J. PAUL OETKEN, District Judge.
Plaintiffs J.W. and L.W. (collectively, "the Parents") filed this action against the New York City Department of Education ("the Department") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq., seeking reversal of an administrative decision of a State Review Officer denying private school tuition funding for their minor son, Jake W. ("Jake"). Both parties now move for summary judgment. For the reasons that follow, the Court grants Defendant's motion and denies Plaintiffs' motion.
Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A), (B). States that provide a
To receive federal funding, a state must provide each disabled child with an individualized education program ("IEP"). See id. § 1414(d)(1)(A). The IEP, "the result of collaborations [among] parents, educators, and representatives of the school district," Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 81 (2d Cir.2005) (internal quotation marks omitted), is a "written statement 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.'" D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir.2006) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)); see also 20 U.S.C. § 1414(d)(1)(A) (defining "IEP"). The IEP must comply with the procedures set forth in the IDEA and must be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); accord Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) (citing Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998)). An IEP is not required, however, to "furnish every special service necessary to maximize each handicapped child's potential." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir.2003) (alterations and internal quotation marks omitted).
New York State receives federal funds under the IDEA, and is therefore obliged to comply with the Act's requirements. Walczak, 142 F.3d at 123. New York law charges local Committees on Special Education ("CSEs") with developing IEPs for disabled children. N.Y. Educ. Law § 4402(1)(b)(1); R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012), cert. denied, ___ U.S. ___, 133 S.Ct. 2802, 186 L.Ed.2d 861 (2013). The CSE must include: the parents or guardians of the disabled child in question; the child's regular education teacher; the child's special education teacher; a school psychologist; and a district representative "qualified to provide or administer or supervise special education and ... knowledgeable about the general curriculum and the availability of resources of the school district," among other individuals. N.Y. Educ. Law § 4402(1)(b)(1)(a). "In developing a particular child's IEP, a 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." Gagliardo, 489 F.3d at 107-08 (internal citations omitted).
The IEP need not name a specific school placement for the child. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 419 (2d Cir. 2009). The New York City Department of Education's practice "is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation ... identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it." R.E., 694 F.3d at 191.
In order to receive reimbursement, the parent must file a due process complaint challenging the appropriateness of the school district's recommendation. A hearing on this complaint is held before an impartial hearing officer ("IHO"). N.Y. Educ. Law § 4404(1). The IHO's decision may be appealed to a state review officer ("SRO"), see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2), and the decision of the SRO may be challenged in state or federal court, 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3)(a).
Here, Jake's parents rejected the Department's recommendation for the 2011-2012 school year and unilaterally placed Jake in the Rebecca School, a private institution. The Parents assert that Jake was denied access to a FAPE in the 2011-2012 school year and demand that the Department pay Jake's Rebecca School tuition for that year. This case is before the Court after conflicting decisions by the IHO and the SRO concerning whether the Department must reimburse Jake's parents for that year's tuition. The only issue pressed by the Parents in this Court is whether the Department's proposed placement denied Jake a FAPE.
The following facts and procedural background are taken from the parties' submissions and the administrative record.
Jake has autism. He has significant developmental delays and sensory needs, and is primarily non-verbal. (Dkt. No. 22 ("Pl. 56.1 Response") ¶ 2.) There is no dispute that Jake is thus a "child with a disability," who is entitled to a FAPE under the IDEA. See 20 U.S.C. § 1401(3)(A)(i).
Jake began attending the Rebecca School in July 2010, when he was six years old.
Soon after the CSE meeting, on June 8, 2011, the Department issued a "Final Notice of Recommendation," which offered Jake a placement at public school P373R@ P058R ("the Public School"). (Id. ¶ 20; Final Notice of Recommendation, Administrative Record Ex. H-4.) In a letter dated June 27, 2011, Jake's mother informed the Department that she did not find the placement appropriate. She stated that she had toured the Public School on June 21, 2011 with a woman she believed to be a parent coordinator, and had determined that Jake "has not made progress in a similar program." She wrote that she intended to enroll Jake in the Rebecca School for the 2011-2012 school year and seek reimbursement for the tuition. (Pl. 56.1 Response ¶¶ 2122; Parent Correspondence to CSE, Administrative Record Ex. G-E1.) Jake attended the Rebecca School for the 2011-2012 school year, and the tuition for that year was $94,750. (Pl. 56.1 Response ¶ 23; Def. 56.1 Response ¶ 3.)
