E.D.N.Y.: Killoran et al. v.... | Special Education Law

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------------X A.K, a minor (CHRISTIAN KILLORAN, as parent), REPORT AND Plaintiffs, RECOMMENDATION 17-cv-0866 (GRB)(SIL) -against-

WESTHAMPTON BEACH SCHOOL DISTRICT, MICHAEL RADDAY- SUPERINTENDENT, SUZANNE M. MENSCH, HALSEY C. STEVENS, STACY RUBIO, CLAIRE BEAN, JAMES N. HULME, JOYCE DONNESSON, and GEORGE R. KAST, JR. (individually and collectively as Board of Education Members),

Defendants. ---------------------------------------------------------------------X CHRISTIAN KILLORAN and TERRIE KILLORAN, individually and on behalf of their infant son, A.K., a minor, Plaintiffs,

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT, MICHAEL RADDAY (individually and in his official capacity as SUPERINTENDENT), SUZANNE M. MENSCH, HALSEY C. STEVENS, STACY RUBIO, CLAIRE BEAN, JAMES N. HULME, JOYCE DONNESSON, and GEORGE R. KAST, JR. (individually and in their respective official capacities as Board of Education Members),

Defendants. ---------------------------------------------------------------------X

STEVEN I. LOCKE, United States Magistrate Judge:

Presently before the Court, on referral from the Honorable Gary R. Brown for

Report and Recommendation, are Plaintiffs’ motions for summary judgment as to: (1)

Plaintiffs’ Fifth Cause of Action appealing both the independent hearing officer

(“IHO”) Dr. James A. Monk’s (“IHO Monk”) and state review officer (“SRO”) Steven

Krolak’s (“SRO Krolak”) 2017 decisions upholding Defendants’ educational program

recommendations; and (2) Plaintiffs’ Seventh Cause of Action appealing SRO Krolak’s

2018 decision denying a request to modify A.K.’s educational placement during the

pendency of litigation. Pro se Plaintiffs Christian Killoran and Terrie Killoran

(together, the “Parents”), individually and as parents to A.K., their child with Down

syndrome (collectively, the “Plaintiffs”), commenced this action against Defendants

Westhampton Beach School District (“Westhampton” or the “District”), Michael

Radday, Suzanne M. Mensch, Halsey C. Stevens, Stacy Rubio, Claire Bean, James N.

Hulme, Joyce Donnesson and George R. Kast, Jr. (collectively with the District,

“Defendants”) by way of Complaint dated February 16, 2017. See Complaint

(“Compl.”), Docket Entry (“DE”) [1]. Plaintiffs’ Second Amended Consolidated

Complaint alleges violations of (1) the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400, et seq.; (2) the Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seq.; (3) 42 U.S.C. § 1983; and (4) Section 504 of the Rehabilitation Act, 29

U.S.C. § 794(a) et seq. See Second Amended Consolidated Complaint (“SACC”), DE

[52]. Plaintiffs’ SACC additionally: (5) appeals the 2017 administrative decisions of

IHO Monk and SRO Krolak; (6) seeks an equitable order directing Defendants to

enroll A.K. and to utilize an inclusion consultant to design A.K.’s Individualized

Educational Plan (“IEP”) for implementation within the District; and (7) appeals the

July 11, 2018 SRO Krolak decision. On June 5, 2020, Plaintiffs filed both fully briefed

motions for summary judgment, which Defendants oppose. See DE [104], [105]. On

August 11, 2020, Judge Brown referred Plaintiffs’ motions to this Court for a Report

and Recommendation as to whether they should be granted. For the reasons set forth

herein, the Court respectfully recommends denying both of Plaintiffs’ motions for

summary judgment in their entirety.

I. BACKGROUND

The following facts are taken from the SACC, administrative record contained

in DE [43] and supporting documents. Unless otherwise noted, these facts are not

in dispute. Plaintiffs have filed numerous administrative proceedings and multiple

actions in this Court. In the interest of brevity, only the proceedings relevant to the

issues presented in Plaintiffs’ motions are discussed below.

A. Relevant Facts and Procedural History

At the time the SACC was filed, A.K. was a fifteen-year-old boy, and as set

forth above, he was born with Down syndrome. SACC ¶ 2. A.K., classified as a

student with an intellectual disability, attended elementary school in the

Remsenburg-Speonk School District (“Remsenburg”) from kindergarten through

grade 2. See August 15, 2017 Decision of IHO Monk (“Monk Decision”), DE [43-4], at

7. A.K. was verbal and could read and decode words but had difficulty understanding

them, needing substantial prompting and repetition. See id. He struggled with short

stamina, and needed a one-to-one aide for toileting assistance, dressing with zippers

and buttons and holding onto crayons. See id. A.K. attended grades 3 and 4 in the

Center Moriches School District, and returned to Remsenburg for grades 5 and 6. See

Id. at 7-8. In grades 5 and 6, A.K. attended an integrated co-teaching class, learning

with both disabled and non-disabled peers, and received the support of a one-to-one

aide, as well as speech and language therapy, occupational therapy and physical

therapy. See id. at 8.

Special education programs in Westhampton include integrated co-taught

services and resource room. See id. For resident students for whom the District does

not have an appropriate program to meet those students’ needs, Westhampton often

places such students in another district, a BOCES program, an approved private

school, a day school program or a state operated school or residential program. See

id.

The Parents were unwavering in their desire for A.K. to be educated within

the District, but Westhampton ultimately determined that it did not have enough

students to warrant creating a program to meet A.K.’s needs. See id. As a result, he

was sent out-of-District for school. See id. at 2. The Parents objected to having A.K.

educated full-time outside the District for the 2016-2017 and 2017-2018 school years,

and filed claims for a State administrative proceeding.

In response to the Parents’ objections, hearings were held by: (1) IHO Nancy

Lederman (“IHO Lederman”), who issued her decision on January 26, 2017; (2) IHO

Monk, who issued his decision on August 15, 2017; and (3) SRO Krolak, who issued

his decision on October 18, 2017. The Parents also filed a claim for an administrative

proceeding before IHO Leah Murphy (“IHO Murphy”) after the District denied their

request to modify A.K.’s educational placement during the pendency of this and

related proceedings. In response to the second claim, hearings were held by: (1) IHO

Murphy, who issued an interim administrative decision on June 15, 2018; and (2)

SRO Krolak, who issued his decision on July 11, 2018.

i. January 26, 2017 Decision of IHO Lederman and Subsequent District Actions

The Parents filed a due process complaint on May 10, 2016, objecting to

Westhampton’s denial of in-district placement for A.K. for the 2016-2017 school year.

See January 26, 2017 Decision of IHO Lederman (“Lederman Decision”), DE [43-14],

at 1-2. After a different IHO granted the District’s motion to dismiss the due process

complaint, an SRO vacated the dismissal and ordered the matter remanded to the

previous IHO, unless the parties agreed to consolidation before a different IHO in a

pending proceeding before Remsenburg. See id. at 2. The Parents, Westhampton

and Remsenburg attended prehearing conferences on July 26, 2016 and August 4,

2016, subsequent to which the cases were consolidated, and hearings were held on

August 29, 2016 and September 1, 2016. See id.

IHO Lederman received a copy of the due process complaint the Parents filed

against Westhampton, challenging the District’s recommended placement for A.K. for

the 2016-2017 school year. See id. On October 11, 2016, that matter was consolidated

with the proceedings before the Westhampton and Remsenburg districts. See id.

On October 14, 2016, IHO Lederman conducted an impartial hearing on

Plaintiffs’ due process complaint. See id. at 3. The hearing continued on October 17,

November 10 and November 14 of that year, and on November 10, 2016, the Parents

withdrew all complaints against Remsenburg. See id. In her January 26, 2017

decision, IHO Lederman directed Westhampton to formally enroll A.K within the

District and assume responsibility for convening a Committee on Special Education

(“CSE”) in order to provide an appropriate placement for A.K. See Monk Decision at

3. IHO Lederman further directed the District to retain a “qualified consultant on

inclusion” to advise and report to the District on inclusion for A.K. at the middle

school level. See id.

