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A.P. v. New York City Department of Education

United States District Court, S.D. New York

July 30, 2015

A.P. and S.P., on behalf of A.P., a minor child, Plaintiffs,



On January 24, 2014, plaintiffs-appellants A.P. and S.P. ("plaintiffs" or "Parents") filed this action on behalf of their minor child A.P. ("A.P." or "Student") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. ยงยง 1400 et seq. (ECF No. 1 ("Compl.").) Plaintiffs seek review of the October 25, 2013 administrative decision of State Review Officer Justyn P. Bates ("SRO") that denied tuition reimbursement for the Student's attendance at a private school during the 2012-2013 school year. The SRO's decision reversed a July 12, 2013 decision of Impartial Hearing Officer Nancy Lederman ("IHO").

On October 7, 2014, plaintiffs moved for summary judgment, seeking an order reversing the SRO's decision and reinstating the IHO's award of tuition reimbursement. (ECF No. 9.) On December 8, 2014, defendant-appellee the New York City Department of Education ("defendant" or "DOE") cross-moved for summary judgment, seeking an order affirming the SRO's decision and dismissing plaintiffs' complaint. (ECF No. 14.) These motions became fully briefed on February 13, 2015. For the reasons set forth below, plaintiffs' motion for summary judgment is DENIED and the DOE's cross-motion for summary judgment is GRANTED.


A. The Student

A.P., born on June 20, 1997, has been classified by the DOE as having a speech or language impairment. (Ex. 3-1.[1]) He has been diagnosed with Attention Deficit Hyperactive Disorder ("ADHD"), Dyspraxia, and Sensory Integration Disorder. (Id.; Ex. 9-1.) A.P. takes medication for his ADHD as well as for anxiety. (Ex. 3-2.) A.P. did not speak his first words until he was three or four years old (Ex. 10-1), and tested at the fifth percentile or lower in each of four different subtests of expressive language (Ex. 10-2). A.P. engages in "silly" behaviors, such as inappropriate laughing in the classroom. (See Ex. 3-1, Tr. 87-88.)

A.P. has attended the Aaron Academy ("Aaron"), a private school, since the 2004-2005 school year. (See Tr. 199; see also Ex. 8-1.) On February 27, 2012, plaintiffs unilaterally re-enrolled A.P. at Aaron for the 2012-2013 school year. (Ex. E.)

B. The CSE Meeting, the IEP, and the Recommended Placement

On April 23, 2012, the DOE convened a Committee on Special Education ("CSE") meeting to formulate an individualized education program ("IEP") for A.P. for the 2012-2013 school year. (See Ex. 3-10; Tr. 28.) Participants at the April 2012 CSE meeting included (1) Plaintiff A.P. ("Mr. P"), the Student's father; (2) Rose Fochetta, a DOE school psychologist and district representative; (3) Feng Ye, a DOE special education teacher; (4) Matthieu Moss, A.P.'s former teacher at Aaron; and (5) Carmen Garcia, a parent member. (See Ex. 3-12.) Ms. Fochetta is a New York State certified school psychologist with a bachelor's degree in elementary education, a master's degree in educational psychology, and a professional diploma in school psychology. (Tr. 26.) Ms. Ye is certified in special education for kindergarten through twelfth grades. (Tr. 38.)

Ms. Fochetta testified that prior to the CSE meeting she gathered and reviewed A.P.'s evaluations-including a social history update (Ex. 8), an educational report (Ex. 9), a speech/language ("S/L") evaluation (Ex. 10), and the most recent school reports from Aaron (Exs. 6 and 7). (Tr. 31.) Based on these reports, Ms. Fochetta and Ms. Ye created a draft IEP for the participants' review and use at the meeting. (Tr. 39-41, 69; Ex. 4.)

Ms. Fochetta testified that she provided Mr. P with a copy of the draft IEP at the CSE meeting, and read the relevant portions of the draft IEP to Mr. Moss, who participated by phone. (Tr. 39-40.) Ms. Fochetta also placed a copy of the documents that she reviewed in preparation for the CSE meeting on the table for reference. (Tr. 39, 70.) The group then went through the draft IEP section by section, during which Ms. Fochetta and Ms. Feng took notes both on the draft IEP and on the meeting minutes form. (Id. at 40, 43, 49-51; see also Ex. 4 (draft IEP with handwritten notes); Ex. 5 (meeting minutes form).) Ms. Fochetta testified that, in her opinion, everyone was given an opportunity to fully express their concerns and thoughts at the CSE meeting. (Tr. 65.) Ms. Fochetta further testified that plaintiff Mr. P was "very communicative" (Tr. 46) and "fully engaged" (Tr. 79) during the meeting-and that both Mr. P and Mr. Moss relayed their perspectives and concerns about the Student and various sections of the IEP (see Tr. 43, 51, 54, 57, 60-61, 76-77, 79-80). Mr. P's concerns are expressly noted on the meeting minutes form and in the IEP. (Exs. 3, 5-1.) Ms. Fochetta testified that team chose an ICT placement after discussing the Student's support needs and goals at the CSE meeting-and considering the alternative option of placing the Student into "a self-contained class or a small classroom setting, throughout the day." (Tr. 59-61.)

