UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------X DANIELLE G., A MINOR, BY AND | THROUGH HER PARENTS AND NEXT | FRIENDS, ALEXANDER AND LAURA G. | | Plaintiffs, | | NOT FOR PUBLICATION -against- | MEMORANDUM & ORDER | NEW YORK CITY DEPARTMENT OF | 06-CV-2152 (CBA) EDUCATION, JOEL KLEIN, | CHANCELLOR OF NEW YORK CITY | SCHOOLS | | Defendants. | -------------------------------------------------------X AMON, UNITED STATES DISTRICT JUDGE:
Plaintiffs Alexander and Laura G. have brought an action on behalf of their daughter,
Danielle G. (“Danielle”), against the New York City Department of Education, pursuant to the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2). They appeal a
New York State Review Officer’s decision to uphold a determination that Danielle’s 2005
Individualized Education Plan (“IEP”) was reasonably calculated to provide her with a free
appropriate public education. Plaintiffs and defendants have cross-moved for summary
judgment. For the foregoing reasons, the Court grants in part and denies in part plaintiffs’ and
defendants’ motions for summary judgment.
I. Background
Danielle is a student who was diagnosed with Autism Spectrum Disorder in January
2000. Defendant New York City Department of Education (“NYCDOE”) is responsible for the
operation and management of Danielle’s school district. When Danielle turned three years old,
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her school district’s Committee on Preschool Special Education (“CPSE”) recommended 25-27
hours per week of Special Education Itinerant Teacher (“SEIT”) services, five hours per week of
speech therapy, as well as occupational and physical therapy. Six months after the CPSE’s
recommendation, Danielle’s parents enrolled her in a half-day private parochial pre-school
program, where she was accompanied by a SEIT. In October 2001, the CPSE developed an IEP
for the 2001-2002 school year which increased Danielle’s SEIT services to thirty-two hours per
week and continued all other related services on a 12-month basis. This was the last IEP agreed
upon by Danielle’s parents and the school district.
For the 2002-2003 school year, to prepare for Danielle’s transition to kindergarten, the
school district’s Committee on Special Education (“CSE”) developed an IEP that classified her
as an emotionally disturbed child, recommended that she be placed in a collaborative team
teaching class, decreased her speech and physical therapy, and shortened her program from
twelve months to ten months of services. Danielle’s parents requested an impartial hearing to
challenge the CSE’s recommendations. During her parents’ challenge and throughout the 2002-
2003 school year, Danielle continued to receive SEIT and related services, as recommended in
the October 2001 IEP.
The following year, the CSE developed an IEP for the 2003-2004 school year that
reclassified Danielle as autistic, but continued to recommend collaborative team teaching, a
reduction in speech therapy, and a reduction in her program from twelve to ten months of
services. Danielle’s parents again requested an impartial hearing to challenge the
recommendations, which resulted in a stipulated settlement that allowed Danielle to continue
receiving the services as recommended in the 2001 IEP.
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In advance of the 2004-2005 school year, during which Danielle would be starting the
second grade, the CSE recommended for Danielle be provided with collaborative team teaching,
and cessation of SEIT services. The CSE also advised Danielle’s parents that evaluations need
to be performed to assess her current status. Danielle’s parents requested an impartial hearing in
September 2004 to challenge the CSE’s recommendations and to discuss what evaluations were
needed. The impartial hearing held in November 2004 resulted in an agreement to continue the
services from the 2001 IEP and to conduct evaluations of Danielle.
The CSE reconvened on February 18, 2005, with the district representatives, evaluators
including a special education teacher, a social worker, a neuropsychologist, a psychologist, and a
speech and language therapist. Danielle’s mother was present and her SEIT and general
education teacher participated by phone. Danielle’s mother, Mrs. G, claims she was told to wait
a half-hour before she joined the meeting, while the district representatives and evaluators met
without her in a “pre-conference.” At the state hearing below, Mrs. G testified that she felt
everyone understood Danielle’s needs during the CSE meeting but was surprised at the end of
the meeting when the CSE recommended the termination of SEIT services and the
implementation of paraprofessional services. The recommendations contained in the February
18, 2005 IEP (“2005 IEP”), now at issue, included Danielle’s continued classification as a child
with autism; placement in a general education classroom; individual occupational therapy, three
times a week for 30 minutes; individual physical therapy, two times a week for 30 minutes;
individual speech and language therapy two times per week for 30 minutes and once a week in a
group of three-to- one; counseling once a week in a group of three-to-one; and the services of a
full time one-to-one behavior management paraprofessional to provide refocusing and
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redirection throughout the day. These services were based on a 10 month program, rather than
the 12 months of service Danielle had been receiving.
Plaintiffs requested an impartial hearing on March 10, 2005, to challenge the
recommendations. They argued that the development of the IEP was procedurally flawed, and
that its substantive provisions failed to provide Danielle with a “free appropriate public
education” (“FAPE”) as required by IDEA. See 20 U.S.C. § 1412(a)(1)(A).
A. Impartial Hearing Officer’s Decision
Danielle’s hearing took place on a series of six days during May, June, July, and August
of 2005. On September 19, 2005, an Impartial Hearing Officer (“IHO”) issued a decision
finding that the IEP was deficient only with respect to the speech and language therapy
recommendations, and dismissed the other issues plaintiffs raised.
