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C.S. v. Yorktown Central School District

United States District Court, S.D. New York

March 30, 2018

C.S., Individually and on behalf of M.S., a child with a disability, Plaintiff,
v.
YORKTOWN CENTRAL SCHOOL DISTRICT, Defendant.

          Kerry M. McGrath, Esq. Jason H. Sterne, Esq. Cuddy Law Firm, PLLC White Plains, NY Counsel for Plaintiff

          Mark. C. Rushfield, Esq. Shaw, Perelson, May & Lambert, LLP Poughkeepsie, NY Counsel for Defendant

          OPINION & ORDER

          KENNETH M.KARAS, UNITED STATES DISTRICT JUDGE

         Plaintiff C.S. (“Plaintiff”) brought this Action individually and on behalf of her daughter, M.S., against the Yorktown Central School District (“Defendant” or “the District”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. (See Compl. (Dkt. No. 1).)[1] The dispute arises out of the decisions of the Independent Hearing Officer (“IHO”) and the State Review Officer (“SRO”) who adjudicated Plaintiff's administrative claims for relief arising out of Defendant's alleged failure to provide M.S. a free and appropriate public education (“FAPE”) during the 2013-2014, 2014-2015, and 2015-2016 school years. Before the Court is Plaintiff's Motion for Summary Judgment. (Notice of Mot. For Summ. J. (Dkt. No. 11).) For the following reasons, the Motion is denied.

         I. Background

         A. Factual Background[2]

         M.S. is a child with a disability as defined by the IDEA. (Pl.'s Local Rule 56.1 Statement (“Pl.'s 56.1”) ¶ 2 (Dkt. No. 14)). M.S. has been diagnosed with at least Attention Deficit Hyper Activity Disorder (ADHD), Developmental Coordination Disorder, and Tourette's Syndrome. (Id. ¶ 5.) M.S. attended school in the District for kindergarten (2009-10) through fifth grade (2014-15). (Pl.'s Ex. K-1; Pl.'s Ex. R-2.)[3]

         1. M.S.'s Educational History

         M.S. began receiving special education interventions-including speech/language services and small group support services-in preschool. (Pl.'s Ex. J-1-J-2; Transcript of IHO Hearing (“Tr.”) 45.) When she transitioned to kindergarten for the 2009-10 school year, M.S. was declassified from special education and placed in a general education program, which she remained in through second grade, the 2011-12 school year. (Pl.'s Ex. J -1; Tr. 46-47.) During that time, M.S. received “building level” services, including small group reading and math services and occupational therapy, which do not require an individualized education program (“IEP”). (Tr. 69, 94, 1910.)

         In July 2010, before first grade, Plaintiff obtained a private neuropsychological consultation from Dr. Monica McQuaid, who diagnosed M.S. with ADHD and a Developmental Coordination Disorder and noted that M.S.'s “profile places her at risk for a language-based disorder, as well as a learning disorder.” (Pl.'s Ex. J-11.)[4] During M.S.'s second grade, she was referred to the District's Committee on Special Education (“CSE”) for evaluation of a suspected disability. (Def.'s Local Rule 56.1 Statement (“Def.'s 56.1”) ¶ 1.) As part of that process, M.S. was referred for a psychological evaluation by Denise Sandor, Psy.D., the school psychologist, in March 2012. (Pl.'s Ex. K-1.) The evaluation concluded that M.S. “demonstrates significant weaknesses in language functioning, ” which are “significantly deflating her overall IQ score making a generalization of her cognitive ability difficult to estimate.” (Id. at K-5.) Further, Dr. Sandor noted that M.S. “is continuing to exhibit several behaviors related to attention difficulties, impulsivity, difficulties with executive functioning and social difficulties.” (Id.) She therefore “recommended that the [CSE] consider [M.S.] for special education services” and implement “accommodations and modifications appropriate for children diagnosed with ADHD.” (Id. at K-5-K-6.)

         At a CSE meeting held in May 2012, M.S. was deemed eligible and classified as a student with a learning disability. (Def.'s 56.1 ¶ 1.) Her 2012-13 IEP recommended integrated co-teaching (“ICT”) services to support her in the regular classroom. (Pl.'s Ex. B-4, B-7.)[5] It also noted that M.S. had “[b]orderline range” cognitive skills, some math deficiencies, and “[k]indergarten level” reading skills. (Id. at B-3-B-4.) In July 2012, the District conducted a speech and language evaluation of M.S. (Pl.'s Ex. L.) After administering several tests, (see Id. at L-1-L-5), the evaluator noted that “[i]n light of the average scores obtained and [M.S.'s] placement in an ICT class for grade three, speech/language therapy is not indicated at this time, ” (id. at L-7.) Therefore, M.S.'s IEP for third grade, the 2012-13 school year, again recommended ICT services. (Pl.'s Ex. C-7.) She also received building level occupational therapy. (Tr. 87.)

