UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------X
IN THE MATTER OF VINCENT ANTIGNANO and DOMENICA ANTIGNANO, Parents on behalf of the infant disabled child R.A. MEMORANDUM & ORDER Plaintiffs, Civil Action No. 07-2540 -against-
WANTAGH UNION FREE SCHOOL DISTRICT,
Defendant. --------------------------------------------------------------X
APPEARANCES:
Law Offices of George Zelma Attorneys for Plaintiffs 888 Seventh Avenue, 45th Floor New York, New York 10106 By: George Zelma, Esq.
Ingerman Smith, L.L.P. Attorneys for Defendant 150 Motor Parkway, Suite 400 Hauppauge, New York 11788 By: Christopher Venator, Esq.
HURLEY, Senior District Judge:
Plaintiffs Vincent and Domenica Antignano (the “parents”), parents of behalf of their
minor child R.A. (“R.A.”) (collectively “Plaintiffs”) commenced this action against the Wantagh
Union Free School District (the “District”) pursuant to the Individuals with Disabilities Act
(“IDEA”) seeking reversal of the decision of a State Review Office (“SRO”) denying Plaintiffs’
request for tuition reimbursement for educational services provided to R.A. during the 2005-2006 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 2 01/04/10 of 26 Page PageID 2 of 26 #: <pageID>
school year. Presently before the Court are Plaintiffs’ motion for summary judgment and the
District’s cross-motion for summary judgment. For the reasons set forth below, Plaintiffs’
motion is denied and the District’s cross-motion is granted.
Statutory Background
The IDEA represents Congress’s effort “to promote the education of handicapped
children.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (internal
quotations omitted). “The goals of IDEA include “ensur[ing] that all children with disabilities
have available to them a free appropriate public education” and “ensur[ing] that the rights of
children with disabilities and parents of such children are protected.” Winkelman v. Parma City
School Dist., 550 U.S. 516, 523 (2007)(quoting 20 U.S.C. §§ 1400(d)(1)(A)-(B) (2000 ed., Supp.
IV)); accord Forest Grove Sch. Dist v. T.A., --U.S. --, 129 S. Ct. 2484, 2491 (2009). The statute
requires that all states receiving federal funds must provide “all children with disabilities” a “free
appropriate public education.” 20 U.S.C. § 1412(a)(1)(A). “To meet these requirements, a
school district’s program must provide special education and related services tailored to meet the
unique needs of a particular child and be reasonably calculated to enable the child to receive
educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)
(internal quotations omitted). “Such services must be administered according to an
[Individualized Educational Plan (“] IEP[“)], which school districts must implement annually.”
Id. (citing 20 U.S.C. 1414(d).
Among other things, the IDEA contains provisions governing the development of “a
child’s IEP; criteria governing the sufficiency of an education provided to a child; mechanisms
2 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 3 01/04/10 of 26 Page PageID 3 of 26 #: <pageID>
for review that must be made available when there are objections to the IEP or to other aspects of
IDEA proceedings; and the requirement in certain circumstances that States reimburse parents for
various expenses.” Winkelman, 550 U.S. at 523 (citing 20 U.S.C. §§ 1412(a)(10), 1414, 1415).
“To meet [its] obligations [under the IDEA] and to implement its own policies regarding
the education of disabled children, New York has assigned responsibility for developing
appropriate IEPs to local Committees on Special Education (‘CSE’), the members of which are
appointed by school boards or the trustees of school districts. 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, and (4) managerial or
behavioral needs.” Gagliardo, 489 F.3d at 107-08 (internal citations omitted). “New York
parents who disagree with their child’s IEP may challenge it in an ‘impartial due process
hearing,’ 20 U.S.C. § 1415(f), before an [Impartial Hearing Officer (“] IHO[“)] appointed by the
local board of education, see N.Y. Educ. Law § 4404(1). The resulting decision may be appealed
to a [State Review Officer (“] SRO [)”], see N.Y. Educ. Law § 4404(2); see also 20 U.S.C.
1415(g), and the SRO’s decision in turn may be challenged in either state or federal court, see 20
U.S.C. § 1415(i)(2)(A).” Id. at 108.
Factual and Procedural Background
The following facts, taken from the administrative record and the parties’ 56.1
statements, are undisputed unless otherwise noted.1
1 In its counter 56.1 statement, Defendant failed to dispute Plaintiffs’ statement that R.A. was denied a free appropriate public education. However, it is apparent that said failure was an oversight and accordingly, the Court grants Defendant’s application to deem that contention disputed.
3 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 4 01/04/10 of 26 Page PageID 4 of 26 #: <pageID>
R.A. was born on May 30, 1992. She was classified and received special education
services in preschool. She was declassified for kindergarten and began attending District
schools. R.A. was diagnosed with attention deficit hyperactivity disorder (ADHD), Pervasive
Developmental Disorder (PDD) - not otherwise specified (NOS), Developmental Reading
Disorder and Developmental Arithmetic Disorder by Dr. Kent, her treating psychiatrist. She
suffered from frequent ear infections from infancy to age 8 and from benign neutropenia2
between 9 months and 3 years of age. Her family history is significant for ADHD and learning
problems; she was late in speaking and walking.
