EDGARDO RAMOS, District Judge.
C.M., ("Plaintiff") individually and on behalf of her child, H.S., filed suit against the New York City Department of Education (the "DOE" or "District") and Carmen Fariña, in her official capacity as the Chancellor of the DOE (together "Defendants"), under the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act of 1973, and Article 89 of New York State Education Law, seeking funding for H.S.'s tuition at the Rebecca School for the 2011-2012 school year. Before the Court are the parties' cross-motions for summary judgment.
For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED and Defendants' motion for summary judgment is GRANTED.
Congress enacted the IDEA to encourage the education of children with disabilities. E.A.M. ex rel. E.M. v. N.Y.C. Dep't of Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1 (S.D.N.Y. Sept. 29, 2012) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)). The statute mandates that any state receiving federal funds must provide a free appropriate public education ("FAPE") to children with disabilities. See 20 U.S.C. § 1412(a)(1)(A); Rowley, 458 U.S. at 181. The FAPE provided by the state must include "special education and related services" tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(9), and must be "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207.
A public school ensures that a student with disabilities receives a FAPE by providing the student with an Individualized Education Plan ("IEP"). See Polera v. Bd. of Educ., 288 F.3d 478, 482 (2d Cir. 2002). An IEP is a written statement, collaboratively developed by the parents of the child, educators, and specialists, that "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." M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 239 (2d Cir. 2015) (quoting R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)).
Because New York State receives federal funds under the IDEA, it must comply with the requirements of the statute. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). In New York, the task of developing an IEP rests with local Committees on Special Education ("CSEs"), whose members are appointed by the board of education or trustees of the school district. Id. (citing N.Y. Educ. Law § 4402(1)(b)(1); Heldman ex rel. T.H. v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992)). "CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others." R.E., 694 F.3d at 175 (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). "In developing a child's IEP, the CSE is required to consider four factors: `(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.'" E.A.M. v. N.Y.C. Dep't of Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)).
To provide a FAPE, an IEP must be "reasonably calculated to enable the child to receive educational benefits," "likely to produce progress, not regression," and afford the student with an opportunity to achieve greater than mere "trivial advancement." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192, 195 (2d Cir. 2005) (quoting Walczak, 142 F.3d at 129-30). "A school district is not, however, required to furnish `every special service necessary to maximize each handicapped child's potential,'" id. at 195 (quoting Rowley, 458 U.S. at 207), or "everything that might be thought desirable by loving parents," Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567). Rather, the IDEA calls only for selection of a program that provides a "basic floor of opportunity." Walczak, 142 F.3d at 132 (quoting Rowley, 458 U.S. at 201); see id. at 130 ("IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."). "[B]ecause public `resources are not infinite,' federal law `does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child.'" Id. (quoting Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984)); see also C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014). Furthermore, under an IEP, "education [must] be provided in the least restrictive setting consistent with a child's needs" and the CSE must "be mindful of the IDEA's strong preference for mainstreaming, or educating children with disabilities [t]o the maximum extent appropriate alongside their non-disabled peers." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (internal quotation marks omitted).
In addition to imposing the IEP requirement, the IDEA provides for due process procedures to promptly resolve disputes that arise between parents and school districts, so that children will receive appropriate special education services. 20 U.S.C. § 1415(b)(6)-(b)(7). New York State has implemented a two-tiered system of administrative review for disputes regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability . . . or the provision of a [FAPE] to such a student." Id.; 8 N.Y.C.R.R. § 200.5(i)(1). First, "[p]arents may challenge the adequacy of their child's IEP in an `impartial due process hearing' before an [independent hearing officer ("IHO")] appointed by the local board of education." E.A.M., 2012 WL 4571794, at *2 (quoting Gagliardo, 489 F.3d at 109). Either party may then appeal the independent hearing officer's decision to the New York State Review Officer ("SRO"), an officer of New York State's Board of Education tasked with conducting an impartial review of the proceedings. Id.; 34 C.F.R. § 300.514(b)(2); 8 N.Y.C.R.R. § 279.1(d).
After the SRO has rendered its decision, either party may then appeal to either state or federal district court. N.Y. Educ. Law § 4404(3)(a). If appealed to federal district court, the court must "receive the records of the administrative proceedings" and, if requested by the parties, hear additional evidence. 20 U.S.C. § 1415(i)(2)(C). The district court then "grant[s] such relief as the court determines is appropriate," based on the preponderance of the evidence. Id. Under the statute, "appropriate" relief may include reimbursement for the cost of a private school placement. E.A.M., 2012 WL 4571794, at *2.
"`Parents who . . . believe that a FAPE is not being provided to their child may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district' by filing what is known as a `due process complaint.'" M.O., 793 F.3d at 239 (quoting Hardison v. Bd. of Educ., 773 F.3d 372, 376 (2d Cir. 2014); see also N.Y. Educ. Law § 4404(1); and 20 U.S.C. § 1412(a)(10)(C)(ii)). Parents who unilaterally place their child in a private school do so "at their financial risk." Reyes ex rel. R.P. v. N.Y.C. Dep't of Educ., 760 F.3d 211, 215 (2d Cir. 2014).
"The Supreme Court has established the three-pronged Burlington/Carter test to determine eligibility for [tuition] reimbursement, which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F., 746 F.3d at 73 (citation and internal quotation marks omitted).
With specific respect to the first Burlington/Carter prong, "challenges to a school district's proposed placement school must be evaluated prospectively (i.e., at `the time of the parents' placement decision') and cannot be based on mere speculation." M.O., 793 F.3d at 244 (quoting R.E., 694 F.3d at 195). Thus, evaluation of the IEP must be based only on information available to the parent at the time he or she was considering the IEP and the school district's proposed placement, and not on retrospective evidence that came to light after the parent chose to reject the district's placement and enroll the child in private school. See, e.g., id.; R.E., 694 F.3d at 188.
"Under New York's Education Law § 4404(1)(c), the local school board bears the initial burden of establishing the validity of its plan at a due process hearing. If the board fails to carry this burden, the parents bear the burden of establishing the appropriateness of their private placement and that the equities favor them." R.E., 694 F.3d at 184-85 (citing Cerra, 427 F.3d at 192).
Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The "IDEA and Section 504 are complementary, but they address different injuries and thus require different proof. Specifically, Section 504 offers relief from discrimination, whereas IDEA offers relief from inappropriate educational placement, regardless of discrimination." Gabel ex rel. L.G. v. Bd. of Educ., 368 F.Supp.2d 313, 333 (S.D.N.Y. 2005).
"A plaintiff may assert a Section 504 claim in conjunction with an IDEA claim on the theory that he has been denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive." D.C. ex rel. E.B. v. N.Y.C. Dep't of Educ., 950 F.Supp.2d 494, 517-18 (S.D.N.Y. 2013) (citation and internal quotation marks omitted). "To recover under the Rehabilitation Act, there must be evidence that: (1) the student is disabled; (2) the student is otherwise qualified to participate in school activities; (3) the school or the board receives federal financial assistance; and (4) the student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability." Id. at 518 (quoting Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F.Supp.2d 529, 564 (S.D.N.Y. 2010)).
"Since Section 504 relief is conditioned on a showing of discrimination, it requires something more than proof of a mere violation of IDEA—i.e., more than a faulty IEP." Gabel, 368 F. Supp. 2d at 334 (citing J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000)). Rather, a plaintiff must prove some additional level of "intentional discrimination," which "may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE." Id.
H.S. is an eighteen-year-old student diagnosed with Pervasive Developmental Disorder, an autism spectrum disorder. Ex. 4.
At the Rebecca School, H.S. was in a class with five students, one teacher, and two teacher assistants. H.S. also had a 1:1 paraprofessional and regularly received speech and language therapy, occupational therapy ("OT"), and physical therapy ("PT"). Tr. 908-09.
