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W.M. v. Board of Education of Harrison Central School District

United States District Court, S.D. New York

November 6, 2017

W.M. & D.M. on behalf of V.M., Plaintiffs,
Board of Education of the Harrison Central School District, Defendant.



         Before the court are cross-motions for summary judgment in this action arising under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et. seq. (2012). Plaintiffs W.M. and D.M. ("Parents") brought the instant case on behalf of their son V.M. ("V"). Defendant is the Board of Education of the Harrison Central School District ("District"). Plaintiffs seek reversal of the decision rendered by the New York State Reviewing Officer ("SRO"), which affirmed the decision of the Impartial Hearing Officer ("IHO") that the District provided V a Free and Appropriate Public Education ("FAPE"), and denied Parents tuition reimbursement for V's alternative placement at a private school during the 2012-13 school year. For the reasons provided below, the court agrees with the SRO and the IHO that the District did not deny V a FAPE and further agrees that Parents are not entitled to reimbursement. Accordingly, the court denies Parents' motion for summary judgment and grants the District's motion for summary judgment.


         I. Legal Framework

         Under the IDEA, states receiving federal education funding are required to provide all children with disabilities a Free and Appropriate Public Education ("FAPE"). 20 U.S.C. § 1412(a)(1)(A); see also Cerra v. Pawling Cent. Sch. Dist, 427 F.3d 186, 192 (2d Cir. 2005). To provide a disabled child with a FAPE, the state must provide "special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C, § 1400(d)(1)(A); see also J.S. v. N.Y.C, Dep't of Educ, 104 F.Supp.3d 392, 400 (S.D.N.Y. 2015). The Individualized Educational Plan ("IEP") is the centerpiece of and “[t]he primary vehicle for implementing these congressional goals." Honig v. Doe, 484 U.S. 305, 311 (1988).

         Under New York law, an IEP is developed during meetings of the local Committee on Special Education ("CSE"), comprised of, among others, the child's Parents, the child's teacher, a school psychologist, a qualified district representative " 'knowledgeable about the general curriculum and the availability of resources of the school district, ' and an additional parent representative." J.S., 104 F.Supp.3d at 400 (quoting N.Y. Educ. Law § 4402(l)(b)(1)(a) (McKinney 2017)). After examining the child's level of achievement and specific needs, the CSE must determine an appropriate educational program, set forth in an IEP, which is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ, 458 U.S. 176, 207 (1982); see also R.E. v. N.Y.C. Dep't of Educ, 694 F, 3d 167, 175 (2d Cir. 2012).

         If a parent believes that the resulting IEP does not comply with the IDEA, the parent has the option to file a " 'due process complaint' (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency." R.E., 694 F.3d at 175. A hearing is then held before an Impartial Hearing Officer ("IHO"), during which the school district bears the burden of proving the adequacy of the proposed educational programming. N.Y. Educ. Law § 4404(1); see also F.O. v. N.Y.C. Dep't of Educ, 976 F.Supp.2d 499, 506 (S.D.N.Y. 2013). Such claims are governed by a two-year statute of limitations, which begins to accrue on the date that a plaintiff "knew or should have known about the alleged action that forms the basis of the complaint." 20 U.S.C. § 1415(b); see also Somoza v. N.Y.C. Dep't of Educ, 538 F.3d 106, 114 (2d Cir. 2008). Claims filed after the two-year limitations period are time-barred, unless "the parent was prevented from requesting the hearing by the local educational agency's misrepresentations, or because the agency withheld information it was required to provide." M.G. v. N.Y.C. Dep't of Educ, 15 F.Supp.3d 296, 304 (S.D.N.Y. 2014); see also Somoza, 538 F.3d at 115.

         If a parent elects to "unilaterally place the child in a private school and seek retroactive tuition reimbursement, " she does so at her own risk and bears the burden of proving that the placement was appropriate during the IHO hearing. F.O., 976 F.Supp.2d at 506 (citing N.Y, Educ. Law § 4404(1)(c)). Under the Burlington/ Carter reimbursement test, courts will require the school district to pay for the private school tuition only if: "(1} the program recommended by the IEP was inadequate or inappropriate; (2) the alternative placement the Parents chose was appropriate; and (3) the equitable factors weigh in favor of reimbursement." J.S., 104 F.Supp.3d at 400-01.