Westhampton retained two consultants: the District chose one consultant,

Victoria Regan, and the Parents chose the other, Kathleen Feeley. See id. IHO

Lederman charged both consultants with reviewing A.K.’s education record and

examining instructional programs and curricula available in the District to assess

whether supplementary aids and supports would allow him to benefit from inclusion

in any classes within the District, and to make recommendations in accordance with

the results of their review, and both consultants complied. See id. at 4. The

consultants were permitted to, and did, examine instructional programs in other

districts to assess whether supplementary aids and supports would allow A.K. to

benefit from inclusion in available classes, and to make recommendations in

accordance with their results. See id.

IHO Lederman instructed the District to convene a CSE to develop an IEP and

provide an appropriate placement for A.K. within 10 days of receiving the

consultants’ reports. See id. at 4. IHO Lederman directed that the CSE receive and

consider the consultants’ reports, as well as invite them to the CSE meeting to report

orally on their findings, and include such results and recommendations of their

reports on A.K.’s IEP. See id. Both consultants appeared at CSE meetings, but the

IEP had not been finalized as of the date of the hearing before IHO Monk. See id.

Finally, IHO Lederman concluded that, to the extent inclusion in a general education

or less restrictive self-contained class is not recommended by the CSE, placement is

to be in a class with students with similar needs and not in a class with “mostly non

verbal students,” and that if the District intends to place A.K. out-of-District, the CSE

is to invite to its meeting representatives from the agency or district to discuss A.K.’s

needs and how such a program will address them, memorializing such information

on A.K.’s IEP. See id. at 4-5. None of these events occurred prior to the hearing

before IHO Monk.

ii. August 15, 2017 Decision of IHO Monk

In accordance with IHO Lederman’s order, the CSE reconvened to review any

possible in-district programs for A.K., as well as to hear both experts’

recommendations and reach out to neighboring school districts to ascertain whether

they could accommodate A.K.’s needs for the 2016-2017 school year. See id. at 3-5.

On April 19, 2017, the Parents filed a due process complaint alleging that

Westhampton violated A.K.’s rights under the IDEA to a free and appropriate

education (“FAPE”) for the 2016-2017 school year as a result of the CSE’s actions and

recommendations. See October 18, 2017 decision of SRO Krolak (“2017 Krolak

Decision”), DE [43-3], at 4. After additional CSE meetings in May 2017, the Parents

filed a second, consolidated due process complaint, adding claims that:

[T]he CSE chairperson recommended an educational placement which she was not familiar with and that was unnecessarily restrictive, the CSE chairperson recommended that placement without exploring the possibility of implementing the student's lEP goals within the district, and the CSE was improperly composed because it failed to include a representative from the recommended placement....

Id. at 5.

An impartial hearing on Plaintiffs' consolidated due process complaint before

IHO Monk commenced on June 15, 2017 and concluded on June 22, 2017. At the time

of the hearing before IHO Monk, the CSE’s current recommendation for A.K. was

placement on “Home Tutoring” with all appropriate “related services” required in his

IEP provided either at home or in the District. This placement was also identified as

a “pendency placement” throughout the course of litigation. See Monk Decision at 5.

IHO Monk noted that no party took exception to A.K.’s classification for the

2016-2017 and 2017-2018 school years, as all believed the classification

recommendations were appropriate to address his disabilities. Rather, the Parents

contested A.K.’s placement outside of the District, and claimed that the CSE

Chairperson recommended an educational placement she was not familiar with and

that was inconsistent with the CSE member consensus, within a more restrictive

learning environment than necessary and without exploring the possibility of

implementing A.K.’s IEP goals within the District. See id. at 6. The Parents further

asserted that the CSE Chairperson recommended an educational placement not

attended by a representative from such location and that her integrity was

compromised by the attendance of two CSE members who should have been removed

for partiality. See id.

Plaintiffs urged IHO Monk to issue an order compelling Westhampton to

attempt in “good faith” to implement A.K.’s IEP goals “within district,” as Plaintiffs

argued that in-District education would be the least restrictive learning environment

(“LRE”), and that implementing A.K.’s IEP in the District was “entirely possible.” See

id. at 6-7. Further, the Parents alleged that without an order from IHO Monk

compelling Westhampton to educate A.K. within the District, Westhampton will

“continue to defy its legal obligations.” Id. at 7.

In upholding Westhampton’s recommendation to educate A.K. out-of-District,

IHO Monk reviewed the extensive administrative record before him, and reasoned

that, because the parties did not disagree on the size or structure of the program for

A.K., the parties did not disagree as to what constituted an LRE for A.K. See id. at

11. He analyzed the two consultants’ opposing recommendations as to A.K.’s

placement after their examinations. See id. at 11-12. Feeley, the Parents’ consultant,

concluded that A.K. would benefit from inclusion in classes within the District, with

supplementary aids and supports, and would make “meaningful progress” attending

school as close to home as possible. See id. at 12. Regan, Westhampton’s consultant,

reviewed District records as to A.K., observed him within the in-District setting

where he received related services as well as during his home instruction, visited

District classes, reviewed class profiles and curricular materials and visited

neighboring districts to review their curricula, content and class profiles as to those

districts’ programs. See id. Regan recommended placing A.K. in a neighboring

district with a life skills program and a small class placement, thereby allowing A.K.

to be in a building with typical students and in an instructional group with peers with

similar needs. See id. Regan further concluded, and IHO Monk agreed, that

Westhampton did not currently have available special educational classes and

instructional groupings that could accommodate A.K. See id.

IHO Monk ultimately concluded that Westhampton did not deny A.K. a FAPE.

See id. at 14-16. He noted that “[p]lacement within the district, although a legitimate

concern of parents that a child attend school with other neighborhood children, has

been held to be a concern beyond the educational benefit inquiry made under IDEA.”

Id. at 15. Based on the record, IHO Monk determined that an LRE could not be

implemented within a regular educational classroom for A.K. See id. Finally, IHO

Monk explained, “Westhampton Beach is not required to create a program, but it is

required to examine whether AK’s needs can be met within a district class with

supplementary aids and services. I feel that they have taken on this examination

and made a well informed determination.” Id. at 16.

In concluding that the District sustained its burden to demonstrate that it was

prepared to provide a FAPE for the challenged school years, IHO Monk noted that

A.K. would have made progress had he attended the recommended out-of-District

placement, the Parents’ preferred in-District placement is not the LRE, and the

testimony and information in the administrative record did not demonstrate a

reasonable accommodation Westhampton could have made, nor how A.K.’s academic

deficits could have been addressed in-District, as his “inability to function in a

mainstream setting has been well established.” Id. at 16. IHO Monk directed the

parties to complete the placement process for 2017-2018, and the CSE to canvas out-

of-District programs so as to offer A.K. an appropriate program in connection with

his IEP.

iii. October 18, 2017 Decision of SRO Krolak

Plaintiffs submitted a Request for Review on September 13, 2017, seeking SRO

review of IHO Monk’s decision. See Pl. Request for Review, DE [43-6]. Plaintiffs

maintained that IHO Monk was incorrect because he misconstrued the meaning of

IHO Lederman’s order, specifically that IHO Lederman’s order required that prior to

“outsourcing” A.K.’s placement, the District must undertake a “meaningful analysis”

and “good faith” attempt to implement A.K.’s IEP internally, including consideration

of possible reasonable modifications, augmentation or reallocation of special

education and related services resources necessary to meet the IEP goals “within

district.” See Pl. Request for Review at 2-3, ¶ 6. As such, Plaintiffs requested that

an SRO reverse IHO Monk’s decision and order the District to enroll A.K. within-

District and within a mainstream setting, and hire a qualified individual to assist the

District in this effort and a judgment for compensatory education and reimbursement

of attorney fees. See id. at 10.

SRO Krolak reviewed Plaintiffs’ appeal of the IHO Monk decision that

determined that the educational program the District’s CSE recommended for 2016-

2017 and 2017-2018 was appropriate and sustained the appeal in part. See 2017

Krolak Decision. Initially, SRO Krolak deemed abandoned several issues previously

asserted in Plaintiffs’ due process complaint but not raised on appeal, including that

Regan’s report was irreconcilably compromised and substantively flawed, the CSE

was improperly compromised, district counsel acted to impair the efficacy of the CSE,

the CSE Chairperson recommended a placement she was not familiar with, the CSE

lacked a district representative from a district that could implement it and the

District harbored a systematic discriminatory policy. See id. at 12. As such, the sole

issue on review before SRO Krolak was Plaintiffs’ allegation that the District “has a

duty to meaningfully analyze and make a good faith attempt to implement the

student’s educational goals within the district before placing the student in an out of

district placement, and that the district failed to do so.” Id.