In its decision, the IHO addressed each of the plaintiffs’ contentions. The IHO concluded
that the development of the IEP was consistent with due process, and that although some of
review team convened prior to the beginning of the review, nothing in the record suggested that
they did not consider all the information provided. (See IHO Findings of Fact and Decision at
26.) The IHO also found that the school district had sustained its burden to establish that a full-
time behavior management paraprofessional was appropriate to meet Danielle’s needs, noting
that the record established Danielle functions at or above grade level in academic testing.
Danielle’s organizational, refocusing, and redirecting needs could be adequately addressed by
the paraprofessional, according to the IHO’s findings. (Id. at 27-29.) Additionally, the IHO
determined that a transition plan was unnecessary because the SEIT services already being
provided to Danielle constitute transitional services. (Id. at 27.) The IHO further concluded that
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parental counseling and training were not required to be detailed in the IEP, and that the CSE
was not required to conduct a functional behavioral assessment (“FBA”) of Danielle before
formulating her IEP. (Id. at 29.) The IHO found that the IEP’s provisions for speech and
language therapy were inadequate and ordered additional services to be provided. (Id. at 30.)
B. State Review Officer’s Decision
In October 2005, plaintiffs appealed the IHO’s decision. On February 8, 2006, a State
Review Officer (“SRO”) upheld the IHO’s determination that Danielle’s 2005 IEP provided her
with a FAPE under 20 U.S.C. § 1412(a)(1)(A). The SRO concurred with the findings of the IHO
and found that a full-time behavior management paraprofessional was adequate to meet
Danielle’s needs; transitional services were not necessary because the record supported a finding
that Danielle’s current SEIT had provided her with transitional assistance; an FBA of Danielle
was not necessary based on her ability to refocus and redirect her attention; 12 month extended
services were not warranted because there was no likelihood of substantial regress in the summer
months; the IEP accurately identified Danielle’s needs and established appropriate goals; the IEP
was not required to cover Danielle’s tantrumming behavior; and predetermination of the
recommendations made at the February 18, 2005 CSE review did not occur. (See SRO Decision
at 9-13.)
C. The Instant Case
Plaintiffs filed a timely complaint in this Court on May 9, 2006, appealing the decision of
the SRO. Plaintiffs allege that the school district’s 2005 IEP fails to provide Danielle with a
FAPE, in violation of 20 U.S.C. § 1415(i)(2); 42 U.S.C. § 1983; Article 89 of the New York
Education Law; 42 U.S.C. § 12132 (American with Disabilities Act), and 29 U.S.C. § 794
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(Section 504 of the Rehabilitation Act of 1973). Specifically, they appeal the findings of the
SRO, arguing that (1) the 2005 IEP was predetermined, impermissibly denying Danielle’s
parents an opportunity for meaningful participation; (2) the 2005 IEP was inadequate because it
failed to provide Danielle with SEIT services; (3) the 2005 IEP was required to include a
transition plan for Danielle; (4) the SRO employed the wrong standard in determining whether to
conduct an FBA and ignored evidence suggesting one was appropriate; (5) the 2005 IEP did not
address Danielle’s organizational skills deficits, toileting needs, and tantrumming, and failed to
include methods of measurement, as required by law; (6) the SRO failed to consider evidence
indicating Danielle requires a twelve month program of services and; (7) the 2005 IEP failed to
include parental counseling and training services, and the defendants failed to provide them in
the past. Plaintiffs seek a declaratory judgment reversing the SRO’s decision and holding that
the 2005 IEP deprived Danielle of a FAPE. They also seek an order requiring that defendants
provide an appropriate IEP for Danielle, which would include a transition plan for Danielle to
continue special education services with a gradual reduction in SEIT services and an increase in
paraprofessional services. Plaintiffs also seek a behavioral intervention plan based on an FBA of
Danielle.1
1 Since the filing of reply memoranda on these motions, Danielle has been re- evaluated by her school district’s CSE. Evaluations conducted in April of 2007 indicate that, as previously documented, Danielle is at or above great level in all academic areas and demonstrates high intelligence. She scored extremely low, however, on portions of her an Adaptive Behavior Assessment test.
On May 4, 2007, the CSE proposed a new, 2007 IEP that provides for conditions different than those provided for in the 2005 IEP challenged in the instant case. The 2007 IEP recommends that Danielle continue the services in the February 18, 2005 IEP and added a provision that she be placed in a Collaborative Team Teaching Class, which contains a full time special education teacher. The 2007 IEP also lists organization skills as an area of academic
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II. Statutory Framework and Standard of Review
Under the IDEA, states receiving federal funds are required to provide “all children with
disabilities” a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A). To fulfill
IDEA’s requirements, a school district’s program must provide “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.’” Walczack v. Florida Union Free Sch. Dist.,
142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)).
These services are administered pursuant to an IEP, which a school district must provide
annually. 20 U.S.C. § 1414(d). The IEP is the “‘centerpiece’ of the IDEA’s education delivery
system.” Murphy v. Arlington Cent. Sch. Dist. Bd. of Ed., 297 F.3d 195, 197 (2d Cir. 2002)
(quoting Honig v. Doe, 484 U.S. 305, 311 (1988)); see 20 U.S.C. § 1414(d) (defining and
describing the development, review, and revision of an IEP)). “The IEP, the result of
collaborations between parents, educators, and representatives of the school district, ‘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.’” Id.
New York state has designated responsibility for developing appropriate IEPs to local
CSEs appointed by school districts. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107
(2d Cir. 2007). A CSE is required to consider four factors in developing a child’s IEP: (1)
academic achievement and learning characteristics; (2) social development; (3) physical
need and contains goals for that area. By order dated February 20, 2008 the Court accepted the 2007 IEP and Evaluation into evidence in this case; the Court notes, however, that the relevance of this additional evidence is limited, as the 2005 IEP is at issue in this case.
