W.M. ex rel. V.M. v. Bd. of Educ. of the Harrison Cent. Sch. Dist.

W.M. & D.M. on behalf of V.M., Plaintiffs, v. Board of Education of the Harrison Central School District, Defendant.

No. 16-cv-8732 (TPG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 6, 2017

OPINION

Before the court are cross-motions for summary judgment in this action arising under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et. seq. (2012). Plaintiffs W.M. and D.M. ("Parents") brought the instant case on behalf of their son V.M. ("V"). Defendant is the Board of Education of the Harrison Central School District ("District"). Plaintiffs seek reversal of the decision rendered by the New York State Reviewing Officer ("SRO"), which affirmed the decision of the Impartial Hearing Officer ("IHO") that the District provided V a Free and Appropriate Public Education ("FAPE"), and denied Parents tuition reimbursement for V's alternative placement at a private school during the 2012-13 school year. For the reasons provided below, the court agrees with the SRO and the IHO that the District did not deny V a FAPE and further agrees that Parents are not entitled to reimbursement. Accordingly, the court denies Parents' motion for summary judgment and grants the District's motion for summary judgment.

BACKGROUND

I. Legal Framework

Under the IDEA, states receiving federal education funding are required to provide all children with disabilities a Free and Appropriate Public Education ("FAPE"). 20 U.S.C. § 1412(a)(1)(A); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To provide a disabled child with a FAPE, the state must provide "special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A); see also J.S. v. N.Y.C. Dep't of Educ., 104 F. Supp. 3d 392, 400 (S.D.N.Y. 2015). The Individualized Educational Plan ("IEP") is the centerpiece of and "[t]he primary vehicle for implementing these congressional goals." Honig v. Doe, 484 U.S. 305, 311 (1988).

Under New York law, an IEP is developed during meetings of the local Committee on Special Education ("CSE"), comprised of, among others, the child's Parents, the child's teacher, a school psychologist, a qualified district representative " 'knowledgeable about the general curriculum and the availability of resources of the school district,' and an additional parent representative." J.S., 104 F. Supp. 3d at 400 (quoting N.Y. Educ. Law § 4402(1)(b)(1)(a) (McKinney 2017)). After examining the child's level of achievement and specific needs, the CSE must determine an appropriate educational program, set forth in an IEP, which is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ., 458 U.S. 176, 207 (1982); see also R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012).

If a parent believes that the resulting IEP does not comply with the IDEA, the parent has the option to file a " 'due process complaint' (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency." R.E., 694 F.3d at 175. A hearing is then held before an Impartial Hearing Officer ("IHO"), during which the school district bears the burden of proving the adequacy of the proposed educational programming. N.Y. Educ. Law § 4404(1); see also F.O. v. N.Y.C. Dep't of Educ., 976 F. Supp. 2d 499, 506 (S.D.N.Y. 2013). Such claims are governed by a two-year statute of limitations, which begins to accrue on the date that a plaintiff "knew or should have known about the alleged action that forms the basis of the complaint." 20 U.S.C. § 1415(b); see also Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 114 (2d Cir. 2008). Claims filed after the two-year limitations period are time-barred, unless "the parent was prevented from requesting the hearing by the local educational agency's misrepresentations, or because the agency withheld information it was required to provide." M.G. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 296, 304 (S.D.N.Y. 2014); see also Somoza, 538 F.3d at 115.

If a parent elects to "unilaterally place the child in a private school and seek retroactive tuition reimbursement," she does so at her own risk and bears the burden of proving that the placement was appropriate during the IHO hearing. F.O., 976 F. Supp. 2d at 506 (citing N.Y. Educ. Law § 4404(1)(c)). Under the Burlington/ Carter reimbursement test, courts will require the school district to pay for the private school tuition only if: "(1) the program recommended by the IEP was inadequate or inappropriate; (2) the alternative placement the Parents chose was appropriate; and (3) the equitable factors weigh in favor of reimbursement." J.S., 104 F. Supp. 3d at 400-01.

