B.J.S. ex rel. N.S. v. State Educ. Dep't/the Univ. of State York

277 Ed. Law Rep. 226

815 F.Supp.2d 601

B.J.S., on behalf of N.S., a child with a disability,

v.The STATE EDUCATION DEPARTMENT/The UNIVERSITY OF THE STATE OF NEW YORK, Paul R. Kelly, State Review Officer, Richard P. Mills, Commissioner of Education, and Springville–Griffith Institute Central School District Board of Education, Defendants.

No. 08–CV–513A.

United States District Court, W.D. New York.

Sept. 19, 2011.

Frank T. Housh, Buffalo, NY, for B.J.S., on behalf of N.S.

Paul I. Perlman, Ryan L. Everhart, Hodgson Russ, LLP, Buffalo, NY, for The State Education Department/The University of the State of New York.

ORDER

RICHARD J. ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A). On May 27, 2011, the School District defendant filed a motion for summary judgment. On August 31, 2011, Magistrate Judge Foschio filed a Report and Recommendation, recommending that the defendant School District's motion for summary judgment be granted.

The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the defendant School District's motion for summary judgment is granted. The Clerk of Court shall close this case.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on June 17, 2009. The matter is presently before the court on Defendant School District's motion for summary judgment (Doc. No. 69), filed May 27, 2011.

BACKGROUND and FACTS ¹

Plaintiff B.J.S. (“Plaintiff” or “B.J.S.”), commenced this action on July 10, 2008, by filing a complaint alleging on behalf of herself and her child, N.S. (“N.S.”), then enrolled in Defendant Springville–Griffith Institute Central School District (“the School District”), that Defendants New York State Department of Education (“NYSED”), NYSED Commissioner Richard P. Mills (“Commissioner Mills” or “Mills”), NYSED appointed State Review Officer (“SRO”) Paul F. Kelly (“SRO Kelly” or “Kelly”) (together, “State Defendants”), and the School District, denied N.S. a free and appropriate public education (“FAPE”), for the 2006–2007 school year for N.S.'s 7th grade, in violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“the IDEA” or “the Act”).

It was during the 2002–2003 school year that N.S. was first determined by the School District's Committee on Special Education (“CSE”) to be autistic and, thus, a student in need of special education and related services. As such, the CSE, as required by the IDEA, developed an individualized education program (“IEP”) which, if correctly followed, would provide N.S. with the FAPE mandated by the IDEA. During the 2002–2003 school year, the IEP pursuant to which N.S. was educated by the School District, allowed N.S. to make substantial progress in all academic and social areas.

Plaintiff filed a complaint with the School District ² challenging the IEP for the 2005–2006 school year and requesting an administrative due process hearing before an Impartial Hearing Officer (“IHO”). The requested hearing commenced on April 4, 2006 and was pending at the start of the 2006–2007 school year at issue in this action. The pending due process hearing against the School District prevented the School District from making any changes to N.S.'s IEP, such that no IEP for the 2006–2007 school year was in place until October 17, 2006, when the CSE conducted its annual review of N.S.'s IEP. As such, N.S. began the 2006–2007 school year being educated pursuant to a “Pendency Plan,” defined as the most recent agreed upon IEP, specifically, the IEP for the 2003–2004,³ despite the fact that such IEP had earlier been found by both an IHO and SRO to be both procedurally and substantively inappropriate and, as a result, annulled in a separate proceeding held that school year.⁴ Complaint at 26.

On February 16, 2007, Plaintiff commenced an administrative proceeding challenging the 2006–2007 IEP adopted by the CSE on October 17, 2006, thereby necessitating an impartial due process hearing before an IHO. Plaintiff's administrative complaint asserted, inter alia, the 2006– 2007 IEP denied N.S. an FAPE and that the School District failed to implement N.S.'s pendency placement. Because the administrative proceeding was B.J.S. v. State Education Department/University of the State of New York, not resolved prior to the end of the 2006–2007 school year, N.S. remained in his pendency placement for the school year, and the 2006–2007 IEP for N.S. was never implemented.

