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K.M. v. New York City Department of Education

United States District Court, S.D. New York

March 3, 2015

K.M. and S.N. individually and on behalf of L.N., Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

REPORT AND RECOMMENDATION TO THE HONORABLE LEWIS A. KAPLAN[*]

FRANK MAAS, Magistrate Judge.

This lawsuit is brought on behalf of L.N., a child with autism spectrum disorder, by his parents, K.M. and S.N. ("Parents").[1] In their complaint, the Parents seek review of a decision by a New York State Review Officer ("SRO"), which denied their request for reimbursement of L.N.'s private school tuition based on a finding that the New York City Department of Education ("DOE") had offered L.N. a free, appropriate public education ("FAPE") for the 2011-12 school year. In reaching this decision, the SRO overturned the earlier decision of an Impartial Hearing Officer ("IHO"). The Parents have now moved for summary judgment - in effect, seeking modified de novo review of the SRO's decision. (See ECF No. 13). Alternatively, the Parents seek an order requiring the DOE to produce certain previously-subpoenaed documents and remanding this case for a rehearing before an IHO. (See ECF No. 15 ("Pls.' Mem.") at 34). The DOE has cross-moved for summary judgment dismissing the case in its entirety. (ECF No. 18). For the reasons that follow, the DOE's motion should be granted, and the Parents' motion should be denied.

I. Statutory Framework

In 1975, Congress enacted the Education for All Handicapped Children Act, Pub. L. No. 94-142, 89 Stat. 773 (1975) ("EAHC"), which was the precursor to the Individuals with Disabilities Education Act ("IDEA"), presently codified at 20 U.S.C. § 1400, et seq. The IDEA seeks to ensure that all children with disabilities have available to them a FAPE "that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A).[2]

The "centerpiece" of the IDEA is the Individualized Education Plan ("IEP"). Murphy v. Arlington Cent. School Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). "The IEP, which the school district is required to prepare annually, must include the child's present levels of academic achievement and functional performance, goals and objectives for the child, and the special education and related services to be provided to the child so that he or she can advance toward attaining those goals and objectives." Reyes ex rel. R.P. v. New York City Dep't of Educ., 760 F.3d 211, 214 (citing 20 U.S.C. § 1414(d)). The IEP is developed by an "IEP Team" - known in New York as a Committee on Special Education ("CSE") - which ordinarily must include the child's parents, a regular education teacher, a special education teacher, and a representative of the local educational agency. See 20 U.S.C. § 1414(d)(1)(B); N.Y. Educ. Law § 4402(1)(b)(1).

Both the IDEA and New York law provide comprehensive procedural safeguards for parents challenging an IEP. See 20 U.S.C. §§ 1415(f)-(g); N.Y. Educ. Law § 4404. In New York, if the parents deem the CSE recommendation unacceptable, they may challenge it by filing a "due process complaint notice, " which triggers a process by which the school district appoints an IHO to conduct an "impartial due process hearing."[3] N.Y. Educ. Law § 4404(1)(a). An adverse decision by the IHO may be appealed by either party to an SRO. Id . § 4404(1)(c). After the SRO rules, either party may seek further review in a federal district court or a state court of competent jurisdiction. 20 U.S.C. §§ 1415(i)(1), (2); N.Y. Educ. Law § 4404(3)(a).

Additionally, parents who believe that a school district has failed to provide their child with a FAPE may "unilaterally enroll the child in a private school" and subsequently "seek tuition reimbursement from the school district." Reyes, 760 F.3d at 215 (citing 20 U.S.C. § 1412(a)(10)(C)(ii)). Parents who do so, however, "pursue this option at their financial risk." Id . The Parents and DOE agree that tuition reimbursement in the aftermath of a unilateral placement in a private school may be authorized only if (a) the proposed IEP failed to provide the student with a FAPE; (b) the private school was appropriate for the child's needs; and (c) equitable considerations support reimbursement. (See Pls.' Mem. at 18-19; ECF No. 19 ("Def.'s Mem.") at 10-13 (both citing Sch. Comm. of Town of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359 (1985), and Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (1993))). Under New York law, "the school district [must] prove that its proposed IEP provided the child a FAPE, ' but the parents must prove the appropriateness of the private placement.'" Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 377 (2d Cir. 2014) (quoting Reyes, 760 F.3d at 215) (citing N.Y. Educ. Law § 4404(1)(c)).

II. Relevant Facts

A. L.N.

The following facts taken from the administrative record are undisputed unless otherwise indicated.[4]

L.N. was born on June 2, 2000, and thus was eleven years old for most of the 2011-12 school year. (Ex. A at 1). He has been diagnosed with autism spectrum disorder. (Id.). Prior to the 2011-12 school year, L.N. had attended The McCarton School ("McCarton") for nine years.[5] (See id.; Tr. at 598). L.N. is a hard-working and cooperative student, with a demonstrated willingness to learn, who has been making progress both academically and socially. (Tr. at 61).

