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

United States District Court, S.D. New York

January 23, 2017

J.E., individually and on behalf of J.G., Plaintiff,


          J. PAUL OETKEN, United States District Judge

         Plaintiff J.E. filed this action against the New York City Department of Education (“the Department” or “DOE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq. She challenges two administrative decisions of State Review Officers denying private school tuition funding for her minor daughter, J.G., whom she unilaterally enrolled in the Rebecca School (“Rebecca”), arguing (1) that her daughter was denied a free appropriate public education; and (2) that she is entitled to reimbursement for her daughter's tuition at Rebecca for the 2012-2013 school year. Both parties now move for summary judgment. For the reasons that follow, Plaintiff's motion is granted and Defendant's cross-motion is denied.

         I. Background

         Following a series of hearings, Independent Hearing Office (“IHO”) Schiff (1) found that the Department had failed to provide J.G. with a free and appropriate education (“FAPE”) for the 2012-2013 school year; (2) found that the parents had acted appropriately by enrolling their child in the Rebecca School; and (3) ordered the DOE to provide appropriate equitable relief. (See January 21, 2014 IHO Decision (“IHO 1”) at 15-16.) State Review Officer (“SRO”) Bates reversed the IHO's finding that J.G. had been denied a FAPE and remanded the matter to the IHO to address numerous other issues. (See March 30, 2014 SRO Decision (“SRO 1”) at 16.) On remand, after a hearing, IHO Noe determined that the DOE had indeed offered a FAPE and, accordingly, denied J.G. relief. (April 22, 2015 IHO Decision at 8.) Plaintiff appealed the IHO decision to SRO Bates, who dismissed the appeal and held that the child had been offered a FAPE. (See July 23, 2015 SRO Decision at 25.) Plaintiff then filed this action challenging the decision of the SRO that J.G. was not denied a FAPE.

         A. Legal Framework

         Congress enacted the IDEA “to ensure that all children with disabilities have available to them a free appropriate public education” 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). 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.” Id. § 1400(d)(1)(A). States that provide a FAPE to all children with disabilities are eligible for federal funding under the IDEA. Id. § 1412(a)(1)(A); see Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). New York State receives federal funds under the IDEA; therefore, it must comply with the Act's requirements. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998).

         The IDEA requires that a state provide each disabled child with an individualized education program (“IEP”). See 20 U.S.C. § 1414(d)(1)(A). The IEP is “[t]he ‘centerpiece' of the IDEA's education delivery system.” Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). The IEP is “a written statement that ‘sets out the child's present educational performance, establishes annual and 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.'” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig, 484 U.S. at 311); see also 20 U.S.C. § 1414(d)(1)(A) (defining “IEP”). The IEP is developed as a collaborative effort among “parents, educators, and representatives of the school district.” Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 81 (2d Cir. 2005) (quoting Murphy, 297 F.3d at 197).

         The IEP should be formulated in accordance with the procedures set forth in the IDEA and must be “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). But the IEP need not “furnish every special service necessary to maximize each handicapped child's potential.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003) (quoting Rowley, 458 U.S. at 199) (alterations and internal quotation marks omitted).

         New York State law also secures students' right to a FAPE. N.Y. Educ. Law § 4401 et seq. (McKinney 2014). New York law requires local Committees on Special Education (“CSEs”) to develop IEPs for disabled children. N.Y. Educ. Law § 4402(1)(b)(1); R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012). The CSE team must include, at least: the parents or guardians of the disabled child in question; the child's regular education teacher; the child's special education teacher; a school psychologist; and a district representative “who is qualified to provide or administer or supervise special education and is knowledgeable about the general curriculum and the availability of resources of the school district, ” among other individuals. N.Y. Educ. Law § 4402(1)(b)(1)(a). “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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007) (internal citations omitted). The IEP team must consider all options available in the public schools prior to recommending a non-public school. See P.G. v. N.Y. City Dep't of Educ., 959 F.Supp.2d 499, 505 n.1 (S.D.N.Y. 2013). If the IEP team recommends that a child attend a non-public school, the case is sent to the Central Based Support Team (“CBST”) for placement at a state-approved non-public school. See id.; NYC Department of Education, Other School Settings, ult.htm (last visited January 23, 2017).

