UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X
A.H., on behalf of J.H., an infant,
Plaintiff, 08-CV-5114 (CPS)(ALC)
- against - MEMORANDUM OPINION New York City Department of AND ORDER Education,
Defendant.
-----------------------------------X SIFTON, Senior Judge.
Plaintiff A.H., on behalf of J.H.,1 commenced this action
against the New York City Department of Education (“DOE”) on
December 19, 2008, seeking review of the decision by the State
Review Officer (“SRO”) dated August 29, 2008, which affirmed a
finding that the DOE complied with the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1401(9), when it
offered J.H. a public school placement for the 2007-2008 school
year and denied plaintiff’s request for reimbursement for tuition
she paid to privately educate J.H. during that year. Plaintiff
seeks a judgement reversing the SRO decision, a declaratory
judgment that defendant violated the IDEA, reimbursement for
tuition paid, attorneys’ fees, and costs. Now before the court
are cross motions for summary judgment by the parties. For the
reasons stated below, the motion by defendant is granted in part
1 A.H. and J.H. are proceeding under fictitious names because J.H. is an infant.
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and denied in part, and the motion by plaintiff is granted in
part and denied in part.
BACKGROUND
The following facts are taken from plaintiff’s complaint and
the record of the proceedings below. Disputes are noted.
J.H. is a nine year old child who has been classified by the
DOE as a student with a learning disability in need of special
education services due to his speech and language impairments. D.
Ex. 1.2 Plaintiff is the mother of J.H. When J.H. was in
kindergarten, plaintiff grew concerned about his lack of academic
and social progress, and decided in consultation with school
officials that he should repeat kindergarten. When J.H.’s
performance did not improve in his second year of kindergarten,
plaintiff had him privately evaluated by Dr. Jody Brandt, who
concluded that J.H. was highly distractable and could not
function in large group settings. DOE convened a CSE team to
evaluate J.H., which determined that he would be best served by a
special needs classroom at a public school. Plaintiff in the
meantime researched schools and decided that the Mary McDowell
Center for Learning, a private school focusing on special needs
children, was the best option for J.H., and enrolled him there
2 Both parties refer to the exhibits submitted to the State Review Officer. Defendant’s exhibits are listed as numbers 1-6, and plaintiff’s exhibits are listed as letters A-F.
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for the 2007-2008 school year, for which she paid full tuition.
Plaintiff subsequently rejected the public school option as
inappropriate, and now seeks reimbursement for the private school
tuition. At oral argument on these motions, both plaintiff and
defendant stated that they had no knowledge regarding J.H.’s
educational placement for the 2008-2009 school year or the
upcoming 2009-2010 school year.
In order to place the factual record of this case in
context, I first review the requirements of IDEA and the means by
which it may be challenged, after which I describe J.H.’s school
history and evaluations in more detail.
A. Individuals with Disabilities Education Act
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).3 In order to
achieve this goal of a free appropriate public education (“FAPE”)
3 A “free appropriate public education” (“FAPE”) is defined as special education and related services that: (1) are provided under public supervision and at public expense without cost to parents; (2) meet the standards of the state educational agency; (3) include an appropriate preschool, elementary, or secondary school education; and (4) are provided in conformity with the individualized education program required by § 1414(a)(5) of the Act. See 20 U.S.C. § 1401(a)(18).
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for all children with disabilities, the IDEA requires that the
States comply with extensive procedural requirements and
safeguards in order to receive federal funds for use in special
education programs. See 20 U.S.C. § 1415. A free appropriate
public education must include “special education and related
services” tailored to meet the unique needs of a particular
child, 20 U.S.C. § 1401(a)(18), and be “reasonably calculated to
enable the child to receive educational benefits.” Board of
Education v. Rowley, 458 U.S. 176, 207, 73 L. Ed. 2d 690, 102 S.
Ct. 3034 (1982).
The IDEA views private school as a last resort. W.S. v. Rye
City Sch. Dist., 454 F.Supp.2d 134, 148 (S.D.N.Y. 2006). “To the
maximum extent appropriate” children with disabilities must be
educated with children who are not disabled, in the “least
restrictive environment.” 20 U.S.C. § 1412(a)(5). A child may
only be removed into a more restrictive environment when the
nature and severity of her disability is such that education in
regular classes with the use of supplementary aids and services
cannot be satisfactorily achieved. Id.; 34 C.F.R. 300.114(a)(2);
Briggs v. Bd. of Educ., 882 F. 2d 688 (2d Cir. 1989). “This is
true even if a child with disabilities might make greater
academic progress in a more restrictive environment. The CSE must
consider the unique benefits, academic and otherwise, that a
student receives by remaining with non-disabled peers.” W.S., 454
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F.Supp.2d at 148.
In accordance with this regulatory framework, “[t]he
centerpiece of the IDEA’s education delivery system is the
individualized education program, or IEP.” Murphy v. Arlington
Cent. Sch. Dist. Board of Educ., 297 F.3d 195, 197 (2d Cir. 2002)
(internal quotations omitted). “The IEP, the result of
collaborations between parents, educators, and representatives of
the school district,” is created annually, and “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. 20 U.S.C. §
1414(d)(1).4 New York State has assigned responsibility for
developing appropriate IEPs to local Committees on Special
Education (“CSEs”), the members of which are appointed by school
boards or the trustees of school districts. N.Y. Educ. Law. §
4402(1)(b)(1).
