FB v. N.Y.C. Dep't of Educ.

132 F.Supp.3d 522

FB and EB, individually and on behalf of LB, Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 14 Civ. 3902(PAE).

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

Signed Sept. 21, 2015.

Steven Laurence Goldstein, Steven L. Goldstein, Attorney–At–Law, New York, NY, Harold Jeffrey Marcus, Law Offices of H. Jeffrey Marcus, P.C., Williamsville, NY, for Plaintiffs.

Charles Edward Carey, Emily Sweet, New York City Law Department, New York, NY, for Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiffs FB and EB (the "Parents"), individually and on behalf of their minor son, LB, bring this action against the New York City Department of Education ("DOE"), pursuant to the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. L. §§ 4401 et seq.

This is the second time that this case has come before the Court. The first time, the Parents sought review of a November 25, 2011 administrative decision of the State Review Officer (the "SRO"). The SRO (1) annulled the decision of an Impartial Hearing Officer (the "IHO"), who had concluded that the Individualized Education Program ("IEP") developed for LB for the 2010–2011 school year violated his right to a free appropriate public education ("FAPE"), and (2) therefore vacated the IHO's award of tuition reimbursement ($92,100) for LB's unilateral placement at the Rebecca School during that school year. In a 2013 opinion, this Court upheld the SRO's 2011 decision, finding no denial of a FAPE, as to the three issues that the SRO had addressed. However, the Court noted that neither the IHO nor the SRO had addressed the Parents' many other challenges to the IEP, despite the fact that those issues had been briefed by both sides during the state administrative process. The Court accordingly remanded to the SRO for consideration of those challenges.

On February 4, 2014, the SRO rendered his second decision, which again ruled for the DOE. The Parents now appeal that decision—i.e., the SRO's 2014 decision. The parties have cross-moved for summary judgment.

For the reasons that follow, the Court concludes that the DOE denied LB a FAPE. The Court further holds that—as the IHO originally found—the Parents' private placement of LB at the Rebecca School was appropriate and that equitable considerations favor the Parents. The Court therefore grants the Parents' motion for summary judgment, orders the DOE to fully reimburse the Parents for the cost of private tuition, and denies the DOE's cross-motion for summary judgment.

I. Background

A. Factual Background ¹

1. LB's classification and brief educational history

Born in 2003, LB is a student classified with autism. Pl. 56.1 ¶ 6; Def. 56.1 ¶ 1. Autism is a "neurodevelopmental delay in relating and communicating" that is frequently associated with cognitive, physical, and sensory processing disorders. IHO Tr. 206–07. Sensory processing disorders relate to how information is processed by the nervous system—information that the body must interpret and organize in order to function. See id.

At age two, LB presented with "significant cognitive functioning delay," including several speech—and language-related delays, some of them considered "moderate" or "moderate to severe." Parents Ex. L1. An occupational therapy evaluation at that time also revealed "delays in fine motor, self-help, and sensory processing skills." Id. As a result, LB has received services from New York City continuously from age two, first from the Department of Health and later from the DOE. Pl. 56.1 ¶ 7; Def. Counter Statement ¶ 7. These services included occupational therapy, speech and language therapy, and counseling. Parents Ex. L1–L2.

When LB was age five, a private psychoeducational study described him as having "limited" speech, "great difficulty with language skills," and "significant" delays in his social interaction skills; as being "easily distracted by his surroundings" and unable to complete various parts of the psychoeducational examination; and as experiencing difficulties in self-regulation. Id. at L2–L5. For instance, LB is "sensitive to unpredictable loud noises" and "may become dysregulated when in proximity to a child who is crying or upset." Id. at L2. When he becomes dysregulated, LB is cognitively unavailable for learning. During testing, for instance, when he became "overwhelmed or overstimulated," he "firmly squeezed the examiner's arm," "refused to engage" further, and "testing was discontinued." Id. at L3–L4; see also DOE Ex. 8, at 5, 6 (psychoeducational evaluation when LB was age four noted his "significant delays in pragmatic, expressive, and receptive language which greatly impact his age appropriate social interactions"; his "difficulties" with fine motor skills; and that "he should be away from noise (e.g., windows, heater)").

