Fragnito ex rel. L.F. v. Bd. of Educ. of Suffern Cent. Sch. Dist.

SANDY FRAGNITO, on behalf of L.F., Plaintiff, v. BOARD OF EDUCATION OF THE SUFFERN CENTRAL SCHOOL DISTRICT,f/k/a/ RAMAPO CENTRAL SCHOOL DISTRICT, Defendant.

No. 19-CV-1598 (CS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 21, 2020

OPINION & ORDER

Appearances:

Sandy Fragnito

Pro se Plaintiff

Mark C. Rushfield

Shaw, Perelson, May & Lambert, LLC

Poughkeepsie, New York

Counsel for Defendant

Seibel, J.

Before the Court is the motion for summary judgment of Defendant Board of Education of the Suffern Central School District ("Defendant" or the "District"). (Doc. 17.)¹

I. BACKGROUND

The following facts are based on Defendant's Local Civil Rule 56.1 Statement, (Doc. 18 ("D's 56.1")), Plaintiff's Response and Counterstatement, (Doc. 24 ("P's 56.1 Resp.")), and Defendant's Response, (Doc. 31 ("D's 56.1 Resp.")), and are undisputed unless otherwise noted.

A. Facts

Plaintiff's son, L.F., attended the District's schools during the 2010-11, 2011-12, and 2012-13 school years. (D's 56.1 ¶ 1; see P's 56.1 Resp. ¶ 1.)² Defendant classified L.F. as "other health impaired," and for the 2012-13 school year, he was assigned to an "inclusion program with occupational therapy, counseling and a behavior consultation." (D's Ex. 3 at 3; D's 56.1 ¶ 2.)³ Plaintiff, however, rejected the counseling recommendation. (P's 56.1 Resp. ¶ 2.) The parties dispute whether Plaintiff also rejected the occupational therapy and behavior consultation recommendations. (Id.)

In December 2012, Plaintiff removed L.F. from the District's second grade and enrolled him in first grade at Our Lady of Mercy Academy ("Our Lady"), a "general education school with class sizes between 15-20 students." (D's 56.1 ¶ 3 (internal quotation marks omitted).) Prior to the 2015-16 school year, Plaintiff removed L.F. from Our Lady and placed him at "St. Paul's," another parochial school, with class sizes of approximately 18-20 students. (Id. ¶¶ 4-5.) In April 2016, Plaintiff removed L.F. from St. Paul's after the principal there asked Plaintiff to do so due to "adverse behaviors in which [L.F.] had been engaging." (Id. ¶ 7.) When Plaintiff removed L.F. from St. Paul's, she informed Defendant that St. Paul's "was not benefitting him" and added that the class size there was too large for L.F. (Id. ¶ 8.)

The District reevaluated L.F. in May and June 2016, and on June 7, 2016, the District's "CSE"⁴ met with Plaintiff to review the results of the evaluation and discuss with Plaintiff L.F.'s individual education program ("IEP") for L.F.'s fifth grade year. (Id. ¶ 9.) Dr. Lisa Castaldo, who chaired the CSE and led the June 7 meeting, stated that L.F. had behavioral issues that needed to be addressed in a classroom environment, which Plaintiff admits, but Plaintiff argues that Dr. Castaldo had had no contact with L.F. since 2013, and thus she based her conclusions on test results that had not been "carefully prepared or checked for errors." (Id. ¶ 10; see P's 56.1 Resp. ¶ 10.) "Ms. Mitchell," a special education teacher, administered a "triennial psychological evaluation" of L.F., which determined that he had "overall average cognitive functioning," but elevated scores for "hyperactivity/impulsivity," "learning problems," and "defiance/aggression." (D's 56.1 ¶¶ 11, 14; P's 56.1 Resp. ¶ 14.) Plaintiff disputes the accuracy of the test that found L.F.'s elevated scores in the latter categories. (P's 56.1 Resp. ¶ 14.) Mitchell stated, "L.F.'s behavior remains one of his biggest issues in learning." (D's 56.1 ¶ 14 (internal quotation marks omitted); D's Ex. 5 at 2.) Plaintiff notes that Mitchell was never L.F.'s teacher and performed only the aforementioned evaluation. (P's 56.1 Resp. ¶ 14.) Plaintiff also states that in creating L.F.'s IEP, the CSE failed to take into account that he may have been dyslexic. (Id. ¶ 16.) The record contains no evidence that L.F. has in fact been found to be dyslexic.

The CSE concluded that L.F.'s needs would be most appropriately met in a 12:1:1 Therapeutic Support Center ("TSC") class at "Montebello" for the 2016-17 academic year. (D's 56.1 ¶ 16; see P's 56.1 Resp. ¶ 16.) The TSC class had twelve students and two teachers, and a "class-wide behavior management system in place." (D's 56.1 ¶¶ 18-19; see P's 56.1 Resp. ¶¶ 18-19.) The CSE believed that a therapeutic class would be better than an integrated class for L.F. because L.F. needed more support in the classroom, (see Tr. at 190-93, 236), and noted that the TSC class also provided "'a lot of inclusion opportunities including in lunch and recess, but also all of the elective specials' including art, music, and physical education, so that students 'mainstream with their age range peers,'" (State Review Officer (the "SRO") Decision at 16 (quoting Tr. at 73)).⁵ But there was no mention of these inclusion opportunities in the IEP provided to Plaintiff. (See D's Ex. 5 (2016-17 IEP); see also D's Ex. 6 (2017-18 IEP).) Plaintiff also notes that L.F.'s previous IEP had recommended that he be placed in an integrated class up to and including the 2014-15 school year. (P's 56.1 Resp. ¶ 20.)