On January 26, 2011, the District convened a CSE meeting to develop an IEP for H.S. for the 2011-2012 school year. Ex. 4. The CSE was comprised of Plaintiff; Rose Fochetta ("Dr. Fochetta"), a district school psychologist; Feng Ye, a district representative/special education teacher; Avis Alexander, a district social worker; Sandra Morabito, a parent member; Gwen Levine, a Rebecca School social worker; and Sara Gerstein, H.S.'s teacher at the Rebecca School. Ex. 4. Gerstein participated via telephone. Of the five professionals that comprised the CSE, only three — Dr. Fochetta, Alexander, and Gerstein — had met H.S. prior to the CSE meeting.
The materials available to the CSE at the time of the meeting included: (1) H.S.'s IEP for the previous year (2010-2011); (2) a 2009 Psycho-Educational ("P-E") evaluation; (3) a 2009 social history update; (4) an October 2010 classroom observation report; and (5) a December 2010 Rebecca School Interdisciplinary Report of Progress ("Rebecca Progress Report"):
Dr. Fochetta testified that she reviewed all of the available materials in preparation for the meeting and that a copy of the evaluations and reports were available at the meeting. Tr. 499-500. However, the 2009 pyscho-educational evaluation and social history update were not discussed at the meeting. The CSE relied primarily on the 2010 IEP, the Rebecca Progress Report, and input from Plaintiff and Gerstein to develop the IEP. Tr. 501, 510-11, 519, 571; Ex. 4.3, 15.
The January 26, 2011 IEP classifies H.S. as a student with autism. Ex. 4.1, 4.15. With regard to H.S.'s academic performance and learning characteristics, the IEP provides that H.S. "performed within the severely delayed range of cognitive functioning and . . . presents with significant receptive and expressive language delays. He demonstrates self-stimulatory behaviors such as flicking his fingers and jumping up and down while making loud vocalization." Id. The IEP noted that H.S. was nonverbal and communicated using a Pictures Exchange Communications System ("PECS") and gestures and that he was working on "his preacademic[] skills." H.S. was also "sensory seeking" and enjoyed deep pressure. Id. With regard to his social/emotional performance, the IEP provides that H.S.'s social functioning was "constrained by his communication limitations." Id. He also presented as either "up-regulated," described as needing constant movement activities, or "under-regulated," described as acting lethargic and needing "adult support to become involved in an activity." Id. The IEP also notes that H.S. exhibits behavior that "seriously interferes with instruction and requires additional adult support" and lists his management needs as requiring the support of a 1:1 crisis management paraprofessional; and benefiting from sensory supports and movement breaks throughout the school day. Id.
With regard to H.S.'s health and physical development, the IEP notes that he "presents with a mixed sensory profile." Ex. 4.5. H.S. is "under-responsive to vestibular and proprioceptive stimulation, requiring intense input in order to respond." Id. He is also "hyperresponsive to auditory input" and frequently "places his hands over his ears to block out loud noises." Id. The IEP also states that H.S. "demonstrates postural insecurity" and that he resisted surfaces that do not offer a stable base of support. Id. To address his physical and health needs, the IEP notes that H.S. benefitted from the use of PECS, needed the support of OT and PT; and possibly needed assistance "in cleaning himself after toileting." Id.
The IEP also includes annual goals and short-term objectives to be achieved by the end of the 2011-2012 school year. Ex. 4-6.1 to 4-6.7. It specifies twelve annual goals in reading, math, OT, PT, speech and language therapy, and ADL. These goals were further broken down into more than thirty-five short-term objectives. Id. The annual goals were primarily taken from H.S.'s previous IEP. According to Dr. Fochetta, the CSE modified H.S.'s academic and ADL goals using input from Gerstein and Plaintiff, respectively. H.S.'s OT goals, taken from the Rebecca Progress Report, were also updated at the CSE.
To meet H.S.'s needs as described in the IEP, the CSE recommended that he be placed in a 12 month, 6:1:1 special class in a specialized school, with a full-time 1:1 crisis management paraprofessional. Ex. 4-1. In addition, the IEP provided that H.S. should continue to receive speech and language therapy (five thirty-minute sessions per week in a separate location), PT (three thirty-minute sessions per week in a separate location), and OT (five thirty-minute sessions per week in a separate location). Ex. 4-7 to 4-8. The CSE noted that due to H.S.'s significant delays in communication and socialization, he required "greater support than can be provided in a general education setting." Id. The IEP also provided that H.S. would participate in alternative assessments due to his significant cognitive and academic deficits and that he would be further assessed through "teacher observation and teacher-made materials." Id.
The IEP indicates that the CSE considered and rejected educational services for fewer than twelve months, specialized classes of student to teacher rations of 12:1:1 and 8:1:1, and a specialized class with a ratio of 6:1:1 without the 1:1 support of a crisis management paraprofessional. Ex. 4-8. It noted that these programs were not appropriate for H.S. because they were "insufficiently supportive." H.S. needed smaller ratios in order to "receive sufficient sensory support to be engaged for academic tasks."
On the last page, the IEP includes H.S.'s Behavior Intervention Plan ("BIP"). Ex. 4-016. The BIP lists H.S.'s interfering behaviors as "self-stimulatory behaviors manifested by flicking his fingers in front of his eyes," and difficulty communicating his needs to others. It further provides that H.S. "needs frequent sensory and movement breaks throughout the day," and that if he is "denied his wants, he may go limp, drop to the floor and refuse to engage with others." H.S. is also described as "very distracted by food being around him, and will focus on the food rather than the task at hand." Id. Additionally, the BIP sets behavioral goals and provides strategies to help address H.S.'s behaviors. These strategies include providing "deep pressure, vestibular and proprioceptive input as well as movement breaks throughout the school day" and a 1:1 support in order to "increase his engagement and availability for academics," "sustain engagement with an adult," and "reduce self-stimulatory behaviors." Id. The BIP does not specifically identify the particular sensory equipment that would be used or how the movement breaks would be implemented. It only restates the services to which H.S. would be entitled, namely, speech and language therapy, OT, PT, and a 1:1 crisis management paraprofessional. Id.
Plaintiff claims that she objected to the recommendation that H.S. attend a 6:1:1 special class at the CSE meeting. Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment (Doc. 22) ("Pl. Memo") at 5. However, she was given no opportunity to express her concerns and the CSE meeting was "abruptly" ended as soon as she began expressing her disagreement. Id.
On June 14, 2011 (approximately five months after the CSE meeting), the District sent Plaintiff a Final Notice of Recommendation ("FNR") offering H.S. a placement in a 6:1:1 special class at P721R The Richard H. Hungerford School ("Hungerford"), with related services and the provision for a 1:1 crisis paraprofessional for the 2011-2012 school year. Ex. 5. Though Plaintiff had previously visited Hungerford, shortly after receiving the FNR she returned to the school for a visit. Tr. 1056-57. During this visit, Plaintiff met with Michael Pepe ("Pepe"), the Assistant Principal of Organizations at Hungerford, and a parent coordinator. Plaintiff testified that, among other things, she received a tour of the school in which she saw a classroom, the lunchroom, and the multipurpose room. Tr. 1058-63. Though she did not know H.S.'s specific class placement at the time, Plaintiff found that Hungerford could not meet H.S.'s needs or adequately implement his IEP.