To determine whether the District’s IEP placed A.K. in the LRE, SRO Krolak

utilized the Second Circuit’s two-prong test set forth in P. ex rel. Mr. & Mrs. P. v.

Newington Board of Education, 546 F.3d 111 (2d Cir. 2008). Under Newington, the

analysis considers: (1) whether education in the general classroom, with the use of

supplemental aids and services, can be achieved satisfactorily for a given student,

and, if not, (2) whether the school has mainstreamed the student to the maximum

extent appropriate. See Newington, 546 F.3d at 119-20. SRO Krolak’s decision notes

that a determination as to the first prong is made through an examination of a non-

exhaustive list of factors, including whether the district made reasonable efforts to

accommodate the child in a regular classroom; the educational benefits available to

the child in a regular class with appropriate supplementary aids and services, as

compared to the benefits provided in a special education class; and the possible

negative effects of the inclusion of the child on the education of the other students in

the class. See id. at 120; 2017 SRO Krolak Decision at 15.

In determining whether Westhampton fulfilled the first Newington prong,

whether A.K. can be educated satisfactorily in a general education class with

supplemental aids and services, SRO Krolak reviewed A.K.’s then-present levels of

performance. A.K.’s reports placed him at or below the first percentile in reading

comprehension, spelling, listening comprehension and mathematics; in the low range

in single-word reading and in the low average range in pseudo-word decoding; and

below the first percentile in speech-language skills. See 2017 SRO Krolak Decision

at 16. The reports noted that A.K. required prompts to regulate food intake, as well

as chew and swallow in a safe and socially appropriate manner, and that he presented

with decreased postural and upper extremity tone, strength and endurance, ocular

motor weakness and decreased fine and gross motor skills, as well as a decreased

ability to attend to gross motor activities in a large group setting. See id. A.K.’s IEP

indicated that he enjoyed social interaction, and frequently interrupted groups of

adults and children by trying to hug them or stand in front of individuals. See id.

Finally, the IEP indicated that A.K. required an established and predictable routine

and structured environment, with individualized attention to focus on tasks, as well

as intensive supervision to function in the educational setting. See id. He required

a program with a low student-to-teacher ratio with minimal distractions to make

academic progress. See id.

SRO Krolak also reviewed both inclusion consultants’ reports, as well as the

see id. at 16-22, and determined that, given the consultants’ “extensive review of the

district’s available services,” the CSE participants had “ample” information regarding

the District’s resources to determine the student’s LRE and whether the District

could provide the student with a FAPE in a general education setting. See id. at 22.

Further, SRO Krolak noted that the CSE participants “grappled” with the Plaintiffs’

preference to educate A.K. within-District, as well as Feeley’s recommendations to

that effect, “at length.” See id. The record reflects that several participants asked

questions in an effort to ascertain how Feeley’s recommendations could be

implemented in-District. See id.

SRO Krolak concluded that the District made “reasonable efforts to consider

accommodations for the child in a general education classroom, as well as the benefits

and drawbacks of placing him in that setting, and therefore appropriately determined

that the student could not be satisfactorily educated in a general classroom with the

use of supplemental aids and services.” Id. at 25-26. Moreover, SRO Krolak

determined that the CSE’s recommendations not only provided A.K. with a FAPE,

but also constituted his LRE. See id. at 26.

As to the second Newington prong, SRO Krolak concluded that the evidence in

the record demonstrated that the District attempted to provide Plaintiffs with two

options for out-of-District placements because other districts indicated they were

capable of implementing the special class placement recommended on the IEP when

the District determined it was not possible to implement the IEP in-District. See id.

at 27. SRO Krolak further noted that the District utilized a reasonable procedure to

locate an appropriate educational setting in a neighboring district, specifically,

canvassing neighboring districts to determine whether they had an appropriate

placement that could meet A.K.’s needs and offering to facilitate site visits. See id.

SRO Krolak cited to the fact that in response, through a series of identical letters, the

Parents wrote to each CSE participant on the attendance list for a CSE meeting,

including A.K.’s special education teacher, school psychologist and representatives of

neighboring school districts, and warned them that if they attended or participated

in that meeting, they would “become entangled in outstanding State and Federal

litigation.” Id. At 28.

SRO Krolak determined that Westhampton did not deny A.K. a FAPE by

recommending a special class placement and attempting to locate one in a

neighboring district, but noted that the District “is not absolved of its obligation to

continue to attempt to educate the student in the school he would have attended if

not disabled unless the student’s IEP requires some other arrangement.” See id. As

such, SRO Krolak overturned the portion of IHO Monk’s order directing that when

the CSE reconvenes to recommend an appropriate placement, it should not consider

placement of the student within the District. See id. at 28-29.

iv. June 15, 2018 Interim Order of IHO Murphy

On March 12, 2018, Plaintiffs commenced a second proceeding, challenging the

recommendations arising out of a CSE meeting held on March 5, 2018. See June 15,

2018 Interim Order of IHO Murphy (“IHO Murphy Order”), DE [105-1], Exhibit

(“Ex.”) B. During these proceedings, the Parents requested a hearing as to A.K.’s

pendency placement. See id. In denying the Parents’ request, IHO Murphy noted

that they acknowledged the agreed-upon pendency placement during pre-hearing

conference calls. See id. at 2, 7. The Parents asked the District to allow A.K. to attend

Westhampton for lunch and electives, and the District refused to amend the prior

agreement as to A.K.’s placement during the pendency of all proceedings and

litigation (“pendency agreement”). See id. at 7.

While acknowledging that A.K.’s current pendency placement is “the most

restrictive and he would be better served if he had more opportunities to be educated

in a school setting,” IHO Murphy determined that the pendency agreement has been

acknowledged before her and in previous decisions. See id. at 7-8. Moreover, IHO

Murphy concluded that the pendency provisions of the IDEA and New York State

Education law require a student to remain in the then-current educational placement

until such proceedings have been completed, and that pendency placement and

appropriate placement are “separate and distinct concepts.” Id. at 9. As such, IHO

Murphy found Plaintiffs’ request for a hearing on the issue of pendency to be

inappropriate, and therefore denied the request. See id. at 10.

v. July 11, 2018 Decision of SRO Krolak

On appeal, SRO Krolak concluded that IHO Murphy correctly denied Plaintiffs’

request for a change in pendency. See July 11, 2018 Decision of SRO Krolak (“2018

Krolak Decision”), DE [105-1], Ex. A, at 7. In so concluding, SRO Krolak

acknowledged IHO Murphy’s review of the administrative record and previous

decisions involving the student, as well as her “careful[]” consideration of Plaintiffs’

position, before “correctly reaching the conclusion that the student’s pendency

placement had been determined by agreement of the parties and acknowledged in

prior proceedings.” Id.

SRO Krolak agreed with IHO Murphy that Plaintiffs are not entitled to a

change in pendency, and that their “desire to augment the student’s pendency

placement without the consent of the district does not constitute a pendency changing

event.” Id. Initially, SRO Krolak rejected Plaintiffs’ argument that pendency should

be flexible because of their perceived notion that if a state-level administrative

decision, such as that issued by an SRO, agrees with a student’s parents that a change

in placement was appropriate, such decision will effectuate a change in pendency

placement. See id. at 8. SRO Krolak concluded that such a decision pertains only to

“overall litigation regarding tuition reimbursement.” See id. Next, SRO Krolak

rebuffed Plaintiffs’ argument that pendency is flexible where the parties intended the

placement to be temporary. See id. at 8-9. Last, he concluded that Plaintiffs’

argument that a modification of pendency placement would align with the “best

interests” of A.K. was unavailing, as pendency is evaluated independently from the

appropriateness of the program the CSE offered. See id. at 9. Accordingly, SRO

Krolak determined that IHO Murphy correctly denied Plaintiffs’ request for a change

in pendency, and found that absent a pendency changing event, A.K. must remain in

his pendency placement for the duration of the due process proceedings. See id.

