UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------)( * JAN132011 * L.K. and AK. on behalf of AK., BROOKLYN OFFICE Plaintiffs,
-against- MEMORANDUM AND ORDER 09-CV -2266 (RMM)(L8) THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK,
Defendant. ----------------------------------------------------)( MAUSKOPF, United States District Judge.
Parents L.K. and AK., on behalf of their disabled child, AK., bring this action pursuant
to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2)(8)(iii),
seeking "modified de novo review" of a March 13, 2009 decision by a State Review Officer
("SRO"). That SRO decision affirmed a December 12, 2008 decision by an Impartial Hearing
Officer ("IHO"), which concluded that Defendant Department of Education's ("DOE")
Individualized Educational Plan ("IEP") for the 2006-07 school year was reasonably calculated
to provide AK. with a free and appropriate public education ("F APE"). Disagreeing with that
determination, the parents unilaterally enrolled their son at Reach for the Stars School ("RFTS"),
a private institution. On summary judgment, I they now seek reimbursement for the substantial
tuition paid to RFTS, and the DOE cross-moves for summary judgment dismissing the
Complaint.
For the reasons that follow, this Court gives deference to the facts found and legal
conclusions carefully and thoroughly reached by both the IHO and SRO decisions. See Walczak
The parties' cross-motions for summary judgment are predicated exclusively on the basis of the record produced in the State administrative proceedings.
v. Fla. Union Free Sch. Dist., 142 F.3d 119,129 (2d CiT. 1998). Having reviewed those
administrative decisions under the applicable modified de novo review standard, this Court
agrees that the DOE complied with the IDEA's procedural requirements, and that the resulting
IEPs were reasonably calculated to provide A.K. with a FAPE. Accordingly, the DOE's motion
for summary judgment is GRANTED, the Plaintiffs' motion for tuition reimbursement is
DENIED, and the Complaint is DISMISSED.
FACTUAL BACKGROUND
In reviewing the SRO's March 13,2009 decision, it is apparent that the evidence cited
amply supports the factual findings therein. The SRO's tindings of fact are due appropriate
deference by this Court, which is not an expert on education or childhood learning disabilities.
This Court therefore adopts the SRO's findings of fact as its own. See Ws. v. Rye City Sch.
Dist., 454 F. Supp. 2d 134, 145 (S.D.N.Y. 2006) (adopting the SRO's well-articulated factual
findings). For the sake of convenience, however, the facts relevant to the instant determination
are restated in summary fashion as follows.
In 2005, at the age of two, A.K. was diagnosed with Pervasive Developmental Disorder
and also underwent treatment for elevated lead levels. Upon examination, 2 his overall cognitive
functioning was found to be mildly delayed. In addition, he exhibited a history of chronic throat
infections and an allergy to citrus fruits. He began receiving early intervention services,
including applied behavior analysis and speech-language and occupational therapies.
In January 2006, upon entering pre-school, A.K. further underwent both educational and
psychological evaluation in an effort to determine his preschool eligibility. Psychological testing
2 As set forth in the SRO's decision, A.K. was first evaluated because he did not speak, was not toilet trained, and did not play or interact with adults.
2
included administration of the Stanford-Binet Intelligence Scales, which yielded a nonverbal IQ
score of 61, and a score of 56 in both verbal and full-scale IQ. Those results demonstrated
"mildly-delayed" intellectual functioning. The evaluator next administered the Vineland
Adaptive Behavior Scales, which revealed a "low" adaptive level in communication, daily living
skills, and adaptive behavior, and a "mod low" adaptive level in socialization and motor skills.
The educational evaluation included completion of (1) the Developmental Assessment of
Young Children, (2) a parent interview, (3) a teacher interview, and (4) a clinical observation.
During the classroom observation, the evaluator noted that AK. sat nicely during circle time,
demonstrating interest in the teacher and activities, but required hand-over-hand prompting to
imitate hand motions and finger play, and was unable to identify his own picture amongst
pictures of peers. Based upon an interview with AK.'s teachers, the evaluator determined that
AK. was unable to function independently in his then-current class setting. The evaluator
recommended that the student be placed in a full-day, twelve-month, 6:1+2 special education
classroom (six students, one teacher, and two teaching aides). She also "highly" recommended a
I: I paraprofessional to allow A.K. to learn new skills, and further recommended more
comprehensive speech-language and occupational therapy evaluations.
On February 28, 2006, A.K.'s parents met with the Committee on Preschool Special
Education ("CPSE"). Based on (1) the psychological and educational evaluations discussed
above, (2) a social history (comprised of AK.'s family information, medical history, and a
written report of parental concerns and priorities), and (3) evaluations from A.K.'s occupational
and speech-language therapy providers, the CPSE issued an individualized education program
("February IEP"), recommending a twelve-month preschool program with placement in a 6: I +2
special class for five hours per day, five days per week to commence in September of 2006. The
3
February IEP included "draft" goals and short-term objectives to address A.K's deficits in
readiness skills, socialization, gross and fine motor skills, activities of daily living, self-
awareness and self-care, and language skills.
