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P.C. v. Rye City School District

United States District Court, S.D. New York

February 7, 2017

P.C. and K.C., individually and on behalf of student A.C., Plaintiffs,

          Gerry McMahon The Law Offices of Gerry McMahon, LLC Danbury, Connecticut Counsel for Plaintiffs.

          Susan Gibson Ingerman Smith, LLP Hauppauge, New York Counsel for Defendant.


          CATHY SEIBEL, U.S.D.J.

         Before the Court are Plaintiffs' Motion for Summary Judgment, (Doc. 18), and Defendant's Cross-Motion for Summary Judgment, (Doc. 20). Plaintiffs P.C. and K.C. (“PC” and “KC, ” or the “parents”) bring this action on behalf of their child, A.C. (“AC”), pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §§ 1401 et seq.;[1] Article 89 of the New York State Education Law; and Part 200 of the Regulations of the Commissioner of Education against Defendant Rye City School District (the “District”). Plaintiffs seek review of an administrative decision by a State Review Officer (“SRO”) at the New York State Education Department (“NYSED”) affirming the decision of an Impartial Hearing Officer (“IHO”). The IHO found that: (1) the District did not deny AC a Free and Appropriate Public Education (“FAPE”) during the 2010-11, 2011-12 and 2012-13 school years because its in-district school recommendation for 2010-11 and 2011-12, the Midland Elementary School (“Midland”), and its out-of-district school recommendation in 2012-13, the Board of Cooperative Educational Services (“BOCES”) Gifted Program at Irvington (“Irvington”), were sufficient to meet AC's educational needs; (2) the private school - Eagle Hill School (“Eagle Hill”) in Greenwich, Connecticut - at which AC's parents placed him for those school years was not an appropriate placement; (3) equitable considerations did not support the parents' claim for reimbursement for the 2010-11 school year because the parents did not give the District adequate notice of their intention to request reimbursement for an out-of-district placement for AC, but did support the parents' claim for reimbursement for the 2011-12 and 2012-13 school years because at those times the parents did give adequate notice;[2] and (4) the District was not required to reimburse the parents for the costs of tuition at Eagle Hill for any of the three years. (IHO Decision 118-19.)[3]

         The SRO dismissed Plaintiffs' appeal in its entirety, finding that the evidence in the record supported the IHO's determination that the District offered AC a FAPE for the 2010-11, 2011-12 and 2012-13 school years. The SRO did not reach the issues of whether Eagle Hill constituted an appropriate unilateral placement or whether equitable considerations supported the parents' claim. (SRO Decision 21.)[4]

         Plaintiffs seek an order reversing the IHO and SRO decisions as erroneous and awarding Plaintiffs tuition reimbursement for the 2010-11, 2011-12 and 2012-13 school years, among other things. (Compl. at 21-22.)[5] Defendant seeks an order upholding the SRO's decision in its entirety and dismissing Plaintiffs' Complaint. (D's Mem. 1.)[6] For the reasons set forth below, Plaintiffs' Motion for Summary Judgment is DENIED and Defendant's Cross-Motion for Summary Judgment is GRANTED.

         I. Background

         A. Facts

         The following facts are undisputed unless otherwise noted.

         AC attended schools within the District through the 2009-10 (second grade) school year. In that time, he received educational services in a general education setting at Midland. (SRO Decision 3.) For part of first grade and all of second grade, AC operated under a plan established pursuant to Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794. (Id. at 2-3.) This plan was created because AC was diagnosed with attention deficit hyperactivity disorder, a developmental coordination disorder, and sensory integration dysfunction. (Id.; see Dist. Ex. 3, at 1.) AC was first classified as a student with a disability on January 15, 2009, during a meeting of the local Committee on Special Education (“CSE”) - comprised of parents, teachers, a school psychologist and a district representative - which convened because AC was a student eligible for special education services. (See Dist. Ex. 3, at 1, 4.) The CSE was responsible for working with AC and his parents to develop an Individualized Education Program (“IEP”) that set forth his social, emotional and educational needs and goals. See 20 U.S.C. § 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320-21; N.Y. Educ. Law § 4402; 8 N.Y.C.R.R. §§ 200.3, 200.4(d)(2). AC had been referred to the CSE on November 12, 2008. (See Dist. Ex. 32.)

