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Board of Education of North Rockland Central School District v. C.M.

United States District Court, S.D. New York

June 19, 2017

BOARD OF EDUCATION OF THE NORTH ROCKLAND CENTRAL SCHOOL DISTRICT, Plaintiff,
v.
C.M., individually and on behalf of her child, P.G., Defendants.

          OPINION AND ORDER

          VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.

         Plaintiff Board of Education of the North Rockland Central School District (the “District”), brings this action pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). The District seeks reversal of the portion of the decision of an impartial hearing officer (“IHO”) that found the District had violated Section 504 and granted relief to C.M., the parent of a child with disabilities, P.G. (“Parent”). Parent seeks to have the IHO's decision affirmed or, in the alternative, to have the State Review Officer's (“SRO”) dismissal of Parent's IDEA claims reversed.

         Now pending are the parties' cross-motions for summary judgment. (Docs. ##46, 55).

         For the reasons set forth below, the District's motion is GRANTED and Parent's motion is DENIED.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         BACKGROUND

         I. Statutory Framework

         A. IDEA

         The IDEA was enacted to promote the education of disabled children. 20 U.S.C. § 1400(d)(1)(A); see Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982) (interpreting predecessor statute to IDEA). States receiving public funds are required to provide a free appropriate public education (“FAPE”) to children with disabilities. 20 U.S.C. § 1412(a)(1)(A). Public school districts must provide “‘special education and related services' tailored to meet the unique needs of a particular child, [which are] ‘reasonably calculated to enable the child to receive educational benefits.'” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. at 207).

         States have an obligation under the IDEA to identify, locate, and evaluate “[a]ll children with disabilities residing in the State” to determine whether they require special education and related services. 20 U.S.C. § 1412(a)(3)(A); see Handberry v. Thompson, 446 F.3d 335, 347 (2d Cir. 2006). This so-called “child find” obligation extends to children who are “suspected of being a child with a disability.” 34 C.F.R. § 300.111(c)(1).

         The IDEA requires states to create an individualized education program (“IEP”) for each disabled student. See 20 U.S.C. § 1412(a)(4); see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006) (“The key element of the IDEA is the development of an IEP for each handicapped child.”). The IEP is a “comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs.” Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 368 (1985).

         If the state fails to provide a FAPE to a disabled child, the parents may enroll the child in a private school and seek reimbursement for the cost of the private school from the local board of education. See 20 U.S.C. § 1412(a)(10)(C); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. at 369-70, 374.

         In New York, parents seeking such reimbursement must first file a “due process” complaint challenging the appropriateness of the IEP. FB v. N.Y.C. Dep't of Educ., 923 F.Supp.2d 570, 577 (S.D.N.Y. 2013). An IHO conducts a hearing on the parents' complaint. See N.Y. Educ. Law § 4404(1). A board of education is required to reimburse parents for private educational services if: (i) the board fails to establish the student's IEP provided a FAPE; (ii) the parents establish their unilateral placement was appropriate; and (iii) equitable considerations favor the parents' claim. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); M.W. ex rel. S.W. v. New York City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013). The IHO's decision may be appealed to an SRO at the New York State Education Department. See N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g). The SRO's decision may be challenged in federal court. See 20 U.S.C. § 1415(i)(2)(A).

         B. Section 504

         Section 504 provides that “[n]o otherwise qualified individual with a disability . . . 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).

         “In the educational context, Section 504 imposes requirements on schools that are parallel to the IDEA requirements.” K.H. v. N.Y. City Dep't of Educ., 2014 WL 3866430, at *3 (E.D.N.Y. Aug. 6, 2014). “However, the two statutes provide different protections, because ‘Section 504 provides relief from discrimination, whereas the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination.'” Id. (quoting Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 152 (N.D.N.Y. 1997), aff'd, 208 F.3d 204 (2d Cir. 2000)). As a result, to establish liability under Section 504, “courts have held that a plaintiff must demonstrate more than an incorrect evaluation or substantively faulty IEP.” R.B. ex rel. L.B. v. Bd. of Educ., 99 F.Supp.2d 411, 419 (S.D.N.Y. 2000). Rather, “there must be evidence that a school district acted with deliberate or reckless indifference to the student's federally protected rights or with bad faith or gross misjudgment.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F.Supp.2d 529, 564 (S.D.N.Y. 2010) (internal quotation marks omitted).

         II. Factual Background

         The parties have submitted briefs, statements of material facts pursuant to Local Civil Rule 56.1, and the record and exhibits from the proceedings below, which reflect the following factual background.

         P.G. was born in Novosibirsk, Russia in 1995. According to his medical records, his birth parents were alcoholics. Beginning when he was three years old, P.G. lived in orphanages in Russia, where he was abused, both physically and sexually. Parent and her now deceased husband adopted P.G. in 2003, when he was eight years old, and brought him to the United States. In May 2003, P.G. was diagnosed with prenatal hypotrophy (muscle weakness), perinatal encephalopathy (brain damage of unknown origin), delay in psychological development, and dysarthria (speech impairment). (Parent Ex. C).

