UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X M.S. and M.D. on behalf of B.D.S., REPORT AND Plaintiffs, RECOMMENDATION 20-CV-3380 (JMA) (ARL) -against-
NEW HYDE PARK-GARDEN CITY PARK UNION FREE SCHOOL DISTRICT,
Defendant. ---------------------------------------------------------------------X LINDSAY, Magistrate Judge:
On July 28, 2020, the plaintiffs, M.S. and M.D., on behalf of their son B.D.S.,
commenced this action pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. § 1400 et seq., the pertinent implementing regulations promulgated under the Code of
Federal Regulations, § 300.342 et seq., Article 89 of the New York State Education Law, Section
504 of the Rehabilitation Act of 1973 and Part 200 et seq. of the Commissioner of Education’s
Regulations, against the defendant, New Hyde Park-Garden City Park Union Free School
District (the “District”). The plaintiffs seek to set aside a decision of the New York State
Education Department Office of State Review ("SRO") dated April 3, 2020, which determined
that the District had offered B.D.S. a Free Appropriate Public Education ("FAPE") for the 2019-
2020 school year and, thus, denied the plaintiffs’ request to be reimbursed for the cost of B.D.S.’
tuition at The Gersh Academy (“Gersh”) for that year. Before the Court are the parties’ cross
motions for summary judgment on referral from District Judge Azrack. For the reasons set forth
below, the undersigned respectfully recommends that the defendant's motion be granted and the
plaintiffs’ motion be denied.
BACKGROUND
B.D.S. is a nine-year-old boy who has been diagnosed with Autism Spectrum Disorder
Level 3 and an Intellectual Disability. 1 Ex. P-E. B.D.S. has a history of maladaptive behaviors
including self-injury (biting his right hand), pica (mouthing inedible objects), aberrant self-
stimulation and impulsivity. Exs. P-C - P-H, P-Q, P-R. At two, B.D.S. had an early intervention
evaluation, which led to his receipt of speech and language therapy, occupational therapy and in-
home services from a special education teacher. Ex. P-E. As a preschooler, B.D.S. attended the
Nassau BOCES Children's Readiness Center (“CRC”) and was assigned to a self-contained
special education preschool program with a 6:l:2 ratio. Ex. P-E, Tr. 404-05. He was also taken
out of class twice weekly for speech and language therapy and was taught to use a Picture
Exchange Communication System (“PECS”). Ex. P-E. However, according to the plaintiffs,
B.D.S. regressed while he attended CRC. Ex. P-E; Tr. 404-05, 871. Among other things, B.D.S.
lost the ability to use sign language and his self-injurious behaviors increased. Tr. 873.
For this reason, during his second year at CRC, the District, with the plaintiffs’ consent,
explored other options for B.D.S. Tr. 404-09. Specifically, the District's Committee on Special
Education ("CSE") attempted to determine the least restrictive setting to appropriately meet
B.D.S.’s needs and concluded that the District's then existing intensive needs program (an 8:1:2
class) did not provide the level of support that B.D.S. required. Tr. 405. Accordingly, the CSE
agreed to send out applications for the 2016-2017 school year to other local public schools and to
approved private schools that provided autism-specific programs. Id. Unfortunately, none of the
1 For ease of reference, ECF No. 10 is the State Court Administrative Record. The undersigned will refer to the transcript of the impartial hearing contained in that record as “Tr.” Citations to the exhibits submitted by the plaintiffs and the defendant are referred to as “P-” and “D-” followed by the designated exhibit letter or number. ECF No. 1-3 is a copy of the Decision of the State Review Officer. ECF No. 1-4 is a copy of the Findings of Fact and Decision of the Impartial Hearing Officer.
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programs accepted B.D.S. or had an immediate opening for him. Id. As a result, from
September through October 2016, B.D.S was placed by the plaintiffs at a private school in
Manhattan called Comprehensive Kids Development School (“Comprehensive Kids”). Tr. 405-
06. Since the District had been unable to locate an opening at an appropriate public school or
State-approved private school, the District agreed to pay for B.D.S.’s tuition at Comprehensive
Kids. Tr. 406.
Unfortunately, Comprehensive Kids unexpectedly closed in October 2016. Id. The CSE
immediately convened to discuss an alternative placement for B.D.S. and offered to provide him
with in-home services while it sent out packets in order to secure a placement for the remainder
of the 2016-2017 school year. Tr. 406-07. But, at the plaintiffs’ request, the District agreed to
pay for B.D.S to attend Gersh while it continued to search for a new program rather than have
him home schooled. Tr. 407. It did so despite the fact that Gersh is not a State-approved special
education school. Tr. 585. Nonetheless, pursuant to the agreement, B.D.S. began attending
Gersh in December 2016. Tr. 407. According to the plaintiffs, upon entry to Gersh, B.D.S. was
functionally non-verbal and entirely self-directed. Ex. P-G; Tr. 873.
