UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------- X
R.K., by her parents R.K. and S.L.,
Plaintiffs/Appellants, NOT FOR PUBLICATION
-against- ORDER ADOPTING REPORT AND RECOMMENDATION NEW YORK CITY DEPARTMENT OF EDUCATION, 09-CV-4478 (KAM)(RLM) Defendant/Appellee.
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MATSUMOTO, United States District Judge:
Plaintiff-appellant R.K., a minor child, by her
parents R.K. and S.L. (the “parents”) (collectively,
“plaintiffs”) commenced this action against the New York City
Department of Education (“DOE” or “defendant”), seeking relief
under the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400 et seq., and regulations promulgated
thereunder, as well as the New York State Education Law and its
implementing regulations. (See ECF No. 1, Complaint.) Before
the court are the parties’ cross-motions for summary judgment.
(See ECF No. 20, [Defendant’s] Notice of Motion for Summary
Judgment; ECF No. 21, Defendant’s Memorandum of Law in Support
of Their [sic] Motion for Summary Judgment (“Def. Mem.”); ECF
No. 27, [Plaintiffs’] Notice of Motion; ECF No. 30, Plaintiffs’
Memorandum of Law in Support of Their Motion for Modified De
Novo Review (“Pl. Mem.”).)
Magistrate Judge Roanne L. Mann has issued a Report
and Recommendation (“R&R”) recommending that plaintiffs’ motion
be granted, defendant’s motion be denied, and that plaintiffs
be awarded full tuition reimbursement for R.K.’s alternate
placement for the 2008-2009 academic year. (ECF No. 59, R&R
dated Jan. 21, 2011.) Both plaintiffs and defendant have
timely objected to the R&R. (See ECF No. 62, Letter dated Feb.
18, 2011 (“Pl. Obj.”); ECF No. 63, Defendant’s Memorandum of
Law in Support of It’s [sic] Objections to Magistrate Judge
Mann’s Report and Recommendation dated January 21, 2011 (“Def.
Obj.”).) Having undertaken a de novo review of the record in
light of the parties’ written objections pursuant to 28 U.S.C.
§ 636(b)(1)(C), the court incorporates the R&R by reference and
adopts it in its entirety.
STANDARD OF REVIEW
I. Review of Report and Recommendation
To the extent that a party makes specific and timely
objections to a magistrate’s findings, the court must apply a
de novo standard of review. United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997); 28 U.S.C. § 636(b)(1)(C). Upon
such de novo review, the district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
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II. Underlying Dispute
As Magistrate Judge Mann set forth in her R&R, in
determining whether the school district complied with IDEA, the
court employs a modified standard of de novo review, affording
the administrative decisionmaker some deference while
conducting an independent review of the record. See, e.g.,
Wall v. Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 501, 507-
08 (E.D.N.Y. 1996) (“The court does not use the substantial
evidence standard typically applied in the review of
administrative agency decisions, but instead must decide
independently whether the requirements of IDEA are met.”)
(citation omitted). IDEA requires the court to use a
“preponderance of the evidence” standard in reviewing
administrative proceedings, 20 U.S.C. § 1415(i)(2)(C)(iii), and
permits judicial resolution of disputed issues of fact. See
M.N. ex rel. J.N. v. New York City Dep’t of Educ., 700 F. Supp.
2d 356, 364 (S.D.N.Y. 2010). Courts must give “due weight” to
the administrative proceedings and may not “substitute their
own notions of sound educational policy . . . .” Bd. of Educ.
v. Rowley, 458 U.S. 176, 206 (1982). Nevertheless, “the amount
of weight” afforded to the administrative proceedings “is
subject to the court’s exercise of informed discretion and
should be based, in part, on the thoroughness of the
administrative findings.” Wall, 945 F. Supp. at 507.