In a letter dated June 21, 2011, Plaintiff informed the District that she rejected the recommended placement and that she would be requesting an impartial hearing to receive funding for H.S.'s tuition at the Rebecca School. Ex. P. Plaintiff claimed that she found Hungerford to be an inappropriate place for H.S. because it was "too noisy," the curriculum was "too advanced," and the cafeteria was overly stimulating during the lunch period. Id. She further claimed that the school "may not be able to fulfill all of the related service mandates," though she noted that the FNR had not specified the particular class that H.S. would be joining. Id. She also argued that the class ratio (6:1:1) would not provide sufficient support and structure for H.S. and that the present levels of performance and goals in the IEP were not adequate to meet his needs. Id. Lastly, Plaintiff claimed that Pepe told her that H.S. might receive a Related Services Authorization ("RSA")
That same day, Plaintiff paid the Rebecca School a $2,500 deposit for the 2011-2012 school year. The next day, on June 22, 2011, she signed a contract to re-enroll H.S at the school. Ex. R; Tr. 826. The tuition for the 2011-2012 school year at the Rebecca School was $94,750 plus an additional $19,845 for the cost of the 1:1 paraprofessional. Ex. 18-1, 18-7; Tr. 826. Plaintiff claims that she is legally obligated to pay tuition, though she is unable to pay the entire amount. As of the filing of the motion papers, Plaintiff had made monthly payments totaling $6,020.
On May 11, 2012, Plaintiff filed a Due Process Complaint ("DPC") challenging the District's IEP and proposed placement and seeking funding for H.S.'s tuition for the 2011-2012 school year at the Rebecca School. Ex. 1. Plaintiff alleged that the District failed to offer H.S. a FAPE for the 2011-2012 school year on both procedural and substantive grounds. See id. In her DPC, Plaintiff claimed that, among other things, she was denied a meaningful opportunity to participate in the CSE meeting, and that the District failed to conduct adequate and sufficient evaluations. She further alleged that the IEP contained inadequate present levels of performance and BIP, and unmeasurable goals. Id. Plaintiff also argued that the 6:1:1 recommendation would not provide sufficient support for H.S and that Hungerford was not capable of implementing the IEP.
An impartial hearing was convened and took place over six non-consecutive days: June 21, July 20, September 7, October 15, November 19, and December 17, 2012. At the hearing, the District presented the testimony of three witnesses: Dr. Fochetta, Pepe, and Christopher Gullo, H.S.'s expected teacher at Hungerford. Dr. Fochetta testified about the development of the IEP and the appropriateness of its contents as applied to H.S.'s needs and abilities. Pepe testified regarding Hungerford's services and its ability to implement the IEP. Similarly, Gullo provided testimony about his ability to address H.S.'s needs had H.S. joined his class.
For her case, Plaintiff presented five witnesses (including herself). Colleen Gabbert, H.S.'s treating occupational therapist for the 2011-2012 school year, testified about H.S.'s need for OT and the progress he had made at the Rebecca School. Tina McCourt, the Program Director at the Rebecca School, discussed the services provided at the school and those used by H.S. Like McCourt, Gerstein testified about H.S.'s services at the Rebecca School and also discussed the IEP and its development. Gilbert Tippy briefly testified about the different testing available for autistic children. Plaintiff testified last and provided a summary of H.S.'s background and education, the IEP process, and her decision to re-enroll H.S. at the Rebecca School. On February 21, 2013, the IHO rendered a decision, finding that the District had failed to provide H.S. with a FAPE for the 2011-2012 school year. Impartial Hearing Officer's Findings of Fact and Decision, Case No. 138792 (Feb. 21, 2013) (Doc. 1, Ex. A) ("IHO") 35. The IHO analyzed all three prongs of the Burlington/Carter test.
First, the IHO found that the IEP did not offer H.S. a FAPE because it suffered from numerous procedural and substantive deficiencies.
The IHO concluded that as a result of these procedural violations, the IEP did not accurately provide H.S.'s present level of performance, his needs, and adequate goals.
The IHO also concluded that notwithstanding the inadequacy of the IEP, Hungerford could not implement it as written. Id. at 32. Based on Pepe and Gullo's testimony about the possibility that mandated services could be provided outside of the school, the IHO concluded that Hungerford could not provide the necessary breaks to make H.S. available for learning. Id. Though she rejected Plaintiff's claim that Hungerford did not have adequate sensory equipment to implement the IEP, the IHO found that Gullo's claim that they were prohibited from touching children further buttressed her finding that Hungerford could not address H.S.'s needs.
Second, the IHO found that Plaintiff sustained her burden of establishing that the Rebecca School was an appropriate placement for H.S. The IHO specifically noted the OT and overall sensory diet available to H.S. at the Rebecca School, the significant parent training and counseling, and the progress that H.S. had made while at the school. Id. at 35-36. Third, the IHO also found that the equitable considerations weighed in Plaintiff's favor. Specifically, the IHO rejected the District's arguments that Plaintiff did not cooperate with the District, that her contract with the Rebecca School was illusory, and that her hearing request was untimely. Id. at 37. The IHO thus awarded Plaintiff reimbursement and direct funding for the costs of H.S.'s attendance at the Rebecca School. Id. at 39.
The District appealed the IHO's determination that it failed to offer H.S. a FAPE for the 2011-2012 school year, and that the equitable considerations weighed in Plaintiff's favor.
The SRO first addressed Plaintiff's assertion that she did not have an opportunity to meaningfully participate in the January 2011 CSE meeting. SRO 8. After reviewing the record, the SRO noted that Plaintiff attended the CSE meeting and testified in detail regarding what was discussed at the meeting. Id. She also highlighted that the CSE meeting minutes showed that Plaintiff expressed agreement with particular aspects of H.S.'s level of performance and was asked her opinion about H.S.'s reading and math goals, and voiced her disagreement with the 6:1:1 recommendation. Id. Plaintiff also requested that ADL goals be added to the IEP. Though the SRO did note Plaintiff's claim that the meeting was abruptly ended once she expressed her objection with the placement recommendation, the SRO concluded that it was not unusual for CSE meetings to end after a recommendation had been made. Id. Accordingly, the SRO determined that Plaintiff "was provided with, and took advantage of, the opportunity to participate during the CSE meeting." Id. at 8.
The SRO next addressed the sufficiency of the evaluations considered by the CSE. Id. at 10. The SRO reviewed all of the available materials, noting that "much of the information available to the January 2011 CSE was obtained from the parent" or the Rebecca School, and found that the information contained in the various evaluations was sufficient to create an adequate IEP for H.S. Id. Reviewing the 2009 social history update, the SRO found that it provided descriptions of H.S.'s "communication, gross motor, pre-academic, social interaction, and ADL skills," as provided by Plaintiff. Id. The 2009 P-E evaluation provided background information about H.S.'s "medical history, then-current education program," and indicated that H.S. was "untestable." The evaluation also indicated that H.S. engaged in self-stimulating behaviors, such as rocking, hand flapping, finger flicking, staring at the lights, and screeching. Id. It also contained descriptions of H.S.'s skills as reported by Plaintiff, including that H.S. followed one-step directions, and identified some colors and shapes. The SRO also found that the 2010 classroom observation did not accurately reflect H.S.'s abilities because his paraprofessional was not present and indicated that the CSE placed little reliance on this document. Id. at 12.
The SRO discussed the information contained in the Rebecca Progress Report in great detail. Id. According to the report, H.S. attended a classroom with a ratio of 6:1:2 and received a 1:1 paraprofessional throughout the day. H.S. presented as either "up-regulated" or "underregulated" and needed constant moving activities or adult support to regain attention and modulate his actions. He also used a "variety of sensory materials/activities including jumping on a trampoline, walking up stairs, rubbing lotion, squishing a therapy ball, swinging on a swing, and receiving joint compression to help maintain regulation." Id. According to the speechlanguage pathologist, H.S. was nonverbal, but was able to, among other things, orient to his name, follow one and two-step related directions and identify preferred items from a field of six. Id. at 13. Therapy sessions focused on improving his production of consonants and vowel sounds, and his awareness of oral structures. Id. With respect to his gross and fine motor skills, the report indicated that H.S. worked on increasing independence with self-care skills and developing muscle/tone strength, and endurance. He received OT and PT sessions in which the therapists worked on improving H.S.'s ability to "don and doff his shoes" and maneuver through his environment. Id.
