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

United States District Court, E.D. New York

March 27, 2015

M.L., by his parents, Y.L. and C.L., Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

Parents Y.L. and C.L. bring this pro se action on behalf of their child, M.L., 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., seeking modified de novo review and reversal of the State Review Officer's ("SRO") affirmation that the parents were not entitled to reimbursement or direct payment for either their unilateral placement of M.L. into a private school, or for additional services.

For the reasons that follow, and after reviewing the administrative record under the modified de novo review standard, the Court finds that the DOE offered M.L. a Free Appropriate Public Education ("FAPE"). Accordingly, the SRO's decision is affirmed, plaintiffs' motion for summary judgment is denied, and the DOE's cross-motion for summary judgment is granted.

BACKGROUND

The SRO's findings of fact are due appropriate deference by the Court, as further explained below, which is not an expert on education or childhood learning disabilities, and which relies upon the administrative record as the basis for its opinion. W.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134, 145 (S.D.N.Y. 2006). The Court, therefore, adopts the SRO's findings of fact as its own unless otherwise noted. See id. (adopting SRO's well-articulated factual findings). For ease of reference, however, the facts relevant to the instant determination are restated in summary fashion as follows.

I. M.L.

M.L. began receiving special education itinerant teacher ("SEIT") services at the age of two, and at three was diagnosed with "pervasive developmental disorder - not otherwise specified, " one of the three autism spectrum disorders.[1] ( See Comprehensive Psychological Evaluation (Doc. No. 37-4 at 3)[2] at 1.) He attended a special education preschool where he received applied behavior analysis ("ABA") with additional SEIT services and residential habilitation services. (SRO Decision (Doc. No. 36) at 2.) By age seven, M.L. had also been diagnosed with Attention Deficit Hyperactivity Disorder. ( See Student Progress Report for Annual Review (Doc. No. 37-4 at 13) at 1.)

M.L. attended first and second grade at the Ha'or Beacon School ("Beacon") during the 2010-2011 and 2011-2012 school years. Beacon is a special education school for Jewish Orthodox boys, where religious instruction, led by a rabbi, constitutes a significant portion of the weekly schedule. ( See Classroom Observation (Doc. No. 37-4 at 1) at 1; Class Schedule (Doc. No. 37-4 at 63).) At Beacon, M.L. was enrolled in a 10-month special class program with a staffing ratio of six students to one teacher and one paraprofessional ("6:1") and received fulltime 1:1 paraprofessional and related services. (SRO Decision at 2.) During the 2011-2012 school year, M.L. also received both home and school-based 1:1 ABA services. ( Id. at 2-3.) According to M.L.'s parents, he attended a special education program at "Camp Chaverim" in July and August 2011, for which they do not seek reimbursement. ( See SRO Decision at 4 n.4; Demand for Due Process (Doc. No. 38-6) at 8; Jan. 12, 2012 Tr. (Doc. No. 38-5) at 487-90.)

II. M.L.'s IEP and Classroom Assignment

On May 31, 2011, a Committee on Special Education (the "Committee") convened to develop an Individualized Education Plan ("IEP") for M.L. for the 2011-2012 school year. (IEP (Doc. No. 37 at 2).) The team consisted of a DOE school psychologist, a district representative/special education teacher, a DOE social worker, M.L.'s teacher, Beacon's school principal, and the parents, who participated by phone. ( Id. at 2.)

The Committee's recommendation included a twelve-month special education program in a special school with a 6:1 ratio, 1:1 occupational therapy three times per week for thirty minutes per session, 1:1 speech language therapy three times per week for thirty minutes per session, and 1:2 speech language therapy session once per week for thirty minutes per session. ( Id. at 1, 7, 9.) Although it concluded that M.L.'s behavior did not seriously interfere with instruction and could be addressed by his special education classroom teacher, the Committee also developed a behavioral intervention plan ("BIP"). ( Id. at 4; BIP (Doc. No. 37 at 18).)

On June 9, 2011, the district notified the parents that it had assigned M.L. to a public school. (SRO Decision at 3.) M.L.'s father visited the school on June 29, 2011, and notified the school later that day that he was rejecting the district's placement as inappropriate. ( Id. ) His letter cited the following reasons:

• Classes at the school were based on age, not the performance level of the child, so M.L. could be in a class with students more or less advanced than he was.
• The placement did not provide "sufficient related services."
• The school did not yet know where the classroom would be located.
• The class number listed in the recommendation did not exist.
• The unit coordinator at the school could not guarantee that there would be a spot for M.L. in the upcoming school year.

(Y.L. June 29, 2011 Letter (Doc. No. 37-4 at 41) at 1.) The letter also indicated that M.L. would be attending Camp Chaverim and Beacon "for the 2011-2012 twelve month school year, " would continue to receive services from the Yeled Vyalda program, and indicated that M.L.'s father would seek funding or reimbursement for thirty hours per week of SEIT, one hour per week for an SEIT supervisor, five hours per week of speech therapy, three thirty-minute sessions per week of occupational therapy, and transportation to and from the school. ( Id. at 1-2.)

On September 1, 2011, the parents signed a "letter of agreement" with Beacon covering the 2011-2012 school year. (SRO Decision at 3.) The agreement specified tuition of $35, 000 for the school year, plus an additional charge of $24, 000 for "one-to-one social/behavioral intervention." (Letter of Agreement (Doc. No. 37-4 at 55).) The parents paid $10, 000 towards this amount. (SRO Decision at 3.) The parents also entered into an agreement with M.L.'s former pre-school to provide ABA services for the school year. ( Id. ) On September 12, 2011, M.L. began the school year at Beacon. ( Id. )

III. Impartial Hearing Officer ("IHO") Review

A. Due Process Complaint

On July 19, 2011, the parents filed a due process complaint. ( Id.; Demand for Due Process.) The complaint asserted seventy-one allegations, including:

The May 2011 [Committee] "failed to meaningfully include [M.L's parents] in the IEP development and placement selection process" and "impermissibly abdicated the school placement' decision to an inadequately informed administrator who was not even present at [the May 2011 Committee] meeting"... [T]he May 2011 IEP was not reasonably calculated to provide the student with a FAPE, insofar as it lacked a transition plan addressing the student's transition from an ABA-based program at Beacon to the district's recommended program, which employed the Treatment and Education of Autistic and related Communication Handicapped Children (TEACCH) methodology, that the IEP did not include parent counseling and training services, and that the functional behavioral assessment (FBA) and BIP developed by the district were inadequate.... [T]he assigned school was inappropriate for the student because: it did not offer the "intensive, cohesive, and properly supervised 1:1 instruction and behavioral support" that the student required; the class composition and staff in the assigned 6:1 special class would have changed from summer 2011 to September 2011; the ...

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