Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Avaras v. Clarkstown Central School District

United States District Court, S.D. New York

July 17, 2017

CONNIE AVARAS, individually and as parent of A. A., Plaintiffs,

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Plaintiff Connie Avaras, individually and as parent of A.A., brings this action pro se against the Clarkstown Central School District (the "District"), the Board of Education for the District[1] (the "Board") (collectively the "District Defendants"), and the New York State Department of Education (the "Department") pursuant to the Individuals with Disabilities Education Improvement Act ("IDEA" or "IDEIA"), 20 U.S.C. § 1400 et seq., Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794, and 42 U.S.C. § 1983 ("Section 1983"). Predominantly, Ms. Avaras seeks judicial review of a decision made by a State Review Officer ("SRO") at the Department, who affirmed the decision of an Independent Hearing Officer ("IHO"), denying Ms. Avaras's request for tuition reimbursement and other expenses associated with a private school placement after finding that the District offered A.A. a free and appropriate public education for the 2012-2013 school year and that, although the District did not offer such an education for the 2013-2014 school year, her unilateral alternative placement for A.A. was also inadequate. Plaintiff also alleges the Defendants' treatment of A.A. and herself violated the ADA, RA, and Section 1983.

         Before the Court are the District Defendants' motion for summary judgment, and the Department's motion to dismiss. (ECF Nos. 62 & 38.) For the reasons set forth below, the District Defendants' motion is GRANTED in part and DENIED in part. The SRO's decision is AFFIRMED in part, REVERSED in part, and REMANDED on a limited issue. Plaintiffs claims asserted against the District Defendants pursuant to the ADA, RA, and Section 1983 are DISMISSED. The Department's motion is GRANTED and all claims against it DISMISSED.


         I. 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, [2] which reflect the following factual background.[3]

         A. Record Adduced at Hearing by the IHO

         At the independent hearing held to determine the appropriateness of the education plan provided by the District to A. A., four witnesses testified on behalf of the District: Meredith Grant (school psychologist), Arnold Fucci (executive director of pupil services), Eileen Mahoney (special education teacher), and Amy Avecilla (school psychologist). Five witnesses testified on behalf of Plaintiff and A. A.: David Carlson (a chairperson for the committee on special education (CSE) convened to determine the appropriate educational program for A A), Rhonda Graff (general education teacher), Suzanne Braniecki, Ph.D. (clinical psychologist), Erin Castle (co-founder and co-director of Hawk Meadow Montessori School), and Plaintiff[4] The Court summarizes the salient portions of the documentary and testimonial evidence below, referring to the IHO's summary and specific record citations as needed.

         A. A. was born on July 17, 2002, and he was 12 years old at the time the hearing was conducted in 2014. (C.R. 49 ("IHO Opinion").) A.A. was a student at Woodglen Elementary School, a school within the District, until his parents placed him in an alternative program for his fifth grade year. (C.R. 50.) A.A.'s struggles with reading were first noticed by his mother and teacher in kindergarten. (C.R. 50.) At that time, he received an education support of 30 minutes per day of small group reading. (C.R. 50; C.R. 60 (Grant).)

         a. 2008-2009: First Grade

          The District began providing additional education supports to A.A. during his first grade year. By letter dated November 14, 2008, Woodglen's principal advised A.A.'s parents that the school was recommending "academic intervention services" (AIS) based on his performance on state assessments. (C.R. 50; C.R. 5188 (D-67).) Plaintiff acknowledged receipt of that letter, ostensibly agreeing to A. A. receiving those additional literacy support services during the regular school day. (Id.) Ms. Grant, the school's psychologist, testified that A.A. received "building level reading support" at that time as part of a "Response to Intervention" (RTI). (C.R. 50.) She also indicated that it was during this year that Plaintiff shared with Ms. Grant the extent of A.A.'s challenges from his preschool years, including "emotionality, " hyperactivity, and aggressive behavior directed at his brother. (C.R. 574 (Grant).) Ms. Mahoney, the special education teacher, became familiar with AA. around this time and began using the "Wilson reading program" with him. (C.R. 100 (Mahoney).)