         Either party may appeal to a State Review Officer ("SRO") if dissatisfied with the IHO's ruling. A.M. ex rel. Y.N. v. N.Y.C. Dep't of Educ, 964 F.Supp.2d 270, 275 (S.D.N.Y. 2013). After exhausting the administrative remedies available through these processes, either party may then "bring a civil action in state or federal court to review the SRO's decision." Id. Importantly, "[f]ailure to exhaust the administrative remedies deprives the court of subject matter jurisdiction." Cave v. E. Meadow Union Free Sch. Dist, 514 F.3d 240, 245 (2d Cir. 2008). For this reason, "absent the district's or IHO's consent to a timely amendment, " only issues that were raised in a plaintiffs due process complaint may be considered by the district court. Id. at 283 (quoting M.R. v. Orangetown Cent. Sch. Dist, No. 10 Civ. 1800 (CS), 2011 WL 6307563, at *13 (S.D.N.Y. Dec. 16, 2011)).

         When a parent challenges a district's decision under the IDEA in federal court, "the court 'conducts a review of both the procedural and substantive adequacy of the underlying decision.' " Y.N., 964 F.Supp. at 278 (quoting B.O. v. Cold Spring Harbor Cent. Sch. Dist, 807 F.Supp.2d 130, 134 (E.D.N.Y. 2011)). Parents are automatically entitled to reimbursement if the court determines the IEP was substantively inadequate. Id. Procedural violations, however, warrant reimbursement only if, taken together, they "impeded the child's right to a [FAPE], significantly impeded the parents' opportunity to participate in the decisionmaking process, or caused a deprivation of educational benefits." R.E. v. N.Y.C. Dep't of Educ, 694 F.3d 167, 190 (2d Cir, 2012) (internal quotations omitted) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii); AC. ex rel. M.C. v. Bd, of Bduc, 553 F.3d 165, 171 (2d Cir. 2009)).

         The IDEA provides aggrieved parties who wish to bring a civil action in federal court "90 days from the date of the decision of the hearing officer to bring such an action, " 20 U.S.C. § 1415(i)(2)(B). However, if state law provides an "explicit time limitation for bringing such action, " the state limitations period applies. Id. New York provides such a limitation in New York Education Law § 4404(3)(a), which requires aggrieved parties to commence such proceedings "within four months after the determination to be reviewed becomes final and binding on the parties."

         II. Factual Background

         V.M. ("V") was born in Moldova in 2002. ECF No. 1, at 1. V and his sister were being raised in an orphanage where V received no formal education and failed to develop proficiency in any language. ECF No. 27, at 1. V has been diagnosed with Fetal Alcohol Effects, Attention Deficit Hyperactivity Disorder, temper dysregulation issues, Mood Disorder, Reactive Attachment Disorder, and Developmental Coordination Disorder. ECF No. 1, at 1. In 2008, W, M. and D.M. ("Parents") adopted V and his sister, ECF No. 1, at 1. When V arrived in the United States, he did not speak English and had trouble communicating with Parents, ECF No. 27, at 2. V also lost any native language he had acquired due to language attrition, ECF No. 24, at 3. Parents reside with their children in the Harrison Central School District ("District"). ECF No. 1, at 1.

         A. 2008-09 School Year - Kindergarten

         V was enrolled as a student in a District general education kindergarten class for the 2008-09 school year. ECF No. 27, at 1. On June 19, 2009, after Parents referred V to the CSE, the District found V ineligible for special education and related services, ECF No. 24, at 3; SRO Decision, at 2. Finding that the information available was insufficient to properly assess V's needs, the CSE adjourned the matter and ordered a neuropsychological evaluation. ECF No. 27, at 3, The CSE would then review the results and re-convene to "make a more informed determination as to eligibility." Dist. Ex. 1, at 2; Parents Ex. JJJ, at 6; ECF No. 27, at 3.

