UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK * MAR 31 Z014 * ------------------------------------------------)( LONG ISLAND OFFICE L.M. AND A.M., INDIVIDUALLY AND AS PARENTS OF THEIR DISABLED MINOR CHILD, A.M., MEMORANDUM AND ORDER
Plaintiffs, cv 12-3729 -against- (Wexler, J.)
THE EAST MEADOW SCHOOL DISTRICT,
Defendant. ------------------------------------------------)( APPEARANCES:
THE LAW OFFICES OF GEORGE ZELMA GEORGE PETER ZELMA, ESQ. 28 West 44 1h Street, Suite 711 New York, New York 10036 Attorneys for Plaintiffs
JASPAN SCHLESINGER LLP BY: CAROLE A. MELNICK, ESQ. STANLEY A. CAMHI, ESQ. 300 Garden City Plaza Garden City, New York 11530 Attorneys for Defendants
WE)(LER, District Judge
This case involves the education plan provided by the defendant East Meadow
School District ("East Meadow," "School District" or "Defendant") to the disabled son,
A.M., of the Plaintiffs L.M. and A.M. ("Plaintiffs" or "Parents") for the school year
2011-2012. Claiming that the District's plan was not "appropriate" for A.M., Plaintiffs
seek reimbursement of the tuition expenses to send A.M. to a private school for that
school year.
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Plaintiffs bring this action pursuant to the Individuals with Disabilities Education
Improvement Act ("IDEA"), 20 U.S.C. §1400, et seq. They seek review and reversal of
the decision ofthe New York State Education Department's State Review Officer
("SRO") (affirming the decision of an Impartial Hearing Officer ("IHO")) that the
education plan provided by the East Meadow School District for the 2011-2012 school
year was "appropriate" for A.M.'s needs, thus precluding Plaintiff's claim for tuition
reimbursement. Before the Court are the parties' cross-motions for summary judgment.
For the reasons set forth below, the Court denies Plaintiffs' motion and grants summary
judgment to the Defendant.
BACKGROUND
I. Factual Background
The facts set forth below are taken from the materials submitted to the Court,
namely, the certified copy of the administrative record, including the transcript and
exhibits of the impartial hearing, and the parties' Local Rule 56.1 Statements.
Plaintiffs L.M. and A.M. are the parents of A.M., a child who resides in the
Defendant East Meadow School District. A.M., who was five years old in the 2010-2011
school year, has been diagnosed with PDD NOS, an Autism Spectrum Disorder, and is
classified as a child with a disability within the meaing of the IDEA. He has major
developmental delays and deficits in chewing, eating, social attention, speech and
language, and motor skills, which interfere with his participation in age-appropriate
activities and learning. Defendant's Local Rule 56.1 Statement ("Def. 56.1 Stmt.", ~~ 1-
3; Plaintiffs' Local Rule 56.1 Statement ("Pl. 56.1 Stmt."), ~~ 1-2, 5, 7.
Once a child is classified as having a disability, the District is required by the
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IDEA and New York law to provide him or her with a "free appropriate public
education" ("F APE") within the "least restrictive environment" ("LRE"). Def. 56.1
Stmt., ~ 3-4.
A. The 2010-2011 School Year
On August 10,2010, as A.M.'s transition to a school-age program for the 2010-
2011 school year approached,' the District's Committee on Special Education ("CSE"),
including A.M.'s parents, met to develop an Individual Education Plan ("IEP") for A.M.
for the upcoming school year. The IEP that was generated from that meeting
recommended that A.M. attend the Board of Cooperative Education Services, Children's
Readiness Center ("BOCES-CRC"). He was recommended for a class with a 6:1 +2
student/teacher ratio, meaning six students, one special education teacher with expertise
in educating students with autism, and two teaching assistants. The IEP also provided for
A.M. to receive the following related services: a 1:1 individual aide, feeding therapy,
occupational therapy, physical; therapy, speech/language therapy and parent training for
A.M.'s parents. Def. 56.1 Stmt., ~ 8-9; Plaintiffs' Counter-Local Rule 56.1 Statement
("Pl. Counter-56.1 Stmt."), ~ 8-9. The CSE also recommended that A.M. receive feeding
therapy at home. Pl. 56.1 Stmt, ~ 12; Defendant's Counter-Local Rule 56.1 Statement
("Def. Counter-56.1 Stmt."), ~ 12. There were also 18 annual goals and 35
corresponding short-term objectives on the IEP to address A.M.'s needs in reading,
mathematics, speech/language skills, social/emotional/behavioral skills, motor skills, and
1 A.M. was classified in his pre-school years and received services in the Districts in which he resided at those relevant times. Those plans are not at issue in this case.