On October 5, 2011, the Parents filed a due process complaint requesting an administrative hearing and seeking prospective payment of Jake's tuition at the Rebecca School for the 2011-2012 school year. (Pl. 56.1 Response ¶ 30; Def. 56.1 Response ¶ 4.) The due process complaint alleged various substantive and procedural errors with Jake's IEP and substantive issues with his placement, including an allegation that the placement was not appropriate because Jake "did not make progress in a similar program." (Pl. 56.1 Response ¶¶ 31-32; Impartial Hearing Request, Administrative Record Ex. G-A3.) Jake's mother later testified that, by this, she meant that the Public School employed the Applied Behavior Analysis, or "ABA" methodology, to which Jake had not responded in the past. (Def. 56.1 Response ¶ 16; Transcript, Administrative Record Ex. F, at 504-07.) The Rebecca School uses a different methodology called the "Developmental Individual-difference Relationship-based Model," also known as the "DIR" or "Floortime" methodology. (Pl. 56.1 Response ¶ 26; Transcript at 310, 362.)
An impartial hearing was convened over five non-consecutive days between January 3 and February 27, 2012. (Pl. 56.1 Response ¶ 34; Def. 56.1 Response ¶ 5.) Jake's mother testified on his behalf, as did Christine Kiefer, an occupational therapist who had worked with Jake in the past, and five witnesses from the Rebecca School. (Pl. 56.1 Response ¶ 35.) The Department psychiatrist who had been a member of Jake's CSE and Christine Hoffman, a teacher at the Public School, testified for the Department. (Id. ¶ 36.)
As relevant here, the impartial hearing witnesses testified to the difference between the ABA and DIR methodologies. Christine Kiefer testified that she has received training in both ABA and DIR, and that she had used both methodologies in one-on-one sessions with Jake. She testified that her use of ABA with Jake involved
According to Kiefer, after the switch to DIR, Jake "became much calmer," "[h]is eye contact improved," "[h]is tolerance to working with a toy or a task where it was a little more challenging had increased," and "[h]e would not shut down like he did with the ABA method." (Id. at 191.) Kiefer concluded that Jake "responds better as far as learning, communication, socialization,... activities of daily living, ... and his ... learning ... with the DIR method"; while Jake was progressing with DIR, he was "unresponsive" and "regressing" with ABA. (Id. at 196.) The Program Director at the Rebecca School agreed with Kiefer; she testified that DIR is an appropriate methodology for Jake and that "ABA would not work for Jake." (Id. at 255-57, 260-62.)
Jake's mother also testified. She reported that she had visited the Public School after the Department informed her that it was the proposed placement for Jake. While at the school, she said, she "asked the woman who gave — who was giving me the tour ... and she said we do teach ABA." (Id. at 520-21.) Jake's mother testified that she concluded, after hearing this, that the Public School was not appropriate for Jake because it used ABA, but did not voice these concerns to the person who was giving her the tour of the school. (Id. at 521.) She decided to enroll Jake in the Rebecca School instead.
Christine Hoffman testified that she would have been Jake's teacher had he come to the Public School. (Id. at 123-24.) When asked what methodology she uses in the classroom, Hoffman testified that she uses the ABA methodology (id. at 155-57), but that her teaching is "individualized," that it is "specific for each child," and that she "handle[s] each child according to their individual needs" (id. at 126-27, 153).
On April 13, 2012, the IHO issued a decision rejecting the Parents' allegations of procedural error, but holding for the Parents on substantive grounds. Specifically, the IHO found that the proposed placement was not appropriate for Jake because it "included ABA teaching methodology which was not appropriate because it would not enable J[ake] to make educational progress." (IHO Decision, Administrative Record Ex. C, at 12.) She further found that the Parents' unilateral placement of Jake at the Rebecca School was appropriate, and that the equities favored the Parents because Jake's mother had "fully cooperated with the [Department]." (Id. at 13.) Accordingly, the IHO granted the Parents' request for reimbursement of the Rebecca School tuition but reduced the amount by ten percent to reflect that the Rebecca School is in session until only 12:30 on Fridays. (Id. at 13-14.)
Both parties appealed the IHO's decision. In a petition dated May 18, 2012, the Department contended that Jake had been offered a FAPE at the Public School; that the parents had failed to show that the Rebecca School was appropriate; and that the equities did not favor the parents. The Parents cross-appealed on the issue of whether the Rebecca School tuition was properly reduced due to the shortened Friday
On September 30, 2013, the Parents filed a complaint in this Court. (Dkt. No. 1.) The complaint challenges the decision of the SRO and alleges violations of the IDEA and the New York State Education Law. (Id.) Both parties now move for summary judgment on all claims. (Dkt. Nos. 14, 17.)