         A parent who believes that his or her disabled child has been denied a FAPE under the IDEA may unilaterally place that child in a private school and then seek reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii); Hardison v. Bd. of Educ., 773 F.3d 372, 376 (2d Cir. 2014); see also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) (“Burlington”); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) (“Carter”). Parents who choose this path “do so at their own financial risk.” Carter, 510 U.S. at 15 (quoting Burlington, 471 U.S. at 373-74) (internal quotation marks omitted); see generally 20 U.S.C. § 1412(a)(10)(C).

         To determine whether a parent is entitled to reimbursement, a court applies the three-prong Burlington/Carter test, “which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities.” C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014). The reimbursement covers “expenses that [the school district] should have paid all along and would have borne in the first instance had it developed a proper IEP” and provided a FAPE. 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) (internal quotation marks omitted).

         Parents seeking reimbursement under New York law must file a due process complaint challenging the appropriateness of the school district's recommendation. A hearing on this complaint is held before an IHO. 20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1). The IHO's decision may be appealed to an SRO, see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2), and the decision of the SRO may be challenged in state or federal court, 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3)(a).

         B. Factual Background

         The following facts and procedural background are taken from the parties' submissions and the administrative record.

         J.G. is a child with autism born in April 2005. (Ex. 2 at 1.[1]) J.G. attended the Rebecca School during the 2010-2011 and 2011-2012 school years. (Id.) The Rebecca School is a private school in Manhattan for children with autism and other neurodevelopmental delays. See J.W. v. N.Y.C. Dep't of Educ., 95 F.Supp.3d 592, 598 n.2 (S.D.N.Y. 2015). On March 7, 2012, the CSE convened to prepare an IEP for J.G. for the 2012-2013 school year. (Id.) The CSE consisted of (1) Linda Watinsky, a DOE Special Education Teacher; (2) Craig Czarnecki, who attended in the dual functions of school psychologist and District Representative; (3) Naomi Flick, a DOE social worker; (4) Yael Rubinstein, J.G's teacher at Rebecca; (5) Gwen Levin, a Rebecca social worker; (6) a parent member; and (7) the Student's mother, J.E. (Ex. 2-13.) In relevant part, the IEP recommended a 6:1:1 classroom (six students to one teacher and one classroom paraprofessional), related services of speech-language therapy, occupational therapy and physical therapy, and a 1:1 health paraprofessional for J.G. for the 2012-2013 school year (Ex. 2-7, 2-8), which was to be implemented on July 2, 2012 (Ex. 2-1). The 6:1:1 ratio, the “most supportive public school option, ” A.D. v. N.Y.C. Dep't of Educ., No. 12 Civ. 2673, 2013 WL 1155570, at *7 (S.D.N.Y. Mar. 19, 2013), is specifically designated by the State for “students whose management needs are deemed to be highly intensive, and requiring a high degree of individualized attention and intervention.” 8 N.Y.C.R.R. § 200.6(h)(4)(ii)(a).

         On March 14, 2012, J.E. wrote to the CSE, informing it of her belief the 6:1:1 ratio was “inappropriate.” (Ex. B-1.) In the letter, she noted: “When we advocated for the one to one class placement, the CSE/IEP chairperson stated that the NYC public school system did not have any schools/classes functioning with a one to one, teacher to student ratio.” (Id.) The letter requested that J.G.'s case be referred to CBST for placement at a state-approved non-public school. The CSE did not respond to the letter. (Dkt. No. 18 at 2.)

         On June 11, 2012, J.E. was notified that her daughter was offered placement at a public school called P771K@P225K. (Id.) On July 25, 2012, J.E. wrote to the district, explaining why she believed the proposed placement to be inappropriate for her daughter. (See Ex. E.) J.E. filed a due process complaint seeking tuition reimbursement on May 7, 2013, alleging that the IEP and proposed public school location were inappropriate. (See Ex. A.) J.E. rejected the Department's recommendation for the 2012-2013 school year and unilaterally placed J.G. in the Rebecca School. (Dkt. No. 23 at 1.) J.E. asserts that her daughter was denied access to a FAPE in the 2012-2013 school year and moves this Court to order that the Department reimburse J.G.'s Rebecca School tuition for that year, totaling $97, 700. (Dkt. No. 18 at 22.)

         II. ...

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