E.E. ex rel. G.E. v.

E.E., individually and on behalf of G.E., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 17-CV-2411 (RA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 26, 2018

OPINION & ORDER

RONNIE ABRAMS, United States District Judge:

Plaintiff E.E., (the "Parent") individually and on behalf of his minor child G.E. (the "Student"), brings this action against the New York City Department of Education (the "DOE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. After concluding that the DOE's proposed education plan and school placement would not provide his son, a child with autism, with a free appropriate public education ("FAPE"), the Parent placed him in the Rebecca School, a private school for children with disabilities, for the 2015-2016 academic year. Following decisions by state review agencies in favor of the DOE, the Parent commenced this action. Both parties now move for summary judgment. For the following reasons, the DOE's motion for summary judgment is granted, and the Parent's motion is denied.

LEGAL STANDARD

"The IDEA requires a state receiving federal funds under the IDEA to provide disabled children with a FAPE." L.O. v. N.Y.C. Dep't of Educ., 822 F.3d 95, 102 (2d Cir. 2016) (citation and alterations omitted). "In order to ensure that disabled children receive a free appropriate public education, school districts must create individual education programs ("IEPS") for such children." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014). An IEP "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." R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citation omitted).

In New York, Committees on Special Education ("CSEs") convened by the local school district are responsible for developing IEPs. N.Y. Educ. Law § 4402(1)(b)(l). "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 behavior and needs." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007) (citing N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(ww)(3)(i) (hereinafter "NYCRR")). The CSE must also "ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child." 20 U.S.C. § 1414(e).

"If a state fails in its obligation to provide a free appropriate public education to a handicapped child, the parents may enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). "The Supreme Court has established the three-pronged Burlington/Carter Test to determine eligibility for 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. "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 ofestablishing the appropriateness of their private placement and that the equities favor them." M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 243 (2d Cir. 2015) (citation omitted).

If parents believe that an IEP does not comply with the IDEA, they may file a due process complaint with the appropriate state agency. 20 U.S.C. § 1415(b)(6). They may then challenge the IEP in an "impartial due process hearing," 20 U.S.C. § 1415(f), before an officer ("IHO") appointed by the local board of education, see N.Y. Educ. Law § 4404(1). Either the DOE or the parents may subsequently challenge the IHO's decision to the Office of State Review, where it will be reviewed by another officer ("SRO"). See id. § 4404(2); see also 20 U.S.C. § 1415(g). Finally, the SRO's decision may be challenged in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

BACKGROUND¹

I. Factual Background

A. The Student

The Student was born on July 28, 2004. Pl. 56.1 ¶ 1. As a resident of Brooklyn, he is eligible to receive educational services from the DOE. Pl. 56.1 ¶ 1. The Parent has been employed by the DOE as a special education teacher for over 27 years. Pl. 56.1 ¶ 1. The Student's mother passed away in early 2011. Pl. 56.1 ¶ 1. He has a twin sister who is typically functioning. Pl. 56.1 ¶ 1. The Student was eleven years old during the 2015-2016 school year at issue. See Pl. 56.1 ¶ 1. Since 2009, he has continuously attended the Rebecca School. Pl. 56.1 ¶ 6.

The Student has been diagnosed with Autistic Spectrum Disorder with resulting cognitive, social, and emotional deficits, global developmental delays, severe speech apraxia, sensoryintegration disorder, and a complex feeding disorder. Pl. 56.1 ¶ 2. The Student requires extensive help in terms of academic needs, functioning skills, visual-spatial and motor planning, communication, self-regulation, peer interaction, daily living activities, body awareness, behavioral issues, attention, focus, and sensory challenges. Pl. 56.1 ¶ 2. He is predominantly non-verbal and communicates using vocal approximations, word utterances, sign approximation, gestures, and facial expressions. Pl. 56.1 ¶ 3.