B. Plaintiffs’ Motions for Summary Judgment

On June 5, 2020, Plaintiffs filed the instant motions for summary judgment,

which Defendants oppose. See DE [104], [105]. Plaintiffs argue initially that the IHO

Monk and 2017 SRO Krolak opinions should be overturned as a result of errors of

fact and misapplications of law, specifically their determinations that Defendants

offered A.K. a FAPE as required by the IDEA and New York’s Education Law. See

DE [104] (“Pl. LRE Br.”). In opposition, Defendants take the position that a number

of Plaintiffs’ arguments have been deemed abandoned or were otherwise not

administratively exhausted, and that in any event, Plaintiffs have failed to meet their

burden by a preponderance of the evidence that either IHO Monk or SRO Krolak

erred as a matter of fact or law. See DE [104-1] (“Def. LRE Opp.”)

Plaintiffs’ second motion for summary judgment argues that IHO Murphy and

SRO Krolak erred in denying Plaintiffs’ request to modify A.K.’s pendency placement,

and asks this Court to overturn those decisions, or issue an order directing

Westhampton to modify A.K.’s pendency placement to include his participation in a

general education setting for lunch and electives until the final resolution of his

appeal as required by the pendency provision of the IDEA, 20 U.S.C. § 1415(j). See

DE [105] (“Pl. Pendency Br.”). In opposition, Defendants argue that both IHO

Murphy and SRO Krolak denied a change in pendency placement in accordance with

applicable law, and that this Court does not have authority to modify A.K.’s pendency

placement. See DE [105-2] (“Def. Pendency Opp.”).

II. LEGAL STANDARD

Both motions for summary judgment concern the proper interpretation of the

IDEA, 20 U.S.C. § 1400 et seq., and both require the Court to address the manner in

which federal courts must go about their IDEA-mandated review of state

administrative decisions.

Congress enacted the IDEA “to ensure that all children with disabilities have

available to them a free appropriate public education . . . designed to meet their

unique needs . . . [and] to ensure that the rights of children with disabilities and

parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(A)-(B); see also Forest

Grove Sch. Dist. v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 2491 (2009) (concluding

that a court could award private school tuition reimbursement to the parents of

disabled children not provided a “free appropriate public education”). “The IDEA

offers federal funds to states that develop plans to assure ‘all children with

disabilities' [residing in each such state] a ‘free appropriate public education,’ 20

U.S.C. § 1412(a)(1)(A).” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d

Cir. 2003).

“To meet [the IDEA's] requirements, a school district's program must provide

‘special education and related services[,]’ [20 U.S.C. § 1401(9)], 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) (some internal quotation marks omitted); see also Grim, 346

F.3d at 379 (recognizing this requirement). These services “must be administered

according to an ‘individualized education program’ . . ., which school districts must

implement each year for each student with a disability.” Grim, 346 F.3d at 379

(quoting 20 U.S.C. § 1414(d)).

An IEP is “a written statement that ‘sets out the child's present educational

performance, establishes annual and short-term objectives for improvements in that

performance, and describes the specially designed instruction and services that will

enable the child to meet those objectives.’” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ.,

465 F.3d 503, 507–08 (2d Cir. 2006) (quoting Honig v. Doe, 484 U.S. 305, 311, 108

S.Ct. 592, 598 (1988)), amended on other grounds, 480 F.3d 138 (2d Cir. 2007). Under

the IDEA, for a child's IEP to be adequate, it must be “[‘]likely to produce progress,

not regression, and [must] . . . afford[] the student with an opportunity greater than

mere trivial advancement.’” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist.,

554 F.3d 247, 254 (2d Cir. 2009) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d

186, 195 (2d Cir. 2005)). However, it need “not . . . furnish every special service

necessary to maximize each handicapped child's potential.” Grim, 346 F.3d at 379

(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 199, 102 S.Ct. 3034, 3048 (1982))

(brackets, ellipsis, and internal quotation marks omitted). Under an IEP, “education

[must] be provided in the ‘least restrictive setting consistent with a child's needs.’”

Id. (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)).

The IEP is “[t]he centerpiece of the IDEA's educational delivery system.” D.D. ex rel.

V.D., 465 F.3d at 507 (internal quotation marks omitted).

“Since New York State receives federal funds under IDEA, it is obliged to

comply with the requirements of this law. To meet these obligations and to

implement its own policies regarding the education of disabled children, the State

has assigned responsibility for developing appropriate IEPs to local Committees on

Special Education [], the members of which are appointed by school boards or the

trustees of school districts.” Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law §

4402(1)(b)(1)). “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 (citing 8 NYCCRR § 200.1(ww)(3)(i)). “[T]he CSE must

also be mindful of the IDEA's strong preference for ‘mainstreaming,’ or educating

children with disabilities ‘[t]o the maximum extent appropriate’ alongside their non-

disabled peers.” Id. at 108 (citing 20 U.S.C. § 1412(a)(5)) (second set of brackets in

original).

If a New York parent “believe[s] an IEP is insufficient under the IDEA,” he or

she “may challenge it in an ‘impartial due process hearing,’ 20 U.S.C. § 1415(f), before

an [Impartial Hearing Officer, or ‘IHO’] appointed by the local board of education.”

Grim, 346 F.3d at 379 (quoting N.Y. Educ. Law § 4404(1)). At the hearing before the

IHO, “the school district has the burden of demonstrating the appropriateness of its

proposed IEP.” Id. As the governing New York State statute explains:

The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.

N.Y. Educ. Law § 4404(1)(c).

An IHO's decision may, in turn, be appealed to a State Review Officer, who is

an officer of the State's Department of Education. Grim, 346 F.3d at 379–80.

Generally, either “party aggrieved” by the findings of the SRO “shall have the right

to bring a civil action” in either state or federal court. 20 U.S.C. § 1415(i)(2)(A). When

such an action is brought in federal district court, the court reviews the records of all

of the prior administrative hearings and must hear additional evidence if so

requested by either of the parties. Id. at § 1415(i)(2)(c).

“[The federal court] standard for reviewing a state's administrative decisions

in IDEA cases is . . . well established.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412,

417 (2d Cir. 2009), cert denied, 560 U.S. 904, 130 S.Ct. 3277 (2010). “The

responsibility for determining whether a challenged IEP will provide a child with an

appropriate public education rests in the first instance with administrative hearing

and review officers. Their rulings are then subject to ‘independent’ judicial review.”

Walczak, 142 F.3d at 129. Nonetheless, “the role of the federal courts in reviewing

state educational decisions under the IDEA is ‘circumscribed.’” Gagliardo, 489 F.3d

at 112; see also Grim, 346 F.3d at 380–81 (interpreting the IDEA as “strictly limiting

judicial review of state administrative decisions”). A reviewing court “must engage

in an independent review of the administrative record and make a determination

based on a ‘preponderance of the evidence.’” Gagliardo, 489 F.3d at 112; see also

Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. But such review “is by no means an

invitation to the courts to substitute their own notions of sound educational policy for

those of the school authorities which they review.” Rowley, 458 U.S. at 206, 102 S.Ct.

at 3051.

“To the contrary, federal courts reviewing administrative decisions must give

‘due weight’ to these proceedings, mindful that the judiciary generally ‘lacks the

specialized knowledge and experience necessary to resolve persistent and difficult

questions of educational policy.’” Gagliardo, 489 F.3d at 113 (quoting Rowley, 458

U.S. at 206, 208, 102 S.Ct. at 3034) (brackets omitted); see also Walczak, 142 F.3d at

129 (“While federal courts do not simply rubber stamp administrative decisions, they

are expected to give ‘due weight’ to these proceedings....”) (citation omitted). District

courts are not to make “subjective credibility assessment[s],” and cannot “ch[oose]

between the views of conflicting experts on . . . controversial issue[s] of educational

policy . . . in direct contradiction of the opinions of state administrative officers who

had heard the same evidence.” Grim, 346 F.3d at 383. As the Supreme Court has

said, “once a court determines that the requirements of the Act have been met,

questions of methodology are for resolution by the States.” Rowley, 458 U.S. at 208,

102 S.Ct. at 3052.

Accordingly, courts generally “defer to the final decision of the state

authorities, even where the reviewing authority disagrees with the hearing officer.”

