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S.E. v. New York City Department Of Education

United States District Court, S.D. New York

July 6, 2015

S.E., individually and on behalf of her minor child G.E., Plaintiff,
NEW YORK CITY DEPARTMENT OF EDUCATION, and CARMEN FARIÑ A, in her official capacity as Chancellor of the New York School District, Defendants

Decided July 2, 2015.

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[Copyrighted Material Omitted]

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For S. E., Individually, S. E., On behalf of her minor child G.E., Plaintiffs: Lisa Isaacs, LEAD ATTORNEY, Law Offices of Lisa Isaacs, P.C., Yardley, PA.

For New York City Department Of Education, Carmen Farina, In her official capacity as chancellor of the New York School District, Defendants: Neil Anthony Giovanatti, New York City Law Department, New York, NY.

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LORETTA A. PRESKA, Chief United States District Judge.

Plaintiff S.E., on behalf of her minor child, brings this action against the New York City Department of Education (the " DOE" ) pursuant to the Individuals with Disabilities Education Act (the " IDEA" ), 20 U.S.C. § § 1400, et seq., and Article 89 of the New York State Education Law, N.Y. Educ. L. § 4401 et seq., seeking reversal of the January 23, 2014 decision of the Impartial Hearing Officer (" IHO" ) and the April 18, 2014 decision of the State Review Officer (" SRO" ), both denying private school tuition funding for her minor daughter, G.E. Both parties now move for summary judgment. For the following reasons, the Court GRANTS Defendants' motion [dkt. no. 20] and DENIES Plaintiff's motion [dkt. no. 14].


Congress enacted the IDEA " to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400 (d) (1) (A) - (B); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007). States receiving federal funds under the IDEA are required to provide a free appropriate public education (" FAPE" ) to all

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children with disabilities. Id. § 1412 (a)(1)(A); see also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379, 74 Fed.Appx. 137 (2d Cir. 2003). A FAPE should " emphasize[] special education and related services designed to meet [a disabled child's] unique needs and prepare [the child] for further education, employment, and independent living." 20 U.S.C. § 1400 (d)(1)(A). To this end, the IDEA requires that the relevant local or state educational agency provide an individualized education program (" IEP" ) at least annually for each disabled student. Id. § 1414 (d)(2)(A).

An IEP is a written statement that " sets out the child's present educational performance, establishes annual short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686; see also 20 U.S.C. § 1414 (d) (1) (A). For a child's IEP to be adequate under the IDEA, it must be " likely to produce progress, not regression, and [must] ... afford[] the student with an opportunity greater than mere trivial advancement." T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (internal citation omitted). However, it need " not ... furnish every special service necessary to maximize each handicapped child's potential." Grim, 346 F.3d at 379 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 199, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Put differently: an IEP is adequate if it offers a " basic floor of opportunity." Rowley, 458 U.S. at 189-90. The IEP is " [t]he centerpiece of the [IDEA]'s educational delivery system." Honig, 484 U.S. at 311.

In New York State, the formulation of an IEP is delegated to a local Committee on Special Education (" CSE" ), consisting of school board representatives, educators, clinicians, and parents. N.Y. Educ. L. § 4402. " 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 (internal citation omitted). A parent is a " member" of the CSE that formulates his or her child's IEP, N.Y. Educ. L. § 4402(1)(b), and the IDEA requires that he or she be provided an opportunity to present complaints with respect to the identification, evaluation, or placement of his or her child during the IEP process. 20 U.S.C. § 1415(b) (6) (A).

The IEP need not name a specific school placement for the child. J.W. ex rel. Jake W. v. N.Y.C. Dep't of Educ., No. 13-CV-6905 (JPO), 95 F.Supp.3d 592, 2015 WL 1399842, at *2 (S.D.N.Y. Mar. 27, 2015) (citing T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 419 (2d Cir. 2009)). The DOE's practice " is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation ... identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it ." Id. (quoting R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 191 (2d Cir. 2012)).

A parent dissatisfied with a school district's recommended program may unilaterally place his or her child in a private school and then seek retroactive tuition reimbursement from the school district. 20 U.S.C. § 1412 (a) (10) (C); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). See also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (" Burlington" ); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter,

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510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (" Carter" ). To determine whether a parent is entitled to reimbursement, a court applies the three-pronged Burlington/Carter test, " which looks to (1) whether the school district's proposed plan will provide the child with a [FAPE]; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." J.W., 2015 WL 1399842, at *2 (quoting C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014)).

