UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
JORDAN S., a minor, by and through his parents and next friends, Suzanne and Jeffrey S., MEMORANDUM AND ORDER
Plaintiffs, CV 08-1446
-against- (Wexler, J.)
HEWLETT WOODMERE UNION FREE SCHOOL DISTRICT,
Defendants.
APPEARANCES:
LAW OFFICE OF MICHELE KULE-KORGOOD BY: MICHELE KULE-KORGOOD, ESQ. Attorneys for Plaintiffs 98-20 Metropolitan Avenue Forest Hills, New York 11375
KAYE SCHOLER LLP BY: NAVIN K. PANT, ESQ. Attorneys for Plaintiffs 425 Park Avenue New York, New York 10022-3598
INGERMAN, SMITH, LLP BY: JOSEPH E. MADSEN, ESQ. SUSAN M. GIBSON, ESQ. Attorneys for Defendant 150 Motor Parkway Hauppauge, New York 11788
WEXLER, District Judge
This is an action commenced pursuant to the Individuals with Disabilities Education Act,
20 U.S.C. § 1415 (the “IDEA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and Article 89 of the New York State Education Law. All claims allege that the Defendant
Hewlett-Woodmere School District (the “District’’) failed to provide the minor Plaintiff with a
free appropriate public education as required by the statutes cited above. As a result of this
alleged failure, the minor Plaintiff's parents enrolled their child in a school of their own choice,
which school is not approved by the New York State Department of Education. In this action,
Plaintiffs seek reimbursement of the private school tuition paid to the private school during the
2006-2007 school year, as well as the costs of related services provided during that same school
year.
Prior to commencement of this action, administrative hearings were held before an
independent hearing officer (the “IHO”) to determine the propriety of the District’s actions and
whether Plaintiffs were entitled to the same reimbursements they seek here. The [HO held that
Plaintiffs were not entitled to the reimbursements sought, and Plaintiffs appealed that decision to
the New York State Education Department. The State Review Officer (“SRO”), citing different
reasons, upheld the denial of reimbursement. This action followed.
The parties agree that this case can be decided in the context of cross-motions for
summary judgment. Those motions and the administrative record upon which they are based, are
presently before the court. For the reasons that follow, the District’s motion is granted, and the
Plaintiffs’ motion is denied.
BACKGROUND
I. Factual Background: The Parties
The facts recited below are drawn from the extensive administrative record that is before
the court, and upon which the parties agree. Plaintiff Jordan S. (“the Minor Plaintiff”) ae a e e a) ern, iA * weer 8 Ca a SL :
is achild with autism. Suzanne and Jeffrey S. are the parents of the Minor Plaintiff (collectively
“Plaintiffs” or the “Parents”), and properly prosecute this matter on behalf of their child. The
Defendant District is the school district in which Plaintiffs live.
Il. The Minor Plaintiff's Placement History
A. Placement Prior to 2006
The Minor Plaintiff was first diagnosed as a child with autism prior to the age of three.
With the exception of the 2005-2006 school year, the year prior to the placement that is the
subject of this action, the Minor Plaintiff either attended a New York State approved private
school, or was home-schooled. During the 2005-2006 school year, the Minor Plaintiff attended a
private school for which reimbursement is not sought. During that school year, the Minor
Plaintiff was evaluated by the District, and received extensive special education services as a
result of those evaluations. Such evaluations included occupational therapy (“OT”), speech and
language therapy, educational and psychological evaluations. Additionally, the District school
psychologist visited and observed the Minor Plaintiff.
B. The 2006 IEP
Towards the end of the 2005-2006 school year, the District scheduled a meeting of the
Committee on Special Education (“CSE”) to determine the Minor Plaintiff's placement, and to
arrive at an Individualized Educational Plan (“IEP”) for the school year commencing in
September of 2006. The CSE meeting was held on June 21, 2006. Participating in that meeting
were the District’s Director of Special Education, the school psychologist who evaluated the
Minor Plaintiff, the speech therapist who conducted the Minor Plaintiff's speech language
evaluations, the District’s transition coordinator, the Minor Plaintiff's mother, and a parent member. Participating by telephone were the educational director from the Minor Plaintiff's
2005 private school, that school’s speech-language and occupational therapists, and the assistant
principle of the Board of Cooperative Educational Services Rosemary Kennedy School
(“BOCES-RK”) located within the District.
