United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RANLOS, U.S.D.J.
(“Plaintiff”) individually and on behalf of her
child, H.S., filed suit against the New York City Department
of Education (the “DOE” or
“District”) and Carmen Fariña, in her
official capacity as the Chancellor of the DOE (together
“Defendants”), under the Individuals with
Disabilities Education Act (“IDEA”), Section 504
of the Rehabilitation Act of 1973, and Article 89 of New York
State Education Law, seeking funding for H.S.'s tuition
at the Rebecca School for the 2011-2012 school year. Before
the Court are the parties' cross-motions for summary
reasons set forth below, Plaintiff's motion for summary
judgment is DENIED and Defendants' motion for summary
judgment is GRANTED.
enacted the IDEA to encourage the education of children with
disabilities. E.A.M. ex rel. E.M. v. N.Y.C. Dep't of
Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1
(S.D.N.Y. Sept. 29, 2012) (citing Bd. of Educ. v.
Rowley, 458 U.S. 176, 179 (1982)). The statute mandates
that any state receiving federal funds must provide a free
appropriate public education (“FAPE”) to children
with disabilities. See 20 U.S.C. §
1412(a)(1)(A); Rowley, 458 U.S. at 181. The FAPE
provided by the state must include “special education
and related services” tailored to meet the unique needs
of the particular child, 20 U.S.C. § 1401(9), and must
be “reasonably calculated to enable the child to
receive educational benefits, ” Rowley, 458
U.S. at 207.
public school ensures that a student with disabilities
receives a FAPE by providing the student with an
Individualized Education Plan (“IEP”). See
Polera v. Bd. of Educ., 288 F.3d 478, 482 (2d Cir.
2002). An IEP is a written statement, collaboratively
developed by the parents of the child, educators, and
specialists, 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.”
M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 239
(2d Cir. 2015) (quoting R.E. v. N.Y.C. Dep't of
Educ., 694 F.3d 167, 175 (2d Cir. 2012)).
New York State receives federal funds under the IDEA, it must
comply with the requirements of the statute. Walczak v.
Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir.
1998). In New York, the task of developing an IEP rests with
local Committees on Special Education (“CSEs”),
whose members are appointed by the board of education or
trustees of the school district. Id. (citing N.Y.
Educ. Law § 4402(1)(b)(1); Heldman ex rel. T.H. v.
Sobol, 962 F.2d 148, 152 (2d Cir. 1992)). “CSEs
are comprised of members appointed by the local school
district's board of education, and must include the
student's parent(s), a regular or special education
teacher, a school board representative, a parent
representative, and others.” R.E., 694 F.3d at
175 (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)).
“In developing a child's IEP, the 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.'” E.A.M. v. N.Y.C. Dep't of
Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1
(quoting Gagliardo v. Arlington Cent. Sch. Dist.,
489 F.3d 105, 107-08 (2d Cir. 2007)).
provide a FAPE, an IEP must be “reasonably calculated
to enable the child to receive educational benefits, ”
“likely to produce progress, not regression, ”
and afford the student with an opportunity to achieve greater
than mere “trivial advancement.” Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 192, 195 (2d
Cir. 2005) (quoting Walczak, 142 F.3d at 129-30).
“A school district is not, however, required to furnish
‘every special service necessary to maximize each
handicapped child's potential, '” id.
at 195 (quoting Rowley, 458 U.S. at 207), or
“everything that might be thought desirable by loving
parents, ” Walczak, 142 F.3d at 132 (quoting
Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d
563, 567). Rather, the IDEA calls only for selection of a
program that provides a “basic floor of
opportunity.” Walczak, 142 F.3d at 132
(quoting Rowley, 458 U.S. at 201); see Id.
at 130 (“IDEA does not itself articulate any specific
level of educational benefits that must be provided through
an IEP.”). “[B]ecause public ‘resources are
not infinite, ' federal law ‘does not secure the
best education money can buy; it calls upon government, more
modestly, to provide an appropriate education for each
[disabled] child.'” Id. (quoting
Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1583
(D.C. Cir. 1984)); see also C.F. ex rel. R.F. v. N.Y.C.
Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014).
Furthermore, under an IEP, “education [must] be
provided in the least restrictive setting consistent with a
child's needs” and the CSE must “be mindful
of the IDEA's strong preference for mainstreaming, or
educating children with disabilities [t]o the maximum extent
appropriate alongside their non-disabled peers.”
M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224
(2d Cir. 2012) (internal quotation marks omitted).
addition to imposing the IEP requirement, the IDEA provides
for due process procedures to promptly resolve disputes that
arise between parents and school districts, so that children
will receive appropriate special education services. 20
U.S.C. § 1415(b)(6)-(b)(7). New York State has
implemented a two-tiered system of administrative review for
disputes regarding “any matter relating to the
identification, evaluation or educational placement of a
student with a disability . . . or the provision of a [FAPE]
to such a student.” Id.; 8 N.Y.C.R.R. §
200.5(i)(1). First, “[p]arents may challenge the
adequacy of their child's IEP in an ‘impartial due
process hearing' before an [independent hearing officer
(“IHO”)] appointed by the local board of
education.” E.A.M., 2012 WL 4571794, at *2
(quoting Gagliardo, 489 F.3d at 109). Either party
may then appeal the independent hearing officer's
decision to the New York State Review Officer
(“SRO”), an officer of New York State's Board
of Education tasked with conducting an impartial review of
the proceedings. Id.; 34 C.F.R. §
300.514(b)(2); 8 N.Y.C.R.R. § 279.1(d).
the SRO has rendered its decision, either party may then
appeal to either state or federal district court. N.Y. Educ.
Law § 4404(3)(a). If appealed to federal district court,
the court must “receive the records of the
administrative proceedings” and, if requested by the
parties, hear additional evidence. 20 U.S.C. §
1415(i)(2)(C). The district court then “grant[s] such
relief as the court determines is appropriate, ” based
on the preponderance of the evidence. Id. Under the
statute, “appropriate” relief may include
reimbursement for the cost of a private school placement.
E.A.M., 2012 WL 4571794, at *2.
Claims for Tuition Reimbursement Under the IDEA
who . . . believe that a FAPE is not being provided to their
child may unilaterally enroll the child in a private school
and seek tuition reimbursement from the school district'
by filing what is known as a ‘due process
complaint.'” M.O., 793 F.3d at 239
(quoting Hardison v. Bd. of Educ., 773 F.3d 372, 376
(2d Cir. 2014); see also N.Y. Educ. Law §
4404(1); and 20 U.S.C. § 1412(a)(10)(C)(ii)). Parents
who unilaterally place their child in a private school do so
“at their financial risk.” Reyes ex rel. R.P.
v. N.Y.C. Dep't of Educ., 760 F.3d 211, 215 (2d Cir.
Supreme Court has established the three-pronged
Burlington/Carter test to determine eligibility for
[tuition] reimbursement, 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., 746 F.3d at 73 (citation and
internal quotation marks omitted).
specific respect to the first Burlington/Carter
prong, “challenges to a school district's proposed
placement school must be evaluated prospectively
(i.e., at ‘the time of the parents'
placement decision') and cannot be based on mere
speculation.” M.O., 793 F.3d at 244 (quoting
R.E., 694 F.3d at 195). Thus, evaluation of the IEP
must be based only on information available to the parent at
the time he or she was considering the IEP and the school
district's proposed placement, and not on retrospective
evidence that came to light after the parent chose to reject
the district's placement and enroll the child in private
school. See, e.g., id.; R.E., 694
F.3d at 188.
