C.D. ex rel. H.B. v., 15-CV-2177 (ARR) (JO)

C.D. and T.B., individually and on behalf of H.B., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

15-CV-2177 (ARR) (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: June 20, 2016

June 16, 2016

OPINION & ORDER

ROSS, United States District Judge:

Plaintiffs C.D. and T.B. ("parents") bring this action individually and on behalf of their minor son H.B. ("student") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2). Plaintiffs seek review of a final administrative decision denying reimbursement of private school tuition for the 2012-2013 school year. Plaintiffs also assert claims pursuant to Article 89 of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, seeking the same relief.

Now before the court are cross-motions for summary judgment on the IDEA claim. At issue is the adequacy of the individualized education program offered by defendant, the New York City Department of Education ("DOE"), to provide a free appropriate public education to the student. For the reasons set forth below, this court finds that the DOE denied the student a free appropriate public education. Accordingly, plaintiffs' motion for summary judgment is granted and defendant's cross-motion is denied.

STATUTORY SCHEME

The IDEA requires states receiving federal funds to provide all children with disabilities a "free appropriate public education" ("FAPE"). Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); Bd. of Educ. v. Rowley, 458 U.S. 176, 187 (1982)). "To meet these requirements, a school district's program must provide 'special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.'" Gagliardo, 489 F.3d at 107 (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (internal quotation marks omitted)). The education and related services must be administered according to an individualized education program ("IEP"). 20 U.S.C. § 1414(d). "The IEP, the result of collaborations between parents, educators, and representatives of the school district, 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." Lillbask ex. rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 81 (2d Cir. 2005) (quoting Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (internal quotation marks and citations omitted)).

New York "has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ('CSE'), the members of which are appointed by school boards or the trustees of school districts." Gagliardo, 489 F.3d at 107 (quoting Walczak, 142 F.3d at 123); see also N.Y. Educ. Law § 4402(1)(b)(1). "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. "[T]he CSE must also be mindful of the IDEA's strong preference for 'mainstreaming,' or educating children with disabilities 'to the maximum extent appropriate alongside their non-disabled peers.'" Id. at 108 (citing 20 U.S.C. § 1412(a)(5)).

If a disabled child's parents believe that an IEP does not offer their child a FAPE, they may unilaterally place their child in a private school and seek retroactive tuition reimbursement from the school district. See 20 U.S.C. § 1412(a)(10)(C)(ii); R.K. ex rel. R.K. v. N.Y. City Dep't of Educ., No. 09-CV-4478, 2011 WL 1131522, at *2 (E.D.N.Y. Mar. 28, 2011). In New York, parents present their request for reimbursement at a due process hearing before an impartial hearing officer ("IHO"), whose decision may be appealed to a state review officer ("SRO"). N.Y Educ Law § 4404; see 20 U.S.C. § 1415(f)-(g). The SRO's decision may then be reviewed by a state or federal court. 20 U.S.C. § 1415(i)(2)(A); Gagliardo, 489 F.3d at 108.

FACTUAL BACKGROUND

The following facts were developed in the state administrative proceedings. Neither party has requested that this court hear additional evidence. See 20 U.S.C. § 1415(i)(2)(C)(ii).

A. The Student's Educational History

H.B. is now a seventeen-year-old boy who has been classified as having a speech or language impairment. See Neuropsychological Evaluation of Dr. Barbara J. Kenner ("Ex. H") at 3.¹ He has been diagnosed with Asperger's disorder as well as anxiety, learning, and developmental disorders and epilepsy. Id. at 2-3. He is described as sweet, bright, and personable. Id. During the timeframe at issue in this suit, H.B. enjoyed listening to music and learning about history. Id. at 2. He was a talented artist and an able student "making solid progress in all areas of his development." Id. at 2-3.

H.B. was born preterm at 32 weeks. Id. at 2. He subsequently experienced delays in his expressive language and social skills. Id. H.B.'s parents sought early intervention services fortoddlers with disabilities through the New York City Health Department, followed by preschool special education services from the DOE. Impartial Hr'g Tr. ("Tr") 317-19; Ex. H at 2. H.B. attended several school programs in his early years, including ones at Brooklyn Friends, The Dillon School, P.S. 3, The Downtown Little School, and The Ideal School. Id.