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basic cognitive/daily living skills Defendant's Exhibit2 15 ("Def. Ex."): 2010-2011 IEP,
at 7-13. A.M.'s parents accepted the CSE's recommendation that A.M. be placed at
BOCES-CRC. Pl. 56.1 Stmt, ~ 12; Def. Counter-56.1 Stmt, ~ 12. A.M. began attending
BOCES-CRC on September 8, 2010. Def. 56.1 Stmt., ~ 10; Pl. Counter-56.1 Stmt., ~ 10.
1. October 2010- Feeding Intervention Plan
Once the school year was underway, the Parents grew concerned about A.M.'s
feeding problem, and by letter dated October 13, 2010, they requested a CSE meeting to
discuss A.M.'s feeding and to request "another feeding evaluation." Def. Ex. 22. A
Feeding Intervention Plan was created on October 14,2010. Def. Ex. 23; Pl. Ex. P. The
plan was to provide A.M. two feeding sessions a day for 15 minutes each, with food
presented for a fixed 30 second interval. Id. The target was to achieve "food
acceptance" of an entire spoon of food in the mouth within 5 seconds of presentation,
have the food swallowed, and to eliminate "inappropriate behavior," such as batting the
spoon, and "negative vocalization," such as crying. Reinforcers were to be used, and
data on A.M.'s progress would be collected on a daily basis. Id.
During the hearing before the IHO, A.M.'s classroom teacher testified that from
the beginning of the school year, A.M.'s mother expressed her desire that A.M. eat all of
the food that was sent in with him for lunch. On one occasion, the mother came to school
and demonstrated how A.M. was fed, and the teacher testified that A.M. was "crying and
protesting," and that A.M. was "forced to eat the food." (Transcript, at 302-303). The
teacher stated the school was not in a position to forcibly feed him and run the risk of
2 The exhibits reference here are those that were introduced at the impartial hearing and are contained in the administrative record before the Court.
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him choking (id. ), and that the school "wanted him to make the choice to eat." Id. The
teacher noted that A.M. would swallow the food without chewing it. Id., at 304. The
goal was to work with him to become more comfortable with his lunch, with less protest,
then work on the chewing. Id., at 305. Around this time, A.M.'s mother would often
come to school at lunch time and remove him from the building to feed him. 3 She was
not permitted to feed him in school. Id., 305-307.
On October 22, 2010, unsatisfied with the revised plan, Plaintiffs sent the District
a letter expressing their disagreement with the BOCES-CRC staff as to how A.M.'s
feeding problem was being handled, and that they did not feel BOCES was an
appropriate placement for A.M. Def. Ex. 27. Plaintiffs also requested that they take the
student out of school "everyday" at noon and arrange for an agency to provide home-
based services. Def. Ex. 27 at 1-2.
2. October 29,2010 CSE Meeting
A meeting ofthe CSE was convened on October 29,2010 to discuss the Parent's
dissatisfaction with the feeding plan and to discuss them not being allowed to feed A.M.
in the building, or come into A.M.'s classroom without an appointment. Def. Ex. 29: IEP
of Oct. 29, 2010 meeting. The IEP notes that "A.M.'s rate of food consumption has
declined since making the transition to the school age program at BOCES-CRC," and
that the parents were picking him up early to feed him his lunch. The parents were
encouraged to "be patient with the feeding plan developed by CRC," and to feed him
3 There is evidence in the record that A.M.'s mother would remove him from the building and feed him in the car. This evolved to the point where the mother would remove him from school around 12 noon to feed him and A.M. would not return to school on a regular basis.
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later in the morning and keep him in school as long as possible before coming to pick
him up, to help A.M. make progress on his educational goals. The Parents agreed to do
this. 4 Also, the IEP notes the staff opinion that the feeding issues were largely
behavioral, and that the District was seeking a feeding therapist to help A.M. at home
after the school day. Finally, it notes that while the District believes BOCES-CRC is the
appropriate placement, in light of the Parent's dissatisfaction, it would make applications
for A.M.'s placement in other programs and keep the Parents informed. Def. Ex. 29, at
3-4. The 18 goals and 35 short-term objectives ofthe earlier IEP remained the same and
continued. Def. Ex. 29, at 8-13.