As a result of the 2006 IEP meeting, the School District developed an IEP for the 2006-
2007 school year (the “2006 IEP”). The 2006 IEP recommended that the Minor Plaintiff be
placed in a small full day special education class located at BOCES-RK, which is, as noted,
located within the District. It was recommended that the Minor Plaintiff be provided with
various therapies and assistive technologies including a one to one aide, as well as occupational
therapy and individual speech language therapy. The 2006 IEP declined to provide for
behavioral interventions, noting that none were needed. Plaintiffs were advised of the 2006 IEP,
and were also told that the District could not recommend the private school placement they
sought because the desired placement was not a state-approved school.
C. The Parents’ Rejection of the 2006 IEP
Plaintiffs advised the School District that they rejected the 2006 IEP and its
recommended BOCES-RK placement, and that the Minor Plaintiff would be attending Kulanu
Torah Academy (“Kulanu’”) for the 2006 school year. The School District was further advised
that Plaintiffs would seek administrative review of the School District’s placement decision.
In November of 2006, Plaintiffs requested an impartial hearing seeking reimbursement
for tuition paid and certain other educational services provided to the Minor Plaintiff at Kulanu.
Plaintiffs took issue with the 2006 IEP, arguing that it failed to provide the Minor Plaintiff with a
free appropriate public education. In support of their claim for review, the Parents objected to the 2006 IEP on the grounds that:
the CSE was not validly composed because it failed to include a regular education
teacher;
the CSE improperly failed to advise the Parents that a BOCES representative would be
participating in the meeting;
the CSE recommendation was pre-determined;
the school district evaluations of the Minor Plaintiff were insufficient and inappropriate;
the services recommended in the 2006 IEP were inconsistent with the CSE meeting
discussions;
the assistive technology recommended was inappropriate, and
the goals and objectives were insufficient and did not address the needs of the Minor
Plaintiff.
iil. Administrative Hearings and Decisions
A. Hearings and the Decision of the IHO
Hearings were held before the [HO on six separate occasions between April and June of
2007. On August 29, 2007, the IHO issued a nineteen page detailed decision denying the claim
for reimbursement. The IHO’s decision acknowledged that under certain circumstances an order
of reimbursement for private educational expenses is appropriate. Specifically, such
reimbursement was noted to be proper if the services offered by the school district are not
appropriate, those obtained by the parents are, and equity supports such an order. In support of
their claim that the 2006 IEP recommendation was inappropriate, the Plaintiffs argued that the
BOCES program was overly restrictive largely because, as a completely self-contained school, it did not provide access to typically developing peers, and did not allow the Minor Plaintiff access
to the general curriculum. The IHO agreed with the Plaintiffs on this issue, and therefore held
that the 2006 IEP was inappropriate. While the IHO agreed with the Plaintiffs as to this initial
prong of the required analysis, he disagreed with Plaintiffs’ position regarding the necessity of
conducting a functional behavioral assessment or development of a behavior intervention plan.
The IHO also rejected arguments regarding certain procedural flaws identified by Plaintiffs in the
School District procedures, including arguments regarding the identity of those who attended the
relevant CSE meeting, and, specifically, the failure to include a general education teacher at that
meeting. Having held, however, that the Plaintiffs met their burden of persuasion with respect to
showing that School District recommendation was inappropriate, the IHO went on to consider
whether Plaintiffs met the burden of showing that the Plaintiffs’ placement was appropriate.
Upon such consideration, the IHO held that the Plaintiffs did not demonstrate that the Minor
Plaintiff possessed cognitive capabilities to support his placement at Kulanu. This finding led to
a rejection of the claim for reimbursement.