"IDEA actions generally are resolved on summary judgment." S.H. v. N.Y.C. Dep't of Educ., No. 10 Civ. 1041(PKC), 2011 WL 666098, *2 (S.D.N.Y. Feb. 15, 2011). Summary judgment in the IDEA context, however, is unique. "[T]he procedure is in substance an appeal from an administrative determination, not a summary judgment motion." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 226 (2d Cir.2012) (internal quotation marks and brackets omitted). It "involves more than looking into disputed issues of fact; rather, it is a pragmatic procedural mechanism for reviewing administrative decisions." R.E., 694 F.3d at 184 (quoting A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir.2009)) (internal quotation marks omitted). The inquiry is directed at "whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed." D.C. ex rel. E.B. v. N.Y.C. Dep't of Educ., 950 F.Supp.2d 494, 498 n. 1 (S.D.N.Y.2013) (internal quotation marks omitted).
Specifically, under the IDEA, "a district court must conduct an independent review of the administrative record, along with any additional evidence presented by the parties, and must determine by a preponderance of the evidence whether the IDEA's provisions have been met." Id. at 498 (citing Grim, 346 F.3d at 380-81); see also 20 U.S.C. § 1415(i)(2)(C) (stating that a federal court reviewing administrative proceedings under the IDEA "shall receive the records of the administrative proceedings," "shall hear additional evidence at the request of a party," and, "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate").
This independent review is "by no means 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, 102 S.Ct. 3034. Rather, the review is "circumscribed"; a district court "must 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." A.C. ex rel. M.C., 553 F.3d at 171
When, as here, "the decisions of an IHO and a SRO conflict, the Court should generally defer to the SRO's decision, as the `final decision of the state authorities.'" F.B. v. N.Y.C. Dep't of Educ., 923 F.Supp.2d 570, 578 (S.D.N.Y. 2013) (quoting R.E., 694 F.3d at 189). This is particularly true "when the state officer's review has been thorough and careful." Id. (quoting R.E., 694 F.3d at 184). However, where the district court "appropriately concludes that the SRO's determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO's conclusions unpersuasive even after appropriate deference is paid, to consider the IHO's analysis, which is also informed by greater educational expertise than that of judges." Id. (quoting R.E., 694 F.3d at 189) (internal quotation marks omitted). Further, "courts should defer to the IHO's analysis when considering an issue not reached by the SRO." C.F. ex rel. R.F., 746 F.3d at 77 (citing M.H., 685 F.3d at 252).
The Second Circuit has recently provided guidance as to which administrative determinations are due most deference. "[D]eterminations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures." M.H., 685 F.3d at 244 (citing Cerra, 427 F.3d at 195). "Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress." Id. Determinations that are "grounded in thorough and logical reasoning" merit more deference than those that are not. Id. Finally, "the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO" — the case here — "than when the district court has before it additional evidence that was not considered by the state agency." Id.
In sum, "judicial review of administrative decisions under the IDEA requires the court (1) to conduct an independent review of the administrative record, (2) use a preponderance of the evidence standard, and (3) give deference to the administrative determinations, particularly that of the SRO." F.L. ex rel. F.L. v. N.Y.C. Dep't of Educ., No. 11 Civ.
Unlike in many other IDEA cases brought against the Department, Jake's parents do not challenge the adequacy of the IEP. Rather, they object only to the Department's proposed placement. Specifically, they contend that the placement would not have been able to provide Jake a FAPE because, due to its use of ABA methodology, it was not capable of implementing the long- and short-term goals outlined in Jake's IEP. (See Dkt. No. 21 ("Pl. Opp.") at 5 (noting that "[a]n IEP by design is only a document and it must be implemented in a classroom to provide a special needs children with a FAPE," and that, here, this did not occur "because of the use of ABA"); id. at 8 ("Here the proposed school could not implement the IEP....").) The Department asserts, first, that this argument is waived and, second, that the Parents' concern that the Public School would use ABA with Jake is retrospective and speculative. (Dkt. No. 18 ("Def. Br.") at 1.)