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development; (4) managerial or behavioral needs. See N.Y. Comp. Codes R. & Regs.
[hereinafter “N.Y.C.C.R.R.”] tit. 8, § 200.1(ww)(3)(i). The CSE must also consider the IDEA’s
strong preference for “mainstreaming” or “educating children with disabilities “[t]o the
maximum extent possible with their non-disabled peers.” 20 U.S.C. § 1412(a)(5); see Gagliardo,
489 F.3d at 108. The statute requires that “special education and related services [to] be
provided in the least restrictive setting consistent with a child’s needs.” Lillbask v. Conn. Dep’t
of Educ., 397 F.3d 77, 81 (2d Cir. 2005).
“IDEA also provides a variety of ‘procedural safeguards with respect to the provision of
free appropriate public education’ by school districts.” Mackey v. Bd. of Educ., 386 F.3d at 160
(quoting 20 U.S.C. § 1415(a)). If a parent disagrees with a school district’s proposed IEP they
may challenge it in an “impartial due process hearing” before an IHO appointed by the board of
education. 20 U.S.C. § 1415(f). The IHO’s decision may be appealed to an SRO. See 20 U.S.C.
§ 1415(g); N.Y. Educ. Law § 4404(2). The SRO’s decision may be challenged in state or federal
court. 20 U.S.C. § 1415(i)(2)(A).
IDEA actions in federal court generally are resolved by summary judgment. See, e.g.,
Thies v. New York City Bd. of Educ., No. 07 Civ. 2000, 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). In assessing whether a proposed IEP is inadequate to afford a child and appropriate
public education, a court must first consider the state’s compliance with the procedures set forth
in IDEA. See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (citing
Walczak v. Florida Union Free Sch. Dist., 142 F.2d 119, 129). Second, a court considers
whether the IEP developed through the IDEA’s procedures is “reasonably calculated to enable
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the child to receive educational benefits. Id.
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 Gagliardo, 489 F.3d at 112
(stating that federal courts must review the administrative proceedings under a preponderance of
the evidence standard). In order for a district court to conduct an independent review, it must
examine the record for “objective evidence” that indicates “whether the child is likely to make
progress or regress under the proposed plan.” Gagliardo, 489 F.3d at 113.
At the same time, the role of the federal courts in reviewing state educational decisions
under IDEA is “circumscribed.” Gagliardo, 489 F.3d at 112 (quoting Muller v. Comm. on
Special Educ., 145 F.3d 95, 101 (2d Cir. 1998)). District court review of state decisions “is by
no means an invitation to the courts to substitute their own notions of sound educational policy
for those of the school authorities which they review.” Rowley, 458 U.S. at 206. Federal courts
reviewing administrative decisions must give “due weight” to the state proceedings below
“mindful that the judiciary generally ‘lacks the specialized knowledge and experience necessary
to resolve persistent and difficult questions of educational policy.’” 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) (citation
omitted); see also Walczak, 142 F.3d at 129 (“Deference is particularly appropriate when . . . the
state hearing officers’ review has been thorough and careful.”). This “due weight” is not
implicated with respect to issues of law, such as “the proper interpretation of the federal statute
and its requirements.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997).
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III. Analysis
Plaintiffs raise one procedural and six substantive challenges to the findings of the SRO
and the adequacy of Danielle’s 2005 IEP. They assert that the 2005 IEP deprives Danielle of a
FAPE in violation of 20 U.S.C. § 1412(a)(1)(A). In response, the defendants contend that
Danielle’s 2005 IEP is procedurally and substantively sound and complies with applicable state
and federal laws. The parties’ arguments are considered below.2
A. Compliance with IDEA’s Procedural Requirements
Plaintiffs first raise a procedural challenge to the adequacy of Danielle’s 2005 IEP,
contending that the result of the review was pre-determined and Danielle’s parents were denied
the opportunity for meaningful participation. The plaintiffs’ claim centers on a “pre-conference”
by defendants’ representatives that took place before the February 18, 2005 CSE meeting.
Danielle’s mother was asked to wait outside for a half-hour before joining the meeting. During
that half-hour, plaintiffs contend that CSE representatives determined their recommendations for
Danielle’s 2005 IEP. To support this claim, plaintiffs point to testimony from Danielle’s speech
therapist indicating that the recommendations were decided at the pre-conference; the CSE’s
recommendation at the end of the meeting to terminate SEIT services and to utilize a
paraprofessional; the comment made to Danielle’s mother by the district’s representatives that
they needed to conduct evaluations on Danielle because her services were so costly; and
allegations that Mrs. G only had limited participation at the meeting.
The SRO held, and defendants respond, that the pre-conference did not prevent CSE
members from considering Danielle’s mother’s input in developing recommendations for
2 The Court notes that review of these issues was made particularly difficult by the City’s failure to cite to the underlying record in its papers.
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Danielle’s IEP. The SRO found that because Mrs. G was present and participated throughout the
discussion of Danielle’s evaluation, she had the opportunity to meaningfully contribute during
the meeting. Danielle’s SEIT and general education teacher were also present during the
discussion by telephone. Additionally, Mrs. G indicated she had been pleased with the CSE’s
knowledge of Danielle’s needs during the meeting, which was why she was surprised by the
committee’s recommendations. The SRO concluded that Mrs. G meaningfully participated in
the development of the 2005 IEP, and the pre-conference did not constitute pre-determination.
