United States District Court, S.D. New York
For M.T., on behalf of N.M., Plaintiff: Phyllis Ruth Brochstein, New York Legal Assistance Group, New York, NY.
For New York City Department Of Education, Defendant: Omar Hani Tuffaha, LEAD ATTORNEY, New York City Law Department, New York, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
The plaintiff, M.T., brings this action on behalf of her son, N.M., pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., against the New York City Department of Education (the " DOE" ). The plaintiff challenges the decision of the State Review Officer (" SRO" ), denying her claim for payment of N.M.'s tuition for the Rebecca School, a private school for children with neurodevelopmental delays, at which N.M. was unilaterally placed for the 2010-2011 school year. The SRO's decision reversed the decision of an Impartial Hearing Officer (" IHO" ). The parties have cross-moved for summary judgment on the plaintiff's IDEA claim. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § § 1415(i)(2)(A) and (3)(A).
For the reasons explained below, the plaintiff's and defendant's motions for summary judgment on the IDEA claim are both denied, and the case is remanded to the state administrative officers for further proceedings.
" Under the IDEA, states receiving federal funds are required to provide 'all children with disabilities' a 'free appropriate public education.'" Gagliardo v. Arlington Cent. Sch. Dist. (" Gagliardo II" ), 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). A free appropriate public education (" FAPE" ) must provide " special education and related services tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak, 142 F.3d at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks and citation omitted)). Because the IDEA expresses a " strong preference for children with disabilities to be educated, 'to the maximum extent appropriate,' together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child's needs." Id. (internal citation omitted); see also R.S. ex rel. A.S. v. Lakeland Cent. School Dist., No. 09 Cv. 9874, 2011 WL 1198458, at *1 (S.D.N.Y. March 30, 2011).
" 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. N.Y.C. Dept. of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing 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)). The IDEA requires that an IEP be " reasonably calculated to enable the child to receive educational benefits."
Rowley, 458 U.S. at 207. In New York, the responsibility for developing an appropriate IEP for a child is assigned to a local Committee on Special Education (" CSE" ).
Walczak, 142 F.3d at 123.
" 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."
R.E., 694 F.3d at 175 (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). " The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." Id. (citing Gagliardo II, 489 F.3d at 107-08).
Parents in New York who wish to challenge their child's IEP as insufficient under the IDEA may request an impartial due process hearing before an IHO appointed by the local board of education.
Walczak, 142 F.3d at 123 (citing 20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1)). A party may appeal the decision of the IHO to an SRO, and the SRO's decision may be challenged in either state or federal court. Id. (citing 20 U.S.C. § 1415(g), 1415(i)(2)(A) and N.Y. Educ. Law § 4404(2)); see also R.S., 2011 WL 1198458, at *1. In addition, if a school district fails to provide a FAPE to a child with disabilities, the child's parents may, at their own financial risk, remove the child from the improper placement, enroll the child in an appropriate private school, and retroactively seek reimbursement for the cost of private school from the state. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).
Under the IDEA, a district court must conduct an independent review of the administrative record, along with any additional evidence presented by the parties, and must determine by a preponderance of the evidence whether the IDEA's provisions have been met. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380-81, 74 F.App'x 137 (2d Cir. 2003);
see also Gagliardo II, 489 F.3d at 112. This independent review, however, is " by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review."
Rowley, 458 U.S. at 206.
The Second Circuit Court of Appeals has explained that " the standard for reviewing administrative determinations 'requires a more critical appraisal of the agency determination than clear-error review ... but ... nevertheless[ ] falls well short of complete de novo review .... [I]n the course of th[is] oversight, the persuasiveness of a particular administrative finding, or the lack thereof, is likely to tell the tale.'" M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993)). " [T]he district court's analysis will hinge on the kinds of considerations that normally determine whether any particular judgment is persuasive, for example whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court.
But the district court's determination of the persuasiveness of an administrative finding must also be colored by an [acute] awareness of institutional competence and role." Id.
The Court of Appeals has also explained that " federal courts reviewing administrative decisions must give 'due weight' to these proceedings, mindful that the judiciary generally 'lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'"
Gagliardo II, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005). Deference to the decision in the administrative record is particularly appropriate when the administrative officers' review has been thorough and careful, and when the court's decision is based solely on the administrative record.
See Walczak, 142 F.3d at 129; Frank G. v. Bd. of Educ., 459 F.3d 356, 367 (2d Cir. 2006); see also D.C. ex rel. E.B. v. New York City Dep't of Educ., 950 F.Supp.2d 494, 497-98 (S.D.N.Y. 2013). When, as in this case, " an IHO and SRO reach conflicting conclusions, we defer to the final decision of the state authorities, that is, the SRO's decision."
M.W., 725 F.3d at 139 (internal citation and quotation marks omitted). However, the amount of deference to an SRO's determination " depends on the quality of that opinion." Id. (internal citation and quotation marks omitted). See also D.A.B. v. New York City Dep't of Educ., 973 F.Supp.2d 344, 350 (S.D.N.Y. 2013).
The following facts and procedural background are taken from the administrative record and the submissions of the parties. The facts are undisputed unless otherwise noted.
A. IEP AND PLACEMENT
M.T. is the mother of N.M., a child classified with autism, specifically Asperger's Syndrome, and also diagnosed with Attention Deficit Hyperactivity Disorder. (Ex. 4 (" IEP" ) at 1, 5.) N.M. was born in May 2000, and was approximately ten years old at the time of the 2010-11 school year at issue in this case. (IEP at 1.)
At age three, N.M. was evaluated by the Committee on Preschool Special Education and began to receive special education services. (IHO Op. at 10.) N.M. remained in a program from pre-K to kindergarten. (IHO Op. at 10.) During this program, he was not able to make friends and struggled to remain in the classroom. (IHO Op. at 10.) M.T. removed him from the program and placed him in parochial school, where he repeated kindergarten during the 2006-07 school year. (IHO Op. at 10.) After N.M. was diagnosed with autism, M.T. placed him in a general education class with Special Education Teacher Support Services (SETSS) at P.S. 20. (IHO Op. at 10.) In October 2008, M.T. removed N.M. from P.S. 20 and enrolled him in the Rebecca School for the remainder of the 2008-09 school year. (IHO Transcript (" Tr." ) 61.) He remained there for the 2009-10 school year and the school district paid the tuition for ...