As explained above, a party must file a due process complaint in order to allege deficiencies in an IEP. 20 U.S.C. § 1415(b)(7)(A). After this complaint is filed, the Department has 30 days to remedy any deficiencies. Id. § 1415(f)(1)(B)(ii). Because "[t]he Department cannot be expected to resolve problems of which it is unaware," "the parents must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function." C.F. ex rel. R.F., 746 F.3d at 77-78 (internal quotation marks and brackets omitted). The IDEA further provides that "[t]he party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the [due process complaint], unless the other party agrees otherwise." 20 U.S.C. § 1415(f)(3)(B). Accordingly, courts in this district have held that they will not review issues that were not raised in a due process complaint, absent agreement from the opposing party. See C.F. ex rel. R.F., 746 F.3d at 78 (collecting cases).
The Department argues that the Parents waived their objection to the methodology used at the Public School by not raising it in their due process complaint. (Def. Br. at 12-15.) The Parents respond that the complaint's statement that Jake "has not made progress in a similar program" referred to the Public School's use of ABA, and that this statement provided the Department with sufficient notice that teaching methodology was at issue. (Pl. Opp. at 3-4.) The SRO agreed with the Department, and held that the IHO should not have addressed the Parents' objection to the Public School's teaching methodology. This Court does not defer to the SRO's holding, however, as "[d]eterminations about whether arguments are preserved for SRO or district court review are ... well within the institutional competence of the courts." N.S. v. N.Y.C. Dep't of Educ., No. 13 Civ.
Moreover, since the SRO's decision, the Second Circuit has clarified that the waiver rule "is not to be mechanically applied" in IDEA cases. C.F. ex rel. R.F., 746 F.3d at 78. In fact, "the IDEA itself contemplates some flexibility," as it "does not require that alleged deficiencies be detailed in any formulaic manner." Id. (citing 20 U.S.C. § 1415(b)(7)(A)(ii)). In C.F. ex rel. R.F., the Second Circuit applied flexible waiver principles to hold that the plaintiffs had not waived an objection that the Department had failed to consider a specific staffing ratio where there was no mention of staffing ratios in the due process complaint. 746 F.3d at 74 n. 4, 78. The court based its decisions on four factors. First, both the IHO and the SRO had reached the staffing ratio issue on the merits, "giving [the court] a record for review." Id. at 78. Second, the staffing ratio issue went to "the heart of this dispute." Id. Third, the complaint included a general allegation that the Department had failed to develop appropriate plans for the child's behaviors, providing "fair notice" to the Department of the argument at issue. Finally, the parents had proposed in the complaint that their disabled child remain at his current, private school, where, as the Department was aware, the child received the staffing ratio that the parents preferred. Id.
These considerations merit the same result here. The IHO and the SRO reached the issue of teaching methodology, giving this Court a record for review. And the due process complaint's statement that Jake had "not made progress in a similar program" gave the Department adequate notice that the type of program recommended by the Department — including the methodology of that program — was at issue. Finally, because the Department cross-examined the Parents' witnesses extensively on the issue of methodology, it "cannot genuinely claim that it was prejudiced by the IHO's consideration of such evidence." Y.S. v. N.Y.C. Dep't of Educ., No. 12 Civ. 2590(WHP), 2013 WL 5722793, at *6 (S.D.N.Y. Sept. 24, 2013) (quoting M.H. v. N.Y.C. Dep't of Educ., 712 F.Supp.2d 125, 150 (S.D.N.Y.2010), aff'd, 685 F.3d 217 (2d Cir.2012)) (internal quotation marks omitted). For these reasons, federal court review of the issue of methodology is not foreclosed.
"The case law regarding challenges to a school's ability to provide a FAPE is less than a model of clarity." N.S., 2014 WL 2722967, at *12. However, several points are clear. First, a school district is not required to designate a specific school in an IEP. T.Y., 584 F.3d at 420. Second, and despite this, "school districts are not permitted to assign a child to a school that cannot satisfy the IEP's requirements." N.S., 2014 WL 2722967, at *12; see also T.Y., 584 F.3d at 420 ("We emphasize that we are not holding that school districts have carte blanche to assign a child to a school that cannot satisfy the IEP's requirements."); V.S. ex rel. D.S. v. N.Y.C. Dep't of Educ., 25 F.Supp.3d 295, 299 (E.D.N.Y.2014) ("[T]he school must be capable of implementing the IEP."). Third, where parents do not object to the IEP and have not enrolled their child in the proposed placement, the burden is on the parents "to establish that the school district would not have adhered to the written plan." N.S., 2014 WL 2722967, at *2 (citing cases).