Either party may appeal to a State Review Officer ("SRO") if dissatisfied with the IHO's ruling. A.M. ex rel. Y.N. v. N.Y.C. Dep't of Educ., 964 F. Supp. 2d 270, 275 (S.D.N.Y. 2013). After exhausting the administrative remedies available through these processes, either party may then "bring a civil action in state or federal court to review the SRO's decision." Id. Importantly, "[f]ailure to exhaust the administrative remedies deprives the court of subject matter jurisdiction." Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008). For this reason, "absent the district's or IHO's consent to a timely amendment," only issues that were raised in a plaintiff's due process complaint may be considered by the district court. Id. at 283 (quoting M.R. v. Orangetown Cent. Sch. Dist., No. 10 Civ. 1800 (CS), 2011 WL 6307563, at *13 (S.D.N.Y. Dec. 16, 2011)).

When a parent challenges a district's decision under the IDEA in federal court, "the court 'conducts a review of both the procedural and substantive adequacy of the underlying decision.' " Y.N., 964 F. Supp. at 278 (quoting B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F. Supp. 2d 130, 134 (E.D.N.Y. 2011)). Parents are automatically entitled to reimbursement if the court determines the IEP was substantively inadequate. Id. Procedural violations, however, warrant reimbursement only if, taken together, they "impeded the child's right to a [FAPE], significantly impeded the parents' opportunity to participate in the decisionmaking process, or caused a deprivation of educational benefits." R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (internal quotations omitted) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii); A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009)).

The IDEA provides aggrieved parties who wish to bring a civil action in federal court "90 days from the date of the decision of the hearing officer to bring such an action." 20 U.S.C. § 1415(i)(2)(B). However, if state law provides an "explicit time limitation for bringing such action," the state limitations period applies. Id. New York provides such a limitation in New York Education Law § 4404(3)(a), which requires aggrieved parties to commence such proceedings "within four months after the determination to be reviewed becomes final and binding on the parties."

II. Factual Background

V.M. ("V") was born in Moldova in 2002. ECF No. 1, at 1. V and his sister were being raised in an orphanage where V received no formal education and failed to develop proficiency in any language. ECF No. 27, at 1. V has been diagnosed with Fetal Alcohol Effects, Attention Deficit Hyperactivity Disorder, temper dysregulation issues, Mood Disorder, Reactive Attachment Disorder, and Developmental Coordination Disorder. ECF No. 1, at 1. In 2008, W.M. and D.M. ("Parents") adopted V and his sister. ECF No. 1, at 1. When V arrived in the United States, he did not speak English and had trouble communicating with Parents. ECF No. 27, at 2. V also lost any native language he had acquired due to language attrition. ECF No. 24, at 3. Parents reside with their children in the Harrison Central School District ("District"). ECF No. 1, at 1.

A. 2008-09 School Year - Kindergarten

V was enrolled as a student in a District general education kindergarten class for the 2008-09 school year. ECF No. 27, at 1. On June 19, 2009, after Parents referred V to the CSE, the District found V ineligible for special education and related services. ECF No. 24, at 3; SRO Decision, at 2. Finding that the information available was insufficient to properly assess V's needs, the CSE adjourned the matter and ordered a neuropsychological evaluation. ECF No. 27, at 3. The CSE would then review the results and re-convene to "make a more informed determination as to eligibility." Dist. Ex. 1, at 2; Parents Ex. JJJ, at 6; ECF No. 27, at 3.

School psychologist, Dr. Boris Gindis, performed the requested evaluation over the course of two days on August 20 and August 21, 2009. See Parents Ex. QQQ (Developmental, Neuropsychological and Educational Assessment Report). After extensive discussion regarding V's developmental history, behavioral issues, academic skills, and general cognitive abilities, Dr. Gindis found that "[t]he most appropriate and least restrictive environment placement for [V] in September 2009 [was] an inclusive (integrated classroom)." Parents Ex. QQQ, at 3. Otherwise, "a regular education first grade with a package of supportive services, classroom accommodations, and behavior modification programming could serve as a viable equivalent of an 'inclusion' setting." Parents Ex. QQQ, at 3. Dr. Gindis noted that with a support and remedial system in place, V's "level of mastery or pre-academic and emerging literacy skills" would "allow him to benefit from a first grade level of mainstream instruction." Parents Ex. QQQ, at 3.

B. 2009-10 School Year - First Grade

The CSE re-convened on October 21, 2009 to consider the information generated by Dr. Gindis's report, and deemed V "eligible for and in need of special education services" as a student with an "Other Health Impairment." Parents Ex. JJJ, at 1, 6; SRO...