Five months later, on May 19, 2017, the CSE met to review B.D.S’s progress and to
make recommendations for the 2017-2018 school year. Ex. P-C. After hearing from B.D.S.’s
special education teacher, a behavioral consultant for the plaintiffs, a special education teacher
from the District, a speech therapist from Gersh, an occupational therapist, a physical therapist, a
psychologist and a neuropsychologist, the CSE recommended that B.D.S. be placed in a 6:1:3
ratio intensive needs special class program at the District's Hillside Grade School that was
scheduled to commence in September 2017. Id. The recommendation included the use of
Applied Behavior Analysis (“ABA”), including discrete trial rotations and the support of a Board
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Certified Behavior Analyst ("BCBA"). Id. B.D.S. was also to be provided with a 1:1 aide,
speech therapy, physical therapy, occupational therapy, adaptive physical education and
behavioral intervention services. Id. At the time, the parties also discussed the possibility of the
District paying for B.D.S. to continue at Gersh for the summer of 2017 before the 6:1:3 program
was due to open, but the plaintiffs wanted to place B.D.S. in camp for the summer. Tr. 409-10.
In any case, the plaintiffs disagreed with the CSE's overall recommendations feeling that B.D.S.
might regress if he was moved to another setting. Id. For that reason, the plaintiffs unilaterally
enrolled B.D.S. at Gersh for the 2017-2018 school year. Id.
On September 11, 2017, the plaintiffs filed a due process complaint seeking tuition
reimbursement for the 2017-2018 school year. Id.; see also ECF No. 1-6. They filed an
amended due process complaint on October 30, 2017. ECF No. 1-6. On September 5, 2018,
Leah H. Murphy, Esq, the Impartial Hearing Officer, ruled that the plaintiffs were entitled to
tuition reimbursement for the 2017-2018 school year because B.D.S. had not been offered a
FAPE for that year. Id. The District appealed the decision. See ECF No. 1-5. On November
17, 2018, the SRO dismissed the District's appeal finding that it had failed to establish that its
recommended placement would have provided B.D.S. FAPE for the 2017-2018 school year. Id.
The SRO focused, in part, on the fact that the District was unable to implement the 6:1:3 special
class placement and related services for summer of 2017 since the program was not going to be
available until the fall. Id. The SRO acknowledged that the District had offered to keep B.D.S.
at Gersh during the summer, but, nonetheless, found that “equity [did] not require that [the
plaintiffs] . . . suffer the loss of reimbursement for Gersh for the remainder 2017-18 school year
simply because they were unwilling to try the program after the [D]istrict failed to deliver
services under two successive IEPs.” Id. In any case, as a result of that decision and a later
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agreement reached between the parties for the 2018-2019 school year, B.D.S. has continuously
attend Gersh since 2016. ECF No. 1-3.
On May 22, 2019, the CSE met to develop B.D.S.’s IEP for the 2019-2020 school year.
Ex. D-1. At the time, B.D.S. was assigned to an "ungraded” 6:1:1 classroom at Gersh that
utilized ABA to facilitate skill development. ECF No. 1-3. He was also receiving the following:
“five 30-minute sessions per week of individual speech-language therapy; three 30-minute
sessions per week of individual occupational therapy (OT); two 30-minute sessions per week of
individual physical therapy (PT); and the services of a full-time, individual paraprofessional.” Id.
As part of its evaluation, the CSE reviewed a classroom observation completed by the District’s
Director of Special Education and reports from the District’s special education teacher and a
speech/language therapist. Ex. D-1. The CSE team also heard from a special education teacher
from Gersh, the plaintiffs’ educational consultant, a speech therapist from Gersh, an occupational
therapist and a physical therapist. Id. In addition, the plaintiffs presented a private
neuropsychological evaluation completed on April 19, 2019. Id.
The professionals who testified at the meeting all agreed that while B.D.S. continued to
display maladaptive behaviors, to have difficulty with social skills and had begun to engage in
new aggressive behaviors, see Tr. 540, 690, 806-07, overall B.D.S. was making progress. Ex. D-
1. For example, the plaintiffs’ private neuropsychologist noted that B.D.S. was able to make eye
contact and sometimes responded to his name. Id. His special education teacher stated that with
respect to his self-injurious behavior and physical aggression, B.D.S. was responding well to
positive reinforcement and breaks with timers. Id. B.D.S’s physical therapist noted that his
balance had improved and he had made great gains in core strength. Id. His special education
teacher reported that B.D.S. was able to unpack his belongings and was working on tasks like
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packing up his belongings independently, requesting the use of the bathroom, sitting for certain
periods of time and toilet training. Id. Nonetheless, concerned that B.D.S. might regress if his
environment was dramatically shifted, the plaintiffs’ private neuropsychologist recommended
that B.D.S. remain at Gersh. Id. The plaintiffs, their neuropsychologist and the Gersh staff also
expressed concern that the District program lacked a full-time BCBA. See Tr. 712, 1043.