         On March 14, 2013, the CSE met to develop M.S.'s IEP for fourth grade-the 2013-14 school year. (Pl.'s Ex. D.) It noted that M.S. “has a hard time solving basic math facts and working on word problems, ” “struggles in reading, ” including comprehension and fluency, and “requires a lot of teacher support when working on a writing activity, ” including spelling and mechanics. (Id. at D-3.) The CSE therefore set forth eleven annual goals for reading, writing, mathematics, and motor skills. (Id. at D-5-D-6.) The IEP recommended that M.S. continue ICT services for social studies and science class, but attend a special 12:1 class for reading, math, and skills. (Id. at D-7.) It also recommended 5:1 small group occupational therapy twice a week, as well as supplementary aids for the classroom. (Id.) M.S. also began attending a building level social skills group mid-year. (Tr. 921-23; Pl.'s Ex. JJ-3.)[6]

         Toward the end of fourth grade, in March 2014, Plaintiff had M.S. privately evaluated for auditory-language processing. (Def.'s 56.1 ¶ 4; Pl.'s Ex. N.) After conducting several tests, (Pl.'s Ex. N-2-N-3), the evaluator noted that M.S. “is now seen as struggling with listening skills that impact language abilities, ” most significantly with respect to “Auditory Reasoning ability.” (Id. at N-7.) The evaluator therefore “strongly recommended that [M.S.] receive speech and language therapy to focus on listening-language skills.” (Id.) Plaintiff provided the results of this evaluation to the CSE at M.S.'s May 8, 2014 annual review meeting. (Def.'s 56.1 ¶ 4.) The CSE “agreed to request a speech/language evaluation” and decided to “reconvene in June 2014 to review all of the[] findings and discuss recommendations.” (Pl.'s Ex. F-1; see also Pl.'s Resp. to Def.'s 56.1 (“Pl.'s Resp. 56.1”) (Dkt. No. 21) ¶ 5 (“The District told the Parent it needed to conduct its own speech evaluation.”).) The District conducted a speech and language evaluation on May 20 and 23, 2014. (Pl.'s Ex. O-1.) The evaluator recommended “[s]peech and language therapy” that “should focus on [M.S.'s] ability to define words, follow directions, apply syntactic skills and improve listening comprehension.” (Id. at O-5.) The CSE reconvened on June 12, 2014 to discuss these results, and added small group speech-language therapy to M.S.'s 2014-15 IEP. (Pl.'s Ex. E-1, E-6, E-11.)

         The CSE's recommendation for M.S.'s fifth grade IEP was thus (1) the special 12:1 class for reading, mathematics, social studies, science, and language arts, with modifications and accommodations, as well as assistive technology in the form of adaptive seating and a personal FM system for auditory use; (2) 30 minutes of speech/language therapy three times a week (5:1 twice a week, 2:1 once a week); and (3) 30 minutes of 5:1 occupational therapy twice a week. (Id. at E-1, E-10-E-12.) In formulating these recommendations, the CSE noted that M.S. “has shown tremendous growth in her reading abilities throughout her fourth grade school year, ” reflected in her increased confidence, “satisfactory listening skills, ” and an increase in her “progress monitoring scores, ” but “she still falls well below the benchmark for fourth grade” and thus needs “consistent monitored practice in fluency and reading comprehension.” (Id. at E-5.) It also noted her continued difficulties with math and “substantial problems with various aspects of language.” (Id. at E-6.) And, the CSE found that there were “no social and emotional needs that should be addressed through special education at this time.” (Id. at E-7.) In addition to her IEP, M.S. received building level services for additional reading support and counseling during the 2014-15 fifth grade year. (Def.'s 56.1 ¶ 9.) This included multisensory instruction in reading. (Tr. 787-89, 827-28, 830-35.)[7]

         In late 2014, the District conducted a state-mandated psycho-educational re-evaluation of M.S. (Pl.'s Ex. JJ.) After performing several tests and making behavioral observations, the evaluator explained that M.S.'s “overall intellectual functioning is in the Low Average range, ” consistent with her previous score, her verbal comprehension and processing speed are also “Low Average, ” her perceptual reasoning is “Average, ” and her working memory is “Borderline.” (Id. at JJ-12-JJ-13.) After noting some strengths, the evaluator noted “[r]elative weakness” in some cognitive capabilities, and “well below grade level” academic skills, including “weak” reading skills, “quite limited” math skills, and” difficult[ies] expressing thoughts through writing, ” as well as “difficulties with attention.” (Id. at JJ-13.) The evaluator recommended that M.S. continue special education services, occupational and speech/language therapy services, and social skills group, as well as her test accommodations and program modifications. (Id.)

         On January 23, 2015, the CSE convened to review the results of the psycho-educational re-evaluation. (Pl.'s Ex. G-1.) Although no changes were made to M.S.'s instructional program, 5:1 small group counseling was added to her IEP as a “related service.” (Id. at G-1, G-9; see also Tr. 1873-74 (adding counseling to IEP); id. at 1938-39 (parent's testimony that it was their “understanding” that M.S.'s IEP could not be changed at this meeting and had to wait until an annual review) The CSE meeting minutes also indicated that M.S. works with a reading specialist and that her social skills group, occupational therapy, and speech/language therapy should continue. (Id. at G-1.)

