United States District Court, S.D. New York
W.M. & D.M. on behalf of V.M., Plaintiffs,
Board of Education of the Harrison Central School District, Defendant.
P. GRIESA, U.S. DISTRICT JUDGE.
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.
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).
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).
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
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.
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)).
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)).
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."
("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.
2008-09 School Year - Kindergarten
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.
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.
2009-10 School Year - First Grade
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
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.
2010-11 School Year - Second Grade
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,
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.
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.
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.
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
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.
2011-12 School Year - Third Grade
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.
2012-13 School Year - Fourth Grade
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. 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.
State Administrative Proceedings
Due Process Complaint and IHQ Decision
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.
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. 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.
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.
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).
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 ...