R.A.’s CSE History Prior to the Year at Issue
In first grade R.A. was classified as speech and language impaired. An IEP was
developed and she was placed in an inclusion program with half the day spend in a mainstream
class and the other half in a self-contained class. R.A. remained in this program from first
through fifth grade. During each of these years, R.A.’s goals were repeated and instructional
objectives added; however, no progress reports on the IEP goals were reported to her parents. In
fifth grade (2002-03), her parents noticed a significant decline in R.A.’s abilities; her teachers
reported that R.A. was not making progress but rather was increasingly falling behind. For the
2003-04 school year (sixth grade) R.A. was in a self contained classroom 15:1:13. She had ten
goals and one hundred-thirty instructional objectives to meet those goals. She met only three of
her objectives.
2 "Neutropenia is a condition in which the number of neutrophils in the bloodstream is decreased. Neutrophils are a type of white blood cell . . . .” www.medicine.net.com/neutropenia (Aug. 29, 2009). 3 15:1:1 (sometimes written as 15:1+1) refers to a class of no more than 15 students with one teacher and one aide assigned to the class as a whole.
4 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 5 01/04/10 of 26 Page PageID 5 of 26 #: <pageID>
For seventh grade (2004-05), the CSE recommended R.A. be placed in a 15:1:1 self
contained special education class and receive counseling services and speech services. The CSE
also recommended that R.A. receive extended school year services and attend Wantagh’s
summer PARISS program. The PARISS program is a summer program that provides instruction
in reading, math, and writing, and is designed to prevent regression. In the IEP prepared for her
for 2004-05, the CSE wrote:
The student had multi sensory learning style and demonstrates a severe disability in academic concepts. . . . the student does not demonstrate conceptual knowledge in content areas appropriate to grade level. The student performs assignments with 1:1 assistance. There are many days when she shuts down, works at a very slow pace and becomes lethargic with little verbal exchange. It can be extremely difficult to motivate her on those days and 1:1 assistance is then needed for completion of tasks. The student needs 1:1 assistance many times throughout the day. Concepts present difficulty and re-direction and re-teaching is often necessary. Student needs additional time to complete tasks as well as repeated direction. The student needs to develop age appropriate social and emotional skills with peers. The student needs to develop independent problem solving skills. The student requires intensive supervision to function in the educational setting . . . with minimal distractions.
Subsequent to the CSE meeting, the parents sent a letter to the CSE, dated May 24, 2004,
stating in pertinent part as follows:
According to [R.A.’s] test scores from 1998 to the present, she has had inconsistent progress and from last year to this year has significantly regresses in some areas. . . . As we discussed with the IEP team . . . we are concerned about [R.A.]’s lack of progress, especially in the area of reading, and how this in turn inhibits her successful involvement and progression in the general curriculum. In January 2003 we raised similar concerns, and as a result, we jointly explored providing [R.A.] a tutor using the Wilson Reading program as a way to help remediate [R.A.]’s reading deficits, and we were advised that this was not possible through the school’s
5 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 6 01/04/10 of 26 of Page PageID 26 #: <pageID>
auspices, but that [R.A.] would receive supportive reading in 6th grade to help address her deficits. Seeing no significant improvements in [R.A.]’s reading, on May 14, 2004, we has R.A. independently evaluated with specific focus on her reading skills. Her recent test scores continue to indicate a lack of progress in closing the gap between her reading level and the reading level of average children her age. . . . Clearly, as [R.A.] is on the cusp of entering 7th grade time is of the essence if she is to be afforded the opportunity to ‘catch up.’ Toward that end we have done some extensive research into these types of programs and have identified the Lindamood-Bell [LmB] Learning Processes. This research- based program has been in existence since 1975, and is on the New York State Education Department list of approved providers. . . . We would therefore like to explore with you how to incorporate such a program (as previously described) into [R.A.]’s IEP at our [upcoming] meeting.
Thereafter, the parents rejected the CSE’s summer recommendation and enrolled R.A. in
the LmB summer program.
LmB is an integrated global approach to development of literacy and language that works
to develop phonological processing skills in students who exhibit deficits in sensory cognitive
functions. Each student enrolled at LmB goes through an initial evaluation to determine
strengths and weaknesses in areas of sensory cognitive processing. LmB is a scientifically based
program that provides focused intensive instruction in the five components required for effective
reading instruction. The key to LmB is to provide continuous instruction in all different
components so ultimately there is an integrated model where the student can perform
independently.
In September 2004, the parents wrote to the District and advised it that they were
enrolling R.A. in LmB for 2004-05 school year and that she would be attending there from 8:30
am to 10:30 am Monday through Friday after which she would be attending Wantagh Middle
School. The 2004-2005 school year was settled by the parties.
6 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 7 01/04/10 of 26 Page PageID 7 of 26 #: <pageID>
The CSE Review for the 2005-06 School Year
The CSE held a review to develop R.A.’s IEP for the 2005-06 school year on June 7,
2005 and July 12, 2005. The parents provided the CSE with a recent independent
neuropsychological evaluation of R.A. by Dr. Davidovicz, as well as evaluations and other
materials from LmB.
