Scott ex rel. C.S. v. N.Y.C. Dep't of Educ.

LINDA SCOTT, on behalf of and as parentand guardian of C.S., a student with a disability, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

12 Civ. 3558 (AT)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: March 25, 2014

OPINIONAND ORDER

ANALISA TORRES, District Judge:

Plaintiff, Linda Scott, individually and on behalf of her child, C.S., brings this action against the New York City Department of Education (the "DOE") pursuant to the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff seeks review of the January 5, 2012 decision (the "SRO Op.") of New York State Review Officer Justyn P. Bates annulling the August 23, 2011 decision (the "IHO Op.") of Impartial Hearing Officer James P. Walsh, which found the DOE's placement of C.S. substantively inappropriate and directed the DOE to pay for C.S.'s private school tuition. The parties have cross-moved for summary judgment. For the reasons stated below, Plaintiff's motion is GRANTED, and the DOE's motion is DENIED.

STATUTORY FRAMEWORK

"The IDEA requires New York state to 'provide disabled children with a free and appropriate public education ('FAPE').'" M.W. ex rel. S.W. v. New York City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013) (quoting R.E. ex rel. J.E. v. New York City Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012)). "To ensure that qualifying children receive a FAPE, [the DOE] must create an individualized education program ('IEP') for each such child." R.E., 694 F.3d at 175. An IEP is a written statement that "'describes the specially designed instruction andservices that will enable the child to meet' stated educational objectives and is reasonably calculated to give educational benefits to the child." M.W., 725 F.3d at 135 (quoting R.E., 694 F.3d at 175); see 20 U.S.C. § 1414(d) (2012).

The DOE creates an IEP through a local Committee on Special Education (the "CSE"). See N.Y. Educ. Law § 4402(1)(b)(1) (2013). At a minimum, the CSE is composed of the student's parent(s), a regular or special education teacher, a school psychologist, a school district representative, an individual who can interpret the instructional implications of evaluation results, a school physician and a parent of another student with a disability. See N.Y. Educ. Law § 4402(1)(b)(1)(a). Together, the members of "[t]he CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E., 695 F.3d at 175 (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)).

The CSE does not select the specific school where the student will be placed; accordingly, the IEP does not specify a particular school site. See T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009). "The [DOE's] practice is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or FNR[,] identifying a specific school at a later date." R.E., 694 F.3d at 191. Although a parent may visit the placement listed in the FNR before deciding whether to accept it, "[t]he [DOE] may select the specific school without the advice of the parent[] so long as it conforms to the program offered in the IEP." Id. at 191-92 (citing T.Y., 584 F.3d at 420).

If a parent believes that the DOE has breached its obligations under the IDEA "by failing to provide their disabled child a FAPE, the parent may unilaterally place their child in a private school at their own financial risk and seek tuition reimbursement." M.W., 725 F.3d at 135 (citingFlorence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16 (1993)). If the parent lacks the financial resources necessary to front the costs of private school tuition, the parent may request direct retroactive payment to the private school. See Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-29 (S.D.N.Y. 2011).

The process for seeking tuition reimbursement begins when a parent files a due process complaint with the DOE. The due process complaint initiates administrative proceedings involving an impartial due process hearing before an Impartial Hearing Officer ("IHO"). See M.W., 725 F.3d at 135 (citing 20 U.S.C. §§ 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)).

The three-pronged Burlington/Carter test, as construed by New York Education Law § 4404(1)(c), governs that hearing: (1) the DOE must establish that the student's IEP [and identified class placement, if at issue,] actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them.

Id. (citations and footnote omitted). "An IHO's decision may, in turn, be appealed to a State Review Officer ("SRO"), who is an officer of the State's Department of Education." M.H. v. New York City Dep't of Educ., 685 F.3d 217, 225 (2d Cir. 2012) (citing Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379-80 (2d Cir. 2003)); see N.Y. Educ. Law § 4404(2). Any party aggrieved by the SRO's final administrative decision has the right to seek review of it by bringing a civil action in federal court. See M.W., 725 F.3d at 135-36; 20 U.S.C. § 1415(i)(2)(A).