Of note, the SRO did find that the District failed to evaluate H.S. in all areas of his suspected disability in violation of state and federal regulations. She also acknowledged that although Dr. Fochetta testified that she reviewed all materials prior to the CSE meeting, the 2009 P-E evaluation report was not discussed at the meeting. Nevertheless, the SRO concluded that collectively, the information gathered from the evaluations and the input from Plaintiff and Gerstein, provided the CSE with sufficient functional, developmental, and academic information about H.S. and his individual needs. Id. at 11, 14.
The SRO then addressed the adequacy of the description in the IEP of H.S.'s present levels of performance. Id. at 14. She found that it was reasonable for the CSE to rely on the description of H.S.'s present level of performance provided by the Rebecca Progress Report because it was created by staff that interacted with H.S. on a daily basis. Moreover, the CSE meeting minutes indicated that a draft of the IEP present levels of performance was read aloud during the meeting and was modified by input from Gerstein. The SRO also noted that H.S.'s communication and social skills, as described in the IEP, were consistent with the information available to the CSE. Though the SRO acknowledged that Plaintiff preferred that the IEP contain more specific information about H.S.'s sensory abilities and preferred sensory tools, the SRO was persuaded by Dr. Fochetta's testimony that the IEP was "purposefully left fluid and open" to anticipate changes in H.S.'s needs. Id. at 16. The SRO also rejected Plaintiff's claim that the District's failure to update the IEP to address H.S.'s change in behavior at the start of the school year constituted the denial of a FAPE because she found that the District had not been made aware of any changes to H.S.'s needs. Id. at 16-17.
The SRO also rejected Plaintiff's assertion that the IEP did not provide sufficient goals to address H.S.'s needs relating to social/emotional skills, ADLs, and safety. Id. at 17. Though the SRO acknowledged that the annual goals as described in the IEP were noncompliant with New York regulations in that they "provided little guidance with regard to the manner in which [H.S.'s] progress was to be measured," she concluded that it did not rise to the level of a denial of a FAPE. Id. at 18-19. She found that the annual goals, accompanied by several short-term goals and evaluative criteria, were sufficient to guide a teacher in providing H.S. with instruction. Id. at 19. The SRO also found that Plaintiff's objections regarding the difficulty of the annual goals were unsupported. She determined that the goals in the IEP were almost identical to those listed in the Rebecca Progress Report and that any changes made were reasonable expansions to the goals in the report. Id.
In analyzing whether the IEP adequately identified and addressed H.S.'s behaviors, the SRO noted that the parties were in agreement that H.S. engaged in interfering behaviors and thus it was a violation of New York regulations for the District not to conduct an FBA. The SRO also found that the BIP was not developed in compliance with New York regulations because it lacked "the required specificity regarding baseline measures" of H.S.'s behaviors; the "intervention strategies" to prevent his behaviors and teach alternative behaviors; and the schedule "to be used to measure the effectiveness of the intervention strategies employed." Id. at 22. The SRO also noted that the BIP included in H.S.'s January 2011 IEP was identical to the one included in his April 2010 IEP. Notwithstanding these violations, the SRO found that the IEP included sufficient information to identify H.S.'s behaviors and that the sensory supports listed were adequate strategies to address them. Id. at 23. The SRO pointed to the various behaviors listed throughout the IEP and relied on Dr. Fochetta's testimony that the sensory supports were "global in nature" and were meant to assist H.S. in remaining regulated and available to learn. Id.
The SRO also briefly addressed Plaintiff's assertion that the IEP's failure to include parent counseling and training resulted in a denial of a FAPE. Id. at 25. Though the SRO agreed that the District committed a violation of New York regulations by not including parent counseling and training, she found that nothing in the record indicated that Plaintiff had "specific needs relating to her ability to provide follow-up interventions to [H.S.] at home, such that, without these services, [H.S.] would not receive a FAPE." Id. at 26. After having assessed all of Plaintiff's procedural claims and noting all of the District's violations, the SRO concluded that the District's procedural violations, considered cumulatively, did not impede H.S. right to a FAPE, significantly impede Plaintiff's opportunity to participate in the decision-making process regarding the provision of a FAPE to H.S., or cause a deprivation of educational benefits.
The SRO next concluded that nothing in the record indicated that the CSE's decision to recommend a 6:1:1 special class placement would not provide H.S. educational benefits. SRO 24-25. The SRO explained that a 6:1:1 class ratio was especially intended for "students whose management needs are determined to be high intensive, and requiring a high degree of individualized attention and intervention." Id. at 24. She also noted that the CSE recommended a full-time 1:1 paraprofessional and related services, which would provide additional support for H.S. The record indicated that at the Rebecca School, H.S. attended a 6:1:2 class with a 1:1 paraprofessional — a configuration not entirely different than the one recommended by the CSE. The SRO was unpersuaded by Gerstein's testimony that a 6:1:1 placement was inappropriate for H.S. and characterized her objections as addressing Hungerford's ability to implement the IEP and not about the actual 6:1:1 recommendation. Id. at 25.
Lastly, the SRO turned to Plaintiff's challenges to the recommended placement at Hungerford. SRO 26-27. Relying in part on the Second Circuit's decision in R.E., 694 F.3d 167, the SRO concluded that Plaintiff could not prevail on her claims regarding implementation of the IEP because she had rejected the assigned placement prior to the time the January 2011 IEP was scheduled to be implemented. She stated that because Plaintiff never enrolled H.S. at Hungerford, any conclusions that the District would have been unable to implement the IEP would "necessarily be based on impermissible speculation." Id. at 27.
Having found that the District satisfied its burden to establish that it offered H.S. a FAPE for the 2011-2012 school year, the SRO sustained the District's appeal, dismissed Plaintiff's cross-appeal, and ordered that the IHO's decision be modified to the extent that it directed the District to directly fund H.S's tuition at the Rebecca School for the 2011-2012 school year. SRO 28.
On August 10, 2015, Plaintiffs filed the Complaint in this action, seeking reversal of the SRO's decision. (Doc. 1) On February 9, 2016, the Court received the administrative record, which was filed under seal. (Doc. 19) The parties cross-moved for summary judgment (Docs. 21, 27), and on June 7, 2016, the motions were fully briefed.
Upon an aggrieved party's appeal of the SRO's decision to the federal district court, the court must review the entirety of the administrative record in addition to supplemental evidence upon either party's request. 20 U.S.C. § 1415(i)(2)(C)(i)-(ii).
Courts reviewing administrative decisions under the IDEA must determine whether the decision is supported by a preponderance of the evidence. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003). This review is not, however, "an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. Rather, "[t]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed." C.F., 746 F.3d at 77 (quoting Gagliardo, 489 F.3d at 112-13). Both the Supreme Court and the Second Circuit "have interpreted the IDEA as strictly limiting judicial review of state administrative decisions." Grim, 346 F.3d at 380-81 (citing Rowley, 458 U.S. at 204-08; and Walczak, 142 F.3d at 129). This Court must therefore "give `due weight' to the administrative proceedings, `mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Id. at 381 (quoting Walczak, 142 F.3d at 129). "The standard of review `requires a more critical appraisal of the agency determination than clear-error review but nevertheless falls well short of complete de novo review.'" C.F., 746 F.3d at 77 (quoting M.H., 685 F.3d at 244).
As the Second Circuit has articulated, the level of deference owed by this Court to the administrative findings below must "hinge on the kinds of considerations that normally determine whether any particular judgment is persuasive." M.H., 685 F.3d at 244. Most critically, the "deference owed depends on both the quality of the opinion and the court's institutional competence." C.F., 746 F.3d at 77. The Court "must defer to the SRO's decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned," R.E., 694 F.3d at 189, and the Court's "determination of the persuasiveness of an administrative finding must also be colored by an acute awareness of institutional competence and role," M.H., 685 F.3d at 244. Thus, for example:
M.H., 685 F.3d at 244 (citations omitted).
