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J.C. v. New York City Department of Education

United States District Court, S.D. New York

March 31, 2015

J.C. and J.F., individually and on behalf of C.C., Plaintiffs,


PAUL G. GARDEPHE, District Judge.

Plaintiffs J.C. and J.F. 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 seg. Plaintiffs seek to overturn a State Review Officer's decision finding that the individualized education program the DOE recommended for Plaintiffs' son C.C. was appropriate. The parties have filed cross-motions for summary judgment. For the reasons stated below, Defendant's motion will be granted and Plaintiffs' motion will be denied.



"Under the IDEA, states receiving federal funds are required to provide all children with disabilities' a free appropriate public education.'" Gagliardo v. Arlington Cent. Sch. Dist. 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). A "free appropriate public education" ("FAPE") must include "special education and related services' tailored to meet the unique needs of a particular child, ... and be reasonably calculated to enable the child to receive educational benefits[]'...." Walczak, 142 F.3d at 122 (citations omitted) (quoting 20 U.S.C. § 1401(9); Bd. ofEduc. v. Rowley. 458 U.S. 176, 207 (1982)).

Special education and related services under the IDEA are provided by a school district pursuant to an annual individualized education program or "IEP." Walczak, 142 F.3d at 122; see also 20 U.S.C. § 1414(d). In New York, local committees on special education ("CSE") are responsible for developing appropriate IEPs. Walczak, 142 F.3d at 123. "In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Gagliardo. 489 F.3d at 107-08 (citing N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 8, § 200.1(ww)(3)(i)).

"If a New York parent believe[s] an IEP is insufficient under the IDEA, ' he or she may challenge it in an impartial due process hearing... before an [Impartial Hearing Officer, or "IHO"] appointed by the local board of education.'" M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (alterations in M.H.) (citation omitted) (quoting 20 U.S.C. § 1415(f); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003) (internal quotation marks and citation omitted) (citing N.Y. Educ. Law § 4404(1))). "An IHO's decision may, in turn, be appealed to a State Review Officer (SRO'), who is an officer of the State's Department of Education." Id . (citing Grim, 346 F.3d at 379-80) (footnote omitted). "Generally, [a] party aggrieved' by the findings of the SRO [has] the right to bring a civil action' in either state or federal court." Id . (quoting 20 U.S.C. § 1415(i)(2)(A)).

Parents pursuing an administrative challenge "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo, 489 F.3d at 111 (citing Sch. Comm. of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 370 (1985)). Such reimbursement covers "expenses that [the school district] should have paid all along.'" T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington. 471 U.S. at 370-71).

Courts considering a reimbursement request for the cost of private school tuition must consider (1) whether the "school district fail[ed] to provide a FAPE"; (2) whether "the private [school] placement was suitable"; and (3) whether the "equities" warrant a reimbursement award in full or in part. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009); see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-64 (2d Cir. 2006).


A. C.C.'s Background

In June 2011, C.C. was a 12-year-old boy who had been diagnosed with autism and classified as a student with a speech and language impairment. (Plaintiffs' Local Rule 56.1 Statement ("Pltf. R. 56.1 Stmt.") (Dkt. No. 31) f 1; Pltf. Ex. A (Dkt. No. 17) at l)[1] He has deficits in his communication, sensory, and fine motor skills, and has social and academic difficulties due to problems with relatedness and social learning. (Impartial Hearing Transcript ("Tr.") (Dkt. No. 17) at 196, 256-57, 583, 600)

For the school years 2006-07 through 2010-11, C.C. attended the Rebecca School, a private special education school. (Tr. 160, 264) Plaintiffs rejected IEPs for the 2008-09, 2009-10, and 2010-11 school years and obtained tuition reimbursement from the DOE for C.C.'s education at the Rebecca School during these years.[2] See Tr. 5-10.

