D.S. v. Rockville Ctr. Union Free Sch. Dist.

• Decision Date: 08 March 2022
• Docket Number: 19-CV-03430 (JMW)
• Court: U.S. District Court — Eastern District of New York
• Parties: D.S. and J.S., individually and on behalf of T.S., Plaintiffs, v. ROCKVILLE CENTRE UNION FREE SCHOOL DISTRICT, Defendant.

D.S. and J.S., individually and on behalf of T.S., Plaintiffs,
v.
ROCKVILLE CENTRE UNION FREE SCHOOL DISTRICT, Defendant.

No. 19-CV-03430 (JMW)

United States District Court, E.D. New York

March 8, 2022

MEMORANDUM AND ORDER

JAMES M. WICKS United States Magistrate Judge.

I. Preliminary Statement

Plaintiffs D.S. and J.S. (collectively “Plaintiffs” or the “Parents”) commenced this action individually and on behalf of their son, T.S., against Rockville Centre Union Free School District (“Defendant” or “District”) pursuant to the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1415(i)(2)(A), Article 89 of the New York State Education Law, N.Y. Educ. Law § 4404(3), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. (DE 1.) The Plaintiffs seek review of the final administration decision of the New York State Review Officer (“SRO”) regarding the provision of a free appropriate public education (“FAPE”) to T.S. Id.

The parties in this action consented to this Court's jurisdiction for all purposes pursuant to 28 U.S.C. Section 636(c) and Federal Rules of Civil Procedure 73. (DE 10; DE 11.) Plaintiffs now move for summary judgment, pursuant to Federal Rule of Civil Procedure 56, arguing that the SRO erred in its decision finding that the Defendant did not fail to offer a FAPE to T.S. as required by the IDEA. (DE 33-1.) Defendant cross-moves for summary judgment arguing that the SRO correctly affirmed the decision of the Impartial Hearing Officer (“IHO”) based on a

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thorough and careful review of the record. (DE 32-1.) For the reasons that follow, Plaintiffs' motion for summary judgment is DENIED and Defendant's motion for summary judgment is GRANTED.

II. Background

A. The Undisputed Material Facts

T.S. is a student classified as IDEA-eligible under the classification of “speech or language impairment” and resides within the geographical boundaries served by the District.^[1](DE 33-2 ¶¶ 1, 3.) As an infant, T.S. was diagnosed with apraxia of speech and began receiving special instruction through an Early Intervention Program (“EIP”) during elementary school. (Id. ¶¶ 11-12.) T.S. was also approved for physical therapy and occupational therapy in December 2011 and began receiving such services in April 2012 and January 2012, respectively. (Id. ¶¶ 13-14.)

When T.S. transferred from the EIP to the District, the Committee on Preschool Special Education (“CPSE”) arranged for a psychological evaluation, conducted in April 2012, to determine T.S.'s eligibility for special education services. (Id. ¶ 15.) Dr. Alan Wenderoff completed a diagnostic psychological evaluation in May 2012 using autism assessments, the

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results of which “were ‘not quite sufficient for the diagnosis of an autism spectrum disorder,' yet ‘significant limitations in social communication' were evident, ” and the evaluator recommended a specialized and intensive placement with educational and therapeutic supports. (Id. ¶¶ 16 -18.) T.S. first attended 10:1+2 special classes and later transitioned to an 8:1+2 placement. (Id. ¶¶ 19-20.) The preschool also provided T.S. with an augmentative communication device, which T.S. ultimately did not use when it appeared that it was no longer effective. (Id. ¶ 21.)

T.S. attended kindergarten during the 2014-2015 school year and first grade during the 2015-2016 school year, and he repeated the first grade for the 2016-2017 school year. (DE 32-4 ¶¶ 8-9.)

During the CSE meeting held on May 15, 2015, the CSE reviewed evaluations, noted T.S.'s progress on his goals, and developed a plan for the 2015-2016 school year. (Id. ¶ 10.) The CSE recommended an integrated co-teaching class (“ICT”), and the Parents did not raise any concerns regarding the CSE recommendation at that time. (Id. ¶ 12.) Another CSE meeting occurred on March 1, 2016 to review the Functional Behavior Assessment (“FBA”) conducted by Dr. Josephine Bishop and Dr. Gordon Wood. (Id. ¶ 17.) At the meeting, Drs. Bishop and Wood presented the results of their observations and discussed the FBA and the current program for TS. (Id. ¶¶ 17-18.) The FBA indicated that T.S. was “distracted, tried to avoid some tasks, and was resistant at times.” (Id. ¶ 20.)