Finally, courts "defer to the final decision of the state authorities, even where the reviewing authority disagrees with the hearing officer." Id. at 241; see also Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp.2d 415, 426 (S.D.N.Y. 2007), aff'd, 293 F. App'x 20 (2d Cir. 2008) (deferring to the SRO's determination because doing otherwise would invite the court to substitute its "own uninformed judgment for the opinions of persons with far greater expertise without having any basis to do so"). "If the SRO's decision conflicts with the earlier decision of the IHO, the IHO's decision may be afforded diminished weight." E.A.M., 2012 WL 4571794, at *5 (internal quotation marks omitted). However, if the district court concludes that the SRO's determinations are "insufficiently reasoned to merit that deference," the court may "consider the IHO's analysis, which is also informed by greater educational expertise than that of judges, rather than [] rely exclusively on its own less informed educational judgment." M.H., 685 F.3d at 246.
Plaintiff asks the Court to defer to the IHO's decision and find that the District failed to offer H.S. a FAPE for the 2011-2012 school year, that the Rebecca School was an appropriate placement for H.S., and that Plaintiff is entitled to direct payment of H.S.'s tuition. Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment (Doc. 22) ("Pl. Memo") at 1-2. In support of her claim that the District failed to provide H.S. with a FAPE, Plaintiff challenges the IEP (both procedurally and substantively) and the recommended placement at Hungerford. Defendants ask the Court to defer to the decision of the SRO and thus find that Plaintiff is not entitled to reimbursement. Defendants' Memorandum of Law in Support of Motion for Summary Judgment (Doc. 28) ("Defs. Memo") at 1-2.
As an initial matter, Defendants argue that Plaintiff should not be allowed to assert claims in the moving papers that she did not include in the DPC. Defs. Memo at 19-20. Specifically, Defendants claim that Plaintiff's challenges concerning the 1:1 paraprofessional recommendation, the related services mandates, Hungerford's alleged ban on touching, the instructional methodology used at Hungerford, and its alleged lack of instructional lunch — made for the first time in the motion for summary judgment — are improperly before this Court. In response, Plaintiff claims that Defendants misconstrued her arguments. She asserts that she is not challenging the appropriateness of either the 1:1 recommendation or the mandated related services. Instead, she challenges the IEP's recommendation as a whole and its ability to provide a FAPE to H.S. Plaintiff next argues that the lack of instructional lunch was covered by her challenge to Hungerford's ability to implement the BIP and the District opened the door to this claim by questioning its witnesses about H.S.'s ability to remain focused on food. Plaintiff's Memorandum of Law in Opposition and Reply to Defendants' Cross-Motion for Summary Judgment ("Pl. Opp.") at 5. Lastly, Plaintiff concedes that her claims regarding the educational methodologies employed by Hungerford and its alleged ban on touching was not raised in the DPC. Nevertheless, she claims that it was proper for her to inquire about how sensory support would be implemented and that the District once again opened the door by questioning its witnesses about the methodologies employed at Hungerford. Id. at 6.
Generally, the party requesting a due process hearing "shall not be allowed to raise issues at the . . . hearing that were not raised in the notice . . . unless the [opposing] party agrees otherwise." 20 U.S.C. § 1415(f)(3)(B); see also B.P. v. N.Y.C. Dep't of Educ., 841 F.Supp.2d 605, 611 (E.D.N.Y. 2012) ("The scope of the inquiry of the IHO, and therefore the SRO and this Court, is limited to matters either raised in the Plaintiffs' impartial hearing request or agreed to by Defendant."). "Failure to exhaust the [administrative] remedies provided in [the IDEA's] review process . . . deprives a federal court of subject-matter jurisdiction to consider the claim on appeal from the SRO." A.M., 964 F. Supp. 2d at 283 (citing Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 243 (2d Cir. 2008)). Nevertheless, the District is not permitted to argue issues outside the scope of the DPC to meet its burden, "without opening the door" for Plaintiff to also address these typically foreclosed issues. M.H., 685 F.3d at 251.
Though Plaintiff's challenges may not be entirely outside of the scope of the DPC or the investigation, the Court finds that her challenges are nonetheless impermissible. Plaintiff's claims relating to the educational methodologies used and the alleged ban on touching, are retrospective challenges to the appropriateness of Hungerford as the proposed placement for H.S. Here, Plaintiff was unaware of these alleged facts at the time she rejected Hungerford and thus, cannot rely on these assertions to challenge the proposed placement. See M.O., 793 F.3d at 244 ("Challenges to a school district's proposed placement school must be evaluated prospectively (i.e. at the time of the parents' placement decision) and cannot be based on mere speculation.") Further, the IEP does not recommend that he receive instructional lunches nor that a specific teaching methodology be employed. As such, the Court will not consider these challenges in its assessment of Hungerford as an appropriate placement for H.S.
Plaintiff first challenges the procedural adequacy of the IEP. In determining whether an IEP is adequate, courts first examine whether the state has complied with the procedures mandated by the IDEA. A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009). This inquiry is "no mere formality," since "adequate compliance with the procedures prescribed w[ill] in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Walczak, 142 F.3d at 129 (internal quotation marks omitted). At the same time, not "every procedural error in the development of an IEP renders that IEP legally inadequate under the IDEA." A.C., 553 F.3d at 172. A procedural violation renders an IEP legally inadequate only when the violation (1) "impeded the child's right to a [FAPE]," (2) "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a [FAPE]," or (3) "caused a deprivation of educational benefits." E.A.M., 2012 WL 4571794, at *6 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp.2d 656, 659 (S.D.N.Y. 2005) (finding that procedural violations "do not automatically require a finding of a denial of a FAPE.").
Here, Plaintiff alleges two procedural violations: (1) that the CSE failed to fully evaluate H.S. and to consider sufficient, appropriate, evaluative material in developing his IEP; and (2) that she was not given a meaningful opportunity to participate in the CSE meeting. Pl. Memo. at 13-18. In opposition, the District asserts that, as the SRO found, the evaluative materials on which the CSE relied were sufficient to develop a program that offered H.S. a FAPE and that Plaintiff actually participated in the CSE meeting. Defs. Memo at 21-30. Though the District concedes that it committed several procedure violations, it argues that the SRO was correct in finding that the procedural violations did not render the IEP legally inadequate. Id. at 30-31.
Plaintiff makes two arguments with respect to the information used to create the IEP: (1) that the CSE did not have sufficient information on which to rely because it failed to conduct necessary evaluations and behavioral assessments;
When developing a student's IEP, the CSE must review "existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related service providers." 20 U.S.C. § 1414(c)(1)(A); see 8 N.Y.C.R.R. § 200.4(b)(5)(i). "[O]n the basis of that review, and input from the child's parents," the CSE must then "identify what additional data, if any, are needed to determine," among other things, "the educational needs of the child," "the present levels of academic achievement and related developmental needs of the child," and "whether the child needs special education and related services." 20 U.S.C. § 1414(c)(1)(B); see 8 N.Y.C.R.R. § 200.4(b)(5)(ii). If the CSE determines that "no additional data are needed to determine . . . the child's educational needs," the district is not "required to conduct such an assessment unless requested by the child's parents." 20 U.S.C. § 1414(c)(4); see 8 N.Y.C.R.R. § 200.4(b)(5)(iv). In other words, "[a]ny additional assessments need only be conducted if found necessary to fill in gaps in the initial review of existing evaluation data." D.B. ex rel. E.B. v. N.Y.C. Dep't of Educ., 966 F.Supp.2d 315, 329-30 (S.D.N.Y. 2013); see also T.F. ex rel. M.F. v. N.Y.C. Dep't of Educ., No. 14 Civ. 3401 (WHP), 2015 WL 5610769, at *4 (S.D.N.Y. Sept. 23, 2015). Unless the CSE identifies such a "gap," or the parents and district agree otherwise, the IDEA requires only that a child with a disability be evaluated at least once every three years, and not more frequently than once a year. 20 U.S.C. § 1414(a)(2)(B); 8 N.Y.C.R.R. § 200.4(b)(4); see D.B., 966 F. Supp. 2d at 329.
