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

United States District Court, S.D. New York

March 30, 2017

M.M. on behalf of herself individually, and her child, Plaintiff,


          P. Kevin Castel United States District Judge

         Plaintiff, M.M., brings this action in her individual capacity, and as a representative of her child, C.M., against the New York City Department of Education (“DOE”), the New York City Board of Education, and the Chancellor of the New York City Schools under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), 42 U.S.C. § 1983, and New York State law. Pursuant to previous administrative proceedings, a State Review Officer (“SRO”) awarded C.M. compensatory education as relief for the defendants' failure to provide C.M. with a free appropriate public education (“FAPE”) in violation of the IDEA. M.M appeals this award, seeking additional compensatory education and other relief, and moves for summary judgment. Defendants cross move for summary judgment to uphold the amount of compensatory education granted by the SRO and against all of M.M.'s other claims.


         I. The IDEA.

         The IDEA requires states that receive federal funding for education to provide students with disabilities a FAPE. 20 U.S.C. § 1412(a)(1)(A). The services that a school must provide to ensure that a student receives a FAPE are determined by the student's individualized educational program (“IEP'), which is “a written statement 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.” R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012). “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, No. 15-827, 2017 U.S. LEXIS 2025, at *21 (Mar. 22, 2017).

         The determination of whether an IEP is sufficient to meet this standard differs according to the individual circumstances of each student. See id. at 22. For a student who is “fully integrated in the regular classroom, ” an IEP should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id. at 23 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203-04 (1982)). For a student not fully integrated in the regular classroom, an IEP must aim for progress that is “appropriately ambitious in light of [the student's] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Id. at 25. This standard is “markedly more demanding” than the one the Court rejected in Endrew F., under which an IEP was adequate so long as it was calculated to confer “some educational benefit, ” that is, an educational benefit that was “merely” more than “de minimis.” Id. at 17, 26.

         In New York, a student's IEP is developed by a committee on special education (“CSE”) that is comprised of parents, teachers, and state representatives. The IDEA also requires that states provide parents with an opportunity to object “to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6)(A).

         To provide parents this opportunity to object, New York has established a two-tier system of administrative review. In the first instance, parents who wish to challenge a student's IEP or placement must file a due process complaint setting forth the basis for the challenge and requesting an impartial hearing before an Impartial Hearing Officer (“IHO”). See N.Y. Educ. L. § 4404(1); 8 NYCRR § 200.5(i)(1)(IV). Following the hearing and determination by the IHO, either party may appeal the decision to a SRO. See N.Y. Educ. L. § 4404(2). If either party is unsatisfied with the SRO's decision, they may bring a civil action challenging that decision in federal or state court. 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. L. § 4404(3).

         The IDEA allows an IHO or SRO to fashion an appropriate remedy for students not provided a FAPE, and the Second Circuit has held that compensatory education is an available remedy under the IDEA to make up for denial of a FAPE. P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding compensatory education awarded by hearing officer). The award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015) (qutoing Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)).

         IDEA actions generally are resolved by summary judgment. See, e.g., Thies v. New York City Bd. of Educ., No. 07 cv 2000 (RMB), 2008 U.S. Dist. LEXIS 11354, at *5 (S.D.N.Y. Feb. 4, 2008); J.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F.Supp.2d 386, 394 (S.D.N.Y. 2004).

         II. Factual Record and Procedural History.

         Plaintiff M.M. is the parent of C.M., a 10-year-old girl with autism. (Pl.'s Rule 56.1 Statement of Undisputed Material Facts, October 31, 2015, Dkt. No. 31 (“Pl.'s 56.1”) ¶ 2.)

         C.M. received early intervention services and thereafter received special education services from defendants through the Committee on Preschool Special Education that included a special education class, as well as 10 hours per week of after-school, home-based individual (“1:1”) services using the instructional strategy of Applied Behavioral Analysis (“ABA” or “ABA Services”), and 12-month extended school year (“ESY”) services.[1] (Pl.'s 56.1 ¶ 22.) C.M. transitioned to defendants' CSE for the 2010-2011 SY, at which time she entered kindergarten. (Pl.'s 56.1 ¶ 23.)