Plaintiff Mr. P testified that the CSE meeting was "pretty short" and that "it was pretty clear" "that it was just going through the motions of completing a document to reach the goal of this integrated class ICT or CTT program." (Tr. 273.) He testified that nobody limited his ability to participate in the meeting-but his contributions were given little, if any, weight. (See Tr. 301-03.) According to Mr. P, Ms. Fochetta and Ms. Ye told him that they had "no choice" but to recommend the ICT. (Tr. 275.) However, Mr. P also testified that there were "heated" discussions regarding the recommendation for ICT services (id.)-and acknowledged that both he and Mr. Moss participated in those discussions, expressing their disagreement with the recommendation (Tr. 273-75). In addition, Mr. P testified that the CSE engaged in a "big discussion" over the Student's inability to perform in a general education setting. (Tr. 287-88.) Mr. P denied receiving a copy of the draft IEP-and testified that he did not ask for one. (See Tr. 271-72, 307.)

As a result of the April 2012 CSE meeting, the CSE team developed an IEP, which recommended that A.P. be placed in an integrated co-teaching ("ICT") class for core academic classes-mathematics, English/language arts, social studies, and science-in a general education school.[2] (Ex. 3-6-3-7.) In addition, the CSE recommended that A.P. receive three 40-minute sessions of speech-language ("S/L") therapy per week (one on an individual basis and two in the classroom)[3], two 40minute sessions of occupational therapy (one on an individual basis and one in the classroom), and two 40-minute sessions of counseling (one on an individual basis and one in the classroom). (See Exs. 3-7, 3-10, 4-4, 5-2.) The IEP indicates that the CSE team considered other placement options-special classes in a community school with student-to-teacher ratios of 12:1 and 12:1:1-but rejected those options as overly restrictive. (Ex. 3-11.) The IEP notes that A.P. "functions in the average range in all academic areas and as such, he should have full access to non disabled peers throughout the school day." (Id.)

The final version of the IEP contains a substantial number of additions and changes as compared to the draft IEP. (Compare Ex. 3 with Ex. 4.) The final version contains information provided by plaintiff Mr. P and Mr. Moss at the CSE meeting. For example, the IEP notes that Mr. P was concerned with A.P.'s tendency to rush and be silly in school (Ex. 3-1), A.P.'s different interests from his peers (Ex. 3-2), and A.P.'s need for consistent support with occupational therapy (Ex. 3-2). The IEP also reflects that Mr. P was concerned that an ICT class would not provide A.P. with sufficient support. (Ex. 3-11; see also Tr. 45.) In addition, the "Social Development, " "Physical Development, " "Management, " "Testing Accommodations, " and "Coordinated Set of Transition Activities" sections of the IEP were supplemented and revised. (See Exs. 3, 4.) The "Annual Goals" section- which is blank in the draft IEP-was also developed at the meeting. (See Exs. 3-3-3-6, 5-2; Tr. 47-48 (Ms. Fochetta: the annual goals were "developed at the meeting, cooperatively, with everyone participating").) The final IEP also contains significant changes regarding the ultimate recommendation and placement. In particular, the draft IEP did not contain a recommendation for an ICT program- and Ms. Fochetta wrote "continue [ICT]" on the draft IEP during the CSE meeting, suggesting that the decision to place A.P. into an ICT class was made at the CSE meeting. (Ex. 4-4.) The draft IEP also did not list the ultimate placement recommendation. (Ex. 4-7.) The final IEP also differed from the draft IEP in that it recommended an additional session of S/L therapy and made certain related services "push-in" services (therapies that occur in the classroom). (Id.) Ms. Fochetta testified that these changes were based on a discussion with plaintiff Mr. P and Mr. Moss at the CSE meeting. (Tr. 57.)

On August 3, 2012, the CSE issued a Final Notice of Recommendation ("FNR"). (See Ex. 12.) The FNR recommended a placement for A.P. at J.H.S. 167, the Robert F. Wagner School, 220 East 76th Street, New York, New York ("Wagner"). (Ex. 12-1.) Because A.P. was never enrolled at Wagner[4], he was never assigned to a specific classroom at the school. (See Tr. 168.)

C. Plaintiffs' Rejection of the Placement and Their Complaint

On August 22, 2012, plaintiff S.P. ("Ms. P"), the Student's mother, wrote a letter to the CSE, explaining that she would visit Wagner once it opened in September to gauge its appropriateness. (Ex. H.) Plaintiff Ms. P requested a "class profile detailing the functional level" of A.P.'s potential classmates. (Id.)

Ms. P visited Wagner on September 12, 2012. (Tr. 315.) Following Ms. P's visit to Wagner, she notified the DOE by letter dated September 24, 2012 that she was rejecting the recommended ICT program at Wagner, and instead sought full tuition for Aaron from the DOE. (See Ex. J.) Plaintiff's stated reasons for rejecting the recommended program were the size of the school, the size of the ICT class, the lack of small-group instruction, the "high level of noise" at lunch, the school's "bullying issues, " as well as the fact that "[s]ome of the children were non English speaking" and that A.P. would be "pulled out from instruction to receive his related services." (Id.) Ms. P noted that she had not received the class profile that she had requested. (Ex. J-2.)

On January 25, 2013, plaintiffs filed a Due Process Complaint ("DPC") alleging that the IEP contained "multiple procedural ...

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