The CSE noted that Plaintiff was "in agreement with the CSE[']s determinations," (D's Ex. 5 at 2), but Plaintiff disputes that assertion, as she had expressed at least some concerns, (P's 56.1 Resp. ¶ 22; D's Ex. 5 at 2 (noting Plaintiff's disagreement about whether counseling would assist L.F.).) Plaintiff visited the Montebello school, but never visited the TSC class specifically. (P's 56.1 Resp. ¶ 23; Tr. at 255.)

Instead of following the District's plan, Plaintiff unilaterally enrolled L.F. at Barnstable Academy ("Barnstable"), a private school in New Jersey, for the 2016-17 academic year. (See D's 56.1 ¶¶ 23-24.) Plaintiff did not provide written notice to the CSE that she would be placing L.F. at Barnstable for that year. (Id.; P's 56.1 Resp. ¶¶ 24, 40.)⁶

On March 23, 2017, Plaintiff sent a fax to the District, addressed to "Janet Feger," requesting that the District provide transportation for L.F. to Barnstable. (D's Ex. 15 at 2; see D's 56.1 ¶ 41.) Plaintiff included L.F.'s report card in the fax. (D's Ex. 15 at 3.) On the cover of the fax, Plaintiff stated, "Please let me know when we can schedule an IEP meeting to discuss [L.F.] attending Barnstable Academy next school year through district." (Id. at 1.)

On June 13, 2017, the CSE convened to review and develop L.F.'s IEP for the 2017-18 academic year. (P's 56.1 Resp. ¶¶ 17, 25.) Defendant states that the CSE did not have any information indicating that L.F.'s strengths and weaknesses had changed since the 2016 CSE meeting. (D's 56.1 ¶¶ 17, 26.)⁷ The CSE again concluded that, based on all available information, L.F.'s needs would be appropriately met in the 12:1:1 TSC class. (Id. ¶ 27.) But Plaintiff argues that Defendant still failed to take into account whether L.F. was dyslexic, and that Defendant failed to send anyone to visit L.F. at Barnstable to determine whether it was an appropriate placement. (P's 56.1 Resp. ¶¶ 17, 27.)⁸

Plaintiff kept L.F. in Barnstable for the 2017-18 school year and did not advise the CSE that she intended to continue L.F.'s placement at Barnstable when the CSE convened to develop Plaintiff's IEP. (P's 56.1 Resp. ¶ 29.)⁹

On September 28, 2017, Plaintiff filed a DPC Notice. (SRO Decision at 3.) In it Plaintiff challenged the "meeting information" section of the June 2017 IEP, said that having paid tuition for the past six years was causing hardship, and requested District placement for L.F. at Barnstable. (D's Ex. 18 at 3.)¹⁰ Plaintiff's complaint was dismissed by an Impartial Hearing Officer, but Plaintiff appealed the decision, and a State Review Officer reversed it and allowed Plaintiff to file an Amended DPC to clarify her claims. (Id.)

On April 12, 2018, Plaintiff provided the District with a "10 Day Notice of Intention to seek tuition reimbursement" for L.F.'s placement at Barnstable. (D's Ex. 16.) Before sending this notice, Plaintiff had at some point received a "Procedural Safeguards Notice" from the District advising her of the "10 business days" notice requirement for seeking tuition reimbursement from the District for a unilateral placement of L.F., but it is not entirely clear what years she received such notice. (See P's 56.1 Resp. ¶ 43; see Tr. at 404; P's Decl. ¶ 36.)¹¹

On April 13, 2018, Plaintiff filed an "Amended Due Process Complaint" (the "Amended DPC") with the State Education Department. (D's Ex. 1.) In that complaint, Plaintiff explained that she had taken L.F. out of Cherry Lane Elementary halfway through second grade because, among other things, he could not read. (See id. at 2-3.) Prior to removing L.F. from Cherry Lane Elementary, she had repeatedly asked the school and District for reading support for L.F., but she was denied or ignored. (Id. at 3.) When she placed L.F. at Our Lady, he learned how to read and write during his first year. (Id.) Plaintiff stated that she removed L.F. from parochial school because "his needs were no longer being appropriately met and he was not able to focus," and placed him at Barnstable, where he "continues to advance and thrive." (Id. at 4.)¹² In the Amended DPC, she sought reimbursement for two years at Barnstable, as well as "reimbursement for the previous four years," while L.F. was in parochial school, noting that she was "unable until recently [to] prove the district[']s failure in this matter and ultimately [its] liability" and arguing that the statute of limitations should not run on her claims until "the date of discovery of the district's culpability and failure." (Id. at 4-5.)

On July 16 and July 25, 2018, the IHO conducted a hearing with Plaintiff and representatives of Defendant present. The IHO received evidence and took testimony from both parties. On September 10, 2018, the IHO issued her Findings of Fact and Decision. The IHO found that Plaintiff's claims for tuition reimbursement for the 2012-13, 2013-14, 2014-15, and 2015-16 school years...