New York's Education Law § 4404(1)(c), the local
school board bears the initial burden of establishing the
validity of its plan at a due process hearing. If the board
fails to carry this burden, the parents bear the burden of
establishing the appropriateness of their private placement
and that the equities favor them.” R.E., 694
F.3d at 184-85 (citing Cerra, 427 F.3d at
192). The district court retains discretion over
whether to award tuition reimbursement. See 20
U.S.C. § 1412(a)(10)(C)(ii) (“[A] court or a
hearing officer may require the agency to reimburse
the parents for the cost of [private] enrollment.”)
Section 504 Claims
504 of the Rehabilitation Act of 1973 provides that
“[n]o otherwise qualified individual with a disability
in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). The “IDEA
and Section 504 are complementary, but they address different
injuries and thus require different proof. Specifically,
Section 504 offers relief from discrimination, whereas IDEA
offers relief from inappropriate educational placement,
regardless of discrimination.” Gabel ex rel. L.G.
v. Bd. of Educ., 368 F.Supp.2d 313, 333 (S.D.N.Y. 2005).
plaintiff may assert a Section 504 claim in conjunction with
an IDEA claim on the theory that he has been denied access to
a free appropriate education, as compared to the free
appropriate education non-disabled students receive.”
D.C. ex rel. E.B. v. N.Y.C. Dep't of Educ., 950
F.Supp.2d 494, 517-18 (S.D.N.Y. 2013) (citation and internal
quotation marks omitted). “To recover under the
Rehabilitation Act, there must be evidence that: (1) the
student is disabled; (2) the student is otherwise qualified
to participate in school activities; (3) the school or the
board receives federal financial assistance; and (4) the
student was excluded from participation in programs at,
denied the benefits of, or subject to discrimination at, the
school on the basis of her disability.” Id. at
518 (quoting Schreiber v. E. Ramapo Cent. Sch.
Dist., 700 F.Supp.2d 529, 564 (S.D.N.Y. 2010)).
Section 504 relief is conditioned on a showing of
discrimination, it requires something more than proof of a
mere violation of IDEA-i.e., more than a faulty
IEP.” Gabel, 368 F.Supp.2d at 334 (citing
J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir.
2000)). Rather, a plaintiff must prove some additional level
of “intentional discrimination, ” which
“may be inferred when a school district acts with gross
negligence or reckless indifference in depriving a child of
access to a FAPE.” Id.
REVIEW OF ADMINISTRATIVE RECORD
an eighteen-year-old student diagnosed with Pervasive
Developmental Disorder, an autism spectrum disorder. Ex.
In 2000, after his diagnosis, H.S. attended a 6:1:1 (six
students, one teacher, and one paraprofessional) special
class program at ¶ 373, a public school within the
district. Tr. 1023-24. Plaintiff believed that H.S. was not
progressing at ¶ 373 and after only one year, enrolled
H.S. at the Brooklyn Blue Feather School (a New York State
approved non-public school), where he remained until 2009. In
May 2009, the District convened a CSE meeting to create
H.S.'s IEP for the 2009-2010 school year. Ex. L. At this
meeting, Plaintiff and H.S.'s then-teacher expressed
their concerns that H.S.'s placement was not providing
sufficient support for him. Tr. 1030-31. Though Plaintiff
informed the District about her concerns, the CSE received no
response from the District. As a result, Plaintiff
unilaterally enrolled H.S. at the Rebecca School, a private
school. Tr. 1037. By the 2011-2012 school year, H.S. was
thirteen and was starting his third year at the Rebecca
Rebecca School, H.S. was in a class with five students, one
teacher, and two teacher assistants. H.S. also had a 1:1
paraprofessional and regularly received speech and language
therapy, occupational therapy (“OT”), and
physical therapy (“PT”). Tr. 908-09.
January 26, 2011, the District convened a CSE meeting to
develop an IEP for H.S. for the 2011-2012 school year. Ex. 4.
The CSE was comprised of Plaintiff; Rose Fochetta (“Dr.
