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P.G. v. City School District of New York

United States District Court, S.D. New York

February 25, 2015

P.G. and R.G., individually and on behalf of D.G., a child with a disability, Plaintiffs,
v.
CITY SCHOOL DISTRICT OF NEW YORK, Defendant.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Plaintiffs P.G. and R.G., individually and on behalf of their special needs child, D.G. (collectively, "Plaintiffs"), filed suit under the Individuals with Disabilities Education Act (the "IDEA, " formerly known as the Individuals with Disabilities Act), 20 U.S.C. §§ 1400-1482, against Defendant City School District of New York, d/b/a New York City Department of Education ("Defendant" or the "DOE").[1] Plaintiffs bring this action (i) to recover costs they incurred in sending D.G. to a private school for the 2012-2013 school year, and (ii) to seek review of an October 21, 2013 decision of the State Review Officer (the "SRO") that effectively denied Plaintiffs the ability to recover those costs from the DOE.

The parties have cross-moved for summary judgment. For the reasons set forth below, Defendant's motion is granted, and Plaintiffs' motion is denied.

BACKGROUND[2]

As happens frequently in IDEA cases, this case is resolved short of trial, as a result of competing summary judgment motions. The Court's inquiry in IDEA cases is "fact-intensive" and it is therefore "necessary to set forth in some detail the facts" presented in the record. R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012).

A. The Legal Framework

The IDEA "requires states to provide disabled children with a free appropriate public education'" (a "FAPE"). Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9 (1993) (citation omitted); see also R.E., 694 F.3d at 174-75. In accordance with this mandate, school districts are required to create an individualized education program ("IEP") for each qualifying child in order to ensure that the child receives a FAPE. See R.E., 694 F.3d at 175.

"The IEP, the result of collaborations between parents, educators, and representatives of the school district, sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 415 (2d Cir. 2009) (quoting Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 81 (2d Cir. 2005)); see also 20 U.S.C. § 1414(d)(1)(A). At the cornerstone of the IDEA is the requirement that the IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (citing Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)).

In New York State, each school district has a Committee on Special Education ("CSE") that is responsible for developing IEPs for qualifying students within that district. Gagliardo, 489 F.3d at 107. A CSE is "comprised of members appointed by the local school district's board of education; it must include, among others, the student's parent(s), a regular or special education teacher, a school board representative, [and] a parent representative, " and it may include others. R.E., 694 F.3d at 175; N.Y. Educ. Law § 4402(1)(b)(1)(a).[3] The CSE is responsible for examining the student's level of achievement and specific needs in order to determine an appropriate educational program. R.E., 694 F.3d at 175.

If a parent believes that his or her child's IEP fails to comply with the IDEA, the parent may seek relief by filing a due process complaint with the appropriate state agency. 20 U.S.C. § 1415(b)(6). Upon the filing of a due process complaint, federal law mandates that the parent be provided with an impartial due process hearing before an IHO. Id. § 1415(f). New York law, in turn, requires a parent to pursue his or her claim first before an IHO; once the IHO renders a decision, either party may appeal the decision to the SRO. N.Y. Educ. Law § 4404(1), (2). After the SRO completes his or her review of the IHO's decision, either party may file an action in state or federal court seeking review of the SRO's decision. 20 U.S.C. § 1415(i)(2)(A).

B. D.G.'s Disability Classification and Placement Before the 2012-2013 Academic Year

1. D.G.'s Infancy and Early Childhood

Plaintiffs P.G. and R.G. are the parents of Plaintiff child D.G., a nine-year-old girl whom the DOE has classified as having a learning disability and who is accordingly entitled to a FAPE. D.G. was born prematurely at 29 weeks, and, since she was an infant, D.G.'s parents have carefully monitored her development. (IHO Ex. D at 1). Based on the results of an evaluation conducted when D.G. was four months old, D.G.'s parents enrolled her in an "Early Intervention" program that provided her from that point onward with occupational therapy ("OT"), physical therapy ("PT"), and speech and language therapy. ( Id.; see also Tr. 288-90).

At the age of five, D.G. was placed in an Integrated Co-Teaching ("ICT") kindergarten class at New York City Public School ("P.S.") 52. (Tr. 290-91).[4] Her parents observed D.G. struggling with classwork while in kindergarten, and her report card indicated that she was below grade level in reading. (Tr. 291-98; IHO Ex. P). By the time D.G.'s parents received her kindergarten report card, the CSE for the 2011-2012 academic year had already met and determined D.G.'s IEP for her first grade year, which was again placement in an ICT class. (Tr. 296-97). At this time, the DOE classified D.G.'s disability as a "speech or language impairment." ( See IHO Ex. H).