Believing that the Rebecca School would not adequately address C.C.'s future educational needs, Plaintiffs sought a new school placement for the 2011-12 school year. C.C.'s parents sought a "more challenging" learning environment for C.C., with "stronger peers" and "more direct academic instruction." (Tr. 213-14, 801-02)

In January 2011, Plaintiffs entered into an enrollment contract with the Forum School - a private special education school located in Waldwick, New Jersey - for the 2011-12 school year. (Pltf. Ex. S (Dkt. No. 17); Pltf. Ex. U (Dkt. No. 17) at 1-2; Tr. 802-803) At that time, Plaintiffs provided a one-month tuition deposit of $4, 463 to the Forum School, securing C.C.'s place at the school for the 2011-12 school year. (Pltf. Ex. U (Dkt. No. 17) at 2; Tr. 802-03)

B. The CSE's IEP

On March 2, 2011, the DOE convened a CSE meeting for the purpose of developing an IEP for C.C. for the 2011-12 school year. (Pltf. R. 56.1 Stmt. (Dkt. No. 31) 116) Attendees at the meeting included C.C.'s mother; Marguerite Cohen, C.C.'s teacher at the Rebecca School; and Rose Fochetta, a DOE psychologist. (Def. Ex. 8 (Dkt. No. 17); Defendant's Local Rule 56.1 Statement ("Def. R. 56.1 Stmt.") (Dkt. No. 37) ¶¶ 4-6)

At the meeting, all agreed that a twelve-month school year would be appropriate for C.C, in order to avoid "the likelihood of regression over the summertime." (Tr. 205, 256-57; Def. Ex. 7 (Dkt. No. 17) at 15) The attendees also discussed the appropriate class size for C.C, and considered student-teacher-paraprofessional ratios of 12:1:1, 8:1:1, and 6:1:1. (Tr. 205-06) The CSE concluded that the 12:1:1 and 8:1:1 ratios would be "too large... to meet [C.C.'s educational] needs."[3] (Tr. 205-06; Def. Ex. 7 (Dkt. No. 17) at 15) C.C.'s mother expressed concern, however, that placement in a 6:1:1 classroom would mean that C.C. would be grouped with lower functioning children. C.C.'s mother requested that C.C. be placed with higher functioning peers. (Pltf. R. 56.1 Stmt. (Dkt. No. 31) ¶¶ 19-20; Def. R. 56.1 Stmt. (Dkt. No. 37) ¶ 7; Def. Ex. 4 (Dkt. No. 17); Tr. 241-42)

At the conclusion of the March 2, 2011 CSE meeting, the CSE provided C.C.'s mother with a "Notice of Recommended Deferred Placement: Annual Review or Reevaluation." (Tr, 219-20; Def Ex. 5 (Dkt. No. 17)) The notice states that, "[a]s a result of the [CSE] meeting, the IEP Team" recommends that C.C attend a "special class in [a] specialized school district, " and that he receive speech services, physical and occupational therapy, and counseling services. (Id.) The notice advises C.C.'s mother that, "[although [C.C] [has] the right to an immediate placement in this program, the IEP Team believes it may be in the best interest of the child to defer placement in this program until June 15th, 2011, " because "this IEP is developed for [the] 2011-2012 school year." (Id.) The notice makes clear that deferring placement "means that your child will continue in his/her current educational placement." (Id.) The notice further directs C.C.'s mother to "contactf] Nancy Funke... for assistance in arranging an appointment" to "visit a sample of the type of program recommended for [C.C.], " and states that C.C.'s mother "will be receiving a Final Notice of Recommendation notifying [her] of a specific [placement] site, on or before June 15th, 2011." (Id.)

The notice states that "[i]f [C.C.'s mother] [does] not agree with the [CSE's] recommendation, [she] [has] the right to request mediation or an impartial hearing." (Id.) C.C.'s mother signed the notice and returned a copy to the DOE, [4] but she did not respond to a question asking whether she agreed or disagreed with the CSE's recommendation to defer placement in the proposed program until June 15, 2011. (Id.) C.C.'s mother did, however, check a box at the bottom of the notice stating, "I disagree with the Program Recommendation." (Id. (emphasis in original))