         M.M alleges that the IEP that the CSE offered to C.M. for the 2010-2011 SY did not include 1:1 home-based ABA or ESY services. (Pl.'s 56.1 ¶ 24.) M.M. filed a due process complaint and C.M. received 1:1 home-based ABA services pursuant to a pendency order. (Pl.'s 56.1 ¶ 25.) M.M. alleges that the IHO ruled in M.M.'s favor on the merits of her complaint, finding that C.M. had been denied a FAPE. (Pl.'s 56.1 ¶ 25.)

         For the 2011-2012 SY, C.M. transferred to community school P.S. 234Q, which she currently attends. (Pl.'s 56.1 ¶ 27.) For the 2011-2012 SY, defendants offered another IEP without 1:1 teaching services, home-based services, ABA, or ESY services. (Pl.'s 56.1 ¶ 26.) M.M. filed another due process complaint and an IHO ruled in her favor. (Pl.'s 56.1 ¶ 26.) In the IHO's Findings of Fact and Decision issued on March 15, 2012 (the “March 2012 Decision”), the IHO directed the defendants to modify C.M.'s IEP to include a 12-month program and home-based ABA services for 10 hours per week at a rate of $102 per hour. (Pl.'s 56.1 ¶ 28.)

         Defendants developed a May 2012 IEP, which was amended June 22, 2012, and included the services ordered by the IHO in the March 2012 Decision. (Pl.'s 56.1 ¶ 29.) M.M. filed a due process complaint challenging this IEP, and on August 22, 2012, IHO De Leon issued an order (the “August 2012 Order”), directing defendants to provide C.M. with 10 hours per week of 1:1 home-based ABA for the 2012-2013 SY at $102 per hour, as well as other services contained in the 2012 IEP. (Pl.'s 56.1 ¶¶ 30, 32.) IHO De Leon ruled that M.M. could file a new due process complaint concerning claims that she had not previously raised. (Pl.'s 56.1 ¶ 33.) M.M. filed another due process complaint for the 2012-2013 SY. (Pl.'s 56.1 ¶ 34.) The matter resulted in a Stipulation of Settlement and Agreement (the “Stipulation”) between M.M. and defendants dated May 30, 2013. (Pl.'s 56.1 ¶ 35.)

         Pursuant to the Stipulation, separate and apart from the 10 hours per week of home-based ABA, defendants agreed to fund 690 hours of ABA Services (the “ABA Bank”) and independent assistive technology as well as speech and language evaluations. (Pl.'s 56.1 ¶ 36.) C.M.'s compensatory ABA Bank went into effect on July 1, 2013, and continued until June 30, 2014. (Pl.'s 56.1 ¶ 37.)

         On June 12, 2013, defendants conducted an IEP review for the 2013-2014 SY. (Pl.'s 56.1 ¶ 42.) The 2013 IEP did not include any ABA Services, home-based services, or 1:1 special education teacher services. (Pl.'s 56.1 ¶ 44.) This IEP recommended that C.M. attend a class with a 12:1:1 student-teacher-paraprofessional ratio in a community school with related services and receive 12-month ESY services in a DOE Specialized School. (Pl.'s 56.1 ¶ 45.) Defendants stopped funding C.M.'s home-based ABA services on June 30, 2013. (Pl.'s 56.1 ¶ 46.)

         A. M.M.'s Due Process Complaint and Hearing.

         On July 11, 2013, M.M. filed a due process complaint (“2013 Due Process Complaint”) under the IDEA alleging that the DOE failed to provide C.M. with a FAPE for the 2013-2014 SY, improperly denied her 1:1 instruction, ABA Services, home-based services, and violated her right to education in the least restrictive environment (“LRE”). (Pl.'s 56.1 ¶ 6.) M.M. also brought claims under Section 504 and section 1983 spanning multiple years. (Pl.'s 56.1 ¶ 8.) M.M. sought various forms of relief, including independent educational evaluations (“IEEs”), compensatory education, assistive technology, declaratory rulings concerning FAPE and the other claims raised in the 2013 Due Process Complaint, and a legally valid IEP containing the last agreed upon services, as well as additional services. (Pl.'s 56.1 ¶ 9.)

