S.B. v.

S.B. and S.B., Individually and on Behalf of C.B. Plaintiffs, v. New York City Dep't of Educ. et al., Defendants.

15-CV-1869

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 28, 2017

MEMORANDUM AND ORDER

GLASSER, Senior United States District Judge:

Plaintiffs S.B. and S.B. (individually, the "Mother" and "Father" and together, the "Parents") are the parents of C.B., an elementary school student with a speech and language disability. They bring this action against the New York City Department of Education ("DOE") for violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act, and New York law, 8 N.Y. Comp. Codes R. & Regs. ("NYCRR") §§ 200.1 et seq. The Parents allege that the DOE failed to offer C.B. a free and appropriate public education, and seek tuition reimbursement for her attendance in private school for the 2012-2013 school year during which she was eight years old and in second grade. The arents exhausted their administrative remedies before two separate administrative hearing officers, both of whom held in favor of the DOE. Before the Court are the parties' cross-motions for summary judgment.

GLOSSARY

12:1:1 A special education classroom with 12 students, one teacher and one paraprofessional

C.B. The student at issue in this case

CSE Committee on Special Education

DOE New York City Department of Education

FAPE Free and appropriate public education

IDEA Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.

IHO Impartial Hearing Officer

IEP Individual Education Program

JCSE Jewish Center for Special Education

S.B. & S.B. Plaintiffs and the parents of C.B.

SRO State Review Officer

STATUTORY FRAMEWORK

The IDEA establishes a comprehensive program for providing federal funds to assist the states in educating disabled children. In exchange for that federal assistance, the recipient state is required to ensure that disabled students receive a "free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. §§ 1400(d)(1)(A); 1412(a). A "free appropriate public education" (commonly referred to as a "FAPE") is defined as special education and related services that are "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). Critically, the special education program must be "tailored to meet the unique needs of a particular child." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) citing Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).

The law requires that at least annually, the needs and services of a disabled child be described in an Individual Education Program ("IEP"). 20 U.S.C. § 1414(d). As the "centerpiece" of the IDEA, "the IEP 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); see also R.E. v. New York City Dept. of Educ., 694 F.3d 167, 175 (2d Cir. 2012). In New York, IEPs are created by local Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1). Each child's CSE team must conduct an IEP meeting at least annually to review the child's progress and needs and to create a new IEP for the upcoming year. 20 U.S.C. § 1414(d)(2)(A).

If dissatisfied with the IEP or the proposed placement, as here, a parent may choose to enroll their child in a private school at their own financial risk, and later seek tuition reimbursement from the DOE. To obtain reimbursement, the parent initiates an administrative due process proceeding by filing a complaint setting forth all of their challenges to the IEP. 20 U.S.C. § 1415(b)(6). The parents may challenge "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education." Id. Such challenges are addressed in a due process hearing before an Impartial Hearing Officer ("IHO") at which the DOE has the burden of proof and persuasion. N.Y. Educ. Law § 4404(1)(c); M.W. ex rel. S.W. v. N.Y. City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013). Either party may appeal the IHO's decision to a State Review Officer ("SRO"), 20 U.S.C. § 1415(g)(1); see also N.Y. Educ. Law § 4404, and either party may then appeal the SRO's decision by initiating an action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

FACTUAL BACKGROUND

The following facts are drawn from the administrative record and the parties' Local Rule 56.1 Statements of Undisputed Facts. They are undisputed unless otherwise noted.

C.B.'s General Background

C.B. was born on July 11, 2004 and is currently thirteen years old. ECF 15-1, Plaintiff's Rule 56.1 Statement ("Pl. 56.1 St."), at ¶ 1 n.2. At issue in this case is the 2012-2013 school year, during which C.B. was eight years old and a second grade student. Id. at ¶ 2. C.B. has been classified by the DOE as a student with a speech or language impairment who is eligible to receive special education services under the IDEA. Id.; ECF 14-1, Defendants' Rule 56.1 Statement ("Def. 56.1 St."), at ¶ 3. From age four to six, she attended general education programs in private schools and received supplemental services from the DOE, including occupational therapy, speech and language therapy and a Special Education teacher. Pl. 56.1 St. at ¶ 5.

