Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. M.N. ex rel. Their Child J.N.
| Decision Date | 13 October 2017 |
| Docket Number | 16-CV-09448 (TPG) |
| Parties | BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT, Plaintiff, v. M.N. AND W.N., ON BEHALF OF THEIR CHILD J.N., Defendants. |
| Court | U.S. District Court — Southern District of New York |
In this case arising under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. (2012), plaintiff and defendants have both moved for summary judgment. The instant action was filed in response to a decision by a State Review Officer ("SRO") issued on September 7, 2016. See SRO Decision. Plaintiff moves for summary judgment asking this court to reverse the SRO's decision that plaintiff failed to provide the defendant child, J.N., with a free and appropriate education ("FAPE") as required by the IDEA, and that it was required to reimburse defendants for tuition for the 2014-2015 and 2015-2016 school years. Defendants have filed a cross-motion for summary judgment requesting that this court affirm the SRO decision.
After consideration of the record below, the court affirms in part and reverses in part the SRO decision. The court (1) affirms the SRO's finding that plaintiff violated its Child Find obligation by failing to evaluate J.N. within a reasonable time after defendants' December 2014 communication with plaintiff, (2) reverses the SRO decision with respect to its finding that the lack of a functional behavioral assessment ("FBA") before the child's placement in and of itself constituted a denial of FAPE, and (3) affirms the SRO decision that J.N.'s June 2015 individualized education program ("IEP") was inadequate, constituting a denial of FAPE. The court also affirms the SRO's decision that plaintiff must compensate defendants for J.N.'s school tuition for both the 2014-2015 and 2015-2016 school years.
Plaintiff commenced the instant action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1412(a)(1) (2012), which mandates that states receiving federal funding provide qualifying disabled children with a free and appropriate public education ("FAPE"). The statute was enacted to "ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs." Id. § 1400(d)(1)(A). Accordingly, the Department of Education, through a Committee on Special Education ("CSE"), implements an individualized education program ("IEF") for each qualifying child. 20 U.S.C. § 1414(d)(1)(A)-(B); N.Y. Educ. Law §§ 4401-a, 4402(1)(b) (McKinney 2017); N.Y. Comp. Codes R. & Regs. tit. 8, §§ 200.3, 200.4(b) (2017).
An IEP is a written document setting out the child's up-to-date educational performance and establishing short and long-term goals to improve that performance. M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012).When creating an IEP, the CSE must consider "the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; [and] the academic, developmental and functional needs of the student." N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(d)(1)(iii)(b)(2); see also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007) (). The IEP must set out " 'specially designed instruction and services that will enable the child to meet' stated educational objectives and is reasonably calculated to give educational benefits to the child." M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013) (quoting R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)).
An IEP must also create an educational environment that is the "least restrictive setting consistent with a child's needs." M.H., 685 F.3d at 224 (quoting Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003)). This least restrictive setting is one that "(1) provides the special education needed by the student (2) to the maximum extent appropriate with other students who do not have handicapping conditions, and (3) is as proximate as possible to the student's place of residence." Gagliardo, 489 F.3d at 108.
Parents of eligible children who disagree with the recommendations of an IEP and believe that a school district is not providing their child with FAPE may file a complaint with an impartial hearing officer ("IHO"), appointed by the localboard of education, to initiate due process hearings. 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)(a); N.Y. Comp Codes R. & Regs. tit. 8, § 200.5(j). The IHO then conducts a hearing on the claims specified in the complaint and issues an opinion. N.Y. Educ. Law § 4404(1)(a); N.Y. Comp. Codes R. & Regs. tit. 8, § 200.5(j). After the IHO issues a decision, either party may appeal the case to a State Review Officer ("SRO"), a state Department of Education officer, who reviews the IHO decision and who can affirm, reverse, or modify it. N.Y. Educ. Law § 4404(2); N.Y. Comp. Codes R. & Regs. tit. 8, § 200.5(k). The IDEA then allows either parry to challenge the final administrative decision by bringing a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3)(a).
W.N. and M.N. ("Parents") commenced the instant action on behalf of J.N., their teenage daughter. ECF No. 22, at 1; ECF No. 23, at 1. J.N. is diagnosed with attention deficit hyperactivity disorder ("ADHD"), reactive disorder ("RAD") and mood disorder. ECF No. 23, at 2. This action pertains to the events occurring between J.N.'s ninth and tenth grades—the 2014-2015 and the 2015-2016 school years. See ECF No. 18, at 8; ECF No. 19, at 18-19.