Based on a review of the record below and the governing case law in this Circuit, the
Court concludes that the CSE’s pre-conference to discuss Danielle’s case did not deprive
Danielle’s parents of meaningful participation in the formation of her IEP. The IDEA requires
“[a]n opportunity for the parents of a child with a disability to examine all records relating to
such child and to participate in meetings with respect to the identification, evaluation, and
educational placement of the child, and the provision of a free appropriate public education to
such child, and to obtain an independent evaluation of the child.” 20 U.S.C. § 1415(b)(1). The
regulations governing parental participation provide that “[e]ach public agency shall take steps
to ensure that one or both of the parents of a child with a disability are present at each IEP
meeting or are afforded the opportunity to participate.” 34 C.F.R. § 300.345(a). In Cerra v.
Pawling Central School District, 427 F.3d 186 (2d Cir. 2005), the Second Circuit considered
what type of parental participation is required by IDEA Section 1415(b)(1) and its regulations.
In that case, it concluded that a school district fulfilled the IDEA’s procedural obligations
because the parents participated in CSE meetings and were frequently consulted for input about
the proposed plan. The Circuit noted that the relevant inquiry is whether there is “a full
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discussion with the child’s parents, before the child’s IEP is finalized, regarding drafted content
and the child’s needs and the services to be provided to meet those needs.” Id. at 193 (citing 34
C.F.R. § 300, App. A-Notice of Interpretation).
The record does not support a finding that Danielle’s educational needs were pre-
determined. Mrs. G was present for the February 18, 2005 meeting and had the opportunity to
participate meaningfully in the discussions. The record includes testimony from witnesses,
credited by both the IHO and SRO, that Mrs. G did not volunteer information during the IEP
meeting and referenced a need to confer with her lawyer in response to questions. (Tr. 221.)
Although Mrs. G was under no obligation to make any statements during the IEP meeting, her
lack of participation does not suggest that she was denied an opportunity to participate in
Danielle’s IEP formulation.
Plaintiffs rely heavily on testimony from the speech therapist who evaluated Danielle, in
which she stated that the CSE representatives discussed the recommendations they would make
during the pre-conference. Although CSE representatives may have conferred on
recommendations prior to the meeting with Danielle’s mother and teachers, the transcript does
not demonstrate that this pre-conference resulted in unalterable decisions or otherwise hindered
the participation of Danielle’s mother in the IEP formation. The defendants’ speech therapist
testified that the pre-conference discussion did not result in final recommendations, and that
recommendations may have changed based on information shared at the meeting. (Tr. 198-99.)
Other witnesses similarly testified that the discussions at the pre-conference did not result in
final determinations. (See Tr. 223.) Procedural flaws that result in the loss of educational
opportunity, or that seriously infringe the parents’ opportunity to participate in the IEP
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formulation process, result in the denial of a FAPE; given the testimony described above, the
record in this case does not evidence these kinds of procedural deficiencies. See, e.g. A.E. v.
Westport Bd. of Educ., 463 F.Supp. 2d 208, 216 (D. Conn. 2006).
Accordingly, plaintiffs’ procedural claim is dismissed.
B. Substantive Adequacy of IEP
A school district complies with IDEA’s substantive requirements when a student’s IEP is
“reasonably calculated to enable the child to receive educational benefit[s].” Rowley, 458 U.S.
at 207; see also Cerra 427 F.3d at 194. A school need not “provide the optimal level of services,
or even a level that would confer additional benefits; the IDEA requires only that student receive
a “basic floor of opportunity.” Cerra 427 F.3d at 195 (citing Rowley, 458 U.S. at 201; Carlisle
Area Sch. v. Scott P., 62 F.3d 520, 534 (3d Cir. 1995)) . A school district will fulfill its
substantive obligations under the IDEA if the student is likely to make progress, not regress,
under his IEP, and if the IEP affords the student with an opportunity “greater than mere trivial
advancement.” Gagliardo, 489 F.3d at 113 (quoting Walczak, 142 F.3d at 130). The Second
Circuit has noted that, “[b]ecause administrative agencies have special expertise in making
judgments concerning student progress, deference is particularly important when assessing an
IEP’s substantive adequacy.” Cerra, 427 F.3d at 195.
In challenging the substantive adequacy of Danielle’s 2005 IEP, plaintiffs contend that
(1) the IEP failed to provide for needed SEIT services; (2) the IEP impermissibly lacks a
transition plan for Danielle; (3) the record supports a finding that a FBA of Danielle is required;
(4) the IEP did not address and set goals in key areas of deficiency, including organizational
skills, toileting needs, and tantrumming; (5) the SRO failed to consider evidence indicating
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Danielle requires a twelve month program of services and; (6) the IEP failed to include parental
counseling and training services. The Court considers each of plaintiffs’ contentions below.
(1) Specialized Instructional Services
Plaintiffs argue that the 2005 IEP failed to address Danielle’s need for SEIT services by
proposing an end to all SEIT assistance and placing Danielle in a mainstream classroom with the
assistance of a full-time paraprofessional. Plaintiffs argue that the SRO incorrectly concluded a
paraprofessional was sufficient to address Danielle’s needs and further contend that if
paraprofessional services are utilized, those services should be gradually increased under the
supervision of an SEIT. Although the SRO found, and defendants argue, that an SEIT was
unnecessary because Danielle’s current SEIT did not provide her with academic assistance,
plaintiffs contend that testimony in the record from Danielle’s SEIT contradicts this finding.