If a parent in New York " believe[s] an IEP is insufficient under the IDEA," he or she " may challenge it in an 'impartial due process hearing,' 20 U.S.C. § 1415(f), before an [IHO] appointed by the local board of education." Grim, 346 F.3d at 379 (quoting N.Y. Educ. L. § 4404(1)). At the hearing before the IHO, " the school district has the burden of demonstrating the appropriateness of its proposed IEP." Id. An IHO's decision may, in turn, be appealed to a SRO, who is an officer of the State's Department of Education. Id. at 379-80. A party " aggrieved" by the findings of the SRO " shall have the right to bring a civil action" in either state or federal court. 20 U.S.C. § 1415 (i) (2) (A).


A. Factual Background

1. G.E.'s Disability

G.E. is a nine-year-old New York City resident classified with autism by the New York City Department of Education (" DOE" ). (Ex. B:l; Tr. 107.)[1] G.E. has significant cognitive deficits, delays at her fine and gross motor development, and behavioral issues, including becoming frustrated easily and singing loudly as a coping mechanism. (Ex. B: l-4.) With the exception of five weeks in 2010 when G.E. attended a DOE school, G.E. has attended Seton every year since kindergarten during the 2009-2010 school year. (Ex. L: 3; Tr. 120-21.) It is undisputed that G.E. had an eligible disability during the 2013-2014, twelve-month school year (beginning in July 2013), entitling her to special education services and supports to provide her with a FAPE.

2. Individualized Education Program

On May 17, 2013, the DOE convened a CSE meeting to formulate an IEP for G.E. for the 2013-2014 school year. (See Ex. B.) Attending the meeting were Plaintiff, Plaintiff's counsel, a Seton teacher, and various DOE educators. (Id. at 17.) The meeting resulted in an IEP for G.E. for the 2013-2014 school year (the " May 2013 IEP" or the " IEP" ).

After a thorough review of G.E.'s then-current academic, social, and physical development (see id. at 1-5), the May 2013 IEP makes a number of recommendations as part of G.E.'s special education program. The IEP calls for: (a) enrollment in a twelve-month program in a special education class with a ratio of up to six students to one special education teacher and one classroom professional (" 6:1:1" ); (b) five thirty-five minute adapted physical education sessions per week; (c) one thirty-minute

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counseling services session per week; (d) one thirty-minute individual and two thirty-minute group occupational therapy sessions per week; (e) two forty-five minute parent counseling and training sessions per year; (f) one thirty-minute physical therapy session per week; (g) one sixty-minute individual, one thirty-minute individual, and two thirty-minute group speech-language (" S/L" ) therapy sessions per week (with (c)-(f), the " related services" ). (Id. at 12-13.)

The IEP contains numerous goals and short-term objectives for G.E. to meet in her 6:1:1 class and related service therapies. (Id. at 6-11.) It also recommends strategies for successful implementation of the special education program; specifically, the IEP notes that " [G.E.] requires a structured classroom environment free of external and extraneous stimuli, a higher teacher to student ratio[], prompting, redirection, token economy, and visual benefits." (Id. at 5.) Finally, though not specifically recommending any interaction with non-disabled peers, the IEP states that, " [w]ith appropriate adult supervision, [G.E.] is able to participate in extracurricular and other nonacademic activities with typically developing peers." (Id. at 14.) Plaintiff did not, and does not, challenge the May 2013 IEP.

3. Placement

In June 2013, following the CSE meeting and resultant IEP, Plaintiff received from the DOE three separate documents purporting to be a Final Notice of Recommendation (" FNR" ). (See Tr. 109.) The first two FNRs were sent by the DOE in error.[2] Plaintiff received the final, corrected FNR on June 13, 2013. (Ex. F. (the " FNR" ).) The FNR provided for G.E.'s placement in a specialized 6:1:1 class at P373 at P.S. 40, 91 Henderson Avenue, Staten Island, N.Y. (" P.S. 373" ).[3]

P.S. 373 is a self-contained specialized school. (See Tr. 30.) For the 2013-2014 school year, P.S. 373 had thirteen classes, all of which are 6:1:1 special education classes. (Id. at 19, 38.) Each of P.S. 373's teachers has a master's degree in special education. (Id. at 29.) P.S. 373 provides its students with S/L therapy, occupational therapy, physical therapy, and counseling, as recommended in each student's IEP. (Id. at 19.) The school typically uses DOE employees to conduct the ...

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