Z.C. v. N.Y.C. Dep't of Educ., 15–CV–3622 (DAB)

222 F.Supp.3d 326

Z.C., individually and on behalf of his minor child E.C., Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, New York City Board of Education, and Carmen Farina, in her official capacity as Chancellor of the New York City Department of Education, Defendants.

15–CV–3622 (DAB)

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

Signed November 28, 2016

David Lender, Deborah Jane Cooper, Jared R. Friedmann, Irisa Chen, Weil, Gotshal & Manges LLP, Rebecca Caren Shore, Advocates for Children of New York, Inc., New York, NY, for Plaintiffs.

Neil Anthony Giovanatti, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM AND ORDER

DEBORAH A. BATTS, United States District Judge.

Plaintiff Z.C., individually and on behalf of his minor child E.C. (collectively, "Plaintiff"), filed this action against New York City Department of Education, New York City Board of Education, and Carmen Farina, in her official capacity as Chancellor of the New York City Department of Education (collectively, "DOE" or "Defendants"), on May 8, 2015, pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff seeks reversal of an administrative decision of the State Review Officer ("SRO"), which denied private school tuition reimbursement for E.C. Both Parties now move for summary judgment. For the reasons stated herein, Plaintiff's Motion for Summary Judgment is DENIED and Defendants' Motion for Summary Judgment is GRANTED.

I. BACKGROUND

A. Legal Framework

Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A), (B). States that offer a free appropriate public education ("FAPE") to all children with disabilities are eligible for federal funding under the IDEA. 20 U.S.C. § 1412(a)(1)(A). For a state to receive funding, it must provide each disabled child with an Individualized Educational Program ("IEP"), a "written statement that ‘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.’ " D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ. , 465 F.3d 503, 507–08 (2d Cir. 2006) (quoting Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ). The IEP must offer special education and related services commensurate with each child's need and be "reasonably calculated to enable the child to receive educational benefits." Gagliardo v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 107 (2d Cir. 2007) (citation omitted).

New York law charges local Committees on Special Education ("CSEs") with the responsibility of formulating IEPs. N.Y. Educ. Law § 4402(1)(b)(1) ; R.E. v. N.Y.C. Dep't of Educ. , 694 F.3d 167, 175 (2d Cir. 2012). Each CSE is comprised of the child's parent(s) or guardian(s), the child's regular education teacher, the child's special education teacher, and a school psychologist, among other individuals. N.Y. Educ. Law § 4402(1)(b)(1)(a). "In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Gagliardo , 489 F.3d at 107–08 (citing N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 8, § 200.1(ww)(3)(i) ).

Parents who believe that the state has failed to offer their children a FAPE may file a due process complaint that challenges the adequacy of the IEP. R.E. , 694 F.3d at 175. A hearing is then held before an Impartial Hearing Officer ("IHO"). N.Y. Educ. Law § 4404(1). At the IHO hearing, the school district bears the burden of proving the adequacy of the proposed IEP and the parent seeking tuition reimbursement for an alternative placement bears the burden of proving that the placement is appropriate. N.Y. Educ. Law § 4404(1)(c) ; accord M.H. v. N.Y.C. Dep't of Educ. , 685 F.3d 217, 224–25 (2d Cir. 2012). The IHO's decision may be appealed to a State Review Officer ("SRO"), see 20 U.S.C. § 1415(g) ; N.Y. Educ. Law § 4404(2), whose decision may be further challenged in state or federal court. 20 U.S.C. § 1415(i)(2)(A) ; N.Y. Educ. Law § 4404(3)(a).

A parent opposed to his or her child's IEP may also, at his or her own risk, unilaterally place the child in a private school and seek retroactive tuition reimbursement. 20 U.S.C. § 1412(a)(10)(C)(ii) ; Gagliardo , 489 F.3d at 111. The reimbursement covers "expenses that [the school district] should have paid all along and would have borne in the first instance had it developed a proper IEP." T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist. , 554 F.3d 247, 252 (2d Cir. 2009) (citation omitted). The present case comes to the Court following a unilateral placement by Plaintiff after both IHO and SRO decisions found that the DOE offered E.C. a FAPE for the 2013–2014 school year.