A.K.'s parents agreed that AK.'s preschool transition pursuant to the February IEP
would be delayed until the start of the fall school year and that in the interim, AK.'s early
intervention services, which the parents characterized as successful, would continue throughout
the summer months. In early June 2006, however, A.K.'s father contacted the CPSE chairperson
and requested that A.K.'s transition to preschool services be advanced to July rather than
September. At a subsequent hearing before an impartial hearing officer ("IHO"), AK.'s father
testified that he sought out and considered several preschool programs. Ultimately, he settled on
the preschool program at Shema Kolainu, a New York City public school. In June 2006, after a
classroom observation and meeting with Shema Kolainu administrators, A.K.'s father
determined that the 6: 1+3 environment was appropriate. 3
The CPSE reconvened on June 21, 2006, and was comprised of(1) A.K's father, (2) the
CPSE chairperson,4 (3) a regular education teacher, and (4) a special education teacher from
Shema Kolainu, who participated by telephone. The IEP issued that day (the "June IEP")
designated Shema Kolainu as an appropriate placement, and recommended that AK. be enrolled
in a twelve-month special education preschool class with a 6: 1+3 staffing ratio - an improved
ratio over the February IEP. The June IEP further recommended that A.K. receive after-school
It is undisputed that AX.'s father expressed concerns about the lack of I: I paraprofessional at Shema Kolainu. According to the IHO decision, the CPSE chairperson held that position for eight years, and is certified in early childhood and special education. Additionally, she is certified by the New York State in supervision administration.
4
services consisting of a Special Education Itinerant Teacher ("SEIT"), speech-language therapy.s
and occupational therapy. The June IEP's performance level, recommended goals, and short-
term objectives did not differ from the February IEP, and those categories that previously had
been designated "draft" were made final.
At the June 21st meeting, AK.'s father again voiced his concern that the IEP did not
provide for a 1: 1 paraprofessional-to-student ratio for his son. 6 However, during the subsequent
IHO hearing, AK. 's father testified that his fears were "put aside," because Shema Kolainu
administrators recommended a wait-and-see approach and assured him that the matter would be
revisited if necessary. On this point, Shema Kolainu's educational director (a board certified
behavior analyst) testified that although the staffing ratio at the School was 6:1+3 (better than the
6:1+2 ratio recommended by AK.'s education evaluators in January of2006), that ratio was
often reduced as students rotated in and out of class to receive individualized educational
services.
A.K. began attending Shema Kolainu on July 5, 2006. Shortly thereafter, on July 12,
2006, A.K. 's father observed AK. 's class. Based on that observation, he expressed his concerns
that a 1: 1 paraprofessional was necessary, that the teacher was not appropriately "certified," that
AK. 's speech therapy was too infrequent, and that AK. was unsupervised for fifteen minutes at
a time. On August 8, 2006, the parents sent a letter to the CPSE claiming that AK. was not
"receiving an appropriate education at Shema Kolainu" and requested a "CPSE meeting to
discuss their concerns."
The June IEP provided for two individual thirty-minute and one group thirty-minute session of speech- language therapy at Shema Kolainu, as well as three hours per week of speech-language therapy after school. A.K. 's parents testified that their request for a I: I paraprofessional was based on medical necessity, given A.K.'s elevated lead levels and food allergies. Notwithstanding that concern, it is not disputed that A.K.'s evaluators did not confinn a medical need for a 1: I paraprofessional, nor did A.K. 's parents provide any medical documentation to that effect.
5
On September 1,2006, before receiving a reply from the CPSE, AK.'s parents
unilaterally enrolled him at RTFS. On September 11,2006, AK.'s parents received notice that a
CPSE meeting was scheduled for September 27,2006. During the September 27,2006 meeting,
the CPSE issued a modified IEP ("September IEP") to include a 1: 1 paraprofessional as
requested. Additionally, the CPSE also revised the student's academic performance goals and
learning characteristics, and reduced the speech therapy class size to improve instruction. The
September IEP continued AK.'s twelve-month, 6:1+3 special education preschool class at
Shema Kolainu, as well as after-school SEIT services.
Notwithstanding revisions to the IEP, including the requested 1:1 paraprofessional,
AK.'s parents would not consider enrollment at Shema Kolainu because they had already paid
$20,000 to RFTS. After the September CPSE meeting, A.K. continued attending RFTS for the
duration of the 2006-07 school year.
