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J.S. v. New York City Department of Education

United States District Court, S.D. New York

February 24, 2017

J.S. and R.S., individually and on behalf of JOHN S., a minor, Plaintiffs,

          For the plaintiffs Lawrence D. Weinberg

          For the defendant Justin Killian Lesley Berson Mbaye Son K. Le



         J.S. 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.


         The following facts are taken from the administrative record or are undisputed by the parties.

         I. John's Background

         John is 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”).

         II. The Individualized Education Program

         On 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.

         The IEP recommended placement in a 6:1:1 special education classroom[1] 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.

         III. The IHO Hearing & Decision

         On 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.

         In 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.

         At the 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.

         In 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 denied.

         On the 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 ...

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