According to Dr. Davidovicz, R.A. had great difficulty formulating and understanding
complex language and difficulty with auditory processing, visual spatial skills, fine motor skills,
speech articulation, phonetic awareness and attention, and math. Specifically, as to math, he
noted that with the exception of multiplication, her basic computational skills across operations
were “markedly problematic.” He opined that the most appropriate classification for R.A. would
be learning disabled. R.A. required intensive, individualized multi-sensory instruction in order to
make her “ as functional as possible in the time remaining in her educational career. According
to the doctor:
Academically, she is starting to make some progress with basic reading skills but also demonstrates significant difficulty with reading comprehension secondary to her language comprehension difficulty. There are also significant problems with basic spelling and writing as well as math. . . . Given the current findings, it is felt that [R.A.] needs to continue the intensive individual, multisensory reading instruction that she is receiving, since it is clearly having a positive impact on her acquisition of skills. She, however, would need a similar approach to her acquisition of other basic skills, including math and writing. She also should have intensive speech/language remediation for the maximum amount of time allowable to address her difficulties with regard to lexical and structural aspects of language, as well as to teach her strategies to compensate for her language processing difficulty. It is also felt that intensive, multisensory program should continue during the summer, as should speech/language services. It is recognized that [R.A.] is in a self-contained class, however, even within such a setting, there need to be major modifications made for her. The
7 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 8 01/04/10 of 26 Page PageID 8 of 26 #: <pageID>
special education staff and/or the speech/language pathologist need to spend time with her to prepare her for lessons in helping her deal with the vocabulary concepts, as well as the language she will encounter. They also need to reinforce and simplify such materials after lessons are completed. Clearly, there also needs to be major modifications in the classroom and during testing due to the fact that she cannot functionally read, write or do math. Assistive technology can be utilized in the future, but not as a substitute for teaching her these basic skills on an intensive basis at this point. Should it be too difficult to adapt R.A.’s program in school and through Lindamood-Bell, then an alternative placement in the private sector will need to be sought.
(Ex. F.)
At the June 7, 2005 annual review, a draft IEP was reviewed. R.A.’s independent reading
level was identified as grade two, instructional reading level as grade three and frustration level
as grade four. The proposed program, which included special class counseling one time per six
day cycle, and daily speech-language therapy, was reviewed. The chairperson indicated that the
IEP would reflect a recommendation for daily reading instruction. The parents expressed
concern regarding R.A.’s math abilities and requested an individualized math program to address
her needs. The CSE chairperson agreed to investigate whether or not supportive math, in
addition to a special education math class would be available to the student. The parents also
expressed concern regarding the proposed goals and the chairperson recommended they meet
with R.A.’s service providers to edit the goals, a recommendation the parents later declined. The
CSE recommended that the student attend the District’s PARISS summer program, where in
addition to the regular program, R.A. would receive daily 1:1 reading instruction for 40 minutes
and speech-language therapy three times per week. The minutes of the meeting indicate that the
parents were not ready to commit to the summer program. The meeting was adjourned with the
understanding that it would reconvene to finalize the 2005-06 IEP. In the meantime, the CSE
8 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 9 01/04/10 of 26 Page PageID 9 of 26 #: <pageID>
members would review the materials that the parents had presented.
As a result of scheduling difficulties, the CSE did not reconvene until July 12, 2005. The
meeting lasted more than five hours. The draft IEP was reviewed line by line. The committee
determined that R.A.’s classification should be changed to “learning disabled” as a result of Dr.
Davidovicz’s independent evaluation. The committee recommended that R.A. be placed in a
15:1:1 class for 3 hours and 20 minutes per day and assigned a 1:1 aide4. Recommended services
included speech-language therapy daily, with alternating group and individual sessions, and
counseling one time per six day cycle. The IEP also recommended daily supportive reading in a
2:1 setting.5 The IEP also indicated that supportive math be explored as a possibility, while
noting that an appropriate group might not be available on the student’s math level. Numerous
supports and accommodations were also included.
The minutes indicate that various revisions were made as a result of requests by the
parents, their advocate and other members of the CSE. During the course of the meeting, the
concerns expressed by the parents centered upon two areas: math and reading.
With respect to math, the parents questioned the methodologies to be used and the
manner in which the student’s math instruction would be delivered. The special education
teacher explained she would use the 1:1 to assist with instruction. It was further explained to the
parents that the aide would have appropriate education/training and would always be under the
4 A 1:1 aide refers to an aide that is assigned to assist a particular student, as opposed to the class as a whole. 5 Although the testimony at the impartial hearing was that the CSE recommended daily supportive reading in a 2:1 setting, the IEP, in fact, only refers to “daily supportive reading.” See Ex. E1. However, it is clear that all parties understood the recommendation was for a 2:1 setting and therefore the omission was harmless.
9 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 10 01/04/10 of 26 Page PageID 10 of 26 #: <pageID>
supervision of the special education teacher.
