Opinion
10 Civ. 1041 (PKC)
02-15-2011
S.H. and B.P., individually, and on behalf of S.H., a minor, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
MEMORANDUM AND ORDER
:
Plaintiffs S.H. and B.P. are the parents of plaintiff S.H., who has been diagnosed with autism. In the 2008-09 school year, they placed the then-five-year-old S.H. in the Rebecca School, a private, for-profit educational institution, and sought reimbursement of educational expenses from the New York City Department of Education (the "DOE"). They claimed that their son has been denied a free and appropriate public education ("FAPE") and pursued state administrative remedies under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. On behalf of themselves and S.H., the parents have brought this action pursuant to IDEA, seeking review of a decision by the State Review Officer (the "SRO") that denied them all relief.
Except where expressly noted, further references to S.H. are to the child and not the parent.
Based upon the evidence developed at the state administrative proceeding, this Court concludes that DOE has proven that its individualized education program for S.H. was appropriate and, therefore, the parents are not entitled to tuition reimbursement. Summary judgment is therefore granted to the defendant.
Statutory Background
Congress enacted 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). A FAPE "must include 'special education and related services' tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting 20 U.S.C. § 1401(a)(18) and Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Co. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). Such services must be administered according to an Individualized Education Program ("IEP"), which includes "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 368 (1985). In New York, IEPs are developed by local Committees on Special Education ("CSE"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak, 142 F.3d at 123 (citations omitted).
"IDEA frequently has been described as a model of 'cooperative federalism,'" and it requires states to satisfy minimum educational standards while permitting them "to guarantee a higher level of entitlement to disabled students." Bay Shore Union Free School Dist. v. Kain, 485 F.3d 730, 733-34 (2d Cir. 2007) (quoting Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005)).
If the school district fails to provide a free appropriate public education to a child with disabilities, the child's parents may, at their own financial risk, remove the child from the improper placement and enroll the child in an appropriate private school; the parents may then seek retroactive reimbursement for the cost of the private school from the state. See M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000).
Under New York law, parents seeking reimbursement for a private placement may request a hearing before an Impartial Hearing Officer ("IHO"). N.Y. Educ. Law § 4404(1). The IHO's decision may be appealed by either the district or the parents to the SRO, N.Y. Educ. Law § 4404(2), and the SRO's decision may be challenged in either state or federal court, N.Y. Educ. Law § 4404(3)(a). For the parents of a disabled child to prevail in seeking reimbursement of expenses incurred at a private school, the Court must find that (1) the IEP was inadequate to afford the child a FAPE, and (2) that the services of the private school were appropriate to the child's needs. Walczak, 142 F.3d at 129 (citing Burlington, 471 U.S. at 370); see also Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993). The school district has the burden of proving that the IEP was appropriate. See Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). The parents bear the burden of production and persuasion on whether the private educational placement was appropriate. Id.; N.Y. Educ. Law § 4404(1)(c). "[B]ecause the authority to grant reimbursement is discretionary, 'equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.'" Frank G., 459 F.3d at 364-645 (2d Cir. 2006) (quoting Burlington, 471 U.S. at 374) (alteration in original).
The New York statute alters the burden of proof which would otherwise remain on the parents. See Schaffer, 546 U.S. at 52.
Here, the IHO presided at a four-day hearing and issued a decision and order in favor of the parents directing that $10,000 of educational expenses be reimbursed to the parents and an additional $64,667 be paid to the Rebecca School. In a written opinion, the SRO "annulled" the decision of the IHO and found in favor of the DOE. Thereafter, the parents commenced this action.
Standard of Review
IDEA actions generally are resolved by summary judgment. See, e.g., Thies v. New York City Bd. of Educ., No. 07 Civ. 2000 (RMB), 2008 WL 344728, at *2 (S.D.N.Y. Feb. 4, 2008); J.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 394 (S.D.N.Y. 2004). The parties have cross-moved for summary judgment.