         However, concerned that M.S.'s re-evaluation had not shown her progress, Plaintiff brought her to Dr. Nelson Dorta (“Dr. Dorta”), a pediatric neuropsychologist, for an evaluation. (Def.'s 56.1 ¶ 19; Pl.'s Ex. Q.) Dr. Dorta noted that M.S. “showed gross delays in all academic areas consistent with a Language Based Learning Disorder (LBLD), ” including reading and math, that she “is not progressing” in terms of “upward movement of the percentile ranks in core academic areas, ” and indeed her math computation rank had declined. (Pl.'s Ex. Q-6.) Dr. Dorta found that “[t]he current data supports the IEP classification” and the current frequencies of intervention. (Id. at Q-7.) However, she recommended that M.S. also receive small group support in writing and math, each three times a week. (Id.) Finally, Dr. Dorta recommended “consider[ing] a school specifically designed for children with LBLD such as the . . . Eagle Hill School[].” (Id.)

         The CSE met twice during M.S.'s fifth grade year-on April 30, 2015 and on May 22, 2015-to consider her IEP for sixth grade, the 2015-16 school year, which M.S. would complete at the District middle school. (Def.'s 56.1 ¶ 18.) Plaintiff provided Dr. Dorta's report to the CSE at both meetings, (id. ¶ 19), and Dr. Dorta participated via teleconference at the April meeting to “review[] the results, ” (Pl.'s Ex. H-2; see also Tr. 1943 (Plaintiff testifying that Dr. Dorta said on phone that “[M.S.]'s needs were very intense and that if there wasn't a drastic change in the program, she would make little to no progress in school”)). In addition to considering Dr. Dorta's evaluation, (see Pl.'s Ex. H-4-H-5), the CSE noted other aspects of M.S.'s academic achievement, performance, and learning characteristics, (see Id. at H-4-H-9). Among other things, the CSE noted that M.S. “has made gradual progress toward her reading goals, ” but she is still “in the at-risk category” for oral reading fluency, her “reading comprehension skills are weak and need much support, ” specifically from teachers, and that M.S. “benefits from a multisensory approach for phonics” and thus “should continue her advanced phonics study integrating multi-sensory approach utilizing all modalities.” (Id. at H-6.) Further, the IEP stated that M.S. “has made satisfactory progress towards her math goals, ” but noted that “[t]he December psychoeducational re-evaluation indicated poor basic math skills” and that M.S. “has considerable difficulty with basic facts, computation and problem solving.” (Id. at H-7.) It also found that M.S. “has made gradual progress toward her speech and language goals this year, ” and in particular noted that “[h]er motivation and interest level in an activity affect her participation. (id.)

         Plaintiff requested that the IEP include Orton-Gillingham based instruction-in other words, a specific research-based methodology.[8] (Tr. 1949-50, 1953-54.)[9] CSE Chairperson Michael Rosen informed Plaintiff that a multisensory approach would be used to instruct M.S. in reading, but the specific research-based multisensory approach-e.g., Orton-Gillingham versus another one-was not identified. (Tr. 891-97.) The CSE ultimately recommended an IEP for the 2015-16 school year including: (1) 12:1 special class in english, math, social studies, and science; (2) 5:1 special class for reading; (3) 12:1 special class for skills; (4) 5:1 small group weekly occupational therapy two times for 42 minutes and one time for 30 minutes; (5) 5:1 and 2:1 small group speech/language therapy, for 42 minutes two times and one time weekly, respectively; and (6) 5:1 small group counseling once a week for 42 minutes. (Pl.'s Ex. H-1.) The IEP also set forth 24 annual goals for M.S. (Ex. H-10-H-12.)

         Plaintiff believed this 2015-16 IEP was largely the same as M.S.'s 2014-15 IEP. (Tr. 1956.) Thus, on August 5, 2015, Plaintiff informed the District that she disagreed with the CSE's recommendations. (Pl.'s Ex. R.) Plaintiff also provided notice that she intended to send M.S. to Eagle Hill School for sixth grade and would be seeking reimbursement from the District. (Id. at R-2.) The District responded on August 14, 2015, indicating that Defendant would arrange for M.S.'s transportation to Eagle Hill School and stated that the recommended IEP “is reasonably calculated to confer [M.S.] with meaningful educational progress in the least restrictive environment of her neighborhood public school.” (Pl.'s Ex. S-1.)