When a child exhibits behavior that significantly "impedes the child's learning or that of others," the District is required to conduct an FBA, "as necessary, to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities." 8 NYCRR § 200.4(b)(1)(v). An FBA should include an "identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior . . . and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." 8 NYCRR § 200.1(r). In addition to conducting an assessment, the CSE "shall consider the development of a behavioral intervention plan." 8 NYCRR § 200.22(b).
The Second Circuit has found that failure to conduct an FBA is "a serious procedural violation" because it may prevent the CSE "from obtaining necessary information about the student's behaviors," leading to a flawed IEP. R.E. v. N.Y. City Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012). However, "[f]ailure to conduct an FBA does not render an IEP legally inadequate under the IDEA so long as the IEP adequately identifies a student's behavioral impediments and implements strategies to address that behavior." M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 140 (2d Cir. 2013). "[W]hether an IEP adequately addresses a disabled student's behaviors and whether strategies for dealing with those behaviors are appropriate are `precisely the type of issue[s] upon which the IDEA requires deference to the expertise of the administrative officers.'" Id. (citing A.C., 553 F.3d at 172).
Here, the information available at the time of the CSE meeting included H.S.'s IEP for the prior school year (2010-2011), a December 2010 Rebecca School Progress report, an October 2010 classroom observation report, 2009 P-E evaluation, and a 2009 social history update. SRO at 11. The parties do not dispute that because of H.S.'s history of disability, the District should have conducted additional evaluations. In fact, the SRO found that the district court had failed to evaluate H.S. in all areas of suspected disability as required by statute. SRO at 10 n.6. The SRO also noted that the District failed to conduct an FBA despite knowing that H.S. exhibited significant interfering behaviors. Id.
Nevertheless, the SRO concluded that "the available information regarding the student's functional, developmental, and academic needs was sufficient to enable the January 2011 CSE to develop an IEP." SRO at 10. The Court finds that the SRO's analysis is persuasive and supported by the record. The SRO thoroughly analyzed the hearing record, providing a detailed description of the information that each individual report and evaluation contained. The SRO also acknowledged the shortcomings of both the 2009 P-E evaluation report and the classroom observation. Specifically, she noted that the examiner for the P-E evaluation reported that H.S. was untestable and that his attempts at conducting formal assessments were discontinued when it "became apparent" that H.S. "could not comply with the demands of the formal testing situation." SRO at 12. Importantly, however, the SRO stated that the P-E evaluation had not been discussed at the CSE meeting. SRO at 13. The SRO also highlighted that the 2010 classroom observation was completed at a time when H.S.'s paraprofessional was not present and that the observation stated that H.S. was "somewhat more withdrawn" as a result. Id. The CSE "placed little reliance on this document," therefore, because the classroom observation did not accurately reflect how H.S. would have behaved on a typical day with his paraprofessional. SRO at 12. In addressing the District's failure to conduct an FBA, the SRO identified multiple places throughout the IEP in which H.S.'s interfering behaviors were discussed. Indeed, Plaintiff's claim that the BIP did not contain all of H.S.'s behaviors is weakened, as the SRO notes, by their inclusion in other sections within the IEP.
Thus, although the Court finds that the District violated the IDEA by not conducting the additional evaluations in all areas of H.S.'s suspected disability, it defers to the SRO's wellreasoned conclusion that this procedural violation, alone, does not rise to the level of a denial of a FAPE. See S.Y. v. N.Y. City Dep't of Educ., No. 15 Civ. 6277 (AT), 2016 WL 5806859, at *5 (S.D.N.Y. Sept. 28, 2016) (finding that procedural violation existed because of DOE's failure to conduct additional evaluations, but deferring to SRO's finding that violation was insufficient to invalidate IEP); J.C. ex rel. C.C. v. N.Y.C. Dep't of Educ., No. 13 Civ. 3759 (PGG), 2015 WL 1499389, at *16 (S.D.N.Y. Mar. 31, 2015), aff'd, 643 F. App'x 31 (2d Cir. 2016) ("Because the SRO properly concluded that C.C.'s behavior does not seriously interfere with classroom instruction, and because the IEP adequately addresses C.C.'s minor behavioral issues, no FBA or BIP was necessary.").
Plaintiff asserts that the IEP was procedurally deficient because she was not given a meaningful opportunity to participate in the CSE. She claims that upon disagreeing with the 6:1:1 placement, the CSE meeting ended abruptly without further discussion of her concerns. Pl. Memo at 28.
The IDEA requires that "parents of a child with a disability be given an opportunity `to examine all records relating to [their] child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to [their] child.'" J.P. v. N.Y.C. Dep't of Educ., No. 10 Civ. 3078 (ERK), 2012 WL 359977, at *8 (E.D.N.Y. Feb. 2, 2012) (quoting 20 U.S.C. § 1415(b)(1)). "The CSE may consider and reject the Parent's point of view, but it may not deprive the Parent of meaningful participation by refusing to consider or the Parent's concerns." E.H. v. N.Y. City Dep't of Educ., 164 F.Supp.3d 539, 551 (S.D.N.Y. 2016).
Here, the SRO noted that Plaintiff attended the CSE meeting and testified regarding what was discussed. Pl. Memo at 9. The CSE meeting minutes also indicate that Plaintiff expressed agreement with some aspects of the present level of performance and that her opinion was sought with regard to H.S.'s reading and math goals. Id. The record also suggests that the ADL goals were added at Plaintiff's request. Id. Though the SRO acknowledged Plaintiff's claim that she was not given an opportunity to discuss her objections to the 6:1:1 recommendation, the SRO found that she had been an afforded an opportunity to participate in the CSE meeting. She explained that while it was unfortunate that Plaintiff felt that her objection caused the meeting to end, she had not been significantly impeded from participating. Id. The SRO made no mention of whether Plaintiff's concerns regarding the 6:1:1 recommendation were actually discussed by the CSE.
Though the Court finds that the SRO did not adequately address whether the CSE considered other options for H.S., a review of the record indicates that the CSE did in fact consider other options. First, the IEP specifically states that 12:1:1 and 8:1:1 placements were considered. Ex. 4. Second, Dr. Fochetta confirmed during her testimony that these class ratios were "ruled out" at the very beginning of the CSE meeting because they were too large and overwhelming for H.S. Tr. 555. Dr. Fochetta also stated that a 6:1:1 class ratio without a 1:1 paraprofessional was also considered and rejected because it would not provide H.S. with sufficient support. Id. Thus, the Court finds that Plaintiff was not denied a meaningful opportunity to participate in the development of the IEP.
Plaintiff claims that the SRO failed to consider the cumulative effect of all of the District's procedural violations. Pl. Memo at 24. She asserts that the District's failure to further conduct evaluations and allow her to meaningfully participate resulted in the development of an IEP that did not accurately identify his behaviors or needs and improperly recommended a 6:1:1 class placement. Id. at 26. Plaintiff thus urges the Court to defer to the IHO's conclusion that the multiple procedural violations resulted in a denial of a FAPE to H.S. IHO 31. Defendants argue that the Court should defer to the SRO's conclusion that the District's failure to conduct an FBA, develop a BIP in accordance with New York regulations, and include parent counseling and training in the IEP did not amount to a denial of a FAPE, or significantly impede Plaintiff's opportunity to participate in the decision-making process. SRO 26.