Fochetta”), a district school psychologist; Feng Ye, a
district representative/special education teacher; Avis
Alexander, a district social worker; Sandra Morabito, a
parent member; Gwen Levine, a Rebecca School social worker;
and Sara Gerstein, H.S.'s teacher at the Rebecca School.
Ex. 4. Gerstein participated via telephone. Of the five
professionals that comprised the CSE, only three - Dr.
Fochetta, Alexander, and Gerstein - had met H.S. prior to the
materials available to the CSE at the time of the meeting
included: (1) H.S.'s IEP for the previous year
(2010-2011); (2) a 2009 Psycho-Educational
(“P-E”) evaluation; (3) a 2009 social history
update; (4) an October 2010 classroom observation report; and
(5) a December 2010 Rebecca School Interdisciplinary Report
of Progress (“Rebecca Progress Report”):
H.S.'s 2010 IEP. The CSE meeting for H.S.'s
2010 IEP was held on April 8, 2010. The CSE recommended that
H.S. receive instruction in a 6:1:1 special class in a
specialized school and related services. The related services
included a 1:1 crisis management paraprofessional, speech and
language therapy, PT, and OT. Notably, it also stated that a
“Non Public School [NPS] program was considered and
rejected.” The CSE found that H.S. “had
previously been in an NPS school for 5 years and failed to
make significant academic progress” and maintained that
H.S.'s needs “can best be met within a highly
structured specialized public school program, given
intensive, daily [OT], speech and language therapy and with a
1:1 paraprofessional.” Ex. AA.
P-E Evaluation. The September 14, 2009 P-E
evaluation provides a summary of H.S.'s background,
cognitive functioning, and academic performance. The
evaluation states that H.S. was performing “within the
Severely Delayed range of intellectual functioning” and
was unable to participate in formal testing. The examiner
included information provided by Plaintiff, including that
H.S. could follow certain one-step directions and identify
some colors. The report suggested that H.S. continue speech
and language therapy and OT. Ex. 11.
Social History Update. The social history update was
created at Plaintiff's request. It provides a summary of
H.S.'s educational status, family composition, medical
status, and current functioning. Specifically, the report
states that H.S. is primarily non-verbal, needs constant
supervision, and can do certain activities of daily living
(“ADLs”) with prompting. Ex. 12.
Classroom Observation. The classroom observation was
conducted by Alexander on October 1, 2010 at the Rebecca
School. Alexander observed that H.S. barely responded to
Gerstein's requests and engaged only after several direct
prompts by her. The observation report noted that H.S.'s
paraprofessional was not present and because of this H.S.
“was more withdrawn” than usual. Ex. 13.
Rebecca School Progress Report. The twelve-page
December 2010 Rebecca Progress Report provides a
comprehensive overview of H.S.'s education/functional and
emotional developmental levels, the curriculum at the Rebecca
School and the OT, PT, and speech and language therapy H.S.
received. Notably, the report provides that although H.S. may
get distracted by noise or peers in a dysregulated state,
with “maximum 1:1 adult support in a soothing
environment, ” H.S. “is able to engage in a
prolonged continuous flow for up to 30 minutes with familiar,
motivating adults.” A large focus of his OT sessions
was to help H.S. with regulation, body awareness, and
coordination. The major focus during PT was to help H.S.
build “overall muscle strength and increase endurance,
” and “expand his repertoire of gross motor
activities.” The last three pages list numerous long
and short-term goals for H.S, including academic, OT, PT, and
speech and language goals. Ex. 15.
Fochetta testified that she reviewed all of the available
materials in preparation for the meeting and that a copy of
the evaluations and reports were available at the meeting.
Tr. 499-500. However, the 2009 pyscho-educational evaluation
and social history update were not discussed at the meeting.
The CSE relied primarily on the 2010 IEP, the Rebecca
Progress Report, and input from Plaintiff and Gerstein to
develop the IEP. Tr. 501, 510-11, 519, 571; Ex. 4.3, 15.