On October 13, 2006, the parents filed a due process complaint notice challenging both
the June and September IEPs, and requested tuition reimbursement for the student's 2006-07
school year at RFTS. A hearing was held over five days from November 28, 2007 through May
20,2008 before an IHO. The IHO issued a thirty-page decision dated December 12,2008,
denying the parents' reimbursement request. The IHO found that the CPSE team was properly
constituted, the student made progress while attending Shema Kolainu, and the parents had failed
to provide the CPSE with written notice of his unilateral placement of the student at RFTS,
precluding reimbursement on equitable grounds.
Proceeding pro se, A.K.'s father appealed the IHO's decision to the New York State
Education Department's Office of State Review. In a twelve-page decision dated March 13,
2009, the SRO denied the appeal, finding that the CPSEs did not violate IDEA procedures, and
6
that the June IEP was reasonably calculated to provide A.K. with a free and appropriate public
education. Having determined that the DOE offered the student a FAPE for the 2006-07 school
year, the SRO declined to address whether RFTS was an appropriate unilateral placement and
declined to address whether equitable considerations supported an award of reimbursement.
IDEA STANDARD
A. Tuition Reimbursement Framework
The IDEA's guarantee of a free appropriate public education for children with disabilities
reimburses parents for unilateral private school placement under certain conditions. Sch. Comm.
of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1996). Pursuant to Burlington, a
school district may be required to pay for educational services obtained for a child by his or her
parent if: (1) the services offered by the board of education were inadequate or inappropriate, (2)
the services selected by the parent were appropriate, and (3) equitable considerations support the
parents' claim. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005); MS. v. Bd.
ofEduc.ofthe City Sch. Dist. of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000).
This Circuit has historically placed the burden of proof for the first issue (i.e., the
adequacy of the services) on the school district, and the burden of proof for the other issues on
the parents. MS., 231 F.3d at 102, 104. More recently, however, the Supreme Court of the
United States has ruled that the party requesting an impartial hearing bears the burden of proving
that the services offered by the Board were inadequate. Schaffer v. Weast, 546 U.S. 49 (2005).
As set forth in the SRO determination, in 2007 New York's legislature departed from Schaffer
and amended N ew York's Education Law § 4404(1)( c) to require that parents challenging the
adequacy of an IEP bear the burden only of establishing the appropriateness of the child's
7
alternative placement. Thus, under New York law, the burden to establish the adequacy of the
IEP is born exclusively by the defendant school district. However, the 2007 amendment to the
Education Law is not retroactive (see, L. 2007, c. 583 legislation ("This act shall take effect on
the sixtieth day [Oct. 14, 2007] after it shall have become law and shall apply to impartial
hearings commenced on or after such effective date ... "» and is therefore not applicable to
A.K.'s 2006 IEP appeals. Schaffer thus provides the controlling standard, and the burden for
establishing the inadequacy of A.K. 's 2006 IEP's rests squarely with his parents.
Notwithstanding the legislative amendment to the requisite legal standard, Plaintiffs'
reimbursement claim fails under either fonnulation.
Moreover, although the Supreme Court stated that this requirement applies equally to the
party challenges the IEP, it is inconceivable that a school district would ever challenge its own
IEP recommendation. As a practical matter, then, the burden of proving the inadequacy of the
IEP rests exclusively on the parents. Ws., 454 F. Supp. 2d at \38.
Under the first Burlington factor, two issues are relevant to a tuition reimbursement
detennination: "(1) whether the state complied with the procedural requirements of IDEA, and
(2) whether the challenged IEP was 'reasonably calculated to enable the child to receive
educational benefits.'" Walczak, 142 F.3d at 129 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176,
206 (1982».
B. Exhaustion of Administrative Remedies
Plaintiffs who bring suit under the IDEA must first exhaust the administrative remedies
available to them under the statute. A party who disagrees with his child's IEP or other decisions
regarding services for their child must request an impartial due process hearing before the state
8
or local educational agency. See 20 U.S.C. §§ 1415(t), (I); 16 N.Y. Educ. Law § 4404. Only
after the administrative procedures are exhausted mayan aggrieved parent seek court review of
the adequacy of the IEP. See Hope v. Cortines, 69 F.3d 687 (2d Cir. 1995); Heldman v. Sobol,
962 F.2d 148, 158 (2d Cir. 1992); Mrs. W v. Tirozzi, 832 F.2d 748 (2d Cir. 1987); Riley v.
Ambach, 668 F.2d 635, 640 (2d Cir. 1981). The "failure to exhaust deprives a district court of
subject matter jurisdiction over the [action]." Engwiller v. Pine Plains Cent. Sch. Dist., 110 F.
Supp. 2d 236, 245 (S.D.N.Y. 2000).
Plaintiffs have exhausted their administrative remedies as to the 2006-07 school year. An
SRO affirmed the decision by an IHO to deny tuition reimbursement. On May 28, 2009, the
instant tuition reimbursement action was timely filed in this Court.