         Ms. Grant testified that she had "extensive" discussions with Plaintiff regarding conducting a special education evaluation for A. A., but Plaintiff indicated she and A.A.'s father were not in agreement on how to address his academic issues. (C.R. 74; see also C.R. 575, 584 (Grant) ("Dad was against Special Ed.").)

          b. 2009-2010: Second Grade

         During his second grade year, aside from his academic performance struggles which largely contrasted with his social skills (C.R. 117 (Graff) ("academically, the Student was really below, but socially he seemed to be almost above")), the District and Ms. Graff-A.A.'s regular education teacher at that time-noted that A. A. also struggled with completing homework on time. (C.R. 51-52.)[5] On September 29, 2009, A. A. was referred to the RTI team, which implemented a plan to provide additional support for him during the second grade. (C.R. 51.) This included one visit by a District employee to the family home in order to assist with organizing A.A.'s learning environment. (C.R. 51.)

         The minutes from the RTI meeting indicate that A. A. did not want to go to a special education "pull-out." (C.R. 51; C.R. 5212 (D-75) (the notes from the RTI implementation plan state Ms. Graff relayed this information).) Instead, Ms. Graff provided specialized reading instruction using the "Wilson program" to him in her general education classroom. (C.R. 51; see also C.R. 116 (Graff).)[6] Ms. Grant testified that although Plaintiff expressed concerns about A.A.'s progress, Plaintiff and her husband were still not in agreement on how to remedy the situation. (C.R. 53.) In particular, the parents felt that Ms. Mahoney's special education classroom was not "socially appropriate" for A.A. (C.R. 53; C.R. 5215 (D-76).)[7] Because A.A.'s father did not want to move forward with a special education referral, the District-in Ms. Grant's opinion-attempted to respect the family's wishes by moving forward through the support offered via the RTI process. (C.R. 53; C.R. 87 (Grant); see also C.R. 102 (Mahoney).)

         Eventually the RTI team determined, however, that the supports were not enough. (C.R. 54.) After discussing the issue with A.A.'s parents at an RTI meeting, in early 2010 the parents provided, though not without hesitation, their consent to move A.A. into Ms. Mahoney's class for ELA. (C.R. 54; C.R. 120-21 (Graff) (testifying that Plaintiff agreed to A.A. attending Ms. Mahoney's class for English Language Arts (ELA) and Math as part of the RTI process); compare C.R. 118 (Graff) (noting he began to attend the special education class in November or December 2009), with C.R. 5256 (D-90) (email chain from January 2010 where Ms. Mahoney is explaining to the other members of the RTI team the urgent need to transfer A. A. into her ELA class) and C.R. 4887 (P-GG) (email from Plaintiff dated February 2, 2010, acknowledging A.A.'s pending move to Ms. Mahoney's class).) Plaintiff testified at the hearing that A. A. found the environment in the special education class distracting and was very unhappy once he spent the majority of his educational time there. (C.R. 54; see also C.R. 3793 (Avaras) (explaining by way of an example that A. A. could not concentrate because they put him next to a student that was "rocking" back and forth).)

         Notably, Ms. Graff testified that after the RTI meeting AA. spent only 37 minutes per day in her classroom-meaning he spent the vast majority of his time in the special education classroom. (C.R. 123 (Graff).)

         A. A. was also referred to the CSE at that time for evaluation. (C.R. 54; C.R. 87 (Grant); C.R. 4886 (P-FF) (letter from Plaintiff dated March 22, 2010, providing consent for evaluation).) A CSE meeting to determine his eligibility for special education services was held on April 13, 2010, concurrent with the CSE's annual review where it would formulate A.A.'s IEP for his next year of education, including recommended supports and services. (C.R. 55.) At the meeting, the CSE considered a letter provided by A.A.'s pediatrician, Dr. Satran, diagnosing A.A. with attention deficit hyperactivity disorder (ADFID). (C.R. 55; C.R. 5015 (D-13) (diagnosis letter dated April 12, 2010).) Plaintiff participated in the meeting, which resulted in the classification of A.A. as "Other Health Impaired" (OHI), though she testified she was unaware there were other potential classifications. (C.R. 56.) Ms. Grant testified that "all felt that OHI was the most accurate" classification, rather than a learning disability, given the ADHD diagnosis. (C.R. 77.)