Parents who are dissatisfied with a proposed IEP may request
4 In full, an IEP must state (1) the child’s present levels of academic achievement and functional performance; (2) the annual goals for the child; (3) how the child’s progress towards the annual goals will be measured; (4) what services and aids will be provided to the child and the extent to which the child will be able to participate in regular educational programs; (5) the extent to which the child will participate with non-disabled children in class; (6) what accommodations are necessary, including alternative assessments; (7) the projected initiation date and duration for the proposed services. 20 U.S.C. § 1414(d)(1). The IEP is developed by team that includes, at minimum, the parents, a general education teacher, a special education teacher, and a representative of the local education agency. 20 U.S.C. § 1414(d)(1)(B).
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an impartial due process hearing before an Independent Hearing
Officer (“hearing officer”). 20 U.S.C. § 1415(f)(1)(A); N.Y. Educ
Law § 4404(1)(a). The hearing officer’s decision may be appealed
to the State Review Officer (“SRO”), who independently reviews
the findings, after which any party may sue in either state or
federal court. 20 U.S.C. §§ 1415(g), 1415(i)(1)(B). Parents who
disagree with an IEP may also unilaterally enroll a child in a
private school of their choice, without the consent of state or
local officials, and request retroactive reimbursement. However,
they do so “at their own financial risk,” as reimbursement may be
denied if it is later determined that the IEP was appropriate for
the child. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7,
15, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993).
B. Facts
The following sections detail J.H.’s academic and functional
limitations, DOE’s assessment, and J.H.’s performance at the Mary
McDowell school.
1. Kindergarten
For the 2005-06 school year, J.H. attended kindergarten at a
collaborative team teaching (“CTT”) classroom at The Children’s
School, a DOE local community school. Transcript Before the DOE
Impartial Hearing Officer at 90 (“Tr.”). The class consisted of
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two teachers, a paraprofessional, and twenty-four students. D.
Ex. 3. J.H. made little progress during the year, and was unable
to interact with other children in the classroom and at recess.
Tr. 90-91. Based on his lack of progress and his immaturity, the
school suggested, and his parents agreed, that he repeat
kindergarten during the 2006-07 school year in the same
classroom. Tr. 91. In his second year of kindergarten, J.H.
continued to make little academic or social progress. Tr. 92. He
would easily lose focus in class and become “glazed over.” Tr.
95-96. Although J.H. had play dates with schoolmates, during
lunch and recess he would not sit with anyone. Tr. 93. His mother
testified that at recess, he would walk around “kicking rocks by
himself and not really interacting.” Tr. 94. If the classroom was
full in the morning when he entered he would “look around, kind
of glazed over as if he didn’t know what to do.” Id. He required
instructions on simple tasks like putting away his backpack when
he entered the classroom. Id. Concerned, J.H.’s parents contacted
his teachers in November, 2006, and stated that the program did
not seem to be appropriate for J.H. Tr. 95. They arranged for
J.H. to undergo a private neuropsychological evaluation with Dr.
Jody Brandt and sought to review J.H.’s case with the Committee
of Special Education (“CSE”). Tr. 96.
In November 2006, the DOE’s Student Based Support Team at
the Children’s School conducted a Social History Update of J.H.
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at plaintiff’s request. D. Exs. 2, 5. The report noted that J.H.
needed remediation in all areas, required a lot of individual
attention, was not reading at grade level, and that his math
skills were better than his language skills. D. Ex. 2. The report
also noted that J.H. was comfortable interacting with adults in
the classroom and that he was very social with other students.
Id.
On March 22, 2007, J.H. was observed by a social worker from
the DOE, who noted in a brief report that J.H. played by himself
during group playtime and did not interact with the four other
students playing with the same set of toys. D. Ex. 3.
2. Dr. Brandt’s Assessment
Dr. Brandt had five one-on-one meetings with J.H. in her
office and one school observation with him starting in December
2006. Tr. 99. Dr. Brandt determined that J.H. had variable
concentration, was anxious, highly distractable, had difficulty
transitioning from one activity to another, and needed constant
redirection (to which he was responsive). Tr. 100-101. In
performing the evaluation tests, J.H. had difficulty organizing
his thoughts, moved at a slow pace, and required reminders to
keep working. 103-104. Overall, he tested between the 4th and 10th
percentile in attention, had an average memory, and was one grade
behind academically. Tr. 105. He related well and had a good
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sense of humor, but was also immature. Tr. 105-106.
Dr. Brandt visited J.H.’s classroom and observed the class
performing a group reading activity and making the transition to
independent reading, as well as a library exchange and a peer
group activity. Tr. 107. Dr. Brandt observed that J.H. was a
“loner in the classroom” who was highly distracted and thus
unable to follow what was occurring in the classroom. Id. He did
not participate in group discussion or follow the dialogue,
though he cooperated with group instructions. Brandt Evaluation
at 3, D. Ex. 4. During independent reading, J.H. was slow to get
started and continually became distracted, although he was able
to return to his reading. Id. When the children were instructed
to bring their library books to the library corner and exchange
books, J.H. became lost on the way to the corner and did not know
what to do; the teacher walked him through each step of the
process. Tr. 108. J.H. became overwhelmed and confused and called
his teachers by incorrect names. Tr. 108-109. J.H. was able to
interact properly with peers and complete tasks once he was
directed by the teacher. Id.
Dr. Brandt recommended that J.H. be placed in a small,
highly-structured classroom setting that could provide
individualized attention. Brandt Evaluation at 8. He would be
best served by a calm and consistent school environment without
noisy hallways, frequent transitions, or large groups of
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children. Id. She testified that this recommendation was based on
her observations that J.H. required several minutes to settle in
to a new environment or task and required constant prompting,
redirection, and guidance. Tr. 111-112. She stated that lunch and
recess were likely to be particularly overwhelming to a child as
distractable as J.H. Tr. 112. She emphasized that J.H. requires
not only a special education classroom, but also a special
education school setting that would minimize disruptive
activities (such as large lunch room settings) outside the
classroom. Tr. 114. Dr. Brandt testified that J.H. would not be
able to function in a lunch room setting containing 75 students,5
because he would be come easily lost, worn down, and
disorganized. Tr. 115. Dr. Brandt agreed that a 12 to 1 teacher
to student ratio would be appropriate for J.H., but stressed that
he also required a school environment outside the classroom that
minimized disruptions. Tr. 120.