Defendants also note that educational specialists observing Danielle had concluded that the
services of a paraprofessional would meet her needs.
The New York Department of Education describes the support provided by a special
education teacher as “specially designed and/or supplemental instruction” which may include
“adapting the content being taught or using different instructional methods such as visual aids,
highlighted work sheets, and simplifying directions.” NYCDOE, Continuum of Services at 8.
Behavioral management paraprofessionals, in contrast, may be assigned if a child’s behavior is
dangerous to himself or others and “to help adapt tasks and assignments, and provide
reinforcement and small group instruction.” Id. at 12.
In this case, the Court’s review of the record supports a finding that the services of a
paraprofessional are appropriate to meet Danielle’s needs. The record contains ample testimony,
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credited by the SRO, that Danielle’s primary deficiencies are not her inability to understand
academic concepts but rather her lack of organizational and focusing skills, and the effects those
deficiencies may have on her learning. Danielle’s SEIT, for example, offered extensive
testimony that she assists Danielle with redirection, refocusing, organization, managing her
behaviors and developing social skills. (See Tr. 548, 552-53, 577.) The SEIT notes that
Danielle is bright and performing at grade level, but struggles with social interactions and
organizational skills. (Tr. 561-62.) Testing by the district’s neuropsychologist confirms
Danielle’s high level of intellectual functioning as well as her deficits in her attention, social
skills, and communication. (Def. Exh. 4.) The SEIT specifically stated that socialization was
Danielle’s biggest challenge, and district representatives did not observe the SEIT providing
academic instruction during their visits. (Tr. 79-80; 627.) The district’s social worker
concluded, after observation, that the SEIT primarily provided “refocusing, redirection, and
encouragement to develop social skills.” (Def. Exh. 5.)
District representatives also testified that behavioral management paraprofessionals are
appropriately trained and have the ability to refocus Danielle and help her improve her
behaviors, organizational skills, and social development. According to the testimony of Ellen
Quigley, paraprofessionals are trained in behavior management and are made aware of the needs
of the child before beginning their work. (Tr. 345.) They also meet with supervisors and the
child’s classroom teacher to assess the child’s progress. (Tr. 344-45.)
Plaintiffs object to the SRO’s finding that Danielle does not receive academic assistance
from her SEIT. The Court notes that some evidence in the record indicates that Danielle’s
teachers provided her with academic assistance. Danielle’s general education teacher testified
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that Danielle has a difficult time grasping mathematical concepts, which are compounded by her
lack of focus. (Tr. 883-84.) She additionally testified that Danielle’s SEIT instructed her in
writing, helping her with sentence structure and punctuation. (Tr. 893.) Additionally, Danielle’s
general education teacher testified that the SEIT provided instruction “especially in math.” (See
Tr. 897.) This testimony, however, must be viewed together with the considerable evidence in
the record indicating that Danielle’s primary deficiencies are behavioral, related to her inability
to focus and lack of social and organizational skills. The record, considered in its entirety, does
not support a finding that the district’s decision to provide a full-time behavior management
paraprofessional to Danielle was not reasonably calculated to confer educational benefits.
Plaintiffs’ arguments are persuasive that the ideal program for Danielle includes a slow
transition from full time SEIT services to a supervised behavior management paraprofessional.
However, IDEA, requires that a student receive a “basic floor of opportunity,” not “provide the
optimal level of services, or even a level that would confer additional benefits.” Cerra, 427 F.3d
at 195 (citation omitted). In view of this standard, and the record below, the Court cannot
conclude that the SRO’s decision to uphold the district’s recommendation to change Danielle’s
services from a full time SEIT to a behavior management paraprofessional deprived her of a
“basic floor of opportunity” or was likely to cause her to regress academically. Accordingly, the
Court concludes that the 2005 IEP’s provision for a full-time behavior management
paraprofessional did not deprive Danielle of a FAPE pursuant to 20 U.S.C. § 1412(a)(1)(A).
(2) Transitional Services
Plaintiffs also argue that the school district is required to provide Danielle with
transitional services pursuant to 8 N.Y.C.C.R.R. § 200.13(a)(6), and request that
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paraprofessional services be slowly phased into Danielle’s plan. Section § 200.13(a)(6)
provides: “where a student has been placed in programs containing students with other
disabilities, or in a regular class placement, a special education teacher with a background in
teaching students with autism shall provide transitional support services in order to assure the
student’s special education needs are being met.” Id. The SRO held, that transitional services are
required only when an autistic child is initially placed in the general classroom environment.
Because Danielle has had SEIT services for over three years since her transition, defendants
argue that further services are not required. Plaintiffs contend that 8 N.Y.C.C.R.R. 200.13
should not be interpreted to limit the requirement for transitional services only to the initial
transition into a regular class placement.
The Court is unpersuaded by plaintiffs’ interpretation of N.Y.C.C.R.R. Section 200.13.
Danielle transitioned into a mainstream classroom with the services of an SEIT in kindergarten;
she has remained in mainstream classrooms with SEIT services since that time. The plain
language of Section 200.13 has been satisfied; Danielle was provided with transitional support
services as she was moved into a mainstream classroom. The Court concurs with the findings of
the SRO that “in essence, the child has had a transition component as part of her
recommendations for the past three years.” (SRO Decision at 11.)