In determining whether it is faced with one of these "few circumstances," a court may consider only the information that was available to the parents at the time that they rejected the recommended placement. Retrospective evidence discovered after this decision was made should not be considered. See Scott ex rel. C.S. v. N.Y.C. Dep't of Educ., 6 F.Supp.3d 424, 445 (S.D.N.Y.2014) ("The proper inquiry for the Court ... is whether the alleged defects of the placement were reasonably apparent to Plaintiff or the [Department] when Plaintiff rejected [the placement]."); D.C. ex rel. E.B., 950 F.Supp.2d at 513 ("[I]n cases such as this case, involving implementation of the IEP, testimony from the Department is permissible, but it must be limited to information that was reasonably known to the parties at the time of the placement decision."); see also R.E., 694 F.3d at 186 (holding that the evaluation of an IEP must be made "prospectively as of the time of its drafting," and that "retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered"). In addition, a court must be satisfied that this non-retrospective evidence was sufficient to support the parents' decision to reject the proposed placement. That is, the decision must be supported by facts; it cannot be merely speculative. "Speculation 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.
There are very few cases in this district in which parents have successfully challenged a proposed placement on the ground that it is incapable of implementing their child's IEP where the child never enrolled in the placement. In these cases, the conflict between the IEP and the placement was clear to the parents when they rejected the placement. For example, in D.C. ex rel. E.B., 950 F.Supp.2d at 499, the court was faced with a child who had severe allergies to seafood. The IEP promised a "seafood free environment"; however, when the child's mother visited the cafeteria at the proposed placement, she was informed that it was not seafood-free and that seafood was prepared in various areas at the school. Accordingly, the court held that the proposed placement was inappropriate under the IDEA. Id. at 509-11. And in B.R. ex rel. K.O. v. N.Y.C. Dep't of Educ., 910 F.Supp.2d 670 (S.D.N.Y.2012), the IEP for an autistic child specified that the child required 1:1 occupational therapy. When the child's mother visited the proposed placement, the occupational therapist on staff informed her that therapy was performed
Unlike the parents in D.C. ex rel. E.B. and B.R. ex rel. K.O., the Parents in this case have not identified a specific requirement in the IEP that the placement will not satisfy. Nor can they do so, as Jake's IEP does not specify a teaching methodology. Instead, the Parents suggest that, as a general matter, the Public School will fail to implement the IEP because the school employs a methodology to which Jake is unresponsive, and with which he will regress. It is unclear whether an objection like this, which does not correlate directly to a requirement in the IEP, is tenable. The Second Circuit has not spoken to the issue, and the Court need not decide it now.
The Parents' objection to the Public School is, by their own admission, predicated almost entirely on the assumption that Jake would have been placed in Christine Hoffman's classroom, and that Hoffman would have used ABA with Jake. (Pl. Opp. at 1 ("The critical issue in this case is whether Ms. Hoffman would have used [ABA] with Jake.").) There is no evidence, however, that the Parents knew when they rejected the placement that Jake would have been in Hoffman's class. They cite only Hoffman's testimony at the impartial hearing. (Id. at 1-3; Dkt. No. 15 ("Pl. Br.") at 13.) Hoffman's testimony, however, is retrospective, and therefore the Court cannot consider it. See N.K. v. N.Y.C. Dep't of Educ., 961 F.Supp.2d 577, 588-89 (S.D.N.Y.2013) ("A court may not consider evidence that ... `a child would have had a specific teacher or specific aide'... [because] `at the time the parents must decide whether to make a unilateral placement based on an IEP, they may have no guarantee of any particular' classroom." (quoting R.E., 694 F.3d at 187)) (internal brackets omitted); R.B. v. N.Y.C. Dep't of Educ., No. 12 Civ. 3763(AJN), 2013 WL 5438605, at *11 (S.D.N.Y. Sept. 27, 2013) ("Pursuant to Second Circuit precedent, courts are prohibited from evaluating the adequacy of an unimplemented IEP based on evidence about the particular classroom in which a student would be placed." (internal quotation marks omitted)), aff'd, 589 Fed.Appx. 572 (2d Cir.2014) (summary order).
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED, and Plaintiffs' motion for summary judgment is DENIED. The Clerk of Court is directed to close the motions at Docket Numbers 14 and 17 and to close the case.