Despite these stated concerns, the CSE recommended a District based 12-month special
class program consisting of a 6:1:3 2 special class placement and the following related services:
four 30-minute sessions per week of individual speech-language therapy (therapy room), one 30-
minute session per week of individual speech-language therapy (special class), three 30-minute
sessions per week of individual OT (therapy room), one 30-minute session per week of
individual OT (special class), and two 30-minute sessions per week of individual PT (therapy
room). Id. According to the District, the recommended program offered B.D.S. an opportunity
to interact and play with nondisabled peers in the classroom with support from classroom staff
and the District’s social worker. Id. In addition, the CSE recommended home-based behavior
intervention services (two hours per day), home-based parent counseling and training (two hours
per week), and school based parent counseling and training (five 60-minute sessions per year) for
the 2019-20 school year. Id. The recommendation also contemplated a 1:1 aide. Id. The
plaintiffs wanted the District to continue pay for B.D.S. to attend Gersh so, on July 24, 2019,
they filed a due process complaint seeking tuition reimbursement/direct funding for B.D.S. to
attend Gersh for the twelve month 2019-2020 school year. Ex. P-A.
Two days after filing the complaint, the plaintiffs visited the District’s 6:1:3 class to learn
about the program. Id.; see also Tr. 453, 883-84. According to the plaintiffs, the District
2 The 6:1:3 program can accommodate a maximum of six special education students and includes one certified special education teacher, three classroom aides and the support and services of a BCBA. Ex. D-1; Tr. 36.
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obstructed their efforts to learn about the proposed class by placing them in seats from which
their view of the class was obscured. Tr. 884, 1057. Nonetheless, the plaintiffs claim that the
students in the class appeared older than B.D.S. Tr. 888. In addition, the plaintiffs contend that
they did not observe any students using verbal language, the students were not appropriately
reinforced and the classroom was covered with small objects and manipulatives, which they
claim are dangerous for B.D.S. due to his pica. Tr. 888, 893, 1040, 1052.
Moreover, the plaintiffs argue that the CSE Chairperson, Kim Levy, refused to allow
them to view any sample academic data during visit. Tr. 891, 909-10. In addition, the plaintiffs
claim that during their visit, the District’s behavioral consultant, Doreen Ivory, who is not on site
regularly, was forced to intervene to correct the staff’s improper use of ABA instructional
techniques on a number of occasions. Tr. 332, 890, 1059. For example, the classroom staff
reinforced and rewarded students for engaging in maladaptive and inappropriate behaviors
including self-injury and task refusal. Tr. 1058-59, 1063-64. Finally, according to the plaintiffs,
the classroom staff was not collecting behavior data for any of the students in the class and
students were being instructed within small blocked off areas and/or small confined cubicles
blocked by a teacher’s chair. Tr. 885-86,889, 1064.
On September 3, 2019, after their visit, the plaintiffs filed an amended due process
complaint and demand for a hearing Ex. P-B. According to the plaintiff, the District could not
even implement its IEP recommendations on the first day of school because the proposed class
was still “under construction.” Tr. 886, 905, 1056. Specifically, four additional cubicles needed
to be constructed to replace the “chill area” contained in the classroom. Id. In other words, the
classroom the plaintiffs had been invited to observe in July was going to be altered. Tr. 905.
Moreover, on the first day of school, students sat at tables sandwiched between filing cabinets
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and the chairs of their instructors, which restricted their movement. Tr. 884. The plaintiffs note
that B.D.S. requires sensory breaks with movement during the day, and thus, would have been
frustrated in that environment. Tr. 539, 781, 884-85, 1042.
On January 2, 2020, after holding an extensive impartial hearing encompassing six days
of testimony, 1099 pages of hearing transcripts and 43 exhibits, Impartial Hearing Officer Heidi
Reichel, dismissed the plaintiffs’ claims finding that the District had provided B.D.S with an
offer of a FAPE for the 2019-2020 school year. 3 ECF No. 10-59. In doing so, IHO Reichel
highlighted that the previous SRO decision in the plaintiffs’ favor was based entirely on the fact
that the recommended 6:1:3 class was not going to start until September of 2017. Id. She noted,
that “[t]he SRO did not find that the CSE's recommendation to place [B.D.S.] in the District's
6:1:3 program for the 10-month 2017-2018 school year was inappropriate for [B.D.S.’s] needs,
that the program itself would not provide [B.D.S.] with a FAPE or that the program would not
provide [B.D.S.] with an appropriate ABA program provided by trained and competent staff.”
