JACK B. WEINSTEIN, Senior District Judge:
Table of Contents
I. Introduction .........................................................273
II. IDEA Statutory Framework .............................................273
III. Factual and Procedural Background ....................................275
IV. Contentions of the Plaintiff .........................................278
V. Application of the Law to the Facts ..................................279 VI. Conclusion ...........................................................281
Plaintiff M.S., acting through his parents, brings this action against defendant the New York City Department of Education ("Department") under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2006) ("IDEA"). He challenges his recommended placement in a special public school as procedurally and substantively inappropriate. His parents placed him in a private school and seek reimbursement for his private school tuition. M.S. has exhausted his state remedies in a state administrative hearing and appeal. At each level, the Department's decision for public school placement was upheld.
M.S. now moves for "modified de novo review" of the state administrative decisions. His application is construed as a motion for summary judgment. The Department cross-moves for summary judgment; it also seeks to strike an affidavit of March 22, 2010 submitted by M.S.'s counsel.
For the reasons set forth below, the Department's motion for summary judgment is granted, and M.S.'s motion for summary judgment is denied. The motion to strike the affidavit is denied as moot.
In effect, this proceeding is brought to obtain legal fees. Plaintiff has received exactly the kind of educational placement in a private school that he sought. The Department paid fully for that relief without the need for this suit. Counsel is not entitled to a fee paid by Defendant. The result would have been exactly the same had counsel done nothing. The case is dismissed as moot and without substantive basis.
IDEA and New York state statutes create a highly detailed body of procedural and substantive law governing the formulation and implementation of appropriate educational programs for disabled students. The precise scheme governing students with special needs in New York is well established and has been frequently rehearsed in federal court decisions concerning IDEA challenges similar to that in the instant suit, as recently summarized in M.H. and E.K. v. New York City Department of Education:
712 F.Supp.2d 125, 130-31 (S.D.N.Y.2010). The parties agree that this description is an accurate statement of the law. Tr. of Summary Judgment Hr'g ("Hr'g Tr.") at 20.
A public education provider must involve the parent of a child with a disability in decisions concerning the child's education. Specifically, it must give the parent an opportunity to participate in meetings regarding "educational placement," 34 C.F.R. § 300.501(b)(1)(i). Parents must be "members of any group that makes decisions on the educational placement of [their] child." 20 U.S.C. § 1414(e); 34 C.F.R. § 300.501(c)(1). "Educational placement" under the IDEA is a term of art: it encompasses the characteristics of a child's educational plan under an Individualized Education Plan (IEP) and "does not refer to a specific location or program."
The following factual summary is supported by clear and convincing evidence. Hr'g Tr.; New York City Bd. of Educ. Individualized Educ. Program, CSE Case No. 31-51642 (June 16, 2008) ("Pl. Exh. 5"); Letter from New York City Dep't of Educ. Comm. on Special Educ. to Parents (June 18, 2008) ("Def. Exh. A"); Letter from M.S., Mother of Student M.S., to Gerard Donegan, Chairperson, Manhattan Integrated Serv. CSE 09, Region Dists. 01, 02, 04, 07 (June 27, 2008) (Def. Exh. B); Letter from Parents to Martin Bassis (June 30, 2008) ("Def. Exh. C"); Decision, Application of a Student with a Disability, State Educ. Dep't, Paul F. Kelly, State Review Officer ("SRO"), No. 09-074, Sept. 10, 2009 ("Def. Exh. D"); Tr. of Admin. Hr'g before Impartial Hearing Officer, dated Dec. 9, 2008, Jan. 9, 2009, Feb. 27, 2009, Mar. 24, 2009, and Apr. 7, 2009 ("Def. Exh. E"); Letter from Gary S. Mayerson, Counsel for Plaintiff M.S., to Impartial Hearing Office (October 6, 2008) (Pl. Exh. A in record before SRO) ("SRO Application"); Findings of Fact and Decision, Case No. 113557, Linda Agoston, Impartial Hearing Officer ("IHO") (Oct. 3, 2008) (Pl.'s Ex. B in record before SRO) ("2008 IHO Decision"); Findings of Fact and Decision, Case No. 118287, Theresa R. Joyner, IHO (May 27, 2009) (Ex. A to Pl.'s Mem.) ("2009 IHO Decision").
