L.J.B. v. N. Rockland Cent. Sch. Dist.

660 F.Supp.3d 235

L.J.B., individually and on behalf of I.J.B., a child with a disability, Plaintiff, v. NORTH ROCKLAND CENTRAL SCHOOL DISTRICT, Defendant.

No. 21-CV-7028 (CS)

United States District Court, S.D. New York

Signed March 29, 2023

Francesca Antorino, Cuddy Law Firm, PLLC, Valhalla, New York, Counsel for Plaintiff.

Neelanjan Choudhury, Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, New York, Counsel for Defendant.

OPINION & ORDER

Seibel, United States District Judge

Before the Court are the cross-motions for summary judgment of Plaintiff L.J.B. ("Plaintiff" or the "Parent"), acting individually and on behalf of I.J.B., a child with a disability, (ECF No. 16), and of Defendant North Rockland Central School District ("Defendant" or the "District"), (ECF No. 18). Plaintiff brings this case pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482,¹ and New York Education Law § 4404. (ECF No. 1 ("Compl.") ¶ 1.) For the following reasons, Plaintiff's motion is DENIED and Defendant's motion is GRANTED.

I. BACKGROUND

A. Facts

The following facts are based on the parties' Local Civil Rule 56.1 Statements, (ECF No. 17 ("P's 56.1 Stmt."); ECF No. 20 ("D's 56.1 Stmt.")), their responsive 56.1 Statements, (ECF No. 24 ("P's 56.1 Resp."); ECF No. 21 ("D's 56.1 Resp.")), and the administrative record,² and are undisputed unless otherwise noted.

During the school years in question — 2017-2018, 2018-2019, and 2019-2020 — Plaintiff and I.J.B. resided within the County of Rockland and within the District. (P's 56.1 Stmt. ¶¶ 1, 5-6.) I.J.B., who was fourteen years old at the time this action was filed, (D's Ex. 2 at 1), has been diagnosed with spastic diplegic cerebral palsy and Attention-Deficit/Hyperactivity Disorder, and therefore has been classified as a student with multiple disabilities under the IDEA, (P's 56.1 Stmt. ¶¶ 10-13). A 2018 psychological evaluation classified I.J.B.'s overall intelligence as moderately delayed, (D's Ex. 5 at 2; see D's 56.1 Resp. ¶ 13), and a March 2020 neuropsychological evaluation found that he had a mild intellectual disability, (D's Ex. 25 at 16; see P's 56.1 Stmt. ¶ 13). I.J.B. also has deficits with his speech-language skills, making it difficult for his verbal communication to be understood by an unfamiliar listener. (P's 56.1 Stmt. ¶ 14.)

I.J.B. attended school in the East Ramapo Central School District for the 2015-2016 school year and most of the 2016-2017 school year, transferring to the District in around February or March of 2017. (See Tr. at 267:22-268:4; D's Ex. 1 at 1; D's Ex. 2; D's 56.1 Stmt. ¶¶ 2, 4.)³ While enrolled at East Ramapo, I.J.B. was placed at the Jesse J. Kaplan School ("Kaplan"), a center-based school run by the Rockland County Board of Cooperative Educational Services ("BOCES"). (Tr. at 267:25-268:19; see id. at 306:2-10.) Upon his transfer, he continued at Kaplan for the remainder of the year. (D's 56.1 Stmt. ¶ 5.) For the following three school years at issue in this case, the District was responsible for providing I.J.B. with a Free Appropriate Public Education ("FAPE"). (P's 56.1 Stmt. ¶ 7.) The District's Committee on Special Education ("CSE") was responsible for working with Plaintiff to develop an Individualized Education Program ("IEP") that set forth I.J.B.'s social, emotional, and educational needs and goals. See 20 U.S.C. § 1414(d); 34 C.F.R. §§ 300.301-.328; N.Y. Educ. Law § 4402; 8 N.Y.C.R.R. §§ 200.3, 200.4(d)(2). While enrolled at the District during the years in question, I.J.B. continued to attend Kaplan. (See generally D's Exs. 4, 10, 17.)

Since March 2021, I.J.B. has been enrolled at Shrub Oak International School ("Shrub Oak"), a private school at which he was placed by the Parent. (P's 56.1 Stmt. ¶ 8.)

1. Kaplan

On March 2, 2017, the District's CSE decided to continue I.J.B.'s placement in Kaplan's social communication program for the remainder of the 2016-2017 school year. (D's Ex. 3 at 1; Tr. at 314:17-22; D's 56.1 Stmt. ¶¶ 5-6.) Kaplan is an out-of-district placement, in that it is located on a BOCES campus, not at a public school. (Tr. at 268:14-19.) I.J.B. has never been enrolled in a program within his home school district. (Id. at 269:6-8.)

