P.C.R. v. Fla. Union Free Sch. Dist.

P.C.R. and A.D.R., individually and as parents and natural guardians on behalf of P.R., and P.R., individually, Plaintiffs, v. FLORIDA UNION FREE SCHOOL DISTRICT and ORANGE-ULSTER BOARD OF COOPERATIVE EDUCATIONAL SERVICES, Defendants.

No. 16-CV-9778 (KMK)

United States District Court, S.D. New York

February 4, 2022

Angel A. Castro, III, Esq., A.A. Castro Complex Litigation Appeals & Negotiation PLLC Counsel for Plaintiffs.

Mark C. Rushfield, Esq., Shaw, Perelson, May & Lambert, LLP Counsel for Defendant Florida Union Free School District.

Caroline B. Lineen, Esq., Amanda E. D'Amico, Esq. Silverman & Associates Counsel for Defendant Orange-Ulster Board of Cooperative Educational Services.

OPINION & ORDER

KENNETH M. KARAS, United States District Judge.

Plaintiffs Peter Rutherford (“P.C.R.” or “Mr Rutherford”) and Ana Rutherford (“A.D.R.” or “Ms. Rutherford”; together, “Plaintiff Parents”), individually and as parents and natural guardians of P.R., their minor son, and P.R. individually (collectively, “Plaintiffs”), bring this

Action against the Florida Union Free School District (“FUFSD” or the “District”) and the

Orange-Ulster Board of Cooperative Educational Services (“BOCES”; collectively “Defendants”), alleging that Defendants denied P.R. a free and appropriate public education (“FAPE”) between 2013 and 2018, in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, and discriminated against P.R. in violation of Section 504 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132, et seq. (See generally Third Am. Compl. (“TAC”) (Dkt. No. 154).) Before the Court are Defendants' Motions for Summary Judgment and Plaintiffs' Cross-Motion for Summary Judgment. (See FUFSD's Not. of Mot. (Dkt. No. 203); BOCES's Not. of Mot. (Dkt. No. 208); Pls.' Not. of Mot. (Dkt. No. 223).) For the foregoing reasons, Defendants' Motions are granted and Plaintiffs' Cross-Motion is denied.

I. Background A. Factual Background

The following facts are taken from the Parties' statements pursuant to Local Rule 56.1, (see FUFSD's Rule 56.1 Statement (“FUFSD's 56.1”) (Dkt. No. 206); BOCES's Rule 56.1 Statement (“BOCES's 56.1”) (Dkt. No. 211); Pls.' Rule 56.1 Statement (“Pls.' 56.1”) (Dkt. No. 220); FUFSD's Rule 56.1 Counter-Statement (“FUFSD's Counter 56.1”) (Dkt. No. 226); BOCES's Rule 56.1 Counter-Statement (“BOCES's Counter 56.1”) (Dkt. No. 229)), and the admissible evidence submitted by the Parties. The facts are recounted “in the light most favorable to” Plaintiffs, the non-movants on the claims subject to Rule 56. Torcivia v. Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021). The facts as described below are in dispute only to the extent indicated.^[1]

1. Background to FUFSD & BOCES

FUFSD is a public school district located in Orange County, New York, which operates Golden Hill Elementary School (“Golden Hill”) and the S.S. Seward Institute (“Seward”), a middle and high school. See About Us, Florida Union Free School District, https://www.floridaufsd.org/about-us/. In any given year, FUFSD usually serves a total of between 800 and 900 students across Warwick and Seward, approximately 50 of which are typically classified as students with disabilities under the IDEA. (See Decl. of Amanda E. D'Amico in Supp. of Mot. for Summ. J. (“D'Amico Decl.”) (Dkt. No. 209) Ex. D (“Pavlik Dep.”), at 96:18-97:23 (Dkt. No. 209-4).)^[2]

BOCES is a regional public education service organization that provides special education among other services for its component school districts in Orange and Ulster Counties in New York state. See About Us, Orange-Ulster BOCES, https://www.ouboces.org/about-us. FUFSD is a component school district of BOCES. See Component Districts, Orange-Ulster BOCES, https://www.ouboces.org/about-us/component-districts. Among other programs, BOCES operates the Warwick Valley Satellite Program at Sanfordville Elementary School (“Warwick”) and the Minisink Valley Satellite Program at Otisville Elementary School (“Otisville”). See Programs, Orange-Ulster BOCES, https://www.ouboces.org/students-of-all-ages/special-and-alternative-education/programs.

2. P.R.'s Academic History (September 2013-October 2018)

P.R. is a male child who was born in 2006, (see D'Amico Decl. Ex. Z (“A.D.R. Dep.”), at 21:5-6 (Dkt. No. 209-8)); at the time the operative complaint was filed, P.R. was 12 years old, (see generally TAC). Plaintiff Parents are P.R.'s natural parents and guardians. (See Answer of FUFSD to TAC (“FUFSD Answer”) ¶ 1 (Dkt. No. 155); BOCES's 56.1 ¶ 2.) P.R. was born with a neurodevelopmental disorder, which was first diagnosed as a speech or language impairment and later as Autism Spectrum Disorder. (See A.D.R. Dep. 23:6-8; D'Amico Decl. Ex. L (“P.C.R. Dep.”), at 188:5-8 (Dkt. No. 230)); D'Amico Decl. Exs. F (Dkt. No. 210-1), I (Dkt. No. 210-4).)^[3] At various times in his life, P.R.'s doctors have also diagnosed him with certain other emotional and psychological impairments, including Attention-Deficit/Hyperactivity Disorder (“ADHD”), Post-Traumatic Stress Disorder (“PTSD”), anxiety, and depression, in addition to physical impairments, including hearing sensitivities, incontinence, enuresis, and encopresis.^[4] (See A.D.R. Dep. 28:3-32:2; P.C.R. Dep. 41:3-42:21, 82:20-83:23, 192:19-195:4, 347:20-348:9.)

