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

United States District Court, E.D. New York

March 17, 2017

J.B., individually and on behalf of K.B., Plaintiffs.


          ROSLYNN R. MAUSKOPF United States District Judge.

         On April 15. 2015, plaintiff J.B. (the "Parent'') commenced this action on behalf of her child, K.B., pursuant to the Individuals With Disabilities Education Improvement Act, 20 U.S.C. §1400 el seq, ("IDEA"). (Compl. (Doc. No 1.) The Parent alleges that the New York City Department of Education ("DOE") failed to provide a "free and appropriate public education" ("FAPE") for the 2014-2015 school year, and that the Parent's placement of K.B. at a private school was the least restrictive environment available to meet her needs.

         On January 20, 2015, the Parent Filed a due process complaint seeking tuition reimbursement for K.B.'s attendance at the Rebecca School for the 2014-2015 school year. (Id. at 515.) On July 28, 2015, an Impartial Hearing Officer ("IHO") ruled against the Parent and found that K.B, was provided a FAPE. (Id. at 31-53.) The Parent appealed to the New York State Education Department Office of State Review, and on November 4, 2015, the State Review Officer ("SRO") affirmed the IHO's decision. (Id. at 6-29.) The Parent now challenges the SRO's decision in this Court.

         Before the Court are the parties' cross-motions for summary judgment. For the reasons set forth herein, the Parent's motion for summary judgment (Pet'r. Mem. (Doc. No. 24)) is denied, and the DOE:s cross-motion for summary judgment (Def. Mem. (Doc. No. 23)) is granted.


         I. The IDEA

         The IDEA provides federal funds to states that assure all children with disabilities the right to a FAPE. 20 U.S.C. §§ 1412(1), 1415. A FAPE must include special services tailored to meet the child's particular needs. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119. 122 (2d Cir. 1998); 20 U.S.C. § 1401(a)(18). For an IEP to be adequate under the IDEA, the IEP must be likely to produce progress rather than regression and afford "an opportunity greater than mere trivial advancement." M.H. v. New York City Dep 'i of Educ, 685 F.3d 217, 224 (2d Cir. 2012) (internal quotation marks omitted). However, the IDEA does not require the IEP to furnish every special service necessary to maximize each child's potential. Id.

         New York receives federal funds under the IDEA, and, therefore, must comply with its requirements. Accordingly, the DOE must, at least annually, set forth the student's particular needs - and the services required to meet those needs - in an IEP that includes descriptions of: (1) the student's present levels of academic achievement and functional performance; (2) annual goals, including short-term instructional objectives; (3) how the student is progressing toward these annual goals; (4) the special education, related services, and supplementary aids and devices that the student will receive; (5) the extent to which the student will be able to participate in a regular educational program; (6) the proposed services' projected initiation date and duration; and (7) objective criteria, evaluation procedures, and schedules for determining, on at least an annual basis, whether the student is achieving his instructional objectives. 20 U.S.C. § 1414(d).

         II. K.B.'s Medical and Educational History

         The following facts are not in dispute. During the relevant period for purposes of this litigation, 2014-2015. K.B. was 15 years old. K.B. was first diagnosed with autism in 2008. and she presents with a variety of severe deficits. (Id.) For example, K.B. has developmental delays, which require full modification of her education curriculum in terms of depth, breadth, and pacing of curricular activities. (Id. at 625.)[1] She presents with deficits in all areas of language and communication, visual-spatial perception, sensory processing, and oral motor, fine motor, and gross motor skills. (Id. at 599-620.) At the time of the CSE meeting, K.B. was not yet fully toilet trained. (Id. at 624.)

         K.B. requires adult assistance to succeed in a school setting. In order to be successful in a classroom, K.B. needs a sensory diet at least every two hours. (Id. at 468, 604, 615.) For example, she requires brushing protocol, joint compression, and walking on a treadmill to prevent dysregulation. (Id.) When surprised by a loud noise, K.B. physically "freezes" and becomes unsure of depth perception. (Id. at 468, 599, 611.) In addition, K.B. requires an oral-motor protocol to avoid choking. (Id. at 477, 483, 608, 619.)

         Due to K.B.'s lack of progress from kindergarten through eighth grade, the Parent filed a due process complaint for the 2012-2013 school year. (Id. at 255.) On May 2, 2013, the DOE authorized the Parent to place K.B. in a state-approved private school. (Id. at 448.) On July 3, 2013, the Parent placed K.B. at the Rebecca School, and the DOE funded such placement for the 2013-2014 school year. (Id. at 259.)

         III. IEP for the 2014-2015 School Year

         In June 2014, K.B's Committee on Special Education ("CSE") met to establish her IEP recommendation for the 2014-2015 school year. (Id. at 621-22, 641.) The CSE team included: the Parent; K.B.'s teacher at the Rebecca School, Sara Gerstein; social worker at the Rebecca School, Bonnie Waring; DOE school psychologist and district representative, Rose Fochetta; and DOE special education teacher, Feng Ye. (.Id.) The two DOE members recommended, and the CSE adopted, a twelve-month, 6:1 program (6 students, 1 teacher, and 1 aide) in a District 75[2]program for students with disabilities. (Id. al 642.) The CSE further recommended one individual 45-minute session and one group 45-minute session of occupational therapy per week, two individual 45-minute sessions and one group 45-minute session of speech-language therapy per week, two individual 45-minute sessions of physical therapy per week, adapted physical therapy twice per week, travel training once per week, one individual 45-minute session of counseling per week, and one parent counseling and training session for 60 minutes per month. (Id. at 627-628.) The IEP recommended the use of visual cues, teacher prompting, hand over hand support for writing, and a sensory diet. (Id. at 625.) The IEP included twelve annual goals, each with short-term objectives and progress checks, addressing the development of basic literacy, math, motor, language, and visual spatial skills. (Id. at 627-632.)

