter, M.S.'s parents received notification from the DOE, dated June 14, 2011, offering placement at the Horan School in Manhattan for the 2011-2012 school year, but did not receive M.S.'s IEP. On June 21, 2011, M.S.'s mother visited the Horan School. The Horan School does not use ABA methodology. M.S. was to be placed in the class of Ms. Sencion, a special education teacher with a master's degree in special education, who works primarily with the Treatment and Education of Autistic and Related Communication-Handicapped Children ("TEACCH") method.

On June 27, 2011, M.S.'s parents wrote to the DOE, rejecting the recommended school placement, notifying the DOE that they still had not received the IEP and alerting the DOE that they intended to enroll M.S. at McCarton. The parents received M.S.'s IEP in early July 2011.

D. Administrative Review

i. Due Process Complaint and IHO Hearing

On August 29, 2011, the parents timely filed a due process complaint, alleging that the DOE had failed to provide a FAPE to M.S. on 69 different grounds. The specified grounds included failure to develop timely critical assessment reports; failure to provide for parent counseling and training in the IEP; failure to develop an FBA; failure to address M.S.'s interfering behaviors; failure to develop an IEP tailored to M.S.'s needs; failure to develop goals and objectives with the participation of M.S.'s parents; failure to address adequately M.S.'s need for 1:1 teacher instruction; failure to verify that Horan's preferred methodology-TEACCH- would satisfy M.S.'s needs; failure to recommend "extended-day" services for M.S.; failure to include a general education teacher on the CSE; failure to include the parents in the selection of M.S.'s placement school; and inappropriate placement of M.S. at Horan. The parents sought relief in the form of reimbursement for tuition at McCarton for the 2011-2012 school year, including the 2011 summer session, as well as transportation expenses and home-based services, including ABA therapy, occupational therapy and speech and language therapy.

A hearing before an IHO was held on four non-consecutive days between April 18, 2012, and May 21, 2012. A total of eleven witnesses testified, including individuals who served on the CSE that drafted M.S.'s IEP. The witnesses included Ms. Ariella Garofalo-Berger, a district social worker and former special education teacher who served on the CSE; Janet Sencion, a special education teacher from the Horan School who would have served as M.S.'s teacher had M.S. attended Horan; Stacey Minondo, the director of placement for the school district; Katelyn Salvato, a speech and language pathologist at McCarton who had worked with M.S. since September 2011; Jessica Pangretic, also a speech and language pathologist at McCarton, who worked with M.S. in 2007 at McCarton and again starting in September 2011 outside of the school setting; Peter Gerhardt, Director of McCarton's Upper School; M.S.'s mother; Mildred Ortiz, ...

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