Plaintiff shared Dr. Brandt’s report with J.H.’s classroom
teacher and Dr. Scott, the school psychologist at the Children’s
School. Tr. 127.
3. CSE Review and Resulting IEP
On March 30, 2007 and April 13, 2007, CSE meetings were held
5 The size of the lunch room at the school later recommended by the DOE.
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to evaluate J.H.’s status in the school system. Tr. 6-8.6 The CSE
contained the following members: plaintiff, a district
representative, a general education teacher who was one of J.H.’s
then current teachers, the IEP coordinator at the Children’s
School who was certified in special education, and a school
psychologist. D. SMF ¶ 12. The CSE considered the following
(“IEP”): the March 22, 2007 classroom observation, Dr. Brandt’s
evaluation, the social history update, and progress reports
prepared by J.H.’s teachers. Tr. 12. At the meeting, the CSE team
agreed that the CTT environment of the Children’s School was not
appropriate for J.H. When plaintiff asked the team what it was
going to recommend, she was told that the group was “not in a
position to recommend” any private schools, and that “the best
that [could be done] was either a 12:1 or a 12:1:1.” Tr. 128.7
The team created an IEP recommending that J.H. be moved to a
12:1:1 program in a special class in a community school, and that
he be provided speech and language therapy sessions. D. Ex. 1.
The IEP noted that a special class in a specialized school would
be “too restrictive,” because J.H. would benefit from having non-
disabled peers as role models. Id. at 18. The IEP recommended
6 There is no indication in the record of whether subsequent CSE meetings have been held since 2007 or whether J.H.’s IEP has been modified. 7 A 12:1 classroom contains twelve students and one teacher. A 12:1:1 program contains an additional paraprofessional who assists the teacher.
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that J.H. receive preferential seating and ongoing teacher
prompting. Id. at 7. Following the CSE, plaintiff did not state
any objections to the IEP or the 12:1:1 program. P. Exs. A, B, C.
Plaintiff testified that she agreed to the 12:1:1 option because
she believed it was her only choice based on what the CSE told
her. Tr. 132, 133.
4. Plaintiff’s School Selection
On March 10, 2007, prior to the CSE team meeting, plaintiff
paid a $5,000 non-refundable deposit to Mary McDowell to hold a
place for J.H., in the event that she did not approve of the
CSE’s recommended school plan. Tr. 158. Under the contract,
plaintiff had until May 1, 2007 to withdraw J.H.’s enrollment for
the upcoming year, after which she was bound to pay the full
tuition amount of $38,000. P. Ex. E. Plaintiff did not withdraw
J.H.’s enrollment, nor did she inform the CSE that after May 1,
she was committed to sending J.H. to a private school. Tr. 157,
159.8
By letter dated July 6, 2007, the DOE informed plaintiff
that it had recommended a 12:1:1 placement at Public School 32
(“PS 32”) for J.H. D. Ex. 6. The letter provided the contact
8 Plaintiff testified that she “mentioned” to the CSE that she was “considering” Mary McDowell.
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about the placement. Id. By letter dated July 17, 2007, plaintiff
wrote to Larry Parker at the Committee on Special Education9
requesting more information about PS 32, stating that because
school was not in session, she could not make a decision about
the program; plaintiff received no response. Pl. Ex. A, Tr. 136-
37. Plaintiff did not visit the school or take other steps to
investigate the placement. Tr. 137. By letter dated August 20,
2007, plaintiff again wrote to Mr. Parker stating that she had
not received the requested information and advising that J.H.
would begin the school year at Mary McDowell. Pl. Ex. B.
Plaintiff visited PS 32 on the first day of school in
September, and met with parent-teacher coordinator Angela Bowie.
Tr. 138. Plaintiff informed Ms. Bowie that she had an IEP with a
12:1:1 mandate. Id. According to plaintiff, Ms. Bowie stated that
J.H.’s class was in a collaborative teaching classroom that
followed a standardized teaching curriculum. Tr. 138-40.10 By
letter dated September 17, 2007, plaintiff wrote to Mr. Parker
that she was rejecting the placement at PS 32 on the ground that
a standardized curriculum was inappropriate for J.H., but
received no response. Tr. 143. In January 2008, plaintiff visited
9 Mr. Parker was not the person plaintiff was directed to contact in the event she had questions about J.H.’s placement. There is no indication of whether the letter was transmitted to the correct recipient. 10 Plaintiff conceded that the classroom she was shown contained only eight students, which was consistent with a 12:1 classroom rather than a CTT classroom. Tr. 140.
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PS 32 again, after being informed that the school did contain a
12:1:1 classroom with a modified curriculum. Tr. 144. Plaintiff
toured the school and concluded that it was inappropriate because
the school was large, the lunchroom was large, there were several
classes outside of the home room that would require transitioning
locations, and the number of students at recess was large. Tr.
145-46.
J.H. completed the school year at Mary McDowell with Ms.
Crafton as his teacher. Tr. 162.
5. Features of PS 32 and Mary McDowell
PS 32 consists of 250 students, thirty percent of whom
receive special education. Tr. 49, 50. The school contains a
12:1:1 teaching classroom with a modified curriculum taught by
Courtney O’Reilly, a certified special education teacher. Tr. 46.
The students in Ms. O’Reilly’s class learn through a combination
of class lessons, small group instruction, and independent study.