         During the January 15, 2009 meeting, the CSE discussed AC's program and placement for the remainder of the 2008-09 (first grade) school year. Among other things, the CSE concluded that occupational therapy would address AC's motor weaknesses and help him become more independent and self-sufficient. (See Dist. Ex. 3, at 1-2.) It recommended that he continue learning in a general education setting but that he also receive weekly occupational therapy on both a 1:1 and 3:1 basis, as well as monthly psychological and speech/language consultations. (Id. at 1.)

         The CSE reconvened on May 4, 2009 and found that AC's “present cognitive abilities and academic levels [were] meeting both grade- and age-level expectations, ” and that he had “demonstrated growth in all academic areas” since the beginning of his first grade year and since the prior CSE evaluation. (Dist. Ex. 4, at 3.) Nonetheless, the CSE further stated that AC remained highly anxious and continued to experience difficulties navigating his environment, focusing on tasks and following directions. (Id.) It further stated that AC would need additional modifications to his academic program and goals to be successful. (Id. at 6.) The CSE therefore recommended two weekly sessions with a resource consultant teacher, additional counseling, and a daily shadow aide as part of his IEP for the 2009-10 school year, in addition to the related services the CSE was already providing. (Id.)

         The CSE next met on May 3, 2010 to review AC's progress and develop his IEP for the 2010-11 school year. The CSE found that AC was struggling to initiate and sustain work in all academic areas, and that mathematics in particular posed the greatest challenges. (Dist. Ex. 5, at 4.) It noted, however, that AC also exhibited strengths in reading with intonation, explicit comprehension skills, spelling and creative writing. (Id.) With respect to interpersonal skills, the CSE found that AC still experienced anxiety over social interactions and continued to struggle to develop quality relationships with peers within the classroom. (Id. at 5.) The CSE maintained many of the same services offered during the 2009-10 IEP, but recommended enhancements to nearly all of them. For instance, it increased AC's 1:1 sessions with the resource consultant teacher to five times a week, rather than two; increased the monthly occupational therapy and speech/language therapy consultations to sixty minutes, rather than thirty; it doubled AC's weekly counseling; and offered support by a teaching assistant (“TA”) on a 1:1 basis, rather than 3:1, for the duration of the school day. (Id. at 7.) The CSE further recommended a new hourly consultation on a monthly basis with the resource consultant teacher. (Id.) The CSE felt that these enhanced services would support AC's academic and social growth and help him manage his anxiety throughout the school day and within the general education environment. (Id.)

         On June 4, 2010, AC was accepted at Eagle Hill for the 2010-11 school year. (See Dist. Ex. 33.) On June 10, 2010, the parents submitted an application to the District for transportation, which noted that AC would be attending Eagle Hill beginning on September 10, 2010. (See Dist. Ex. 34.)

         The CSE reconvened on May 13, 2011. At that meeting, KC stated that AC had become less anxious during the past year at Eagle Hill, and as a result had gained confidence and focus. (Dist. Ex. 6, at 2.) Eagle's Hill's educational director and guidance counselor also stated that the transition was very difficult for AC, but that his social skills, reading comprehension, and certain functioning skills had improved. (Id.) KC expressed her belief that if AC were to return to Midland School for the 2011-12 school year, his anxiety would increase and he would again become overwhelmed. (Id.) After reviewing at length AC's academic, physical and social development over the past year, the CSE recommended the same offerings for the 2011-12 school year as it had for the 2010-11 school year, based on its belief that the resource consultant teacher, speech/language therapy and 1:1 TA were still necessary to bolster AC's academic engagement, that the psychological counseling would aid his anxiety and social development, and that the occupational therapy would address his motor and sensory skills. (Id. at 5-7.)