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Magistrate Judge Mann thoroughly conducted an
independent review of the record, giving due weight to the
administrative proceedings and properly analyzing and applying
the statutory and regulatory requirements of IDEA and state
law. To summarize, IDEA requires states to offer a free
appropriate public education (“FAPE”) to all children with
disabilities, and to set forth in an individualized education
program (“IEP”), special education and related services, which
must be “tailored to meet the unique needs of the particular
child and be reasonably calculated to enable the child to
receive educational benefits.” E.S. ex rel. B.S. v. Katonah-
Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 423 (S.D.N.Y. 2010);
see also 20 U.S.C. § 1401(9); Rowley, 458 U.S. at 187-88
(1982).
As Magistrate Judge Mann’s R&R notes, “[i]f parents
of a disabled child are dissatisfied with their child’s public
school placement or otherwise believe that their child has been
denied a FAPE, they may unilaterally place their child in a
private school and seek tuition reimbursement from the local
school district.” (ECF No. 59, R&R at 8) (citing 20 U.S.C.
§ 1412(a)(10)(C); M.P.G. ex rel. J.P. v. New York City Dep’t of
Educ., No. 08 Civ. 8051 (TPG), 2010 WL 3398256, at *2 (S.D.N.Y.
Aug. 27, 2010)). Parents may present their request for
reimbursement at a hearing before an impartial hearing officer
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(“IHO”). The IHO’s decision may be appealed to the state
review officer (“SRO”), whose decision may then be reviewed in
state or federal court. Id.
To determine whether the local school district must
reimburse parents, the district court applies the “Burlington-
Carter test.” Reimbursement is appropriate when (1) the school
district has provided an “inadequate or inappropriate”
placement; (2) the parents’ selected program is appropriate;
and (3) the equities favor the parents. See Sch. Comm. of
Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 (1985)
(“Burlington”); Florence Cnty. Sch. Dist. Four v. Carter, 510
U.S. 7, 12-13 (1993)(“Carter”).
DISCUSSION
The detailed facts in this matter are set forth in
Magistrate Judge Mann’s R&R. In light of both parties’ timely
objections, the court has undertaken a de novo review of the
full record including the applicable law, the pleadings, the
underlying record, the parties’ submissions on the instant
motions, the R&R, and the parties’ objections to the R&R. See
28 U.S.C. § 636(b)(1)(C).
Defendant poses three central objections to the R&R.
First, under Prong I of the Burlington-Carter test, defendant
argues that Magistrate Judge Mann erroneously found that
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defendant did not offer R.K. a FAPE. Specifically, defendant
argues that Magistrate Judge Mann erroneously (1) found that
defendant’s failure to include a functional behavioral
assessment (“FBA”) and behavior intervention plan (“BIP”) in
R.K.’s IEP was a substantial omission which deprived R.K. of
her right to a FAPE; (2) found that the SRO implied that R.K.’s
interfering behaviors did not impede her learning; (3) failed
to afford deference to the SRO or defendant by concluding that
R.K.’s IEP did not adequately address R.K.’s interfering
behaviors; (4) found that the lack of parent training and
counseling and speech and language therapy amounted to a
violation of FAPE; and (5) failed to employ the correct
standard to determine whether defendant’s proposed program was
inappropriate.
Second, under Prong II of the Burlington-Carter test,
defendant argues that Magistrate Judge Mann erroneously found
that the Brooklyn Autism Center (“BAC”) program that plaintiffs
unilaterally obtained for R.K. was reasonably calculated to
provide R.K. with meaningful educational benefits. Defendant
argues that Magistrate Judge Mann erred because “[p]laintiffs
did not demonstrate that the program at BAC was specially
tailored to meet R.K.’s unique needs. The underlying
administrative record established – and the IHO correctly found
– that BAC provides for no therapies in the classroom, and
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there are no integrated efforts between the therapist and the
teacher.” (ECF No. 63, Def. Obj. at 25.)