         On June 10, 2014, the DOE sent the Parent a prior written notice summarizing the IEP. (Id. at 644.) On June 16, 2014, the DOE sent the Parent a school location letter proposing PS Q177[3] to implement K.B.'s IEP for 2014-2015 year. (Id. at 648.) The location letter also provided information about how the Parent could visit K.B.'s placement school. (Id.) On June 20, 2014. the Parent sent a letter complaining that she was unable to reach the "placement officer" at PS Q177 in order to arrange a visit before leaving for vacation. (Id. at 456.) The Parent added:

If the CSE does not work with me to provide an appropriate educational program, I will be making a unilateral placement in a private school and will seek to recover the cost of tuition and related expenses from the New York City Department of Education.

(Id.) The Parent unilaterally re-enrolled K.B. in the Rebecca School for the 2014-2015 school year. (Id. at 461.) On August 26, 2014, the DOE sent a letter informing the Parent that it deemed the program and placement at PS Q177 to be appropriate for K.B. (Id. at 460.) On January 20. 2015, the Parent sought review before an impartial hearing officer. (Id. at 515.)

         IV. IHO and SRO Hearings

         The IHO presided over three days of testimony between April 21, 2015, and June 3, 2015. (Id. at 125-230.) On July 28, 2015, the IHO issued his decision finding that the DOE offered a FAPE to K.B. for the 2014-2015 school year. (Id. 31-53.) The IHO found that the IEP reflected the evaluative information available to the CSE. had sufficiently clear and measurable goals, and provided sufficient support to meet K.B.'s needs. (Id.) Specifically, the IHO found that the IEP provided sufficient direct intervention and support for K.B.'s management needs, including "hand over hand support for writing" and "teacher prompting." (Id. at 50.) The IHO further noted that the IEP contained sufficient annual goals in connection with K.B.'s management needs. (Id. at 51.) In addition, the IHO found that the CSE's recommendation exceeded the amount of occupational therapy the student received at the Rebecca School during the 2013-2014 school year. (Id.) With respect to K.B.'s oral motor needs, the IHO found that a speech-language therapist could develop an "oral motor protocol" for the student and that, therefore, any failure to specify a "protocol" in K.B.'s IEP did not rise to a denial of a FAPE. (Id.) Ultimately, the IHO concluded that the June 2014 IEP offered K.B. the opportunity to progress in the least restrictive environment available to meet her needs. (Id. at 53.)

         On November 4, 2015, the SRO issued a detailed decision affirming the IHO's decision. (Id. at 6-29.) First, the SRO found that the IEP provided sufficient annual goals and short-term objectives. (Id. at 10-12.) Procedurally, the SRO found that even if the IEP's annual goals were not finalized until after the meeting, '"the parent's opportunity to participate in the CSE meeting was not infringed" because she was involved in the development of the IEP. (Id. at 10-11.) Substantively, the SRO found that the IEP's annual goals were sufficiently wide-ranging, and complete with required criteria for evaluating progress. (Id. at 11.) To the extent that the annual goals were overbroad, the SRO found that the IEP's "corresponding short-term objectives mitigate[d] the defect by providing sufficient specificity to evaluate the student's progress." (Id.) Specifically, to the Parent's contention that the IEP did not contain any fine-motor goals, the SRO found that it included "14 short-term objectives that addressed fine motor needs" and '"hand over hand support for writing." (Id. at 12.) In turn, the SRO found that "'the evidence in the hearing record demonstrates that the annual goals in the June 2014 IEP, combined with the corresponding short-term objectives, were adequate to address the student's needs and provide for an appropriate method of measurement or evaluative procedure." (Id. at 12.)

         Second, the SRO found that "a 12-month school year program in a 6: 1 1 special class placement, together with adapted physical education, travel training, annual goals and short-term objectives, related services, and strategics to address the student's management needs" was ""reasonably calculated" to provide K.B. with a FAPE. (Id. at 15.) That is, while a 6:1 1 program may not be "ideal" for K.B in the eyes of the Parent, it reflected a "reasonable compromise to achieve a sufficient amount of support in the classroom" for K.B. (Id. at 13-14.)

         Third, the SRO found that the IEP provided for adequate occupational therapy and sensory support. (Id. at 16.) That is, it "contained sufficient information regarding the student's sensory needs, included appropriate OT goals, reflected an increase in the duration of OT services, and, while failing to detail a location for OT services with specificity, recommended sufficient and appropriate OT services for the student to receive educational benefit." (Id.)

         Fourth, the SRO addressed the Parent's contention that the IEP failed to include oral-motor exercises that sufficiently address K.B.'s propensity to choke. (Id. at 18.) The SRO found that while the IEP did not address any specific exercise to address choking, it did include an "oral motor protocol" and three speech-language therapy sessions per week. (Id.) Based on these recommended exercises, the SRO found that the failure to directly address choking did not rise to a denial of a FAPE. (Id. at 19.)

         Fifth, the SRO addressed whether the IEP's failure to recommend music therapy, in lieu of traditional counseling to address "social/emotional and internal thoughts, " amounted to denial of a FAPE. (Id. at 19.) The SRO found that while K.B. "may have benefitted from music therapy due to her love of music, " she could also "initiate interaction, share attention, and communicate with peers and adults outside of musical activities." (Id. at 20.) Thus, denial of the ...

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