M.S., now nine years old, is an autistic student living in Staten Island. M.S. was first diagnosed with autism in 2006. Def. Exh. E at 421. In the 2006-2007 school year, he was enrolled in a New York City public school in a twelve-student special education class with one teacher and one teacher's aide, or paraprofessional. The Department refers to this as a 12:1:1 staffing ratio. See Def. Exh. D at 2. His classification as autistic is not disputed. Def. Exh. D at 2.
On June 15, 2007 the Department issued M.S. an IEP for the 2007-2008 school year. 2008 IHO Decision at 5. His parents rejected the IEP and the assignment of their son to a public school. In October 2007, they enrolled him at the McCarton Center ("Center"), a private "medical and therapeutic practice devoted to children with developmental disabilities and autism." Def. Exh. D at 2; Def. Exh. E at 499. The Center employs a range of child development specialists, including speech and language therapists, occupational therapists, applied behavior analysis therapists, psychologists, and a medical doctor. IHO Tr., Apr. 7, 2009, at 499. At the Center, M.S. received instruction and therapy exclusively in one-on-one sessions with various therapists and other professionals. 2008 IHO Decision at 10.
Reimbursement for the cost of M.S.'s programs at the Center was sought. The Department did not contest that the June 2007 IEP had failed to offer M.S. a free appropriate public education. 2008 IHO Decision at 4-5. By decision of October 3, 2008, an IHO found the June 2007 IEP invalid, awarded reimbursement of the parents' expenses at the Center for the 2007-2008 school year, and ordered the Committee on Special Education ("CSE") to reconvene to develop an appropriate IEP for M.S. for the 2008-2009 school year. Id.
On June 16, 2008, the CSE met to discuss an IEP for the 2008-2009 school
Among the evidence the CSE Team considered were the personal observations of Ms. Guan, an occupational therapy report, a speech-language therapy report, an Applied Behavior Analysis programming report, and the Center's behavior reduction plan. Def. Exh. E at 153, 204. After the CSE meeting, Ms. Guan conducted a Functional Behavior Assessment and created a Behavior Intervention Plan to address those behaviors that were identified as interfering with M.S.'s learning. Def. Exh. E at 100, 160. See 20 U.S.C. § 1414(d)(3)(B) ("The IEP Team shall ... in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior"); N.Y. Comp.Codes R. & Regs. tit. 8, § 200.4(b)(1) ("[A]n individual evaluation of the referred student shall be initiated by a committee on special education. . . . The individual evaluation ... must include at least: ... (v) other appropriate assessments or evaluations, including a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others....").
The Behavior Intervention Plan noted several of M.S.'s behaviors that interfered with his learning:
Pl. Ex. 5 at 19. The plan stated that M.S.'s educators would respond to such behaviors by using "[p]ositive reinforcement; social praise; token economy; verbal/visual supports (i.e., schedule); breaks in-between tasks; planned ignoring." Id. Additionally, it noted that the Department would employ "[a] small class setting with a low student to teacher ratio" and "collaboration between school and home." Id.
The Department issued an IEP recommending a twelve-month program with placement in a 6:1:1 classroom combined with related services consisting of five individual 45-minute sessions of occupational therapy per week, five individual 45-minute sessions of speech-language therapy per week, and three individual 30-minute sessions of physical therapy per week, in addition to a full-time behavior management paraprofessional to assist M.S. in transitioning to the new environment. Pl. Exh. 5 at 1-2, 18-19; Def. Exh. E at 74-76, 155-56. The IEP did not state a specific school location for the recommended program. See generally Pl. Exh. 5.
No attempt to communicate with the Department's contact person to discuss the school assignment or to schedule another meeting was made by the parents. See Hr'g Tr. at 44. Instead, by letter of June 27, 2008, M.S.'s mother informed the Department that she was not accepting its IEP. Def. Exhibit B. In a letter dated June 30, 2008, the parents added that they had observed the recommended school and stated,
Def. Exhibit C. They declared that they intended to keep M.S. enrolled at the Center and seek reimbursement from the Department for their expenses. Id. In the view of M. S.'s mother, he could not have been adequately educated in a group setting. Hr'g Tr. at 38, 49-50. See also Hr'g Tr. at 15 (Plaintiff's counsel: "I did say that he can only learn currently in a one-to-one type teaching model.").
