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P.L. v. New York City Depart of Educ.

United States District Court, E.D. New York

September 29, 2014

P.L. and M.L., individually and on behalf of M.L., Plaintiffs,

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For P.L., M.L., and on behalf of M.L., Plaintiffs: Tamara J Roff, LEAD ATTORNEY, New York, NY.

For New York City Department of Education, Defendant: Charles Edward Carey Jr., LEAD ATTORNEY, New York City Law Department, New York, NY; Janice Casey Silverberg, LEAD ATTORNEY, New York City Law Department, Office of the Corporation Counsel, New York, NY.

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PAMELA K. CHEN, United States District Judge.

Plaintiffs P.L. and M.L., individually and on behalf of M.L. (" Plaintiffs" ), bring this action against the Defendant New York City Department of Education (the " DOE" ) pursuant to the Individuals with Disabilities Education Act (the " IDEA" ), 20 U.S.C. § 1400 et seq. Specifically, Plaintiffs seek reimbursement of M.L.'s 2010-11 tuition at the Imagine Academy, a private school for students with autism spectrum disorders in Brooklyn. Having exhausted the state administrative process, which terminated in the DOE's favor, Plaintiffs now seek review of those proceedings in this Court. The parties have cross-moved for summary judgment based solely on the state administrative record.

Because the DOE has not carried its burden of demonstrating that the program it proposed for M.L. was reasonably calculated to enable M.L. to make meaningful educational gains, the DOE did not provide M.L. with a free and appropriate public education. Therefore, Plaintiffs' motion is granted and the DOE's motion is denied.


I. The Legal Framework

The facts surrounding the instant litigation are better understood after a review

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of the procedures and remedies available to IDEA-qualified students and their parents.

Under the IDEA, New York state is required to provide disabled children with a free and appropriate public education (" FAPE" ). 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 [disabled] child." R.E. ex rel. J.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 (citing R.E., 694 F.3d at 175) (internal quotation marks omitted); see also 20 U.S.C. § 1414(d). In New York, local Committees on Special Education (" CSE" ) are responsible for determining whether a child is entitled to educational services under the IDEA and, if so, developing an appropriate IEP. N.Y. Educ. Law § 4402(1)(b)(1); M.W., 725 F.3d at 135; R.E., 694 F.3d at 175.

If parents believe that the recommendations in the prepared IEP will not provide their child with a FAPE, those parents may unilaterally place the child in a private school or program at the parents' own expense and later seek tuition reimbursement. M.W., 725 F.3d at 135 (citation omitted); see also 20 U.S.C. § 1400(d)(1)(A). In New York, a parent may initiate the tuition reimbursement process by filing a due process complaint with the DOE. M.W., 725 F.3d at 135. The due process complaint commences administrative proceedings that initially involves a hearing before an Impartial Hearing Officer (" IHO" ). Id. (citing 20 U.S.C. § § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)).

The IHO applies the three-pronged Burlington /Carter test, under which: " (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." Id. (citing R.E., 694 F.3d at 184-85).[1] " An IHO's decision may, in turn, be appealed to a State Review Officer (" SRO" ), who is an officer of the State's Department of Education." M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 (2d Cir. 2012). Any party aggrieved by the SRO's final administrative decision has the right to seek review of the decision by bringing a civil action in federal court. See M.W., 725 F.3d at 135-36; 20 U.S.C. § 1415(i)(2)(A).

II. Relevant Facts

The material facts in this case, drawn primarily from the administrative record, are not in dispute. M.L. has been classified by the DOE's CSE as a student with autism who is entitled to receive appropriate special education and related services under the IDEA. (Pl. 56.1 ¶ 1-2.)[2] A 2007 private psychological investigation found

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that M.L.'s " speech-language, socialization, and communication impairments 'clearly' impeded his ability to function at home and at school." (SRO Dec.[3] at 2.) Beginning in November 2007 and through the 2010-11 school year, M.L.'s parents unilaterally placed M.L. at Imagine Academy, a private school for autistic students that has not been approved by the New York State Commissioner of Education as a school with which districts may contract to instruct students with disabilities.[4] (Def. 56.1 ¶ 7; Pl. 56.1 ¶ 4.) While at Imagine Academy, M.L. received 1:1 classroom instruction. (IHO Dec. 6.)

In May 2010, when M.L. was thirteen years old (Pl. 56.1 ¶ 17), the CSE developed an IEP for M.L. for the 2010-11 school year. (Def. 56.1 ¶ 8.) In drafting the IEP, the CSE relied on various data regarding M.L.'s levels of performance at Imagine Academy, as well as the input of M.L.'s parents, and his teacher, speech-language pathologist, occupational therapist, and principal from the 2009-2010 school year. ( Id. ¶ ¶ 10-11.)

M.L.'s speech-language pathologist found that M.L.'s language and conversational skills were improving, but certain disruptive behaviors remained, such as a propensity to spit, scratch, or pinch when frustrated with a task, and recommended that M.L. receive continued speech-language therapy throughout the next 12-month period. (SRO Dec. 3.) M.L.'s occupational therapist similarly noted certain improvements in M.L.'s behaviors, such as being more relaxed and able to enjoy physical challenges, but recommended the provision of twice weekly 45-minute sessions of 1:1 occupational therapy (" OT" ) and twice weekly 45-minute sessions of group OT to work toward improved body awareness, self-regulation, and bilateral hand usage. ( Id. at 4.) M.L.'s classroom teacher reported the same types of behavioral problems as noted by the speech-language pathologist, and reported that M.L. needed consistent supervision and encouragement in the classroom. ( Id.) The teacher recommended that M.L. would benefit from continued provision of 1:1 instruction at Imagine Academy. ( Id.)