(3) Functional Behavioral Assessment
Plaintiffs also contend that defendants’ failure to conduct a functional behavioral
assessment (“FBA”) denied Danielle a FAPE. According to plaintiffs, the SRO employed the
wrong standard in determining whether to conduct an FBA and ignored evidence suggesting one
was appropriate. Plaintiffs argue that because Danielle’s behavior impedes her learning, the
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CSE was required to conduct a FBA pursuant to 8 N.Y.C.C.R.R. 200.199. The SRO concluded
that Danielle did not require an FBA because her behaviors responded to redirection and did not
therefore impede her learning. (See SRO Decision at 9 (“Respondent’s representatives who
were familiar with this child each testified that under the circumstances presented with this case,
an FBA was not needed.”).) Defendants also noted that Danielle’s SEIT did not ask the CSE to
conduct an FBA.
A CSE must conduct an FBA “for a student whose behavior impedes his or her learning
or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors
which contribute to the suspected disabilities.” 8 N.Y.C.C.R.R. §200.4(b)(v); see also 20 U.S.C.
§ 1414(d)(3)(B)(i) (The IEP team must, “in the case of a child whose behavior impedes the
child’s learning or that of others, consider the use of positive behavioral interventions and
supports, and other strategies, to address that behavior.”); 8 N.Y.C.C.R.R. § 200.4(d)(3)(i). An
FBA is:
the process of determining why the student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.
8 N.Y.C.C.R.R. § 200.1(r). Based on the information collected in an FBA, a behavioral
intervention plan is designed pursuant to 8 N.Y.C.C.R.R. §200.22(b).
The evidence in the record supports a finding that Danielle’s behaviors impede her
learning such that an FBA is required by law. One of Danielle’s evaluators, Karen McKeever,
testified that she engages in self-stimulatory activity and is hyper-active. (Tr. 388-89.) Mrs.
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McKeever additionally testified that Danielle’s listening comprehension is likely affected
because “she needs to be brought back” from being lost in her own thoughts and finger play.
(Tr. 404-05.) Ms. McKeever observed that “[Danielle] does her play, she’s busy processing and
thinking about other things. So when things are not particularly of interest to her, when things
are not challenging, she’s not necessarily paying that much attention. And this is, basically, you
know, vocabulary.” (Tr. 405.) Even though the record reflects that Danielle’s listening
comprehension scores were average for her grade level, Ms. McKeever’s testimony clearly
demonstrates that Danielle’s behaviors impede her ability to learn and achieve greater academic
success.
Danielle’s SEIT also testified as to how her behaviors interfere in the classroom. She
notes that Danielle is inconsistent and erratic, only raising her hand if prompted in the classroom.
(Tr. 545.) She may scream out at the teacher when asked a question (Tr. 551). Danielle’s SEIT
also testified regarding Danielle’s stimulatory behaviors, explaining that Danielle may engage in
finger play during class until the point where she’s bleeding. (Tr. 552). Additionally, the SEIT
testified that Danielle displays tantrumming behavior that the SEIT manages with a variety of
methods, and sometimes Danielle’s behaviors stem from her inability to complete assignments
from the blackboard. (Tr. 555-56, 563.) The SEIT also testified that Danielle has difficulty
retrieving and organizing her books. (Tr. 561-62.)
In view of this testimony, the Court finds that Danielle’s behavior interferes with her
ability to learn as contemplated by 8 N.Y.C.C.R.R. §200.4(b)(v) and 20 U.S.C. §
1414(d)(3)(B)(i). Both Danielle’s SEIT and the district’s evaluator suggest that Danielle could
be achieving at a higher level if her behaviors were managed. The CSE was required to conduct
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an FBA to determine the factors that contribute to Danielle’s interfering behaviors.
(4) Other Areas of Deficit
Plaintiffs allege that the 2005 IEP fails to address and set goals for improvements in
Danielle’s organizational skills deficits, toileting needs, and tantrumming. According to the
plaintiffs, the SRO incorrectly held that the IEP was not required to address these needs because
they could be managed by her paraprofessional. Plaintiffs argue that the paraprofessional will
not know that she needs to address these issues or how to address them if they are not listed on
the IEP. They also claim that this portion of the IEP defeats the IDEA’s purpose to foster
independence by relying on the paraprofessional to accommodate Danielle’s organizational and
toileting needs instead of requiring the IEP to provide goals to teach Danielle to overcome these
needs.
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). See also 34 C.F.R. 300.347 (“The IEP for each child with a disability
must include [] a statement of measurable annual goals, including benchmarks or short term
objectives, related to (i) Meeting the child’s needs that result from the child’s disability to enable
the child to be involved and progress in the general curriculum . . . ; and (ii) Meeting each of the
child’s other educational needs that result from the child’s disability.”); 8 N.Y.C.C.R.R.
200.1(ww) (“The individual needs of a student shall be determined by a committee on special
education . . . upon consideration of the present levels of performance and expected learning
outcomes of the student. Such individual-need determinations shall provide the basis for written
annual goals. . . .”); see also Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (“Each
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IEP must include an assessment of the child’s current educational performance, must articulate
measurable educational goals, and must specify the nature of the special services that the school
will provide.”) Furthermore, as discussed above, CSE is required to consider a child’s
managerial and behavioral needs, as well as her social and physical development, in creating an
IEP. Walczak, 142 F.3d at 122-23.
(i) Organizational Skills
The Court finds that Danielle’s 2005 IEP was required to specify organizational goals.
Ample testimony in the record supports a finding that Danielle had deficiencies in organizational
skills. The district’s neuropsychologist, who examined Danielle, testified that Danielle:
[h]as a deficit in visual processing. Spatial reasoning. And this is also seen in the executive functioning when it comes time to process and organize that information. It’s, you know, it’s very technical, but this, this is where the child functions neuro- psychologically.