Filed in October 2008 was an impartial hearing request. It alleged that the 2008 IEP was substantively and procedurally invalid and denied M.S. a free and appropriate public education. SRO Application at 1. Sought was reimbursement and prospective payment for fees paid to the Center for the the 2008-2009 school year. Id. In a decision dated May 27, 2009, the IHO held that the IEP's proposed placement represented a free appropriate public education for the 2008-2009 school year and that the proposed program "was reasonably calculated to produce meaningful progress." 2009 IHO Decision at 14. The IHO rejected the parents' contention that the Functional Behavioral Assessment and Behavior Intervention Plan were inadequate or contrary to state regulations. Id. at 12-13. The IHO contended that the proposed placement at 373R was an "appropriate placement for the Student because it offered a special education program with related services designed to meet his unique needs in a class setting with similarly situated students." Id. at 14.
The parents appealed to the SRO. Affirming the IHO's decision, it dismissed the appeal. Def. Exh. D at 1, 13, 15. After an "independent review of the entire hearing record," the SRO determined that the June 2008 IEP was "procedurally and substantively appropriate," and that the CSE's Functional Behavioral Assessment and Behavior Intervention Plan were adequate and in accordance with state regulations. Id. at 13, 14. The SRO affirmed the IHO's finding that the Department's omission of a specific placement site on M.S.'s IEP "did not significantly impede
Pursuant to the court's power to receive additional evidence in an appeal under IDEA, see 20 U.S.C. § 1415(i)(2)(C)(ii), the hearing on the motions included receipt of documents and sworn testimony. No party requested permission to supplement the proof submitted.
M.S. now seeks a federal court "modified de novo review" of the SRO's decision concerning expenses for the 2008-2009 school year.
It is important to note that the tuition expenses at the Center are not at issue here. The Department has always agreed it will reimburse M.S.'s parents for these expenses. Hr'g Tr. at 3 (attorney for the Department: "[T]here is no question amongst the parties that reimbursement for the schooling of the 2008/2009 year will be paid for by the Department of Education.").
If, however, M.S. were to prevail in this court, his parents would be eligible to an award of attorney's fees. See 20 U.S.C. § 1415(i)(3)(B)(i)(I) (a court, in its discretion, may award reasonable attorney's fees to "a prevailing party who is the parent of a child with a disability"). See also Hr'g Tr. at 6 (Plaintiffs counsel: "We believe that this is a case under ... 20 U.S.C. Section 1415, this case should be reversed and you should declare that they were the prevailing party"); Compl. at 13 (asking the court to "declare Plaintiffs-Appellants to be the `substantially prevailing party' and grant leave to Plaintiffs-Appellants to submit a statutory fee application").
Submitted on M.S.'s behalf are two documents that he contends were not disclosed by the Department establishing its failure to provide a free appropriate public education. Pl. Memo. of Law in Support of Their Motion for Modified De Novo Review ("Pl. Motion") at 10. First, he points to a "Special Education Service Delivery Report," a statistical overview of special education services at 373R prepared by the Department. Id. (citing Special Education Service Delivery Report, 75R373 ("Pl. Exh. 1")). This document was available on the Department's website. See Hr'g Tr. at 22-23. Among other statistics, it indicates that in the spring of 2008, 67.9% of 373R's students received occupational therapy, while 32.1% were awaiting it. Pl. Exh. 1. M.S. asserts that this document indicates that "for years, [the Department] has not been ready, willing and able to fully discharge occupational therapy mandates at 373R." Pl. Motion at 10 (emphasis in original).
Second, M.S. relies upon a stipulation agreed to by the Department in a 1982 class action, Jose P. v. Ambach, 669 F.2d 865 (2d Cir.1982). Pl. Motion at 11. He asserts that under the stipulation, the Department "is require[d] to arrange the attendance of its placement officer at the student's IEP meeting," or in the alternative, to "communicate to the parents before site selection is recommended certain basic information concerning the ages and functioning levels of the students in the proposed classroom." Id. M.S. contends that the Department's failure to do so demonstrates a "serious" deprivation of a free appropriate public education and demonstrates the Department's lack of good faith. Id.
M.S. argues further that the SRO failed to apply the correct legal standards when it found that the Department offered him a free appropriate public education. Pl. Motion at 14. He alleges two failures. First, he asserts that the Department "unilaterally
M.S. also raises arguments concerning potential bias on the part of the SRO, the adequacy of the education offered by the Center compared to that offered by the Department, the balance of the equities, and the parents' financial condition. Id. at 11-13, 23-32. The court need not address these final arguments. They have no merit. The first has no basis in any relevant evidence before the court. The second is not dispositive because the question is whether the education offered sufficed under the law, not whether a more perfect educational structure could be found. And the third has no bearing under the law if an appropriate plan and method of education was offered in a public school.