Tr. 47-48. Students come into contact with general education
students at lunch and recess. Tr. 48. During lunch, there are 75
students eating together at a time, supervised by five staff
members. Tr. 60. Ms. O’Reilly testified that J.H. would fit into
her class, judging by his levels of functioning, and that she
could fulfill the requirements of his IEP. Tr. 54.
Mary McDowell is a private Quaker school for children with
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diagnosed learning disabilities or speech and language disorders,
which J.H. attended during the 2007-2008 school year. Tr. 78. The
school has two buildings; the lower school building in which J.H.
attended classes houses a self-contained group of 34 children.
Tr. 76. J.H. was in a class of ten students and two teachers, and
received speech and language therapy twice a week in a group of
two and occupational therapy twice a week in a group of two. Pl.
Ex. F. at 2. J.H.’s reading and math groups each contained five
students. Tr. 169, 171. Anna Crafton, J.H.’s lead teacher,
testified that the small class sizes minimized J.H.’s
distractions and ensured that he was properly redirected and
refocused on his reading tasks. Tr. 170-71. Over the course of
his year at the school, J.H. experienced progress in reading (to
a first-grade level), stamina, focus, and math (to a high
kindergarten level). Tr. 168-71. The lunch and recess periods
have between 14 and 20 students with a minimum of two teachers
who assist students in initiating conversation and modeling
social behavior and self help skills. Tr. 175-76. J.H. made
significant improvements in these areas, including learning
proper eating skills. Tr. 177.11
C. Procedural History
11 Previously, J.H. had eaten food with two utensils, shoveling food into his mouth and dropping most of the food onto himself and the floor. Tr. 177.
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By a due process complaint notice dated October 16, 2007,
plaintiff requested an impartial hearing, contending that the
April 2007 IEP was procedurally and substantively flawed. State
Review Officer Decision at 5 (“SRO Decision”). An Impartial
Hearing was held on May 14, 2008. Id. The hearing officer issued
his corrected findings of fact and decision on June 10, 2008, in
which he found that the placement offered by the DOE was
appropriate and less restrictive than Mary McDowell, because J.H.
would have an opportunity to interact with non-disabled peers.
Independent Hearing Officer Decision at 4 (“IHO Decision”). The
hearing officer noted that there was miscommunication between a
teacher at PS 32 and plaintiff regarding what form of teaching
was available at the school, but that this did not invalidate the
otherwise appropriate placement. Id. at 3. He noted that while
the private school setting had clearly been successful, the
public school placement was substantially similar, and would
likely have met J.H.’s needs. Id. at 3-4. He deemed that there
was no basis for rejecting it without having tried it. Id. at 4.
Plaintiff appealed the hearing officer’s decision to the
SRO, which issued a decision on August 29, 2008. The SRO
concluded that DOE had offered J.H. an appropriate placement and
that the April 2007 IEP was reasonably calculated to provide J.H.
with educational benefits. SRO Decision 13. The SRO determined
that the procedural errors asserted by plaintiff were either not
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supported by the record or did not rise to the level of denying a
free appropriate public education to J.H. Id. Accordingly, the
SRO denied plaintiff’s request for tuition reimbursement. Id.
Plaintiff appealed the SRO’s decision by filing a complaint in
this Court on December 14, 2008.
DISCUSSION
I. Jurisdiction and Standard of Review
“The responsibility for determining whether a challenged IEP
will provide a child with an appropriate public education rests
in the first instance with administrative hearing and review
officers. Their rulings are then subject to ‘independent’
judicial review,” Walczak v. Florida Union Free Sch. Dist., 142
F.3d 119, 129 (2d cir. 1998), based on a preponderance of the
evidence. 20 U.S.C. § 1415(i)(2)(C); see also Grim v. Rhinebeck
Cent. Sch. Dist., 346 F.3d 377, 380, 74 Fed. Appx. 137 (2d Cir.
2003). The Second Circuit and the Supreme Court have interpreted
the IDEA as “strictly limiting judicial review of state
administrative decisions.” Grim, 346 F.3d at 380-81 (citing
Rowley, 458 U.S. at 204-08; Walczak, 142 F.3d at 129). District
courts “may not ‘substitute their own notions of sound
educational policy for those of the school authorities which they
review.’” A.C., 553 F.3d at 171 (quoting Rowley, 458 U.S. at
206). “While federal courts do not simply rubber stamp
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administrative decisions, they are expected to give ‘due weight’
to these proceedings.” Walczak, 142 F.3d at 129.12
II. Tuition Reimbursement
Plaintiff argues that the SRO decision must be overturned
and seeks the remedy of reimbursement for tuition costs paid to
privately educate J.H. at a special needs school that she
unilaterally chose. Tuition reimbursement is not the normal means
of obtaining a FAPE; “Congress intended that IDEA’s promise of a
‘free appropriate public education’ for disabled children would
normally be met by an IEP’s provision for education in the
regular public schools or in private schools chosen jointly by
school officials and parents.” Florence County Sch. Dist. Four v.
Carter by & Through Carter, 510 U.S. 7, 12, 114 S. Ct. 361, 126
L. Ed. 2d 284 (1993). “Reimbursement merely requires [a district]
to belatedly pay expenses that it should have paid all along and
would have borne in the first instance” had it offered the
student a FAPE.” Sch. Comm. of Burlington v. Dep’t of Educ., 471
U.S. 359, 370-71, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985).
12 Plaintiff argues that the IDEA and New York State regulations require that a court conduct a de novo review of the SRO’s decision, citing 20 U.S.C. § 1415(i)(2)(C) (a reviewing court “shall grant such relief as the court determines is appropriate”) and 8 NYCRR § 279.12 (the decision of the State Review Officer “shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever.”). Plaintiff concludes that an SRO decision may not be given any weight. This is contrary to the holdings of the Second Circuit in Walczack and A.C. Although an SRO decision is not binding, it may be persuasive.