         As detailed below, P.G. has a long history of behavioral issues, in addition to developmental disabilities.

         A. First Through Fifth Grades

         P.G. was enrolled in the District on May 9, 2003, entering in the first grade. From the first through fourth grades, i.e., the 2003-2004 through 2006-2007 school years, PG attended Stony Point Elementary School. Initially the District placed him in general education classes with English as a Second Language (“ESL”) services. The District first referred P.G. for special education services on October 8, 2004. Some of the District documents and evaluations from this time and later have an incorrect birth date for P.G., which suggested he was two years younger than his actual age. As a result, some of the evaluations of P.G. likely overstated his abilities. Nevertheless, evaluations showed P.G. was functioning well below grade-level in math and reading, had a very low IQ, and had attention deficits, among other issues.

         On December 16, 2004, the District classified P.G. as a student with an “Other Health Impairment.” (Dist. Ex. 164). He was recommended for consultant teacher services for English language arts and math, a modified curriculum, and a behavior intervention plan.

         In April 2005, the District's Committee on Special Education (“CSE”) recommended a 15:1 student-teacher-ratio class in the third grade for P.G. for all core subjects, in addition to counseling once per week.

         In April 2006, the CSE made the same recommendations for P.G.'s fourth grade, but added a self-contained reading class.

         For the fifth grade, i.e., the 2007-2008 school year, P.G. attended Farley Middle School, where he was placed in a self-contained program for all core classes. This is when “things began to unravel for P.G.” (Parent SOF ¶ 97). “He became frustrated with the other students, the teacher and the work.” (Id.). In addition, his “behavior issues grew worse and he would often run away and hide in school.” (Id. ¶ 99). He was also performing “significantly below grade level in all academic areas.” (Dist. SOF ¶ 128).

         A reevaluation from February 2008 showed P.G. was still performing academically at a very low level and had significant cognitive difficulties. Nevertheless, he remained classified as “other health impaired, ” rather than developmentally or learning disabled. (See Dist. Ex. 97).

         B. BOCES Programs - Repeated Fifth Grade and Sixth Grade

         On March 10, 2008, the District held a CSE meeting for P.G.'s sixth grade, i.e., the 2008-2009 school year. The IEP notes P.G.'s significant needs and low cognitive function. On June 11, 2008, P.G. was suspended from school for hitting two students unprovoked. A June 17, 2008, IEP recommended placement in an “8:1” (student to teacher plus special education teacher ratio) program for students with emotional and behavioral difficulties at a Board of Cooperative Educational Services (“BOCES”) in-District program at Haverstraw Middle School (“BOCES Haverstraw”). (Dist. Ex. 97). In January 2009, the District amended P.G.'s IEP to reflect that he was repeating the fifth grade during this school year.

         In March 2009, P.G. jumped out of a second story window and suffered injuries. He was taken to a psychiatric center for children, where he remained for several weeks. While hospitalized, P.G. underwent a neuropsychological exam, which confirmed both his 1995 birth date and his severe academic delays and language deficiencies, in addition to other diagnoses, including “Pervasive Developmental Disorder, Not Otherwise Specified, ” “Rule Out Post Traumatic Stress Disorder” (“PTSD”), and “Mild Mental Retardation.” (Dist. Ex. 75).

         On April 30, 2009, the CSE conducted a review of P.G.'s placement and determined that he should continue at BOCES Haverstraw, in an 8:1 class, with counseling services. In addition, the CSE added a 1:1 aide. On May 18, 2009, the CSE reconvened and added speech language services to the IEP.

         P.G. started the sixth grade, i.e., the 2009-2010 school year, at BOCES Haverstraw. On September 23, 2009, P.G. was suspended from school for fighting. One month later, he was arrested for breaking and entering.

         In an academic and counseling report dated November 9, 2009, BOCES detailed P.G.'s areas of progress and strengths, but noted that “there has been some regression as of late.” (Dist. Ex. 58). The report further documented that P.G. continued to read at a third grade level, and “has tremendous difficulty handling problematic situations, ” including because he would “verbally assault students and staff” when angry or frustrated. (Id.).

         On November 23, 2009, the CSE recommended placement at Rockland BOCES Hilltop School. (Parent SOF ¶ 185). According to Parent, BOCES Hilltop is “exclusively for children with emotional and behavioral difficulties.” (Parent Response to Dist. SOF ¶ 180). At this time P.G. was “nearly 15 years old, enrolled in the sixth grade, yet working on a third grade academic level.” (Id.). At BOCES Hilltop, P.G. maintained the 1:1 aide, was still in an 8:1 class, and was still “in the general educational curriculum including all assessments.” (Parent SOF ¶ 186).

         C. Seventh Grade

         On May 3, 2010, the CSE met again and recommended that P.G. stay at BOCES Hilltop for the seventh grade, ...


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