IndividuallyE. v. Chappaqua Cent. Sch. Dist.

J.E. and C.E., Individually, and as Parents of D.E., a minor under the age of 18 years, Plaintiffs, v. CHAPPAQUA CENTRAL SCHOOL DISTRICT, Defendant.

No. 14-cv-3295 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 28, 2016

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge:

J.E. and C.E. (collectively, "Plaintiffs" or "the Parents"), individually and as parents of disabled child D.E., bring suit under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq.,¹ against Defendant Chappaqua Central School District ("the District"). Presently before the Court is Plaintiffs' motion for summary judgment. (ECF No. 41.) For the following reasons, Plaintiffs' motion for summary judgment is DENIED.

BACKGROUND

I. Legal Framework

"Congress enacted the IDEA 'to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected.'" S.W. v. New York Dep't of Educ., 92 F. Supp. 3d 143, 148 (S.D.N.Y. 2015) (quoting 20 U.S.C. § 1400(d)(1)(A)-(B)). "The IDEA provides that a child with a disability must receive a 'free appropriate public education'("FAPE"), 20 U.S.C. § 1400(d)(1)(A), which includes special education and related services provided at public expense, that meet the standards of the state educational agency and are provided in conformity with an Individualized Education Program ("IEP")." M.P.G. ex rel. J.P. v. N.Y.C. Dep't of Educ., No. 08-cv-8051 (TPG), 2010 WL 3398256, at *1 (S.D.N.Y. Aug. 27, 2010) (citing 20 U.S.C. § 1401(9)). "The IEP must be developed annually, by a 'school official qualified in special education, the child's teacher, the child's parents, and, where appropriate, the child.'" E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 423 (S.D.N.Y. 2010), aff'd, 487 F. App'x 619 (2d Cir. 2012) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 1129, 122 (2d Cir. 1998) (citing 20 U.S.C. § 1401(a)(20)). 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.'" D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006), opinion amended on denial of reh'g, 480 F.3d 138 (2d Cir. 2007) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)).

"A child with a disability receives a FAPE when the child's education program is tailored to meet the child's unique needs and is 'reasonably calculated to enable the child to receive educational benefits.'" M.P.G. ex rel. J.P., 2010 WL 3398256, at *1 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). An appropriate education does not necessarily translate to the form of education most desired by the parents of a disabled child; rather, a school district is required to provide the child with an IEP "that is likely to produce progress, not regression, and . . . afford the student with an opportunity greater thanmere trivial advancement." Cerra v. Pawling Cent. School Dist., 427 F.3d 186, 195 (2d Cir. 2005) (internal quotations and citation omitted).

Under the IDEA, parents may challenge the education placement of their child, as well as the IEP, through a hearing before an Impartial Hearing Officer ("IHO"). M.P.G. ex rel. J.P., 2010 WL 3398256, at *1. Either party may appeal the determination of the IHO to a State Review Officer ("SRO"), who conducts an independent review of the IHO's findings and decision. Id. Finally, either party may appeal the SRO's decision to a state court or federal district court. Id.

"Parents who are dissatisfied with a school district's placement may also unilaterally place their child in a private school and then seek retroactive tuition reimbursement from the local school district." Id. at *2 (citing 20 USC § 1412(a)(10)(C)). In that instance, the board of education may be required to reimburse parents for the education program if "(1) the educational program recommended by the board of education was inadequate or inappropriate; (2) the program selected by the parent was appropriate, such that the private program meets the student's special education needs; and (3) the equities support the parent's claim." Id. This three-part analysis is known as the Burlington/Carter test. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Florence Cty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 12, 114 S.Ct 361, 364-65, 126 L.Ed.2d 284 (1993).

II. Factual Background²

A. D.E.'s Educational History

The student, D.E., was born in 1999. (Plaintiff's Rule 56.1 Statement of Uncontroverted Fact ("Pls.' 56.1"), ECF No. 43, ¶ 13.) D.E. was classified with Autism by the District's Committee on Special Education ("CSE") during the 2004-2005 school year when D.E. was in kindergarten. (Id. ¶ 14.) D.E.'s classification and disability status remained the same from the 2004-2005 school year through the 2012-2013 school year. (Id. ¶ 15.) The Neuro/Psychoeducational Evaluation prepared by Dr. Stephanie O'Leary and Dr. Toni Tarnell notes that D.E. also has been diagnosed with Attention-Deficit/Hyperactivity Disorder. (D-45 at 1.) According to Dr. O'Leary, D.E.'s Autism "interferes with [his] ability to engage in language-based tasks" as well as "socialization." (T:2591.) Additionally, Dr. O'Leary testified that D.E.'s "diagnosis of ADHD and executive dysfunction also impacted his ability to engage with the learning environment because he exhibited significant symptoms of inattention, inflexibility, poor impulse control, difficulties initiating tasks . . . [and] struggles with planning, organization and self monitoring." (Id. at 2592.)