         School psychologist, Dr. Boris Gindis, performed the requested evaluation over the course of two days on August 20 and August 21, 2009. See Parents Ex. QQQ (Developmental, Neuropsychological and Educational Assessment Report). After extensive discussion regarding V's developmental history, behavioral issues, academic skills, and general cognitive abilities, Dr. Gindis found that "[t]he most appropriate and least restrictive environment placement for [V] in September 2009 [was] an inclusive (integrated classroom)." Parents Ex. QQQ, at 3. Otherwise, "a regular education first grade with a package of supportive services, classroom accommodations, and behavior modification programming could serve as a viable equivalent of an 'inclusion' setting." Parents Ex. QQQ, at 3. Dr. Gindis noted that with a support and remedial system in place, V's "level of mastery or pre-academic and emerging literacy skills" would "allow him to benefit from a first grade level of mainstream instruction." Parents Ex. QQQ, at 3.

         B. 2009-10 School Year - First Grade

         The CSE re-convened on October 21, 2009 to consider the information generated by Dr. Gindis's report, and deemed V "eligible for and in need of special education services" as a student with an "Other Health Impairment." Parents Ex. JJJ, at 1, 6; SRO Decision, at 3; ECF No. 24, at 4. The CSE recommended a general education program with pull outs, consisting of (1) a 5:1 resource room for 45 minutes, 5 times per 6-day cycle; (2) 5:1 counseling for 30 minutes, once per week; (3) 5:1 occupational therapy ("OT"} for 30 minutes, two times per week; and (4) 5:1 speech-language therapy for 35 minutes, 3 times per 6-day cycle. Dist. Ex. 1, at 2; Parents Ex. JJJ, at I.[1] In March of 2010, as a result of behavioral issues, V was moved to a general education class with 45 minutes of integrated co-teaching ("ICT") support services per day. SRO Decision, at 3; Dist. Ex. 1, at 2. In June 2010, V was placed in the ICT class full-time. Dist. Ex. 1, at 2. These changes were made without a CSE meeting, but with Parents' full consent and support. ECF No. 27, at 5.

         C. 2010-11 School Year - Second Grade

         V started the 2010-11 school year in a general education classroom with ICT services and pull outs-a less restrictive setting than his full-time ICT placement at the end of the previous school year. Parents Ex. YY, at 1. Just before the school year started, Parents had contacted the District to request that the CSE meet to develop an IEP and arrange a Functional Behavioral Analysis ("FBA") for their son. ECF No, 25, at 4. The CSE convened on October 26, 2010. Parents Ex. YY, at 2. Parents and school staff agreed that V's behavior remained a challenging issue because it was unpredictable and could change quickly. Parents Ex. YY, at 6. The "[implementation of an FBA was discussed but placed on hold until the effects of . . . new medication on [V's] behavior could be evaluated." Parents Ex. YY, at 6.

         The CSE ultimately recommended the following for the remainder of V's second grade year; (1} 12:1 ICT for 4 hours per day; (2) 5:1 counseling for 30 minutes, 2 times per 6-day cycle (an increase from 1 time per week); (3) 5:1 occupational therapy for 30 minutes, 1 time per 6-day cycle (a decrease from 2 times per 6 day cycle); and (4) 5:1 speech-language therapy for 35 minutes, 2 times per 6-day cycle (a decrease from 3 times per 6 day cycle). Parents Ex. YY, at 2. The following month, in November 2010, the District developed an FBA and a Behavior Intervention Plan ("BIP") for V, Parents Ex. CCCC, at 1, 3.[2]

         At Parents' request, the CSE re-convened a few months later to reevaluate V's placement. Dist. Ex. 8, at 3. On January 5, 2011, the CSE found that V had "significant delays in language skills, motor skills, behavioral and attentional skills which inhibit[ed] progress in the general education curriculum." Dist. Ex. 8, at 3. Accordingly, the CSE recommended "a change in placement to the district special class at Preston, to address the student's current emotional, behavioral and learning needs." Dist. Ex. 8, at 6. The IEP states that a general education setting was rejected because V's "current management needs indicate[d] that a more intensive setting with support [was] needed to address the student's needs." Dist. Ex. 8, at 7.