While P.R. is verbal and able to communicate with others under certain circumstances, P.R.'s ability to express himself is limited and inconsistent. For example, Ms. Rutherford explained that if P.R. does not know an individual, then it is unlikely that he would be capable of responding to questions that individual asks him; rather, P.R. would likely either stay silent, leave the room, or physically lash out at the individual. (See A.D.R. Dep. 38:20-40:25.)^[5] When P.R. does verbally communicate, it is with prompting; he cannot engage in conversations, express himself in full sentences, or follow multi-step directions. (See FUFSD's 56.1 ¶ 156.)

P.R.'s vocabulary is also limited, and at times, P.R.'s speech is unclear or unintelligible. (See id. ¶¶ 156, 169.) Moreover, much of P.R.'s communication is “scripted language, ” or the imitation and repetition of words and phrases P.R. has heard somewhere else, a behavior known as echolalia. (Id. ¶¶ 157-60.) For instance, P.R. at times refers to himself in the third party or uses words that are not in his vocabulary. (See Pavlik Dep. 88:17-25; P.C.R. Dep. 40:4-41:2.)

As relevant to the instant Action, P.R. lived with Plaintiff Parents in Florida, New York-within the FUFSD geographic boundaries-and attended special education programs in public schools operated by FUFSD and BOCES between September 2013 and September 2018. (See D'Amico Decl. Ex. F; A.D.R. Dep. 79:10-12; P.C.R. Dep. 17:25-18:7.)

a. BOCES Warwick Satellite Program (September 2013-December 2015)

i. 2013-14 School Year

During the 2013-14 school year, P.R. attended Warwick, where he was placed in a 9:1+3 (a ratio of 9 students to 1 teacher plus 3 instructional aides) classroom designed for children with special needs. (See BOCES's 56.1 ¶ 12.) At this point in time, P.R. was classified as a student with a disability as defined by the IDEA under the category of Speech and Language Impairment. (See Id. ¶ 10.) Based on this classification, P.R.'s Individualized Education Plan (“IEP”) for the 2013-14 school year provided that P.R. was to receive individual speech and language therapy three times per week, individual occupational therapy three times per week, and small group counseling (at a 2:1 ratio of 2 students to 1 counselor) once per week. (See D'Amico Decl. Ex. J (Dkt. No. 210-5).)

For the first several months of the 2013-14 school year, P.R received group counseling from Susan Isaacson (“Isaacson”), a licensed clinical social worker and speech pathologist. (See BOCES's 56.1 ¶ 20.) But after a number of group sessions with P.R., Isaacson formed a professional opinion that group counseling was not appropriate for P.R. based on the behaviors he had exhibited during counseling sessions-an opinion she shared with both Deborah Brunjes (“Brunjes”), the then-principal of Warwick, and Plaintiff Parents. (See BOCES's 56.1 ¶¶ 6, 20; D'Amico Decl. Ex. C (“Brunjes Dep.”), at 65:25-66:11 (Dkt. No. 209-3); A.D.R. Dep. 252:25- 253:23.) Brunjes then had a conversation with Plaintiff Parents, in which they informed Brunjes that they did not want Isaacson to provide counseling to their son, for two reasons. (See BOCES's 56.1 ¶ 21; Brunjes Dep. 66:7-67:13.) First, Plaintiff Parents disagreed with Isaacson's opinion that group counseling was not appropriate for P.R., and second, Plaintiff Parents felt that it was inappropriate and unprofessional for Isaacson to provide individual counseling to P.R. since Isaacson was at that time also providing counseling to Ms. Rutherford. (See BOCES's 56.1 ¶¶ 21, 27; P.C.R. Dep. 465:8-466:4.) Brunjes then relayed Plaintiff Parents' concerns to Kerri Stroka (“Stroka”), the Director of Special Education for BOCES, and asked if another counselor could be sent to Warwick to provide counseling services to P.R. (See BOCES's 56.1 ¶¶ 5, 22.) Stroka informed Brunjes that no other BOCES counselor was available to provide services to P.R., and recommended that Brunjes contact FUFSD. (See Id. ¶ 23.) Brunjes then contacted Lisa Tiger (“Tiger”), the then-Director of Instruction for FUFSD, to inquire about finding a new counselor for P.R. (See Id. ¶¶ 8, 24.) Several days later, Tiger contacted Brunjes to inform Brunjes that Jeanne Marie Pavlik (“Pavlik”)-an FUFSD school psychologist and the Chairperson for the Committee on Special Education (“CSE”)-would be sent over to Warwick to counsel P.R....