A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171

(2d Cir. 2009) (quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. Dist.,

736 F.2d 873, 877 (2d Cir. 1984)) (internal quotation marks omitted). “If the SRO's

decision conflicts with the earlier decision of the IHO, the IHO's decision may be

afforded diminished weight.” A.C., 553 F.3d at 171 (internal quotation marks

omitted); see also Gagliardo, 489 F.3d at 113 n. 2 (same). “Deference is particularly

appropriate when . . . the state hearing officers' review has been thorough and

careful.” Walczak, 142 F.3d at 129. Nevertheless, the SRO's or IHO's factual findings

must be “reasoned and supported by the record” to warrant deference. Gagliardo,

489 F.3d at 114.

IDEA actions in federal court are appropriately resolved by examination of the

administrative record in a summary judgment posture. See J.R. v. Bd. of Educ. of

City of Rye Sch. Dist., 345 F. Supp. 2d 386, 394 (S.D.N.Y. 2004). In this context,

however, the existence of disputed issues of material fact will not defeat summary

judgment. Rather, “[f]ederal courts reviewing administrative determinations under

the IDEA must base their decisions on ‘the preponderance of the evidence,’ taking

into account not only the record from the administrative proceedings, but also any

further evidence presented before the District Court by the parties.” Grim, 346 F.3d

at 380 (citing 20 U.S.C. § 1415(i)(2)(B)). The court's review “requires a more critical

appraisal of the agency determination than clear-error review but falls well short of

complete de novo review.” L.O. ex rel. K.T. v. N.Y.C. Dep't of Educ., 822 F.3d 95, 108

(2d Cir. 2016) (internal quotation marks omitted).

The district court's inquiry is two-fold: “First, has the State complied with the

procedures set forth in the Act? And second, is the individualized educational

program developed through the Act's procedures reasonably calculated to enable the

child to receive educational benefits?” Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051.

(footnote omitted); see also Grim, 346 F.3d at 381. It is the burden of the school

districts to prove by a preponderance of evidence that the answer to both questions is

yes. See J.R., 345 F.Supp.2d at 395.

It is with these standards in mind that the Court addresses Plaintiffs’ motions.

III. DISCUSSION

A. Subject Matter Jurisdiction

As a threshold matter, Defendants argue that this Court does not have subject

matter jurisdiction over a number of Plaintiffs’ arguments due to their failure to

exhaust the administrative remedies available to them. See Defs. LRE Opp. at 27-

67. Specifically, Defendants argue that Plaintiffs cannot raise issues in their motion

for summary judgment that they did not raise in their Request for Review to SRO

Krolak. See id. at 30-67. Here, the SRO ruled that the Parents had abandoned on

appeal, pursuant to 8 N.Y.C.R.R. §§ 279.8(c)(2) and (4), issues including claims that

Regan’s report was irreconcilably compromised and substantively flawed, that the

CSE was improperly compromised, that District counsel acted to impair the efficacy

of the CSE, that the CSE Chairperson’s recommendation was inconsistent with the

CSE consensus, that the CSE Chairperson recommended a placement she was not

familiar with, that the CSE lacked a district representative from a district that could

implement it and that the District harbored a systematic discriminatory policy. See

2017 Krolak Decision at 12.

Similarly, SRO Krolak concluded, pursuant to 34 C.F.R. §300.514(a) and 8

N.Y.C.R.R. §200.5(j)(5)(v), that certain unappealed determinations were final and

binding on the parties and would not be reviewed on administrative appeal, except to

the extent such issues were related to the main issues on appeal. Such

determinations included IHO Monk’s finding that the Parents agreed with the

evaluations and goals on the District IEPs, that the parties agreed on the size and

structure of the program for A.K. and that the Parents’ warning to the CSE members

prior to the June 2017 CSE meeting resulted in participants refusing to attend and

prevented the CSE from finalizing A.K.’s IEP for 2017-2018. See id. Based on these

conclusions, Defendants assert that the only surviving claim relates to whether IHO

Monk failed to apply the correct standard for the LRE, such that the District’s

placement decision was a predetermination of A.K.’s educational placement in

violation of applicable laws. See Defs. LRE Opp. at 32-34.

The IDEA statute provides parents with the following rights with respect to

any impartial hearing concerning the identification, evaluation or educational

placement of a child with disabilities: (1) to “be accompanied and advised by counsel

and by individuals with special knowledge or training with respect to the problems

of children with disabilities,” 20 U.S.C. § 1415(h)(1); (2) to “present evidence and

confront, cross-examine, and compel the attendance of witnesses,” 20 U.S.C. §

1415(h)(2); and (3) to have a hearing record and to receive written findings of fact and

a decision. See 20 U.S.C. § 1415(h)(3), (4).

A parent “aggrieved” by an IHO decision may appeal to a second

administrative level if available. See 20 U.S.C. § 1415(h). An “IHO's decision is

‘binding’ upon the parties absent an appeal to the SRO.” D.N. v. N.Y.C. Dep't of

Educ., 905 F. Supp. 2d 582, 587 (S.D.N.Y. 2012) (quoting 8 NYCCR § 200.5(j)(5)(v)).

“[I]ssues that were decided by the IHO and not appealed or cross-appealed by the

party against which they were decided are binding against that party, and on the

SRO and th[e] [c]ourt, as to that party.” C.H. v. Goshen Cent. Sch. Dist., No. 11–CV–

6933 (CS), 2013 WL 1285387, at *9 (S.D.N.Y. Mar. 28, 2013).

Upon exhaustion of administrative review, an appeal may be made to a state

or federal court. 20 U.S.C. § 1415(i)(2)(A). Failure to exhaust administrative

remedies under the IDEA prior to making such an appeal deprives a court of subject

matter jurisdiction. See Polera v. Board of Educ. of Newburgh Enlarged City School

Dist., 288 F.3d 478, 483 (2d Cir. 2002); G.S. v. Pleasantville Union Free Sch. Dist.,

No. 19-CV-6508 (CS), 2020 WL 4586895, at *10, 16 (S.D.N.Y. Aug. 10, 2020); Does v.

Mills, No. 04 CIV. 2919 (RWS), 2005 WL 900620, at *2 (S.D.N.Y. Apr. 18, 2005).

In their Request for Review to the State Review Officer, Plaintiffs raise as error

only the fact that IHO Monk failed to apply the correct standard for LRE, because

LRE analysis requires the District to “meaningfully consider potential reasonable

modification, augmentation or reallocation of its special education and related

services resources in order to satisfy the petitioner’s unique and individualized IEP

goals internally,” but IHO Monk “utilized the outdated legal standard of whether the

respondent district’s actions were ‘reasonably calculated’ to facilitate a FAPE.” Pl.

Request for Review at 2-4, ¶¶ 6, 10. In essence, Plaintiffs’ Request for Review states

that a district must undertake a “meaningful” analysis in an attempt to educate a

student in-district prior to “outsourcing” that student, and that without such

analysis, a student’s FAPE rights are violated. See id. at 4-5, ¶ 12. In this regard,

Plaintiffs argue that the District was compelled to undertake a “good faith attempt”

to implement A.K.’s IEP within the District, and that IHO Monk erred in determining

that the District could meet its burden by locating alternate placement out-of-

District. See id. at 7, ¶ 16. Accordingly, because the other issues identified above

were not brought before the SRO, the Court finds that SRO Krolak did not err in

concluding that these claims were abandoned. As a result, this Court has jurisdiction

only over whether IHO Monk erred in failing to consider in-District placement, and

whether he properly applied the relevant law relating to the LRE.

B. The IHO Monk and 2017 SRO Krolak Decisions

Initially, with respect to Plaintiffs’ claims that the IHO Monk and 2017 SRO

Krolak decisions should be overturned, Plaintiffs move for summary judgment on the

grounds that both decisions erred in determining that Defendants did not violate

A.K.’s IDEA-based rights for the 2016-2017 and 2017-2018 school years. Specifically,

Plaintiffs argue that both IHO Monk and SRO Krolak erred in finding that the CSE

undertook meaningful analysis to comply with IHO Lederman’s order, and therefore

provided A.K. with a FAPE, and that both decisions misapply the law relating to LRE,

in particular the Second Circuit’s two-prong test set forth in Newington.

A school district has met its obligation to provide a FAPE when (a) the district

complies with the procedural requirements of the IDEA, and (b) the IEP developed

by the district is reasonably calculated to enable the student to receive educational

benefits. See Grim, 346 F.3d at 381. The law expresses a strong preference for

children with disabilities to be educated in an integrated setting with their non-

disabled peers, to the extent that integration is appropriate. See Walczak, 142 F.3d

at 122 (citation omitted). To that end, special education and related services must be

provided in the “least restrictive environment” that is consistent with a child's needs.

See id. A child should be segregated 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.” See id.

“[D]etermining whether a student has been placed in the ‘least restrictive

environment’ requires a flexible, fact-specific analysis.” Newington, 546 F.3d at 113.