J.N. attended school in the Wappingers Central School District ("District") between second and fifth grade, from approximately 2005 to 2010. ECF No. 22, at 2; ECF No. 23, at 2-3. During this time, J.N. did "adequately well" in school, but experienced some social difficulties. SRO Decision, at 3; ECF No. 22, at 2. In 2005, parents took J.N. to get an evaluation for attention deficit disorder becauseshe was experiencing difficulties with focus and attention. SRO Decision, at 3. She was diagnosed with ADHD at that time. SRO Decision, at 3; ECF No. 22, at 2. In 2006, when J.N. was in third grade, parents requested an evaluation from the District, and a CSE convened for an evaluation on May 15, 2006. SRO Decision, at 3; ECF No. 22, at 2; ECF No. 25, at 3. The CSE found that J.N. was ineligible for special education services at that time. SRO Decision, at 3; ECF No. 22, at 2; ECF No. 25, at 3.
In the middle of J.N.'s sixth-grade year, the 2009-2010 school year, parents removed J.N. from the District and enrolled her in a nonpublic, out-of-District school called Mizzentop School. ECF No. 23, at 2-3; ECF No. 22, at 3. This decision was in response to the fact that J.N. was having trouble at school—frequently missing assignments, performing poorly on tests, and struggling socially. See SRO Decision, at 3; ECF No. 23, at 2-3.
Starting in the 2013-2014 school year, J.N.'s ninth-grade year, parents enrolled her in Miss Hall's School ("Miss Hall's"), a private boarding school in Pittsfield, Massachusetts. ECF No. 22, at 3; ECF No. 23, at 3; ECF No. 25, at 4-5. She was enrolled in an academic skills program and had meetings with the school psychologist while at Miss Hall's. ECF No. 22, at 3; ECF No. 25, at 5.
In her tenth-grade year, around December 2014, parents were notified that J.N. was hurting herself and posting suicidal thoughts on social media. ECF No. 22, at 4; ECF No. 23, at 4; ECF No. 25, at 5. She was asked to take a leave of absence for medical reasons out of the school's concern for her health and safety. SRO Decision, at 3; ECF No. 22, at 4; ECF No. 23, at 4. When J.N. returnedhome, she was seen by a psychologist, Dr. Judith Moskowitz, for a psychoeducational evaluation. ECF No. 22, at 4; ECF No. 25, at 5-6. Dr. Moskowitz's report recommended that J.N. be placed in a therapeutic boarding school. ECF No. 22, at 4; ECF No. 25, at 6.
Around this time, parents contacted the District to bring the situation to its attention and explore schooling options for J.N. SRO Decision, at 3; ECF No. 22, at 4; ECF No. 25, at 6. Parents were referred to Nicole Gallacher, school counselor at John Jay High School. ECF No. 22, at 4; ECF No. 25, at 6. Parents made clear that J.N. was "in crisis" and had been asked to leave her current boarding school. ECF No. 22, at 4, ECF No. 25, at 7. Gallacher recommended hospitalization and told Parents that she would "look into" other options in the District. ECF No. 22, at 5; ECF No. 25, at 7. In an email dated January 14, 2015, Gallacher notified the District of J.N.'s status and requested advice on how to proceed with the case. SRO Decision, at 3 n.3; ECF No. 22, at 6; ECF No. 25, at 8.
Parents, after reaching out to the District, contacted Spring Ridge Academy ("Spring Ridge"), a therapeutic residential school located in Arizona, to inquire about possible enrollment. ECF No. 23, at 11; ECF No. 25, at 8. Spring Ridge holds itself out to be a 12-month, all-female, therapeutic boarding school for the ninth through twelfth grades. ECF No. 25, at 20. Almost all students in the program have experienced some degree of trauma, and the program is designed to provide a comprehensive, therapeutic and academic approach for those struggling with addictive or risky behaviors. ECF No. 23, at 27; ECF No.25, at 20-21. The program proceeds in four phases—the orientation phase, the consistency phase, the integration phase, and the transition phase—designed on an individual basis to provide students with both academic and emotional support. ECF No. 23, at 28-29; ECF No. 25, at 23. Suzanne...
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