         The IEP developed by the CSE recommended that for the remainder of the 2009-2010 school year and for the 2010-2011 school year (third grade) A. A. would be placed in a special math and ELA class with a ratio of fifteen students to one teacher (15:1) for a total of two hours and fifteen minutes per day and would receive direct consultant teacher services for two hours per week in science and social studies provided in the general education classroom. (C.R. 5016 (D-14) (IEP for 2009-2010 (indicating two hours per week of consultant teacher services)); C.R. 5026 (D-17) (IEP for 2010-2011 (indicating 30 minutes per day of consultant teacher services)).) Although, as part of the developed IEP (C.R. 5016 (D-14)), Plaintiff consented to the initiation of special education services for A. A. (C.R. 5025 (D-16)), [8] including his continued partial placement in the special education class, she noted her objection to his "segregation" from the "mainstream population, " particularly in light of his discontentment with the shift. (C.R. 57.)

         Ms. Mahoney indicated at the hearing that A. A. had "really started to improve" once he was classified. (C.R. 104.) Though Ms. Graff did not attend the CSE meeting, she believed A. A. needed a "multisensory" program to support his reading instruction. (C.R. 122.) She also felt that AA. needed to socialize with children at his level and that the recommended program was not appropriate. (C.R. 124.) But, Ms. Graff never voiced these concerns because there were no other choices available. (C.R. 124.)

         Plaintiff also testified that, because she questioned the ADHD diagnosis, she took A. A. for an evaluation by Dr. Bruce Roseman on July 7, 2010. (C.R. 57.) Dr. Roseman diagnosed A. A. as having a pediatric speech sound disorder, dyslexia, problems with auditory processing, and attention deficit disorder (ADD) as a secondary phenomenon. (C.R. 58; C.R. 4880 (P-CCC) (report dated July 7, 2010 indicating "the dictionary of [his] mind is not organized"); C.R. 4869 (P-X) (letter dated May 16, 2012, clarifying his prior diagnosis as deciding A.A. was "a prime candidate to suffer from Dyslexia").) Although Plaintiff testified that she dropped off a copy of this report with a secretary at Woodglen around September 2010, the District indicated it never received a copy until the Independent Hearing process began. (C.R. 89.)

         c. 2010-2011: Third Grade

          Ms. Mahoney was not A.A.'s teacher during his third grade year; rather, Mrs. Mirenberg taught his special education class. (C.R. 104.) Ms. Mahoney spoke with Mrs. Mirenberg and determined that A.A. was "progressing" but attendance was sometimes an issue. (C.R. 104.) A.A. was absent 21 days and tardy 74 days during his third-grade year. (C.R. 78; C.R. 5189 (D-68 A).) Plaintiff testified that A.A. declined socially and emotionally during his third grade year and was bullied by his non-disabled and disabled peers. (C.R. 59.) Ms. Grant, in contrast, considered A.A. to be a "happy child" rather than a "tortured" soul-and testified that Plaintiff never brought up the issue of bullying until much later when A.A. was placed at Hawks Meadow. (C.R. 59.) A.A.'s IEP progress report and report card for the third grade indicated that he made progress on all of his goals and on his overall educational development. (C.R. 5193 (D-70), 5208 (D-73).)

         During the CSE meeting held in April 2011 for developing A.A.'s IEP for the next academic year, the CSE recommended the same programs that were in place in April 2010 along with some additional testing accommodations. (C.R. 58.) The IEP no longer included, however, the consultant teacher services. (C.R. 5036-45 (D-20).) Although Plaintiff participated in the meeting, she testified that she voiced her disagreement with A.A.'s placement in the special education classroom and wanted to discuss alternatives. (C.R. 58.) Plaintiff testified that she raised her concerns that he was functioning academically below where he should have been and was being bullied. (C.R. 61.) She testified that she requested his return to the mainstream general education classroom but the CSE members denied that request. (C.R. 61.) Ms. Grant testified that the CSE determined the level of support A. A. needed was beyond what could be offered in the mainstream setting. (C.R. 80; see also C.R. 5037 (D-20) (noting A.A. could not keep up in his social studies class without support).) Plaintiff consented to the IEP at that time. (C.R. 5037 (D-20).)