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To determine whether parents are entitled to tuition
reimbursement, a court must engage in a three-step process:
“[f]irst, we examine whether the state has complied with the
procedures set forth in the IDEA. Second, we consider whether the
proposed IEP is substantively appropriate in that it is
reasonably calculated to enable the child to receive educational
benefits. Only if the IEP is procedurally or substantively
deficient do we reach the third step and ask whether the private
schooling obtained by the parents is appropriate to the child’s
needs.” T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247,
252 (2d Cir. 2007) (internal quotations and citations omitted).
In fashioning relief, equitable considerations relating to the
reasonableness of the action taken by the parents must be
considered. See Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d
356, 363-64 (2d Cir. 2006) (citing Burlington, 471 U.S. at 374).
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; (4) managerial behavioral needs.” Walczak 142 F.3d
at 123 (citing N.Y. COMP. CODES R. & REGS. tit. 8 § 200.1
(kk)(2)(i)). As set forth more fully below, although the IEP
properly took account of J.H.’s need for a small classroom
learning environment, it did not consider the extent to which his
difficulty with transitions and interacting with peers would be
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exacerbated by attending school with 250 students and eating in a
lunch room of 75 students. This substantive failure may have
stemmed from a procedural failure to provide no special education
teacher of J.H. on the CSE team. However, notwithstanding these
errors, I conclude that plaintiff is not entitled to
reimbursement, because the equities weigh heavily against
awarding such a remedy.
A. Procedural Compliance
“The initial procedural inquiry is no mere formality.”
Walczak, 142 F.3d at 129. Rather, “the formality of the Act’s
procedures is itself a safeguard against arbitrary or erroneous
decisionmaking.” Evans v. Bd. of Educ. of the Rhinebeck Cent.
Sch. Dist., 930 F. Supp. 83, 93 (S.D.N.Y. 1996) (internal
quotations omitted). However, not every procedural error will
render an IEP “legally inadequate.” Grim v. Rhinebeck Cent. Sch.
Dist., 346 F.3d 377, 381 (2d Cir. 2003). Relief is warranted for
a procedural violation only if the student is denied a FAPE, J.D.
v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000), which
occurs when the alleged procedural inadequacies “(I) impeded the
child’s right to a free public education; (II) significantly
impeded the parents’ opportunity to participate in the
decisionmaking process regarding the provision of [a FAPE] to the
parents’ child; or (III) caused a deprivation of educational
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benefits.” 20 U.S.C. § 1415f(3)(E)(ii).
Plaintiff alleges that defendant violated the IDEA’s
procedural requirements on the following grounds, which she also
argued before the hearing officer and SRO: (1) J.H.’s special
education teacher did not participate in the development of
J.H.’s IEP; (2) the CSE used outdated evaluations and did not
take account of relevant evidence in its review; (3) plaintiff
did not have a full and fair opportunity to participate in the
process; (4) and the CSE changed the IEP from a 12:1 to a 12:1:1
mandate without convening a full CSE meeting or updating J.H.’s
goals or objectives. Upon review of the record, I find that only
the first ground has merit.
a. Special Education Teacher
Federal and State regulations require that the membership of
each CSE include at least one special education teacher of the
child. See 34 C.F.R. § 300.321(a)(3), 8 NYCRR §
200.3(a)(1)(iii).13 A failure to properly compose the CSE in this
manner may result in denial of a FAPE. The SRO has found that
CSEs were improperly composed when they included a special
education teacher who was not a teacher of the child or included
a special education teacher for less than the entire meeting. See
13 Plaintiff additionally cites a federal regulation that is no longer available in the federal register, 34 C.F.R. § 300.344, and cites another federal regulation that does not contain the cited text, 34 C.F.R. § 300, Appendix A, Notice of Interpretation, Section IV, Question 26.
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SRO Appeal No. 05-087, SRO Appeal No. 07-105, SRO Appeal No. 01-
044, SRO Appeal 00-031.14
The person who attended J.H.’s CSE in the capacity of
special education teacher was an IEP coordinator at his prior
school and was certified in special education.15 J.H.’s special
education teacher at Mary McDowell testified, but was not part of
the CSE team and was not present for the entire meeting and IEP
development process. The SRO found that the absence of J.H.’s
special education teacher from the CSE team was a violation of
the procedural requirements of the IDEA, but that J.H. was not
denied a FAPE as a result, because there was no evidence that the
person who attended the meeting lacked familiarity with the
program proposed for J.H. Arguing that this determination should
be upheld, defendant states that the IEP coordinator was familiar
with and able to teach in a variety of special education
classrooms, and therefore had knowledge of the special education
options for J.H. However, the IEP coordinator did not have
experience teaching J.H., nor was that person scheduled to
implement J.H.’s IEP at his new school. The coordinator was
accordingly not positioned to ensure that an IEP was developed
that took account of J.H.’s particular difficulties that he
14 The SRO decisions are available at http://www.sro.nysed.gov/decisionindex/default.html (last visited July 21, 2009). The decisions do not have case names. 15 The person is not named in the record.
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encountered inside and outside the classroom. This procedural
failure is significant in light of the IEP’s substantive
deficiency, described further below, in that the IEP failed to
include provisions for accommodating J.H.’s difficulties in
making transitions and interacting with large groups of children.
b. Evaluations Used by CSE
Plaintiff alleges that the CSE did not consider a sufficient
amount of evaluative data to form an appropriate understanding of
J.H.’s needs, because it relied on evaluations that were over six
months old. Plaintiff further alleges that the CSE ignored Dr.