With respect to reading, the parents believed that the goals should project multiple year
gains, while the school based members of the team indicated that the goals should focus on
R.A.’s mastery of specific skills. The parents also requested that R.A. continue to receive reading
instruction using the LmB methodology in a 1:1 setting. In response, the chairperson indicated
that the District had arranged to have one reading teacher and one special education teacher from
each building trained and ready to use the LmB methodology. The parents raised questions about
the adequacy of the training. The chairperson suggested the parents meet with a LmB
representative and the District teachers would participate in the training so they could come to a
decision as to whether the program proposed by the CSE would provide appropriate reading
instruction. During the July meeting, the parents declined the summer program offered by the
District.
Several days later, the parents sent the chairperson a letter questioning the reasonableness
of holding another meeting and requesting a copy of the IEP developed at the last two meeting so
they could review it. The chairperson responded, reiterating the offer to schedule a meeting
between the parents, LmB representative and District representatives. She further stated that she
would interpret a decision by the parents not to attend such as meeting as evidencing that the
parents were no longer questioning the District’s ability to provide appropriate reading
instruction using the LmB program and that she would schedule another CSE meeting so that the
fall program could be approved.
By letter dated August 1, 2005, the parents rejected both the summer 2005 and 2005-06
school year programs. In support of their rejection, the parents cited (1) the summer program’s
10 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 11 01/04/10 of 26 Page PageID 11 of 26 #: <pageID>
failure to incorporate 1:1 multisensory teaching methods as recommended by Dr. Davidovicz; (2)
the proposed math program for the 2005-06 was the same as in past years and not individualized
to the student’s needs; (3) concern that the proposed reading instruction would successfully
address R.A.’s reading deficits; and (4) inappropriateness of academic instruction facilitated by
the 1:1 aide. The parents also indicated that the goals developed at the July 12 meeting had been
revised and were now inappropriate. The parents advised the District they would be enrolling
R.A. in LmB for the 2005-06 school year to address her reading and math needs and would be
seeking tuition reimbursement for the expenses vis a vis LmB for both the 2005 summer and the
2005-06 school year.
Summer 2005
R.A. attended LmB during the summer for four hours a day, five days per week for ten
weeks. Her instructor’s notes indicate that she worked on decoding, multi-syllable processing
and reading in context and that R.A. progressed from using fourth grade to using fifth grade
material when reading contextually. The math instruction involved review and practice of basic
computational skills across operations and the introduction of decimals and fractions. R.A.
progressed from solving one-step word problems to solving word problems of increasing
complexity.
The 2005-06 School Year
R.A. attended the District middle school full-time for the first three days of school. As of
the second week of classes, she was signed out each day at 12:30 to attend LmB. As a result,
R.A. missed out on her daily reading class with a master’s level reading teacher who had
received training in the use of the LmB process, English, and her daily study skills class.
11 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 12 01/04/10 of 26 Page PageID 12 of 26 #: <pageID>
Standardized testing conducted by LmB indicated the between May 2005 and October
2005, R.A. demonstrated progress on specific reading and math skills. At the same time, the
scores on spelling skills and reading comprehension decreased.
The District generated a progress report in November 2005 that indicated R.A. (1)
achieved one objective during the first quarter relating to identifying coins and bills and their
value and (2) made “some progress” or was “progressing satisfactorily” on the majority of her
IEP objectives.
In December 2005, the CSE reconvened and added occupation therapy services of one
individual and one group session per six day cycle to R.A.’s IEP and recommended that the 1:1
aide no longer accompany her to non-academic classes.
The instruction R.A. received at LmB focused on reading, math, spelling, and writing.
As assessed by LmB, between October 2005 and January 2006, her scores on standardized
testing increased with respect to word attack, spelling, sight word recognition, and oral reading.
At the same time scores declined on measures of arithmetic and reading comprehension.
The Impartial Hearing
The parents requested an impartial hearing by letter dated February 1, 2006, asserting that
the recommended summer program was inappropriate because it was designed to prevent
regression not progression and that the recommended program for the academic year did not
adequately address R.A.’s needs in math and reading. They sought both the costs of the program
and transportation costs.6
6 The parents also sought reimbursement for the independent evaluation by Dr. Davidovicz; the District agreed to this request.
12 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 13 01/04/10 of 26 Page PageID 13 of 26 #: <pageID>
The impartial hearing was held on April 28, May 18 and June 9, 2006. By decision dated
November 13, 2006,7 the IHO denied the parents’ request for reimbursement, finding that the
program and services recommended by the District’s CSE offered R.A. a free appropriate public
education.
First, IHO found that there were no procedural violations: the CSE was properly
constituted; all of the appropriate reports and evaluations were utilized by the CSE members in
fashioning a recommendation; and the parents had a full opportunity to participate in the CSE
process. (IHO Decision at 18-19.) The IHO rejected the contention that the CSE’s failure to
recommend LmB instruction for R.A. rose to the level of a procedural violation. “Parents are
equal members of a collaborative CSE team; their opinions and requests and preferences hold no
more authority or weight than that of other CSE members. . . .[T]he Parents’ preference does not
compel the CSE to recommend the Parents’ preferred program or level of service. “ (IHO
Decision at 19.) As to the summer program, the IHO held that while summer/extended programs
must be available, the regulations do not address the time frame for such recommendation or
availability. In addition, summer services need only be designed to prevent substantial
regression; there is no requirement that they be designed to make progress. (IHO Decision at 20-
21.)