B. Decision of the SRO
Both parties appealed the decision of the THO to the State Education Department. The
District appealed the decision with respect to the appropriateness of the 2006 IEP, and the
Plaintiffs appealed the decision with respect to the appropriateness of the Plaintiffs’ placement at
Kulanu. The State Review Officer (“SRO”) rendered a decision on December 10, 2007. The
decision of the SRO, like that of the IHO, recognizes that there exist circumstances under which
reimbursement of private tuition expenses is appropriate. Like the IHO, the SRO noted that such
circumstances exist where a school district placement recommendation is inappropriate, the parents have placed the child properly, and the equities favor reimbursement.
As an initial matter, the SRO rejected the argument that the alleged procedural
irregularities either impeded the Minor Plaintiff’s right to a free appropriate public education or
the right of the Parents’ to participate in the decision-making process. As to the merits, the SRO
disagreed with the IHO’s conclusion regarding the appropriate nature of the 2006 IEP.
Specifically, the SRO held that the 2006 IEP recommended a program and placement that was
appropriate because it was, as required by law, reasonably calculated to confer educational
benefit on the student. The SRO rejected the argument that the BOCES-RK placement was
inappropriate because it did not represent the least restrictive educational environment for the
Minor Plaintiff. Having found that the District’s placement was appropriate, the SRO denied
Plaintiffs’ request for reimbursement of tuition and other services, and held it was unnecessary to
consider whether or not placement at Kulanu was appropriate. This lawsuit followed.
IV. The Motions
As noted, the parties cross move for summary judgment. There is no issue as to the
Minor Plaintiffs diagnosis as a child with autism. Nor is there any issue as to his eligibility to
receive special education services based upon this classification. At issue is whether the 2006
IEP set forth an appropriate services plan for the Minor Plaintiff with regard to the 2006-2007
school year. Plaintiffs argue that it did not, and that they were therefore authorized to make a
unilateral decision as to the placement of the Minor Plaintiff, and seek reimbursement for such
placement and services provided. The District argues, on the other hand, that the 2006 IEP
placement and services plan was entirely appropriate and oppose reimbursement. Acceptance of
the District’s position would obviate the need to consider whether the Parents’ placement decision was appropriate. After discussing the relevant standard of review, the court will decide
the merits of the motion.
DISCUSSION
I. IDEA: Statutory Scheme
The IDEA ensures that all children are provided a “free appropriate public education . .
and related services designed to meet their unique needs... .” 20 U.S.C. § 1400(d). A “free and
appropriate” education is one that benefits a child’s particular educational needs with a program
specifically tailored to that child. Board of Educ. of Hendrick Hudson Cent, School District v.
Rowley, 458 U.S. 176, 181-82 (1982). The IDEA recognizes the importance of educating
children in the least restrictive educational environment. Thus, the statute requires that “to the
maximum extent appropriate,” disabled children should be “educated with children who are not
disabled.” 20 U.S.C. §1412(a)(5)(A). Separate education of disabled children is recommended
to occur “only when the nature or severity of a child’s disability is such that education in regular
classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20
U.S.C, §1412(a)(5)(A).
A “Local Education Agency,” in the case of New York State, the CSE, is charged with
the responsibility of developing an IEP for children receiving services under the IDEA. 20
U.S.C. § 1414(d)(2)(A) (charging local education agencies with responsibility of developing IEP
for each disabled child); N.Y. Educ. L. § 4402(1)(b)(1) (CSE responsibilities in development of
IEP).
The IEP is a written document containing, inter alia, goals and instructional objectives,
services to be provided, projections regarding the dates when such services will be offered and criteria for evaluating whether instructional objectives are being met. Rowley, 458 U.S. at 182;
see 20 U.S.C. §1414(d)(1)(A). The IDEA recognizes the importance of parent involvement in
the development of a student’s IEP. Thus, the statute incorporates procedural safeguards aimed
at giving parents a meaningful opportunity to help formulate and, if necessary, object, to a school
district’s decision regarding their child’s education. For example, parents are invited to attended
the district’s CSE meeting, as members of an “IEP Team” to participate in development of their
child’s IEP. See 20 U.S.C. §1414(d)(1)(B). Parent objections to an IEP may be heard at an
“impartial due process hearing” 20 U.S.C. §1415(f), and, ultimately, in either state or federal
court. 20 U.S.C. § 1415(i)(2).
