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E.E. v. New York City Department of Education

United States District Court, S.D. New York

August 21, 2014

E.E., individually and on behalf of G.E., Plaintiff,


LORNA G. SCHOFIELD, District Judge.

Plaintiff E.E., individually and on behalf of his child G.E., brings 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. Plaintiff seeks review of the May 23, 2013, decision of the New York State Review Officer ("SRO Decision") reversing the March 19, 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 G.E. 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, Plaintiff's 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.


G.E. is a boy who has been diagnosed with autism spectrum disorder, global development delay, feeding disorder, sensory integration disorder and childhood apraxia of speech. Before the start of the 2011-12 school year, he was six years old. He is nonverbal but communicative through means such as vocal approximations, gestures and signs, and is a fluent reader. He is under-responsive to and seeks constant sensory input. He becomes dysregulated when he encounters limitations or the unfamiliar. He has low muscle tone and exhibits difficulty with oral movements, which leads to overall rigidity with food choices.

Since the summer of 2009, G.E. has attended the Rebecca School ("Rebecca"), a private school that subscribes to the "Developmental Individual Difference Relationship-based model" ("DIR") of educating developmentally challenged children. For the 2011-12 school year, he was enrolled in an "8:1:3" class - i.e., a class with eight students, one teacher and three teaching assistants.

On April 29, 2011, a CSE convened to develop G.E.'s IEP for the 2011-2012 school year. The CSE consisted of E.E., G.E.'s father; Laura Gufarotti, G.E.'s classroom teacher at Rebecca; Mandy Zoffness, G.E.'s social worker at Rebecca; Rose Fochetta, a DOE school psychologist; Feng Ye, a DOE representative and special education teacher; and a parent member. The CSE heard from Plaintiff and Ms. Gufarotti, and reviewed a 2010 classroom observation report filed by Fochetta, a 2010 progress report from Rebecca and a 2009 psychoeducational evaluation. The IEP made findings about and identified needs with respect to G.E.'s physical, academic, social and emotional development, and set a number of short-term objectives and annual goals for him. The IEP recommended that G.E. be enrolled year-round in a "6:1:1" class - i.e., a class with six students, a teacher and a classroom paraprofessional - and additionally be attended by a full-time 1:1 transitional paraprofessional. The IEP also recommended that G.E. receive five 30-minute sessions each of speech, physical and occupational therapy, and two 30-minute sessions of counseling, every week.

On May 11, 2011, G.E.'s parents entered into an agreement with Rebecca to enroll G.E. there for the 2011-12 school year. Plaintiff paid Rebecca a deposit of $2, 000 the next day. The agreement provides that should G.E.'s parents decide before September 7, 2011, to enroll him in a school recommended by the CSE, they "w[ould] be released from continuing responsibility for tuition payments... and Rebecca School w[ould] reimburse [them] for all prior payments, excluding non-refundable deposit."

On June 4, 2011, the CSE issued its final notice of recommendation in which it identified "P396K @ P289K" as the school into which G.E. would be placed pursuant to the IEP. On June 15, 2011, Plaintiff visited the site with Ms. Zoffness. During their visit, they noted a number of issues: (i) the class in which G.E. would enroll was to be held at one site ("P.S. 396K") in the summer months and another site ("P289K") thereafter due to the lack of air conditioning at the latter; (ii) Plaintiff and Ms. Zoffness were able to enter P289K through an unlocked door with no security; (iii) the 500 children served by P289K are dropped off at and entered the school through the same entrance; (iv) 150 children eat lunch in the cafeteria at one time; (v) P289K's special education coordinator did not know what a transitional paraprofessional is; (vi) P289K lacks a sensory gym; and (vii) P289K does not offer a feeding program. Two days later, G.E.'s parents notified the CSE of their intent unilaterally to place G.E. in private school, citing the reasons noted above.

A. IHO Proceedings

On July 7, 2011, the parents filed a due process complaint, alleging that the DOE had failed to provide a FAPE to G.E. on both procedural and substantive grounds. The specified grounds included failure to rely on necessary evaluations to gauge G.E.'s current skills levels properly; failure to recommend parent training and counseling as a related service; and failure to place G.E. in a smaller and more supportive environment that would benefit him educationally. The due process complaint also raised the aforementioned issues that Plaintiff had noted during his visit of P289K. The parents sought relief in the form of reimbursement for tuition at Rebecca for the 2011-2012 school year.

A hearing before an IHO was held on four non-consecutive days between September 22 and December 19, 2011. A total of six witnesses testified, including individuals who served on the CSE that drafted G.E.'s IEP. The DOE presented testimony from Barbara Horowitz, P.S. 396K's intake coordinator; Hansraj Soodoosingh, the teacher during the summer months for the proposed 6:1:1 class in which G.E. would have been enrolled; and Ms. Ye. Plaintiff presented testimony from Tina McCourt, Rebecca's program director; Ms. Gufarotti; and himself.

On March 19, 2012, the IHO issued a 23-page decision in which she found, pursuant to the Burlington/Carter test, that (1) the DOE failed to demonstrate the appropriateness of the 2011 IEP for G.E.; (2) G.E.'s placement at Rebecca was appropriate to meet his educational needs; and (3) equitable considerations support Plaintiff's tuition reimbursement claim. Specifically with respect to the first prong, which requires the DOE to establish that it provided a FAPE, the IHO found that the CSE had (i) failed to consider adequate and appropriate evaluative material, thereby causing a loss of educational opportunity for G.E.; (ii) the CSE failed to consider any class size except 6:1:1, and did not listen to Plaintiff when he said that a 6:1:1 would not provide enough support; (iii) G.E. would not have been appropriately grouped for academics in Mr. Soodoosingh's class at P.S. 396K; (iv) the size and student mix of P289K would have provided too much stimulus for G.E.; (v) the gym at P289K would not have provided the sensory diet that G.E. needed; (vi) the IEP failed to address G.E.'s low tolerance for noise and other stimuli; (vii) the IEP failed to address how a large cafeteria serving up to 150 children at once could implement a feeding program; and (viii) the IEP failed to mention G.E.'s need for sensory input for his jaw and face. Although the IHO found that ...

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