“Pursuant to that test, a court should consider, first, ‘whether education in the

regular classroom, with the use of supplemental aids and services, can be achieved

satisfactorily for a given child,’ and, if not, then ‘whether the school has

mainstreamed the child to the maximum extent appropriate.’” Id. at 120. The LRE

requirement “is not absolute,” however, and “does not require a school district to place

a student in the single least restrictive environment in which he is capable of any

satisfactory learning.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145,

162 (2d Cir. 2014). This is because “the presumption in favor of mainstreaming must

be weighed against the importance of providing an appropriate education to

handicapped students.” Newington, 546 F.3d at 119. Thus, “the IDEA contemplates

that the [Department of Education] will consider a continuum of related services and

options that will be a 'best fit' for the student in question,” and achieve an “optimal

result across the two requirements.” M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725

F.3d 131, 145-46 (2d Cir. 2013). Importantly, a school district “cannot avoid the LRE

requirement just by deciding not to operate certain types of educational

environments; instead, it must provide a continuum of alternative placements that

meet the needs of the disabled children that it serves.” T.M. ex rel. A.M., 752 F.3d at

165; see also F. v. City Sch. Dist. of the City of New York, No. 15 CIV. 1448 (ER), 2016

WL 1274579, at *11 (S.D.N.Y. Mar. 31, 2016).

Each year, a school official qualified in special education, the child's teacher,

the child's parents and, where appropriate, the child, should participate in the

development of an IEP. See 20 U.S.C. § 1414. “The regulations governing parental

participation provide that ‘[e]ach public agency shall take steps to ensure that one or

both of the parents of a child with a disability are present at each IEP meeting or are

afforded the opportunity to participate.’” Cerra, 427 F.3d at 192-93 (quoting 34 C.F.R.

§ 300.345(a)) (alteration in original). “[T]he importance Congress attached to [this

and other] procedural safeguards cannot be gainsaid.” Rowley, 458 U.S. at 205, 102

S.Ct at 3050. Accordingly, “[p]redetermination of a child's IEP amounts to a

procedural violation of the [IDEA] if it deprives the student's parents of meaningful

participation in the IEP process.” B.K. v. N.Y.C. Dep't of Educ., 12 F. Supp. 3d 343,

358 (E.D.N.Y. 2014) (collecting cases); see J.G. ex rel. N.G. v. Kiryas Joel Union Free

Sch. Dist., 777 F. Supp. 2d 606, 648 (S.D.N.Y. 2011) (“Predetermination by a CSE of

a child's IEP amounts to a procedural violation of the IDEA.”) (internal quotation

marks omitted). Courts, however, “regularly reject claims of predetermination where

the record reflects active and meaningful participation by the student's parents in

the formulation of the IEP.” B.K., 12 F. Supp. 3d at 358 (collecting cases).

The IEP should articulate the particular needs of the disabled child as well as

the services required to meet those needs. See 20 U.S.C. § 1414. Specifically, an IEP

must state: (1) the child's present level of educational performance; (2) the annual

goals for the child, including short-term instructional objectives; (3) the specific

educational services to be provided to the child, and the extent to which the child will

be able to participate in regular educational programs; (4) the transition services

needed for a child as he or she begins to leave a school setting; (5) the projected

initiation date and duration for proposed services; and (6) objective criteria and

evaluation procedures and schedules for determining, on at least an annual basis,

whether instructional objectives are being achieved. See 20 U.S.C. § 1414.

As set forth above, “[i]n addition to providing an education that is likely to

produce progress and tailored to the unique needs of the child, the program must be

offered in the least restrictive environment.” Avaras ex rel. A.A. v. Clarkstown Cent.

Sch. Dist., No. 18-CV-6964, 2019 WL 4600870, at *2 (S.D.N.Y. Sept. 21, 2019) (citing

20 U.S.C. § 1412(a)(5)(A)). “[A] disabled student's least restrictive environment refers

to the least restrictive educational setting consistent with that student's needs, not

the least restrictive setting that the school district chooses to make available.” T.M.

ex rel. A.M., 752 F.3d at 163. “This requirement expresses a strong preference for

children with disabilities to be educated, to the maximum extent appropriate,

together with their non-disabled peers.” Id. at 161 (internal quotation marks

omitted). Under the New York regulations, “[t]he placement of an individual student

with a disability in the least restrictive environment shall: (1) provide the special

education needed by the student; (2) provide for education of the student to the

maximum extent appropriate to the needs of the student with other students who do

not have disabilities; and (3) be as close as possible to the student's home.” 8

N.Y.C.R.R. § 200.1(cc).

New York further requires that an IEP identify the child's specific class

placement. See 8 N.Y.C.R.R. § 200.4(d)(2)(ix). In order to be grouped together in the

same class, students must have sufficiently similar academic levels and learning

characteristics so that each child will have the opportunity to achieve his or her

annual goals. See 8 N.Y.C.R.R. § 200.6(a)(3)(i). Students may be grouped together

in a special education class if they have the same disabilities or if they have differing

disabilities but “similar individual needs for the purpose of being provided specially

designed instruction.” 8 N.Y.C.R.R. § 200.1(jj); see also 8 N.Y.C.R.R. § 200.6(h)(iv)(3).

It is the responsibility of the CSE to assure that the “social interaction within the

group is beneficial to each student, contributes to each student's social growth and

maturity, and does not consistently interfere with the instruction being provided.” 8

N.Y.C.R.R. § 200.6(a)(3)(ii). The New York regulation cautions that the “social needs

of a student shall not be the sole determinant” of his or her class placement, and that

the CSE must also consider the management needs of the students in a class so that

no student unduly interferes with others' ability to learn. 8 N.Y.C.R.R. §

200.6(a)(3)(ii); see also 8 N.Y.C.R.R. § 200.6(a)(3)(iv). Children whose disabilities

present particular management concerns should be placed in smaller-than-average

size classes, depending on the degree of intervention required. See 8 N.Y.C.R.R. §

200.6(h)(iv).

While the IDEA expresses a preference for educating students in the regular

education classroom, a child may be removed from the regular education environment

“‘when the nature or severity of the handicap is such that education in regular classes

with the use of supplementary aids and services cannot be achieved satisfactorily[.]’”

Briggs v. Board of Educ., 882 F.2d 688, 691 (2d Cir. 1989); see also J.G. ex rel. N.G.,

777 F. Supp. 2d at 637–40. When determining whether a student can be satisfactorily

educated in the regular setting with supplemental aids and services, the following

factors should be considered: “(1) whether the school district has made reasonable

efforts to accommodate the child in a regular classroom; (2) the educational benefits

available to the child in a regular class, with appropriate supplementary aids and

services, as compared to the benefits provided in a special education class; and (3) the

possible negative effects of the inclusion of the child on the education of the other

students in the class.” Newington, 546 F.3d at 120. “If the school has given no serious

consideration to including the child in a regular class with such supplementary aids

and services and to modifying the regular curriculum to accommodate the child, then

it has most likely violated the Act's mainstreaming directive.” Oberti by Oberti v. Bd.

of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1216 (3d Cir. 1993)

In contrast, if “an individualized and fact-specific inquiry into the nature of the

student's condition and the school's particular efforts to accommodate it” suggests the

district was justified in placing the child in a special-education classroom, then the

court must consider the second part of the mainstreaming test. Newington, 546 F.3d

at 120. In this regard, courts should evaluate whether the child has been included in

school programs—including non-academic components of the school day like lunch

and recess—alongside children without disabilities to the maximum extent

appropriate. See id. A court's review, while deferential to the state authorities

charged with designing and implementing educational policy, “must be searching” to

ensure that the IDEA's maximizing goal of mainstreaming a child with disabilities,

where appropriate, is met. Id. at 120–21. The analysis as to whether a school district

has mainstreamed a student to the maximum extent appropriate is a fact-specific

inquiry, and requires a careful examination of the nature and severity of the child's

handicapping condition, his or her needs and abilities, and the school district's

response to the child's needs. See id.; see also Daniel R.R. v. State Bd. of Educ., 874

F.2d 1036, 1043-45 (5th Cir. 1989). The Fifth Circuit in Daniel R.R. cautioned:

[T]he Act does not require regular education instructors to devote all or most of their time to one handicapped child or to modify the regular education program beyond recognition. If a regular education instructor must devote all of her time to one handicapped child, she will be acting as a special education teacher in a regular education classroom. Moreover, she will be focusing her attentions on one child to the detriment of her entire class, including, perhaps,

other, equally deserving, handicapped children who also may require extra attention. Likewise, mainstreaming would be pointless if we forced instructors to modify the regular education curriculum to the extent that the handicapped child is not required to learn any of the skills normally taught in regular education. The child would be receiving special education instruction in the regular education classroom; the only advantage to such an arrangement would be that the child is sitting next to a nonhandicapped student.