C. District Court Review of Administrative Determinations
"[A] motion for summary judgment in an IDEA case often triggers more than an inquiry
into possible disputed issues of fact. Rather, the motion serves as a 'pragmatic procedural
mechanism' for reviewing" a prior administrative determination. Lillbask ex reI. Mauclaire v.
Conn. Dep 't of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (quoting Warton v. New Fairfield Bd.
of Educ., 217 F. Supp. 2d 161, 270 (D. Conn. 2002); see also T Y, K. Y ex reI. T Y v. NY City
Dep't ofEduc., 584 F.3d 412, 418 (2d Cir. 2009) ("The court's inquiry is a results-based
standard in many respects, concerned more with a just outcome for a disabled student than with
judicial efficiency."). Cross-motions for summary judgment in IDEA cases are "in substance an
appeal from an administrative determination, not summary judgment." Capistrano Unified Sch.
Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995). Thus, the district court's role is
circumscribed in overturning administrative decisions. See TP. & s.P. v. Mamaroneck Union
9
Free Sch. Dis!., 554 F.3d 247, 252 (2d Cir. 2009). The district court's standard of review is a
"modified de novo review" ofthe administrative proceedings based on the preponderance of
evidence. 20 U.S.C. § 1415(i)(2)(C); see MN v. NY. City Dep't ofEduc., No. 09-CV-0020,
2010 WL 1244555, at *4 (S.D.N.Y. Mar. 25, 2010).
Although a district court conducts an independent review of an IDEA petition and must
apply a "preponderance of the evidence" standard, the Supreme Court has warned that the review
to be conducted "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. "While federal courts do not simply rubber starnp administrative decisions, they are
expected to give 'due weight' to these proceedings, mindful that the judiciary generally 'lacks'
the 'specialized knowledge and experience' necessary to resolve 'persistent and difficult
questions of educational policy. ", Walczak, 142 F.3d at 129 (quoting Rowley, 458 U.S. at 206)).
Deference is therefore appropriate where the administrative reviews have been thorough and
careful. Id.; accord. MH & E.K. ex reI. P.H v. NY. City Dep 't of Educ., No. 09-CV-3657,
2010 WL 1904005, at *17 (S.D.N.Y. May 10,2010).
DISCUSSION
In this case, as discussed more fully below, the decisions of both the IHO and SRO
explore the evidence thoroughly, make detailed factual findings that are supported by the
evidence, and cogently explain the reasons for the conclusions reached. The SRO's decision in
particular (the subject of the instant motion) is well-reasoned and supported by citations to
relevant portions ofthe record. As such, this Court finds no reason to stray from the deferential
standard under Walczak.
10
After de novo review, this Court concurs with the administrative determinations finding
that the DOE did not violate the IDEA's procedural requirements, and that the resulting IEPs
were substantively adequate. Consequently, this Court finds that the DOE complied with its
obligation to provide A.K. with a free and appropriate public education. His parents' application
for tuition reimbursement is therefore denied and the DOE's motion to dismiss the Complaint is
granted.
A. Procedural Claim
"The initial procedural inquiry is no mere formality." Walczak, 142 F.3d at 129.
Compliance with the procedures set forth in the IDEA is critical to ensure that the educational
needs of a disabled child are met. Rowley, 458 U.S. at 206. However, not every "procedural
error in the development of an IEP renders that IEP legally inadequate under the IDEA." Grim
v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). An IEP is deemed legally
inadequate based on a procedural error only when the procedural error "depriv[es1a student of
his right to a 'free appropriate public education. ", Id.
A.K.'s parents argue that the June and September IEPs were procedurally inadequate
because: (I) A.K.'s special education teacher did not participate in the formulation of either; (2)
failure to convene the CPSE until after the start of the academic school year left A.K.'s parents
with no option but to enroll their son in a costly private school, and therefore denied A.K. the
benefits of a FAPE; (3) and the September IEP was invalidated by the failure to include a
medical alert reflecting A.K.'s allergy to citrus products. These claims are unavailing.
The IDEA and implementing regulations require that an IEP team include "at least one
special education teacher of the child, or if appropriate at least one special education provider of
II
the child." 20 U.S.C. § 1414(d)(l)(B)(iii); 34 C.F.R. § 300.321(a); N.V. Compo R. & Regs. Tit.
8 § 200.3(a)(2)(iii). Though the absence of an appropriate special education teacher at a CPSE
meeting impedes the development of an appropriate IEP because it "deprives the student and
[his1parent of the perspective input of a special education teacher familiar with the self-
contained special education class and program recommended as appropriate for the student's
needs," no such deprivation occurred in this case. Review of the factual record indicates that two
special education teachers participated in the formulation and development of the relevant IEPs.
Accordingly, the dispositive question is whether the special education teachers who participated • 7 were appropnate.