         2. Due Process Complaint and IHO Decision

         On December 18, 2015, Plaintiff filed a complaint requesting an impartial due process hearing under 20 U.S.C. § 1415. (Pl.'s 56.1 ¶ 8.) The due process complaint notice alleged that the District failed to provide M.S. with a FAPE when “it failed to develop a program to meet [her] needs for at least the 2014-2015 and 2015-2016 school years.” (Pl.'s Ex. A-7.) Plaintiff alleged that this denial of FAPE was based on, but not limited to, the following factors:

(1) The district inappropriately declassified M.S. and refused to refer her for special education services when she transitioned to kindergarten;
(2) The District inappropriately recommended RTI services when it should have recommended and develop an IEP for M.S.;
(3) The District failed to appropriately evaluate the Student in all areas of suspected disability, including speech and language;
(4) The District failed to recommend an appropriate program for the 2014-15 school year that would allow M.S. to make meaningful progress and as a result, M.S. regressed;
(5) The District failed to recommend appropriate teaching methodologies for M.S., including research-based multisensory instruction, in the 2015-16 school year;
(6) The District failed to recommend appropriate goals with the research-based multisensory methodologies M.S. needed in the 2015-16 school year;
(7) The District failed to recommend appropriate related services for M.S., including “sufficient pull-out speech, ” in the 2015-16 school year;
(8) The District failed to address M.S.'s social and emotional needs from at least the 2013-14 school year to present, which subjected M.S. to bullying without sufficient support in her IEP;
(9) Overall, the District failed to develop an appropriate IEP, program, and placement uniquely tailored to M.S.'s needs, including insufficient reading instruction, individualized instruction, and social and emotional support.

(Id. at A-8-A-9; see also Def.'s 56.1 ¶ 24.) Plaintiff requested reimbursement for Eagle Hill School tuition, services, transportation and fees for the 2015-16 school year and compensatory education in the form of research-based multisensory tutoring services. (Pl.'s Ex. A-9-A-10.)

         On December 22, 2015, James P. Walsh, Esq. was appointed as the IHO. (Decl. of Kerry M. McGrath, Esq. in Supp. of Mot. for Summ. J. (“McGrath Decl.”) (Dkt. No. 17) Ex. B (“IHO Decision”).) On March 14, 2016, the IHO issued an Interim Order holding that all claims preceding December 22, 2013 were time-barred. (Def.'s 56.1 ¶ 25.) The IHO then conducted 8 days of hearings, at which Defendant presented the testimony of 7 witnesses and 3 exhibits, and Plaintiff presented the testimony of 5 witnesses and 44 exhibits. (IHO Decision 4-7.) The IHO issued his decision on July 27, 2016. (Id. at 28.)

         The IHO first addressed Plaintiff's claims relating to M.S.'s fourth-grade year (2013-14). (Id. at 10-14.) He found that Plaintiff's “Due Process Complaint contains no allegations against [the] District's programs or implementation, but only recitals of events addressing the 2013-14 school year.” (Id. at 10-11.) While Plaintiff described events and discussions that occurred during the 2013-14 school year, they were all related to the program developed for the 2014-15 school year, “leaving no issue related to the 2013-2014 school year for review.” (Id. at 11.) However, for the portion of fourth grade falling within the statute of limitations-after December 22, 2013-the IHO addressed Plaintiff's “global assertion” that the “District failed to evaluate [M.S.] in all areas of suspected disability, ” despite evidence of speech and language issues since preschool. (Id.) Citing the speech/language evaluation completed on July 10, 2012, which did not recommend speech/language services, the IHO concluded that Plaintiff's allegation that the district failed to evaluate M.S. to be meritless. (Id. at 11-12.)

         Turning to Plaintiff's claims relating to M.S.'s fifth grade year (2014-15), the IHO found that the May 2014 IEP offered M.S. a FAPE. (Id. at 15-18.) In coming to this conclusion, the IHO reviewed the information before the CSE in May 2014, including Sandor's psychological report, (Pl.'s Ex. K), other “informational documentation that was dated in 2012 or before, ” and summaries of M.S.'s progress provided by staff, and the CSE's resulting recommendations. (IHO Decision 15-17.)[10] While noting that “more current assessment information would [have been] helpful” to the CSE, the IHO also cited Dr. Sandor's observation that M.S. had “failed to make progress” even with “the most intensive levels of support.” (Id. at 16-17.) He therefore found the CSE's recommendation of moving M.S. to the 12:1 class for all of her core subjects would provide M.S. with “more intense, direct instruction, ” and thus was reasonably calculated to permit her to make educational progress. (Id.)

         The IHO found that the District provided M.S. with “all of the services mandated by the provisions of her [IEP]” during the 2014-15 school year, and was “impressed by the enthusiasm with which the faculty at the school worked with [M.S.].” (Id. at 17.) However, the IHO concluded that the intended educational benefit from the 2014-15 IEP “was not realized.” (Id. at 23.) He based this conclusion on the findings of private neuropsychologist Dr. Dorta and school psychologist Dr. Klein, which “established that [M.S.] was making little or no progress in her educational program.” (Id.) In detailing the findings in these reports, the IHO noted that he “found Dr. Dorta's testimony forthright and fair” and that it “comported with the findings and conclusions made by Dr. Klein in her report.” (Id. at 21.) Moreover, the IHO emphasized that Defendant had not provided M.S. with multisensory instruction, even though Dr. Dorta testified that M.S. required it and the CSE continued that finding in the 2015-16 IEP. (Id. at 21, 23.) Thus, the new IEP's information regarding “certain areas of ‘progress'” was “insufficient to establish any ‘meaningful' progress or educational benefit” during the 2014-15 school year. (Id. at 23.) Finding that the 2015-16 IEP was “virtually identical” to the 2014-15 IEP, under which M.S. failed to make progress, the IHO concluded that it was not reasonably calculated to offer M.S. a meaningful educational benefit and thus, Defendant failed to offer M.S. a FAPE for the 2015-16 school year.[11] (Id.)