The IEP that the CSE developed in May 2010 recommended a 12-month program with placement in a class at a specialized school consisting of a 6:1:1 student-to-teacher-plus- paraprofessional classroom ratio, along with twice weekly 1:1 OT, twice weekly small-group OT, three times weekly 1:1 speech-language therapy, and twice weekly small group speech-language therapy. ( Id. at 5.)

In a letter dated June 25, 2010, the school district (the " District" ) summarized the recommendations of the May 2010 CSE, and notified M.L.'s parents of the public school to which M.L. was assigned for the 2010-11 school year. ( Id. at 5.) On August 18, 2010, M.L.'s mother wrote a letter to the CSE advising that she had yet to receive notice of the assigned school for M.L. ( Id.) In addition, the letter stated that M.L.'s parents were rejecting the May 2010 IEP as deficient in its evaluation and the goals set for M.L. ( Id.) It also notified the District of the parents' intent to re-enroll M.L. at Imagine Academy for the 2010-11 school year, and requested an impartial hearing before the IHO to seek the reimbursement of the costs of M.L.'s tuition. ( Id.)

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Shortly thereafter, M.L.'s parents received a Final Notice of Recommendation offering M.L. a placement in a 6:1:1 classroom at P. 141@35K (" P.S. 141" ), a local public school. (IHO DOE Ex. 3.) M.L.'s mother visited P.S. 141 on September 14, 2010. (SRO Dec. 5.) By letter dated September 28, 2010 to the CSE, M.L.'s parents stated that the proposed school was " too overwhelming," and that M.L. would have difficulty navigating the stairs frequently during the day. ( Id. at 5.) The letter also noted that M.L.'s social and emotional needs differed from those of the students in the recommended program. ( Id.) M.L.'s parents restated their rejection of the May 2010 IEP on the grounds that it did not meet the social, emotional, or behavioral needs of M.L., nor did the assigned school have sufficient support to meet them. ( Id.) Finally, the parents reiterated that they planned to enroll M.L. at Imagine Academy, and seek reimbursement through an impartial hearing. ( Id. at 6.)

M.L. attended Imagine Academy for the entire 2010-11 school year. (Pl. 56.1 ¶ 57.) M.L.'s parents assert that they paid the required $77,500 tuition amount in full. (IHO Dec. 3.)

III. Due Process Complaint Notice

In their due process complaint notice dated February 16, 2011, M.L.'s parents contended that the DOE denied M.L. a FAPE during the 2010-11 school year. (SRO Dec. 6.) M.L.'s parents raised the followings issues with respect to the May 2010 IEP: (1) the IEP's description of M.L.'s present levels of performance were insufficient to provide an adequate baseline from which to determine M.L.'s progress, " as there is minimal to no information regarding [M.L.'s] academic and living skills; " (2) the lack of evaluation of M.L.'s academic and living skills resulted in the development of insufficient goals, particularly with respect to academics, independent living skills and socialization; (3) the District failed to provide for parent training and counseling in the IEP, in violation of State regulations; and (4) despite developing a behavioral intervention plan (" BIP" ) to address M.L.'s aggressive behaviors, the CSE failed to conduct a functional behavioral assessment (" FBA" ) to determine the causes of these behaviors. (IHO Parents' Ex. 1 at 1-2.)

With respect to the insufficiency of the proposed placement (P.S. 141), M.L.'s Parents contended that the " school is too large and overwhelming given [M.L.]'s speech and language needs; " M.L. would have difficulty navigating the stairs; and the students in the recommended class had different needs than M.L. ( Id. at 2.) The parents also pointed out that the proposed program could not meet M.L.'s behavioral needs, specifically:

" The program does not offer sufficient 1:1 instruction and support to address [M.L.]'s delays. Further, the parent was informed that [M.L.]'s related service mandates as per the May 14, 2010 IEP would [not] be met at the recommended placement. The program would require [M.L.] to travel independently with a Metro Card to alternate placements in order to receive related services. This is inappropriate given [M.L.]'s delays."

( Id.)

As a proposed resolution, the Parents requested tuition reimbursement for the 2010-11 school year at Imagine Academy. ( Id.)

IV. IHO Proceedings

The IHO held a hearing over the course of four days in June and July 2011. (IHO Dec. 2) The DOE presented two witnesses: (1) Benjamin Shu (" Mr. Shu" ), a special

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education teacher assigned to the CSE who conducted an observation of M.L. and who participated in the CSE review; and (2) Grace Schaefer (" Ms. Schaefer" ), the teacher of the class in which M.L. would have been placed at P.S. 141 had M.L.'s parents accepted the IEP. ( Id.) Mr. Shu was the sole DOE witness to testify concerning the formulation of the IEP. ( Id. at 5.)

Applying the Burlington/Carter test, the IHO conducted a thorough analysis regarding prong one, namely whether the services offered by the DOE to M.L. in the IEP were adequate. (Id at 4-8.) In summarizing her conclusions that were favorable to the DOE, the IHO noted that the testimony of M.L.'s parents indicated that M.L.'s present levels of academic performance and learning characteristics were accurately depicted in the May 2010 IEP. ( Id. at 6.) The IHO further found that goals for M.L. were discussed at the May 2010 CSE meeting, and noted that the attending parent did not object at that time, and that Imagine Academy's principal deemed the goals appropriate. ( Id.) She further found unavailing the parents' claim that the May 2010 IEP was deficient because it did not provide for parent training and counseling, noting that some parent training was provided by the proposed assigned school. ( Id.)

Notwithstanding those peripheral findings in favor of the DOE, with respect to the primary substantive defect alleged, the IHO concluded that the DOE failed to establish that the program it proposed, namely 6:1:1, was reasonably calculated to enable M.L. to make meaningful ...

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