The June IEP benefitted from the input ofChanie Kessler, A.K.'s special education
classroom instructor at Shema Kolainu. Despite Plaintiffs contention that Kessler "only
supervised A.K.'s actual classroom teacher," the record indicates otherwise. First, the
Educational Director at Shema Kolainu testified that Kessler was "considered the classroom
teacher." (Hr'g Tr. 363-66, 369-71.) Second, Kessler's familiarity with A.K.'s individual
behavioral and academic needs is manifest in her August 9, 2006 report, wherein she is identified
The Plaintiffs also contend that because the lack of a I: I paraprofessional and the insufficiency of related services were actively disputed, related special education service providers should have been part of the September IEP, and that the absence of A.K.'s RFTS special education teacher renders the September IEP procedurally invalid. However, the August 8, 2006 parental letter requesting a CPSE meeting simply states that they did "not feel their son [wasI receiving an appropriate education at Shema Kolainu," without identifying specific concerns. Because the DOE was neither given notice that the amount of related services would be the central issue of the reconvened meeting nor was aware that A.K. had been placed at RFTS until the September meeting, the Defendant cannot be held responsible for the absence of a teacher from RFTS. Plaintiffs do not allege that they attempted and were stopped from having a teacher from the RFTS present; rather, they simply argue that because a teacher from RFTS could have provided the IEP team with infonnation as to the amount of progress A.K. could have made as a result of I: I ABA (Applied Behavior Analysis) therapy, without such a member their child was denied a FAPE. However, IEP review meetings are not meant to ensure that a child's potential is maximized when the child might make more progress in a different program. See Mr. & Mrs. P. v. Newington Bd of Educ., 546 F.3d I I I, I 19 (2d Cir. 2008) ("A state need not 'maximize the potential of handicapped children,'" but simply provide public education "in a meaningful way."). Rather, the critical issue is whether modifications are needed in order for the child to make educational progress. See O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 708 (J Oth Cir. 1998) (holding an "appropriate" education required by IDEA is not one which is guaranteed to maximize the child's potential, and an lEP is not inadequate simply because parents show that a child made better progress in a different program).
12
as A.K.'s "Teacher." For example, in that progress report, she explained, "[A.K.] has begun to
learn the important skill of copying lines. We are teaching him through using physical
prompting and we hope to slowly decrease the prompting until he can imitate independently.
This is a prerequisite skill to writing letters." (See Def. 56.1 Stmt 7-8, citing Def. Ex. 5; PI. Am.
Answer Ex. A) In terms of behavioral progress, "[A.K.] is currently learning how to
communicate using a picture communications book. He is learning how to give ... the icon of
what he wants when he wants the item. [A.K.] is being trained this skill with minimal prompting
and with one icon in his book at one time." (ld.) The level of personal detail that Kessler
includes in her progress report indicates that she attended and interacted with AK. as his teacher,
and not simply as a supervisor for his teacher. (See id.) ("[AK.]'s adorable and playful
disposition enlightens those around him. We love to listen to the songs [AK.] sings."). Thus,
this Court agrees that Kessler's familiarity with A.K.'s educational and behavioral progress and
needs renders her an appropriate special education teacher for purposes of the IDEA, since she
was familiar with the class and program recommended as appropriate for the student's needs.
The other special education teacher who participated in the IEP reviews, Gili Recajny, is
the Educational Director at Shema Kolainu and is fully familiar with the special education
program at the school. There is no question that in this role, Recajny meets the statutory criteria
ofa "special education provider." 20 U.S.c. § l414(d)(l)(B)(iii); 34 C.F.R. § 300.321(a); N.Y.
Compo R. & Regs. Tit. 8 § 200.3(a)(2)(iii). This Court concludes that the CPSE meetings were
properly constituted, and that the relevant IEPs were developed with the substantial input of
educators familiar with A.K.'s individual special education needs.
Second, the parents argue that the DOE's failure to convene the CPSE until September 27
left AK. without the benefits of a F APE at the commencement of the school year; thus they had
13
no option but to emoll their son in a costly private school. This Court disagrees. Under the
IDEA, a student is not deprived ofa FAPE simply because the parents do not receive an IEP
until after the school year commences. See Schaffer v. Weast, 546 U.S. 49 (2005); see also
Application of a Child With a Disability, SRO Appeal No. 04-023 (holding that the district did
not deprive a student of a FAPE when the completed copy of the IEP was not provided until
months after the school year had commenced because the CPSE had responded in a timely
fashion). AK.'s parents sent a letter to the DOE on August 8, 2006, requesting a CPSE meeting.
The DOE responded by letter dated September II, 2006, advising them that the CPSE would
reconvene on September 27, 2006. Though the school year began on September 1,2006, the
Plaintiffs' letter constituted a referral for a reevaluation pursuant to New York State Regulation §
200.4( d), and the CPSE timely reconvened and issued a new recommendation well within the
sixty school days required by the regulations. See 8 N.Y. Compo & Regs. § 200.16(f)(6).