The IHO then turned to the issue of whether the recommended program and services were
reasonably calculated to enable R.A. to receive educational benefits. He began by noting that
although the evidence provided “ample support” that R.A. made progress while receiving
7 The Court notes that although dated November 13, 2006, the decision was apparently not sent to counsel until December 14, 2006. The extended date the decision was due in accordance with New York State regulations was September 20, 2006.
13 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 14 01/04/10 of 26 Page PageID 14 of 26 #: <pageID>
instruction at LmB, it was “inconclusive” that LmB was the reason for her progress. He
characterized the testimony of all the witnesses as consistent with the proposition that “any
multi-sensory intensive reading instruction was valid.” He found that the evidence indicated that
R.A. had significant needs primarily in the areas of reading and math and that based on these
needs, the CSE fashioned an appropriate level of services to address those needs. His analysis
was as follows:
The July 12, 2005, IEP is comprehensive and focuses on R.A.’s deficits. I find that the goals are appropriate, as are the recommended services, and levels of services. I credit the testimony of the District’s witnesses - - who are teachers certified in the deficit areas to be addressed for R.A. – who made the distinction between “individual” instruction and “individualized” instruction. Based on the record evidence, R.A. clearly needs intensive individualized instruction --on the other hand, there was no testimony or documentary evidence to support the conclusion that only 1:1 individual instruction was needed to receive educational benefits. And in fact, the record evidence demonstrated that reading instruction in a small group - - 1 teacher and 2 students - - was preferable for pedagogical reasons. The Parents cite Application of Board of Education, Massapequa UFSD, Appeal No. 05-009 (2005), as support for their position. This case is distinguishable on its facts. In Massapequa , the student was a very low functioning student with extensive special education history. However, the school district recommended an educational program that was clearly lacking in sufficiency to addressing the student’s needs. In comparison, the recommended program herein offered significantly more service to address a student whose deficits were similar to (or less than) the student involved in Massapequa. Accordingly, and based on the record evidence, I must conclude that the District recommended an appropriate program, placement, and services for R.A. . . . This conclusion is warranted despite the fact that R.A. remained below grade level in reading and math abilities, which was a source of frustration for the Parents. But the perceived lack of progress and dissatisfaction with R.A.’s educational program and placement (by the Parents) does not render that program and placement inappropriate.
14 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 15 01/04/10 of 26 Page PageID 15 of 26 #: <pageID>
(IHO Decision at 22.)
Having determined that the educational services recommended by the District were
appropriate, the IHO did not address whether the services selected by the parents were
appropriate or whether equitable considerations supported the parents’ claim. See School
Committee of Burlington v. Dept. of Educ., 471 U.S. 359 (1985). The parents appealed the
IHO’s decision to a SRO, asserting that the IHO was not impartial and he erred in denying their
claim for private educational services and related transportation expenses for summer 2005 and
the 2005-06 academic year.
The SRO’s Decision
The SRO found that the IHO correctly found that the programs recommended by the CSE
offered R.A. a free appropriate public education.
The SRO first addressed the parents challenge to the IHO’s impartiality, which was
grounded on his failure to disclose that he represents school districts in special education matters.
The IHO had simply stated that he was not an employee of the Wantagh School District or any
other school district in New York and that he had had “other professional dealings with both
counsel for both parties in other matters” but did not believe that would prejudice his impartiality
in any respect. The SRO found the IHO’s failure to disclose that he represents school districts in
special education matters “troubling” as it was a potential conflict of interest that was required to
be disclosed. (SRO Decision at 10-11.) However, after “carefully reviewing” the transcript and
the IHO’s decision, the SRO concluded that there was no evidence of actual bias and therefore he
was “constrained to find that the [IHO’s] failure to disclose . . . does not afford a basis to annul
his determination.” (SRO Decision at 11.)
15 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 16 01/04/10 of 26 Page PageID 16 of 26 #: <pageID>
Next, the SRO addressed whether the CSE’s recommended services for summer 2005
were appropriate. The SRO noted that the CSE recommended a 12:1+2 special class at the
District’s six week PARISS program which was designed to prevent regression. Students in the
program are grouped according to age and ability and all students receive reading, writing and
math instruction as a 40 minute class, as well as art recreational, computer and physical
education components by certified special education teachers. The SRO further noted that “[i]n
addition to the daily reading that was inherent in the PARISS program, for summer 2005 the CSE
recommended that the student receive individualized reading instruction five times per week for
forty minutes from a reading teacher . . . [and] group speech-language therapy for three 30
minute sessions per week.” (SRO Dec. at 13.) The SRO rejected the parents’ contention that
the 2005 summer program was the same program the student had attended in the past, given the
increased levels of services from the prior summer, and concluded that the CSE appropriately
“considered and recommended a summer program in accordance with the student’s need to
prevent substantial regression.” (SRO Dec. at 13.)
The SRO then turned to the parents’ contentions regarding the recommended placement
for the 2005-06 school year. The SRO began by nothing that the CSE met to develop the IEP,
considered the materials provided by the parents and that the parents had the opportunity to
participate in the development of the IEP. He then proceeded to analyze the recommended
placement vis a vis the students needs.