None of M.S.'s "new" evidence suggests error by the Department, the Independent Hearing Officer, or the SRO. They were public documents, available to the parents at the time of the hearing. They were not concealed by the Department. The summary data in the Special Education Service Delivery Report indicate that 373R has not always delivered full special education services to all of its students who require them, but this bare fact does not mean that the school would have been incapable of providing the services to M.S. required by his IEP. The data are especially irrelevant considering that the IEP explicitly recommended that M.S. receive individual occupational, physical, and speech/language therapy at a "separate location." PI. Exh. at 18.
The stipulation in Jose P. v. Ambach is not relevant. As a general rule, a consent decree such as this can be enforced only by a party, a party's privy, or an intended beneficiary. See, e.g., Germain v. County of Suffolk, No. 07-CV-2523 (ADS)(ARL), 2009 WL 1514513, *11 (E.D.N.Y. May 29, 2009) (holding that a third-party beneficiary had standing to enforce a consent decree). The Jose P. consent decree was signed between the Department and a class of plaintiffs who complained of the Department's failure to timely evaluate and place children in special education programs. Jose P., 669 F.2d at 867. It has no bearing on the present action, where evaluation was timely and appropriate. In contrast with M. S.'s characterization, see Pl. Memo. of Law in Support of Their Motion for Modified De Novo Review at 11, the consent decree does not state that placement officers must attend CSE meetings. Instead, it states that a parent attending such a meeting must be "offered the opportunity to meet with the placement officer" at the conclusion of the meeting. Pl. Exh. 3 at 27. The failure of the Department to require the attendance of a placement officer at the CSE meeting is not significant. The parents were invited to consult with the placement officer but did not do so.
M.S. errs in asserting that the SRO applied the wrong legal standards in deciding his appeal. The standards applied were equivalent to those stipulated to as correct. Compare Def. Ex. D at 11 and
Nor did the SRO err by not finding that neglect of the transition issue denied a free appropriate public education. Transition from the private institution M.S. had been attending to the proposed special public school was sufficiently addressed by the provision of an adequately supervised paraprofessional who would have attended to M.S. on a 1:1 basis. As stated by a Department employee who served on the June 2008 CSE Team,
Def. Ex. E at 76. See also Def. Ex. D at 14 ("[T]he hearing record illustrates that the June 2008 CSE recommended the provision of a 1:1 behavioral management paraprofessional for the student to facilitate the student's transition from a 1:1 environment to a 6:1+1 classroom.").
There is no evidence supporting the contention of M.S. that a 6:1 teacher/student teacher ratio, as supplemented by specialists and a paraprofessional, was inappropriate. Nor is there any evidence that he would have been denied the services recommended by the Department if he had attended 373R.
The Department's use of shorthand descriptions of pedagogical techniques in the Behavior Intervention Plan, incorporated within the IEP, reflects no deficiency of attention, analysis, or planning on the part of the Department. The plan proposed was appropriate, sufficiently detailed, and reasonably calculated to provide the professional staff at 373R with precise directions on how M.S. was to receive educational benefits. Orders to experienced people working within a specialized field can rely on recognized, cryptic directions understood by the cognoscenti.
The Department has proceeded in good faith and in compliance with the law throughout. The parents are receiving full compensation for their expenditures at the Center for the 2008-2009 school year. That issue is moot. It is not capable of repetition because each year a new determination is made based on M.S.'s continuing development, requiring a new assessment under the IDEA. See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citing DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) ("[T]he capable-of-repetition doctrine applies only in exceptional situations, and
There is no indication that M.S.'s attorney made any significant contribution or achieved any significant result in favor of M.S. in this federal suit that was not already achieved in the administrative hearing and appeals. While the court recognizes the high professional standing and experience of the attorney for M.S., the law does not provide for a ruling that would shift any unearned legal fee to the Department. See G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 81 (2d Cir.1999) (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)) (stating that a prevailing party is one who "`succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit'").
The court is deeply sympathetic to the parents and their admirable concern for the welfare of their child. It cannot, however, find a basis for providing any remedy sought in the instant litigation.
Defendant's motion for summary judgment is granted. Plaintiff's motion for summary judgment is denied. Defendant's motion to strike the affidavit of Plaintiff's counsel is denied as moot.
The case is dismissed. No costs or disbursements.
SO ORDERED.