Brandt’s evaluation. A CSE must consider “the present levels of
academic achievement and related developmental needs of the
student.” 8 NYCRR § 200.4(5)(ii)(b). A student must be assessed
in all areas related to a suspected disability, and the
evaluation must be sufficiently comprehensive to identify all of
the student’s special education needs. 8 NYCRR 200.4(b)(6)(vii)
and (ix). The SRO noted that several evaluations were conducted
and determined that there was no evidence that the CSE relied
upon insufficient data. Plaintiff’s claim that all of the
16 The CSE considered a January 2007 neuropsychological report by Dr. Brandt, a classroom observation of J.H. from March 2007, a November 2006 social history update, and a March 2007 progress report by J.H.’s teachers, speech therapist, and occupational therapist. D. SMF Reply ¶ 22. The progress reports were reported orally at the meeting rather than in writing.
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Furthermore, the record makes clear that the CSE considered it in
some depth. See Tr. 12, 22; compare D. Ex. 1 at 4 with D. Ex. 4
at 7. Because the CSE considered comprehensive reports of J.H.’s
academic achievement and developmental needs, there are no
grounds upon which to find procedural fault in this regard.
c. Plaintiff’s Participation
Parents of a disabled child have a right “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.” 20 U.S.C. § 1415(b)(1). A denial of a
FAPE occurs if a parent’s opportunity to participate in the
decision-making process is “significantly impeded.” 20 U.S.C. §
1415(f)(3)(E)(ii). Plaintiff alleges that the CSE did not
adequately discuss its recommendations with her, and therefore
she lacked an opportunity to participate in the process. She
states that the CSE did not make clear what differences existed
between a 12:1 and a 12:1:1 classroom and why such classroom
settings would be appropriate,17 and that the CSE did not discuss
with her the option of placing J.H. in a private school in a
smaller classroom, instead indicating that her only choices were
the 12:1 and 12:1:1 classrooms. Tr. 133. Neither of these
17 The distinction between these two class forms is that the latter contains an extra paraprofessional to help the students.
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contentions has merit.
First, the record makes clear that plaintiff understood the
role of a paraprofesisonal, which is the only distinction between
a 12:1 classroom and a 12:1:1 classroom.18 Second, the IEP states
that a special class in a specialized school was considered and
rejected as being too restrictive, because J.H. benefits from
having non-disabled peers as role models, and the IDEA mandates
that a child be placed in the least restrictive environment. D.
Ex. I at 18. Given that the CSE considered it educationally
inappropriate to place J.H. in a specialized school, of which
Mary McDowell is an example, the lack of discussion regarding
this option does not amount to a procedural deficiency. Indeed,
after substantial input from plaintiff regarding J.H.’s needs,
the CSE modified J.H.’s collaborative team teaching class to a
special education class with a much smaller student to teacher
ratio and more services than J.H. had previously been receiving.
The evidence indicates that plaintiff had an opportunity to
participate in the process and that the CSE took account of her
suggestions. The record contains no evidence that plaintiff
objected to the IEP as developed by the CSE. There is no evidence
in the record to support a finding that plaintiff’s input in the
18 Plaintiff testified that in J.H.’s old classroom, his teachers “did their best in trying to support him... but there was 24 children in that class. You know, the para, he didn’t have his own para. The para also had a very nice relationship with him, but there was 24 other children in that class.” Tr. 135.
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process was “significantly impeded” such that J.H. was denied a
FAPE.
d. Alleged Change in IEP Recommendation from 12:1 to 12:1:1
New York law requires that “the IEP shall list measurable
annual goals, including academic and functional goals, consistent
with the student’s needs and abilities.” 8 NYCRR §
200.4(d)(2)(iii)(a). Plaintiff alleges that the IEP developed the
goals and needs for a 12:1 program mandate, and then later
changed the mandate to 12:1:1 without updating the goals and
needs. The record establishes that there were not two IEPs, but
rather a single IEP, which was developed over the course of the
CSE review process. The 12:1 program was never formally made part
of the IEP, but was merely discussed among participants and later
rejected. See Tr. 22. Because there was no change in the mandate
for J.H.’s classroom structure, there was no requirement to
reconvene the CSE team to discuss other changes in goals and
objectives.
B. Substantive Adequacy
I turn to whether the IEP was reasonably calculated to
confer educational benefits. The Second Circuit has described the
standard as follows:
IDEA does not itself articulate any specific level of educational benefits that must be provided through an
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IEP. The Supreme Court, however, has specifically rejected the contention that the “‘appropriate” education” mandated by IDEA requires states to “maximize the potential of handicapped children.” [Rowley,] 458 U.S. at 196 n.21, 189. The purpose of the Act was “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.” Id. at 192; accord Lunceford v. District of Columbia Bd. of Educ., 241 U.S. App. D.C. 1, 745 F.2d 1577, 1583 (D.C. Cir. 1984) (Ruth Bader Ginsburg, J.) (because public “resources are not infinite,” federal law “does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child”). Plainly, however, the door of public education must be opened for a disabled child in a “meaningful” way. [Rowley], 458 U.S. at 192. This is not done if an IEP affords the opportunity for only “trivial advancement.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (quoting Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 183 (3d Cir. 1988)). An appropriate public education under IDEA is one that is “likely to produce progress, not regression.” Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 248 (3d Cir. 1997) (internal citation omitted), cert. denied, 139 L. Ed. 2d 636, 118 S. Ct. 690 (1998).
Walczak, 142 F.3d at 130.