When H.B. entered the sixth grade, the DOE recommended that he attend a public school program. However, there was no space in the program that the parents had identified as appropriate for H.B., so they enrolled him at Aaron Academy ("Aaron") and sought reimbursement from the DOE. Tr. 320-24; Findings of Fact and Decision of IHO Christine Moore dated July 11, 2011 ("Ex. C") at 3-4. An IHO found that the DOE had failed to provide H.B. with an offer of a FAPE, that Aaron was an appropriate placement for H.B., and that the equities weighed in favor of reimbursement. Ex. C at 5-17. The IHO ordered the DOE to reimburse the parents for H.B.'s placement at Aaron for the 2010-2011 school year. Id. at 17. That decision was never appealed, and Aaron therefore became H.B.'s last agreed-upon, or pendency, placement. Tr. 58-60.

B. The 2012 Psychological Examinations

In November 2011, when H.B. was a seventh grader at Aaron, the DOE sought consent from the parents to reevaluate H.B. See Letter from DOE dated Nov. 18, 2011 ("Ex. S") at 4. H.B.'s mother wrote a letter to a DOE school psychologist, Rose Fochetta, granting consent to the reevaluation and explaining that H.B. had been diagnosed with epilepsy. See Letter from C.D. dated Dec. 2, 2011 ("Ex. S") at 3. She explained that H.B.'s neurologist recommended time for H.B. to stabilize on his new seizure medication before subjecting him to any assessments. Id. She further advised that a private psychologist planned to evaluate H.B. once that occurred, and she promised to provide a copy of the evaluation once completed. Id.

That evaluation took place in February 2012. Ex. H at 1. Dr. Kenner undertook a neuropsychological evaluation to determine H.B.'s "current level of cognitive, academic, and emotional functioning and to facilitate educational planning." Id. Dr. Kenner observed that H.B. was "hardworking, respectful, and exceedingly cooperative." Id. at 3. Although he exhibited a positive mood, his "range of affect was somewhat limited" and "his eye contact was variable." Id. Additionally, Dr. Kenner noted "difficulties in pragmatic language and reading of social cues" as well as "weaknesses in attention, response inhibition, processing speed, and working memory." Id. H.B. was easily distracted, overwhelmed, and frustrated. Id. Noting that H.B. "is a bright student who has a healthy self-esteem and a positive attitude toward the learning process," Dr. Kenner found it "critical that he continue to receive intensive support in a highly structured, self-contained, nurturing special education environment for children of average to above average intelligence." Id. at 10. She specifically recommended a high teacher-to-student ratio and a teaching staff with training in working with students like H.B. Id.

The following month, H.B. was also evaluated by Dr. Edward Hoffman, a licensed psychologist contracted by the DOE. See Psycho-Educational Evaluation of Dr. Edward Hoffman ("Ex. 5"); Tr. 117-18. Although the two evaluators utilized different tests, their results were largely consistent. See IEP ("Ex. 1") at 1. Dr. Hoffman described H.B. as "impulsive" and "highly distractible," exhibiting "attentional difficulties" and requiring "constant reminders and encouragement from this examiner to remain on task." Ex. 5 at 1. Dr. Hoffman recommended "teaching strategies involving verbal descriptions and written materials to accompany both pictures and manipulatives" as well as activities drawing upon his strength in grapho-motor tasks. Id. at 6.

C. The April 2012 Individualized Education Program

On April 19, 2012, the CSE convened to formulate an IEP for H.B. In attendance were the student's parents; Ms. Fochetta, who served as the district representative; Feng Ye, a special education teacher whom Ms. Fochetta characterized as her "partner"; and Gloria Gonzalves, a parent representative Tr. 14-15; Meeting Minutes dated Apr. 19, 2012 ("Ex. 2") at 1. Mathieu Moss, who taught H.B. at Aaron since the 2010-2011 school year, participated telephonically. Id. Ms. Fochetta conducted the meeting with the assistance of Ms. Ye. Tr. 31-32, 336. The former had drafted an IEP prior to the meeting, which she used as "a way to take notes and collect everyone's perspective and to create the final IEP." Id. 11; see also Annotated Draft IEP ...