         At the hearing, Ms. Grant opined that A.A. fit well within the special education classroom and his academic performance was consistent with the others in that class. (C.R. 62.) Specifically, she referenced his performance on the "Group Reading Assessment & Diagnostic Evaluation" (GRADE), noting his similar performance to peers in the class. (C.R. 79.)

         d. 2011-2012: Fourth Grade

          Ms. Mahoney was again A.A.'s special education teacher during his fourth grade year. (C.R. 104.) Her view remained consistent-that A.A. required special class support for Math and English and that the special education was a good fit for him socially. (C.R. 106.) She felt his "difficulties" were exacerbated by showing up late to class or missing school. (C.R. 109; see also C.R. 5192 (D-69A) (A.A. had fifteen absences and thirty-two instances of tardiness that year).) Plaintiff testified that A.A. continued to attend school in the District, but that "he hated it." (C.R. 63.) She also noted that he continued to have difficulty with homework, and that Ms. Mahoney worked with him after school. (C.R. 63.) A.A.'s IEP progress report and report card for fourth grade indicated that he had achieved all of his IEP goals and made progress on his overall educational development. (C.R. 5198-5203 (D-71), 5210-11 (D-74).)

         i. Annual IEP Review

         The annual review of A.A.'s IEP for the upcoming year was eventually (after some rescheduling) held on May 11, 2012. (C.R. 64.) After again noting A.A.'s discontentment at school, the CSE added counseling services in a small group, 30 minutes a week, to address self-esteem issues at Plaintiffs request. (C.R. 64; C.R. 5052-5061 (D-24).) Ms. Mahoney's view of Plaintiffs involvement at the meeting was that she was "an active participant" who agreed with and did not object to the IEP recommendations. (C.R. 108; but see C.R. 5053 (D-24) (noting Plaintiff raised concerns regarding A.A.'s unhappiness and only noting that the committee members were in agreement).) The IEP indicated that AA. had "made wonderful progress" in reading, was in an advanced reading group, and noted that on the GRADE assessment he scored in the 5th Stanine, 45th percentile (within the average range). (C.R. 5054-55 (D-24).)

         ii. Evaluations of A.A. Post-Annual Review

         After the meeting, Plaintiff took A.A. back to Dr. Roseman on May 16, 2012, who issued a letter to Dr. Satran opining that, although he could take no position as to whether A.A. had made progress at the District, he still believed A.A. suffered from a pediatric speech sound disorder, problems with auditory processing, dyslexia, and ADD secondarily. (C.R. 65-66; C.R. 4869-70 (P-X).) Ms. Mahoney indicated she had never seen Dr. Roseman's reports. (C.R. 109.) Dr. Braniecki also conducted an evaluation of A.A. at that time on May 18, 2012, but she could not definitively conclude that he had a reading disorder. (C.R. 58; C.R. 127 (Braniecki).) Instead, she opined that A.A. had a learning disability in written expression and that his performance on the testing was consistent with individuals with attention difficulties. (C.R. 129-30, 132, 133-34 ("her findings were consistent with a diagnosis of ADHD and a learning disability, " but "she could not diagnose him with a reading disability").) Dr. Braniecki did not think a classification of learning disabled should replace the classification of OHI, in large part because she believed both classification were accurate and the disabilities "impact each other." (C.R. 142 (Braniecki).) The weight of the record testimony and evidence indicates that the District was unaware of Dr. Braniecki's analysis until a year later.[9] (C.R. 5113 (D-44) (consent form received by District in June 2013).)

         iii. Rejection of IEP and Decision to Place A. A. at Hawk Meadow

          Plaintiff, by letter dated June 4, 2012, rejected the IEP developed for A.A.'s fifth grade year. (C.R. 66; C.R. 5062 (D-25).) Then, on August 20, 2012, Plaintiff informed the District that she would unilaterally be placing A. A. at Hawk Meadow and sought reimbursement for tuition and transportation costs. (C.R. 67; C.R. 5066 (D-29).)

