United States District Court, S.D. New York
J.S. and R.S., individually and on behalf of JOHN S., a minor, Plaintiffs,
THE NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
the plaintiffs Lawrence D. Weinberg
the defendant Justin Killian Lesley Berson Mbaye Son K. Le
OPINION AND ORDER
COTE UNITED STATES DISTRICT JUDGE
and R.S. (collectively, the “Parents”) appeal
from the decision of the State Review Officer
(“SRO”) denying reimbursement for tuition under
the Individuals with Disabilities Education Act
(“IDEA”) for their son, John S. The Parents
principally raise one procedural deficiency and three
substantive deficiencies in the individualized education
program (“IEP”) prepared for John by the New York
City Department of Education (the “Department”)
for the 2013-2014 school year. For the reasons that follow,
the decision of the SRO is affirmed, and the Department's
motion for summary judgment is granted.
following facts are taken from the administrative record or
are undisputed by the parties.
a six-year-old student with autism. Under the IDEA, John is
entitled to receive a free appropriate public education
(“FAPE”) from the Department. Alternatively, if
the Department fails to provide a FAPE, the Parents may
enroll John in a private school and obtain reimbursement for
the Department, subject to certain restrictions. The instant
appeal concerns the IEP for the 2013-2014 school year. In the
previous year, 2012-2013, John attended the Seton Foundation
for Learning (“Seton”).
The Individualized Education Program
April 26, 2013, a Committee on Special Education
(“CSE”) met and developed the IEP for the
2013-2014 school year. Present at the meeting were (1)
John's mother, R.S.; (2) the Department's
representative and school psychologist, Edward O'Connor;
(3) the Department's special education teacher, Theresa
Biancoviso; (4) a parent representative, Tom Feola; and (5)
John's classroom teacher from Seton, Jon Paul Pablo.
According to the IEP, John was performing at a kindergarten
or first-grade level with developmental delays in speech,
motor skills, and self-regulation.
recommended placement in a 6:1:1 special education
classroom in a specialized school with the following
related services: adapted physical education, counseling,
occupational therapy, parent counseling and training,
physical therapy, and speech-language therapy. The Department
proposed placing John at a school on Staten Island identified
as P373R @ P40 (“P373”) for the 2013-2014 school
year. On June 26, 2013, the Parents enrolled John at Seton
and notified the Department that they were rejecting the
2013-2014 IEP and placement.
The IHO Hearing & Decision
August 26, 2013, the Parents requested a hearing before an
impartial hearing officer (the “IHO”) and sought
reimbursement for the 2013-2014 school year, arguing that the
IEP denied John a FAPE. On March 6, 2014, an IHO was assigned
to the matter and scheduled a hearing for April 11. By order
dated March 24, the IHO set a schedule for pre-hearing
submissions and directed the parties to file their direct
testimony by affidavit in advance of the hearing. If either
party desired to present live testimony, they were directed
to submit a request to that effect.
response to the IHO's March 24 order, counsel for the
Parents requested an adjournment of the hearing and the
recusal of the IHO on the basis that counsel had a surgical
procedure that conflicted with the hearing date. The IHO
denied both requests. On March 27, counsel for the Parents
renewed the request, and the IHO again denied it.
April 11 hearing, the Parents were represented by an attorney
affiliated with the same firm as their original counsel. When
the counsel attempted to record the hearing, which was
already being recorded, the IHO ordered the him to turn off
his device. When he refused to do so, the IHO ended the
hearing and dismissed the case. Three days later, the IHO
reconsidered her decision, reinstituted the case, and set it
for hearing on April 29.
emails dated April 18 and 23, the Parents requested that
direct testimony be presented live, rather than by affidavit,
and again requested the IHO's recusal. The requests were
morning of the April 29 hearing, the Parents' counsel
again requested an adjournment. The IHO denied this request
but granted an alternative request to begin the hearing
earlier in the day. Despite the Parents' late request for
live testimony, the IHO permitted R.S. to testify. In a
decision of May 15, 2014, the IHO ...