Further, less than a month after Plaintiffs first notified the DOE that they had "concerns" about
the recommended placement (a placement to which the parents had initially agreed), A.K.'s
father had already emolled AK. at RFTS, and subsequently testified that he had no intention of
withdrawing A.K. from that program regardless of the outcome of the CPSE meeting. (Hr' g Tr.
255,267-69,275.)
The events of the September CPSE meeting notwithstanding, Plaintiffs fail to show that
the June IEP was inappropriate such that a delay in reconvening the CPSE would continue to
deprive AK. of a FAPE. Despite Plaintiffs' contentions that no appropriate IEP was in place at
the time the school year began on September I, 2006, the IHO and the SRO both correctly found
that the June IEP was substantively appropriate. (See Aff. In Supp. Cross Mot. Summ. J. Ex. A
(SRO Dec.), at 8-15.) The CSPE Chairperson testified that in small classes with high teacher-
14
student ratios, it was common to wait and see how the student functioned in the class before
recommending a I: I paraprofessional. (Hr'g Tr. 395-96, 407, 411.) It is undisputed that AX. 's
father was not satisfied when a 1:1 paraprofessional was not recommended in the June IEP, but
he also testified that once the practice of waiting was explained to him, he " ... was satisfied that
they would revisit it." (ld at 218-19.) As promised, when the CPSE revisited the issue, they
decided to add a I: I paraprofessional because they believed it would be a "good addition," not
because it was medically required. (See SRO Dec., at 9.) Though Plaintiffs maintained at the
hearing, and argue here, that the addition of a I: I paraprofessional to the student's September
IEP was an admission that the June IEP was inappropriate, the SRO appropriately disposed of
this argument noting that, "it would be counterproductive to discourage school districts from
updating a student's educational program after commencement of the school year based upon
new input from a parent." (ld, at 11-12). Because there was an adequate IEP in place at the
commencement of the school year, the student was neither denied a FAPE nor would have been
denied a FAPE even if the September IEP had been deemed untimely.
Plaintiffs' last procedural contention is that the failure to include a medical alert
reflecting A.K. 's allergy to citrus products in the September IEP renders it invalid. This claim
must be rejected. On A.K. 's June IEP, it was noted that he had high lead levels, and "no citrus
fruits" was written under medical alerts. The Plaintiffs contend that the subsequent September
IEP was invalid because it failed to include the citrus fruit medical alert and "the teachers who
were going to implement the IEP as drafted would not know A.K.'s medical condition because it
was not contained in the September IEP." (PI. Opp. Mem. 3.) However, this assertion contradict
is contradicted by the record. Chanie Kessler, A.K.'s classroom instructor at Shema Kolainu,
participated in the drafting of the June IEP and was aware of his sensitivity to citrus fruits.
15
Kessler would also have presumably remained A.K.'s teacher ifhe were to return to Shema
Kolainu since she was his "master teacher." (Hr'g Tr. 368-78.) Thus, the failure to include the
citrus fruits medical alert in the September IEP would not have caused a difference in the level of
attention that the student would have received had he returned to Shema Kolainu.
Moreover, an IEP is only rendered invalid if it fails to provide the student a FAPE. See,
e.g., Grim, 346 F.3d at 381. Though it is troublesome that a critical medical alert was left out of
the September IEP, there is nothing in the record that shows that such medical alerts are not
contained in other forms that the teachers have on file, or that the failure to include the citrus
alert would in some way prevent A.K. from receiving an educational benefit. Since the lack of
the citrus alert did not deprive AK. of a FAPE, the deficiency did not render the IEP invalid.
B. Substantive Claim
Plaintiffs assert that A.K. was substantively denied a F APE. In support of the assertion
that AK.'s IEPs were substantively inadequate, his parents argue that: (I) the goals and
objectives reflected in the IEP were inappropriate for AK.'s needs; (2) as a practical matter, the
DOE failed to implement the recommendations ofthe June IEP, particularly with respect to
speech-language therapy; and (3) AK. failed to demonstrate appreciable progress at Shema
Kolainu, an effect attributed to the insufficiency of one-to-one applied behavioral analysis
methods, teachers inadequately trained in the education of autistic children, and inadequate
social skills training. Each of these claims fail.
An IEP is substantively invalid ifit fails to include appropriate goals. 34 C.F.R. §
300.347(a)(2); 8 N.Y. Compo R. & Regs. § 200.4(d)(2)(iii). In this case, Plaintiffs argue that
because the allegedly inappropriate annual goals remained the same between the June IEP and
16
the September IEP, AK. was denied a FAPE. The crux of their argument rests on their
allegation that AK. failed to make educational progress under the June IEP, indicating that the
performance goals therein were inappropriate. That allegation, however, is belied by the record.
