Connors v. Mills, 97-CV-0146.

• Decision Date: 24 September 1998
• Docket Number: No. 97-CV-0146.,97-CV-0146.
• Citation: 34 F.Supp.2d 795
• Parties: Nancy E. CONNORS, Plaintiff, v. Richard MILLS, Commissioner of Education; New York State Board of Regents, Defendants.
• Court: U.S. District Court — Northern District of New York

34 F.Supp.2d 795

Nancy E. CONNORS, Plaintiff, v. Richard MILLS, Commissioner of Education; New York State Board of Regents, Defendants.

No. 97-CV-0146.

United States District Court, N.D. New York.

September 24, 1998.

COPYRIGHT MATERIAL OMITTED

Nancy E. Connors, New Paltz, NY, pro se.

Dennis C. Vacco, Attorney General of the State of New York, Office of Attorney General, Albany, NY, Robert A. Siegfried, AAG, of counsel, Kathleen Surgalla, New York State Education Dept., Albany, NY, for defendants.

MEMORANDUM—DECISION AND ORDER

KAHN, District Judge.

I. Introduction

Plaintiff Nancy E. Connors ("Plaintiff" or "Mrs. Connors"), pro se, brings this action on behalf of her learning disabled child, D.C., under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400, et seq. (1988) (current version at 20 U.S.C.A. § 1400, et seq. (West Supp. 1998)), seeking reimbursement for costs incurred pursuing administrative relief and prospective relief relative to D.C.'s continued placement in a non-approved private school. Defendants Richard Mills, Commissioner of Education for the State of New York, and the New York State Board of Regents, move for summary judgment on two grounds. First, Defendants contend that this Court does not have subject matter jurisdiction over the instant action because Plaintiff has failed to exhaust administrative remedies; and, second, that Plaintiff has not stated a valid claim because prospective payment for non-approved private schools is not available under the IDEA. Because the parties concede there are no material issues of fact left to be resolved, this case is ripe for summary adjudication.

II. Statutory Background¹

The IDEA is "an ambitious federal effort" to "assist state[s] ... in educating [disabled] children." Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To qualify for federal funds under the IDEA, a state must implement a plan which "assure[s] that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs...." 20 U.S.C.A. § 1400(c) (West Supp.1998). A "free and appropriate education" is one that is tailored to the unique needs of a particular child such that the child "benefit[s] educationally from [the] instruction." Rowley, 458 U.S. at 203, 102 S.Ct. 3034.² Local education agencies ("LEA") ensure tailored educational services by generating an individualized education program ("IEP") for each child in need of special education. 20 U.S.C. § 1414(a)(5) (1988 and Supp.1998). An IEP, prepared at a meeting between the child's teacher, a school representative qualified in special education, and the child's parents, is a written statement that includes the child's present educational performance, lists annual goals and short-term instructional objectives, and describes the specific educational services that the child will receive to achieve those goals. 20 U.S.C.A. § 1401(a)(20) (West Supp.1998).

Congress included a panoply of procedural safeguards to give parents an opportunity to have "meaningful" input in decisions about their child's education. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see 20 U.S.C.A. § 1415(a) (West Supp.1998) ("Any ... educational agency ... which receives assistance ... shall establish ... procedures ... to assure that children with disabilities and their parents ... are guaranteed procedural safeguards with respect to the provision of free appropriate public education...."). Through these procedures, parents can, for example, present a complaint regarding "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to such child." 20 U.S.C. § 1415(b)(1)(E) (1988). If parents choose, their objections and concerns may be heard at an "impartial due process hearing." 20 U.S.C. § 1415(b)(2) (1988). The IDEA gives States the freedom to design a one or a two-tier review process. Under a one-tier system, the impartial due process hearing is conducted by the State education agency ("SEA") and an aggrieved party can seek review in state or federal court. Under a two-tier system, which is used in New York, the initial impartial due process hearing is conducted by the LEA. If the parents are not satisfied with the result of the LEA's due process hearing, they may appeal that result to the SEA, 20 U.S.C. 1415(c) (1988); in New York, the officer who performs this review function is called a state review officer ("SRO"). N.Y.Educ.Law § 4404(2) (McKinney 1995). As in the one-tier system, parents who are dissatisfied with the decision of the SRO can thereafter file suit in either state or federal court. 20 U.S.C. § 1415(e)(2) (1988); N.Y.Educ.Law § 4404(3) (McKinney 1995).