Id. at 1048–49.

As a threshold matter, the issue of predetermination is not a matter requiring

educational expertise. In other words, one need not have a background in education

or educational policy to consider and determine whether the CSE had an open mind

going into the 2016 and 2017 meetings. Thus, a lesser degree of deference is owed to

the SRO on this issue than is due on a more squarely educational issue, such as

whether a FAPE is substantively appropriate. See R.E. v. New York City Dep't of

Educ., 694 F.3d 167, 189 (2d Cir. 2012); see also P.F. v. Bd. of Educ. of the Bedford

Cent. Sch. Dist., No. 15-CV-507, 2016 WL 1181712, at *6 (S.D.N.Y. Mar. 25, 2016)

(“Less deference is warranted in appeals involving an IEP's procedural validity ....”).

The Court agrees with IHO Monk and SRO Krolak’s thorough analyses of the

CSE meetings, which note that the CSE provided the Parents with a meaningful

opportunity to participate. J.G. ex rel. N.G., 777 F. Supp. 2d at 648 (collecting cases)

(“Courts have rejected predetermination claims where the parents actively and

meaningfully participated in the development of the IEP” and “where there was

credible evidence that the school district was open-minded at the IEP meeting.”).

Here, the District reviewed and considered both the Regan and Feeley reports, and

reviewed the questions CSE members asked both consultants at the CSE meetings.

Further, IHO Monk and SRO Krolak acknowledged that a number of CSE members

tried to ascertain a way in which Feeley’s plan to educate A.K. in-District could

feasibly succeed. Both decisions note that the Parents not only had the opportunity

to, and did, attend these meetings, but it was the Parents who attempted to keep the

CSE members from attending with the threat of litigation. The CSE members heard

from a number of witnesses, as well as the Parents when they chose to attend. Taking

these facts together, the Court finds that neither IHO Monk nor SRO Krolak erred in

failing to find any evidence of predetermination on the part of Westhampton to

educate A.K. out-of-District. See J.P. ex rel. J.P v. City of N.Y. Dep't of Educ., 717 F.

App'x 30, 32 (2d Cir. 2017) (summary order) (no predetermination where “CSE heard

[parents’] objections, considered materials they submitted, and convened a second

meeting to address their objections and explain its reasoning, and that [student's]

parents fully participated in both CSE meetings”); T.P. ex rel S.P., 554 F.3d at 253

(parents “meaningfully participated” in CSE meeting where CSE adopted “the

parents’ recommendations that [district] staff observe [student] over the summer and

meet with his home providers, and that [district] staff receive training on how to

educate [student],” but denied request to have an entirely different special education

program); M.B. v. New York City Dep't of Educ., No. 14 CV 3455-LTS, 2017 WL

384352, at *7 (S.D.N.Y. Jan. 25, 2017) (no predetermination where “CSE reviewed

the evaluative input of the [private] School and . . . re-evaluation of [student] was

undertaken because the parents had requested placement in the more restrictive

setting of the [private] School”); M.M. ex rel. A.M. v. N.Y.C. Dep't of Educ. Region 9

(Dist. 2), 583 F. Supp. 2d 498, 507 (S.D.N.Y. 2008) (no predetermination where,

among other things, “the IEP incorporated evaluations of the Student conducted by

professionals of the Plaintiffs’ choosing and the goals those professionals

recommended”). While the Parents’ frustration at the District’s denial of their

specific wishes for A.K.’s education is understandable, “[t]he mere fact that the CSE's

ultimate recommendation deviated from their express request . . . does not render the

Parents ‘passive observers’ or evidence any predetermination on the part of the CSE.”

B.K., 12 F. Supp. 3d at 359. Moreover, “[w]hat the [IDEA] guarantees is an

appropriate education, not one that provides everything that might be thought

desirable by loving parents.” Walczak, 142 F.3d at 132 (internal quotation marks

omitted); see also G.S., 2020 WL 4586895, at *12–15.

The Court disagrees with the Parents with respect to the IHO and SRO

decisions. Here, the SRO decision, agreeing with both IHO Lederman and IHO

Monk’s decisions that the District's proposed placement provided A.K. a FAPE in the

LRE is entitled to deference. It is well-reasoned, based on substantially greater

familiarity with the evidence and the witnesses than this Court, grounded in

thorough and logical reasoning, based on the same evidence presently before the

Court, and concerns the substantive adequacy of the proposed placement to satisfy

A.K.’s IEPs. Moreover, the decisions grappled with contrary evidence to the final

determination and testimony from the Parents, consultants and other witnesses.

Indeed, a full reading of the SRO's decision indicates the SRO repeatedly considered

the Parents’ arguments along with the record. The SRO’s decision reflects a

comprehensive review of the record and articulates clear explanations for each

conclusion. It parses the parties' arguments in great detail and contains ample

citations to the record in support of each finding. The SRO addressed the student’s

educational needs and whether they could be addressed in-district.

Moreover, the IHO and SRO decisions are supported by a preponderance of the

evidence. The SRO exhaustively recounted A.K.’s then-present educational progress

and capabilities, as well as testimony and reports from the inclusion experts, CSE

members and others who were in regular contact with A.K. to conclude that the CSE

meaningfully analyzed and rightfully decided that the District provided A.K. with a

FAPE in the LRE. See 2017 SRO Krolak Decision at 15-29.

The CSE members had more than sufficient information regarding

Westhampton’s resources to determine A.K.’s LRE and whether the District could

provide A.K. with a FAPE in a general education setting, pursuant to the first prong

of the Newington test. The ultimate determination that it could not is well-supported

by the extensive administrative record. A.K.’s IEP and education reports clearly

showed him to be at or below average, or in the lowest percentiles, in a number of

curricula subjects and physical abilities. See DE [43-20], Ex. O; [43-22], Exs. T, U;

2017 SRO Krolak Decision at 15-16. Further, the two inclusion consultants’ reports,

relied upon by the CSE Members, IHO Murphy and SRO Krolak, specifically assessed

whether supplementary aids and supports would allow A.K. to benefit from inclusion

in classes in the District, as well as examined programs in other districts to determine

whether supplementary aids and supports would allow A.K. to benefit from inclusion

in those districts. The consultants each produced a report, and presented their

findings to the CSE. See DE [43-14], Ex. J; [43-15], Ex. L; [43-16], Ex. M; [43-17], Ex.

M; 2017 SRO Krolak Decision at 16-22. After reviewing A.K.’s then-current

educational abilities and progress, as well as the capabilities of Westhampton and

other districts, Regan concluded that, absent a change in special education classes

and educational groupings currently available at Westhampton, the CSE should

consider placing A.K. in a neighboring district with a life skills program with smaller

class sizes. See DE [43-14], Ex. J; 2017 SRO Krolak Decision at 16-19. After similar

analyses, Feeley recommended placing A.K. in existing classes in-District with a

modified curriculum, accommodations and supplemental supports and services. See

DE [43-15], Ex. L; [43-16], Ex. M; [43-17], Ex. M; 2017 SRO Krolak Decision at 19-22.

As SRO Krolak notes, the CSE members conducted a discussion to ascertain

which program would best meet A.K.’s needs, including how and where instruction

would take place, as well as possible program options including consultant teacher

services, resource room, one-to-one instruction, special classes and general education

classes. See DE [43-16], Ex. M; [43-17], Ex. M; 2017 SRO Krolak Decision at 22. SRO Krolak

did not err in concluding that the CSE members had ample information regarding

the District’s resources to determine A.K.’s LRE and whether Westhampton could

provide him with a FAPE in a general education setting. See 2017 SRO Krolak

Decision at 22-23. CSE members inquired as to how the District could implement

Feeley’s recommended in-District program, and the members heard from other

witnesses, including A.K.’s physical therapist, and discussed A.K.’s then-present

levels of performance, goals, related services, supplementary aids and services and

extended school year services, as well as various options for the best educational

program for A.K. See DE [43-15], Ex. M; [43-16], Ex. M; [43-18], Ex. N; [43-19], Ex.