         A CSE meeting to discuss revising the IEP was eventually held on September 28, 2012. (C.R. 68.) There was no finding made by the CSE as to whether the District's program and the program offered by Hawk Meadow were comparable. (C.R. 90 (Fucci); C.R. 115 (Carlson) (indicating he had reached out to Ms. Castle at Hawk Meadow to learn about the school prior to the CSE meeting).) Mr. Fucci testified at the hearing, however, that he was concerned with the small number of students in the school and that both the school and its staff lacked state certification. (C.R. 91 (Fucci).) In contrast, at the hearing, Dr. Braniecki testified that a Montessori education might be appropriate, even without special education programming, because the typical strategies used in a Montessori education have been found to be helpful for children with disabilities. (C.R. 139.) At the meeting, the District agreed to provide transportation for A. A. to Hawk Meadow in resolution of Plaintiff s ten-day notice and tuition reimbursement claim. (C.R. 5077 (D-35).)[10] Plaintiff also signed a consent for the District to send information to Hawk Meadow and the Arlington Public School District, [11] which became the District of Location and assumed responsibility for providing special education services to A. A. since Hawk Meadow was located within the Arlington School District. (C.R. 5086-5092 (D-36, D-37, D-38, D-38A, D-39).)

         Ms. Grant testified that the CSE was not provided with Dr. Braniecki's report at the time these decisions were made. (C.R. 82.) Nevertheless, at the hearing, Ms. Grant opined-by comparing her initial evaluation with Dr. Braniecki's-that A.A. had made "huge" progress in reading comprehension (23rd percentile to 68th percentile), and "good growth" in other areas which indicated the District was "closing the gaps." (C.R. 82.) She also indicated that even had the scores remained constant it would have indicated growth, since the tests are based on age and grade level. (C.R. 83.)

         e. 2012-2013: Fifth Grade at Hawk Meadow

          Ms. Castle, the co-founder of Hawk Meadow, [12] described the Montessori education program as a "scaffolded sequential educational curriculum, " and explained that the instruction is essentially entirely differentiated: "each child is working at his or her own pace." (C.R. 145 (Castle), C.R. 149.) She explained that all Montessori materials incorporate visual, auditory, and kinesthetic properties-z'.e., are multisensory. (C.R. 156.) She also confirmed that Hawk Meadow is not approved by New York State to provide special education. (C.R. 147.) At Hawk Meadow, A. A. was instructed by Ms. Ryan, who had the most Montessori certification and nearly 30 years of experience teaching Montessori programs. (C.R. 148.)

         During his fifth grade year at Hawk Meadow, A. A. was in an upper elementary group with a total of five students. (C.R. 149.) He was the only student that would have been categorized as a fifth grader based on age. (C.R. 151.) The upper elementary classroom is one large classroom with a smaller room, with a door that can be closed, which can be used for individual lessons and services. (C.R. 151.) Students either receive one-on-one instruction or work on their various assignments. (C.R. 155.)

         A.A.'s typical day included spending approximately half of his morning period (1.5 of 3 hours) seated at a desk in the smaller room. (C.R. 156.) While at the desk, he received instruction from a teacher for about an hour. (C.R. 156.) During his independent work time, a teacher was situated approximately ten feet away. (C.R. 156.)

         Throughout this year, Ms. Graff also acted as a tutor for A. A. in connection with an additional teaching certification program she was completing. (C.R. 125 (Graff).) She indicated that Hawk Meadow was using a "multisensory" approach based on the "Orton-Gillingham" model in teaching its students. (C.R. 126.) Ms. Castle clarified during her testimony that the school followed the "Sequential English Education" (SEE) approach, which was "specifically designed to help students with reading and writing difficulties." (C.R. 152.) She also testified at the hearing that the recommendations Dr. Braniecki had made as part of her evaluation were implemented in the course of instruction that A. A. received. (C.R. 160.)

         Ms. Graff saw a difference in A.A.'s view of school: he was excited to share what he was doing at Hawk Meadow. (C.R. 126.) He also confided in her about some of the bullying he experienced at Woodglen. (C.R. 126.) Overall, she observed AA. make slow upward progress despite continuing to struggle. (C.R. 126.) Ms. Castle testified that when A. A. entered Hawk Meadow as a fifth grader, he was only reading at a second or third grade level; yet, at the time of the hearing, A. A. had advanced to a fifth grade level and was interpreting passages. (C.R. 157.)

         i. IESP Formulation, Annual IEP Review, and Re-evaluation of A. A.

