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

United States District Court, S.D. New York

February 14, 2017

C.M., individually and on behalf of H.S., Plaintiffs,
THE NEW YORK CITY DEPARTMENT OF EDUCATION, and CARMEN FARIÑA, in her official capacity as Chancellor of the New York City Department of Education, Defendants.


          EDGARDO RANLOS, U.S.D.J.

         C.M., (“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 judgment.

         For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED and Defendants' motion for summary judgment is GRANTED.


         A. The IDEA

         Congress 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.

         A 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)).

         Because 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)).

         To 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).

         In 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).

         After 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.

         B. Claims for Tuition Reimbursement Under the IDEA

         “‘Parents 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. 2014).

         “The 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).[1]

         With 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.

         “Under 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).[2] 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.”) (emphasis added).

         C. Section 504 Claims

         Section 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).

         “A 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)).

         “Since 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.


         A. Background Facts

         H.S. is an eighteen-year-old student diagnosed with Pervasive Developmental Disorder, an autism spectrum disorder. Ex. 4.[3] 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.[4] 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 School.[5]

         At the 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.

         B. CSE Meeting

         On 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 CSE meeting.

         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.

         Dr. 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.

         C. 2011 IEP

         The 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 day. Id.

         With 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.” Id.

         The IEP 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.[6] 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.

         To meet 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 materials.” Id.

         The IEP 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 tasks.”[7] Id.

         On the 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.

         Plaintiff 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.

         D. Placement Offer

         On June 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.

         In a 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”)[8] 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.

         That 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 ...

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