Both the SRO and IHO found that AK. had made progress following the goals set forth in the
June IEP. The evaluations underlying the June 2006 IEP indicate that A.K. was unable to point
to his major body parts; identify and label common objects; or match, identify, or label colors
and shapes. (PI. 56.1 Stmt 1-2.) He was also unable to follow simple one-step directions and he
did not possess task approach, task completion, problem solving, or reasoning skills. (ld. 2.) On
August 9, 2006, Chanie Kessler prepared a progress report stating that after approximately a
month at Shema Kolainu, working pursuant to the June IEP, A.K. had mastered: (I) matching
"Mayor Johnson" pictures to digital pictures in an array of three, and was able to do so
independently with only a few gestures; (2) pointing to a variety of cultural symbols; and (3)
responding to the command "look at me" within an eight-foot distance. (See Def. 56.1 Stmt 7.)
The progress report also indicated that the student had started copying lines with physical
prompts, a prerequisite to writing letters, and was participating in several "peer programs"
encouraging social skills. (ld.) Based on the facts in the record, this Court agrees that the SRO
and IHO determinations that AK. had made substantial progress under the goals of the June IEP
were amply supported by the weight of the credible evidence. Because the June IEP, which was
in effect at the commencement of the school year, was appropriate, AK. was not denied a F APE.
Moreover, though the September IEP is substantially the same as the June IEP, Plaintiffs'
assertion that the goals remained the same between the June and September IEP's is factually
inaccurate. The September IEP includes two additional goals: (I) "[A.K.] will demonstrate
improved ability to match pictures to pictures and pictures to objects" and (2) "[A.K.] will
17
demonstrate improved ability to attend a small group activity." Between June and September of
the same year, one would anticipate that a student's annual goals would not change significantly.
Thus, few modifications made to AK. 's annual goals in the September lEP indicate the
thoroughness ofthe DOE's review, and in no way reflect a lack of progress, as Plaintiffs allege.
The Plaintiffs next contend that the student only received half of the recommended
services in speech and occupational therapy because of discrepancies between the first and last
pages of the June lEP. The record indicates that the CPSE recommended three hours per week
of speech therapy and two hours per week of occupational therapy, in addition to five hours per
week of special education itinerant teaching (see Hr'g Tr. 218); Plaintiffs claim that AK.
received only half the amount of the recommended speech-language therapy. According to
A.K.'s father, Shema Koainu administrators represented that the maximum services A.K. could
receive at the School would be limited to two thirty-minute sessions of individual speech
therapy, plus one thirty-minute group session and two thirty-minute individual sessions for
occupational therapy. (Jd. 211.)
Upon this Court's review, there is insufficient evidence in the record to determine the
amount of therapy AK. actually received. Regardless, even if this allegation is true, this Court is
without jurisdiction, as this action is limited only to the appropriateness of the relevant lEPs
pursuant to 20 U.S.c. § 1415(i)(2)(B)(iii). Whether the lEPs were substantially implemented is a
separate issue properly brought under 20 U.S.C. § 1412(a)(l). See, e.g., A.P. ex rei. Powers v.
Woodstock Ed. of Educ., 572 F. Supp. 2d 221, 231 (D. Conn. 2008). Because Plaintiffs did not
bring this issue before the rHO or the SRO, they have not exhausted their administrative
remedies for this claim and that issue is therefore not properly before this Court. See Engwiller,
110 F. Supp. 2d at 245.
18
As their final claim, Plaintiffs allege that A.K. was denied a FAPE because the continued
recommended placement at Shema Kolainu was not reasonably calculated to produce
educational progress. Plaintiffs allege that because Shema Kolainu failed to provide the student
with (I) a five day a week program based on ABA (Applied Behavior Analysis) methodology for
a twelve-month academic year, (2) a staff with specific training in autism and I: I ABA teaching
technique, and (3) a I: I teaching instructor throughout the day, the continued placement at
Shema Kolainu (as set forth in the September IEP) was not likely to produce educational
progress, particularly with regard to socialization skills.
As to Plaintiffs' first contention, both the June and the September IEPs recommended a
twelve-month program consisting of a five-hour per day, five-day per week program. Moreover,
Shema Kolainu is a "behavioral analysis school," utilizing the principles of ABA including
discrete trial training. (Hr'g Tr. 363-65, 370.) The continued placement at Shema Kolainu thus
satisfies all of the pedagogical criteria Plaintiffs claim are lacking.
Though Plaintiffs continue to assert that the staff at Shema Kolainu did not have specific
training in severe autism and I: I ABA teaching techniques, there is no indication that the
teachers were not adequately trained to implement the IEP. Oili Recajny, the director, is a board
certified behavioral analyst with a degree from Columbia University. The school's head teachers
are certified in special education and the teaching assistants are certified teacher assistants. (ld.
363-64,370.) Recajny further testified that if a "licensed" teacher has not completed the
school's training modules on ABA training, a "master teacher" is assigned to the classroom and
works with the children's portfolios and training "until the modules are completed." (ld. 370.)