         On December 17, 2012 and again on April 9, 2013 for fifth and sixth grades respectively, CSE meetings were convened by Arlington for A.A. and individual education services plans ("IESP") were developed which maintained A.A.'s OHI classification and provided limited services. (C.R. 4898-4907 (P-QQ) (providing consultant teacher services three times per year for one hear each session); C.R. 4818-28 (P-L) (increasing the consultant teacher services to four times per year and adding small group occupational therapy once a week for thirty minutes).) At the hearing, Ms. Grant reviewed the IESPs prepared by Arlington and opined that the services to be provided would have been insufficient for A.A. to progress. (C.R. 84 (noting the amount of consultant teacher services did not comply with the state's minimum requirements).)

         At the District's annual review for the 2013-2014 school year, held on June 19, 2013, the District's recommendations for A.A.'s IEP remained largely the same. (C.R. 70-71; C.R. 5095-5105 (D-41) (adding 45 minutes per day of a five student resource room).) Plaintiff, however, expressed her desire for A.A. to be placed in the mainstream at the District in a fashion that addressed his dyslexia. (C.R. 71.) The parties agreed to conduct a re-evaluation of A.A. (C.R. 71.) Mr. Fucci indicated he had first learned of Dr. Braniecki's report around the time of this meeting. (C.R. 94.)

         Mr. Fucci testified at the hearing that he believed the program recommended by the CSE was "appropriate" based on the information available to the CSE at that time. (C.R. 99.) In contrast, Ms. Graff testified that the IEP was deficient because it did not provide an appropriate amount of time for a Wilson-based reading program. (C.R. 124 (Graff).) Moreover, the comments attached to the IEP indicated that the CSE did not have sufficient information to develop an IEP for A. A. and that "[a] meeting for the development of a 2013-14 IEP will be arranged." (C.R. 5095-5105 (D-41).) Despite multiple requests made by the District, the documentary evidence suggests that Plaintiff did not provide a release allowing for information regarding A.A.'s progress at Hawk Meadow to be sent to the District until the end of the school year. (C.R. 69, 72, 97; C.R. 4804 (P-I) (Hawk Meadow to the District dated June 19, 2013), 4927 (P-ZZ) (same), 4896 (P-OO) (Arlington to the District also dated June 19, 2013), 4926 (P-YY) (same), 4928 (P-AAA) (same), 4798 (P-C) (Arlington to Hawk Meadow and the District dated September 20, 2013); see also C.R. 92-93, 95 (Fucci); C.R. 5108-09 (D-42A) (Hawk Meadow and Arlington to the District).).

         Ms. Avecilla, a school psychologist employed by the District, was asked to conduct the re-evaluation of A.A. on June 20, 2013. (C.R. 110 (Avecilla).) Ms. Avecilla received a copy of the Braniecki report from Plaintiff prior to conducting her evaluation of A.A. (C.R. 111.) After conducting the re-evaluation, however, Ms. Avecilla did not share her results with the CSE because she was missing an updated social history from Plaintiff. (C.R. 112.)

         Although the CSE did not have access to Ms. Avecilla's evaluation when it made its decisions, Ms. Grant compared it to Dr. Braniecki's report during the hearing and opined that A.A. had generally declined-which was to be expected given his drastic decline in reading comprehension (68th percentile to 37th percentile). (C.R. 85; see also C.R. 111-12 (Avecilla) (testifying regarding general decrease in standardized testing scores during re-evaluation, but noting A.A.'s word reading had increased from the 32nd to 50th percentile).) Notably, however, Dr. Braniecki opined at the hearing that the decline "may or may not" be a result of A.A.'s attendance at Hawk Meadow. (C.R. 140.)

         ii. Renewed Rejection of the District's IEP

         A.A.'s parents delivered a letter to the District on August 26, 2013 informing it, again, that they intended to place him in a nonpublic school at public expense. (C.R. 5142 (D-50).). The District also definitively received a copy of Dr. Braniecki's evaluation in September 2013, after Plaintiff provided a release allowing Dr. Braniecki to share it. (C.R. 71; see also C.R. 94 (Fucci indicating he was aware of the Braniecki evaluation at the June CSE meeting).)