"[T]he role of the federal courts in reviewing state educational decisions under the IDEA is 'circumscribed.'" Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (quoting Muller v. Comm. on Special Educ., 145 F.3d 95, 101 (2d Cir. 1998)). When reviewing IDEA petitions, district courts must engage in an independent review of the administrative record and make a determination based on the "preponderance of the evidence developed at the administrative proceedings and any further evidence presented by the parties." Walczak, 142 F.3d at 122-23 (citing 20 U.S.C. § 1415(e)(2)); see also Gagliardo, 489 F.3d at 112 (federal courts review administrative proceedings under a preponderance of the evidence standard). The district court must examine the record for "'objective evidence'" that indicates whether the child is "'likely to make progress or regress'" in the parent's private placement. Frank G., 459 F.3d at 364 (quoting Walczak, 142 F.3d at 130). "However, this assessment 'is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of school authorities which they review.'" M.S., 231 F.3d at 102 (quoting Rowley, 458 U.S. at 206). To the contrary, federal courts are required to give "'due weight'" to state administrative proceedings under the IDEA, "mindful that the judiciary generally 'lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Id. (alteration in original; quoting Walczak, 142 F.3d at 129); see also Frank G., 459 F.3d at 367. "Deference is particularly appropriate when, as here, the state hearing officers' review has been thorough and careful." Walczak, 142 F.3d at 129.
The Development of the IEP for S.H.
In February and March of 2008, Marlene Green, a School Psychologist conducted a "psycho-educational" reevaluation of S.H. The DOE conducts a "turning 5" review process for a child with disabilities at or about the age of 5 years old. In a written report (IHO Ex. 3.), Ms. Green noted that on the Childhood Autism Scale, which rates 15 different behaviors, S.H. scored a 46.5 placing him in the severely autistic range. She was unable to administer a Full Scale IQ evaluation because the child was unable to sustain attention and follow direction. She applied the Vineland II Adaptive Behavior Scales and noted that he was able to name at least ten objects and three major body parts and used first names of siblings. He recognized ten letters of the alphabet and was able to say at least 50 words. She evaluated his daily living skills, socialization, fine and gross motor skills. Ms. Green interviewed the classroom teacher and behavioral management paraprofessional, who described the progress that S.H. had made over the past year in a pre-Kindergarten program with twelve students, one teacher and a one-to-one paraprofessional (12:1:1). (IHO Ex. 10.) Ms. Green observed S.H. in the classroom setting and made a detailed, written report of her observations. (IHO Ex. 5.)
Separately, a school social worker, Mercedes Soler, interviewed the parents and wrote a report, expressing the parent's view of their son's current school performance, indicating their belief that he had benefited a great deal from the special education services and expressing satisfaction with those services. (IHO Ex. 4.) Robert Gabelman, M.S., a speech-language pathologist, evaluated S.H. He recommended that he continue to receive individual speech language therapy twice a week for thirty minutes. (IHO Exs. 6 & 7.) Dana Kucharsky, a licensed occupational therapist, evaluated S.H. and recommended that he continue to receive occupational therapy for fine and gross motor skills, visual perception, sensory processing and activities of daily life. (IHO Ex. 8.) Osvaldo Trigo, M.D., conducted a medical examination of S.H. and recommended occupational, physical and speech therapy on an "as needed" basis. (IHO Ex. 11.)
The parents of SH were invited to attend a meeting of the district's CSE to discuss an IEP for S.H. S.H. and B.H., S.H.'s parents, attended the CSE meeting, together with a District Representative, Ms. Green (the school psychologist), Ms. Soler (the school social worker), and Carolina Jukubiec (the special education teacher). (IHO Ex. 1-2.) S.H.'s father declined the offer to have another parent attend as a member of the CSE. (IHO Ex. 14.)
The CSE developed an IEP for S.H. at the April 16 meeting for a one-year period beginning September 2008. The IEP recommended that S.H. be placed in a special class in a specialized school with a staffing ratio of 6:1:1, meaning six children with one teacher and a one-to-one paraprofessional assigned to S.H. (IHO Ex. 1 at 1.) It further recommended that he receive door-to-door transportation. (Id.) It also recommended that he receive one-to-one occupational therapy, three times a week for 30 minutes and one-to-one speech therapy, twice a week for 30 minutes. (Id. at 12.) The IEP reiterated much of the information in the reports of the evaluators who had observed S.H., and whose conclusions are summarized above. The IEP sets forth a Behavior Intervention Plan for S.H. (Id. at 13.)
There was a second IEP developed on May 28, 2008. The parties agree that the May 28 IEP applied to programs for S.H. for July and August of 2008. (Verified Petition to SRO and Answer thereto ¶ 6.)
On June 11, 2008, the parents were sent a "Final Notice of Recommended Change of Program/Service Category" (the "FNR") confirming the recommended program of special class in a specialized school with a 6:1:1 ratio and individualized speech and occupational services. (IHO Ex. 2.) On June 24, 2008, the father of S.H. rejected the placement identified in the FNR because, according to the parent, there was no 6:1:1 program at the designated school. (IHO Ex. V.) In September 2008, the parents placed S.H. at the Rebecca School.
