K.H. v.

K.H., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION;CARMEN FARINA, in her official capacity as Chancellor of theNew York City School District, Defendants.

12-CV-1680 (ARR) (MDG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 6, 2014

NOT FOR ELECTRONIC OR PRINT PUBLICATION

OPINION AND ORDER

ROSS, United States District Judge:

Plaintiff K.H.¹ brings this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973 ("Section 504"), codified at 29 U.S.C. § 794; Section 1983 of the Civil Rights Act ("Section 1983"), 42 U.S.C. § 1983; and New York state law. Plaintiff, who is now 25 years old, asserts that the New York City Department of Education ("DOE")² failed to provide him with adequate special education programs and services during his entire career in the New York City public schools and discriminated against him on the basis of disability.

Plaintiff originally brought these claims in an administrative hearing before an Impartial Hearing Officer ("IHO") pursuant to the procedures of the IDEA and New York state law. The IHO dismissed some of plaintiff's claims as time-barred, dismissed other claims on jurisdictionalgrounds or on the merits, and awarded plaintiff compensatory relief for his remaining claims. On appeal, the State Review Officer ("SRO") largely upheld the IHO's determinations but awarded some additional compensatory relief. Plaintiff now brings this suit challenging the rulings of the IHO and SRO that were not in his favor and seeking relief for the claims that the IHO and SRO dismissed or failed to address.

Now before the court is defendants' motion for partial summary judgment. Defendants seek to dismiss the majority of plaintiff's IDEA, Section 504, and Section 1983 claims under the applicable statutes of limitations. For the reasons set forth below, I find that plaintiff has asserted a timely claim for the denial of a free appropriate public education during all of the years that he was eligible to attend DOE schools. Accordingly, I find that the IHO's and SRO's rulings summarily dismissing many of plaintiff's claims as time-barred are not supported by a preponderance of the evidence. At this stage of the litigation, all of plaintiff's claims can go forward, and defendants' motion for partial summary judgment is denied.

BACKGROUND

I. Statutory Framework

A. IDEA

Under the IDEA, states receiving federal funding are required to provide a "free appropriate public education" to children with disabilities. 20 U.S.C. § 1412(a)(1)(A). A free appropriate public education consists of "special education and related services" that are provided in accordance with an individualized education program ("IEP"). 20 U.S.C. § 1401(9). The IEP, which is "the centerpiece of the statute's education delivery system for disabled children," is a written document 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." Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP must be developed by a team including the child's parents, teachers, representatives of the district, and, where appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). The team must review the IEP at least once a year and revise it "as appropriate." 20 U.S.C. § 1414(d)(4)(A).

In order to provide a free appropriate public education, the IEP must ensure "access to specialized instruction and related services which are individually designed to provide educational benefit" to the child. Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982) (interpreting the Education for All Children Act, subsequently amended and renamed IDEA). The IDEA expresses a "strong preference" for educating children with disabilities alongside their non-disabled peers, so "special education and related services must be provided in the least restrictive setting consistent with a child's needs." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citing 20 U.S.C. § 1412(a)(5)(A)).

The IDEA applies to children between the ages of 3 and 21, though states have some flexibility regarding the ages of eligibility. 20 U.S.C. § 1412(a)(1). Under New York law, children with disabilities are entitled to special education services until they receive a high school diploma or complete the school year following their twenty-first birthday. N.Y. Educ. Law § 4402(5). After this point, a child is no longer entitled to the protections of the IDEA. See Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 113 (2d Cir. 2008). However, a child who is above the age of eligibility can receive "compensatory education," which is "prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education." Id. at 109 n.2. "Anaward of compensatory education is appropriate only for gross violations of the IDEA." Id.

The IDEA establishes a number of "procedural safeguards" to ensure parental involvement in the special education process. 20 U.S.C. § 1415. For example, a school district is required to provide "Prior Written Notice" to a parent whenever the district proposes to initiate or change, or refuses to initiate or change, a child's special education services. 20 U.S.C. § 1415(b)(3). In addition, the district must provide a "Procedural Safeguards Notice" to a parent annually and whenever the child is referred for an evaluation, a complaint is filed, or the parent requests one. 20 U.S.C. § 1415(d)(1)(A). The Procedural Safeguards Notice must be "written in an easily understandable manner" and outline various rights that parents have under the IDEA. 20 U.S.C. § 1415(d)(2).

The IDEA's procedural safeguards provisions also set out the process by which parents can bring claims regarding their children's special education services. A parent of a child with a disability has the right to bring a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6)(A). If the district does not resolve the complaint, the parent has the right to an "impartial due process hearing." 20 U.S.C. § 1415(f). In New York, the hearings are conducted by an IHO appointed by the local school district. N.Y. Educ. Law § 4404(1)(a). At the impartial hearing, "the school district has the burden of demonstrating the appropriateness of its proposed IEP." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see N.Y. Education Law § 4404(1)(c) ("The . . . school district . . . shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing.").³ New York establishes a second level ofadministrative review by which either party can appeal the IHO's decision to the SRO. N.Y. Educ. Law § 4404(2). Either party can challenge the SRO's decision by filing a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

Prior to 2005, the IDEA did not include a statute of limitations for bringing claims, so courts applied the analogous state statute of limitations. M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 (2d Cir. 2003). In New York, courts generally applied a one-year statute of limitations. Somoza, 538 F.3d at 114 n.7. Under amendments to the IDEA that took effect in July 2005, parents must request an impartial due process hearing "within 2 years of the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint." 20 U.S.C. § 1415(f)(3)(C). New York state law was subsequently amended to include a two-year statute of limitations as well. N.Y. Educ. Law § 4401(1)(a). The IDEA creates two tolling exceptions to the two-year statute of limitations. A claim will not be considered time-barred if "the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency's withholding of information from the parent" that is required to be provided under the IDEA. 20 U.S.C. § 1415(f)(3)(D).

B. Section 504

Section 504 provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). In the educational context, Section 504 imposes requirements on schools that are parallel to the IDEA requirements. The statute mandates that public elementary and secondary schools "provide a free appropriate public education" to qualified disabled students, including "regular or special education and related aids and services." 34 C.F.R. § 104.33(a) and (b). However, the two statutes provide different protections, because "Section 504 provides relief from discrimination, whereas the IDEA provides relief from inappropriate educational placement decisions, regardless of discrimination." Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 152 (N.D.N.Y. 1997), aff'd, 208 F.3d 204 (2d Cir. 2000). Accordingly, in order to establish liability under Section 504, "courts have held that a plaintiff must demonstrate more than an incorrect evaluation or substantively faulty IEP." R.B. ex rel. L.B. v. Bd. of Educ. of City of N.Y., 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000). Rather, "there must be evidence that a school district acted with deliberate or reckless indifference to the student's federally protected rights or with bad faith or gross misjudgment." Schreiber v. E. Ramapo Cent....