         A CSE meeting was scheduled to convene on September 18, 2013 to review the recommended IEP and results of Ms. Avecilla's evaluation. This meeting was cancelled by Plaintiff and rescheduled for October 9, 2013. (C.R. 5152-60 (D-55 - D-57).) Ultimately, Plaintiff decided not to attend a CSE meeting, and instead, through her attorney, demanded a Due Process Hearing by letter dated September 27, 2013. (C.R. 5265 (fflO Ex. 3)). That demand was followed by a resolution meeting, held on October 29, 2013 (C.R. 5183-87 (D-66)), where no resolution was reached.

         f. 2013-2014: Sixth Grade at Hawk Meadow

          During his sixth grade year at Hawk Meadow, A. A. was in an upper elementary group with a total of nine students. (C.R. 149.) He was the only student that would have been categorized as a sixth grader, or middle-schooler, based on his age. (C.R. 151.) As for the other students in A.A.'s class, two others had behavioral issues, one had dyslexia, and another had language delays and attentional issues; the remaining students had no noted academic or behavioral issues. (C.R. 169 (concluding this information conflicted with the class profile); but see C.R. 5261 (D-91), 4962-63 (P-III) (listing nine students in total, four without classifications, two with behavioral issues, one with a learning disability, one with a "speech or language impairment, " and A. A.).) Ms. Castle testified that Hawk Meadow is registered to provide education through the middle school level with the Montessori Society, but it is not recognized as such by New York State and the founders have no middle school training. (C.R. 166.)

         Over the course of this year, A. A. became more comfortable with his independent workstation-the desk in the small room. (C.R. 156.) He spent approximately two-thirds of his morning period (2 of 3 hours) seated at the desk. (C.R. 156.) While at the desk, he received instruction from a teacher for about 45 minutes. (C.R. 156.) In the afternoon session, which lasted 1.5 hours, he worked at the desk independently for half that time. (C.R. 156.)

         Though he was resistant, he also participated in occupation therapy, starting in the winter or spring of this year, as recommended and provided by the Arlington school district as part of its IESP. (C.R. 158-60.) The IESP did not, however, contain any reading, math, or writing goals, despite A.A.'s below grade level functioning in those areas. (C.R. 173.)

         Plaintiff testified that it was not until this year that she witnessed social, emotional, and academic growth from A.A.'s placement at Hawk Meadow. (C.R. 163 (she indicated the first year was difficult for him).) Ms. Castle reviewed the November 2013 progress report from this year, and testified that it showed some regression but also improved confidence. (C.R. 170; C.R. 4788 (P-B) (progress report prepared by Ms. Ryan and three others).) When asked to compare the report from the end of the previous year (C.R. 4805 (P-J)) with the November report, she noted some progress and a number of areas where his progress decreased. (C.R. 171.)

         B. IHO & SRO Decisions

         As a result of Plaintiff s September 27, 2013 due process demand, an impartial hearing was conducted over the course of 18 days between January 13, 2014 and July 16, 2014-during the second half of A. A.'s sixth grade year. Plaintiff was represented by counsel at the hearing. On September 8, 2014, the independent hearing officer issued a 191-page decision consisting of findings of fact and conclusions of law. (See generally IHO Opinion (C.R. 23-239).)

         Ultimately, the IHO denied Plaintiffs application for full reimbursement and prospective payment for tuition, related expenses, and transportation to and from Hawk Meadow for the 2012-2013, 2013-2014, and 2014-2015 school years; and denied reimbursement for various other expenses sought by Plaintiff including compensatory services for the 2011-2012 school year. (C.R. 236-37.) Specifically, the IHO concluded: 1) Plaintiffs claims relating to the 2011-2012 school year (fourth grade) were time-barred, 2) the District offered the student an appropriate education for the 2012-2013 school year (fifth grade), 3) the District failed to offer the student such an education for the 2013-2014 school year (sixth grade), and 4) Hawk Meadow was, nevertheless, not an appropriate alternative placement. (See generally IHO Opinion at 146-51, 155-64, 164-69, and 169-80.)

         Plaintiff sought review of the IHO's decision, and, on November 14, 2014, the State Review Officer ("SRO") affirmed the decision and denied the District's cross-appeal challenging the IHO's determination that a) the District was required to prepare an IEP for the 2013-2014 school year and b) the District's IEP for that year did not provide a free and appropriate public education. (C.R. 291-335.) This action ensued.

         II. Procedural History

         Plaintiff filed her complaint in this matter on March 12, 2015. (ECF No. 2.) She subsequently amended the complaint twice, first on June 9, 2015 (ECF No. 6), and again on December 31, 2015-the operative complaint in this action. (Compl., ECF No. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.