L.N. nevertheless has severe developmental delays. For example, his reading and math abilities are at a first grade level, he has difficulty maintaining focus, and he requires continuous prompting and fast-paced instruction. (Id. at 62-63, 235-36, 575). L.N. also requires a predictable schedule because deviations can cause him to manifest injurious and self-stimulatory behaviors. (Id. at 308, 575, 596-97). His interfering behaviors have changed over time, but include non-contextual vocalizations, hand play and movements, tapping, and screaming. (Id. at 308, 575-76). L.N. also struggles to speak intelligibly and has limited expressive and receptive vocabularies. (Id. at 62, 533). Many of L.N.'s interfering behaviors stem from his limited ability to communicate his needs and wishes verbally. (Id. at 313-14).

B. IEP Development and Final Recommendation

On June 15, 2011, K.M. attended a CSE meeting to develop L.N.'s IEP for the 2011-12 school year. (Id. at 570; see Ex. at 235-54 ("IEP")). At the meeting, the DOE was represented by social worker Ariela Garofalo-Bergier ("Garofalo-Bergier"), psychologist Sandra Duke, special education teacher Jane O'Connor, and parent member Carmen Garcia. (IEP at 2). Three McCarton staff members also participated: L.N.'s supervising teacher, Irene Chan ("Chan"); L.N.'s occupational therapist, Paula Welch ("Welch"); and L.N.'s speech and language therapist, Tara Egloff. (The participants in the meeting are hereinafter referred to, collectively, as L.N.'s "IEP Team"). (Id.).

Ultimately, the DOE recommended that L.N. be placed in a year-round "6:1:1" special education class in a special education school - i.e., a class of no more than six students taught by a special education teacher with the assistance of a paraprofessional.[6] (Tr. at 73-74; IEP at 17). The DOE further recommended that this staffing be augmented with an additional full-time behavior management paraprofessional to provide L.N. with one-to-one support throughout the entire school day. (Tr. at 73-74; IEP at 17). Finally, the DOE recommended that L.N. receive one group and four individualized occupational therapy sessions, and two group and five individualized speech and language therapy sessions, each week. (IEP at 19).[7]

The DOE considered several larger class placements including a 12:1:1 and 8:1:1 placement, as well as a 6:1:1 placement without a behavior management paraprofessional, but rejected them because L.N. required additional support. (Id. at 18). The DOE also rejected the McCarton staff's opinion that 6:1:1 instruction would be inadequate, and that one-to-one instruction by a special education teacher was required because of L.N.'s inability to concentrate and his interfering behaviors. (Tr. at 575). On or about July 1, 2011, Garofalo-Bergier mailed a copy of the IEP to the Parents. (IEP at 2; Tr. at 97-99).[8]

The IEP Team did not conduct its own Functional Behavior Assessment ("FBA"), as New York law requires, to determine why LN "engage[d] in behaviors that impede[d] learning and how [his] behavior relate[d] to the environment." See 8 N.Y.C.R.R. § 200.1(r). Nevertheless, the IEP Team developed a Behavior Intervention Plan ("BIP") based on input from Chan, L.N.'s supervising teacher at McCarton, as well as the McCarton "Behavior Reduction Plan" for L.N. (See Tr. 58, 68-69, 100-01; IEP at 20; Ex. L at 1-4). A BIP ordinarily is "based on the results of a[n FBA]." 8 N.Y.C.R.R. § 200.1(mmm). "[A]t a minimum, " a BIP "includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior." Id.

The BIP identified L.N.'s interfering behaviors, including inattention during class, non-contextual vocalization and movements, banging of desk or objects, screaming, and occasional biting, scratching, pinching or hitting. (IEP at 20). The BIP also identified the triggers for these behaviors and strategies to reduce them. For example, the BIP indicated that L.N. would be positively reinforced if he stayed quiet and kept his hands down. Specifically, the BIP suggested the use of a "token economy system" to reinforce positive behavior and disincentivize interfering behaviors.[9] Additionally, the BIP indicated that when L.N. behaved in a physically inappropriate manner, his hands would be redirected to his sides. Finally, the BIP noted the need to model and reinforce positive interactions and reinforce positive forms of communication. (Id.).