Id. Indeed, IHO Reichel held:
There is no evidence that the student would regress if he were to leave Gersh and transfer to the District's 6:3:1 program. Although the student has a 12 month IEP and is now in his fourth year at Gersh, he did not attend Gersh during the summers of 2017 or 2018. During those summers he went to camp (Tr. 410, 917). There was no mention of regression before, during or after camp. In fact[,] there was no mention of where the camp was, what children he was grouped with, whether special steps were taken to help him transition. Nothing.
3 The due process hearing was conducted on September 25, September 26, October 3, November 1, November 22, and November 26, 2019. The plaintiffs offered the testimony of six witnesses Celeste Gagliardi, Gersh’s Executive Director; Dr. Anne-Marie Lepore, B.D.S.’s neuropsychologist, Amy Bell, Gersh’s BCBA, M.S., Jo Distefano, President of Access 7, and Karen Bottalico, the plaintiff’s educational consultant. See Tr. 498-920. The District presented the three witnesses: Marisa Forster, a certified special education teacher for the District; Doreen lvory, the District’s BCBA, and Kim Levy, the Director of Special Education Services. See Tr.1-496. After the plaintiffs rested, the District recalled Ms. Ivory for the purpose of offering testimony with respect to the business records regarding her BCBA services to the District that were produced by her agency, Access 7, in response to a subpoena that the Parents had served on Access 7. See Tr. 924.
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Id. Accordingly, IHO Reichel found that the District had satisfied its burden to establish that the
recommended program offered [B.D.S.] a FAPE in the least restrictive environment and was
reasonably calculated to enable him to make progress in light of his circumstances. 4 Id.
The plaintiffs appealed the decision to the SRO. On April 3, 2020, the SRO issued a 51-
page decision denying the appeal. The SRO stated, in pertinent part:
Having determined that the evidence in the hearing record establishes that the [D]istrict offered [B.D.S.] a FAPE in the LRE for the 2019-20 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether Gersh was an appropriate unilateral placement for the student (see Burlington, 471 U.S. at 370).
ECF No. 12-7. Although the SRO noted that the IHO had not directly addressed the issue of
predetermination or parent participation in the CSE’s decision, an issue raised by the plaintiffs in
this case, 5 the SRO found that the CSE had reviewed the present levels of performance, the
annual goals, and then the ultimate recommendations, and that "[e]veryone had the chance to be
heard." Id.
According to the record, despite the SRO’s decision, the plaintiffs chose to have B.D.S.
remain at Gersh for the 2019-2020 school year. Tr. 778, 897. In order for him to do so, the
plaintiffs were required to execute a parental guarantee of tuition. Ex. P-B. Although it is not
clear from the record what the parents were required to pay in 2019-2020, the total cost for
B.D.S’s tuition and related service for the 2017-2018 school year had been $110,900. Id. The
plaintiffs report that B.D.S. continues to make progress at Gersh and has displayed a significant
reduction in off-task and self-injurious behaviors. Exs. P-F, P-U, P-X; Tr. 129, 460-61, 520-21,
4 IHO Reichel also rejected the plaintiffs’ claim that proposed IEP was procedurally defective. ECF No. 10-59. 5 The plaintiffs argue that at the end of the CSE meeting, prior to any placement discussion, the CSE Chairperson, Kim Levy, unilaterally recommended the District’s 6:1:3 class for B.D.S. and refused to consider continuing his placement at Gersh or a similar program with 1:1 ABA instruction and full-time BCBA support. Pls.’ Mem. at 4.
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678, 683-84, 686-87, 774, 778, 856, 1038.
DISCUSSION
A. Standards of Law
Summary judgment is proper only “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “An issue of fact is genuine if ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’ A fact is material if it ‘might affect the outcome of the suit
under the governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether an issue is
genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory
answers, and depositions must be viewed in the light most favorable to the party opposing the
motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); see Dickerson v. Napolitano, 604 F.3d
732, 740 (2d Cir. 2010) (same).
Once the moving party has met its burden, “the nonmoving party must come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)); see also Wright
v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The nonmoving party cannot survive summary
judgment by casting mere “metaphysical doubt” upon the evidence produced by the moving
party. Matsushita, 475 U.S. at 586. Summary judgment is appropriate when the moving party
can show that “little or no evidence may be found in support of the nonmoving party’s case.”
Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations
omitted). However, “the judge’s role in reviewing a motion for summary judgment is not to
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weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson, 477 U.S. at 249. “When no rational jury could find in favor
of the nonmoving party because the evidence to support its case is so slight, there is no genuine
issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224.
IDEA appeals are frequently resolved by cross-motions designated as motions for
summary judgment. While the parties in an IDEA actions call the procedure ‘a motion for
summary judgment,’ the procedure is in substance an appeal from an administrative
determination. See M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 226 (2d Cir. 2012). Pursuant to
the IDEA, "a district court must conduct an independent review of the administrative record" and
"determine by a preponderance of the evidence whether the IDEA's provisions have been met."