As an alternative to the impartial due process hearing, a parent may file a complaint with the SEA claiming that the school has violated or is violating the IDEA. 34 C.F.R. §§ 300.600-300.662. The SEA then has sixty (60) days to investigate and resolve the matter. 34 C.F.R. § 300.661. If a parent invokes both the due process and the complaint resolution procedures, the SEA will stay its investigation of the complaint pending resolution of the same matters in the due process hearing.

While the IDEA compels states to promulgate a plan that meets certain requirements including guaranteeing the right to a "free appropriate education," Congress left it to the states to implement the specifics of their respective educational programs. In New York, Article 89 of the New York Education Law, § 4401, et seq. (McKinney's 1995 and Supp.1998), was adopted, at least in part, to comply with the IDEA. Under Article 89, it is the charge of a Committee on Special Education ("CSE"), whose members are appointed by the board of education or trustees of each school district, to develop a student's IEP. N.Y.Educ.Law § 4402(1)(b)(1) (McKinney Supp.1998). As noted, New York provides two levels of review for parents objecting to their child's IEP: the parent may request a due process hearing before an impartial hearing officer ("IHO") and, if still aggrieved, the parent may seek review of the IHO's decision before a SRO. N.Y.Educ.Law §§ 4404(1), (2) (McKinney 1995 and Supp. 1998). After the SRO renders a decision, either party may file suit in state or federal court. N.Y.Educ.Law § 4404(3) (McKinney 1995).

Though the IDEA favors placing students in the least restrictive environment which often is the student's public school, see 20 U .S.C.A. § 1412(5) (West Supp.1998), if that public school placement is inappropriate, a student may be placed in a more restrictive setting. The SEA is charged with the responsibility of ensuring that children with disabilities are placed in "educational programs ... [that] meet the education standards of the state education agency." 20 U.S.C.A. § 1412(6) (West Supp.1998). The New York State Education Department ("NYSED") has provided a list of schools that have met the criteria set forth by state and federal law. See N.Y.Comp.Codes R. & Regs. title 8, § 200.1(d) (1998) ("Approved private school means a private school which conforms with the requirements of Federal and State laws and regulations governing the education of students with disabilities, and which has been approved by the commissioner for the purpose of contracting with public schools for the instruction of students with disabilities."). If the CSE is unable to find an appropriate placement in the public school, it may place the child in an approved school from NYSED's list. The primary issue presented here is whether the school district, either through the CSE, LEA, or SEA, may place a child in a non-approved private school.

III. Facts

D.C., a child with multiple disabilities, was a student in the New Paltz Central School District ("New Paltz") which is not a party to this action. In September, 1994, after Plaintiff objected to D.C.'s 1994-1995 IEP, she enrolled D.C. at the Brendon Montessori School, a "non-approved" private school. After Plaintiff filed for a due process hearing on February 10, 1995, she hired Marilyn Arons to help her prepare for the hearing and to represent her at a May 18, 1995 settlement conference. The May 18, 1995 settlement provided, inter alia, that (1) New Paltz would reimburse Mrs. Connors for placement at the Montessori School for the 1994-1995 school year; (2) New Paltz would provide transportation to the Montessori School until the end of the 1994-1995 term; and (3) D.C. would be given an independent evaluation for speech.

Significantly, New Paltz and Mrs. Connors agreed and, from the record, continue to agree that New Paltz could not provide an appropriate education for D.C. and, moreover, that the Montessori School could so provide.

Unhappy with her son's 1995-1996 IEP and the manner in which New Paltz acted following the May 18, 1995 settlement, Plaintiff filed a complaint with NYSED in September, 1995, claiming that New Paltz was violating the IDEA. NYSED responded to the complaint by indicating that it would investigate and resolve the matter within sixty (60) days as required by statute. In October, 1995, at the beginning stages of the investigation, NYSED learned that Plaintiff had requested a due process hearing regarding the same matters presented in the complaint. Accordingly, NYSED suspended its investigation pending resolution of the administrative proceedings. The due process hearing was held on March 13, 1996 and Mrs. Connors and New Paltz again entered a settlement in which the parties agreed in part that (1) New Paltz would reimburse Mrs. Connors for costs associated with D.C.'s placement at Montessori during the period including July, 1995 to June, 1996, (2) a bank of specified compensatory services would be created as well as the...