2. Fall 2011 Brooklyn Learning Center Evaluation and Report

Concerned about their daughter's development and her below-grade-level performance in kindergarten, D.G.'s parents had a private neuropsychological evaluation conducted at the Brooklyn Learning Center (the "BLC"). The BLC administered to D.G. a series of tests and assessments in August and September of 2011. (Id. at 298; IHO Ex. D at 1). It then issued a report to D.G.'s parents dated October 8, 2011 (the "BLC Report"). (IHO Ex. D).

The BLC Report indicated that D.G. had "many cognitive strengths and a willingness to work diligently in school and at home." (IHO Ex. D at 12). D.G.'s results on an IQ test, the Wechsler Intelligence Scale for Children - Fourth Edition, showed that her overall intellectual functioning was in the average range and on par with her peers in several domains. (Id. at 2, 6). The BLC Report did, however, note that there was "variation and scatter" among D.G.'s scores, which ranged from the below-average to the average range. (Id. at 6).

While the evaluation noted that D.G. was in the average range and on par with her peers in many of the cognitive tasks required for school success, it also described several deficits that detracted from her ability to succeed academically and perform tasks adequately. (IHO Ex. D at 2, 6). Specifically, D.G. was found to struggle with language processing, memory span, fine motor skills, and processing of visual information. (Id. at 2). The BLC corroborated its findings with D.G.'s first-grade teacher, who had also observed D.G.'s difficulties with language processing. (Id. ). The BLC Report remarked that, while D.G. had "certainly made gains in her speech and language skills, " she continued to need ongoing speech and language support to sustain her progress. (Id. ). Additionally, D.G.'s cognitive deficits in language, visual processing, and memory affected her ability to develop phonological awareness and rapid naming skills, which the BLC characterized as the skills that "underlie reading." (Id. at 3). The BLC Report diagnosed D.G. with Expressive-Language Disorder, Reading Disorder, and Disorder of Written Expression. (Id. at 12).

The BLC Report described generally the methods of instruction that would benefit D.G.; for example, it suggested that she would respond more favorably to "hands-on, straightforward, and structured presentation of information... in a clear verbal format rather than a visual format." (IHO Ex. D at 4). The BLC Report also made specific recommendations regarding D.G.'s school placement, accommodations she should be permitted at school, suggestions for teachers to assist her learning in the classroom, and recommendations for D.G.'s development outside the classroom. (Id. at 13-15).

In terms of D.G.'s school placement, the BLC Report concluded, "An appropriate placement needs a high teacher/student ratio in a small classroom with teachers trained to teach children with language and visual processing disabilities." (IHO Ex. D at 13). At school, the BLC Report recommended that D.G. be permitted "to dictate assignments to a scribe to ensure that the process of writing does not interfere with her good ideas." (Id. ). It also made recommendations regarding future accommodations for note-taking, computer use, and additional time on standardized and classroom tests. (Id. at 13-14).

3. Discussions of D.G.'s Placement Following the BLC Report

After receiving the BLC Report, D.G.'s mother R.G. began researching private schools for D.G. based on a list of recommended schools provided by the psychologists at BLC. (Tr. 329). Around this time, R.G. also provided the BLC Report to D.G.'s first-grade teachers at P.S. 52, who subsequently informed her that they had provided it to the assistant principal. (Id. at 300). In December 2011, after having received the BLC Report, the CSE opened D.G.'s case and held a meeting. (Id. ). At that point, according to R.G., the CSE agreed to add the services of OT and of a reading specialist to D.G.'s IEP for the remainder of her first-grade school year. (Id. at 300-01). R.G. testified that at this meeting the assistant principal promised her that if D.G. were accepted at a private school, "they weren't going to fight [her] on it." (Id. at 302).[5]

That same month, R.G. visited private schools on her list and decided to submit an application to the Churchill School for D.G.'s enrollment during the 2012-2013 academic year. (Tr. 303-04). D.G. was accepted at Churchill School on February 14, 2012, and D.G.'s parents signed an enrollment contract with the school on February 20, 2012. (Tr. 304; IHO Ex. Y). R.G. testified that she signed the contract at that point because she "felt this was the best place for [D.G.]." (Tr. 325). On March 21, 2012, R.G. wrote the assistant principal at P.S. 52, requesting that the CSE convene to consider a "full-time special education school" setting for D.G. (IHO Ex. G).

4. April 2012 Update to the BLC Report

In April 2012, at the request of D.G.'s parents, the BLC conducted another evaluation of D.G. and issued an addendum report on April 27, 2012 (the "BLC Addendum"). (IHO Ex. E). The parents requested the report in order to (i) help them understand the areas in which D.G. needed continued support and remediation, and (ii) determine an appropriate educational placement for D.G. (Id. at 1). BLC administered several of the same academic assessment tools and some new ones. ( Id.; see also SRO Op. 13-14). These tests revealed that D.G. continued to have significant deficits in her reading skills and actual reading ability, and that she was performing below first-grade level. (IHO Ex. E at 1-2). The BLC Addendum reported that D.G. had not made adequate gains in reading and writing over the preceding six months and continued to fall below grade level. (Id. at 2-4). It noted, however, that her math skills had progressed at an adequate pace. (Id. at 3).

