Cosgrove v. Board of Educ. of Niskayuna Cent. Sch.
| Decision Date | 03 July 2001 |
| Docket Number | No. 01-V-1017.,01-V-1017. |
| Citation | 175 F.Supp.2d 375 |
| Parties | Brendan COSGROVE, a Disabled Student by his parents, Robert and Janice Cosgrove, Plaintiffs, v. The BOARD OF EDUCATION OF THE NISKAYUNA CENTRAL SCHOOL DISTRICT; Jay Briggs McAndrews, Superintendent of the Niskayuna Central School District, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Young, Sommer Law Firm, Executive Woods, Albany, NY (Kenneth S. Ritzenberg, Esq., Karen Wade Cavanagh, Esq., of counsel), for Plaintiffs,
Higgins, Roberts Law Firm, Schenectady, NY (Michael Basile, Esq., of counsel), for Defendants,
The parties stipulated to most of the background facts at the underlying administrative hearing and are taken from the June 4, 2001 written findings of fact and decision of Impartial Hearing Officer Tia Schneider Deneberg ("IHO") in The Matter of an Educationally Disabled Student, Brendan Cosgrove, by his parents, Robert and Janice Cosgrove and The Board of Education of the Niskayuna Central School District ("Decision"), unless indicated to the contrary. Brendan Cosgrove ("Brendan") was born on September 20, 1979 and, in May of 1980, he contracted spinal meningitis which resulted in numerous and severe disabilities. Brendan has limited gross motor control and is wheelchair bound. He has limited control over his power wheelchair and is "totally dependent on others for his activities of daily living, such as dressing, eating and toileting."
Brendan and his family became residents of the Niskayuna Central School District ("the District") in August, 1985 and thereafter received special education through the District's placements. Until 1992, it was believed that Brendan had some hearing capacity, however, thereafter it was determined that he is totally deaf. Brendan cannot utter words, but is capable of vocalizations and communicates through the use of a picture/symbol book which was set up by a deaf services consultant during the 1993-1994 school year. This consists of approximately 50-60 vocabulary words.
During the 1995-1996 school year, school placement was with Capital District BOCES at the Farnsworth Middle School. Placement was with QUESTAR III, beginning in the summer, for the 1996-1997 school year. During the 1997-1998, 1998-1999, 1999-2000 and 2000-2001 school years, placement was at the Perkins School for the Blind in Watertown, Massachusetts, a private school ("the Perkins School"). At the administrative hearing, the parties stipulated that placement at the Perkins School was appropriate for Brendan. There appears to be no dispute that this placement was for twelve month programming.
For purposes of context, Brendan turned 21 years old on September 20, 2000. Brendan's parents requested an Impartial Hearing on January 22, 1999 asserting that he had been denied a Free Appropriate Public Education ("FAPE") during school years of 1995-1996 and 1996-1997 and sought "compensatory education" for those years. The IHO's Decision found that Brendan was denied a FAPE during the 1995-1996 and 1996-1997 school years and ordered compensatory education, declaring that Brendan has the right to remain at the Perkins School, at public expense, for an additional two school years. In making this determination, the IHO cited the inadequacies of the special education program provided to Brendan at the BOCES & QUESTAR III program as follows:
No consensus emerged in the IEP Planning Process, which therefore must be judged deficient. During the year at Capital District BOCES he was largely denied the beneficial company of deaf peers and kept in a classroom where he was considered an oddity. He was slighted by the teacher, who improperly delegated the instructional function to an interpreter. Throughout the year at QUESTAR, the staffing was in a state of flux that had to be confusing for him. There were four different individuals acting as teacher, periods without an individual interpreter, which limited his mainstreaming activities, and an interpreter who became his teacher and then resumed her former role. An unauthorized technique was applied by the interpreter, and no permanent solution was found to his communication problem. There was not even a match between the sign language that he experienced and the language used by the interpreter.
The Plaintiffs assert that on June 12, 2001, the District advised the Plaintiffs' counsel that it was appealing the IHO's Decision to the State Review Officer ("SRO") and that, because Brendan turned 21 years of age during the 2000-2001 school year, felt pendency under the controlling statutes (discussed below) did not apply during the appeal process. Brendan left the Perkins School on June 15, 2001, which constituted the end of the 2000-2001 academic year and was, according to the Plaintiffs, scheduled to return for the summer session on Monday, June 25, 2001.
On June 21, 2001, the Plaintiffs commenced the instant action and presented an Order to Show Cause to the Court seeking a preliminary injunction enjoining the Defendants from suspending Brendan's educational services during the appeal of the administrative Decision. They also request that the injunction require the District to pay for such services. The Complaint alleges violations of rights secured by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1490;1 the Civil Rights Act, 42 U.S.C. § 1983; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Article 89 of the New York State Education Law. The Complaint seeks "an injunction mandating ... that Brendan remain at the Perkins School immediately following his age out and during the pendency of any appeal, at public expense, attorneys' fees and related relief."
The Court granted the Order to Show Cause, which did not seek any ex parte or immediate relief, and imposed an expedited briefing schedule. The Court held a hearing on June 28, 2001 and, with the exception of a joint exhibit consisting of Brendan's 2000-2001 Individualized Education Program (hereinafter "IEP"), both parties agreed that there was no need for the presentation of further evidentiary proof. Counsel presented oral argument at this time.
Plaintiffs assert that even a short delay in Brendan's return to his educational program will cause devastating consequences and irreparable harm. The Plaintiffs have submitted an affidavit from Mary Zatta, Assistant Superintendent for the Deafblind Program at the Perkins School. She was the coordinator for Brendan's evaluation when he came to the Perkins School and has been involved in his program since. She asserts the following pertinent facts/opinions:
a. Brendan is a deaf/multiply disabled student in the Deafblind Program.
b. He receives an integrated program which includes a range of educational, clinical, and support services. The Perkins School has 25 community work sites and Brendan has participated in a number of those.
c. The "largest focus" of Brendan's program is in the area of language and communication development as he is unable to express himself "in any of the typical ways." He understands sign language but, because of physical challenges, is unable to produce sign language. A significant component of Brendan's team includes a computer teacher, a physical therapist, an occupational therapist, and a speech and language therapist in conjunction with classroom teachers in order to assist Brendan with his communication needs.
d. During the last four years, Brendan has been involved in three different trials with electronic communication devices. "Brendan now demonstrates a readiness for use of a dedicated communication device."
e.
f. Perkins school provides summer programing during the last week of June and the month of July. It is closed during the month of August.
g.
Defendants have submitted an affidavit from Kathleen Spring-Townley, Administrator for Special Education Programs and Services for the Niskayuna Central School District, contradicting most of the factual allegations of Ms. Zatta's affidavit. Ms. Spring-Townley asserts that she has been actively involved in administering programing for Brendan since the fall of 1998, is familiar with the educational background and services provided to Brendan throughout his education with the School District, attended most of the due process hearing sessions and heard most of the testimony provided in the hearing, and has been involved with Ms. Zatta in Brendan's programing including a May 31, 2001 Committee on Special Education ("CSE") transitional planning/exit review for Brendan. She asserts:
a. At the May 31, 2001 exit/transition review, Brendan's parents, the school district, and representatives of the Perkins School met to identify appropriate placement for Brendan for his life after school and to assist in "transitioning Brendan" into that program.
b. Neither Ms. Zatta or any representative of the Perkins School mentioned a "breakthrough" for Brendan and instead indicated that he was "making slow, steady progress."
c. The progress reports from and communications with the Perkins School over...
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