Plaintiff argues that defendant failed to comply with the
substantive requirements of the IDEA because (1) the large size
of PS 32 is inappropriate to meet J.H.’s needs, (2) the goals,
objectives and behavior intervention plan sections of the IEP
fail to address J.H.’s education needs, and (3) the IEP’s
behavioral intervention plan was incorrectly formulated. For the
reasons stated below, I find that only the first argument has
merit.
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c. Size of PS 32
Plaintiff contends that the large size of PS 32 would have
been an inappropriate learning environment for J.H. Considering
this question on appeal, the SRO noted that Dr. Brandt testified
that the 12:1:1 classroom setting was appropriate for J.H., and
noted that the CSE considered whether J.H. should be placed in a
special school, but rejected that option as being too
restrictive, given that J.H. would benefit from interaction with
non-disabled peers. The SRO found that the hearing evidence
showed that instruction in a large classroom was not appropriate
for J.H., but there was no indication that interaction with
general education peers in a larger setting would be detrimental.
SRO Decision at 13.
In response, plaintiff cites Dr. Brandt’s assessment that
J.H. required not only a special education classroom, but also a
nurturing school environment without undue distractions and
transitions. See Pl. Ex. D. Plaintiff points to the overall size
of PS 32 (250 students), the large number of students sharing the
lunch room (75 students), the fact that his reading group would
have required him to perform independent reading, and the fact
that J.H. would have attended three classes outside of his
regular classroom, necessitating transitions that could leave
J.H. disoriented and distracted. Plaintiff places particular
emphasis on the lack of supervision and structure during lunch
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and recess, citing reports that J.H. had difficulty knowing how
to interact with other students and that he became easily
overwhelmed in unstructured environments.
Defendant correctly points out that, at the public school
designated by J.H.’s IEP, J.H. would have received instruction in
small classes alongside students with comparable learning
difficulties, as well as one-on-one therapy sessions several
times a week in a manner appropriate for his needs, and that
there is no evidence that this learning environment would not
have been appropriate for J.H. However, it is significant that
the IEP made no provision to assist J.H. in navigating
transitions between classes and interacting with students
appropriately in the lunch room and at recess, despite the fact
that the IEP heard testimony from Dr. Brandt and J.H.’s teacher
at Mary McDowell that J.H. encounters significant obstacles in
such environments. Two striking examples include Dr. Brandt’s
testimony that J.H. became lost as he walked from one end of the
classroom to the other during reading time, and Ms. Crafton’s
testimony that J.H. ate with two utensils and shoveled food into
his mouth in a manner disturbing to other children. Without
special guidance between classes and at lunch and recess, J.H.
may become incapacitated and isolated in a manner that could
significantly impact his ability to progress academically.
Defendant maintains that there is no evidence that these
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sorts of limitations had a negative effect on J.H.’s academic
development. However, given Dr. Brandt’s testimony that J.H.
requires extensive time to become refocused after a distraction,
J.H.’s experiences outside of the classroom are certainly
relevant to his academic success. A 20 minute delay in focusing
following the lunch and recess period and following each
transition to a new classroom would significantly impact J.H.’s
classroom experience. These observations do not inherently
disqualify PS 32 an inappropriate placement for J.H.; rather, the
IEP must take these issues into account and explore whether
accommodations could be made to address them. Solutions might
include assigning J.H. a monitor to assist him in transitioning
between classes and engaging in appropriate interactions at lunch
and recess. Because the IEP did not include any provision for
J.H.’s needs within school but outside his home room, it was not
reasonably calculated to provide him educational benefits.
b. Goals and Objectives
An IEP is substantively invalid if it does not include
appropriate goals, which must address the child’s special
education needs. 8 NYCRR 200.4(d)(2)(iii); SRO Decision at 7.
Plaintiff claims that the goals in J.H.’s IEP fail to address his
deficits and individualized needs, based on the lack of math
goals and the fact that many goals are set at the kindergarten
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level. The record indicates that J.H. did not have deficiencies
in math that merited the development of math goals. Dr. Brandt
reported no math-related concerns or challenges. The teacher
reports as reflected in the IEP contained numerous concerns
regarding J.H.’s language and writing skills, but no concerns
regarding math. D. Ex. 1 at 4. Given that J.H.’s math skills were
not an area of particular weakness, the SRO correctly found that
there was no requirement to include math goals in the IEP and
there was no denial of FAPE on this ground. Regarding the IEP’s
setting of reading goals at the kindergarten level, the SRO
reasonably found that J.H.’s severe delays in this area required
goal setting below his grade level. See SRO Decision at 11.
c. Functional Behavioral Assessment
The IDEA states that, in the case of a child whose behavior
impedes learning, the IEP should “consider the use of positive
behavioral interventions and supports, and other strategies, to
address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i). Plaintiff
alleges that the IEP’s behavior intervention plan was deficient
because it was not supported by a Functional Behavioral
Assessment (“FBA”), which is “the process of determining why the
student engages in behaviors that impede learning and how the
student’s behavior relates to the environment.” 8 NYCRR §
200.1(r); see also 8 NYCRR 200.22(a)(3). However, the IEP’s
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behavioral intervention recommendations were based on the
thorough report prepared by Dr. Brandt, which detailed J.H.’s
problems with distractability and formulated strategies for
focusing J.H.’s attention.19 The positive behavioral intervention
services and supports recommended by the IEP were consistent with
the requirements of the IDEA. There is no evidence that the
failure to conduct a functional behavioral assessment resulted in
a denial of a FAPE to J.H. See A.C., 553 F.3d at 172.
C. Balance of the Equities
Although the IEP contained significant errors, I need not
consider whether plaintiff’s unilateral placement of her son at
Mary McDowell was appropriate, because plaintiff has “not
sustained [her] burden of proving that equitable considerations
favor [her] claim.” Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp.