Third, under Prong III of the Burlington-Carter test,
defendant argues that Magistrate Judge Mann erroneously found
that the equities favor the plaintiffs. Defendant argues that
“[p]laintiffs wanted R.K. to attend BAC as soon as they visited
that school, and never made an effort to work with the
Defendant to address their concerns about the IEP. Instead,
plaintiffs gave Defendant an ultimatum: find a placement that
provided the same program and services recommended by the
McCarton report and offered by BAC; or we will place R.K. in
BAC and look to you for reimbursement.” (ECF No. 63, Def. Obj.
at 27.) Defendant argues that “[s]uch a failure to cooperate
warrants a finding that the equitable considerations favor the
Defendant.” (Id.)
For their part, plaintiffs submit that they “are in
complete agreement” with Magistrate Judge Mann’s “core findings
in plaintiffs’ favor as to Prongs I, II, and III of the
Burlington/Carter reimbursement test,” but submit limited
objections “identifying certain additional Prong I violations
and related matters” that Magistrate Judge Mann rejected. (ECF
No. 62, Pl. Obj. at 1.) Specifically, plaintiffs make three
objections. First, plaintiffs object to Magistrate Judge
Mann’s finding that “the Parents were not prevented from
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meaningfully participating at the IEP meeting.” (ECF No. 62,
Pl. Obj. at 1-2; ECF No. 59, R&R at 32.) Specifically,
plaintiffs argue that “defendant never shared its IEP draft
with S.K.’s [sic] parents during the IEP meeting, when it would
have been useful to do so. Nor did defendant give genuine
consideration to plaintiffs’ private evaluations, reports and
recommendations. When it came time to select the school,
plaintiffs were not contracted or included in the process until
after defendant unilaterally selected a site.” (ECF No. 59,
R&R at 1-2.)
Second, plaintiffs argue that Magistrate Judge Mann
erred in finding that “plaintiffs had failed to establish a
cognizable basis for bias that would diminish the deference
owed to State Review Officer (“SRO”) Paul Kelly.” (ECF No. 62,
Pl. Obj. at 2.) Specifically, plaintiffs focus on Magistrate
Judge Mann’s holding that “statistics alone . . . cannot
establish extrajudicial bias.” (See id.; ECF No. 59, R&R at
27-29.)
Third, plaintiffs write that “[w]hile [they] do not
take any issue with [the] Court’s recitation or application of
the T.Y. court’s analysis, [they] preserve [their] objection to
the notion that a 1:1 classroom aide with a minimum high school
diploma has the skill sets, or even the training to properly
address the interfering behaviors of a student with autism.”
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(ECF No. 62, Pl. Obj. at 2 (citing ECF No. 59, R&R at 38).)
The court has considered the foregoing objections and
undertaken a de novo review of the R&R and the underlying
pleadings and factual record upon which it is based. Having
conducted such review, and upon careful consideration of the
parties’ objections, the objections are overruled. This court,
fully concurring with Magistrate Judge Mann in all material
respects, hereby adopts, in its entirety, the rationale
articulated in the detailed, thorough and well-reasoned R&R,
which embodies a correctly grounded analysis of the factual
record and legal authorities. Specifically, the court agrees
with and adopts Magistrate Judge Mann’s conclusions that
defendant did not offer R.K. a FAPE and that a preponderance of
the evidence in the record established that R.K.’s interfering
behaviors impeded her learning and required a FBA and BIP. The
court further agrees that BAC was an appropriate placement for
R.K. and was reasonably calculated to provide her with
meaningful educational benefits, and that the equities do not
diminish plaintiffs’ entitlement to an award of tuition
reimbursement for the 2008-2009 academic year.
CONCLUSION
For the reasons set forth above, Magistrate Judge
Mann’s well-reasoned and thorough Report and Recommendation is
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incorporated by reference and adopted in its entirely and both
parties’ objections are denied. Therefore, plaintiffs’ motion
for modified de novo review is granted, defendant’s motion for
summary judgment is denied, and plaintiffs shall be awarded
full tuition reimbursement for R.K.’s alternate placement for
the 2008-2009 academic year. The Clerk of Court is
respectfully requested to enter judgment in favor of plaintiffs
and close this case.
SO ORDERED.
Dated: March 28, 2011 Brooklyn, New York _______ /s/ KIYO A. MATSUMOTO United States District Judge Eastern District of New York
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