Piazza v. Fla. Union Free Sch. Dist.

777 F.Supp.2d 669

270 Ed. Law Rep. 189

Emanuel PIAZZA, Jr., and Kathleen Piazza, on behalf of their minor son, Nicholas, Plaintiffs,

v.FLORIDA UNION FREE SCHOOL DISTRICT, Defendant.

Case No. 09–CV–7451 (KMK).

United States District Court, S.D. New York.

April 7, 2011.

Mary Jo Whateley, Esq., Legal Services of the Hudson Valley, Newburgh, NY, Michael Howard Sussman, Esq., Sussman & Watkins, Goshen, NY, for Plaintiffs.Mark Craig Rushfield, Esq., Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Emanuel Piazza, Jr., and Kathleen Piazza (collectively the “Piazzas” or “Plaintiffs”) are the parents of Nicholas Piazza (“Nicholas”), a seventeen-year-old in twelfth grade in the Florida Union Free School District (“the District”) who has been diagnosed with spinal muscular atrophy.¹ Plaintiffs have sued the District, asserting claims under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq. Plaintiffs allege that the District failed to implement Nicholas's Individualized Education Programs (“IEPs”) and that the District discriminated against Nicholas because of his disability over the course of multiple school years beginning when Nicholas was in middle school. Pending before the Court is the District's motion for judgment on the pleadings. (Dkt. No. 8.) For the reasons stated herein, the motion is granted in part and denied in part.

I. Background

A. Facts

The facts are drawn from the Complaint, Nicholas's IEPs (entered into the record by the District) from kindergarten through the 2008–2009 school year, Nicholas's tenth grade, and a June 4, 2009 decision of a New York State Review Officer (the “SRO Decision”) relating to the first half of the 2008–2009 school year.

Nicholas has been a student in the District at all times relevant to this action. He suffers from spinal muscular atrophy. (Compl. ¶ 4 (Dkt. No. 1).) This condition results in severe muscle weakness throughout Nicholas's body and largely confines him to his bed. ( Id.; SRO Decision 1 (attached as Ex. C to Affirmation in Supp. of Mot. for J. Upon the Pleadings Under FRCP 12(c) (“Rushfield Aff.”) (Dkt. No. 9)).) He requires constant assistance of a nurse, and is particularly susceptible to colds and respiratory ailments. (6/26/09 IEP at 4.) ² Nicholas can, however, verbally communicate, use a computer, use a wheelchair, and attend school functions. (Compl. ¶ 4; SRO Decision 1.) Nicholas has done well in school academically, earning places on the high honor roll and in the National Honor Society. (6/26/09 IEP at 3.)

The IDEA's primary mechanism for guaranteeing students with disabilities access to a “free appropriate public education” (“FAPE”), 20 U.S.C. § 1400(d)(1)(A), is the IEP, id. § 1414(d). An IEP is a “written statement” setting forth 1) “the child's present levels of academic achievement and functional performance”; 2) “measurable annual goals,” both “academic and functional”; 3) “how the child's progress ... will be measured”; 4) “the special education and related services and supplementary aids and services” to be provided the child; 5) “an explanation of the extent, if any, to which the child will not participate” in regular school classes and activities; 6) how the child will participate in required testing; 7) a “projected date for the beginning of” the child's support services and details about their “frequency, location, and duration”; and 8) a statement regarding the child's goals for and transition to life post-secondary education. Id. § 1414(d)(1)(A)(i)(I)-(VIII). The IEP is created and periodically reviewed and revised by “a team consisting of the child's parents, the child's regular classroom teacher, a special-education teacher, a representative of the local educational agency, and other individuals with knowledge of the child.” G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 751 F.Supp.2d 552, 572 (S.D.N.Y.2010) (citing 20 U.S.C. § 1414(d)(1)(B)). This team is referred to here as the “CSE” (Committee on Special Education). (6/20/06 IEP at 4.)

Throughout his school career, Nicholas's IEPs have generally recommended a combination of home and classroom instruction, emphasizing that the division between the two “must remain flexible as [Nicholas's] medical condition and environmental concerns will impact school attendance.” ( E.g., 3/27/06 IEP at 1.) From Nicholas's fifth grade year on, his IEPs have required “[u]p to twenty hours of academic instruction,” and recommended that Nicholas “attend [the relevant] grade for approximately 2.5 hours a day, 3 days a week, as appropriate.” ( Id.; see also 3/18/03 IEP at 4; 6/20/06 IEP at 1; 1/22/07 IEP at 2; 3/22/07 IEP at 2; 9/18/07 IEP at 2; 5/14/08 IEP at 2; 11/19/08 IEP at 2.) In June 2009, however, Nicholas's IEP for the upcoming 2009–2010 school year was altered to provide for a program of “[t]wenty hours of academic instruction at the home” only, noting that “[i]f Nick's medical condition allow [ed] for him to attend school,” his IEP would be reviewed. (6/29/09 IEP at 2.)

