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

United States District Court, S.D. New York

December 3, 2014

B.P. and S.H., Plaintiff,


LORNA G. SCHOFIELD, District Judge.

Plaintiffs B.P. and S.H., on behalf of their child, S.H., 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 December 19, 2013, decision of the New York State Review Officer ("SRO Decision") upholding the September 5, 2013, decision of the Impartial Hearing Officer ("IHO Decision"), which found that the DOE had provided a free and appropriate education ("FAPE") to S.H. during the 2012-2013 school year. The parties have cross-moved for summary judgment. Because the SRO 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. S.H.'s Educational History

S.H. is an 11 year-old boy with autism spectrum disorder, attention deficit hyperactive disorder, a sensory integration disorder, obsessive compulsive disorder and Tourette's syndrome. S.H. exhibits deficits in cognition, academics, communication skills, sensory integration and regulation, including food sensitivity, social interaction and emotional regulation. S.H. displays tantrum behaviors when dysregulated, including screaming or crying, as well as self-injurious behaviors, such as head banging and hitting himself on the head, when frustrated or overwhelmed and when in a large crowd or noisy environment.

For the four years prior to the school year in question (2012-2013), S.H. attended the Rebecca School in a classroom with seven students, one teacher and three paraprofessionals (a "7:1 class") and received speech-language therapy, occupational therapy ("OT") and counseling services.

B. S.H.'s Individualized Education Program for 2012-2013

On March 1, 2012, the DOE convened a meeting of the CSE to develop S.H.'s IEP for the 2012-2013 school year. The CSE consisted of S.H's parents, a school psychologist who also served as the District's representative, a social worker from the Rebecca School and S.H.'s teacher, who participated by telephone. To develop the IEP, the CSE used several pre-existing reports, including a Rebecca School progress report, dated December 2011; S.H.'s July 9, 2011, physical therapy evaluation; his November 2, 2010, classroom evaluation; his April 20, 2011, psycho-educational report; his April 20, 2011, vocational interview and his social history update. The CSE relied primarily on the December 2011, Rebecca School progress report, which included information from an occupational therapist, a counselor, a speech therapist and S.H.'s teachers at the Rebecca School. Dr. Czarnecki, the district psychologist, testified that the CSE also relied on verbal input from meeting participants and that the goals included in the IEP were read aloud and reviewed one by one with S.H.'s parents.

The IEP addressed different aspects of S.H.'s performance, including academic achievement, functional performance, learning characteristics, social and physical development and management needs. Regarding S.H.'s academic performance, the IEP recorded that S.H. should "learn his phone number... improve his skill at answering when' and why' questions... [and] make money combinations with coins." As to his social development, the IEP recommended that S.H. "be able to tolerate frustration when upset by a peer's behavior or by a change in his schedule... [and] remain in a continuous flow of interaction for more than 30 circles when challenged." In regards to his physical development, the IEP recommended that S.H. "increase his flexibility and low frustration tolerance toward anticipation of failure when performing a novel activity... [and] improve handwriting for letter formation, sizing, spacing and alignment."

The IEP listed 16 annual goals for S.H. to attain during the 2012-2013 school year. For each annual goal, the IEP provided short-term objectives and/or benchmarks to evaluate S.H.'s progress in attaining the annual goal over the course of the year.

The IEP concluded with a recommendation that S.H. be placed in a 6:1 class in a specialized school with a 12-month program, and provided with related services including speech-language therapy (individual service) twice a week for 30 minutes; speech-language therapy (group of 2) once a week for 30 minutes; OT (individual service) 4 times a week for 30 minutes; OT (group of 2) once a week for 30 minutes; counseling services (individual service) once a week for 30 minutes; and counseling services (group of 2) once a week for 30 minutes. Each of these services was to take place at a location outside of the classroom.

C. Rejection of the Recommended School Replacement

In May 2012, S.H.'s parents signed an enrollment contract with the Rebecca School and an addendum with a schedule of payments for the 2012-2013 school year. On June 11, 2012, the district notified the parents that S.H. had been assigned to P369K@P005, a public school located in Brooklyn, New York. By letter dated June 18, 2013, the parents informed the district that they intended to visit P369K@P005 to determine whether it was an appropriate placement. In the letter, the parents indicated that, if they found that the placement at P369K@P005 fell short of S.H.'s needs, S.H. would attend the Rebecca School and the parents would request district funding.

By letter dated July 9, 2012 ("July 9 letter"), the parents notified the district that they had visited P369K@P005 and they believed that the school would not meet their son's needs. The parents noted certain failings of the school including: lack of an occupational therapist on staff; lack of a sensory gym; lack of a separate speech-language therapy room; that the speech and OT sessions would be push-in service (i.e., in the classroom); and that they were told by a social worker at P369K@P005 that the school was inappropriate for S.H.

In a letter dated August 17, 2012, the parents notified the district that S.H. would be attending the Rebecca School and they would seek tuition reimbursement from the district. S.H. attended the Rebecca School for the entirety of the 2012-2013 school year.

D. Due Process Complaint and Impartial Hearing

On December 19, 2012, the parents filed a due process complaint and requested an impartial hearing. The complaint alleged that the district failed to offer S.H. a FAPE for the 2012-2013 school year for the following reasons: (1) the parents never received a copy of S.H.'s IEP; (2) the details regarding the annual goals in the IEP were not discussed at the CSE meeting; (3) the IEP did not accurately reflect S.H.'s then-present levels of performance and individual needs; (4) the goals in the IEP did not include measurement criteria; (5) the short-term objectives in the IEP relating to visual spatial skills and OT were "unrealistic"; (6) the speech-language short-term objectives in the IEP failed to take into account S.H.'s "spatial issues"; (7) the IEP failed to include parent counseling and training; (8) the related services listed on the IEP could not be implemented at P369K@P005; (9) P369K@P005 lacked a sensory gym; and (10) bus ...

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