United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, United States District Judge
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.
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.
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).
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).
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).
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).
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).
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).
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).
following facts and procedural background are taken from the
parties' submissions and the administrative record.
a child with autism born in April 2005. (Ex. 2 at
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).
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.)
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.)