The CSE recommended that for eighth grade the student be placed in a 15:1+1 special education class for core academics and for an additional daily skills period. In addition, the CSE recommended that the student be assigned a 1:1 aide for academic subjects. To address the student’s reading deficits the CSE recommended that the student be provided reading instruction for
16 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 17 01/04/10 of 26 Page PageID 17 of 26 #: <pageID>
forty minutes per day in a group of 2:1 from a master’s level reading teacher who had received training in the Lindamood-Bell processes sufficient to allow her to employ program strategies during instruction. To address the student’s math deficits, the CSE proposed providing math instruction in the 15:1+1 special class, with additional assistance provided by the student’s 1:1 aide. In addition the CSE recommended that the student receive assistance as needed during the study skills component of the special class. The CSE also recommended the possibility of participating in a supportive math group. To address the student’s expressive and receptive language weaknesses the CSE recommended that the student receive daily speech-language therapy. To address the student’s social/emotional needs the CSE recommended that the student receive counseling one time per week. The IEP developed by the CSE contained goals and objectives related to study skills, reading, writing, mathematics, speech-language and social/emotional/behavioral development.
(SRO Dec. at 14 (transcript references omitted).)
Based on his review of the record, the SRO found that the IEP adequately offered a free
appropriate public education to R.A. for summer 2005 and the 2005-06 school year. He
reasoned:
The record shows that [the District’s] recommended program for the 2005-06 school year was significantly different than the student’s prior year IEP in that it included daily reading instruction in a 2:1 setting by a teacher trained in the Lindamood- Bell processes, a 1:1 aide assigned to the student during academic classes and an increase in the frequency of speech-language therapy from two sessions per six day cycle to six sessions per six day cycle. The record also shows that respondent’s reading teacher stated that the student’s instruction could be individualized within a 2:1 setting. In addition the student’s private tutor, who held master’s degrees in special education and reading and was certified as an Orton-Gillingham practitioner, opined that the student could receive an appropriate education in a 2:1 setting. I concur with the impartial hearing officer that the record is insufficient to support [the parents’] claim that only one-to-one instruction would confer educational benefit. I also agree with the impartial hearing officer’s conclusion that respondent offered the student a program for summer 2005 and the 2005-06 school year that was appropriate to
17 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 18 01/04/10 of 26 Page PageID 18 of 26 #: <pageID>
meet her special education needs.
(SRO Dec. at 14.) Having concluded that the IEP offered R.A. a free appropriate public
education, the SRO found the parents were not entitled to reimbursement and that it was
unnecessary to address whether the services received by R.A. at LmB were appropriate.
Discussion
I. Standard of Review
The IDEA provides that a reviewing court “(I) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii)
basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B). IDEA actions such as this are usually
addressed in a summary judgment context. However, in this context the inquiry “involves more
than just looking into disputed issues of fact; rather it is a pragmatic procedural mechanism for
reviewing administrative decisions.” T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247,
252 (2d Cir. 2009) (internal quotations omitted).
Under the IDEA, a court’s review of educational decisions is “circumscribed.”
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). Although such
decisions are subject to independent judicial review, a court “must give ‘due weight’ to the
[administrative ] proceedings, mindful that the judiciary generally ‘lack[s] the specialized
knowledge and experience necessary to resolve persistent and difficult questions of educational
policy.’” Id. at 113 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458
U.S. 176, 206 (1982)). District courts are precluded from “substitut[ing] their own notions of
sound educational policy for those of the school authorities which they review.” Rowley, 458
18 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 19 01/04/10 of 26 Page PageID 19 of 26 #: <pageID>
U.S. at 206. “In order to avoid impermissibly meddling in state educational methodology a
district court must examine the record for any objective evidence indicating whether the child is
likely to make progress or regress under the propose plan.” Cerra v. Pawling Cent. Sch. Dist.,
427 F.3d 186, 195 (2d Cir. 2005) (internal quotations omitted). “Judicial deference is
particularly appropriate when . . . the state hearing officers’ review has been through and
careful.” M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000) (ellipses in original)
(internal quotations omitted).8
II. Tuition Reimbursement Standards
In Rowley, the Supreme Court addressed the issue of what a free appropriate public
education means under the IDEA. The Court noted that it does not mean “an education that
maximizes a child’s potential.” 458 U.S. at 189-90. Indeed, the IDEA “does not require a school
district to provide ‘everything that might be thought desirable by loving parents.’” Antonaccio v.
Bd of Educ. of Arlington Cent. Sch. Dist., 281 F. Supp. 2d 710, 726 (S.D.N.Y. 2003) (quoting
Tucker v. Bay Shore Union Free Sch. Dist. 873 F.2d 563, 567 (2d Cir. 1989). Rather the services
provided by a school district must consist of “personalized instruction with sufficient support
services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at
203.
The Second Circuit has described the tuition reimbursement standard thusly:
IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court,
8 The Court rejects Plaintiffs’ contention that it should give the administrative decisions little weight and engage in a de novo review of the record because of the IHO’s failure to disclose that he had represented school districts for many years. The SRO took that failure into account in his review and as set forth herein, the SRO’s decision is “reasoned and supported by the record.” T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009).
