K.B. ex rel. S.B. v. Katonah Lewisboro Union Free Sch. Dist.

K.B. on behalf of S.B., Plaintiff, v. KATONAH LEWISBORO UNION FREE SCHOOL DISTRICT, Defendant.

No. 18-CV-9553 (CS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 28, 2019

OPINION & ORDER

Appearances:

Peter D. Hoffman

Law Office of Peter D. Hoffman, PC

Katonah, New York

Counsel for Plaintiff

Daniel Petigrow

Steven L. Banks

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP

Hopewell Junction, New York

Counsel for Defendant

Seibel, J.

Before the Court are Plaintiff's motion for summary judgment, (Doc. 18), and Defendant's cross-motion for summary judgment, (Doc. 12). Plaintiff K.B. ("KB" or the "parent") brings this action on behalf of her child, S.B. ("SB"), against Defendant Katonah Lewisboro Union Free School District (the "District") pursuant to the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. §§ 1401 et seq.;¹ Article 89 of the New York State Education Law; and Part 200 of the Regulations of the Commissioner ofEducation. Plaintiff seeks review of an administrative decision by a State Review Officer ("SRO") at the New York State Education Department affirming the decision of an Impartial Hearing Officer ("IHO"). The IHO found that (1) there was no basis to conclude that the District violated its Child Find obligation relative to SB; (2) the District failed to establish that it provided a Free and Appropriate Public Education ("FAPE") during the 2015-16 and 2016-17 school years because its state-approved nonpublic program recommendation for 2015-16, the Karafin School ("Karafin"), and its in-district public school recommendation for 2016-17, a therapeutic support program at John Jay High School, were not sufficient to meet SB's educational needs; (3) the District's denial of a twelve-month program for 2015-16 did not deny SB a FAPE; (4) the private school - Robert Louis Stevenson School ("RLS") in New York City - at which KB placed SB for the 2015-16 and 2016-17 school years was an appropriate placement; and (5) equitable considerations supported reduction of tuition reimbursement for the 2015-16 school year by 20% because KB did not fully cooperate with the District's attempts to locate an appropriate placement, and supported full reimbursement for the 2016-17 tuition. (Decision of IHO Judith Schneider, dated Feb. 13, 2017 ("IHO Decision"), at 43-44, 46-47, 50, 52, 55-56.)²

The SRO found that evidence in the record (1) supported the IHO's determination that the District did not violate its Child Find obligations; (2) did not support the IHO's determinationthat the District failed to offer SB a FAPE for the 2015-16 and 2016-17 school years; and (3) supported the IHO's determination that the District's denial of a twelve-month program for 2015-16 did not deny SB a FAPE. (Decision of SRO Carol H. Hauge, dated June 25, 2018 ("SRO Decision") at 17, 24, 36.)³

Plaintiff seeks an order (1) affirming the IHO's decision to award tuition reimbursement and reversing her decisions on the twelve-month program and the 20% deduction; (2) reversing the SRO's decision in its entirety; and (3) directing the District to reimburse Plaintiff. (Doc. 1 ("Compl.") at 22-23.) For the following reasons, Plaintiff's motion is DENIED and Defendant's motion is GRANTED.

I. BACKGROUND

A. Facts

The following facts are undisputed unless otherwise noted.

SB attended John Jay High School ("John Jay") in the District during the 2014-15 (ninth grade) school year. (SRO Decision at 3.) In late May 2015, SB was admitted to a psychiatric hospital because she engaged in self-injurious behavior and expressed suicidal ideation. (Id.) She remained hospitalized until October 2, 2015, and then received home-based and online tutoring. (Id.)

On August 28, 2015, at KB's request, SB was referred to the local Committee on Special Education ("CSE"), which included parents, teachers, a school psychologist, and a district representative. (Id. at 1, 3; IHO Decision at 39.) On October 5, 2015, the CSE found SB to be eligible for special education services because she was a student with an emotional disturbance. (SRO Decision at 3.) The CSE was responsible for working with SB and KB to develop anIndividualized Education Program ("IEP") that set forth SB's social, emotional, and educational needs and goals. See 20 U.S.C. § 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320-21; N.Y. Educ. Law § 4402; 8 N.Y.C.R.R. §§ 200.3, 200.4(d)(2).

During the October 5, 2015 meeting, the CSE discussed SB's program and placement and recommended, among other things, a 12:1+1 special class placement in a state-approved "therapeutic day program," along with twice-weekly 1:1 counseling, weekly group counseling, and a bimonthly dialectical behavior therapy ("DBT") session with SB's private psychologist (the "October 2015 IEP"). (SRO Decision at 3.) The District agreed to research therapeutic day schools and sent referrals to public and private schools. (Id.) On October 26, 2015, Karafin accepted SB. (Id. at 3-4.)