Il. Review of Administrative Findings
In the context of an appeal of an administrative decision under the IDEA, the summary
judgment process “involves more than looking into disputed issues of fact; rather, it is a
‘pragmatic procedural mechanism’ for reviewing administrative decisions.” A.C, ex rel. M.C. v.
Board of Educ. of The Chappaqua Central School Dist., 553 F.3d 165, 171 (2d Cir. 2009), The
court’s role when undertaking such review is “circumscribed,” and it is required to afford “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. (citations omitted), This standard of review recognizes the fact that
federal courts are not to “substitute their own notions of sound educational policy for those of the
school authorities which they review.” Id., quoting, Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist v. Rowley, 458 U.S. 176, 206 (1982); see also Cerra v. Pawling Cent. School Dist., 427
F.3d 186, 191 (2d Cir. 2005) IDEA requires “substantial deference to state administrative bodies on matters of educational policy”). Where, as here, the decision of the SRO disagrees with that
of the IHO, it is the decision of the SRO — the final decision of the state — that is afforded the
most deference. See A.C., 553 F.3d at 173.
Ql. Standard for Parent Reimbursement for Unilateral Placement
Parents who believe that their child’s IEP does not afford the appropriate education to
which the child is entitled, may “at their own financial risk, enroll the child in a private school
and seek retroactive reimbursement for the cost of the private school from the state.” Gagliardo
v. Arlington Central School Dist., 489 F.3d 105, 111 (2d Cir. 2007); see School Committee of
Town of Burlington, Mass. v. Department of Educ. of Commonwealth of Massachusetts, 471
U.S. 359, 370 (1985). Parents seeking reimbursement bear the burden of showing that the school
district’s suggested placement was inappropriate, and that their placement was appropriate.
Gagliardo, 489 F.3d at 111; Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364-65 (2d
Cir. 2006). When deciding reimbursement cases, courts employ a three step analysis. First, the
court determines whether there has been procedural compliance with the IDEA. Second, the
court considers whether the challenged IEP is appropriate to meet the educational needs of the
child, ie., whether the IEP plan is “reasonably calculated to enable the child to receive
educational benefits.” A.C., 553 F.3d at 171, quoting, Rowley, 458 U.S. at 206-07. It is only if
the challenged IEP is “procedurally or substantively deficient,” that the reviewing court must
consider the final step of the analysis, i.e., whether the parents’ unilateral placement is
appropriate within the meaning of the IDEA. Id. As noted, the issue of “appropriateness,”
whether considering the challenged IEP or the parents’ placement, centers on whether the
placement plan at issue is one that is “reasonably calculated to enable the child to receive
10 educational benefits.” Rowley, 458 U.S. at 207.
IV. Disposition of the Motions
In accord with the analysis set forth above, the court considers first whether there has
been procedural compliance with the IDEA. When considering this step, the court notes that not
every procedural error results in a finding that the resulting IEP is deficient. Instead, the issue is
whether any, or a combination of procedural violations renders the IEP placement inappropriate.
A.C., 533 F.3d at 172. The court holds that Plaintiffs have identified no alleged procedural
irregularity that meets this standard.
