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Y.F. v. New York City Department of Education

United States District Court, S.D. New York

July 31, 2015

Y.F., individually and on behalf of K.H., a minor, Plaintiff,


LORNA G. SCHOFIELD, District Judge.

Plaintiff Y.F., individually and on behalf of her child, K.H., brings 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 seq. Plaintiff seeks review of the May 9, 2014, decision of the New York State Review Officer ("SRO Decision"), affirming the January 29, 2013, decision of the Impartial Hearing Officer ("IHO Decision"), which found that the DOE adequately provided a free appropriate public education ("FAPE") to K.H. during the 2012-2013; school year. The parties have cross-moved for summary judgment. Because the SRO Decision is sufficiently supported by the record, Plaintiff's motion is denied, and the DOE's motion is granted.


The IDEA mandates that states receiving federal special education funding provide disabled children with a FAPE. See 20 U.S.C. § 1412(a)(1)(A); see also M.W. ex rel S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013). "To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (IEP') for each such child." R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012). An IEP is a written statement that "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." M.W., 725 F.3d at 135 (quoting R.E., 694 F.3d at 175); see also 20 U.S.C. § 1414(d).

New York delegates the development of an IEP to a local Committee on Special Education ("CSE"). See N.Y. Educ. Law § 4402(1)(b)(1). At a minimum, a CSE must be composed of the student's parent(s); a special education teacher; a regular education teacher if the student participates in a regular education program; 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. See Educ. § 4402(1)(b)(1)(a). "The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E., 694 F.3d at 175 (citation omitted).

If a parent believes that the DOE has failed to provide a FAPE to his or her child, the parent may "unilaterally place their child in a private school at their own financial risk and seek tuition reimbursement." M.W., 725 F.3d at 135 (citing Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16 (1993)). To seek reimbursement, the parent must file a due process complaint with the DOE, which triggers administrative proceedings beginning with a hearing before an Impartial Hearing Officer ("IHO"). See id. (citing 20 U.S.C. §§ 1415(b)(6), (f); Educ. § 4401(1)). The IHO hearing is governed by the three-part Burlington/Carter test, as construed by New York Education Law § 4404(1)(c): "(1) the DOE must establish that the student's IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them." M.W., 725 F.3d at 135 (footnote and citations omitted).

An IHO's decision may be appealed to a State Review Officer ("SRO"). See Educ. § 4402(2); M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 225 (2d Cir. 2012) (citing Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379-80 (2d Cir. 2003)). An SRO's decision is the final administrative decision, but an aggrieved party may seek review of the decision by commencing an action in federal district court. See 20 U.S.C. § 1415(i)(2)(A); M.W., 725 F.3d at 135-36.


A. K.H.'s Educational History

K.H. was born in 1997, which means she was 15 years old during the 2012-2013 school year. She was classified by the DOE as a student with an intellectual disability and tested at the first or second grade level in certain academic areas. K.H. had received public education services from kindergarten through eighth grade in the New York City public school system. In 2011, she began attending the Cooke Center Academy ("Cooke"), a private school in Manhattan that focuses on students with disabilities. K.H. attended Cooke for the 2011-2012 school year and re-enrolled in 2012-2013.

B. K.H.'s Individualized Education Program for 2012-2013

On May 25, 2012, the DOE convened a meeting of the CSE to develop K.H.'s IEP for the 2012-2013 school year. The CSE consisted of K.H.'s parent, Y.F.; an advocate for Y.F. and K.H.; a special education teacher; a district representative who also served as the school psychologist; the parent of another child; a representative from Cooke; and K.H.'s then-math teacher from Cooke. In developing the IEP, the CSE considered a psycho-educational report; a progress report from Cooke; a vocational assessment completed by a psychologist; a social language development test; and a previous IEP for the 2011-2012 school year. The CSE also took into account comments from Y.F., K.H.'s math teacher and Cooke's representative.

The completed IEP stated that K.H. was currently a ninth grade student at Cooke and that her English Language Arts ("ELA") class had a ratio of twelve students to one teacher and one classroom assistant ("12:1:1") and her math class had a ratio of 9:1:1. The IEP discussed K.H.'s performance in ELA and math and noted areas for improvement, and it addressed her social and academic development. The IEP also stated that K.H. benefitted from occupational therapy to address fine motor concerns. Under "management needs, "[1] the IEP listed resources that would help K.H.'s learning needs based on her current level of performance, such as a smaller than mandated general education class. The IEP also provided goals for the upcoming year, including for ELA, math, socio-emotional development, counseling, occupational therapy and speech.

To address the above concerns and goals, the IEP recommended K.H. be placed yearround in a "D-75 program, " which is a specialized school, with a classroom ratio of 12:1:1. It also proposed several "related services": individualized speech therapy (one forty-five minute session per week); group speech therapy (one forty-five minute session per week in a group of up to four students); occupational therapy (two forty-five minute sessions per week in a group ...

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