When D.E. transitioned from elementary school to the Seven Bridges Middle School ("Seven Bridges"), CSE convened a meeting on May 22, 2009 to discuss the transition. (T:1748.) The Parents attended the meeting, along with various teachers and psychologists. (D-11 at 6.) During the meeting, CSE recommended that D.E. be placed with a 2:1 teachingassistant rather than a 1:1 teaching assistant.³ (Id.) D.E.'s mother later testified during the hearing before the IHO (the "Hearing") that she questioned that recommendation. (T:1749-50.)

On December 4, 2009, a subcommittee of CSE convened to review the 2009-2010 IEP. (D-12 at 7.) Comments from the December 2009 meeting indicate that D.E's transition to middle school "went well," but D.E.'s "previous functional behavior assessment is incompatible with the middle school setting." (Id. at 8.) Additionally, the comments portion of the 2009-2010 IEP notes that D.E.'s "social/emotional needs are preventing the student from producing measurable work on grade level in the classroom or on homework assignments." (Id.) The subcommittee recommended increased counseling. (Id.) Subsequently, the 2:1 teaching assistant recommendation was monitored and a functional behavior assessment was completed. (D-13 at 8; D-35.) In February 2010, CSE modified its recommendation of a 2:1 teaching assistant and recommended D.E. receive a 1:1 teaching assistant. (D-13 at 8.)

In April 2010, CSE provided D.E. with a Behavior Intervention Plan ("BIP").⁴ (D-36.) Additionally, CSE convened to draft D.E.'s 2010-2011 IEP. (D-14.) CSE recommended a 1:1 teaching assistant for the classroom setting and a 2:1 teaching assistant for lunch/recess. (Id. at 2.) During the Hearing, Ms. Shelley Langton, D.E.'s 6^th grade special education teacher case manager,⁵ testified that during the meeting for the 2010-2011 IEP, the Parents raised concerns about D.E. having different 1:1 teaching assistants due to his difficulty with transitions. (T:439-40.) She also noted that continuity was important to D.E. (T:195.) D.E.'s mother testified at theHearing that she was "disappointed" at the start of the 2010-2011 school year because she had been promised the name of the 1:1 teaching assistant to get D.E. "comfortable" with the assistant, but she only found out who the teaching assistant was a couple of weeks before school. (T:1787.) During the 2010-2011 school year, D.E. had several, different teaching assistants. (T:381.)

In March 2011, the District conducted an educational evaluation on D.E. (T:166.) Ms. Langton administered various tests to D.E. as part of D.E.'s three year reevaluation process as required by law for every child with an IEP. (Id. at 167.) D.E.'s reading, reading comprehension, writing, and spelling scores were average, whereas his pseudoword decoding score was below average. (D-39.) D.E.'s math scores were below average. (Id.) Despite D.E.'s average scores on the District's tests for reading, reading comprehension, writing, and spelling, D.E. received a below standard score on the English portion of the New York State Assessment. (P-C.)

At various points throughout the 2010-2011 school year, the Parents expressed concerns about D.E.'s functioning at Seven Bridges. (P-II at 1.) In particular, the Parents were concerned about D.E.'s "productivity and overall behavior." (Id. at 2.) The Parents also were concerned about D.E.'s social wellbeing based upon certain stories or poems written by D.E (T:1894-95) and due to the fact that D.E. increasingly suffered from meltdowns. (T:4337.) Finally, the Parents expressed their desire to have D.E.'s BIP updated. (Id.) In April 2011, a new BIP was developed, which replaced the 2010 BIP. (D-36.)

B. 2011-2012 IEP

On June 10, 2011, CSE convened to develop D.E.'s IEP for the 2011-2012 academic year. (D-16.) The Parents attended the meeting. (Id.) CSE made the following recommendations:

• direct consultant teacher

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