At age five, LB began attending the Rebecca School, a private therapeutic special education school for students with neuro-developmental disorders, primarily autism . See IHO Tr. 215. Since fall 2008, LB has continuously attended the Rebecca School. Pl. 56.1 ¶¶ 8–9; Def. 56.1 ¶ 2. For the 2008–2009 and 2009–2010 school years, the DOE reimbursed the Parents for the tuition they paid for the Rebecca School, pursuant to settlements. Pl. 56.1 ¶ 10. The DOE and the Parents similarly entered into settlements for the 2011–2012, 2012–2013, and 2013–2014 school years—i.e., the school years after the year at issue in this case (2010–2011). See Pl. 56.1 ¶ 10; Def. Counter Statement ¶ 10; Dkt. 18, at 4 n. 2.

2. LB's IEP for the 2010–2011 school year

On February 5, 2010, the DOE held a meeting of the Committee on Special Education ("CSE") to formulate LB's annual IEP for the 2010–2011 school year, as required by the IDEA, see 20 U.S.C. § 1414. Pl. 56.1 ¶ 11; Def. 56.1 ¶ 3. The CSE consisted of: FB and EB, LB's parents; Dr. Patricia Pape, a school psychologist for the DOE; Ellen Gordon, a special education teacher who was also serving in her capacity as district representative member of the CSE; Sandra Morabito, a district parent; and Karin Robertson, LB's Rebecca School teacher at that time, who participated by telephone. Def. 56.1 ¶ 4; IHO Tr. 19; DOE Ex. 3. At the meeting, the CSE consulted a number of reports on and evaluations of LB, including: LB's 2008–2009 IEP; LB's December 2009 progress report from the Rebecca School; and a classroom observation conducted on November 6, 2009. Def. 56.1 ¶ 6; SRO 2011 Dec. 13; IHO Tr. 22–23.

The primary recommendations that emerged from the CSE meeting were that LB (1) be placed in a 12–month school-year program; (2) be placed in a special class with a 6:1:1 staffing ratio² within a specialized school; and (3) receive significant related services, including five sessions per week of one-on-one occupational therapy, five sessions per week of one-on-one speech/language therapy, two sessions per week of one-on-one physical therapy, and two sessions per week of one-on-one counseling. See DOE Exs. 3 & 4. The 2010–2011 IEP also contained a series of annual goals; as explained below, several used terminology associated with the particular teaching methodology used at the Rebecca School (the "DIR/Floortime" methodology).³ The IEP also noted that LB needed, inter alia, (1) immediate access to sensory tools (e.g., pressure vest), (2) sensory breaks, (3) help with regulation, and (4) access to a quiet space to retreat to when overwhelmed. DOE Ex. 3, at 3–4. Some comments in the IEP also noted LB's "sensory issues which contribute to problems with dysregulation. He continues to present with an over-responsive sensory profile...." Id. at 3. Finally, as is undisputed, the CSE did not conduct a functional behavior assessment ("FBA") of LB in advance of the meeting and did not develop a behavior intervention plan ("BIP") for LB. See Pl. 56.1 ¶ 25; Def. Counter Statement ¶ 25.

3. The events of February through July 2010

Shortly after the CSE meeting, the DOE sent the Parents a "Notice of Recommended Deferred Placement" form. DOE Ex. 4. The form is significant in this case. It first recapped the essential points of the IEP and informed the Parents that the DOE intended to wait until June 2010 to select a particular placement for LB. Id. Next, the form stated: "If you wish to visit a sample of the type of program recommended for your child, please contact Nancy Funke ... for assistance in arranging an appointment." Id. Then, the form stated: "You will be receiving a Final Notice of Recommendation notifying you of a specific site, on or before 6–15–10." Id. At the bottom of the page were boxes that the Parents could check to indicate that they either agreed or disagreed with the IEP recommendation, and that they either agreed or disagreed with the recommendation to defer the placement. Id.

In a February 18, 2010 letter to the DOE (and to Ms. Funke specifically), the Parents wrote that they agreed with a 12–month school year for LB, but, "at the present time," they could "neither agree nor disagree with the DOE's other recommendations for L[B] because we need more information to allow us to make an informed decision." Parents Ex. H1. Specifically, the Parents requested "information regarding the schools at which we might be able to observe the program that the DOE recommended for L[B] and information regarding the teaching techniques and methodologies employed in these types of schools and programs." Id. The Parents also requested assistance in "setting up appointments to view various classrooms in which the recommendations that the DOE made for L[B] might be implemented." Id.

The DOE did not respond to this letter. See Pl. 56.1 ¶ 66; Def. Counter Statement ¶ 66.

As of June 15, 2010, the Parents had yet to receive notification of a final placement for LB. See Pl. 56.1 ¶¶ 67, 69; Def. Counter Statement ¶ 69. On June...