B. The CSE

On January 12, 2015, the school district convened a CSE to develop an IEP. Def. 56.1 ¶ 9. The CSE consisted of the following members: (1) Rose Fochetta, a certified school psychologist employed by the DOE; (2) Feng Ye, a DOE special education teacher; (3) the Parent; (4) Christine Calvaruso, a teacher at the Rebecca School, who participated by phone; and (5) Bonne Earing, a social worker employed by the Rebecca School. Def. 56.1 ¶ 10. The CSE classified the Student as having autism and recommended the following accommodations: a 6:1:1 specialized 12-month class, along with occupational therapy, speech/language therapy, and counseling. Def. 56.1 ¶ 13.²

C. The Placement and the Due Process Complaint

The DOE sent a "Prior Written Notice (Notice of Recommendation)" to the Parent dated May 29, 2015 that summarized the program and services recommended in the IEP. Def. 56.1 ¶ 19. On the same day, the Parent entered into an enrollment contract with the Rebecca School for the 2015-2016 school year and agreed to pay the annual tuition of $113,520.00. Def. 56.1 ¶ 22. The contract permitted the Parent to withdraw the Student in the event he was offered an appropriate public school placement. Pl. CS. 56.1 ¶ 22. The Rebecca School is a twelve-month program, and the majority of the 127 students are diagnosed with autism spectrum disorder. Def. 56.1 ¶ 23. Thestudents range in age from 5 to 21. Def. 56.1 ¶ 23. There are 15 classes and a 2:1 teacher-student ratio. Def. 56.1 ¶ 24. The Student receives OT, SP, PT, and music therapy. Def. 56.1 ¶ 25.

The DOE also sent the Parent a school location letter dated, incorrectly it says, January 13, 2015, attaching the prior written notice. Def. 56.1 ¶ 19. The DOE offered the Student a placement at P.S. K396. Def. 56.1 ¶ 19. P.S. K396 serves approximately 262 children ranging in age from 4. 9 to 14 years and provides instruction in pre-K through 8th grade. Def. 56.1 ¶ 19. On June 16, 2015, Hanraj Soodoosingh, the intake coordinator at P.S. K396, gave a tour to the Parent and members of the Rebecca School. Def. 56.1 ¶ 20. He showed them several 6:1:1 classes, the school library, a vocational room, and the PT/OT gym and sensory room. Def. 56.1 ¶ 21.

D. The Administrative Hearing and Decision

On September 25, 2015, the Parent filed a request for a due process impartial hearing. Def. 56.1 ¶ 28. There was a prehearing conference on October 30, 2015, and four subsequent days of proceedings on February 4, March 18, April 20, and June 22, 2016. Def. 56.1 ¶ 29. On August 30, 2016, the IHO issued its decision, finding in favor of the DOE. Def. 56.1 ¶ 30. The IHO determined that the IEP had provided the Student with a FAPE. The IHO also addressed the second and third prongs of the Burlington/Carter framework, concluding that the Rebecca School provided the Student with an educational program that satisfied his needs and that equitable considerations would not have precluded the Parent from receiving monetary relief had the DOE failed to provide a FAPE. IHO Dec. 14-15.

E. The State Review Officer's Decision

On October 4, 2016, the Parent sought administrative review of the IHO's Prong I determination before the SRO. Def. 56.1 ¶ 37. By decision dated January 4, 2017, the SRO found in favor of the DOE and dismissed the appeal. SRO Dec. 7. Because the DOE did not cross-appeal the findings regarding the second and third prongs of the Burlington/Carter framework, the SRO did not address those aspects of the IHO's decision. See SRO Dec. 41.

II. Procedural History

On April 4, 2017, the Parent commenced this action, alleging that the SRO erred in affirming the IHO. ECF No. 1. The parties thereafter made cross motions for summary judgment based on the administrative record. ECF Nos. 14, 19.

STANDARD OF REVIEW

"Summary judgment in [the IDEA] context involves more than looking into disputed issues of fact; rather, it is a pragmatic procedural mechanism for reviewing administrative decisions." L.O. 822 F.3d at 108 (citation omitted). "In considering an IDEA claim, a district court must engage in an independent review of the administrative record and make a determination based on the preponderance of the evidence." C.L. v. Scarsdale Union Free Sch. Dist...