         On August 14, 2011, the parents wrote a letter to Dr. Anat Mor, the school psychologist at Midland, explaining that while they appreciated all of the services that the District had provided to AC, and despite “the excellent IEP that was created and implemented for him, ” they felt Midland was not appropriate due to the “amazing success” AC experienced at Eagle Hill. (Dist. Ex. 36, at 1.) The parents further noted that Midland's offerings in its 2010-11 IEP had been “very similar” to what Eagle Hill offered, but suggested that they had “had no other choice but to enroll” AC at Eagle Hill for the previous school year because its small size provided a less overwhelming environment and its students complete their homework at school before going home, which the parents believed would reduce burdens on them - an apparently important consideration given KC's breast cancer diagnosis in late spring 2010 and ensuing treatment cycle. (See Id. at 2.) The parents' letter confirmed that they would re-enroll AC at Eagle Hill for the upcoming 2011-12 school year and requested that the District consider sharing the cost of tuition. (Id. at 3.)[7]

         The CSE next met on May 21, 2012 to review AC's recent reevaluations and recommend support services for the 2012-13 school year. KC stated that AC's anxiety and functioning difficulties decreased after his second year at Eagle Hill, and that his social and pragmatic skills improved. (Dist. Ex. 7, at 2.) The CSE reviewed the results of AC's psychological evaluation, which revealed test scores that had decreased since 2009. The CSE noted that visual processing and visual perception remained areas of “significant weakness, ” although it felt that AC's IQ results, as measured by the Wechsler Intelligence Scale for Children test - also known as WIAT - underestimated his true cognitive potential. (Id.) The CSE further reviewed other test scores indicating deficiencies in basic mathematics principles and reasoning abilities, as well as decreased motor coordination and motor integration abilities. (Id.) The CSE agreed to explore out-of-district programs for the upcoming school year and reconvene later that summer. (Id. at 3.) In the interim, the CSE recommended that AC would benefit from extended school year support, which would last from July 2, 2012 until August 10, 2012 and provide AC with weekly occupational therapy as well as a 15:1 classroom environment. (See Id. at 1, 3.)

         The CSE reconvened on July 12, 2012. By this time, it had circulated AC's information to several public school programs in the District as well as to out-of-district placements such as the Summit School and the BOCES at Irvington. (Dist. Ex. 8, at 2; see generally Ps' Ex. 18.) Although the Summit School declined AC's placement, (Ps' Ex. 18, at 2), Irvington accepted AC into the gifted program, invited the parents to visit and indicated that AC would be “a wonderful addition” to their class. (Dist. Ex. 8, at 2.) The CSE agreed and recommended that AC attend Irvington, which would offer occupational therapy, speech/language therapy and counseling - as the CSE's prior IEPs had - as well as place AC in a 12:1 class setting. (Id.) The parents, however, rejected the program based on the profile of the other students who would be in AC's class. In particular, they stated that the other students would be younger than AC, would have significantly higher IQs than AC, and would have disability classifications that did not match AC's - for instance, other admitted students were classified as Emotionally Disturbed, Autistic, or Other Health Impaired, (id. at 2-3), whereas the CSE at the May 21, 2012 meeting had changed AC's classification from Other Health Impaired to Learning Disabled, (see Dist. Ex. 7, at 3; see also SRO Decision 17). The parents further expressed concerns regarding the additional transitions AC would need to make into new environments and the travel time to and from Irvington. (Dist. Ex. 8, at 3.) Accordingly, they indicated their intent to place AC at Eagle Hill for the 2012-13 school year and request reimbursement for tuition and related expenses.

         B. Procedural History

         1. Due Process Complaint

         AC's parents filed a due process complaint on January 17, 2013. (See Dist. Ex. 1.) The parents alleged that the District failed to offer AC a FAPE for the 2010-11, 2011-12 and 2012-13 school years, in that it failed to: (1) provide AC with a program that would adequately address his academic, social and emotional needs; (2) offer AC any alternative out-of-district program for the 2010-11 school year; and (3) offer AC appropriate out-of-district programs for the 2011-12 and 2012-13 school years.[8] (Id. at 9-10.) The parents also argued that their unilateral placement of AC at Eagle Hill was appropriate because Eagle Hill offered programming and related services designed to meet AC's unique needs and was the best environment for his anxiety and emotional well-being. (Id. at 4-5.) The parents sought an order from the IHO granting the following relief: (1) reimbursement for tuition and related expenses for the cost of AC's placement at Eagle Hill for the 2010-11, 2011-12 and 2012-13 school years; (2) a determination that Eagle Hill is the Stay Put Placement for AC; and (3) attorneys' fees and costs. (Id. at 10.)