January 26, 2011 IEP classifies H.S. as a student with
autism. Ex. 4.1, 4.15. With regard to H.S.'s academic
performance and learning characteristics, the IEP provides
that H.S. “performed within the severely delayed range
of cognitive functioning and . . . presents with significant
receptive and expressive language delays. He demonstrates
self-stimulatory behaviors such as flicking his fingers and
jumping up and down while making loud vocalization.”
Id. The IEP noted that H.S. was nonverbal and
communicated using a Pictures Exchange Communications System
(“PECS”) and gestures and that he was working on
“his pre-academic skills.” H.S. was also
“sensory seeking” and enjoyed deep pressure.
Id. With regard to his social/emotional performance,
the IEP provides that H.S.'s social functioning was
“constrained by his communication limitations.”
Id. He also presented as either “up-regulated,
” described as needing constant movement activities, or
“under-regulated, ” described as acting lethargic
and needing “adult support to become involved in an
activity.” Id. The IEP also notes that H.S.
exhibits behavior that “seriously interferes with
instruction and requires additional adult support” and
lists his management needs as requiring the support of a 1:1
crisis management paraprofessional; and benefiting from
sensory supports and movement breaks throughout the school
regard to H.S.'s health and physical development, the IEP
notes that he “presents with a mixed sensory
profile.” Ex. 4.5. H.S. is “under-responsive to
vestibular and proprioceptive stimulation, requiring intense
input in order to respond.” Id. He is also
“hyper- responsive to auditory input” and
frequently “places his hands over his ears to block out
loud noises.” Id. The IEP also states that
H.S. “demonstrates postural insecurity” and that
he resisted surfaces that do not offer a stable base of
support. Id. To address his physical and health
needs, the IEP notes that H.S. benefitted from the use of
PECS, needed the support of OT and PT; and possibly needed
assistance “in cleaning himself after toileting.”
also includes annual goals and short-term objectives to be
achieved by the end of the 2011-2012 school year. Ex. 4-6.1
to 4-6.7. It specifies twelve annual goals in reading, math,
OT, PT, speech and language therapy, and ADL. These goals
were further broken down into more than thirty-five
short-term objectives. Id. The annual goals were
primarily taken from H.S.'s previous IEP. According to
Dr. Fochetta, the CSE modified H.S.'s academic and ADL
goals using input from Gerstein and Plaintiff, respectively.
H.S.'s OT goals, taken from the Rebecca Progress Report,
were also upDated: the CSE. Though the IEP did not include
specific goals regarding H.S.'s social-emotional
functioning, it did provide goals related to helping H.S.
maintain a “regulated state.” Tr. 543-48.
H.S.'s needs as described in the IEP, the CSE recommended
that he be placed in a 12 month, 6:1:1 special class in a
specialized school, with a full-time 1:1 crisis management
paraprofessional. Ex. 4-1. In addition, the IEP provided that
H.S. should continue to receive speech and language therapy
(five thirty-minute sessions per week in a separate
location), PT (three thirty-minute sessions per week in a
separate location), and OT (five thirty-minute sessions per
week in a separate location). Ex. 4-7 to 4-8. The CSE noted
that due to H.S.'s significant delays in communication
and socialization, he required “greater support than
can be provided in a general education setting.”
Id. The IEP also provided that H.S. would
participate in alternative assessments due to his significant
cognitive and academic deficits and that he would be further
assessed through “teacher observation and teacher-made
indicates that the CSE considered and rejected educational
services for fewer than twelve months, specialized classes of
student to teacher rations of 12:1:1 and 8:1:1, and a
specialized class with a ratio of 6:1:1 without the 1:1
support of a crisis management paraprofessional. Ex. 4-8. It
noted that these programs were not appropriate for H.S.
because they were “insufficiently supportive.”