Discussion
To prevail, the DOE must establish that: (1) it complied with the procedural requirements of IDEA, and (2) the IEP was "'reasonably calculated' to confer 'educational benefits.'" M.S., 231 F.3d at 102 (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)). As part of the procedural inquiry, the IEP should state: "(1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." M.S., 231 F.3d at 102-03 (quoting Walczak, 142 F.3d at 122; citing 20 U.S.C. § 1401(a)(20) (1994)).
"[I]t does not follow that every procedural error in the development of an IEP renders that IEP legally inadequate under the IDEA." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); see also A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009) (failure to perform a functional behavior assessment did not render IEP procedurally defective). If the programs were both appropriate and available and there has been no prejudice to the parents or child, then a procedural defect in an IEP will not foreclose a finding that the student was offered a FAPE. See Grim, 346 F.3d at 381-82.
An IEP must include "a statement of measurable annual goals, including academic and functional goals, designed to meet the child's needs that result from the child's disability . . . ." 20 U.S.C. § 1414(d)(1)(A)(i)(II)(aa). The IEP, indeed, did set annual occupational therapy and speech goals for S.H. and a series of short term objectives. (IHO Ex. 1 at 6-9.) The parents do not challenge the adequacy of these goals or objectives but claim that there should have been separate academic and social/emotional goals. While the phrase "occupational therapy" sounds odd in relation to a five-year-old boy, it was, in reality, a program to teach him life skills. Together with the goals and short-term objectives for speech therapy, the SRO could reasonably conclude that the goals and objectives for occupational therapy were foundational and more than adequate to meet the statutory criteria. The SRO noted that the classroom observations and parent interview indicated that S.H.'s skills in decoding, reading comprehension, listening comprehension, writing computation and problem solving were at grade level, and thus annual goals and short-term objectives for these skills were not required. (SRO 17.) They were not, in the words of the statute "needs that result from the child's disability. . . ." 20 U.S.C. § 1414(d)(1)(A)(i)(II)(aa). The SRO correctly noted that the "social/emotional" goals were adequately addressed in the behavioral intervention plan, which addressed behaviors that interfere with learning and his difficulties expressing himself and initiating interaction with others. (SRO 13.) The behavioral plan set forth expected behavior changes and strategies to foster those changes. In context, this was sufficient to address social/emotional goals. (Id.)
The substance of the IEP, fairly read in its entirety, must satisfy the statutory and regulatory criteria. A school district need not incant statutory language or use magic words in order for an IEP to satisfy the statute. Here, fairly read in its entirety, the IEP adequately set forth annual goals and short term objectives for S.H.
See Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007) (Report and Recommendation, as adopted) ("[T]he failure of the 2005-06 IEP to address S.P.'s tendency to become distracted as a 'goal' did not deprive S.P. of an educational opportunity, rendering the 2005-06 IEP procedurally inadequate.").
Apart from the substance of the IEP, the parents assert that that S.H. was never offered a placement in a school that satisfied the requirements of the IEP. The text of the FNR identified the school where placement was offered as "P.S. 120 Carlos Tapia" with the address of "18 Beaver Street, Brooklyn, NY 11206." It is undisputed that a 6:1:1 program for students with autism is offered by the DOE at 18 Beaver Street, but that the program is not part of P.S. 120. P.S. 120 is not, itself, a building, but a school located at 18 Beaver Street, and it offers no such program. The program for autistic children is a component of P.S. 368 which, at the time, was housed in the same building. Organizationally within the DOE, P.S. 368 at 18 Beaver Street is in District 75 and P.S. 120 in the same building is in District 13. The IHO placed much reliance on this circumstance. As the IHO wrote, ". . . the parents were not formally offered this site [P.S. 368] by the NYCDOE and therefore they were not in a position to accept or reject this site." (IHO at 16.)
The DOE has demonstrated on this record that the error was inconsequential. In July 2008, the parents of S.H. went to P.S. 120 and met with the unit coordinator of P.S. 368, who gave the parents a tour of P.S. 368; indeed, they met with the teacher of the 6:1:1 Kindergarten class in P.S. 368. (Verified Petition to SRO and Answer thereto at ¶ 9.) A reasonable inference from the evidence is that the parents would not have visited the P.S. 368 program if they had not believed that S.H. had been offered a placement there and that the listing of P.S. 120 which had no such program was a mistake. From the surrounding circumstances, the parents knew or should have known that S.H. had been offered a placement in the 6:1:1 program for autistic children at 18 Beaver Street.