BACKGROUND

I. C.S.'s 2010-2011 IEP and Identified Class Placement

In kindergarten, Plaintiff's son C.S. was diagnosed with autism. From that point until C.S. completed junior high school, the DOE provided him with special education services. Pl.'s 56.1 Statement of Material Facts ("Pl.'s 56.1") ¶¶ 4, 8. In September 2008, Plaintiff enrolledC.S. at the Cooke Center Academy ("CCA"), a private special education high school in Manhattan. Id. ¶ 9. The DOE paid C.S.'s tuition at CCA for the 2008-2009 and 2009-2010 school years. Id. ¶ 10.

On March 4, 2010, the CSE convened to conduct C.S.'s annual review and develop his IEP for the upcoming 2010-2011 school year. Id. ¶ 33; Transcript of Proceedings before Impartial Hearing Officer ("Tr.") 262. The following individuals attended the meeting: Plaintiff; Jacqueline Giurato, a special education teacher and district representative; Nancy Levine, a school psychologist and Gloria Gonzalves, the parent member. Pl.'s 56.1 ¶ 34. The following CCA staff participated in the meeting by telephone: Francis Tabone, the assistant head of CCA; Leonard Plaia, C.S.'s math teacher; Chaya Gray, C.S.'s English language arts teacher and Virginia Trainor, C.S.'s speech-language pathologist. Id.

In developing the IEP, the CSE relied on a sixteen-page report from CCA dated November 2009, which identified C.S.'s progress and needs in various areas, R. Ex. 5, Giurato's November 17, 2009 classroom observation report, prepared after she observed C.S.'s performance during a math lesson at CCA, R. Ex. 6, and the verbal input of Plaintiff and C.S.'s then-current teachers at CCA. Tr. 278. The CSE did not consider C.S.'s last triennial evaluation report, dated January 15, 2008, or his last speech-language evaluation from 2005. Tr. 308-11, 330; R. Ex. 7.

As a result of its March 4, 2010 meeting, the CSE issued an IEP designating C.S., who was sixteen years old, as an eleventh grader for the 2010-2011 school year. R. Ex. 3. The IEP recommended his placement in a 12:1:1 (student : teacher : paraprofessional) ratio, twelve-month special class in a specialized school and found him eligible to receive the related services of counseling, three times weekly for forty-five minutes in a group of three, and speech therapy,also three times weekly for forty-five minutes in a group of three. R. Ex. 3 at 1, 13. In addition, the IEP set forth C.S.'s annual goals and short-term objectives and provided for post-educational transition services. R. Ex. 3.

On June 14, 2010, the DOE sent a final notice of recommendation ("FNR") to Plaintiff, which designated P373K @ Brooklyn Transition Center ("P373K") as C.S.'s public school placement for the 2010-2011 school year. R. Ex. 8. Although C.S.'s IEP recommended a twelve-month class, the DOE allows parents to accept or decline summer services. Pl.'s 56.1 ¶ 45; Def.'s Resp. to Pl.'s 56.1 Statement of Material Facts ("Def.'s Resp. 56.1") ¶ 45. Plaintiff had previously notified the CSE of her family's summer vacation plans at the March 4, 2010 meeting, and Plaintiff declined summer services for C.S in a letter to the CSE, dated June 25, 2010. IHO Op. at 12; Tr. 515; R. Ex. V.

II. C.S.'s Identified Placement Class and Plaintiff's Unilateral Placement at CCA

In the June 25, 2010 letter, Plaintiff expressed concern about the appropriateness of P373K following her visit to the school on June 18, 2010. R. Ex. V. She had met with the school's guidance counselor, Sharon Williams, but Plaintiff was neither shown any classes nor given specific information about the type of class C.S. would attend and the related services he would receive. Tr. 489-90; R. Ex. V. Because the DOE would automatically enroll C.S. in the recommended placement unless it received a timely response to the FNR, Plaintiff explained in the letter that she would reserve her decision to challenge the placement until after her second visit to the school on July 13, 2010, "the earliest date [she] could get for the appointment." R. Ex. V.

On July 13, 2010, Plaintiff returned to P373K and again met with Sharon Williams. Tr. 491. Williams showed Plaintiff a 3:1:3 class for autistic students, informing her that no otherclass was available for viewing. Tr. 492; R. Ex. W. According to Plaintiff, a paraprofessional told her that most students at P373K were not receiving their required services. Tr. 495. By letter to the CSE dated July 20, 2010, Plaintiff reiterated her concerns about P373K, noting that the class she was shown had an inappropriate staffing ratio and the students she had seen were significantly more autistic than C.S. R. Ex. W. Plaintiff's letter also indicated that she had...