         On August 15, 2013, a pendency hearing was held before IHO Roth to determine C.M.'s stay-put program and placement. (Pl.'s 56.1 ¶ 48.) On September 27, 2013, IHO Roth issued an Interim Order on Pendency (“2013 IOP”). (Pl.'s 56.1 ¶ 49.) IHO Roth found in the 2013 IOP that the June 2012 IEP constituted C.M.'s stay-put placement for the 2013-2014 SY. (Pl.'s 56.1 ¶ 55.) IHO Roth, pursuant to the 2013 IOP, directed the defendants to fund the 10 hours per week of [Special Education Itinerant Teacher (“SEIT”)]/ABA included on the June 2012 IEP. (Pl.'s 56.1 ¶ 56.) Neither party appealed the 2013 IOP. (Pl.'s 56.1 ¶ 57.)

         As a result, during the 2013-2014 SY, and while the hearing on the 2013 Due Process Complaint was pending, C.M. received a total of 25 hours per week of 1:1 ABA Services: 10 hours per week via C.M.'s right to pendency and 15 hours per week from the ABA Bank. (Pl.'s 56.1 ¶ 72.)

         On November 7, 2013, IHO Roth held a hearing on M.M.'s challenge to C.M.'s 2013 IEP. (See Pl.'s 56.1 ¶ 58.) IHO Roth ruled that she had no jurisdiction over policies and procedures. (Pl.'s 56.1 ¶ 59.) IHO Roth then recused herself at the request of M.M.'s counsel. (Pl.'s 56.1 ¶ 60.) Proceedings resumed before IHO De Leon at a hearing held on April 8, 2014. (Pl.'s 56.1 ¶ 61.)

         At the April 8, 2014 hearing, both parties proposed evidence on the record. (Pl.'s 56.1 ¶ 62.) Defendants conceded that they had failed to provide C.M. a FAPE and did not call any witnesses. (Pl.'s 56.1 ¶ 10.) Defendants argued that C.M. was not entitled to compensatory education for defendants' failure to provider her a FAPE because C.M. had made progress during the 2013-2014 SY with the ABA hours from the ABA Bank and the pendency services that she received pursuant to her stay-put placement. (Pl.'s 56.1 ¶ 73.)

         At the hearing, M.M. called four witnesses, including herself. (Pl.'s 56.1 ¶ 85.) Some of M.M.'s witnesses were designated as experts by the IHO. (Pl.'s 56.1 ¶ 90, 117, 155.) These experts testified extensively based on their observations of C.M., interviews with C.M's teachers, and a review of C.M.'s records. (See Pl.'s 56.1 ¶¶ 86-123, 152-59.) They testified regarding C.M.'s disabilities, how those disabilities affected her education, and made recommendations for C.M.'s future educational needs. (See Pl.'s 56.1 ¶¶ 86-123, 152-59.) M.M. testified regarding C.M.'s disabilities and C.M.'s behavior away from school and described the past educational services C.M. had received. (See Pl.'s 56.1 ¶¶ 124-51.) The IHO denied M.M.'s request to admit the report and testimony of Dr. Cecelia McCarton, who conducted a neurodevelopmental evaluation of C.M. on the grounds that such evidence was cumulative and would cause delay. (Pl.'s 56.1 ¶¶ 162-64)

         The IHO denied M.M.'s requested relief for the 2013-2014 SY as moot and denied M.M's request for compensatory education on the merits, but ruled in favor of C.M. to the extent that he ordered defendants to reimburse M.M. for the cost of C.M.'s neurodevelopmental/psychological evaluation and that the CSE reconvene to produce a new IEP for the remainder of the 2014-2015 SY. (Findings of Fact and Decision, November 21, 2014, Case No. 145526 (“IHO Dec.”) at 18.) The IHO did not issue a declaration or ruling as to what set of services and placement constituted C.M.'s last agreed upon placement following the decision, (Pl.'s 56.1 ¶ 174), and did not order that C.M.'s 10 hours per week of ABA Services remain a part of her last agreed-upon program, (Pl.'s 56.1 ¶ 175.)