3. December CSE Meeting
Plaintiffs' dissatisfaction continued. On December 2, 201 0, they wrote to the
District that BOCES-CRC was not an appropriate placement since it was unable to meet
their son's learning, sensory and behavioral disabilities, and need for feeding therapy.
They wrote that having exhausted all alternatives offered, they had no alternative but to
place him in a private school (the Elijah School) for the remainder of the year, and would
be seeking tuition and transportation reimbursement. Def. Ex. 36. The Parents wrote
again on December 9, 2010 that there was no available placement for A.M. at the Elijah
School for the remainder of the school year. De f. Ex. 3 7.
On December 16, 2010, another CSE meeting was held to discuss A.M.'s
placement and for a program review. Def. Ex. 38: IEP from Dec. 16, 2010 meeting.
4 Following the meeting, the Parents sent a letter noting their agreement to keep A.M. at school until 3 p.m, with the understanding that the school would incorporate a third feeding into the school day. See Def. Ex. 28.
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This IEP notes the parents' frustration with A.M.'s progress with the feeding program,
noting that while his food consumption has increased since the Feeding Intervention Plan
was implemented, there is concern he is not eating enough during the day, and is irritable
when he returns home from school. Def. Ex. 38, at 2. As for his other needs noted on
the IEP, the BOCES-CRC staff reported that A.M. was making progress on many of his
goals, including improved eye contact and attention, using a picture exchange
communication system ("PECS") to request certain items, doing well with toilet training,
working on gross motor imitation and making progress on "independent task
completion," retrieving and using "classroom materials independently and
appropriately," and making progress on his matching goal. A.M. was learning to walk
"independently in the hallways." Regarding his feeding, it was reported that he was up to
taking three bites consistently before refusing. Def. Ex. 38, at 2-3.
Also at that meeting the Parents declined the District's offer for A.M.'s placement
at the Developmental Disabilities Institute in Huntington because of the distance from
their home. Id. The other goals on the earlier IEP remained the same, with an added
goal of having A.M. use accurate bite and chew patterns on various food textures. De f.
Ex. 38, at 7-13.
In a letter dated May 4, 2011, A.M.'s parents informed the District of their
intention to remove A.M. from the BOCES program and place him in the Gersh
Academy, a private school for children with autism spectrum disorders in Glen Oaks,
Queens. The Parents also advised the District they would be seeking tuition and
transportation reimbursement under the I.D.E.A. Def. Ex. 62.
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B. The 2011-2012 School Year
An annual review meeting of the CSE, including A.M.'s parents, was held on
May 26,2011 for the purpose of reviewing the 2010-2011 IEP and to create a new one
for the 2011-2012 school year. Def. Ex. 69; Pl. Ex. U: IEP of May 26, 2010 meeting.
Lawyers for the Parents and the District were also present.
The BOCES-CRC team reported that A.M. had made progress on many of his
goals. The IEP states that A.M. was following class routines, increasing time he could
attend to a task, was able to maintain eye contact, follow simple directives, retrieve and
utilize classroom materials, and walk more independently in the hallway. He was timed
trained for toileting. He was verbalizing some words, but inconsistently and not
necessarily functionally, and making progress imitating sounds, and able to gesture yes
or no when prompted. Pl. Ex. U, at 3.
In physical therapy, he met with success and developed his gross motor abilities
to the point that it was recommended those services be discontinued. He was reported to
be making success in occupational therapy and developing his weak fine motor skills. In
the classroom, he was matching objects, colors and pictures and completing interlocking
picture puzzles. Id.
A.M.'s progress in feeding was demonstrated by his ability to independently put
the spoon in his mouth independently with 88% success, and no longer crying or whining
or otherwise avoiding feeding sessions. It was reported that he appeared comfortable
during mealtime, the pace of his feeding had increased, and his food consumption had
increased to 10 ounces of pasta sent from home. After eating, he was joined at the table
with his classmates, while he would eat a snack, usually of berries that he ate
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independently, sitting appropriately with his peers. His chewing ability remained a
significant weakness, although improved chewing was "emerging." Id. The IEP also
notes that make-up home feeding therapy sessions were owed A.M. in light of the
District's difficulty in finding a provider.