On June 16, 2011, the DOE issued a Final Notice of Recommendation ("FNR") reflecting the DOE's recommendation of a 6:1:1 placement for L.N. with a behavior management paraprofessional. (Ex. H at 1). K.M. testified that she did not recall when she actually received the FNR, but the Parents do not dispute the SRO's finding that they received the FNR after the CSE meeting and prior to the beginning of the 2011-12 school year. (See Tr. at 580-81; SRO Decision at 17; Pls.' Mem. at 10-11, 21). The FNR identified the specific site where L.N. would receive the IEP's recommended services as "P94M at P188M" ("P188M"). This was a specialized school within another public school. (See Ex. H at 1).

On June 30, 2011, the Parents submitted a "Demand For Due Process" ("Demand") to the Impartial Hearing Office of the DOE. (See Ex. A at 1-8). In their Demand, the Parents alleged that the DOE had denied L.N. a FAPE, expressed their intention to keep L.N. enrolled at McCarton for the 2011-12 school year, and requested a hearing before an IHO to seek reimbursement of L.N.'s McCarton tuition. (Id. at 1-2, 78). The Demand detailed nearly sixty alleged procedural and substantive shortcomings related to the DOE's recommended placement. (Id. at 2-7).

Because L.N. had been recommended for enrollment in a year-round program, his 2011-12 school year was slated to begin on July 5, 2011. (Tr. at 93). On July 8, 2011, after the school year began, K.M. attempted to visit P188M. (Id. at 582). She was unable to gain entry, however, because the site was under construction. While at P188M, K.M. attempted to call Martin Bassis ("Bassis"), the DOE placement officer listed as a point of contact in the FNR. (Id. at 582-83). This attempt was unsuccessful because Bassis had retired from the DOE. (Id. at 120). That same day, K.M. sent a fax to Gerard Donegan ("Donegan"), the chairperson of L.N.'s local CSE, giving him "reiterated notice" that the Parents were rejecting L.N.'s IEP and proposed placement and intended to hold the DOE responsible for L.N.'s McCarton tuition. (Ex. G at 1). Unbeknownst to K.M., students enrolled at P188M for the summer had been relocated to another P94M site only two blocks away - P15M - for the duration of the summer construction at P188M. (Tr. at 401-02).

On September 27, 2011, K.M. successfully visited the reopened P188M. (See Ex. F at 1). She subsequently sent a second letter to Bassis listing the reasons why she deemed P188M and the proposed class placement inadequate for L.N.'s needs. (Id. at 1-2).

C. Administrative Proceedings

1. IHO Decision

IHO Martin J. Kehoe, III ("IHO Kehoe") held an impartial hearing over the course of seven days between August 9, 2011, and June 21, 2012. (See Tr.). The IHO heard testimony from nine witnesses, six of whom were called by the Parents. In his decision, dated January 28, 2013, the IHO found that the DOE had denied L.N. a FAPE for the 2011-12 academic year, that McCarton was an appropriate placement for L.N., and that equitable considerations supported tuition reimbursement. Consequently, IHO Kehoe ordered the DOE to reimburse the Parents fully for L.N.'s tuition at McCarton for the 2011-2012 academic year, plus the cost of certain additional home-based services. (See IHO Decision at 18).

Addressing the first prong of the test established by the Burlington/Carter decisions, the IHO chose not to discuss many of the alleged procedural and substantive violations that the Parents had identified in their Demand. (Id. at 12-14). Instead, IHO Kehoe held simply that the DOE's decision to reject McCarton's programming recommendation of intensive one-to-one ABA therapy, and direct instead a 6:1:1 placement combined with a one-to-one behavior management paraprofessional, gave rise to a substantive violation of the IDEA, since the DOE had adopted "nearly every piece of evaluative data... from [McCarton, ] but... rejected the substance of [McCarton's] programming." (Id. at 13). The IHO specifically cited the DOE's decision to adopt the BIP, based on "years of work" at McCarton, yet render it "virtually useless" by not recommending the "intensive ABA environment, " in which it had been developed. (Id.).

In reaching his decision, the IHO noted that "[t]here is no opinion in the entire record that finds fault with [one-to-one ABA therapy], " or that "supports removing the ABA therapy." (Id.). The IHO also cited the testimony of Nina Berke, a special education teacher at P188M, who presumably would have been the teacher of the 6:1:1 class recommended for L.N. (See Tr. at 205-208, 245). The IHO criticized Berke's opinion that L.N. "would be appropriate for group instruction, " in light of the conflicting position of "all of the educators who had worked with [L.N.] and the Parent[s], " Berke's inability to identify "the type of programming that [L.N.] had been exposed to during the preceding year" at McCarton, and her lack of familiarity with "the use of a transition plan." (IHO Decision at 13).

Turning to the second and third prongs of the Burlington/Carter test, the IHO found that McCarton was an appropriate placement for L.N., and that there was no equitable reason to deny ...


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