         The IHO then considered the appropriateness of Plaintiff's unilateral placement of M.S. at Eagle Hill School for the 2015-16 school year. (Id. at 23-25.) Relying on the testimony of Tara Clancy, a literacy remediation expert and employee at Eagle Hill School, (Tr. 1184), regarding the school's facilities and programs, as well as Dr. Dorta's recommendation, the IHO concluded that the unilateral placement was reasonably calculated to provide M.S. with a meaningful educational benefit. (Id.) However, based on a re-evaluation conducted by Dr. Dorta in April 2016, the IHO also found that M.S. “made but little progress while at Eagle Hill School during the 2015-2016 school year” and thus, it would be “inappropriate for [Plaintiff] to consider further placement of [M.S.] at Eagle Hill School.” (Id. at 25.) The IHO also found that equitable considerations favor an award of reimbursement for tuition paid to Eagle Hill for the 2015-16 school year-for $26, 445.00. (Id. at 26.)

         Finally, the IHO briefly addressed Plaintiff's remaining claims. First, the IHO “found that allegations that [the] District did not respond appropriately to allegations of bullying of [M.S.] to be totally without merit, ” because the alleged incidents “were quite properly and quite quickly addressed by District staff and never required any review by the [CSE], ” and, in any event, there was no proof that such bullying “had any impact upon [M.S.'s] educational program.” (Id. at 26-27.) Lastly, the IHO rejected Plaintiff's request for “an award of many hours of instruction by the Huntington Learning Center for alleged failure of [the] District to provide appropriate services and instruction to Student.” (Id. at 27.) In denying this request, the IHO noted that Defendant continuously provided M.S. with intensive services and instruction, as did Eagle Hill School, but M.S. “failed to make progress, ” and therefore, “even with more hours of instruction . . . little, if any progress would have been realized.” (Id.)

         3. SRO Decision

         On September 6, 2016, Defendant appealed, seeking to overturn the IHO's Determination that (1) it had failed to offer M.S. a FAPE for the 2015-16 school year, and (2) it must reimburse Plaintiff for the cost of Eagle Hill tuition. (McGrath Decl. Ex. A (“SRO Decision”) 7-8.) Plaintiff answered and cross-appealed on September 14, 2016, arguing that the IHO erred by (1) not finding that Defendant had denied M.S. a FAPE for the 2013-14 or 2014-15 school years and (2) dismissing the request for compensatory educational services. (Id. at 8.) Neither Party appealed the IHO's finding that the statute of limitations barred any claims arising prior to December 22, 2013. (Id. at 11.) SRO Sarah L. Harrington issued a decision on October 6, 2016. (Pl.'s 56.1 ¶ 20.)

         a. 2013-14 School Year (Fourth Grade)

         The SRO first addressed Plaintiff's claims relating to the 2013-14 school year. Plaintiff argued that the IHO failed to consider their claim that Defendant did not recommend speech-language services in the March 2013 IEP. (SRO Decision 11.) The SRO found this claim time- barred, because the March 2013 IEP was developed before December 2013. (Id.) Further, the SRO found that Plaintiff “did not assert a claim that the [D]istrict failed to implement the March 2013 IEP” in the due process complaint notice, because the IEP did not include a mandate for speech-language services. (Id. at 11-12.) Rather, the SRO concluded that Plaintiff's actionable claim amounted to an allegation that the CSE “should have revaluated the student's speech-language needs and convened to recommend speech-language therapy after December 22, 2013 but before the . . . annual review for the 2014-15 school year.” (Id. at 12.)

         The SRO found no evidence showing that M.S. “exhibited speech-language needs that would have required the [D]istrict to initiate an evaluation or provide remediation of [her] speech-language needs” from December 2013 through the remainder of the 2013-14 school year. (Id.) For the period prior to the statutory timeframe, the SRO noted that the July 2012 speech-language evaluation yielded average formal test scores, to which a speech-language pathologist testified, and did not recommend speech-language therapy, and that the March 2013 IEP did not reflect any concerns about M.S.'s speech-language skills. (Id. at 12-13.) Indeed, although subsequent evaluations revealed that M.S. “was experiencing some difficulty with language and auditory processing, ” no evidence in the record suggested that M.S. “failed to progress toward her IEP annual goals or otherwise exhibited difficulties in the classroom environment so as to require the [D]istrict to initiate an evaluation of her speech-language skills.” (Id. at 14-15.) However, when Plaintiff expressed concerns about M.S.'s speech-language development, the SRO found that Defendant acted promptly to evaluate her. (Id. at 15.) Specifically, during its May 8, 2014 meeting, the CSE discussed the results of the private auditory-language processing evaluation Plaintiff obtained in March and April 2014, and requested that the District perform its own evaluation of M.S. (Id. at 14.) Ultimately, based on this new information, the June 2014 CSE added speech-language therapy and annual goals to M.S.'s IEP for the 2014-15 school year. (Id. at 15.) Therefore, the SRO concluded that Defendant did not deny M.S. a FAPE based on this timing. (Id.)