Based on these findings, the CSE recommended A.M. be placed in the BOCES-
CRC for the 2011-2012 school year. The IEP recommended that A.M. continue his
6:1 +2 student/teacher ratio, and receive the following services: a 1:1 individual aide,
speech/language therapy, occupational therapy, behavior intervention services, feeding
therapy and parent training for A.M.'s parents. Pl. Ex. U, at 7-8. The IEP also contains
20 annual goals in the areas of basic concepts/classroom language, targeted skills, ADL
Community, occupational therapy, speech/language and classroom foundation skills,
with 45 related short-term objectives. Id., at 11-15.
The IEP notes that A.M. missed a "significant" number of school days. Further, it
acknowledges A.M.'s parents' expressed dissatisfaction with BOCES-CRC as an
appropriate placement, since they felt he still lacks chewing skills and is not eating
enough to sustain him during the day. As a result, the Parents frequently took A.M.
home after half a school day so he could eat. In light of this dissatisfaction, the District
agreed to apply to other programs. Id., at 3.
By letter dated May 27, 2011, A.M.'s Parents requested that the District apply for
A.M. to be placed at four specific schools. Def. Ex. 56. Applications were made, but
A.M. was not accepted. Id. Although not on the list provided by the Parents, the District
also applied for placement within the Levittown and Merrick school districts, which did
accept him in September 2011. Def. Exs. 78 & 79: Acceptance letters.
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In September 2011, A.M. started attending the Gersh Academy, as stated by his
Parents in their letter to the District of May 4, 2011. De f. Ex. 62.
II. Administrative Review
In July 2011, A.M.'s parents requested an impartial hearing to find that the CSE
failed to provide A.M. an appropriate education plan, that the Gersh Academy placement
is appropriate, that the Parents have cooperated, and that they are entitled to
reimbursement for tuition and transportation expenses for the 2011-2012 school year. Pl.
Ex. A.
A hearing was held over the course of ten days, at which both parties were
represented by counsel and presented evidence through witnesses and exhibits. See
Certified Copy of Administrative Record. Plaintiffs offered 41 exhibits and the
Defendant offered 82. On February 20, 2012, the Impartial Hearing Officer ("IHO")
issued an 18-page decision that the District offered A.M. a "free appropriate public
education" for the 2011-2012 school year as required by law, and thus, the Plaintiffs were
not entitled to reimbursement of tuition and transportation expenses. See Decision of
IHO ofFebruary 20, 2012 ("IHO Decision"). The IHO noted that the testimony
presented indicated that A.M. had made "progress in all measurable educational areas" in
the 2010-2011, which IEP provided a basis for the 2011-2012 year. Id., at 17.
By Notice of Petition and Verified Petition of March 26, 2012, the parents of
A.M. appealed the IHO Decision to a New York State Education Department's State
Review Officer ("SRO"). An SRO conducts a review of an IHO decision, examining the
entire hearing record and to ensure that the procedures provided due process. Plaintiffs
challenged the IHO Decision as being arbitrary and capricious, careless and thoughtless,
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replete with errors, and based upon evidence fabricated by the District. Plaintiffs further
claimed that the District failed to demonstrate that A.M. made meaningful progress at
BOCES-CRC during the 2010-2011 school year. See Decision ofSRO, dated April30,
2012 ("SRO Decision"), at 10. The SRO issued a 20-page, single-spaced decision that
outlined the facts and addressed the Parents' claims. Referencing the record, the SRO
found there was no basis in the record to support the Parents' claim that the IHO was
biased against them. Rather, the SRO found the IHO to be courteous, patient, and
attentive "under sometimes challenging conditions." Id., at 13-14. The SRO also found
there was no support in the record for the Parent's contention that the IHO improperly
ignored or weighed the evidence, particularly the parents' demonstrative evidence of how
the District's claim that A.M. ate 10 ounces of food was not possible. 5
The SRO outlined A.M.'s progress during the 2010-2011 school year, and the
creation of the IEP for the 2011-2012 school year at the May CSE meeting. Having
taken an independent review of the record, the SRO agreed with the IHO's conclusion
that the IEP was "reasonably calculated to enable [A.M.] to receive educational benefits,"
and that placement at BOCES-CRC "was an appropriate continuation of an educational
program that provided the student with educational benefits, and thus, offered [A.M.]