The 2011-2012 IEP and School Year

The Student's CSE team met on March 31, 2011. The DOE had failed to conduct an IEP meeting for C.B. the prior two years and notified the Parents of the meeting the day before it took place. Ex. B at pp. 3-4.¹ After finalizing the IEP, the DOE offered C.B. a placement in a public school for the 2011-2012 school year, during which she was seven years old and in first grade. Id. The Parents rejected the school placement for reasons that are disputed and irrelevant to this case. Instead, they enrolled C.B. at the Jewish Center for Special Education ("JCSE") for the 2011-2012 school year, and initiated a due process proceeding challenging the IEP, andseeking reimbursement for the JCSE tuition. Pl. 56.1 St. at ¶ 8. While that proceeding was pending, C.B. completed the 2011-2012 school year at the JCSE.²

The 2012 Evaluations and Progress Reports

The CSE was due to re-convene for C.B.'s 2012 annual IEP meeting regarding the upcoming 2012-2013 school year in March 2012. In anticipation of that meeting, the DOE sent the Parents a notice on January 9, 2012 stating that the "student's educational or related services needs warrant a reevaluation (this includes improved academic achievement and functional performance)," and that it needed "updated clinical informations [sic] for the annual review." Ex. 1. It also requested reports from C.B.'s current school that would provide "a summary of the student's present levels of performance in both Academic and Social/Behavioral areas." Id.

There are five reports in the record regarding C.B. that pre-date the 2012 IEP meeting. The JCSE created three progress reports (hereinafter, the "Progress Reports"): (1) an Academic Progress Report dated February 9, 2012; (2) a Speech Progress Report dated February 2012; and (3) an Occupational Therapy Update dated March 2011.³ Def. 56.1 St. at ¶ 7; Exhs. 4, 5, 6. A representative from the DOE, Melody Fuchs, conducted a one hour classroom observation of C.B. at the JCSE on March 6, 2012 and summarized her findings in a classroom observation report. Ex. 3; Pl. 56.1 St. at ¶¶ 12, 13. Finally, there was a psychoeducational report of C.B.completed by a school psychologist dated March 6, 2011 (the "Psychoeducational Report"). Ex. 9. A brief summary of each report follows.

i. The Academic Progress Report (created by the JCSE)

The Academic Progress Report describes C.B. as "sweet," "well-behaved" and "well-liked," but with "delays in her expressive and receptive language skills." Ex. 4. It states that C.B. has trouble following directions, completes tasks slowly and "struggles to retrieve words, which impedes her ability to express her thoughts" coherently. Id. The report states that C.B. identifies "several letters of the alphabet" and can write some letters properly. She can answer "oral comprehension questions after listening to stories with 80% accuracy," and can work independently for 15 minutes. Id. She needs to develop phonological awareness, such as rhyming and blending syllables. Id. In math, C.B. can complete two-digit addition problems, simple subtraction problems and can count by fives and tens through one hundred. Id. at pp. 1-2. The report notes a number of modifications and management tools that the teacher uses, including (1) repetition, (2) multi-sensory techniques, such as hands-on activities and games, (3) small group instruction, (4) motivational activities, (5) visual aids, and (6) presenting information in "small chunks." Id.

ii. The Speech Progress Report (created by the JCSE)

According to the Speech Progress Report, C.B. has language delays "in the areas of comprehension, use of age-appropriate vocabulary, and auditory processing of complex directions and sentence structure." Ex. 6. C.B. has difficulty following even simple directions, particularly those with spatial terms, and struggles to express herself saliently. Id. She also "demonstrates difficulty with pragmatic skills," including a "lack of awareness and repair skills when there is a communication breakdown," in which case she "sits passively and does notindicate lack of comprehension." Id. This report emphasizes the following management techniques: (1) sequencing cards and pictures, (2) direct instruction, (3) verbal cueing, and (4) opportunities to practice various...