B. Factual Background

1. E.C.'s Educational and Medical History

Plaintiff is the parent of E.C., a seven-year-old boy diagnosed with Pervasive Neurodevelopmental Disorder, Not Otherwise Specified ("PDD") on the autism spectrum. (Administrative Record "AR" 1094.) The DOE has recognized him as a student with a disability since 2011, and classified him specifically as a student with autism. (Id. ) E.C.'s condition impacts his ability to self-regulate across a wide range of emotions. (AR 959.) When E.C. becomes dysregulated, he may act out by shouting, throwing objects, banging his head, running out of the room, or withdrawing from interactions. (AR 668–69; 822; 959.) E.C.'s condition also affects his ability to stay focused and engaged for long periods of time. (IEP 4; AR 1052.) E.C. generally makes 3–5 word utterances, and will only speak in full sentences when motivated. (IEP 1; AR 1049.) In addition, E.C. often requires adult support to initiate and sustain peer and familial interactions. (AR 779; IEP 2; AR 1050.)

Ever since kindergarten, E.C. has attended the Rebecca School, a private school. (AR 839.) During the 2012–2013 school year, E.C. was in a classroom at the Rebecca School with eight students, three paraprofessionals and one teacher. (AR 939; 953.)

2. The 2013–2014 IEP

The DOE convened a CSE meeting on April 11, 2013, to create an IEP for E.C. for the 2013–2014 school year. (AR 1094.) Present at the meeting were: (1) Z.C.; (2) E.C.'s teacher at the Rebecca School; (3) a Rebecca School social worker; (4) a DOE special education teacher; (5) a DOE School Psychologist and District Representative; and (6) a parent member. Id.

At the meeting, the CSE considered input from the participants and a progress report from the Rebecca School. The CSE also considered Z.C.'s oral overview of the results of a private neuropsychological evaluation of E.C. that he had obtained. (AR 349–50, 769.) This evaluation recommended that E.C. "remain in a small, structured specialized education setting that has a therapeutic component to address his emotional, behavioral and social needs." (AR 990.) None of the DOE participants at the meeting had met with E.C. or observed him before creating the IEP. (AR 369.)

The DOE recommended placing E.C. in a 6:1:1 classroom, with six students, one teacher, and one paraprofessional. (AR 599.) E.C.'s teacher expressed concern at the meeting that this placement might not provide enough adult support for E.C., who she believed needed at least one adult present to co-regulate. Id. E.C.'s teacher instead recommended placement in a 2:1 classroom. (AR 600–01.)

After the meeting, the CSE team developed an IEP for E.C. that recommended placement in a 6:1:1 special education class for a 12–month school year, set to begin on July 8, 2013. (IEP 9; AR 1057.) The IEP also recommended that E.C. be provided with a number of therapeutic services throughout the week, including speech and language therapy three times individually and twice in a small group, occupational therapy twice individually and once in a small group, counseling twice individually, and physical therapy twice individually. (Id. ) Finally, the IEP recommended that E.C. have access to various sensory supports, including a sensory gym, brushing and squeezing techniques, and sensory equipment such as Foofs and foam steps. (AR 1052–54.)

3. Unilateral Placement in Rebecca School

Under the DOE's recommended timeline, it was required to extend a placement offer to Plaintiff by June 15, 2013, which it failed to do. (Chen Decl. Ex. A.)¹ On June 17, 2013, Plaintiff, through his attorney, sent a letter to the DOE stating that he intended to place E.C. in the Rebecca School for the 2013–2014 school year, but that he would consider any belated placement offer from the DOE. (AR 910.) On June 19, Plaintiff received two separate and successive Final Notices of Recommendation ("FNRs") from the DOE, the first recommending placement in the Rebecca School, and the second recommending a different placement in P.S. 138. (AR 790.)

Plaintiff visited P.S. 138 on June 25, 2013. (AR 1095.) While there, he met with the Assistant Principal, the Unit Coordinator ("UC"), and an occupational therapist ("OT"), and took a tour of two 6:1:1 classrooms. (AR 794–95; 809.) The classrooms Plaintiff visited were arranged with one horseshoe table for group work and a row of independent workstations, each with a desk and a divider. (AR 496.) Plaintiff noticed that the walls had a lot of potentially distracting material posted on them, and described the classroom's physical layout as "very tight." (AR 796–97.) Although the classroom had what the UC referred to as a "sensory corner," it appeared to Plaintiff to be no more than two bookshelves with a cardboard cover. (AR 798.)

Plaintiff...