FAPE for the 2011-2012 school year." Id., at 16-17.
The SRO Decision also notes that the Parents did not seem to challenge the
aspects of the IEP concerning A.M.'s progress in academic achievement, social
development, physical development, management needs, the frequency or duration of
5 This demonstration was the subject of Plaintiffs Exhibit 00, which, at the request of the Plaintiffs, was viewed by this Court at the hearing held on May 31, 20 13.
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speech and language therapy or occupational therapy, the full-time aide or the home-
based program, and reviewed in detail the manner in which the IEP addressed these
needs. Id., at 17-20.
Ultimately, the SRO concluded that the "evidence in the hearing record
demonstrates that the district sustained its burden of offering [A.M.] a FAPE in the [least
restrictive environment] for the 2011-12 school year." Having found the education plan
offered was "appropriate," the SRO declined to reach the question of whether Gersh
Academy was an appropriate placement, and whether the equities leaned in favor of the
Parents. Id., at 20.
III. This Action
Plaintiffs' filed this action pursuant to the IDEA seeking de novo review and
reversal of the SRO Decision, and a determination that Plaintiffs have met the legal
standards to entitle them to reimbursement for A.M.'s enrollment in the Gersh Academy
for the 2011-2012 school year. The parties have cross-moved for summary judgment.
At Plaintiffs' request, the Court held a hearing to permit Plaintiffs to show a video
of the demonstration they conducted at the Impartial Hearing to show that the 15
spoonfuls of food the District claims A.M. was eating every day could not amount to 10
ounces as the District claimed. See Pl. Ex. 00. At that time, the Court also heard oral
argument from counsel. Based on the entire record submitted, and for the reasons stated
below, the Court denies Plaintiff's motion for summary judgment and grants Defendant's
motion for summary judgment.
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DISCUSSION
I. Legal Principles
A. Standards for Reimbursement under IDEA
"The IDEA seeks to provide to all children with disabilities 'a free appropriate
public education [FAPE] that emphasizes special education and related services.'" C.L.
v. Scarsdale Union Free School Dist., 2014 WL 928906, *1 (2d Cir. 2014), citing 20
U.S.C. § 1400(d)(l)(A) (other citations omitted). The FAPE must be specific to the
unique needs of a particular child and reflect the IDEA's '"strong preference' for
educating disabled students alongside their non-disabled peers; that is, in their least
restrictive environment." Id., citing M.W. ex rel. S.W. v. N.Y.C. Dep't ofEduc., 725
F.3d 131, 143 (2d Cir. 2013) and Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119,
122 (2d Cir.1998).
"Where the state fails to provide a FAPE to a disabled child, the parents may
enroll the child in a private school and seek reimbursement for the cost of the private
school education from the local education agency." Id., citing 20 U.S.C. §
1412(a)(10)(C)(i), (ii) and Sch. Comm. ofTown ofBurlington, Mass. v. Dep't ofEduc.,
471 U.S. 359,370, 105 S.Ct. 1996,85 L.Ed.2d 385 (1985).
The Supreme Court has established the three-pronged Burlington/Carter test to
determine when a parent is entitled to tuition reimbursement. The analysis examines (1)
whether the school district's proposed plan will provide the child with a free appropriate
public education; (2) whether the parents' private placement is appropriate to the child's
needs; and (3) a consideration of the equities. C.F. ex rel. R.F. v. New York City Dept. of
Educ., 2014 WL 814884, *5 (2d Cir. 2014), citing Frank G. v. Board ofEduc. of Hyde
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Park, 459 F.3d 356, 363 (2d Cir. 2006); see also Burlington, 471 U.S. at 370 and
Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13, 114 S.Ct.
361, 126 L.Ed.2d 284 (1993).
In New York, a parent seeking such reimbursement must first pursue that claim in
a due process hearing before an IHO, and may appeal that decision to an SRO. Either
party may then seek review of the SRO's decision in federal court, pursuant to 20 U.S.C.
§ 1415(i)(2)(A). C.L. v. Scarsdale Union Free School Dist., 2014 WL 928906, *2 (2d
Cir. 2014).