The IEP formulated at the March 2, 2011 CSE meeting states that C.C. will begin his education under the IEP on July 1, 2011. (Def. Ex. 7 (Dkt. No. 17) at 2) The IEP recommends that C.C. be placed in a twelve-month program in a 6:1:1 classroom, and that he receive speech services, physical and occupational therapy, and counseling. (Def. Ex. 7 (Dkt. No. 17) at 1, 16) The IEP states that C.C.'s "[b]ehavior does not seriously interfere with instruction" and that it "[c]an be addressed by [the] special education teacher."[5] (Id. at 4) Accordingly, the IEP does not include a functional behavioral assessment ("FBA") or a behavioral intervention plan ("BIP").[6] (Tr. 192-93, 274-75; Def. Ex. 7 (Dkt. No. 17) at 4) The IEP likewise does not provide for parental training or counseling. See Def. Ex. 7 (Dkt. No. 17). It also does not provide a specific school placement site for C.C. See id. Additionally, although the IEP does not reflect C.C.'s parents' concern that he be functionally grouped with appropriate peers (see id.), a "District 75 Placement Office Referral Form" for C.C. conveys the parents' desire for a higher functioning placement. (Def. Ex. 4 (Dkt. No. 17) at 1 ("Parents indicated that in the past, they have been offered classes that are too low functioning. They are seeking a higher functioning placement."))

C. DOE Placement at P811M at P101M

On June 10, 2011, the DOE sent C.C.'s parents a Final Notice of Recommendation ("FNR") offering C.C. a 12-month, 6:1:1 special education placement at "P811M [at] P101M" for the 2011-12 school year.[7] (Def. R. 56.1 Stmt. (Dkt. No. 37) If19; Def. Ex. 3 (Dkt. No. 17)) The notice states that it constitutes "the final recommendation for the 2011-2012 school year, " and that "[i]f the [DOE] [does] not hear from [C.C.'s parents] within 10 days of the date of th[e] letter, the recommended services will be put into effect, " unless the parents "request another IEP [mjeeting, mediation, or impartial hearing, before this date...." (Def. Ex. 3 (Dkt. No. 17))

The Final Notice of Recommendation identifies C.C.'s placement for the 2011-12 school year as "P811M [at] P101M." (Id.) "P811M is a self-contained, specialized school with multiple locations." (Def. R. 56.1 Stmt. (Dkt. No. 37) U 21) "P811M refers to the main site" (id.), which is located at 82nd Street and West End Avenue in Manhattan. (Tr. 299) The school site that the DOE recommended for C.C. - P811M at P101M - is an "offsite location" of P811M located on 111th Street between Lexington and Park Avenues in Manhattan. (Def. R. 56.1 Stmt. (Dkt. No. 37) ¶ 21; Tr. 298-99)

P811M at P101M "was closed for the summer of 2011 due to construction, " but P811M's main site, as well as PI49 - another offsite location of P811M that is located at 118th Street and Lenox Avenue in Manhattan - "were open for the summer and educated all students assigned to [P811M at P101M] for the summer months." (Def. R. 56.1 Stmt. (Dkt. No. 37) ¶ 22; Tr. 298-99) The June 10, 2011 Final Notice of Recommendation sent to Plaintiffs does not disclose that PI 01M will be closed for the summer, nor does it state which summer re-location site C.C. is assigned to. See Def. Ex. 3 (Dkt. No. 17).

On June 16, 2011, C.C.'s mother faxed a letter to the Chairperson of the CSE, stating that she had "called [P101M] [that] morning and asked to set up a time to visit [C.C.'s] classroom." (Pltf. Ex. J (Dkt. No. 17) at 1) She stated that she "spoke with Michael Santos, Transportation Coordinator [for P101M], who said that it is impossible for [her] to visit the proposed placement as the school is closed for the summer and there will be no students." (Id.) In her June 16, 2011 letter, C.C.'s mother further states:

We are concerned that [C.C] was not properly evaluated and assessed in preparation for the IEP development and, for a number of reasons, the program recommended and [the] proposed IEP are not appropriate for [C.C] He continues to require more intensive and specialized teacher support, as well as extended day services, to address his unique deficits. In addition, although we requested special education transportationf, ] it was not given to us on the IEP.
Unless the DOE offers [C.C] an appropriate placement and program, please be advised that [C.C] will attend[] The Forum School in Waldwick, N.J. for the 2011-2012 twelve[-]month school year, as a component of his/her educational program. [A number of] additional services will also continue to be provided for [C.C] as they are appropriate for [C.C.'s] specific needs.... For the 2011-2012 school year, this letter will serve as notice that I intend to provide these services and will seek to hold the [DOE] financially responsible for said services.