D.A.B. v. N Y.C. Dept. of Educ., 973 F. Supp. 2d 344, 350 (S.D.N.Y. 2013). The “preponderance
of the evidence” standard comes directly from the IDEA itself. 20 U.S.C. § 1415(i)(2)(C).
However, "[i]n reviewing the administrative proceedings, it is critical to recall that IDEA's
statutory scheme requires substantial deference to state administrative bodies on matters of
educational policy." Cerrav. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005). The
Court's independent review of the administrative record 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." Id.; see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 112–13 (2d Cir. 2007). Accordingly, "[w]hile federal courts do not simply rubber stamp
administrative decisions, they are expected to 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." Walczak v. Fla. Union Free Sch. Dist.,
142 F.3d 119, 129 (2d Cir. 1998) (internal citations omitted).
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B. The Statutory Scheme
The IDEA was enacted by Congress to promote the education of handicapped children.
Id. at 122. To further that goal, Congress provides federal funds to states that develop plans to
assure all children with disabilities the right to a free appropriate public education. 20 U.S.C.
§1412(a)(1)(A). 6 The FAPE mandated by federal law must include Aspecial education and
related services@ tailored to meet the unique needs of a particular child, 20 U.S.C. § 1401(9), and
be reasonably calculated to enable the child to receive educational benefits. See Bd. of Educ. of
the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).
The particular educational needs of a disabled child and the services necessary to meet
those needs must be set forth at least annually in a written IEP. See Walczak, 142 F.3d at 122
(citing 20 U.S.C. § 1414(a)(5))(renumbered § 614(d)(4)). Parents who are not satisfied with a
proposed IEP may file a complaint with the state educational agency. See 20 U.S.C.
§1415(B)(1)(E). In addition, parents who believe that a District is not providing their child with
a FAPE may, at their own financial risk, enroll that child in an appropriate private school and
retroactively seek reimbursement for the cost of private school. D.A.B. v. N.Y.C. Dept. of Educ.,
973 F. Supp. 2d 344, 349-50 (S.D.N.Y. 2013). In any case, complaints filed with the state
educational agency are resolved through an impartial due process hearing, 20 U.S.C. §
1415(b)(2) [(now §1415(f)], at which school authorities have the burden of supporting the
proposed IEP. See Matter of the Application of a Handicapped Child, 22 Educ. Dep=t Rep. 487,
489 (1983) (“It is well established that a board of education has the burden of establishing the
appropriateness of the placement recommended by [the school board]”). AA local hearing
6 The provisions of the IDEA statute have been renumbered many times and thus, provisions set forth in case citations may not reflect current numbering.
12
officer=s decision may be appealed to the state educational agency, see 20 U.S.C. § 1415(c)
[(now § 1415(g)], after which any party still aggrieved may sue in either state or federal court,
see 20 U.S.C. § 1415(e)(2) [(now § 1415(i)(2)]. Walczak, 142 F.3d at 122. With these standards
in mind, the Court turns to the parties’ arguments.
C. The Plaintiffs’ Challenges
As indicated above, the plaintiffs in this action unilaterally placed B.D.S. in Gersh and
are now seeking retroactive tuition reimbursement from the District on the ground that the
proposed IEP would not have provided B.D.S. with a FAPE. See 20 U.S.C. § 1412(a)(10)(C).
In order to determine if the plaintiffs are entitled to reimbursement, the Court must apply the
well-established three-part Burlington/Carter test. See T.M. ex rel. A.M. v. Cornwall Cent. Sch.
Dist., 752 F.3d 145, 152 (2d Cir. 2014). First, the Court must determine whether the District’s
proposed placement violated the IDEA. Id. If the Court finds that is has, the Court considers
next whether the parents' alternative private placement was appropriate. Id. Finally, the Court
considers whether the equities favor reimbursement. Id. “Under the first prong of the
Burlington/Carter test, there is a “two-part inquiry” for reviewing administrative determinations
as to the provision of a FAPE.” W.S. v. City Sch. Dist. of the City of New York, 188 F. Supp. 3d
293, 304 (S.D.N.Y. 2016) (citing R.C. ex rel. M.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d
256, 267-8 (S.D.N.Y. 2012)). “First, the reviewing court determines whether ‘the State complied
with the procedures set forth’ by the IDEA; second, the court determines whether the IEP
‘developed through the Act's procedures was reasonably calculated to enable the child to receive
educational benefits.’” Id.
1. The Alleged Procedural Violations
“A procedural error will only render an IEP legally inadequate if the alleged
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inadequacies, ‘(i) impeded the child's right to a [FAPE]; (ii) significantly impeded the parents'
opportunity to participate in the decision making process regarding the provision of a [FAPE] to
the parents' child; or (iii) caused a deprivation of benefits.’” R.C. ex rel. M.C., 906 F. Supp. 2d at
268 (citing 20 U.S.C. § 1415(f)(3)(E)(ii)). In this case, the plaintiffs argue that they were not
given an opportunity to participate in the decision making process because the CSE’s
Chairperson, Kim Levy (“Levy”), was determined to place B.D.S. in the District’s 6:1:3 program
for 2019-2020 school year. Particularly, the plaintiffs claim that while Levy allowed others to
express their concerns about the 6:1:3 class during the CSE meeting, she was not truly open to
any options other than the District’s own program.