         The CSE met again on May 19, 2011 to conduct an annual review for the upcoming 2011-12 school year. Dist. Ex. 12, at 1. With respect to the mid-year class change, the IEP notes that V transitioned well and "improve[d] in his ability to negotiate the educational and social environment." Dist. Ex. 12, at 6. While on occasion, the classroom teacher had restrained V, the intensity and duration of his tantrums had been significantly decreasing, while his ability to accept redirection and practice safe behaviors had increased. Dist. Ex. 12, at 6, Overall, V's transition to the new class was positive, "as evidenced by [his] better ability to cope with academic and social demands and regulate [his] behavior." Dist. Ex. 12, at 6.

         V's educators described progress in specific areas. V's speech-language therapist noted that during structured tasks, V demonstrated a better understanding of grade-level linguistic concepts such as irregular verb tenses and plurals, Dist. Ex. 12, at 2. V's occupational therapist found improvements in his visual tracking, endurance, and bilateral integration skills. Dist. Ex. 12, at 2. V's psychologist saw that in his new placement, V was beginning to internalize rules, display curiosity, and demonstrate preferences among activities. Dist. Ex. 12, at 2. Parents agreed that V demonstrated significant progress during the 2010-11 school year, Dist. Ex. 12, at 2. They felt the new placement had helped him and were pleased with his development, particularly in reading. Dist. Ex. 12, at 2. During the CSE meeting, "Parents indicated that behavior [was] still the greatest area of concern, but [had] improved." Dist. Ex. 12, at 2. While V continued to struggle in certain areas, including during the less structured dialogs of speech therapy, his progress trended upward. Dist. Ex. 12, at 2. For example, while V's psychologist noted that he could still become upset, the frequency and intensity of his tantrums had decreased significantly.[3]

         The CSE recommended that V remain in the special 8:1 class, and continue the same program of "counseling, speech-language therapy, and occupational therapy to address academic, behavioral, language and motor needs." Dist. Ex, 12, at 2. To additionally target social-emotional and language skills, the CSE recommended that V continue speech-language therapy and counseling twice a cycle, Dist. Ex. 12, at 2.

         D, 2011-12 School Year - Third Grade

         At Parents' request, the CSE reconvened on December 15, 2011. Dist. Ex. 13. Parents sought to discuss a number of topics including V's counseling services, Parents' desire for an FBA and BIP, certain cognitive-behavioral techniques, and Parents' concerns about V's physical safety. Dist. Ex. 13, at 2. During the meeting, V's special education teacher, the school principal, and the school psychologist each related their observations and interactions with V, during which he was happy, engaged, and on task. Dist. Ex. 13, at 2. V's teacher explained that his behavior was well-managed in the small, structured class environment, and that he generally required only mild-to-moderate verbal prompting. Dist. Ex. 13, at 2. She reported that physical intervention had only been necessary on two occasions. Dist. Ex. 13, at 2. Additionally, the teacher noted that V had successfully "pushed in" to a number of mainstream opportunities with the general education classes, including science lab and other special events. Dist. Ex. 13, at 2, Finally, she stated that there had been "no occurrences of toileting accidents in school." Dist. Ex. 13, at 2. The meeting ended, and the CSE did not change the IEP. Dist. Ex. 13, at 3.

         E. 2012-13 School Year - Fourth Grade

         The CSE developed the IEP at issue after its meeting on June 18, 2012, during which it conducted an annual review for V's fourth grade school year. Dist. Ex. 27. V was still classified as a student with an "other health impairment." Dist. Ex. 27, at 1. By this time, Parents had already placed V at Winston Preparatory School ("Winston Prep"), a private institution. Dist. Ex. 27, at 1. Participants at the CSE meeting included Susan Lockhart, Chairperson; Linda Kalos, School Psychologist; Jan Bailey, Special Education Teacher; Sarah Palefsky, General Education Teacher; Linda Warsaw, ESL Teacher; Joann Raguso, Speech-Language Therapist; Mario Pellegrino, Occupational Therapist; Louanna Andralliski, Chairperson (Elementary); Robert Kalman, Principal; Thomas Scapoli, School Attorney; Gina DeCrescenzo, Parent Attorney; D.M., Mother; W.M., Father; Susan Adler, Private Psychologist; and Mark Goldenberg, Private Therapist.[4] Dist. Ex. 27, at 1, The CSE recommended "continuation of the 8:1 special class (ESP), counseling, speech-language therapy, and occupational therapy and consult, to address academic, social-emotional, and management needs." Dist. Ex. 27, at 4.

