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M.B. v. New York City Department of Education

United States District Court, S.D. New York

January 25, 2017

M.B., individually and on behalf of her minor child, M., Plaintiff,


          Laura Taylor Swain United States District Judge

         Plaintiff M.B., the mother of M., a child with cerebral palsy, brought this case individually and on behalf of M. under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the “IDEA”), as an appeal from an administrative determination finding that Defendant, the New York City Department of Education (the “DOE”), had provided M. with a free and appropriate public education (a “FAPE”) as required by the IDEA. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(2)(A).

         Plaintiff sought placement of M. in a State-approved specialized school and, when M. was not placed in that school, filed a due process complaint with the DOE. Following an administrative hearing, an Impartial Hearing Officer (“IHO”) found that the DOE had denied M. a FAPE and ordered that M. be placed in a specialized school. The DOE petitioned for further review by a State Review Officer (“SRO”) of the New York State Education Department's Office of State Review, and the SRO reversed the IHO's decision, finding that the DOE did provide M. with a FAPE and denying Plaintiff's requested placement. Plaintiff subsequently brought this case seeking review and reversal of the SRO's determination.

         The parties have cross-moved for summary judgment. (See docket entries no. 46 & 49.) Plaintiff seeks a declaration that the DOE denied M. a FAPE, and an order requiring the DOE to place M. in a State-approved specialized school, the Henry Viscardi School. Defendant seeks affirmance of the SRO's decision and dismissal of the Complaint. The Court has reviewed thoroughly all of the parties' submissions, including the administrative record, and has considered the parties' presentations at oral argument and in supplemental briefing thereafter. For the reasons set forth below, Plaintiff's motion is denied, Defendant's motion is granted, and the decision of the SRO is affirmed.


         The IDEA's Statutory Framework

         The IDEA requires all states receiving federal funds “to provide ‘all children with disabilities' a ‘free appropriate public education.'” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quoting IDEA, 20 U.S.C. § 1400(d)(1)(A)). The parties do not dispute that M., who has been diagnosed with cerebral palsy, is a child with a disability. The IDEA requires that, for each child with a disability, like M., the appropriate state or local educational agency must develop an “individualized education program” (“IEP”). 20 U.S.C. § 1414(d). In New York, IEPs are developed by local “Committees on Special Education” (“CSEs”) in conjunction with the parents of the disabled student. N.Y. Educ. L. § 4402(1)(b)(1).

         Parents have a right under the IDEA to present a complaint regarding the identification, evaluation, or placement of their child through the IEP process. 20 U.S.C. § 1415(b)(6)(A). Parents who disagree with the IEP developed by the CSE have a right under the IDEA to an “impartial due process hearing” before an IHO. Id. § 1415(f)(1)(A); N.Y. Educ. L. § 4404(1)(a). The decision of the IHO may be appealed by either party to an SRO, who conducts an independent review of the factual findings and decision of the IHO. 20 U.S.C. § 1415(g); N.Y. Educ. L. § 4404(2). Either party may then challenge the SRO's decision in a federal district court, which is empowered by the IDEA to “receive the records of the administrative proceedings, ” to “hear additional evidence, ” and to “grant such relief as the court determines is appropriate” based on “the preponderance of the evidence” presented. 20 U.S.C. § 1415(i)(2)(C); see also N.Y. Educ. L. § 4404(3).

         The Factual Record

         The following summary of facts relevant to the instant motion practice is drawn primarily from the administrative record.

         M. is a student with cerebral palsy who was born in 2005. (IHO Ex. 11, at 1, 2.) M. faces both physical and cognitive challenges in school. She navigates her school using a walker and a wheelchair. (IHO Ex. 11, at 2; Ex. 14, at 1.) In the school year before the one at issue in this case (the 2012-13 school year), M. was in second grade, and had been placed in an integrated co-teaching (“ICT”) class. (Tr.[1] 32-33, 82, 149-50.) An ICT class includes children with disabilities as well as typically developing children and is co-taught by a general education teacher and a special education teacher. (Id.)

         On May 2, 2013, M.'s CSE met to develop an IEP for the 2013-14 school year. (IHO Ex. 10, at 1, 13-14.) The May CSE recommended that M. continue in an ICT classroom for her general education, and that M. have the services of a full-time, 1:1 paraprofessional as well as additional physical and speech therapy sessions and counseling. (SRO Dec.[2], at 3.)

         In a letter dated May 2, 2013, M.'s parents requested an updated evaluation and requested that the CSE “consider another placement” for M. (IHO Ex. 13.) M.'s parents provided their consent for the DOE to evaluate M., and an evaluation was conducted over three dates in May 2013. (IHO Ex. 14 & 15.)

         On June 20, 2013, the CSE reconvened to consider the results of the May evaluation. (SRO Dec. at 3.) The June CSE modified M.'s IEP, recommending a “12:1:1 classroom” (that is, twelve students to one teacher and one paraprofessional), and specified that M.'s 1:1 paraprofessional should assist with mobility needs. (IHO Ex. 11, at 8-9.) The June CSE also modified aspects of M.'s IEP relating to supplementary services and programs that M. would receive. (See generally and compare IHO Ex. 11 (June IEP) with IHO Ex. 10 (May IEP).) The June CSE noted parental concerns about M.'s ability to navigate the school building with her walker, and the parents' concern that M. required a “full time special education school.” (IHO Ex. 11 at 2-3.)

         The parents submitted a due process complaint dated July 10, 2013, to the DOE, alleging, based on the June IEP, that the DOE failed to offer M. a FAPE for the 2013-14 school year. (IHO Ex. 1, at 1.) The due process complaint asserted generally that the June IEP “contains multiple procedural and substantive errors, ” and specifically asserted that: (1) “the CSE did not follow proper procedures in convening the meeting, ” (2) “the CSE was invalidly composed, ” (3) “the goals and objectives [in the IEP] do not appropriately address this student's special education needs, ” (4) “the [CSE] team did not review appropriate documentation in making its recommendation, ” and (5) “the IEP . . . fails to reflect the reports that the parents provided to the school.” (IHO Ex. 1, at 1-2.) The due process complaint alleged that the parents informed the CSE that M. had been accepted at the Henry Viscardi School, but that the district psychologist “refused to consider this as an option.” (IHO Ex. 1, ...

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