(Tr. 401.) Danielle’s SEIT testified that her organizational skills are “very poor,” and discussed
the ways in which she worked with Danielle to improve her organizational skills. (Tr. 561-64.)
Danielle’s general education teacher testified that she has “no organizational skills on her own.”
(Tr. 884). The teacher went on to state that she believed Danielle needed to be taught how to
organize for herself, rather than accommodating her lack of organizational skills. (Tr. 885.)
Danielle, in the teacher’s estimation, is not performing up to grade level with regards to her
organizational skills. (Tr. 888.) Danielle also scored in the bottom 2-5% in an evaluative test
designed to measure organizational skills, among other abilities. (See Def. Exh. 4.) There is
objective evidence in the record to support a finding that Danielle would not be likely to
progress absent a program addressing her organizational deficiencies.
The language of IDEA states that an IEP must in include a statement of goals “designed
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to [] meet the child’s needs that result from the child’s disability.” 20 U.S.C. § 1414(d)(1)(A)(i).
As demonstrated above, the record supports a finding that Danielle’s disability creates a need for
assistance in developing and maintaining organizational skills; the defendants’ own witnesses
concede as much. Those needs should have been addressed in Danielle’s IEP through articulated
goals and benchmarks, as required by 20 U.S.C. Section 1414 and the accompanying regulations
in effect when her 2005 IEP was designed. See also 34 C.F.R. 300.347. In view of extent of
Danielle’s deficiency and the relevant statutory language, the SRO’s conclusion that Danielle’s
organizational deficiencies may be addressed by the behavioral management paraprofessional
without listed goals is flawed. Without specific goals to improve Danielle’s undisputed
organizational deficiencies, the IEP is not likely to produce progress in Danielle.3
(ii) Toileting
The Court concludes that Danielle’s 2005 IEP was not required to have specific toileting
goals. Danielle’s 2005 IEP indicates that she suffers from kidney reflux disease and that she is
not fully toilet trained (2005 IEP at 1, 7.) However, as noted by the SRO, the district’s social
worker indicated that he did not observe any toileting issues during his observations of Danielle,
and further testified that Mrs. G had informed him that Danielle’s toileting accidents were
infrequent. (Tr. 134-35.) The SEIT’s report also indicated that Danielle’s toileting skills had
greatly improved. (Def. Exh. J at 2.) Although Danielle’s SEIT testified that she was not
completely toilet trained, there is not sufficient evidence in the record to support a finding that
Danielle’s toileting issues were considerable, such the 2005 IEP was not “reasonably calculated”
to confer educational benefits on Danielle because of its omission of toileting goals.
3 The Court notes that Danielle’s most recent IEP for 2007 includes goals in organizational skills.
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(iii) Tantrumming
The Court concludes that Danielle’s 2005 IEP was not required to have specific goals
addressing Danielle’s tantrumming behavior. Although there is some evidence in the record that
Danielle continues to have tantrums, particularly the testimony of Danielle’s SEIT and her
mother, the Court does not find sufficient “objective evidence” to support a finding that Danielle
will regress absent tantrumming goals. See Cerra, 427 F.3d at 195 (“In order to avoid
‘impermissibly meddling in state educational methodology,’ a district court ‘must examine the
record for any objective evidence indicating whether the child is likely to make progress or
regress under the proposed plan.’” (quoting Walczak, 142 F.3d at 130 (internal quotation marks
omitted)). The SRO’s examination of the record resulted in a finding that Danielle’s
tantrumming largely did not occur during school hours and did not appear to interfere with her
learning. (SRO Decision at 13.) In view of the limited evidence in the record to support a
finding that Danielle will regress, the state agency’s evaluation of Danielle’s progress is due
deference in view of its “special expertise.” Cerra, 427 F.3d at 195. Accordingly, the Court
concludes that Danielle’s 2005 IEP was not required to include tantrumming goals.
(5) Length of Service
Danielle’s 2005 IEP recommends that her program of services be reduced from twelve to
ten months. Plaintiffs contend that the SRO failed to consider evidence indicating Danielle
requires a twelve month program. They argue that the SRO relied on the testimony of the
defendants’ witnesses, who only had limited experience with Danielle, to determine that Danielle
did not experience substantial regression and that twelve month services were, therefore, not
required.
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New York State regulations require that students shall be considered for 12-month
services if, “because of their disabilities, [the students] exhibit the need for a 12-month special
service and/or program provided in a structured learning environment of up to 12-months
duration in order to prevent substantial regression as determined by the committee on special
education.” 8 N.Y.C.R.R. § 200.6(j)(1)(v). “Substantial regression” refers to “a student’s
inability to maintain developmental levels due to a loss of skill or knowledge during the months
of July and August of such severity as to require an inordinate period of review at the beginning
of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the
previous school year.” 8 N.Y.C.R.R. § 200.1(aaa).