Kaplan offers different specialized programs, including I.J.B.'s social communication class. (D's 56.1 Stmt. ¶ 10; see Tr. at 306:18-308:4.) All students enrolled at Kaplan are "alternately assessed" and are not placed by grade levels, but are placed with students who are within 36 months of each other. (D's 56.1 Stmt. ¶ 9; see Tr. at 308:7-13.) Mr. Gianluca DiMuccio is the principal at Kaplan, and before that, he was a Board Certified Behavior Analyst ("BCBA") in a public school district and worked for two in-home Applied Behavior Analysis ("ABA") therapy organizations. (D's 56.1 Stmt. ¶ 11; see Tr. at 302:14-303:16.) All of the staff at Kaplan are either also BCBAs or have received ABA training. (D's 56.1 Stmt. ¶ 14; Tr. at 312:18-313:12.) Kaplan implements strategies from the TEACCH model and has adopted a version of Positive Behavioral Intervention Supports ("PBIS"). (Tr. at 312:3-17, 315:25-316:12, 321:24-322:8.) Kaplan consists of one floor with some ramps and a pool, which I.J.B. has used. (Id. at 308:24-309:8, 311:20-312:2, 877:12-17.)

I.J.B. was placed in Kaplan's 8:1+2⁴ social communication special class, (id. at 269:9-16, 381:9-12, 623:11-13), and qualified for extended school year (in other words, twelve-month) services, (D's 56.1 Stmt. ¶ 3). According to DiMuccio and other witnesses, I.J.B.'s class focuses on communication and social skills, as well as academics, and includes a mix of verbal and nonverbal students, with most of the students using language to communicate, socialize, and express their feelings. (Tr. at 269:0-16, 315:9-24, 623:14-624:2.) Kaplan utilizes the Reading Mastery, Language for Learning, i-Ready, and Edmark reading systems. (Id. at 313:13-314:4, 316:13-317:15.)

DiMuccio testified that parents are reminded on a monthly basis that they can participate in counseling and training, but L.J.B. never utilized such services or complained to DiMuccio about not having access to training prior to filing the Due Process Complaint ("DPC") that led to this case. (Id. at 319:14-320:15.) Sara Christman, Kaplan's school psychologist, also stated that the Parent received these monthly reminders but never took Kaplan up on its offer of training. (Id. at 403:4-405:23.) Christman has fourteen years of experience as a school psychologist, obtained a certificate of advanced study and ABA from Hunter College, and is trained in developing functional behavioral assessments ("FBA's"). (Id. at 378:17-379:2, 379:7-12, 399:4-7, 400:12-15.)

2. 2016-2020 School Years at Kaplan

Starting in 2015 and through 2017, Tiffany Rosenthal was I.J.B.'s teacher at Kaplan. (Id. at 750:13-18; D's 56.1 Stmt. ¶ 26.) According to Rosenthal, I.J.B. exhibited disruptive behaviors, which "didn't occur every day and they were far out, they were spread out and the strategies [she] put into place seemed to work for him." (Tr. at 753:10-14.) These strategies included utilizing a timer to manage his time, giving him a token board, and implementing a secondary reinforcement/check system. (Id. at 753:15-754:2, 755:17-25.) During the 2017-18, 2018-19, and 2019-20 school years, Dorene Weisberg was I.J.B.'s teacher. (Id. at 854:19-24; D's 56.1 Stmt. ¶ 32.) In both Rosenthal's and Weisberg's classes, I.J.B. had access to assistive technology ("AT") to help with communication via an iPad that, for the 2016-2018 school years, had the application Proloquo2Go, and, for the 2018-2020 school years, had the application LAMP Words for Life ("LAMP"). (Tr. at 758:23-759:4, 760:7-10, 761:2-8, 867:16-20, 868:23-869:8.)

For the years at issue, each of I.J.B.'s IEPs stated, among other things,⁵ that he needed "strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the student's learning or that of others." (D's Ex. 1 at 9; D's Ex. 3 at 11; D's Ex. 4 at 12; D's Ex. 10 at 11; D's Ex. 17 at 13.)

a. 2016-2017 School Year

On April 19, 2016, the East Ramapo CSE met and recommended that for the 2016-2017 school year, I.J.B. should be placed in the 8:1+2 social communication class, and receive speech/language, occupational therapy ("OT"), and physical therapy ("PT") services. (D's Ex. 1 at 13-14.) On March 2, 2017, the District's CSE met to discuss I.J.B.'s transfer to the District. (D's Ex. 3 at 1.) The CSE accepted the East Ramapo IEP for the remainder of the school year and noted that he had made a positive transition to Kaplan, was able to work independently, and sometimes engaged in aggressive behaviors when he did not get what he wanted but that those behaviors had decreased. (Id.) Both the East Ramapo and District IEPs outlined two reading, two writing, three mathematics, two speech/language, one social/emotional/behavioral, four motor, and one basic cognitive/daily living goals. (Id. at 11-15; D's Ex. 1 at 9-13.) Both IEPs said I.J.B. needed strategies to address his behaviors but did not need a behavioral intervention plan ("BIP"), and that he needed an AT device, which the CSEs recommended also be used at home. (D's Ex. 1 at 9; D's Ex. 3 at 11.) During the 2016-2017 school year, he used an iPad with the Proloquo2Go software. (D's Ex. 3 at 7.) DiMuccio and Rosenthal testified that prior to transferring to North Rockland, but while he was attending Kaplan, I.J.B. had an iPad with Proloquo2Go at home, but he would only sometimes bring to it school and often deleted the application from the iPad. (Tr. at 343:19-344:9, 759:2-760:3; see id. at 654:24-655:21.) If he did not bring the device to school, he would be given a device in school that also had Proloquo2Go programmed on it. (Id. at 759:2-761:7.) He received (1) individual speech and language therapy twice a week for 30 minutes, (2) small group speech and...