N; 2017 SRO Krolak Decision at 22-26. After several meetings and efforts to assess

the District’s ability to meet A.K.’s needs in the District, the CSE determined they

could not implement A.K.’s IEP in a general educational setting.

Plaintiffs are incorrect that Newington requires the District to make a “good

faith attempt” to implement a student’s educational goals in-district before placing

the student in an out-of-district placement. Newington recognizes the IDEA’s goal of

including students in the regular classroom as much as is practicable, but notes that

“schools must attempt to achieve that goal in light of the equally important objective

of providing an education appropriately tailored to each student’s particular needs.”

Newington, 546 F.3d at 122 (citation omitted). As such, the District made reasonable

efforts to attempt to educate A.K. in a general educational classroom, while

considering the benefits and negative consequences of such a program, and acted

appropriately in determining that he could not be satisfactorily educated in a general

classroom with the use of supplemental aids and services.

As to the second prong of the Newington test, as SRO Krolak concluded, the

District utilized a reasonable procedure to locate an appropriate educational setting

for A.K. in a neighboring district. See 2017 Krolak Decision at 26-29. The District

canvassed several neighboring districts to determine whether they had an

appropriate placement for A.K., and, upon hearing back from some districts, offered

to facilitate site visits. See DE [43-22], Ex. DD. In response, the Parents wrote letters

to the CSE members threatening them with legal action if they attended further CSE

meetings the Parents believed to be illegally convened, leading to the absence of some

members and thereby preventing the District from finalizing A.K.’s placement for

2017-2018. See DE [43-22], Exs. X, Y, Z, AA.

The CSE thoroughly reviewed all available evaluations, records, consultant

reports and the input of CSE meeting participants to determine that A.K.’s needs

could not be met in-District, and in turn provided the Parents with options that

provided A.K. with a FAPE in neighboring districts. Therefore, IHO Monk and SRO

Krolak did not err in concluding that the District provided A.K. with a FAPE in the

LRE in either school year, and the Plaintiffs’ motion for summary judgment on this

issue should be denied.

C. The IHO Murphy and 2018 SRO Krolak Decisions

The Court next turns to Plaintiffs’ motion for summary judgment seeking

reversal of the IHO Murphy and 2018 SRO Krolak decisions upholding the denial of

their request for pendency modification. Initially, Plaintiffs argue that neither

decision warrants deference. See Pl. Pendency Br. at 2. They further take the

position that the LRE is a factor to consider when analyzing a pendency modification

request, and that modifying A.K.’s pendency placement to include lunch and electives

in-District is consistent with the LRE. See id. at 6-9.

The IDEA requires that a student remain in his or her “then-current

educational placement,” unless the school and parents otherwise agree, during the

pendency of an impartial hearing and any subsequent appeals. 20 U.S.C. § 1415(j).

“Section 1415(j) represents Congress’s policy choice that all handicapped children,

regardless of whether their case is meritorious or not, are to remain in their current

educational placement until the dispute with regard to their placement is ultimately

resolved.” Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington Sch. Dist., 386 F.3d

158, 160-61 (2d Cir. 2004) (brackets and internal quotation marks omitted). The

“current” program has been understood as that “described in the child’s most recently

implemented IEP.” Id. at 163. The relevant “placement” has been interpreted to

mean the “same general level and type of services . . . [or] type of educational

program” described in the last IEP, not the right to placement at a particular school.

T.M. ex rel. A.M., 752 F.3d at 171 (internal quotation marks omitted). As such, if a

child is transferred from one school to another, but “remain[s] in the same

classification, the same school district, and the same type of educational program

special classes,” the child's educational placement has not changed. See Concerned

Parents & Citizens for Continuing Educ. at Malcolm X (PS 79) v. N.Y.C. Dep't of

Educ., 629 F.2d 751, 756 (2d Cir. 1980) (finding no change in educational placement

where disabled students were transferred from one substantially similar school to

another); see also G.R. ex Rel. B.S. v. N.Y.C. Dep't of Educ., No. 12 Civ. 441 (RJS),

2012 WL 310947, at *6 (S.D.N.Y. Jan. 31, 2012) (“[A]lthough the IDEA does require

that a student shall remain in his or her ‘then-current educational placement’ while

administrative proceedings are pending . . . this pendency provision does not require

that [the student] remain at a specific brick-and-mortar school.”). However, any

pendency placement will be superseded if there is an agreement between the parties

on placement during the course of a proceeding, whether or not it is reduced to a new

IEP. Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 137 F. Supp. 2d 83 (N.D.N.Y.

2001), aff'd, 290 F.3d 476, 484 (2d Cir. 2002), cert. denied, 537 U.S. 1227 (2003). The

Supreme Court has recognized that the language of the pendency provision is

“unequivocal” and “means what it says.” Honig, 484 U.S. at 323, 325, 108 S.Ct. at

604-05. Thus, the “provision is, in effect, an automatic preliminary injunction,” and

should be applied without regard to such factors as irreparable harm, likelihood of

success on the merits, and balancing of the hardships. Zvi D. v. Ambach, 694 F .2d

904, 906 (2d Cir. 1982).

“[P]endency placement and appropriate placement are separate and distinct

concepts.” Board of Educ. v. O'Shea, 353 F.Supp.2d 449, 459 (S.D.N.Y.2005). Once

a student's pendency placement has been established, it can be changed in one of four

ways: (1) by an agreement by the parties, 20 U.S.C. § 1415(j); (2) by an unappealed

administrative decision, 34 C.F.R. § 300.514(a); (3) by an SRO decision that “agrees

with the child's parents that a change of placement is appropriate,” 34 C.F.R. §

300.518(d); or (4) by a court determination on an appeal from an SRO decision.

Schutz, 290 F.3d at 484. If, for example, private school placement funded by the

school district is the pendency placement, then the school district must continue to

pay for that placement for the duration of the proceedings regardless of the final

outcome of the dispute. Zvi D., 694 F.2d at 906 (“To cut off public funds would amount

to a unilateral change in placement, prohibited by the Act.”).

The IHO Murphy and 2018 SRO Krolak decisions are owed deference for the

same reasons articulated supra regarding the IHO Monk and 2017 SRO Krolak

decisions. The Court therefore turns to the substance of these decisions, and holds

that neither decision erred in upholding the denial of Plaintiffs’ request for pendency

placement modification. Both decisions are well-supported by a preponderance of the

evidence, and both reviewed previous related administrative decisions in this matter

and carefully considered Plaintiffs’ position before concluding that the parties agreed

to and acknowledged the current pendency placement.

Both IHO Murphy and SRO Krolak noted that in prehearing conferences and

conference calls, the Parents acknowledged that the parties agreed to A.K.’s current

pendency placement. See 2018 Krolak Decision at 7. IHO Murphy also noted that

previous decisions, such as that of IHO Monk, acknowledge the parties’ agreement as

to A.K.’s pendency placement. See IHO Murphy Order at 10. IHO Murphy concluded

that the Parents’ request “borders on frivolous,” and the Court agrees. See id.

Further, Plaintiffs’ notion that an SRO’s agreement with parents that a student’s

placement is inappropriate acts as a pendency-changing event is misplaced. The

issues of pendency and appropriateness are separate analyses, as is made clear by

Second Circuit caselaw. As explained above, a pendency placement acts as an

injunction, and does not take into account considerations such as appropriateness

during the pendency of proceedings. Accordingly, Plaintiffs’ motion for summary

judgment concerning A.K.’s pendency placement should be denied.

IV. CONCLUSION

For the reasons set forth above, the Court respectfully recommends that

Plaintiffs’ motions for summary judgment, DEs [104] and [105], be denied.

V. OBJECTIONS

A copy of this Report and Recommendation is being served on all parties by

electronic filing on the date below. Any objections to this Report and

Recommendation must be filed with the Clerk of the Court within 14 days. Failure

to file objections within the specified time waives the right to appeal the District

Court’s order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72; Ferrer v. Woliver,

No. 05-3696, 2008 WL 4951035, at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118

F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).

Dated: Central Islip, New York /s/ Steven I. Locke January 6, 2021 STEVEN I. LOCKE United States Magistrate Judge

Killoran et al. v. Westhampton Beach School District et al.