On March 28, 2007, the School District moved with regard to the administrative proceedings initiated by Plaintiff to dismiss the requested due process hearing regarding the 2006–2007 IEP on the basis that the 2006–2007 IEP had expired and was supplanted by a subsequent IEP. Paul T. Bumbalo, the School District's appointed Impartial Hearing Officer (“IHO”) (“IHO Bumbalo” or “Bumbalo”), a nonparty to this action, granted the School District's motion with regard to its procedural claims, but denied the motion as to the substantive claims, and the impartial due process hearing (“impartial hearing”) was held only with regard to the substantive claims.

The impartial hearing was held over six days, commencing on June 29, 2007, continuing on July 12, August 10 and 16, and September 28, 2007, and concluding on October 12, 2007. On December 10, 2007, IHO Bumbalo rendered a decision (“IHO Decision”), ruling Plaintiff had failed to demonstrate the 2006–2007 IEP was inappropriate, as was her burden, and determining the School District had reasonably implemented N.S.'s IEP for the 2006–2007 school year. Nevertheless, Bumbalo further found the School District improperly failed to provide N.S. with vision therapy, and ordered the School District to reimburse Plaintiff for the costs of transporting N.S. to vision therapy services. Additionally, Bumbalo ordered N.S. to undergo an autism evaluation to determine the extent of N.S.'s autism, and a functional behavioral assessment (“FBA”), and the cause of N.S.'s refusal to attend certain classes.

On January 14, 2008, Plaintiff appealed the IHO Decision to the NYSED. The School District cross-appealed the IHO Decision insofar as it denied the School District's motion to dismiss Plaintiff's substantive complaints. On March 10, 2008, SRO Kelly, after reviewing the administrative record and written memoranda of law, rendered his decision (“SRO Decision”) ruling IHO Bumbalo's denial of the School District's motion to dismiss Plaintiff's substantive complaints was erroneous. In particular, SRO Kelly found that when an IEP expires with the end of the relevant school year, or is supplanted by a subsequent IEP, claims regarding the expired IEP are moot. SRO Kelly also determined that Plaintiff was denied sufficient opportunity to prove her substantive claims when IHO Bumbalo failed to assist Plaintiff in securing the testimony of several witnesses. Accordingly, SRO Kelly ordered the impartial hearing be reconvened to hear additional testimony regarding the implementation of N.S.'s pendency program during the 2006–2007 school year and render a new IHO decision, and also ordered the CSE to conduct a reevaluation of N.S.

On March 19, 2008, IHO Bumbalo contacted the parties to the impartial hearing by e-mail, inquiring as to their availability for a prehearing conference to schedule the remanded hearing. The prehearing conference initially was scheduled for April 15, 2008, and then adjourned to May 15, 2008 at the request of the parties. The May 15, 2008 conference, however, was never held because Plaintiff, by letter dated May 9, 2008 (“May 9, 2008 letter”) to IHO Bumbalo, advised that because she believed it would be futile to call any witnesses, she would not participate in the remanded hearing. The School District did not oppose Plaintiff's failure to participate in the remanded hearing. In his decision rendered on July 3, 2008 (“IHO Remand Decision”), IHO Bumbalo found Plaintiff's failure to participate in the remanded hearing rendered moot the issues for which the SRO had remanded the matter, and advised Plaintiff of her right to appeal the IHO Remand Decision to the State Review Office.

Rather than comply with the SRO Decision and consent to a reevaluation of N.S., or appeal the IHO Remand Decision to the SRO, Plaintiff commenced this action, seeking monetary damages under the IDEA for alleged due process violations by the School District, retaliation by the SRO based on the SRO's alleged hostility against parents, including Plaintiff, of disabled children who seek redress under the Act, and for pain, suffering and emotional distress. According to Plaintiff, the School District's violations of the IDEA, including failure to provide N.S. with occupational and vision therapy, counseling, and speech services, has deprived N.S. of an FAPE such that N.S. does not meet state learning standards, and suffers anger and frustration and resists the learning environment, causing N.S. emotional, social and academic harm. Plaintiff alleges the School District denied N.S. an FAPE and the IEP the School District's CSE previously formulated for N.S. for the 2006–2007 school year was improperly modified. Plaintiff further maintains the School District violated Plaintiff's right, as a parent of a disabled child, to full participation in the CSE which formulated N.S.'s IEP. Plaintiff specifically seeks to have annulled the December 10, 2007 IHO Decision, and the March 10, 2008 SRO Decision affirming the IHO Decision that relief requested by Plaintiff regarding alleged procedural issues was moot given that the 200...