         b. 2014-15 School Year (Fifth Grade)

         The SRO next turned to Plaintiff's claims relating to the 2014-15 school year. First, the SRO addressed Plaintiff's claim that Defendant denied M.S. a FAPE for that year because the CSE “failed to develop a program that was research-based and provided the academic and language support [M.S.] required.” (Id. at 15.) Based on a review of M.S.'s then-present levels of performance included in the IEP and the annual goals the CSE developed based on that performance, which was further based on test scores, the private and District speech-language evaluations, and information from M.S.'s teachers, the SRO found the June 2014 IEP was reasonably calculated to provide M.S. with meaningful educational benefit. (Id. at 15-20.) Acknowledging that additional reading services outside the IEP could not be considered, the SRO concluded that the June 2014 IEP nevertheless recommended a variety of supports to address M.S.'s reading needs. (Id. at 19.) In particular, the SRO noted that “there is no merit to the IHO's finding that the June 2014 IEP lacked provision for multisensory instruction; rather, the IEP referenced [M.S.'s] need for the same” and testimony indicated M.S. received multisensory instruction during the 2014-15 year. (Id. at 19-20 & n.14.) Finally, viewing the IEP prospectively, the SRO rejected Plaintiff's argument that M.S.'s failure to make progress under the 2014-15 IEP was evidence that it was not reasonably calculated to provide M.S. with educational benefit. (Id. at 20.)

         Next, the SRO addressed Plaintiff's claim that the IHO erred by not finding that the January 2015 CSE denied M.S. a FAPE by failing to recommend changes to her educational programming despite a demonstrated decline in her performance in reading and math. (Id.) Based on a review of the “new information . . . available to the January 2015 CSE”-most importantly, the December 2014 triennial psychoeducational re-evaluation report-the SRO concluded that the new evidence did not render inappropriate the special education program and services set forth in the June 2014 IEP. (Id. at 20-23.) The SRO noted that at the January 23, 2015 re-evaluation review, the CSE incorporated information from the re-evaluation report and Plaintiff's “concerns about [M.S.'s] ‘slow progress and weak academic skills'” in the IEP present levels of performance, and added counseling as a related service to the IEP. (Id. at 21- 22.) The SRO further described M.S.'s test scores-specifically the WISC-IV, WIAT-II, and subtest standard scores in a series of reading and math areas-and noted that the psychologist who administered the re-evaluation testified that the gap between age and score “widens” for students who progress at a slower rate, like M.S. (Id. at 22.) Further, the SRO stated that, although Plaintiff's performance remained below grade level on the DIBELS and DAZE assessments, “she did exhibit progress in reading on those measures, as well as toward her IEP annual reading goals, ” and M.S. exhibited similar progress toward her mathematics annual goals by mid-year. (Id. at 22-23.) Therefore, the SRO concluded that, “[d]espite an overall decline in [M.S.'s] standardized test performance, review of the hearing record shows that the [D]istrict was responsive to [M.S.'s] lack of progress . . . by increasing the amount of academic supports and special education services the student received over time.” (Id. at 23.) Moreover, the record showed that the June 2014 CSE was aware of these deficits when it developed the 2014-15 IEP, recommending annual goals in those areas as well as 12:1 special classes, and thus no new evidence before the January 2015 CSE indicated that the June 2014 IEP was no longer appropriate. (Id. at 23.)

         The SRO then gave “separate in-depth treatment” to the Parties' disagreement over whether M.S. made progress during the 2014-15 school year, as it was also relevant to her review of the May 2015 IEP. (Id.) The IHO based his determination that M.S. had made little or no progress during the 2014-15 school year “primarily on the formal psychoeducational and neurophysical test results, as well as the private neuropsychologist's testimony.” (Id. at 24 (quoting IHO Decision 21, 23).) However, the SRO concluded that the IHO “failed to consider other indications of student progress contained in the hearing record, including the June 2015 progress report for IEP annual goals, testimony from the student's teacher and related service providers, and progress monitoring tools, including a profile sheet that tracked [M.S.'s] progress in reading . . . which indicated that [M.S.] made progress in reading over the course of the school year.” (Id.) Reviewing each of these items in turn, the SRO concluded that “the hearing record as a whole reveals that the student demonstrated meaningful progress” during the 2014-15 school year. (Id. at 25-27.) Specifically, the SRO noted “objective measurements” of M.S.'s progress “such as the DIBELS and DAZE” tests, as well as “annual goal progress reports and reports and testimony from . . . professionals who worked with [M.S.] on a day-to-day basis.” (Id. at 27-28.) Ultimately, the SRO concluded that “[w]hile this may not have been the progress the parents desired for their daughter, [M.S.'s] progress-including the growing gap between [M.S.] and her nondisabled peers-must be measured in light of her abilities and the circumstances surrounding her educational experiences.” (Id. at 28.)