As an initial matter, Plaintiff's representation of the procedural violations the Court should consider in its analysis is incorrect. The Court must consider only the cumulative effect of the determined, rather than the alleged, procedural violations. See R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 192-196 (2d Cir. 2012). To that end, the determined procedural violations are comprised of failures to: conduct an FBA, develop a BIP in accordance with New York regulations, include parent counseling and training in the IEP, evaluate H.S. in all areas of his suspected disability in preparation for the CSE meeting. SRO 10. The District's failure to sufficiently evaluate H.S., like the District's failure to conduct an FBA and develop an adequate BIP, is significant as it prevents the CSE from "obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all." R.E., 694 F.3d at 190. The remaining procedural violation, the District's failure to include parent training or counseling in the IEP, is "less serious" because the presence or absence of a parentcounseling provision "does not necessarily have a direct effect on the substantive adequacy" of the IEP. 694 F.3d at 191.
Taken together the Court finds that the District's procedural violations do not amount to a denial of a FAPE. Though the SRO did not expressly address the cumulative effect of the District's procedural violations, her analysis with respect to the individual violations is instructive here. The SRO found that the individual violations did not amount to a denial of a FAPE, in pertinent part, because the CSE relied heavily on the Rebecca Progress Report and Plaintiff's and Gerstein's input during the meeting. The Rebecca School and Plaintiff, H.S.'s mother, are, arguably, in the best position to provide information regarding H.S.'s abilities and needs. Here, the hearing record indicates that the CSE received significant information from Plaintiff and Gerstein and that it gave an appropriate amount of weight to the Rebecca Progress Report. Importantly, though Plaintiff asserts that the Rebecca Progress Report would have expired before the implementation of the January 2011 IEP, nothing in the record indicates that any objections were made to the CSE's reliance on the report. Indeed, both Plaintiff and Gerstein helped modify the information provided in the report to reflect H.S.'s needs for the 2011-2012 year. Accordingly, the Court finds that the District's procedural violations, taken as a whole, do not amount to a denial of a FAPE or significantly impeded Plaintiff's opportunity to participate in the decision-making process. See e.g., P.L. v. N.Y.C. Dep't of Educ., 56 F.Supp.3d 147, 163 (E.D.N.Y. 2014) ("In sum, the three procedural flaws with the IEP found by the Court, i.e., the absence of a vocational assessment, the failure to conduct an FBA, and the lack of provisions for parent counseling, neither separately nor cumulatively rise to the denial of a FAPE."); see also, R.E., 694 F.3d at 193 (concluding that IEP's failure to provide for parent counseling and deficiencies in FBA did not cumulatively amount a violation of the IDEA).
Plaintiff next challenges the substantive adequacy of the IEP. An IEP is substantively adequate if it "provide[s] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." D.D-S. v. Southold Union Free Sch. Dist., No. 09 Civ. 5026 (JS), 2011 WL 3919040, at *11 (E.D.N.Y. Sept. 2, 2011) (quoting Rowley, 458 U.S. at 203), aff'd, 506 F. App'x 80 (2d Cir. 2012).
When deciding whether a school district has met its obligations under the IDEA, a court "must examine the record for any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan." Cerra, 427 F.3d at 195 (internal quotation marks omitted). A court cannot choose, however, between the competing views of experts on matters of educational policy or substitute its own judgment for that of the hearing officers which it reviews. Id. (citing Briggs v. Bd. of Educ. of Conn., 882 F.2d 688, 693 (2d Cir. 1989)). Questions of an IEP's substantive adequacy are thus ones in which "substantial deference is owed to the judgments of state administrative officers." Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 450 (2d Cir. 2015) (citing Cerra, 427 F.3d at 191). "[C]ourts lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy." Id. (quoting Rowley, 458 U.S. at 208); see also Cerra, 427 F.3d at 195 ("Because administrative agencies have special expertise in making judgments concerning student progress, deference is particularly important when assessing an IEP's substantive adequacy."); Grim, 346 F.3d at 382 ("[T]he sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of administrative officers.").
Here, Plaintiff raises three substantive challenges to the SRO's findings: (1) that the IEP failed to fully and accurately reflect H.S.'s then-current levels of performance and needs; (2) that the IEP goals were inappropriate and insufficient for H.S.; and (3) that the 6:1:1 class ratio did not provide adequate support for H.S. Pl. Memo at 18.
Plaintiff argues that the IEP failed to fully and accurately reflect H.S.'s then-present levels of performance and individual needs, as is required by the IDEA. Pl. Memo at 19; see 20 U.S.C. § 1414(d)(1)(A)(i); 8 N.Y.C.R.R. § 200.4(d)(2)(i). Specifically, Plaintiff asserts that the IEP described H.S. vaguely as "pre-academic" and thus did not fully describe H.S.'s abilities. She also argues that the IEP did not indicate how often H.S. required sensory input or what sensory tools would be used, and did not specify H.S.'s primary mode of communication. Id. at 19-20. Lastly, Plaintiff claims that the SRO engaged in improper burden shifting when she noted that the District was not made aware of any changes in H.S.'s needs subsequent to the CSE meeting. Id. at 20.
As a general matter, and as the SRO noted, an IEP is required to provide the child's present levels of academic achievement and functional performance," including "how the child's disability affects the child's involvement and progress in the general education curriculum." 20 U.S.C. § 1414(d)(1)(A)(i)(I); 8 N.Y.C.R.R. 200.4(d)(2)(i). Importantly, "[e]very aspect of a student's specific educational issues does not need to be detailed in the IEP, as long as the IEP [is] designed to specifically address those issues." GB v. N.Y.C. Dep't of Educ., 145 F.Supp.3d 230, 250 (S.D.N.Y. 2015).
Upon review of the record, the SRO found that the IEP accurately reflected H.S.'s present level of performance. SRO 17. Specifically, the SRO noted that a draft of H.S.'s present level of performance was read aloud at the CSE meeting and that the draft was modified "with teacher input." SRO 15. The CSE meeting minutes also indicated that H.S.'s academic level was discussed and "agreed upon in all areas" and that his social/emotional levels of performance were revised to reflect observations by Gerstein. Id. Addressing the IEP itself, the SRO explained in great detail how the IEP accurately described H.S.'s communication and social skills, health and physical development levels, and sensory needs. SRO 15-16. The SRO also found that the fact that the IEP did not include specific sensory tools was not improper in that it allowed for flexibility in addressing H.S.'s needs. SRO 16. The SRO also rejected Plaintiff's assertion that the IEP was inadequate because it did not reflect H.S.'s changes in abilities and needs that occurred after the CSE meeting. SRO 16. She found that nothing in the record indicated that the District was made aware of any significant changes.
The Court defers to the SRO's well-reasoned and thorough analysis. Moreover, Plaintiff's claim that the SRO improperly shifted the burden of proof regarding H.S.'s thenpresent levels of performance is unavailing. As Defendants correctly note, the IEP must be evaluated prospectively as of the time of its drafting. Def. Memo at 40; see also 973 F.Supp.2d 344, 361 (S.D.N.Y. 2013). Thus, Plaintiff cannot challenge the adequacy of H.S.'s January IEP by claiming that his needs and abilities changed by the time the IEP was to be implemented in July. See generally, R.E., 694 F.3d at 195. Accordingly, the Court agrees with the SRO's analysis and finds that the IEP adequately stated H.S.'s then-present levels of performance.
Pursuant to the IDEA and its regulations, an IEP must include "short-term and long-term academic and nonacademic goals for each student, as well as evaluative procedures for measuring a student's progress in achieving the short-term and long-term goals." P.G. v. New York City Dep't of Educ., 959 F.Supp.2d 499, 512; see also 20 U.S.C. § 1414(d)(1)(A)(i)(II)-(III); 34 C.F.R. § 300.320(a)(2)-(3); 8 N.Y.C.R.R. § 200.4(d)(2)(iii)-(iv). An IEP's goals must be designed to both meet "the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum and to meet each of the child's other educational needs that result from the child's disability." C. W., 2016 WL 1230794, at *5 (quoting C.H. v. Goshen Cent. Sch. Dist., No. 11 Civ. 6933 (CS), 2013 WL 1285387, at *12 (S.D.N.Y. Mar. 28, 2013). "[T]he sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003). Accordingly, courts in this Circuit are generally "reluctant to find a denial of a FAPE based on failures in IEPs to identify goals or methods of measuring progress." L.B. v. N.Y. City Dep't of Educ., No. 15 Civ. 03176 (AJN), 2016 WL 5404654, at *17 (S.D.N.Y. Sept. 27, 2016) (citing G.B., 145 F. Supp. 3d at 251).