B. Standards of Review of SRO Decision
When reviewing an IDEA claim, a district court "must engage in an independent
review of the administrative record and make a determination based on a preponderance
ofthe evidence." C.L. v. Scarsdale, at* 9, quoting Gagliardo v. Arlington Cent. Sch.
Dist., 489 F.3d 105, 112 (2d Cir. 2007) and 20 U.S.C. § 1415(i)(2)(C)(iii). 6 However,
this does not invite the courts to substitute their own notions of sound educational policy
for those ofthe school authorities which they review, since '"[f]ederal courts 'lack the
specialized knowledge and experience necessary to resolve persistent and difficult
questions of educational policy."' C.L. v. Scarsdale, at *9, quoting Board of Educ. of
Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176,
206, 208 (1982). Thus, a district court must "accord deference" to the state agency
6 20 U.S.C. § 1415(i)(2)(C) states that in an action to review a decision, the court shall (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.
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decision it reviews. Such deference though is not absolute, but "will hinge on the kinds
of considerations that normally determine whether any particular judgment is persuasive,
for example whether the decision being reviewed is well-reasoned, and whether it was
based on substantially greater familiarity with the evidence and the witnesses than the
reviewing court." M.H. v. N.Y.C. Dep't ofEduc., 685 F.3d 217, 244 (2d Cir. 2012). See
also C.F. ex rel. R.F. v. New York City Dept. ofEduc., 2014 WL 814884, *5 (2d Cir.
2014) (the standard of review is more critical than "clear-error," but falls "well short of
complete de novo review") (citations omitted). A well-reasoned decision of an SRO
deserves deference as a "final administrative determination." K.L. ex rel. M.L. v. New
York City Dept. of Educ.,
530 Fed.Appx. 81, 85 (2d Cir. 2013). "The deference owed to an SRO's decision
depends on the quality ofthat opinion." R.E. v. New York City Dept. ofEduc., 694 F.3d
167, 189 (2d Cir. 2012).
II. Application
As an initial matter, the Court notes that the decision of the SRO is detailed, well-
reasoned and persuasive, and entitled to the deference described in the Second Circuit
decisions outlined above. Nevertheless, the Court has reviewed the administrative
records and other materials presented, and undertakes its own review of whether the
Plaintiffs are entitled to tuition reimbursement as permitted under the Burlington/Carter
test.
A. The Burlington/Carter Test
As described above, that three-pronged test examines (1) whether the school
district's proposed plan will provide the child with a free appropriate public education;
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(2) whether the parents' private placement is appropriate to the child's needs; and (3) a
consideration ofthe equities. C.F. ex rel. R.F. v. New York City Dept. ofEduc., 2014
WL 814884, *5 (2d Cir. 2014) (citations omitted).
1. Did A.M.'s 2011-2012 IEP Offer FAPE?
The issue in this case is whether the IEP formulated at the May 26, 2011 CSE
meeting offered A.M. a "free appropriate public education" in the "least restrictive
environment." It must be noted that to be "appropriate" does not demand that the
program be the most appropriate, or the best. "[F]ederallaw 'does not secure the best
education money can buy; it calls upon government, more modestly, to provide an
appropriate education for each (disabled] child"'. Walczak v. Florida Union Free School
Dist., 142 F .3d 119, 130 (2d Cir. 1998), quoting Lunceford v. District of Columbia Bd. of
Educ., 745 F.2d 1577, 1583 (D.C. Cir.1984) (Ruth Bader Ginsburg, J.)(emphasis in
original).
The first prong of the Burlington/Carter test has two components to whether the
plan offered is appropriate. First, the court will examine if there have been procedural
violations, and if so, if they "impeded the child's right to a free appropriate public
education," "impeded the parents' opportunity to participate," or "caused a deprivation of
educational benefits." C.F. v. NYC Dept. ofEducation, 2014 WL 814884, *7 (2d Cir.
2014), quoting 20 U.S.C. § 1415(f)(3)(E)(ii). Secondly, the court will examine whether
the IEP was "substantively adequate," meaning "'reasonably calculated to enable the
child to receive educational benefits."' C. F., at *7, quoting R.E., 694 F.3d at 190.