         2. IHO Decision

         On April 24, 2013, the IHO commenced a hearing, which concluded on February 12, 2014 after seventeen nonconsecutive days of testimony. In his decision, issued May 5, 2014, [9]the IHO first found that the District's May 3, 2010 IEP, (Dist. Ex. 5), was reasonably calculated to provide educational benefit and therefore provided AC with a FAPE for the 2010-11 school year. (IHO Decision 96-97, 100, 118.) The IHO observed that leading into that year, AC exhibited “slow and steady improvement” during the 2009-10 school year in certain key areas, based on an annual review of the effectiveness of AC's occupational therapy, as well as on a classroom benchmark assessment reflecting improvement in certain writing and math metrics. (Id. at 99-100.) The IHO therefore concluded that it was “hard to find that there was no progress” made, (id. at 118), although the IHO noted continued difficulties in non-verbal reasoning, anxiety and sensory issues, (id. at 98-100). The IHO reviewed the proposed IEP, noting that it recommended, among other things, resource consultant services five times a week at ¶ 1:1 ratio, counseling twice per week for thirty minutes, and a TA who would accompany AC at lunch and recess to assist with social situations. (Id. at 96-97.) The IHO further noted that the 2010-11 IEP meaningfully increased the variety and quality of AC's individualized services. (Id. at 97.)

         Next, the IHO found that Plaintiffs had not met their burden of showing the appropriateness of AC's placement at Eagle Hill. (Id. at 101.) He first noted Plaintiffs' August 14, 2011 letter to the District “compar[ing] the district program [offered for the 2010-11 school year] with the program at [Eagle Hill] somewhat similarly, ” and reasoned that Eagle Hill offered an academic advisor who served the same roles that the resource consultant and TA would have. (Id. at 100.) The IHO found that placement at Eagle Hill was not suitable, however, because it did not provide an appropriate amount of occupational therapy services. (Id. at 101.) He also credited the testimony of Dr. Mor, who stated during the hearings that AC was progressing at a slower rate than other students due to the lack of exposure at Eagle Hill and because its program did not help him retain and grasp as much material as possible. (Id.; see Id. at 15.)

         Finally, the IHO found that equitable considerations did not support reimbursing the parents because while there was evidence that they put the District on notice that AC would be attending a private placement, the notice did not request reimbursement, and therefore the District was disadvantaged because it was unable to review AC's program and placement prior to being potentially liable for the costs associated with the 2010-11 school year. (Id. at 102-03.)[10]

         Turning to the 2011-12 school year, the IHO noted that the District's recommended program remained substantially the same as the prior school year. (Id. at 103.) The IHO found that while the District provided extensive testimony about the importance of AC being involved with typically developing peers (and how its placement would facilitate this), Plaintiffs did not offer witnesses with firsthand familiarity with the Eagle Hill program that AC experienced. (Id. at 105.) The IHO further found that the District's academic programs were more rigorous than Eagle Hill's, and that the latter did not provide any occupational therapy from a certified therapist, provided insufficient motor training and restricted AC's access to typically developing peers. (Id. at 106.) With respect to equitable considerations, the IHO found that Plaintiffs gave sufficient notice to the District that AC would be attending Eagle Hill for the 2011-12 school year and that they were seeking a monetary contribution toward the cost of tuition there. (Id. at 108.)

         Finally, turning to the 2012-13 school year, the IHO reviewed the District's recommendation that AC be placed in the BOCES gifted program at Irvington, (id. at 109), as well as Plaintiffs' argument that AC had made progress at Eagle Hill and that the Irvington program would require AC to undergo difficult transitions in an environment populated by students with higher cognitive abilities, (id. at 111).[11] The IHO noted that the District's evaluations revealed decreased test results in math, writing, perception, motor and functioning skills, among other things, and opined that a smaller program such as Irvington's would help AC make gains in these areas. (Id. at 110-11, 113.) The IHO concluded that the District offered AC a FAPE, although his reasoning is not entirely clear. (Id. at 116-17.) With respect to equitable considerations, the IHO further concluded that the parents provided sufficient notice to the District as to their request for tuition reimbursement. (Id.)

         3. SRO Decision

         The parents appealed the IHO's denial of their request for reimbursement for AC's tuition costs at Eagle Hill for all three years at issue. The District also cross-appealed the IHO's determination that Plaintiffs provided sufficient notice ...

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