The parents alternatively argue that, even if P.S. 368 was intended, it is not a specialized school because it shared a cafeteria with P.S. 120. To qualify as a FAPE, the specialized school need not be housed in a separate building. "'Educational placement' refers to the general educational program - such as the classes, individualized attention and additional services a child will receive - rather than the 'bricks and mortar' of the specific school." T.Y. v. New York City Dept. of Educ., 584 F.3d 412, 419 (2d Cir. 2009).
Indeed, Laverne Peter, a unit coordinator for the special education programs at 18 Beaver Street, testified that she escorted the parents on their July 2008 visit. (7/23/09 Tr. 297-99.) She testified that the parents told her that their son had been placed at that school. (Id. at 298) She showed the parents a 6:1:1 kindergarten class and introduced them to the classroom teacher. (Id. Tr. 298-99.) Ms. Peter testified that the school was in a position to place S.H. for September 2008 with the services dictated by the IEP. (Id. 299-300.)
The DOE has proven by a preponderance of the evidence that S.H. was offered a placement at the program at 18 Beaver Street, despite the conceded use of an erroneous designation in the FNR.
At the hearing before the IHO, Kaydeon Munn-Andrade, a special education alternative assessment teacher at P.S. 368, testified on behalf of the DOE. She has a certification in grades one through six as a special education teacher. She was employed at the 18 Beaver Street facility, although she was not yet employed at that facility at the time of the parents' site visit in July 2008. (6/9/09 Tr. 72.) As of September 2008, she taught a class with five students, ages 5 through 8, with autism (although the class could accommodate up to six) and each student was assigned their own paraprofessional. (Id..) Four of the students were high functioning and one was low functioning. (Id. 75-76.) Among other tools utilized with the students was a picture exchange communication system, utilizing pictures or symbols to foster language development. (Id. 77.) Once a week the teacher met with a speech therapist to review lesson plans and develop activities to meet the students' goals. (Id. 80.) The teacher testified as to the techniques she used to promote social interaction and described a student's typical day. (Id. 81-86.) She described a multi-sensory approach to teaching and the problems of a student with a sensitivity to, for example, sound. (Id. 87-89.) The teacher explained how activities of daily life issues were taught and addressed. (Id. 90-91.) Ms. Munn-Andrade reviewed the IEP and expressed the opinion that S.H. would have fit in with the other five students in her class in September 2008. (Id. 91-92.) She testified with specificity how she would have achieved the short-term objectives and long term goals set for S.H. (Id. 97-104.) She testified extensively to how she would have implemented a behavioral intervention plan. (Id. 105-10.) While her testimony covers a period after the development of the IEP and the issuance of the FNR, it bolsters the conclusion that the IEP developed for S.H. was realistic and could have been implemented.
Rebecca School
The parents placed S.H. at the Rebecca School in a 6:1:1 program. The DOE does not challenge whether the program at the Rebecca School was appropriate because, in the DOE's view, it "was similar to that recommended by the DOE." (Verified Petition to SRO ¶ 56.) However, did challenge before the IHO, the SRO and this Court whether reimbursement to the Rebecca School could ever be appropriate because it is a for-profit institution. The for-profit status of the institution was not disputed by its program director. (Verified Petition to SRO and Answer thereto ¶ 31.) The DOE argues that tuition reimbursement is only permitted for a placement at "a private preschool, elementary or secondary school" and such a school is defined in the statutes and implementing regulations as a "nonprofit institutional day or residential school." 20 U.S.C. §§ 1412(a)(10)(C)(ii), 1401(6) & (27); 34 C.F.R. §§ 300.148(c), 300.13, 300.36.
Because this Court has concluded that S.H. was offered a free and appropriate public education for the school year beginning in September 2008 and the educational program was reasonably calculated to provide meaningful educational benefits, there is no need to address the issue of whether reimbursement of tuition to a for-profit institution such as the Rebecca School is permissible. See, e.g., M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000). The SRO declined to reach the issue and, without the benefit of the SRO's views, this Court declines to as well.
CONCLUSION
The SRO's review, reflected in an 18-page single-space decision, was thorough and careful, and is entitled to deference. The DOE has sustained its burden of demonstrating that it offered S.H. a FAPE, pursuant to a procedurally and substantively appropriate IEP. Having considered all other arguments advanced by the parents and find them to be without substance, this Court grants summary judgment in favor of defendants, and the complaint is dismissed.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
February 15, 2011