         III. State Administrative Proceedings

         A. Due Process Complaint and IHQ Decision

         Parents filed their due process complaint on June 17, 2012, and on June 19, the case was assigned to IHO Wendy K. Brandenberg. IHO Decision, at 178. Over the course of nineteen (19) days of hearings, IHO Brandenberg addressed Parents' complaint that the District failed to provide V with a FAPE for the 2012-13 school year. IHO Decision, at 4. IHO Brandenberg identified and addressed nine District failures alleged in Parents' due process complaint. Specifically, Parents contended that with respect to the 2012-13 school year, the District failed to (1) provide an appropriate placement that adequately addressed V's academic, physical, social, and emotional needs; (2) conduct an FBA to determine the hypothesized function of V's interfering behaviors; (3) develop and implement an appropriate BIP; (4) offer adequate alternative behavior modification services, including cognitive behavioral therapy, 1:1 support, home- based therapy, family training, or family counseling; (5) use an appropriate, scientifically-based methodology and/or strategy based on peer-reviewed research to address V's maladaptive behaviors; (6) appropriately address bullying; (7) provide appropriate counseling services; (8) provide adequate speech and language services; and (9) provide appropriate reading services. IHO Decision, at 4-5. Additionally, Parents claimed that Winston Prep was an appropriate placement for V for the 2012-13 school year and that the equities weighed in favor of reimbursement for school tuition. IHO Decision, at 5.

         IHO Brandenberg did not consider a number of issues raised by Parents in their closing brief that had not been raised in their due process complaint. Among these were a range of issues related to the District's use of physical restraints as well as other denials of FAPE for the 2010-11 and 2011-12 school years. IHO Decision, at 178. More generally, IHO Brandenberg found that any of Parents' claims that accrued before June 16, 2012 were time-barred under the two-year statute of limitations for challenging the CSE's June 2012 IEP.[5] IHO Decision, at 178, As for the claims that were timely raised, IHO Brandenberg found that the District provided V a FAPE, addressing each of Parents' arguments in turn.[6]

         In concluding that the District's IEP for the 2012-13 school year was reasonably calculated to confer upon V meaningful educational benefit, IHO Brandenberg made the following findings: (1) the IEP accurately reflected the results of evaluations to identify V's needs; (2) the IEP contained appropriate annual goals related to the Student's needs; and (3) the CSE recommendations were appropriate and consistent with its legal obligation to provide an educational program for V in the least restrictive environment ("LRE"). IHO Decision, at 188-203. In concluding that the District's failure to conduct an FBA and a BIP during the 2012-13 school year did not amount to the denial of a FAPE, IHO Brandenberg found that the evidence showed: (1) V's behaviors were effectively managed in the emotional support program that he was moved to in the middle of the 2010-11 school year; (2) the IEP for the 2012-13 school year set forth detailed information with respect to V's social development and management needs; and (3) the 2012-13 IEP set forth appropriate social, emotional, and behavioral goals. IHO Decision, at 206.

         In analyzing Parents' claims that the District failed to provide adequate alternative behavior modification services or use an appropriate, scientifically-based methodology during the 2012-13 school year, IHO Brandenberg found that the District offered appropriate services insofar as (1) V would have received 1:1 services when needed through his placement in the emotional support class and mainstream placements with a special aide; and (2) that cognitive behavioral therapy, home-based therapy, family training, and family counseling were not required to facilitate a FAPE for V. IHO Decision, at 212. With respect to Parents' claims related to social skills training, appropriate counseling services, speech and language services, and reading services, IHO Brandenberg concluded that V had made progress in each area under the programming implemented by the District, and that the CSE's continuing recommendation for said programming was reasonably calculated to confer meaningful educational benefit. IHO Decision, at 221 (social skills), 225 (counseling), 234 (speech and language), 238 (reading).

         Having found that the District met its burden in proving the appropriateness of its recommended placement, IHO Brandenberg did not reach the question of whether Winston Prep constituted an appropriate placement or whether Parents' claim for ...

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