19 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 20 01/04/10 of 26 Page PageID 20 of 26 #: <pageID>
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, 522 U.S. 1047, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998).
Walczak, 142 F.3d at 130; accord Cerra, 427 F.3d at 194-95.
“When a state receiving IDEA funding fails to give a disabled child such an education,
the child’s parent may remove the child to an appropriate private school and then seek retroactive
tuition reimbursement from the state. M.S. v. Bd. of Educ. of City Sch. Dist. of City of Yonkers,
231 F.3d 96, 102 (2d Cir. 2000). A three step process is utilized to determine whether parents
who challenge an IEP are entitled to private school tuition reimbursement. “The first two steps
focus on whether the ‘proposed IEP was inadequate to afford the child an appropriate public
education.’” Cerra, 427 F.3d at 192 (quoting Walczak, 142 F.3d at 129). First, the court
“examine[s] whether the state has complied with the procedures set forth in the IDEA.” Id.
Next, the court “consider[s] whether the IEP developed through the Act’s procedures ‘is
reasonably calculated to enable the child to receive educational benefits.’” Id. (quoting Walczak,
20 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 21 01/04/10 of 26 Page PageID 21 of 26 #: <pageID>
142 F.3d at 129). “‘If these requirements are met, the State has complied with the obligations
imposed by Congress and the courts can require no more.’ If, however, the IEP is procedurally or
substantively deficient, [the court] proceed[s] to the third step and ask whether the private
schooling obtained by the parents is appropriate to the child’s needs.’” Id. (brackets in original
omitted) (quoting Rowley, 458 U.S. at 207; citing Walczak, 142 F.3d at 129). “In fashioning
relief, equitable consideration relating to the reasonableness of the action taken by the parents
must be considered.” A.H. v. New York City Dept. of Educ., 2009 WL 2602256 (E.D.N.Y. Aug.
21, 2009) (citing Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-64 (2d Cir. 2006).
As the party initiating the impartial hearing process, Plaintiffs bear the burden of
establishing that the services offered by the District were inappropriate. See Schaffer v. Weast,
546 U.S. 49 (2005); M.S., 231 F.3d at 102.
It is with these precepts in mind that the Court proceeds to the issues at hand. As the
Plaintiffs do not argue before this Court that the 2005 IEP was procedurally flawed, the Court
shall proceed directly to the question of substantive adequacy.
III. The CSE’s Recommendation for Summer 2005
The IDEA does not automatically require the provision of school services in the summer.
Rather, such services must be provided when they “are necessary for the provision of FAPE to
the child.” 34 C.F.R. § 300.106 (2006). In determining whether extended school year services
are necessary for the provision of FAPE, courts often focus on whether the student is likely to
regress during the summer recess. See, e.g., Mark Di Buo v. Bd. of Educ. of Worcester, 309 F.3d
184 (4th Cir. 2002) (extended year services “are only necessary to a FAPE when the benefits a
disabled child gains during a regular school year will be significantly jeopardized if he is not
21 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 22 01/04/10 of 26 Page PageID 22 of 26 #: <pageID>
provided with an educational program during the summer months.”) (internal quotations
omitted); Brennan v. Regional Sch. Dist., 531 F. Supp. 2d 245, 273-74 (D. Conn. 2008). New
York State regulations require that “[s]tudents shall be considered for 12-month special services
and/or programs in accordance with their need to prevent substantial regression . . . .” 8 N.Y.
C.R.R. § 200.6(k)(1). Substantial regression is defined as “a student’s inability to maintain
development levels due to a loss of skill or knowledge during the months of July and August of
such severity as to require an inordinate period of review at the beginning of the school year to
reestablish and maintain IEP goals and objectives mastered at the end of the previous school
year.” Id. § 2001(aaa).
In support of their contention that the CSE’s recommendation for Summer 2005 was not
appropriate for R.A., the parent argue that (1) R.A. had attended the PARISS program since the
summer 2001 and had regressed; (2) during the summer of 2004 when the parents choose LmB
over PARISS, R.A. made progress; (3) the independent neuropsychological evaluation
recommended R.A. continue with LmB for the summer of 2005; and (4) there is testimony to
support their position that R.A. would have regressed had she not continued at LmB during the
summer of 2005.
Have carefully reviewed the record the Court finds that there is adequate support for the
SRO’s determination that the CSE’s recommendation for summer 2005 was appropriate.
Certainly, the parents’ frustration in being offered a program that they perceived as having
previously failed their child is understandable. However, the record is clear that in fact
modifications to the program were incorporated into the CSE’s recommendation, including daily
individual reading. While there is some opinion evidence to the effect that the forty minutes of
22 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 23 01/04/10 of 26 Page PageID 23 of 26 #: <pageID>
recommended individual instruction was insufficient to prevent regression, there is also evidence
to support the conclusion of both the IHO and the SRO that the forty minutes of 1:1 instruction
was reasonably designed to prevent regression. Those finding warrant deference; it is not this
Court’s role to substitute its own judgment for that of the SRO.