2d 402, 417 (S.D.N.Y. 2005). Plaintiff alleges that she
“mentioned” to the CSE team on March 30 that she was
“considering” Mary McDowell. However, she did not tell them that
she had made a non-refundable $5,000 deposit for the following
school year, nor did she alert them that after May 1, she would
19 The behavior intervention plan outlined a goal of having J.H. remain on task for five minutes at a time. Strategies for achieving this goal were that rewarding him for good behavior and offering him reminders from teachers about expectations for performance. D. Ex. 1 at 20. In addition, the IEP provided for the provision of speech, language, and occupational therapy, a smaller classroom, and the assistance of a paraprofessional to provide support for J.H.
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be bound to pay the full tuition. See Tr. 159. “Certainly a major
consideration in [determining whether the equitable factors
support reimbursement] is whether the parents have cooperated
with the City throughout the process to ensure their child
receive a FAPE.” Bettinger v. N.Y. City Bd. of Educ., 2007 U.S.
Dist. LEXIS 86116, *23-24 (S.D.N.Y. November 20, 2007). By the
time DOE made its Final Notice of Recommendation in July of 2007,
plaintiff had already committed to paying Mary McDowell $38,000
for the following year. Plaintiff’s claims that she sent letters
to the DOE regarding her placement that went unanswered and that
she visited PS 32 and was given incorrect information regarding
J.H.’s classroom are irrelevant in light of this fact, as it is
clear that she had already decided not to accept the DOE’s
recommendation.
If plaintiff had raised her strong concerns and her
intention to enroll at Mary McDowell at the time of the CSE
meeting in late March, defendant would have had an opportunity to
respond to her concerns. Instead, she unilaterally chose to place
J.H. in Mary McDowell before the DOE’s process was complete.
“[B]y selecting [the Mary McDowell School] without first
fulfilling [her] obligation to work together with school
officials to find a placement that was appropriate,” plaintiff
demonstrated that she did not seriously intend to enroll J.H. in
public school. See Tucker v. Bay Shore Sch. Dist., 873 F.2d 563,
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567 (2d Cir. 1989). To permit reimbursement in such a
circumstance would encourage parents to sidestep the process
established by Congress and New York law to ensure that disabled
children receive a free appropriate public education.20
III. Declaratory Judgment
Plaintiff additionally seeks a declaratory judgment that
defendant violated the IDEA by developing an inadequate IEP.
In order to decide whether to entertain an action for
declaratory judgment, a court must ask: “(1) whether the judgment
will serve a useful purpose in clarifying or settling the legal
issues involved; and (2) whether a judgment would finalize the
controversy and offer relief from uncertainty.” Duane Reade, Inc.
v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir.
2005) (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d
998, 1001 (2d Cir. 1969)). “If either prong is met, the action
20 In addition, although plaintiff allegedly sent letters to Mr. Larry Parker in the summer of 2007 alerting him to her concerns about J.H.’s placement, she failed to object to the IEP in the manner dictated by the Final Notice of Recommendation, which provided the name and contact information of D.A. Mimms, whom plaintiff could contact if she wished to contest J.H.’s placement. “Courts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child’s IEP.” M.C., 226 F.3d at 68 (citing cases); see also Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 (3d Cir. 1994) (“As a practical reality, and as a matter of procedural law..., the right of review contains a corresponding parental duty to unequivocally place in issue the appropriateness of an IEP.”). Plaintiff’s notification of a person not listed on the form did not suffice to provide notice to the Department of Education that she was contesting her placement. Plaintiff asserts that Larry Parker was listed on the form as an additional contact person. However, the form provided in the record contains no reference to Mr. Parker. See D. Ex. 6.
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must be entertained.” Continental Cas. Co. v. Coastal Sav. Bank,
977 F.2d 734, 737 (2d Cir. 1992).
Although the challenged IEP was created for the 2007-2008
school year, which has passed, IEPs for disabled students are
created annually, and must describe the specially designed
instruction and services that will enable the child to meet
educational objectives. Id. 20 U.S.C. § 1414(d)(1). Errors in one
IEP may be repeated in subsequent IEPs, as is evidenced by the
fact that J.H. spent two years in a CTT kindergarten classroom
that was not properly tailored to his disabilities. Accordingly,
a declaratory judgment that the 2007-2008 IEP developed for J.H.
was procedurally and substantively deficient is useful in
“clarifying or settling” the adequacy of any subsequent IEPs
developed for J.H. pursuant to the IDEA. See Lillbask ex rel.
Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 94 (2d Cir. 2005)
(where hearing officer erred in ruling that she lacked
jurisdiction to consider child’s safety concerns in connection
with a proposed IEP, but the challenged IEP was never
implemented, and therefore it would be futile to remand for
correction of that particular plan, the Court directed the
district court on remand to grant declaratory judgment in favor
of plaintiff “to ensure that defendants understand that safety
concerns may be considered in development and review of future
IEPs.”). Plaintiff is granted a declaratory judgment to the
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following effect: the IEP was deficient in that a special
education teacher of J.H. was lacking from the CSA team and the
IEP failed to make accommodations for J.H. that addressed the
distractions he faced in school but outside the classroom.
CONCLUSION
For the reasons stated herein, plaintiff’s petition to
overturn the SRO decision and receive reimbursement for tuition
paid during the 2007-2008 school year to privately educate her
child is denied. Plaintiff is granted a declaratory judgment that
defendant failed to comply with the requirements of the IDEA as
more fully described herein. The Clerk is directed to transmit a
copy of the within to all parties and the assigned Magistrate
Judge.
SO ORDERED.
Dated: Brooklyn, New York August 20, 2009
By: /s/ Charles P. Sifton (electronically signed) United States District Judge