The Court has reviewed the administrative record with regard to this issue and finds
nothing to suggest that the development of the IEP was procedurally deficient. In fact, the
plaintiffs’ contention that the proposed placement was predetermined is entirely unsupported.
As stated above, as part of its evaluation, the CSE reviewed a classroom observation completed
by the District’s Director of Special Education as well as reports from the District’s special
education teacher and a speech/language therapist. Ex. D-1. The CSE team also heard from a
special education teacher from Gersh, the plaintiffs’ educational consultant, a speech therapist
from Gersh, an occupational therapist and a physical therapist. Id. In addition, the CSE
considered a private neuropsychological evaluation offered by the plaintiffs, which
recommended continuation at Gersh where B.D.S. was making progress. Id. Finally, the CSE
considered the results of numerous tests administered in April 2017 and several written reports
including, a current IEP progress report, a behavioral intervention plan, an educational annual
review progress report, a functional behavioral assessment, an occupational therapy progress
summary, a speech/language progress summary, a physical therapy progress summary, a
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neuropsychological evaluation prepared by Dr. Lepore and a classroom observation. Id.
Notwithstanding the plaintiffs’ claim that the District disregarded their expert’s
recommendations, both the IHO and the SRO concluded that “the May 2019 CSE reviewed the
present levels of performance, the annual goals, and then the ultimate recommendations, and
moreover, that ‘[e]veryone had the chance to be heard.’” ECF No. 1-3.
Courts in this district “have repeatedly rejected predetermination claims where, . . . the
parents actively and meaningfully participated in the development of the IEP.” D.D-S. v.
Southold Union Free Sch. Dist., No. 09-CV-5026 JS WDW, 2011 WL 3919040, at *11
(E.D.N.Y. Sept. 2, 2011), aff'd, 506 F. App'x 80 (2d Cir. 2012). Here, the IHO found no merit in
the plaintiffs’ education consultant’s testimony that the May 2019 CSE meeting was a
“contentious[,] dismissive meeting." In fact, according to the IHO, the "audio recording of the
CSE meeting,” to which she listened several times, impugned [the educational consultant's]
testimony to such a degree that it caused her to lose all credibility in this case." Id. The IHO also
noted that "[o]ther testimony lessened her credibility as well." Id. Indeed, if anything, the record
in this case suggests that it was the plaintiffs who were predetermined to have B.D.S. remain at
Gersh at the District’s expense. See ECF No. 10-59. The IHO noted, to this end, that:
[t]he main issue here is that the parents want [t]he District to pay for their son to remain at Gersh . . ., which The New York State Commissioner of Education has not approved as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.l[d], 200.7). The [p]arents described reasons by which the District’s proposed IEP was procedurally and substantively defective in their Due Process Notice. . . . None of the reasons that the [p]arents put forth would lead me to rule that the IEP was defective, as those reasons were either; irrelevant, misleading, untrue, unsupported by the record or antithetical to the IDEA . . ..
Id. The IHO further indicated that the plaintiffs had immediately rejected the proposed 6:3:1
program, heavily relying on the 2018 decision in their favor that found the brand new 6:3:1
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program to be insufficient for the 2017-18 school year. However, the IHO concluded that the
2018 SRO determination was based, in part, on the fact that the program would not be available
for the summer of 2017 and B.D.S. required placement in a 12-month program.
Similarly, while the SRO found that the IHO decision would have benefitted from
additional detail, the SRO was quick to note that “the IHO did find that, based upon listening to
both the parents' and the District's audio recordings of the May 2019 CSE meeting "three times,''
the "CSE chairperson, . .. , held a very collegial and cooperative, one might say textbook, CSE
meeting." ECF No. 12-7. The SRO further noted, and the undersigned agrees, “that the evidence
in the hearing record demonstrates that . . . the May 2019 CSE reviewed the present levels of
performance, the annual goals, and then the ultimate recommendations, and moreover, that
"[e]veryone had the chance to be heard." Id.
