United States District Court, S.D. New York
K.R. and S.R. individually, and on behalf of MATTHEW R., a minor, Plaintiffs,
THE NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
Lawrence D. Weinberg, Esq., Bloomfield, NJ, For Plaintiffs.
Andrew J. Rauchberg, Charles E. Carey, Neil A. Giovanatti, Assistant Corporation Counsel, New York, NY, For Defendant.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Plaintiffs K.R. and S.R. ("Parents"), individually and on behalf of their minor child Matthew R., bring this action against the New York City Department of Education ("DOE") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). Plaintiffs seek review of the July 5, 2013 administrative decision of the State Review Officer ("SRO") reversing the August 1, 2012 decision of the Impartial Hearing Officer ("IHO") awarding reimbursement and/or direct payment of the cost of Matthew's 2011-2012 educational program in a private school. Plaintiffs move for summary judgment, seeking an order reversing the SRO decision and reinstating the IHO's award of reimbursement and/or direct payment. The DOE cross-moves for summary judgment, seeking an order dismissing the plaintiffs' complaint in its entirety and upholding the SRO decision. For the reasons set forth below, plaintiffs' motion for summary judgment is GRANTED, and the DOE's motion is DENIED.
II. STATUTORY FRAMEWORK AND APPLICABLE LAW
Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education" ("FAPE") and "to ensure that the rights of children with disabilities and parents of such children are protected." States receiving federal funding under the IDEA are required to make a FAPE available to all children with disabilities residing in the state. "To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child." The IEP "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."
New York has assigned responsibility for developing IEPs to local Committees on Special Education ("CSEs"). The CSE is comprised of the student's parents, a regular or special education teacher, 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. The CSE "examine[s] the student's level of achievement and specific needs and determine[s] an appropriate educational program."
The CSE does not select the specific school in which the student will be placed, and therefore the IEP does not specify a particular school. Rather, the DOE provides "general placement information in the IEP, such as the staffing ratio and related services, and then convey[s] to the parents a final notice of recommendation, or FNR[, ] identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it."
If a parent believes the IEP does not comply with the IDEA, the parent may file a due process complaint with the DOE, requesting an impartial hearing. Districts are then permitted a thirty-day "resolution period" to address any alleged deficiencies without penalty. Once the resolution period has run, a parent may continue to a due process administrative proceeding before an IHO. This decision may be appealed to an SRO. Either party then has the right to have the SRO's decision reviewed by bringing a civil action in state or federal court. The district court "shall receive the records of the administrative proceedings, " "hear additional evidence, " and "grant such relief as the court determines is appropriate" based on "the preponderance of the evidence."
Parents who believe their child has been denied a FAPE may unilaterally place their child in an appropriate private school and seek tuition reimbursement from the state. Under the Burlington-Carter test, the parents are entitled to reimbursement if "the school district's proposed placement violated the IDEA, (2) the parents' alternative private placement was appropriate, and (3) equitable considerations favor reimbursement."
The first prong of the Burlington-Carter test requires the Court to review both the procedural and substantive adequacy of the underlying decision. The procedural inquiry examines "whether the state has complied with the procedures set forth in the IDEA.'" The substantive inquiry asks whether the IEP was "reasonably calculated to enable the child to receive educational benefits.'" Procedural violations entitle the parents to reimbursement "only if they impeded the child's right to a FAPE, ' significantly impeded the parents' opportunity to participate in the decision-making process, ' or caused a deprivation of educational benefits.'" "Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." "Substantive inadequacy automatically entitles the parents to reimbursement."
If the Court determines that either a procedural or substantive inadequacy denied the child a FAPE, the parents bear the burden of demonstrating that their alternative private placement was appropriate; that is, whether it is "reasonably calculated to enable the child to receive educational benefits.'" However, parents are "not required... to prove that the private placement furnishes every special service necessary." Finally, the parents must demonstrate that the equities favor reimbursement. "Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA."
A district court must first determine the scope of the issues properly before it for review. "The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice... unless the other party agrees otherwise." Thus, the scope of the inquiry of the IHO - and therefore of the SRO and a reviewing court- is limited to matters raised in the hearing request or agreed to by the DOE. However, the Second Circuit has clarified that "the waiver rule is not to be mechanically applied" and the "key to the due process procedures is fair notice and preventing parents from sandbag[ging] the school district' by raising claims after the expiration of the resolution period." The IDEA does not require "that alleged deficiencies be detailed in any formulaic manner" and "the waiver rule limits only what may be raised at the due process hearing." Thus, "arguments not directly raised in a Due Process Complaint [are] not foreclosed" if "(1) the Due Process Complaint provide[s] fair notice to the Department of' the argument at issue; (2) both the IHO and SRO reach the issue on the merits, giving [the federal court] a record for review'; or (3) the argument goes to the heart of this dispute.'"
A school district is not required to designate a specific school in an IEP, but nevertheless may not assign a child to a school that cannot satisfy the IEP's requirements. However, in assessing whether there has been a substantive violation, "[b]oth parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision." "[A]n IEP must be evaluated prospectively as of the time it was created. Retrospective evidence that materially alters the IEP is not permissible." Further, "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement."
There has been some disagreement among district courts in implementing the Second Circuit's holding in R.E. v. New York City Department of Education.  Some courts have held that any evidence regarding the proposed placement should be disregarded as "retrospective." Other courts have allowed such evidence "if the alleged defects were reasonably apparent to either the parent or the school district when the parent rejected the placement, regardless of whether [the student] ever actually enrolled...." All courts appear to agree that a challenge to a proposed placement will be successful where the evidence establishes that the placement would be unable to satisfy the IEP's requirements. It seems clear, however, that in order to determine if a proposed placement will be unable to comply with a student's IEP, evidence regarding the proposed placement must be considered - a categorical ban on any evidence relating to the proposed placement would frustrate that inquiry and allow a school district "carte blanche" to assign a child to a school that could not fulfill the requirements of that child's IEP. Moreover, this is entirely consistent with the holding of R.E. v. New York City Department of Education, which concluded:
We reject... a rigid "four corners" rule prohibiting testimony that goes beyond the face of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP.... For example, ... if a student is offered a staffing ratio of 6:1:1, a school district may introduce evidence explaining how this structure operates and why it is appropriate.
Thus, while the IEP must be evaluated prospectively and cannot be altered by retrospective testimony about what a school district might have done, testimony explaining how the IEP would be implemented is ...