In a June 30, 2011 letter, Plaintiffs again reject the DOE's proposed placement. (Pltf. Ex. B. (Dkt. No. 17) at 1) Plaintiffs demand a due process hearing and reiterate that C.C. will be "attending The Forum School... for the 2011-2012 school year." (Id. at 1; Def. R. 56.1 Stmt. (Dkt. No. 37) ¶ 39) C.C. began his studies at the Forum School on July 5, 2011. See Pltf. Ex. V (Dkt. No. 17).


A. Plaintiffs' Due Process Complaint

Plaintiffs filed an amended due process complaint on July 11, 2011. (Pltf. Ex. A (Dkt. No. 17)) Plaintiffs assert that the DOE has not provided C.C with a FAPE for the 2011-12 school year, and they seek tuition reimbursement for C.C.'s education at the Forum School for that year. (Id. at 1) Plaintiffs allege, inter alia, that

(1) the proposed program in the March 2011 IEP "is not reasonably calculated' to provide [C.C] with a FAPE";
(2) the "DOE failed to timely develop and rely upon critical assessment reports that should have been used as the basis for establishing present levels' as part of the fundamental development of the IEP";
(3) the "DOE failed to offer any, much less appropriate, special education transportation";
(4) the "DOE's recommended school for the twelve-month 2011-2012 school year is not even open during the summer months";
(5) "the recommended placement was not ready, willing and able to timely fulfill [C.C.'s] IEP service mandate by trained and properly supervised personnel";
(6) the March 2011 IEP did not provide "for individualized parent counseling and training as a related service for students who have been diagnosed on the autism spectrum";
(7) the "DOE failed to develop an appropriate Functional Behavior Assessment ("FBA") [or Behavioral Intervention Plan ("BIP")], despite [C.C.'s] interfering behaviors";
(8) "the proposed IEP lacks goals and objectives to address and remediate [C.C.'s] [interfering] behaviors";
(9) the "DOE failed to appropriately communicate with [C.C.'s] teachers and related service providers as part of developing [his] program and placement";
(10) the "DOE engaged in impermissible predetermination' in the IEP development process, precluding any meaningful participation from [C.C.'s] parents and/or other team members";
(11) the IEP does not include appropriate goals or methods of measuring C.C.'s goals;
(12) the "DOE failed to offer adequate levels and frequencies of related services";
(13) the "DOE failed to adequately consider [C.C.'s] need for consistency in his program given his transition and generalization deficits - no transition plan, appropriate or otherwise, was discussed, recommended or developed by the DOE;
(14) the "DOE failed to meaningfully include [C.C.'s] parents in the IEP development and placement selection process";
(15) the "DOE's proposed IEP for 2011-2012 is sufficiently similar to its previous IEP that was already adjudicated as failing to provide a FAPE";
(16) the "DOE failed to discuss, develop, recommend or offer a specific placement location at [C.C.'s] IEP meeting";
(17) the "DOE's recommended placement is not ready, willing and able to deliver related services";
(18) the "students in the proposed classroom are grouped primarily by age and not by functioning level and/or their classifications"; and
(19) the "DOE failed to timely offer a placement recommendation - appropriate or otherwise - for [C.C.]."

(Pltf. Ex. A (Dkt. No 17) at 1-8) Plaintiffs also contend that C.C.'s services at the Forum School are "reasonably calculated' to provide meaningful educational benefits to [C.C], and thus are reimbursable...." (Id. at 8)

B. The Impartial Hearing

The impartial hearing began on September 7, 2011, and concluded on April 19, 2012, after eight days of hearings. The DOE offered testimony from (1) Rose Fochetta, a school psychologist who was a member of the CSE that formulated C.C.'s IEP (Tr. 157-290); (2) Michael Santos, the Transportation Coordinator at P811M at P101M (Tr. 297-316); and (3) Bonnie Segal, a special education teacher in a 6:1:1 classroom at P811M. (Tr. 317-377, 931-92)

Fochetta - who had helped develop C.C.'s IEPs for 2008 and 2009 (Tr. 160) - testified about the March 2, 2011 CSE meeting at which C.C.'s IEP for the 2011-12 school year was formulated. She stated that the CSE reviewed a number of documents at that meeting, including records from the Rebecca School and a psychodiagnostic evaluation submitted by C.C.'s parents. The CSE also discussed C.C.'s academic management needs, and his social and emotional state. (Tr. 160-65, 176-91) Fochetta testified that, in preparing C.C.'s IEP, the CSE "focused... on the [8:1:1] ...

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