The Court concludes that the SRO’s analysis of regression is supported by the record and
should be upheld. The SRO concurred with the finding of the IHO that the record fails to
establish that Danielle is likely experience substantial regression during the summer. The SRO
concurred with the IHO’s finding that the fact Danielle “forgets some of things that she has been
taught, or that she needs to make transitions at the beginning of the school year, or that it may be
detrimental to her if she does not receive services over the summer, are not sufficient to conclude
. . . that the school district’s recommendation for a ten month school was not appropriate.” (IHO
Decision at 30.) The SRO considered testimony from Danielle’s SEIT teacher that ten week
cessation of services could be “detrimental” to her and her recommendation that services be
provided on a twelve month basis. (Tr. 624-25.) The SEIT stated that when Danielle returned
to school after a three week break in the summer of 2004, her behavior and academics were
affected. (Tr. 617.) However, in its decision, the SRO also noted that the SEIT testified that
Danielle recovered from the summer transition in a matter of weeks, as opposed to months (Tr.
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618.) This Court concludes that although the record evidences Danielle’s regression during
breaks in instruction, there is insufficient testimony to support a finding that she regresses
“substantially” such that the ten month recommendation in Danielle’s 2005 IEP is in violation of
the standard set forth in the IDEA. In view of the “due weight” that must be afforded the
specialized findings by state educational officers, the 2005 IEP’s provision for ten months of
service may stand.
(6) Parental Counseling and Training Services
Plaintiffs further allege that the 2005 IEP failed to include parental counseling and
training services, and that the defendants’ failure to provide training services before August 23,
2006 requires compensatory services. The SRO did not address the issue because he considered
it settled, noting that the defendants had agreed to provide the requested services.
In its response to plaintiffs’ motion, the defendants concede that the parental counseling
and training services were not provided as a result of “a communication error.” (Def. Reply Br.
at 9.) Defendants also argue the issue is now moot because Mr. and Mrs. G began receiving
parental training services on August 23, 2006, and defendants have agreed to provide services
dating back to January 6, 2006 (Def. Reply. Br. at 8.) Plaintiffs assert that the issue is not moot
because similar conduct is likely in the future and that the parental services, which they began to
receive, have not been formally included as part of Danielle’s IEP and, moreover, were “grossly
inappropriate.”
As an initial matter, the Court notes that the issue of defendants’ provision of parental
training and counseling is not necessarily moot because services are now being provided. The
Second Circuit has recognized that “alleged deficiencies in the IEP were capable of repetition as
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to the parties before it yet evading review” because of the length of time required for judicial
review of IEP proceedings. Lillbask v. State of Conn. Dep’t of Educ., 397 F.3d 77, 85-89 (2d
Cir. 2005) (quoting Rowley, 458 U.S. at 186 n. 9). The Court also rejects defendants’ argument
that the issue was waived because plaintiffs failed to file a reply to the SRO that rebutted
defendants’ inaccurate statement that the matter was settled, pursuant to 8 N.Y.C.C.R.R. §279.6.
Regardless of whether plaintiffs may have been obligated to submit a reply brief on the issue of
mootness, the SRO appears to have declined consideration of the issue because of defendants’
representations on settlement, and not because of plaintiffs’ failure to file a reply brief. (See
SRO Decision at 10 (“This element of petitioner’s appeal is not addressed herein in light of the
parties’ settlement of this issue.”)
However, the Court notes that, in this case, the defendants have conceded that services
were not provided during the 2004-2005 school year in error, have resumed service provision,
and have agreed to provide services dating back to January 6, 2006. To the extent plaintiffs’
seek a statement that the defendants were required to provide parental counseling to Danielle’s
parents pursuant to the mandatory language of 8 N.Y.C.C.R.R. Section 200.13(d), the Court
finds that such counseling was required. See 8 N.Y.C.C.R.R. 200.13(d) (“Provision shall be
made for parent counseling and training as defined in section 200.1(kk) of this Part for the
purpose of enabling parents to perform appropriate follow-up intervention activities at home.”)
The Court additionally finds that the parental counseling services provided to Danielle’s parents
should have been detailed in Danielle’s 2005 IEP pursuant to 34 C.F.R. § 300.347(a)(3), which
states that an IEP must contain “[a] statement of the special education and related supplementary
services to be provided to the child, or on behalf of the child.” (emphasis added). The section
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further states at (a)(6) that an IEP is to include “the projected date for the beginning of services .
. . and the anticipated frequency, location, and duration of those services.” From a review of the
factual account of cases involving IDEA, it appears parental counseling and training services are
often included in IEPs. See, e.g., W.S. ex rel. C.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134,
141, 143 (S.D.N.Y. 2006); M.K. ex rel. Mrs. K. v. Sergi, 554 F.Supp. 2d 233, 244 (D.Conn.
2008); D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 348 F.Supp. 2d 92 (S.D.N.Y. 2004) rev’d on
other grounds 430 F.3d 595 (2d Cir. 2005).
However, to the extent that plaintiffs seek a finding that the provider chosen by the
district for parental counseling was unqualified, that issue is not properly before this Court as the
adequacy of the counseling has not been challenged in state review proceedings.
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CONCLUSION
For the reasons set forth above, plaintiffs’ motion for summary judgment is granted in
part and denied in part. The Court find that Danielle’s 2005 IEP was required to include goals
for her organizational skills, should have included provisions for parental counseling and
training, and that a functional behavioral analysis should have been performed to analyze the
way in which her behaviors interfere with her academic achievement. The Court also finds that
Danielle’s 2005 IEP was procedurally sound, and was not required to include provisions for
SEIT services, a transition plan, and toileting and tantrumming goals. The record also supports a
finding that Danielle’s services may be reduced to 10 months. Accordingly, defendants’ motion
for summary judgment is also granted in part and denied in part.
The Clerk of the Court is directed to enter judgment and to close the case.
SO ORDERED.
Dated: Brooklyn, New York August 7, 2008
Carol Bagley Amon United States District Judge
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