The IEPs are not particularly detailed about the content of Nicholas's instruction: they note that it should be in a “flexible setting,” and that Nicholas's teachers would receive “[t]raining ... regarding Nick's strengths and abilities as well as needs.” (5/14/08 IEP at 1, 2.) Nicholas would be provided with a computer with appropriate upgrades ( id. at 2); by 2008, this computer was equipped with voice recognition software, (11/19/08 IEP at 5). The IEPs provide that Nicholas would receive a “modified curriculum” in unspecified subjects; the IEPs also note, however, that Nicholas would participate in the same state and local tests administered to general education students. ( E.g., 5/14/08 IEP at 2, 3; 3/22/07 IEP at 4 (noting that District was “looking for tutors for all core areas as well as music and art”).) In eighth grade and ninth grade, Nicholas was exempted from the District's physical education requirement for medical reasons. (3/27/06 IEP at 2; 3/22/07 IEP at 3.) In tenth grade, however, Nicholas's IEP was changed to reflect that his physical therapy, which he received five times per week, would fulfill the physical education requirement. (5/14/08 IEP at 3, 4.)

The IEPs contain “comments,” apparently voiced at the regular meetings of Nicholas's CSE. These comments reflect some of the allegations in the Piazzas' Complaint. In Nicholas's eighth grade year, for example, the CSE agreed to purchase voice-recognition software for Nicholas, “as a way for [him] to be able to get his thoughts out on paper.” (3/27/06 IEP at 4.) The IEP team continued to “look into” other possible technologies for Nicholas to use, but the IEPs do not reflect concrete steps taken toward acquiring these for him (11/19/08 IEP at 5), and, by the end of the 2008–2009 school year, his parents were requesting an independent evaluation regarding the IEPs' treatment of assistive technology and Nicholas's social needs, (6/26/09 IEP at 5.) Also in Nicholas's eighth grade year, the Piazzas voiced concerns that Nicholas was not being included in school events such as field trips and science labs. (6/20/06 IEP at 5.) To accommodate some of the concerns regarding Nicholas's participation, Nicholas's IEP was modified to allow him to use his home tutors to “manipulate objects as [Nicholas] direct[ed] them,” to enhance Nicholas's participation in “hands on” activities. (1/22/07 IEP at 4.) These changes made some positive difference. ( See 3/22/07 IEP at 4.)

In addition, the Piazzas voiced concerns about the timing of Nicholas's home instruction: at the beginning of Nicholas's ninth grade year, they were unhappy with the availability of Nicholas's English and Spanish tutors, for instance. (9/18/07 IEP at 5.) This dissatisfaction apparently continued throughout ninth grade, as the Piazzas were still “unhappy about some of the times the tutors can get to their home” in May of that year. (5/14/08 IEP at 5.) The May 14, 2008 IEP notes that Nicholas's home tutors were “certified high school instructors for each subject area,” and because these instructors also taught regular school, their schedules were “difficult” to coordinate. ( Id.) A specific schedule of times for Nicholas's instruction, requested by the Piazzas, was left out of Nicholas's IEPs. ( Id.)

The Complaint, which was filed on August 25, 2009, contains two sets of allegations relating to Nicholas's schooling, in some cases stretching back to elementary school but focusing on Nicholas's middle school and ninth and tenth grade years. The heart of the Complaint is paragraphs 6 and 7, which set forth how the District allegedly failed to properly implement Nicholas's IEPs and discriminated against Nicholas based on his disability. Specifically, paragraph 6 alleges that the District “fail[ed] to properly implement [Nicholas's] [IEPs],” thus depriving him of a “free and appropriate public education,” in two general areas—Nicholas's home instruction and assistive technology. (Compl. ¶ 6.) The District, it is alleged,

• failed, during the 2007–2008 and 2008–2009 school years, “to provide Nicholas with home instruction as required by the [IEPs], depriving him of educational service for long stretches of time in academic areas” ( id. ¶ 6(a));

• “failed to timely provide substitute teachers” when Nicholas's “assigned teachers” were unavailable, “a frequent occurrence” during these two years ( id. ¶ 6(b));

• failed to provide Nicholas with science labs in sixth and seventh grades or facilitate “the provision of alternative modalities” ( id. ¶ 6(c));

• failed to provide Nicholas with art, music, or library instruction from elementary school through his seventh grade year ( id. ¶ 6(d)); • failed, “despite the recommendation of those performing assistive technology evaluations,” to “implement any program to...