On November 12, 2015, the CSE reconvened, recommended that SB attend Karafin, and modified the October 2015 IEP to include a 6:1+1 special class placement and weekly 1:1 and group counseling (the "November 2015 IEP"). (Id. at 4.) The November 2015 IEP recommended fewer individual counseling sessions because SB would have access to daily, on-demand counseling sessions at Karafin. (Id. n.5.) By letter dated November 12, 2015, KB rejected the CSE's recommendations in the November 2015 IEP and informed the District that SB would attend RLS beginning November 30, 2015. (Id. at 4.) KB also sought reimbursement for tuition and transportation costs. (Id.) The District denied the former but provided the latter during the school year. (Doc. 15 ¶ 1; Doc. 26 ¶ 92.)

On February 22, 2016, the CSE convened to discuss whether SB needed twelve-month education services, and decided that she did not. (SRO Decision at 4.)

On May 9, 2016, the CSE convened to review SB's progress and develop her IEP for the 2016-17 school year. (See id.) The CSE recommended an 8:1+1 special class placement forEnglish language arts and social studies in a newly minted DBT-based "therapeutic support program" at John Jay, the District high school, along with weekly 1:1 and small group counseling, a daily support period, a weekly DBT skill session, and daily access to a teaching assistant and clinical support. (Id.) The CSE proposed that it would collaborate with RLS to help SB transition into the program at John Jay, and suggested flexible pickup, drop-off, and classroom schedules so SB could avoid large groups. By letter dated May 25, 2016, KB rejected the CSE's recommendations and indicated that SB would attend RLS in summer 2016 and during the 2016-17 school year. (Id.)

B. Procedural History

1. Due Process Complaint

KB filed a due process complaint on July 19, 2016. (IHO Ex. I.)⁴ Plaintiff alleged that the District failed to offer SB a FAPE for the 2015-16 and 2016-17 school years in that it failed to (1) "identify, locate and evaluate SB as a child with a disability"; (2) "provide SB with appropriate academic instruction and counseling services"; (3) "provide competent and qualified providers for services" required by her IEPs; and (4) acknowledge KB's requests for and "engage in a diligent search for an appropriate out-of-district placement." (Id. at 2-3.) Plaintiff also asserted that SB's placement at RLS was appropriate because "it was a small therapeutic preparatory school for students . . . with social, emotional and learning challenges." (Id. at 13.) Plaintiff sought an order from the IHO (1) finding that the 2015-16 and 2016-17 IEPs were not appropriate, (2) finding that RLS was appropriate, (3) directing the District to reimburse Plaintifffor compensatory education as a remedy for the District's failure to provide a FAPE, (4) directing the District to reimburse Plaintiff for tuition and transportation for SB's placement at RLS for the 2015-16 and 2016-17 school years, including summer 2016, and (4) awarding Plaintiff attorney's fees and costs. (Id. at 15.)

2. IHO Decision

On November 2, 2016, the IHO commenced a hearing, which concluded on September 28, 2017 after fourteen nonconsecutive days of testimony. (IHO Decision at 6.) In her lengthy and thorough decision, issued February 13, 2017, the IHO first found that she had no basis to conclude that the District violated its Child Find obligation relative to SB when it failed to undertake a CSE evaluation before August 28, 2015, when KB requested such an evaluation. (Id. at 37, 56.) The IHO observed that neither SB's clinician nor KB requested a CSE evaluation or suggested that one might be warranted any time before August 28, 2015. (Id.) While SB "made 'very superficial cut marks' on her wrist" on March 10, 2015, reported suicidal thoughts on April 27, 2015, and cut herself again on May 14, 2015, (id. at 38), she "maintained very good grades," "her attendance record remained unchanged and appropriate" until she left school in late May 2015, and she made "academic progress" through the spring, (id. at 38-39). The IHO found that, in light of SB's academic progress, the limited period before she withdrew, and the District's awareness that she was receiving private psychiatric and psychological treatment, the District did not violate its Child Find obligation. (Id. at 39.) The IHO further observed that the District "acted expeditiously" after KB requested a CSE evaluation, noting that KB has a Masters degree in Special Education and had experience with CSE meetings, and that SB's brother was a student with a disability and had an IEP during the 2014-15 school year. (Id. at 39-40.) The IHO concluded that "the fact that no evaluation was requested by this sophisticatedand knowledgeable parent was volitional," and therefore the District's failure to refer SB did not cause any "detriment" to SB. (Id.)

Next, the IHO found that the District failed to provide a FAPE during the 2015-16 and 2016-17 school years. As to 2015-16, the IHO found...