         c. 2015-16 School Year (Sixth Grade)

         The SRO then addressed the IHO's finding that Defendant denied M.S. a FAPE for the 2015-16 school year because the May 2015 IEP was “virtually identical” to the IEP for the previous school year, under which progress was “not realized.” (Id. (quoting IHO Decision 23).) Finding that M.S. had made progress under the prior year's IEP, as described above, and that the May 2015 IEP contained significant differences from the January 2015 IEP, the SRO concluded that Defendant had not denied M.S. a FAPE for the 2015-16 school year. (Id. at 28-31.)

         The SRO began by reiterating that after reviewing evaluative information, including the March 2015 private neuropsychological evaluation, “[t]he May 2015 IEP provided a detailed and thorough description of [M.S.'s] present levels of performance and progress observed during the 2014-15 school year.” (Id. at 28.)[12] Furthermore, comparing the January 2015 and May 2015 IEPs, and citing to testimony from M.S.'s special education teacher, reading specialist, speech-language pathologist, occupational therapist, and social worker, the SRO concluded that they “were not virtually identical” and indeed contained several differences. (Id. at 29-31.) Specifically, the May 2015 IEP included: (1) new annual goals and “modified continued, annual goals” to add “more stringent criteria for mastery, requiring increased performance from [M.S.]”; (2) a reduced student to teacher ratio from 12:1 to 5:1 for reading, “an area of primary deficit”; (3) an additional 42-minute 12:1 skills special class, three times per six-day cycle; (4) increased duration of all related service sessions by 12 minutes; (5) extended school year 5:1 small group occupational therapy to address typing skills; and (6) additional supplementary aids and services, program modifications, and/or accommodations, including positive reinforcement, cues and support to initiate tasks, copies of class notes, a multiplication table, re-teaching of material, and access to a computer. (Id. at 29-30.) The SRO also noted that the middle school psychologist testified as to how the May 2015 CSE's recommendations “aligned with or exceeded the recommendations made by the private neuropsychologist, ” including addressing M.S.'s need for “an intensive specialized program” through “special class placement in each content area.” (Id. at 30-31.) Ultimately, the SRO found that May 2015 IEP “addressed [M.S.'s] academic, speech-language, social/emotional, motor, and management needs, and was reasonably calculated to provide [M.S.] with educational benefits.” (Id. at 31.)

         d. Bullying

         Finally, the SRO addressed Plaintiff's claim that Defendant failed to offer M.S. a FAPE in the 2013-14 and 2014-15 school years because it failed to include an anti-bullying plan in her IEPs to address incidents of bullying. (Id. at 31-35.) Plaintiff claims that M.S. suffered anxiety, lost control of her bladder, and cried almost daily as a result of this bullying. (Id. at 31.) After reviewing the entire hearing record, the SRO concluded that “the [D]istrict was not made aware of all of the incidents of alleged bullying . . . and that it responded appropriately to those of which it was made aware.” (Id.) First, the SRO concluded that the alleged incidents during the 2013-14 school year “do not appear to be a result of bullying but rather the student's desire to socialize with peers at lunch and recess.” (Id. at 32.) Moreover, “the [D]istrict met with [Plaintiff] in order to successfully resolve the issue.” (Id. at 33.)

         Plaintiff also described “three specific incidents” of bullying in the 2014-15 school year: (1) a peer called M.S. names on the school bus; (2) peers acted inappropriately towards her “in the community”; and (3) M.S. did not want to go to school in the morning and would cry once she returned home. (Id.) The SRO noted that Plaintiff testified that she did not report additional incidents to Defendant because M.S. asked her not to. (Id. at 33-34.) The SRO concluded that, even assuming these incidents constituted bullying, “the [D]istrict took steps in response to the incidents of which it had received notice.” (Id. at 35.) Specifically, M.S.'s teachers addressed the first two incidents “by approaching the students involved and ha[ving] the offending peers apologize to [M.S.].” (Id.) Furthermore, upon being notified of Plaintiff's concerns, the CSE responded: first, the January 2015 CSE added counseling to M.S.'s IEP, and later, when Plaintiff advised the May 2015 CSE that M.S. was being teased, the CSE continued the recommendation and added social and emotional goals to the IEP. (Id.) Indeed, the SRO reviewed M.S.'s IEPs and concluded that they “did describe [her] social/emotional needs and her relationships with her peers, as described by both the school personnel and the parents.” (Id. at 34.) Additionally, the SRO found that, in light of the progress M.S. made during the 2014-15 school year, “these incidents of alleged bullying did not interfere with [her] ability to receive educational benefit from her program, substantially restrict [her] learning opportunities, or prevent her from making progress.” (Id. at 35.) Accordingly, the SRO concluded that Defendant did not deny M.S .a FAPE for the 2014-15 school year based on the alleged instances of bullying. (Id.)