         M.M. filed a partial appeal of the IHO decision to the SRO. (Pl.'s 56.1 ¶ 184.) Defendants submitted an Answer, but did not cross-appeal. (Pl.'s 56.1 ¶ 13.)

         B. SRO Decision.

         The SRO found that the district, rather than M.M., had the burden of proof on the contested issues at the impartial hearing. (SRO Decision, No. 14-179, March 26, 2015 (“SRO Dec.”) at 7.) The SRO found that:

Although the IHO stated during the impartial hearing that the parent had the burden of proving that the compensatory educational services sought for the student were appropriate, the IHO's decision reflected an appropriate analysis of the factors that go into determining whether an award of compensatory services is warranted, as did other comments he made during the hearing.

(Id.) The SRO went on to state that even assuming that the IHO had misapplied the burden of proof, the SRO's decision was based on an independent examination of the hearing record. (Id.)

         The SRO rejected M.M.'s argument that the IHO improperly restricted the scope or content of questioning witnesses. (Id. at 8.) The SRO upheld the IHO's conclusion that M.M.'s claim seeking modification of C.M.'s IEP for the 2013-2014 SY was moot, but found that the appeal was not moot in its entirety because there was still an ongoing controversy over compensatory education. (Id. at 9.) The SRO awarded 24 hours of compensatory additional parent counseling and training, to be used by October 31, 2015, (id. at 11), and directed the district to provide 1 hour of compensatory 1:1 ABA services for each day in the 2013-2014 12-month school year, for a total of 210 hours, to be used by October 31, 2015, (id. at 13). The ABA award included the 180 day school year and 30 days during the summer portion of the 12-month school year. (Id. at 13 n.13.) The SRO declined to award M.M.'s request to provide C.M. with ESY services every week of the year, even during summer months in which school was not in session. (See id.) The SRO denied M.M.'s request for assistive technology services as a component of the compensatory education award. (Id. at 10-11 n.9.) The SRO further ordered:

[W]hen the CSE next convenes to conduct an annual review of the student's program the district will be directed to consider whether home-based educational services, the provision of instruction using ABA methodology, or assistive technology devices and services are required to enable the student to benefit from instruction and, after due consideration thereof, provide the parent with prior written notice on the form prescribed by the Commissioner specifically indicating whether the CSE recommended or refused to recommend such services on the student's IEP and explaining the basis for the CSE's recommendation therein as well as the evaluative information relied upon in reaching these determinations.

(Id. at 14.) M.M. appeals the compensatory education awarded by the SRO, alleging that the award was insufficient to remedy defendants' failure to provide C.M. with a FAPE, and further appeals other claims not decided by the SRO or IHO.


         “[A] motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact. Rather, the motion serves as a pragmatic procedural mechanism for reviewing a state's compliance with the procedures set forth in IDEA and determining whether the challenged IEP is reasonably calculated to enable the child to receive educational benefits.” Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d Cir 2005) (internal quotation marks omitted). Unlike with an ordinary summary judgment motion, the existence of a disputed issue of material fact will not necessarily defeat a motion for summary judgment in the IDEA context. See, e.g., T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam); Viola v. Arlington Central Sch. Dist., 414 F.Supp.2d 366, 377 (S.D.N.Y. 2006).

         A district court “must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence.” M.H. v. New York City Dep't of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (quoting Gagliardo v. Arlington Central Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). “‘The role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed, ' however, and ‘courts must bear in mind the statutory context and administrative judges' greater institutional competence in matters of educational policy.'” Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014) (quoting R.E., 694 F.3d at 189). Federal courts “must give due weight to these proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” Id. (quoting M.H., 685 F.3d at 240); accord R.E., 694 F.3d at 189 (“courts must bear in mind the statutory context and the administrative judges' greater institutional competence in matters of educational policy” and “must defer to the SRO's decision on matters requiring educational expertise”).

         “District courts are not to make ‘subjective credibility assessment[s], ' and cannot ‘ch[oose] between the views of conflicting experts on . . . controversial issue[s] of educational policy . . . in direct contradiction of the opinions of state administrative officers who had heard the same evidence.'” M.H., 685 F.3d at 240 (alterations and ...

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