Nevertheless, the plaintiffs also contend that the District committed a procedural
violation by failing to conduct a Functional Behavior Analysis (“FBA”) or to develop a Behavior
Invention Plan (“BIP”). To this end, New York State regulations require that a "student's need
for a behavioral intervention plan shall be documented on the IEP and such plan shall be
reviewed at least annually by the CSE." 8 NYCRR 200.22(b)(2). An FBA provides an
“identification of [a disabled student's] problem behavior, the definition of the behavior in
concrete terms, the identification of the contextual factors that contribute to the behavior . . . and
the formulation of a hypothesis regarding the general conditions under which a behavior usually
occurs and probable consequences that serve to maintain it.” M.W. ex rel. S.W. v. New York City
Dep't of Educ., 725 F.3d 131, 139 (2d Cir. 2013) (citing N.Y. Comp. Codes R. & Regs. tit. 8 §
200.1(r)). Similarly, the IDEA requires that for a child whose behavior impedes that child's
learning or the learning of others, the CSE must "consider the use of positive behavioral
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interventions and supports, and other strategies, to address that behavior." 20 USC $
1414(d)(3)(B)(i); see also 34 CFR 300.324(a)(2)(i); 8 NYCRR 200.4(d)(3)(i). However,
pursuant to the IDEA, an IEP developed without an FBA does not compel the conclusion that the
IEP was legally inadequate. Id. (citing A.C. ex rel. M.C. v. Bd. of Educ. of The Chappaqua Cent.
Sch. Dist., 553 F.3d 165, 172 n.1 (2d Cir. 2009)).
In this case, the IEP clearly states that B.D.S. requires positive behavioral intervention
and has a BIP in place ‘[t]o target off task/escape, self-injurious, and physical aggression
behaviors through proactive strategies and reinforcing replacement behaviors." Ex. D-1.
Those targeted behaviors were identified in B.D.S.’s BIP prepared at Gersh one month before the
CSE convened in May. Ex. P-Q, P-R, Tr. 816-832. While the CSE did not conduct a new FBA
or prepare a new BIP, it was provided with a copy of the Gersh FBA and BIP and, during the
CSE meeting, the Gersh special education teacher reviewed the BIP in detail. Tr. 559-563.
Moreover, it is clear that the IEP recognized that B.D.S. needed behavioral intervention in "an
ABA setting with the use of ABA strategies, including discrete trial instruction, a token economy
to learn" and "sensory breaks" throughout the day to decrease frustration. Ex. D-1. Accordingly,
the undersigned finds no basis to overturn the SRO’s decision rejecting the plaintiffs’ claim that
the CSE should have conducted their own FBA and BIP rather than rely on the Gersh FBA and
BIP, which were prepared only one month earlier.
2. Compliance with the Substantive Requirements
Turning to the adequacy of the IEP, the plaintiffs argue that the May 2019 IEP would not
have provided B.D.S. with an opportunity to progress. See W.S., 188 F. Supp. 3d at 304 (citing
T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (“[t]o
fulfill the requirements of federal law, an IEP must be ‘likely to produce progress, not
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regression,’ and must afford [a] student ‘an opportunity greater than mere trivial
advancement’”)). The main thrust of their argument is that B.D.S. required intensive ABA
instruction and the proposed program did not include “appropriate instruction, support and
supervision from a BCBA.” See Ex. D-1; Tr. 1007-08. The plaintiffs contend, in this regard, that
when they visited the 6:3:1 class, they saw several staff members improperly using ABA
instructional techniques. They concluded, therefore, that B.D.S. would be deprived of a FAPE
because the District’s BCBA, who could correct those techniques, was not always on site. Tr.
332, 890, 1059. These contentions are without merit. To begin with, it is clear from the record
that the District’s 6:3:1 program is designated as an intense ABA program. In addition, as the
plaintiffs’ arguments reflect, the District does employ a behavioral consultant, Doreen Ivory,
who “consults with and trains the program staff and works on programs with student.” Ex. D-1.
While both sides agree that B.D.S. requires ABA instruction, nothing in the record suggests that
such instruction has to be delivered by a BCBA in order to be effective. ECF No. 12-7.
The plaintiffs also argue that the annual goals in the May 2019 IEP were not appropriate.
Specifically, they contend that the CSE simply copied the annual goals from a Gersh progress
report but that those goals were specifically designed to be implemented in Gersh's intensive 1:1
ABA program. They claim, therefore, that the goals could not have been properly implemented
in the District's 6:l:3 intensive needs class. This argument also lacks merit. The hearing record
makes clear that the CSE discussed and revised B.D.S.’s annual goals after receiving input from
all of the CSE members, Gersh providers, the plaintiffs, and the plaintiffs’ educational
consultant. Exs. D-1, D-16, P-F, P-M to P-S, P-X and P-AA. In fact, while B.D.S.’s goals from
Gersh may have been a starting point, the SRO noted that the audio recordings of the May 2019
CSE meeting evidenced collaboration between all members of the CSE in reviewing and revising
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the annual goals for B.D.S. until all of those members were satisfied with the language of the
annual goals, as well as the specific skills targeted by the annual goals. ECF No. 12-7.