Plaintiff asserts that the annual goals were vague and immeasurable because they did not provide a baseline. Pl. Memo at 21. She also claims that the IEP did not include ADL goals to address H.S.'s safety issues or specific social/emotional goals. Plaintiff also believed that H.S. would be unable to perform the certain OT tasks. Id. at 21. She furthers her claim by relying on testimony from Gerstein that the Rebecca Progress Report was created for a six-month period and would have expired by July 2011, when the IEP would have been implemented. Id. at 21-22.
As noted previously, the IEP included twelve annual goals supported by approximately thirty-five short-term objectives in the areas of reading, math, OT, PT, speech and language therapy, and ADLs. The IEP also provides management mechanisms to assist H.S. in working towards and meeting these goals. Upon review of the record, the SRO found that while the annual goals should have included the required elements, the corresponding short-term objectives were sufficiently detailed to "guide a teacher in providing [H.S.] with instruction." SRO 19. Citing to caselaw in this Circuit, she also noted that neither the IDEA nor New York regulations required that a baseline be included in an IEP. See R.B. v. N.Y. City Dep't of Educ., No. 12 Civ. 3763 (AJN), 2013 WL 5438605, at *13 (S.D.N.Y. Sept. 27, 2013), aff'd, 589 F. App'x 572 (2d Cir. 2014). The SRO also provided a detailed explanation as to the adequacy of the goals listed in the IEP. She found that the CSE properly relied on (and recycled) the goals listed in the Rebecca Progress Report because H.S. had not met many of the goals by the time of the CSE meeting. The SRO also determined that the CSE reasonably expanded those goals as needed for H.S.'s January IEP. SRO 19. Though the SRO acknowledged that the IEP did not include goals specifically labelled social/emotional goals or needs, she found that H.S.'s social/emotional needs were "primarily related to his communication deficits," which were adequately addressed by speech-language goals and H.S.'s sensory needs. SRO 20.
Accordingly, the Court defers to the SRO's thorough and well-reasoned decision.
Pursuant to New York law, "[t]he maximum class size for special classes containing students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention, shall not exceed six students, with one or more supplementary school personnel assigned to each class during periods of instruction." 8 N.Y. Comp. R. & Regs. § 200.6(h)(4) (ii)(a). Courts in this district have found that challenges to class size and student teacher ratios "involve questions of methodology more appropriately answered by the state and district decision-makers than by federal judges." P.S. v. N.Y. City Dep't of Educ., No. 13 Civ. 04772 (LGS), 2014 WL 3673603, at *10 (S.D.N.Y. July 24, 2014) (citing M.L. v. New York City Dep't of Educ., No. 13 Civ. 00574 (ALC), 2014 WL 1301957, at * 11 (S.D.N.Y. Mar. 31, 2014)).
Plaintiff claims that the 6:1:1 class recommendation with a 1:1 paraprofessional was inappropriate because it did not address H.S.'s management needs. Id. at 23. In support of her argument, Plaintiff cites to testimony from Gerstein explaining based on her experience H.S.'s sensory needs would not have been met in a 6:1:1 placement. Id. at 23-24.
However, after a thorough and well-reasoned analysis of the record, the SRO concluded that a 6:1:1 class placement with a 1:1 paraprofessional and the related services was adequate to meet H.S.'s needs and make him available for learning. The SRO highlighted that the CSE recommended a "significant level of related services" in addition to the highly restrictive class setting. She also noted that H.S.'s class size at the Rebecca School did not differ greatly from the one recommended in the IEP and that nothing in the record indicated that H.S. needed more than the support his 1:1 paraprofessional would provide. The SRO's conclusion is "exactly the sort of policy judgment on which the Second Circuit has instructed that this court should defer to the SRO." C.W. v. City Sch. Dist. of the City of N.Y., 171 F.Supp.3d 126, 135 (S.D.N.Y. 2016); M.H. v. New York City Dep't of Educ., No. 10 Civ. 1042 (RJH), 2011 WL 609880, at *12 (S.D.N.Y. Feb. 16, 2011) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)).
Plaintiff argues, and Defendants do not contest, that the SRO improperly dismissed Plaintiff's claims regarding the adequacy of Hungerford to meet H.S.'s needs, because H.S. never attended the school. Pl. Memo at 32-33. Shortly after the SRO rendered her decision, the Second Circuit clarified that while "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement," R.E., 694 F.3d at 195, it was not speculative to "prospective[ly] challenge[] a proposed placement school's capacity to implement a child's IEP," M.O., 793 F.3d at 244; see also M.T. ex rel. H.T. v. N.Y.C. Dep't of Educ., No. 14 Civ. 10124 (GHW), 2016 WL 1267794, at *6 (S.D.N.Y. Mar. 29, 2016). Otherwise, the law "would require parents to send their child to a facially deficient placement school prior to challenging that school's capacity to implement their child's IEP, which is `antithetical to the IDEA'[s] reimbursement process.'" M.O., 793 F.3d at 244-45 (quoting V.S. ex rel. D.S. v. N.Y.C. Dep't of Educ., 24 F.Supp.3d 295, 300 (E.D.N.Y. 2014)). Thus, although Plaintiff is correct in stating that the SRO misapplied the law, Plaintiff's placement challenges are all speculative and thus impermissible.
Plaintiff asserts a number of arguments to support her claim that Hungerford could not implement the IEP. First, she claims that at Hungerford the building and lunchroom were too distracting and stimulating, the daily living skills she witnessed were too advanced for H.S., and the school did not have a sensory gym or adequate sensory equipment. Pl. Memo at 34. Second, Plaintiff argues that Hungerford's ban on touching students (as stated by Gullo) would significantly hinder H.S.'s ability to learn because of his dependency on physical contact. Id. at 35. Third, she claims that Pepe told her that it was likely that she would be receiving an RSA for the services that H.S. required and that there would be no guarantee that he would receive the services during the school day. Id. at 36. Defendants claim that these challenges are "impermissibly speculative, inaccurate, or not based on an actual requirement present in the IEP." Def. Memo at 44.
The Court agrees with Defendants. First, Plaintiff's claims that Hungerford could not implement the IEP because it was too noisy or stimulating, that the ADLs she witnessed were too advanced, and that she H.S. would likely receive RSA's for the mandated services,
Plaintiff's sole non-speculative claim is her challenge to Hungerford's ability to provide adequate sensory support for H.S. Pl. Memo at 33. She argues that Hungerford was inadequate because it did not have a sensory gym or the sensory equipment (i.e. swings, a trampoline, foof chair, and weighted vests), which Plaintiff claimed that H.S. required. The IHO, however, found otherwise. Though she noted that Hungerford did not have a sensory gym, the IHO credited Pepe's extensive testimony regarding the school's multipurpose room, its available sensory equipment, and its ability to obtain additional equipment depending on a student's needs. The Court thus defers to the IHO's particular finding. "This challenge by [Plaintiff] requires the Court to draw a fact-based conclusion in a sensitive educational area—namely, whether a proposed placement has appropriate facilities and sensory equipment—which the Court is poorly positioned to do." GB v. N.Y. City Dep't of Educ., 145 F.Supp.3d 230, 255 (S.D.N.Y. 2015).
The Court finds that the SRO correctly determined that the District provided H.S a FAPE.
For the foregoing reasons, Plaintiffs motion for summary judgment is DENIED and Defendants' motion for summary judgment is GRANTED. The Clerk of the Court is respectfully directed to terminate the motions (Docs. 21 & 27) and to close this case.
It is SO ORDERED.