H.S. needed smaller ratios in order to “receive
sufficient sensory support to be engaged for academic
last page, the IEP includes H.S.'s Behavior Intervention
Plan (“BIP”). Ex. 4-016. The BIP lists H.S.'s
interfering behaviors as “self-stimulatory behaviors
manifested by flicking his fingers in front of his eyes,
” and difficulty communicating his needs to others. It
further provides that H.S. “needs frequent sensory and
movement breaks throughout the day, ” and that if he is
“denied his wants, he may go limp, drop to the floor
and refuse to engage with others.” H.S. is also
described as “very distracted by food being around him,
and will focus on the food rather than the task at
hand.” Id. Additionally, the BIP sets
behavioral goals and provides strategies to help address
H.S.'s behaviors. These strategies include providing
“deep pressure, vestibular and proprioceptive input as
well as movement breaks throughout the school day” and
a 1:1 support in order to “increase his engagement and
availability for academics, ” “sustain engagement
with an adult, ” and “reduce self-stimulatory
behaviors.” Id. The BIP does not specifically
identify the particular sensory equipment that would be used
or how the movement breaks would be implemented. It only
restates the services to which H.S. would be entitled,
namely, speech and language therapy, OT, PT, and a 1:1 crisis
management paraprofessional. Id.
claims that she objected to the recommendation that H.S.
attend a 6:1:1 special class at the CSE meeting. Memorandum
of Law in Support of Plaintiff's Motion for Summary
Judgment (Doc. 22) (“Pl. Memo”) at 5. However,
she was given no opportunity to express her concerns and the
CSE meeting was “abruptly” ended as soon as she
began expressing her disagreement. Id.
14, 2011 (approximately five months after the CSE meeting),
the District sent Plaintiff a Final Notice of Recommendation
(“FNR”) offering H.S. a placement in a 6:1:1
special class at ¶ 721R The Richard H. Hungerford School
(“Hungerford”), with related services and the
provision for a 1:1 crisis paraprofessional for the 2011-2012
school year. Ex. 5. Though Plaintiff had previously visited
Hungerford, shortly after receiving the FNR she returned to
the school for a visit. Tr. 1056-57. During this visit,
Plaintiff met with Michael Pepe (“Pepe”), the
Assistant Principal of Organizations at Hungerford, and a
parent coordinator. Plaintiff testified that, among other
things, she received a tour of the school in which she saw a
classroom, the lunchroom, and the multipurpose room. Tr.
1058-63. Though she did not know H.S.'s specific class
placement at the time, Plaintiff found that Hungerford could
not meet H.S.'s needs or adequately implement his IEP.
letter dated June 21, 2011, Plaintiff informed the District
that she rejected the recommended placement and that she
would be requesting an impartial hearing to receive funding
for H.S.'s tuition at the Rebecca School. Ex. P.
Plaintiff claimed that she found Hungerford to be an
inappropriate place for H.S. because it was “too noisy,
” the curriculum was “too advanced, ” and
the cafeteria was overly stimulating during the lunch period.
Id. She further claimed that the school “may
not be able to fulfill all of the related service mandates,
” though she noted that the FNR had not specified the
particular class that H.S. would be joining. Id. She
also argued that the class ratio (6:1:1) would not provide
sufficient support and structure for H.S. and that the
present levels of performance and goals in the IEP were not
adequate to meet his needs. Id. Lastly, Plaintiff
claimed that Pepe told her that H.S. might receive a Related
Services Authorization (“RSA”) and that there
was “no guarantee” that H.S. would receive the
mandated services during the school day. Tr. 1063, 1070-71.
The District did not respond to her letter. Tr. 1078-79.
same day, Plaintiff paid the Rebecca School a $2, 500 deposit
for the 2011-2012 school year. The next day, on June 22,
2011, she signed a contract to re-enroll H.S at the school.
Ex. R; Tr. 826. The tuition for the 2011-2012 school year at
the Rebecca School was $94, 750 plus an additional $19, 845
for the cost of the 1:1 paraprofessional. Ex. 18-1, 18-7; Tr.
826. Plaintiff claims that she is legally obligated to pay
tuition, though she is ...