As the recommended placement for Summer 2005 was appropriate, plaintiffs are not
entitled to reimbursement for tuition and cost for their unilateral decision to place R.A. in LmB
for the summer of 2005.
IV. The Recommendation for the 2005-06 School Year
The parents maintain that the recommended program for the 2005-06 school year was
insufficient as it failed to address R.A.’s needs in reading and in math. The Court shall consider
each area of need separately.
A. Reading
Plaintiffs’ challenge to the sufficiency of the CSE’s recommendation to address R.A.’s
reading needs may fairly be summarized as follows: (1) the amount of supportive reading was
insufficient as it consisted of only 200 minutes per week as contrasted with 1200 minutes at
LmB; (2) supportive reading was not provided 1:1 but rather 2:1 despite overwhelming evidence
that R.A. had difficulty functioning in a group of 2:1 and consistently needed 1:1 assistance; and
(3) the supportive reading services were to be provided by a reading teacher who is not certified
in LmB, Orton-Gillingham, Wilson or any other similar multi-sensory reading program.
Proceeding in reverse order, the Court rejects that Plaintiffs’ contention that a teacher
“certified” in LmB or another multi-sensory approach was required. The District proposed to
provide daily supportive reading by a certified reading teacher who received training in both Lmb
23 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 24 01/04/10 of 26 Page PageID 24 of 26 #: <pageID>
and the “Wilson methodology,” another multisensory approach. (TR. at 584-585). The record
evidence submitted by Plaintiffs supports the conclusion R.A. would benefit from “a” multi-
sensory approach and not necessarily only the multi-sensory approach employed in LmB. (See
Ex. F (Davidovicz Rpt).; Tr. at 187-90; 321-22.) Cf. E.S. v. Indep. Sch. Dist No. 196, 135 F.3d
566, 569 (8th Cir. 1998) (rejecting claim that IDEA required school district to provide one-to one
tutoring under the Orton-Gillingham method based on parental preference as it is up to educators
to determine the appropriate methodology).
Turning next to this issue of supportive reading in a 2:1 versus a 1:1 setting, there is
sufficient evidence in the record to support the District’s position that a 2:1 setting was
appropriate. For example, Ryan testified that 2:1 is often more productive because the students
can play off of one another. (Tr. at 487.) In addition, R.A. has socialization issues that the 2:1
reading setting would also address. Finally, 1:1 support is in fact supplied to R.A. throughout the
day in the form of an aide. Even if placement in a 1:1 supportive reading program would be
best for R.A., “the IDEA does not require school districts to provide ‘the best’ possible
placement that can be imagined . . . so long as the district offers to provide an appropriate
education, defined as one which allows the child to receive meaningful educational benefit.”
E.H. v. Bd of Educ. of the Shenendehowa Cent. Sch. Dist., 2009 WL 3326627, at *3 (2d Cir. Oct.
16, 2009) (Summary Order).
Nor is the District’s decision to provide R.A. with 200 minutes per week of supportive
reading a basis for finding the IEP deficient. The testimony before the IHO was that most
students who have significant reading deficits receive additional reading support one or two
times per week whereas R.A. was to receive such services 5 times per week and in a 2:1 setting.
24 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 25 01/04/10 of 26 Page PageID 25 of 26 #: <pageID>
(Tr. at 480-87.) Given that this was both an increase in the services previously provided to R.A.
and in the services usually provided to student with significant reading deficits, this Court cannot
conclude that the IEP was not likely to produce progress or provide a meaningful benefit vis a vis
reading to R.A.
B. Math
Plaintiffs maintain that R.A.’s math placement is deficient as she was “placed in a special
education Algebra with no modification for [R.A.]’s needs in math.” (Pl.’s Mem at 17.) The
record demonstrates, however, that in fact R.A.’s special education teacher modifies the
curriculum to meet R.A.’s need. (Tr. at 567-71.) Nor is the Court persuaded by the 2005-06
placement was just a “repeat” of what proved unsuccessful in the past. Such an argument fails to
recognize that for the 2005-06 school year, R.A. was provided an individual aide for the first
time. Again, the Court cannot conclude that the program components in the IEP were not
reasonably calculated to benefit R.A. educationally.
Finally, the Court notes that the placement recommended by the CSE was less restrictive
than the program chosen by the parents. Cf. 20 U.S.C. § 1412(a)(5)(A) (children should be
educated in the least restrictive environment that they can make meaningful progress in).
In sum, the IEP for the 2005-06 school year offered R.A. a free appropriate public
education and the parents were not entitled to reimbursement for education services provided to
R.A. during the 2005-06 school year.
Conclusion
For the reasons set forth here, Plaintiffs’ motion for summary judgment is denied and
Defendant’s cross-motion is granted. The Clerk of Court is directed to enter judgment in favor of
25 CaseCase 2:07-cv-02540-DRH-ETB Document 2:07-cv-02540-DRH-ETB 41 41 Document Filed Filed 01/04/10 Page 26 01/04/10 of 26 of Page PageID 26 #: <pageID>
Defendant and upon entry of judgment to close this case.
SO ORDERED.
Dated: Central Islip January 4, 2010 /s/ Denis R. Hurley Senior District Judge
26