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D.N. v. The New York City Department of Education

United States District Court, S.D. New York

March 3, 2015

D.N., individually and on behalf of G.N., Plaintiff,


LORNA G. SCHOFIELD, District Judge.

Plaintiff D.N., individually and on behalf of her child, G.N., 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 August 29, 2011, decision of the New York State Review Officer ("First SRO Decision") reversing the June 10, 2011, decision of the Impartial Hearing Officer ("IHO Decision"), which had found that the DOE had failed to provide a free and appropriate public education ("FAPE") to G.N. during the 2010-2011 school year. Plaintiff also seeks review of the December 12, 2013, decision of the New York State Review Officer ("Second SRO Decision"), again reversing the IHO Decision. The parties have cross-moved for summary judgment. Because the SRO'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 also 20 U.S.C. § 1414(d)(1)(A).

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 2014). 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 file a due process complaint with the DOE, which triggers administrative proceedings involving a hearing before an Impartial Hearing Officer ("IHO"). See id. (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 and citations 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. 20 U.S.C. §1415(i)(1)(B). An aggrieved party, however, may seek review of the SRO's decision by commencing an action in federal district court. See id. § 1415(i)(2)(A); M.W., 725 F.3d at 135-36.


A thorough recitation of the facts, with which familiarity is assumed, is set forth in the First SRO Decision and this Court's Order and Opinion remanding the case to the SRO for consideration of previously unaddressed claims. See D.N. v. New York City Dep't of Educ., 905 F.Supp.2d 582, 585-86 (S.D.N.Y. 2012). The relevant facts for purposes of this Opinion are briefly stated below.

A. G.N.'s Educational History

G.N. is a 14-year-old boy with autism spectrum disorder. As a result of his disability, G.N. exhibits severe developmental delays and is primarily non-verbal, although he has shown some signs of progress. G.N. presents with issues relating to his sensory skills and displays self-injurious behaviors, such as hitting his head with his hand and biting himself. G.N. also suffers from tantrums and shows aggressive tendencies towards others. G.N. requires the use of sensory devices, such as swings, to regulate his behavior.

Since September 2006, G.N. has attended the Rebecca School. The Rebecca School is a for-profit school that is designed specifically for children with neuro-developmental disorders, including autism. In the years preceding the 2010-2011 school year, G.N. was placed in a classroom with a 8:1:3 student-to-teacher-to-assistant ratio (one teacher and three assistants for every eight students).

B. G.N's Individualized Education Program for 2010-2011

On January 12, 2010, the DOE convened a meeting of the CSE to develop G.N.'s IEP for the 2010-2011 school year. The CSE consisted of G.N.'s mother, D.N.; a district representative/special education teacher; the district school psychologist, Rose Fochetta; a social worker from the Rebecca School; a special education teacher from the Rebecca School; the parent of another child; and a family friend. In developing the IEP, the CSE considered a psychological evaluation conducted by the Rebecca School, dated December 4, 2009; a DOEconducted classroom observation of G.N., dated October 28, 2009; and a student progress report, dated December 9, 2009. The CSE also considered input from G.N's teacher at the Rebecca School and from G.N.'s mother.

The IEP addressed G.N.'s abilities in the areas of academic performance, social and emotional performance and health and physical development. For academic performance, it provided that G.N. needed a crisis management paraprofessional; visual and verbal prompts; redirection; and the use of motivating objects. For social and emotional performance, the IEP observed that G.N. required frequent sensory breaks; use of visuals; and setting of consistent limits. For health and physical development, the IEP stated no major medical concerns, but recommended that G.N. continue occupational and physical therapy to improve low muscle tone.

To achieve these objectives, the IEP proposed that G.N. be placed in a special class in a specialized school for a twelve-month school year, with a staffing ratio of six students to one teacher and one paraprofessional (6:1:1). The IEP also proposed that G.N. be provided with a minibus with limited travel time for transportation to and from school. Additionally, the IEP recommended that G.N. receive the support of an additional full-time 1:1 crisis management paraprofessional, and various forms of therapy, including occupational therapy (five individualized thirty-minute sessions per week), speech therapy (five individualized thirtyminute sessions per week), physical therapy (three individualized thirty-minute sessions per week) and counseling (one individualized thirty-minute session per week). The CSE considered alternative classes with staffing ratios of 8:1:1, 12:1:1, and 6:1:1 without the support of an additional full-time crisis management paraprofessional, but rejected them as insufficiently supportive of G.N.'s needs.

While the IEP did not include a Functional Behavioral Assessment ("FBA"), [1] it did include a Behavioral Intervention Plan ("BIP")[2] listing G.N.'s behaviors that interfere with learning, and suggesting strategies to correct them. The BIP observed that G.N. exhibits self-injurious behaviors, has a limited awareness of safety, may be aggressive towards others, may have a tantrum two to three times per week and exhibits attention seeking and sensory seeking behaviors. The BIP listed several objectives, including "[e]limination of self injurious behaviors and aggression toward others, " "decrease tantrums, " "[r]educe attention seeking behaviors for greater independence" and "increase [student's] ability to self-regulate." In order to counteract these behaviors, the BIP recommended a sensory diet and sensory input, use of a "communication book, " movement breaks and deep pressure and joint compression.

C. Rejection of the Recommended School Placement

The IEP did not include a recommended school placement for G.N. Instead, the DOE issued a Notice of Deferred Placement to Plaintiff, indicating that a placement would be provided in time for the start of the school year in July 2010. By letter dated June 15, 2010, the DOE notified Plaintiff that G.N. would be offered a placement at PS94, at the Children's Workshop School Location, a specialized District 75 public school in Manhattan. On June 16, 2010, the parent wrote the DOE, contending that the DOE committed both procedural and substantive errors in developing G.N.'s IEP, depriving him of a FAPE for the 2010-2011 school year. The letter informed the DOE that the parent intended to re-enroll G.N. at the Rebecca School and seek reimbursement.

On June 17, 2010, the parent sent a letter to the DOE requesting additional information about PS94 and a tour of the facilities. After the parent visited PS94, accompanied by a Rebecca School social worker, the parent signed a contract enrolling G.N. at the Rebecca School for the 2010-2011 school year. On August 16, ...

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