         Thus, because the SRO found that Defendant offered M.S. a FAPE for the 2013-14, 2014-15, and 2015-16 school years, she did not reach the issue of unilateral placement and equitable considerations favoring tuition reimbursement. (Id.) The SRO sustained Defendant's appeal, dismissed Plaintiff's cross-appeal, and ordered the IHO's decision be modified accordingly. (Id. at 36.)

         B. Procedural History

         Plaintiff commenced this Action by filing a Complaint on December 27, 2016. (Compl. (Dkt. No. 1).) On February 1, 2017, Defendant filed its answer. (Dkt. No. 5.) On February 10, 2017, Defendant filed a pre-motion letter requesting the Court schedule a conference to set a “summary judgment” motion schedule, pursuant to which Plaintiff would file a motion and Defendant would respond. (Letter from Mark. C. Rushfield, Esq. to Court (Feb. 10, 2017) (Dkt. No. 8).) The Court held a conference on April 27, 2017 and set a briefing schedule on April 28, 2017. (See Dkt. (entry for Apr. 27, 2017); Mot. Scheduling Order (Dkt. No. 10).)

         Plaintiff filed the instant Motion for Summary Judgment and accompanying papers on June 12, 2017. (Not. of Mot.; McGrath Decl.; Mem. of Law in Supp. of Mot. for Summ. J. (“Pl.'s Mem.”) (Dkt. No. 13); Pl.'s 56.1.) Defendant filed an opposition and accompanying papers on July 12, 2017. (Def.'s 56.1; Def.'s Mem. of Law in Opp. to Mot. for Summ. J. (“Def.'s Mem.”) (Dkt. No. 19).) Plaintiff filed a reply and a counter statement to Defendant's 56.1 statement on July 26, 2017. (Pl.'s Reply Mem. of Law in Supp. of Mot. for Summ. J. (“Pl.'s Reply”) (Dkt No. 20); Pl.'s Counter-56.1.)

         II. Discussion

         A. Statutory Background

         The IDEA requires that states receiving federal funds provide a “free appropriate public education”-a “FAPE, ” for short-to “all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A); see also Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 993 (2017) (same). A FAPE “includes both ‘special education' and ‘related services, '” which a state must provide to a disabled child “‘in conformity with the child's individualized education program, ' or IEP.” Endrew F., 137 S.Ct. at 994 (quoting §§ 1401(9)) (alteration omitted). “School districts, through a CSE, are responsible for formulating a written IEP for every qualifying child.” L.O. v. New York City Dep't of Educ., 822 F.3d 95, 102 (2d Cir. 2016) (footnote omitted); see also 20 U.S.C. § 1414(d) (same).[13] “The IEP 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.” L.O., 822 F.3d at 102-03 (internal quotation marks omitted); see also Endrew F., 137 S.Ct. at 994 (listing statutory criteria governing IEPs).

         “The IDEA . . . requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F., 137 S.Ct. at 1000; see also Mr. P v. W. Hartford Bd. of Educ., ___ F.3d ___, 2018 WL 1439719, at *16 (2d Cir. Mar. 23, 2018) (“Prior decisions of this Court are consistent with the Supreme Court's decision in Endrew F.”); L.O., 822 F.3d at 103 (“To comply with the provisions of the IDEA, the IEP must be reasonably calculated to enable the child to receive educational benefits.” (internal quotation marks omitted)). There is no “bright-line rule” determining “what ‘appropriate' progress” means; rather, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S.Ct. at 1001; see also S.C. v. Katonah-Lewisboro Cent. Sch. Dist., 175 F.Supp.3d 237, 250 (S.D.N.Y. 2016) (“The IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” (internal quotation marks omitted)), aff'd sub nom. J.C. v. Katonah-Lewisboro Sch. Dist., 690 F. App'x 53 (2d Cir. 2017). The Supreme Court recently explained that “[f]or children receiving instruction in the regular classroom, this would generally require an IEP reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Endrew F., 137 S.Ct. at 996 (internal quotation marks omitted). But, for “a child who is not fully integrated in the regular classroom and not able to achieve on grade level . . . his [or her] IEP . . . must be appropriately ambitious in light of his [or her] circumstances.” Id. at 1000. In other words, an IEP “providing merely more than de minimis progress from year to year” is insufficient, id. at 1001 (italics and internal quotation marks omitted), but, it also need not “furnish[] . . . every special service necessary to maximize each handicapped child's potential, ” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 199 (1982), or “provide[] everything that might be thought desirable by loving parents, ” S.C., 175 F.Supp.3d at 250.

         In New York, if a parent believes that his or her child is being denied a FAPE, the parent may request an “[i]mpartial due process hearing, ” 20 U.S.C. § 1415(f), before an IHO appointed by a local school board, see N.Y. Educ. Law § 4404(1)(a). The IHO's decision may be appealed to an SRO, see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2), and the SRO's decision may be challenged in either ...


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