Turning to the second prong, the court considers whether the challenged IEP is
substantively appropriate. The District will be held to have fulfilled its substantive IDEA
obligations “if it provides an IEP that is likely to produce progress, not regression, and if the IEP
affords the student with an opportunity greater than mere trivial advancement.” A.C., 553 F.3d at
173 (citation omitted). The court holds that the 2006 IEP fulfills these obligations. There was
more than ample evidence before the CSE that the Minor Plaintiff would benefit from the
recommended placement. The class recommended for the Minor Plaintiff was among the highest
functioning classes in the school, where he could interact with peers of similar verbal and social
skills. It was also demonstrated that the Minor Plaintiff would benefit from the structured
program setting offered at the BOCES-RK school environment. Additionally, it is clear that the
BOCES-RK placement did not violate the Minor Plaintiff’s right to be educated in the least
restrictive educational environment. Indeed, the evidence indicated that the Minor Plaintiff was
highly dependent upon adults for interaction and had limited interest in peer socialization.
Moreover, results of testing indicated that because of the nature and severity of the Minor
1} ow Sy eA SN eb PF A BE OR Sree £ PAE eT BoP Rs wy y FE se ke POR AQRAS ee ye: 2 eva See yee { oma PAP MAE dd Se esd Bheke a SAO f TSR IEE PEER SSS Se THANE ll APR OAS OPP Ee ke WO AYR WALLS EERE ES
Plaintiff's disability, he would not benefit from a greater degree of mainstreaming than that
provided for in the BOCES program. There was little evidence that the Minor Plaintiff could
model the behavior of mainstreamed peers, and BOCES-RK did, indeed, provide opportunities
for community interaction, such as community trips, from which the Minor Plaintiff could
benefit. In sum, the court holds that the 2006 IEP was a plan that was “reasonably calculated to
enable the child to receive educational benefits,” and was therefore in substantive compliance
with the IDEA.
In holding the 2006 IEP appropriate, the court considers the evidence that was before the
THO and the SRO, and rejects Plaintiffs’ attempt to use the 2007 IEP placement as an admission
by the District that the 2006 BOCES-RK placement was inappropriate. While it is true that the
2007 IEP did not recommend a BOCES placement, it is also true that this IEP recommended a
school closer to Plaintiffs’ home, and relied upon updated information about the Minor Plaintiff.
That information included the CSE’s concerns of the Minor Plaintiff's parents regarding the
2006 placement. It would be both unfair and inaccurate to construe the 2007 IEP as an
admission against the District, or to rely on that later IEP to undercut the IEP at issue here. This
is especially true in light of the fact that while the 2007 IEP placement afforded the possibility of
mainstreaming, it was in no way guaranteed. Additionally, accepting Plaintiffs’ position, and
allowing placement decisions made after a challenged IEP to be held against a school district
would provide a strong disincentive to changing JEP recommendations based upon new
reassessing the needs of children is inconsistent with the requirements of the IDEA. The court
therefore declines to consider the 2007 IEP placement recommendation as evidence that the 2006
12 SN yee ek SBE aye SRT A ASP TF PNR AF ON GET Rees pate eae oe POR Root Te S SoM. aNe bt Gaia. OS AL GAAS ae BG AR § POSH a eh SPP PENEHES De
TEP was inappropriate.
The court similarly declines to rely on Plaintiffs’ proffered evidence of the Minor
Plaintiff's alleged progress during his time at Kulanu as evidence that the BOCES-RK placement
was inappropriate. Importantly, the evidence of the Minor Plaintiff's alleged progress while at
Kulanu is anything but conclusive. In any event, this subsequent evidence is in no way
inconsistent with the conclusion of the SRO and this court that the 2006 IEP was appropriate and
afforded the Minor Plaintiff the public education to which he was entitled.
In view of the court’s holding regarding the appropriate nature of the 2006 IEP, the court
need not consider whether the Plaintiffs’ unilateral placement decision was appropriate, and the
request for reimbursement of tuition and other expenses incurred at the school attended by the
Minor Plaintiff is denied.
CONCLUSION
Defendant’s motion for summary judgment is granted and Plaintiff’s motion for summary
judgment is denied. The Clerk of the Court is directed to terminate the motions and to close the
file in this case.
SO ORDERED
LIL Vly ae = CRONARD D. WEXLER UNITED STATES DISTRICT JUDGE
Central Islip, New York December / , 2010
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