As the SRO recognized, "[iJt is unclear from the hearing record the type of certification the
parent believes the student's teacher was lacking." (ld. 222-23,258-60.) Based on the record,
19
there is no evidence to support the parents' contention that the student's teachers lacked any
required training.
Finally, Plaintiffs fail to show that A.K. was denied a FAPE because he was not assigned
a I: I teaching instructor throughout the day. Though the father was "concerned" with the lack of
the I: I paraprofessional in the June IEP, and agreed to wait to see whether this was necessary,
the letter the parents sent to the CPSE requesting a reconvention of the CPSE merely stated that
they wished "to discuss their concerns" that their son was "not receiving an appropriate
education at Shema Kolainu." Only at the September CPSE meeting did it become clear that the
parents' main concern was the lack of a I: I paraprofessional, and the Committee promptly
adjusted the student's IEP to include a 1:1 paraprofessional. The Committee made clear that the
reason for including a 1: I paraprofessional was because it would make a "good addition" to the
IEP, not because it was medically or educationally necessary. Despite this concession, the
parents refused the September IEP because A.K. "was already enrolled at Reach for the Stars"
and they "had already paid $20,000." (ld 255,267-69,275.) Plaintiffs now contend, for the
first time, that the September IEP was insufficient because it failed to assign a 1: 1 teaching
instructor, rather than a paraprofessional. However, "[p ]arents ... do not have a right under the
IDEA to compel a school district to provide a specific program or employ a specific
methodology" in educating their child. Lachman v. Ill. State Bd of Educ., 852 F.2d 290, 294-97
(7th Cir. 1988); see also MM v. Sch. Bd of Miami-Dade Cnty., 427 F.3d 1085 (11 th Cir. 2006)
("The IDEA does not permit [parents] to challenge an IEP on the grounds that it is not the best or
most desirable program for their child."). Here, neither the psychological nor the educational
evaluation on which the CPSE relied recommends an ABA program; nor does it require a 1: I
paraprofessional. There is nothing in the record to support Plaintiffs contention that the student
20
required more supervision than a 1: 1 paraprofessional assistance, such as a I: I teaching
instructor.
Plaintiffs further stress that A.K. was denied a F APE because social skills training was
not an integral part of the recommended program and "not to have incorporated a specific plan to
address this critical deficit (such as social skills counseling in a group setting and pragmatic
training) amounts to a denial of FAPE." (PI. Opp. Mem. 7.) Again, this assertion is squarely at
odds with the facts in the record. One of the annual goals from the September IEP was for AK.
to "demonstrate improved ability to attend group activity." Under this goal, the following short·
term objectives are listed: "I) [AK.] will attend for 2·3 minutes in a group of two for physical
assistance and verbal cues seventy percent of the time; 2) [AK.] will attend for 2·3 minutes in a
group of two given physical cues and verbal cues seventy percent of the time; 3) [AK.] will
attend for 3·4 minutes in a group of 2·3 children given physical cues and verbal cues eighty
percent of the time." It seems clear that the "social skills counseling in a group setting," which
Plaintiffs bemoan as lacking were, in fact, an integral part of the September IEP and thus the
student was not denied a FAPE on these grounds.
Because the Court finds that the student was not denied a FAPE for the 2006·07 school
year, the Court need not address whether placement at RFTS was appropriate for the purposes of
reimbursement.
C. Equitable Award
Because Plaintiffs have failed to show that A.K. was denied a FAPE, the Court is not
required to consider whether the equities weigh in favor of reimbursement. See TP. v.
21
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009). Nonetheless, equity does
not warrant a different outcome.
In weighing the equities, the Court considers "whether the parents have cooperated ...
throughout the process to ensure their child receives a F APE." Bettinger v. NY City Bd. of
Educ., No. 06 CV 6889, 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). In the instant case,
the parents failed to give written notice to the district within ten business days prior to the
unilateral removal of the child from public school, which may preclude them from
reimbursement. 34 C.F.R. § 300.148(d)(l). This requirement is meant to give the school district
an opportunity to cure whatever defects the parent may find in the public placement and provide
a FAPE prior to unilateral placement. ld. Further, at the hearing, A.K.'s father explicitly
admitted he would have rejected any placement proposed by the DOE in response to his request
to reconvene because he had "already paid $20,000 to RFTS." (Hr'g Tr. 255, 267-69, 275.)
Based on these circumstances, equitable relief is not warranted.
CONCLUSION
For the reasons set forth above, the New York City Department of Education's motion
for summary judgment is GRANTED, and Plaintiffs' cross-motion is DENIED in its entirety.
The Clerk of Court is respectfully directed to close the case.
SO ORDERED.
Dated: Brooklyn, New York January :::; 2010 s/Roslynn R. Mauskopf ROSL YNN R. MAUSKOPF United States District Judge
22