Plaintiffs' claim that the District's IEP was not "reasonably calculated to confer
educational benefits to A.M." See Plaintiffs' Memorandum in Support of Plaintiffs'
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Motion ("Pl. Mem."), at 16-20. The thrust ofPlaintiffs' argument is that it is not possible
that A.M. was eating 10 ounces of food a day at BOCES-CRC as the District claims,
particularly in light ofthe testimony that typically 90% of his food came home uneaten,
and the Parents' demonstration at the IHO hearing, as reflected on Ex. 00, reflects that
claim is not possible. Plaintiffs argue that at best, A.M. ate "at most 3.7 ounces" of food,
and that "when he does not eat, he becomes unstable and dysregulated and unavailable
for learning." Id., at 16. Plaintiffs do not address or challenge the other needs or goals
listed on A.M.'s IEP. Id., at 16-19.
Noting that the Plaintiffs challenge only the feeding issue and not the other areas
of academic achievement and social and physical development addressed by the IEP,
Defendant argues that according to various plans and progress reports, A.M. made
progress in feeding, and that there was no need for A.M.'s mother to pick him up from
school every day, since he has already eaten. For example, Phase 3 of the Feeding
Intervention Plan initiated in October 2010, states that by May 11,2011, A.M. was
independently putting food in his mouth 88% of the time, and swallowing and remaining
in his seat 100% ofthe time. Def. Ex. 64. The May 23, 2011 Speech and Language
Progress Report of A.M.'s home feeding therapist notes that A.M. was "making progress
in using proper bite and chew patterns, and that he appeared to be gaining weight." Def.
Ex. 65. Whether A.M. consumed 3.7 or 10 ounces of food regularly, the IEP notes
progress in this area, commenting that A.M. "appears comfortable during mealtimes,"
has increased his pace of eating, and joins his classmates around the table after finishing
his lunch. Def. Ex. 69.
The Court finds it necessary to address Plaintiffs' continued claim that the food
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demonstration evidence shown on Ex 00 was ignored by the IHO and SRO. The Court
finds there is no basis to find that evidence was ignored by either the IHO or the SRO.
The SRO specifically addressed Plaintiffs' evidence that they claimed showed the
District's claim of how much food A.M. ate was incorrect. See SRO Decision, at 12, 14.
The SRO further noted that the IHO did not display any bias or prejudice against the
Plaintiffs and provided them ample opportunities to be heard, and that there is no
evidence in the record indicating that the Plaintiffs' evidence was ignored. Id., at 13-14.
Similarly, having reviewed the record, this Court agrees with the SRO that there is no
basis that the IHO or the SRO ignored any evidence or otherwise displayed bias or
prejudice against either party. The parties were given ample opportunity to present
evidence over the course of the 10 hearing days. Finally, Plaintiffs presented this
demonstration to this Court at the hearing. See Pl. Ex. 00.
Based on a review of the record, the Court agrees with the SRO and IHO that the
District's 2011-2012 IEP offered A.M. a free appropriate public education in the least
restrictive environment. The IEP addressed not only A.M.'s feeding difficulties, but his
need for speech and language therapy, occupational therapy, behavior intervention
services and parent training. He reported progress in all of these areas while at BOCES-
CRC in the 2010-2011 school year, and the Parents do not dispute that progress or the
IEP's plan to continue to address A.M.'s other (non-feeding) needs in the 2011-2012
year. The Court notes that this progress occurred despite that A.M. was regularly pulled
from school at 12 noon. A review of the record indicates that A.M. also showed progress
with his feeding issues. While clearly the Parents were frustrated by the amount of food
that BOCES-CRC reported A.M. was eating, the record indicates that by May 2011,
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progress was being made, he appeared to be gaining weight, and that the IEP to continue
that plan was appropriate. Thus, there is no need for the Court to address the other two
prongs of the Burlington/Carter test, namely whether A.M.'s placement at the Gersh
Academy was appropriate, or if the equities favored Plaintiffs. Therefore, Plaintiffs'
motion for summary judgment is denied, and summary judgment is granted in favor of
Defendants.
CONCLUSION
For the reasons stated above, Plaintiffs' motion for summary judgment is denied,
and Defendants' motion for summary judgment is granted. The Clerk of the Court is
directed to close this matter.
SO ORDERED.
s/ Leonard D. Wexler / LEONARD D. WEXLER I UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York Marchj[ , 2014
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