The record also reflects that while the district failed to specifically reference BCBA
services in the IEP, it was clear to everyone in attendance at the CSE meeting that BCBA
services was an integral component of both the District’s and Gersh’s programs. In any case, the
IEP included 19 annual goals and 38 short-term objectives targeting B.D.S.’s needs in the areas
of reading, mathematics, speech-language, social/emotional and behavioral, motor skills, and
daily living skills. Ex D-1. To help B.D.S. achieve those goals, the proposed program provided
1:1 discrete trial teaching on a daily basis, which, contrary to the plaintiffs’ contentions, included
appropriate data collection. Tr. 64-5; 168; 265-77. Teacher in the 6:3:1 classroom use visuals,
token economy, "first-then" techniques, schedules, program books, sensory integration and social
skills. Id. The District further expected that students in the program would be given
individualized visual work schedules for their daily discrete trial instruction. Tr. 73-8. The
program also contemplated that each student would receive, among other things, an
individualized reinforcement plan as well as program books that included data collection and
graphing. Tr. 93-109, 142-43. Finally, the District BCBA trains classroom staff on maintaining
daily behavior progress monitoring data. Tr. 65, 328. Thus, there is nothing in the record to
suggest that the goals set forth in the IEP were deficient.
Nonetheless, the plaintiffs also argue that B.D.S. would not have been appropriately
grouped with similar peers in the District’s 6:1:3 classroom. 7 To this end, they claim that school
districts are required to place students with disabilities in classes with peers of “similar
7 The plaintiffs also argue that the District’s desire to provide B.D.S. access to nondisabled students should not have been considered because B.D.S. was not developmentally ready for that interaction. Ex. PAA; D-16. In fact, the principal at Gersh opined that B.D.S. might regress if he was introduced to nondisabled peers. Id.
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individual needs” who are within 36 months of age. See 8 N.Y.C.R.R. § 200.6(h). According to
the plaintiffs, B.D.S. would have been placed in a class with a 39 month range; he would have
been the only student in the class with a 1:1 aide; and he would have been one of two verbal
students in the class. Pls.’ Mem. 18. However, the record is clear that the District received an
age variance for the 36-month limit from the New York State Education Department on July 31,
2016. 8 In addition, the class profile provided to the plaintiffs reflected that the other students
recommended for the program had substantially similar needs. Exs. D-14, D-16, Tr. 439-43.
Finally, the Court turns to the plaintiffs’ contention that moving B.D.S. to a District
program would have been a mistake given the remarkable progress he was making at Gersh.
ECF No. 12-7 (citing Ex. P-AA, Ex. D-16). While this argument is included in a long list of
alleged procedural and substantive contentions, the plaintiffs’ concern that B.D.S. might have
regressed if his program was “abruptly” changed appears to be driving this litigation. As the
SRO clearly summarized:
Both parents commented about removing the student from Gersh in order to place him in the district's program as a basis for disagreeing with the May 2019 CSE's 6:l+3 special class placement recommendation. The student's mother opined that regardless of where the district's program was located-because the special class program was moving from one district school building to another district school building-would be horrible for the student, charactering the district's program as still in a state of flux in light of the anticipated change in location. The student's mother indicated that moving the student to the district's program would result in the student engaging in more self-injurious behaviors and would, overall, not meet his needs. The student's father expressed similar reasons for disagreeing with the CSE's recommendation, focusing primarily on not interfering with the progress the student had made at Gersh and that it would be silly to move him from that program. The student's father also stated at the May 2019 CSE meeting that they respectfully disagreed with the CSE's recommendation, and the student would stay at Gersh because the CSE bad no substantial reason for removing the student from a program where he had made substantial progress.
8 As the District correctly notes, nothing in the regulations require that the District obtain the variance in advance of the CSE meeting. See D-15.
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Id. (internal citations omitted). The plaintiffs’ fear that B.D.S. would have regressed had he been
moved to the District program is simply not a basis on which to overturn the SRO’s conclusion
that the District had offered B.D.S. a FAPE for the 2019-2020 school year.
3. The Remaining Burlington/Carter Analysis.
Having determined that there is no basis to overturn the SRO’s determination that the
District offered B.D.S. a FAPE for the 2019-2020 school year, the undersigned need not address
whether the parents' alternative private placement was appropriate or if the equities favor
reimbursement. Accordingly, the undersigned respectfully recommends that the defendant’s
motion for summary judgment be granted and the plaintiffs’ motion for summary judgment be
denied.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure,
the parties shall have fourteen (14) days from service of this Report and Recommendation to file
written objections. Any requests for an extension of time for filing objections must be directed
to Judge Azrack prior to the expiration of the fourteen (14) day period for filing objections.
Failure to file objections will result in a waiver of those objections for purposes of appeal.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Beverly v. Walker, 118 F.3d 900, 901 (2d Cir. 1997);
Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).
Dated: Central Islip, New York February 3, 2022 _______/s/_______________ Arlene R. Lindsay United States Magistrate Judge
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