The updated report cautioned that without specialized curricula and instruction, D.G. would continue to fall behind in reading and writing. (IHO Ex. E at 2-3). The BLC Addendum concluded that D.G.'s current services and placement in an ICT class were "not appropriate" because she was "not making progress at a pace that is on par with her age peers." (Id. at 4). The BLC Addendum echoed the recommendation in the October 2011 BLC Report, stating, "[D.G.] requires a special education placement that provides a selfcontained, small classroom environment with teachers who are specially trained to work with students with language-based disabilities and disabilities in reading and writing." (Id. ). The report continued, "In order to have an appropriate ed[u]cational experience, she needs a small and nurturing classroom environment that provides structure and support. She requires a setting designed to address the unique needs of bright youngsters with specific learning disabilities with individual support to remediate her learning issues." (Id. ). Nowhere did the original BLC Report or the Addendum make a recommendation regarding a specific class size or ratio, a specific curriculum, or a specific school.

5. May 2012 DOE Psychological Update and Classroom Observations

In anticipation of preparing D.G.'s IEP for the 2012-2013 school year, the DOE conducted an updated psychological evaluation, which was memorialized in a May 3, 2012 report (the "DOE Update"), and two classroom observations in early May 2012. (IHO Ex. 1, 2; Tr. 24-26). In conducting the psychological evaluation, the DOE administered a variation of the IQ test that the BLC had administered in the fall of 2011, the Wechsler Abbreviated Scale of Intelligence. (IHO Ex. 1). Like the BLC's IQ test, the DOE test showed that D.G. possessed an average full-scale IQ; it also showed that she was in the average range for performance IQ and in the high-average range for verbal IQ. (Id. at 1-2). The DOE Update noted that D.G. performed somewhat better on verbal expression and comprehension than on tasks requiring manipulations with concrete materials and visual motor integration. (Id. at 2). The report remarked that D.G. was friendly and cooperative, exhibited age-appropriate attention span and frustration, and did not present as a behavior problem. (Id. ). The DOE Update determined that D.G. was below her grade level in "visual/perceptional functioning, " "somewhat below grade level" in reading, and above grade level in math. (Id. ). Accordingly, the report found that D.G. was "capable of close to grade level school work with some remedial help and support." (Id. ).

On May 4, 2012, DOE School Psychologist Oksana Kravchenko conducted an observation of D.G. in her first-grade ICT classroom. (IHO Ex. 2). Ms. Kravchenko observed that D.G. was well-behaved in class, attentively listened to a story being read by the teacher, raised her hand to participate in class, and gave responsive answers to the teacher's questions. (Id. ).[6]

A few days prior to D.G.'s IEP meeting for the 2012-2013 school year, DOE Supervisor of School Psychologists Ester Gutwein observed D.G. in an English/Language Arts ("ELA") lesson and a math lesson. (Tr. 25-26, 29). During the ELA lesson, all 25 students were present in the ICT classroom, while only about 10 students were present for D.G.'s math lesson, the others having either left with therapy providers or formed another group in the back of the room for a different lesson. (Id. at 30). Ms. Gutwein observed that D.G. was "extremely attentive" and "focused on the lesson at all times." (Id. at 31). During the ELA lesson, in response to "inferential questions about the story" that the teacher read to the class, D.G. gave "really very good answers that were completely and totally on target." (Id. ). When the class shifted to the math lesson, D.G. remained focused and attentive. (Id. ). While she did answer some of the math questions incorrectly, that did not discourage her from being "completely involved." (Id. at 31-32). Ms. Gutwein testified that during her observation, D.G. was "smiling, " and she was a "very lively, eager, active participant in that classroom situation." (Id. at 32). Ms. Gutwein observed that D.G. "fit right into that classroom" and her participation "compared favorably" to her classmates both socially and academically. (Id. at 33-36).

C. D.G.'s 2012-2013 IEP

1. The May 9, 2012 CSE Meeting

On May 9, 2012, the CSE convened to develop D.G.'s IEP for the 2012-2013 school year. ( See IHO Ex. H). Participants at the IEP meeting consisted of Ms. Gutwein, Ms. Kravchenko, D.G.'s special education teacher, her general education teacher, her speech therapist, her occupational therapist, her mother R.G., R.G.'s attorney Diana Gersten, a DOE social worker, the principal, the assistant principal, and a parent member by telephone. (Tr. 306, 353; see also IHO Ex. H at 14). Prior to the meeting, Ms. Gutwein had spoken to the assistant principal and Ms. Kravchenko. They informed Ms. Gutwein that there may be "tension" at the meeting because D.G.'s mother wanted to send D.G. to the Churchill School, and would be bringing an attorney to assist her in achieving that placement. (Id. at 37, 63, 82-84; see IHO Ex. ...


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