The CSE recommended that T.S. receive the support of the classroom aide for two periods daily. (Id. at ¶ 25.) The Parents requested additional services at home, which the CSE agreed to provide one time weekly for sixty minutes to reinforce materials that T.S. was taught in school. (Id. ¶ 26.) A 1:1 aide was assigned for two periods each day to keep T.S. on task, to

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keep him safe, and to redirect and prompt him.” (Id. ¶ 33.) At the same time, “T.S. was receiving the weekly sixty-minute home instruction from a special education teacher.” (Id. ¶ 34.)

Dr. Orly Gadon, the District's CSE Chairperson, testified that based on the input from the special education teacher and providers and a review of the goals, T.S. was making progress, albeit slowly. (Id. ¶¶ 39-40.) Another CSE meeting took place on May 13, 2016, where CSE recommended Extended School Year (“ESY”) services of occupational therapy (“OT”) and speech and language therapy to T.S. (Id. ¶¶ 42, 45.) The CSE further recommended the ICT class for the 2016-2017 school year. (Id. ¶ 48.) The Parents advised the District at this meeting that T.S. “will attend a private program for the summer.” (Id. ¶ 49.) The Parents did not request additional services for the summer of 2016 from the District. (Id. ¶ 50.) Before the 2016-2017 school year began, the Parents contacted Dr. Gadon and requested that T.S. be allowed to leave school at 12:15 p.m. three days a week to attend Fit Learning (“Fit”), to which Dr. Gadon stated that the school could not give such permission. (Id. ¶¶ 51-52.)

Another CSE meeting was held on November 15, 2016 to review the augmentative communication evaluation and recommended a device called “Nova Chat, ” which was meant to improve T.S.'s oral language and to provide more meaningful communication. (Id. ¶¶ 55-56.) Both the Parents-along with Dr. Kim Berens, representative from Fit who was at the CSE meeting-agreed with the recommendation for the augmentative device. (Id. ¶¶ 60-61.) However, the Parents returned the device because, in their opinion, it served more as a distraction than an assistive device and discouraged T.S. from using his developing language skills. (DE 35 ¶ 62.) Despite this, T.S. continued to use the device extensively in the classroom. (DE 32-4 ¶ 67.) For example, Victoria Reicherter, T.S.'s special education teacher, utilized

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Nova Chat in the classroom when it was difficult to understand T.S., and T.S. enjoyed the technology and liked to work and play with Nova Chat. (Id. ¶¶ 63, 66.)

T.S. began attending Fit in June 2016 and was attending three days per week in the fall of 2016. (Id. ¶ 68.) Dr. Gadon held an informal meeting with all T.S.'s providers and special education teachers to ensure that his IEP services were provided to him, despite his attending Fit during the school day. (Id. ¶ 69.) T.S. received special education instruction from Ms. Reicherter in the classroom for eighty minutes each day. (Id. ¶ 70.) Additionally, T.S. was provided with a general education teacher, a teaching assistant, and a classroom aide. (Id. ¶ 71.) Ms. Reicherter continued to provide all mandated special education services in the morning before T.S. left for Fit at 12:15 p.m., utilizing technology, including an iPad and a Smart Notebook to improve T.S.'s attention to task. (Id. ¶¶ 73, 75.)

The District also utilized a reading program for T.S. to work on phonics, phonemic awareness, and letter sounds. (Id. ¶ 77.) Ms. Reicherter further provided one-to-one services to T.S. by pulling him out of the classroom; implementing all the classroom modifications and testing accommodations in the May 2016 IEP; and using positive behavior strategies, including positive reinforcement, checklists, motor breaks, and visuals. (Id. ¶¶ 78-80.) Furthermore, she worked on IEP goals. (Id. ¶ 81.) The record indicates that T.S. was progressing satisfactorily in his reading goal, was an excellent decoder, and was able to read. (Id. ¶ 82.) The record further establishes that Ms. Reicherter worked on the math goal, in which T.S. was progressing, although not consistently. (Id. ¶ 83.) For example, he was not generalizing and needed a lot of prompts. (Id.) Addressing the issues of generalization, Ms. Reicherter worked on math vocabulary, simple word problems, and algorithms. (Id. ¶ 85.)

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The record also reflects that T.S. received most of his mandated sessions of speech services in school, although he may have missed one session a month due to leaving for Fit. (Id. ¶ 88.) For the three days a week that T.S. left school at 12:15 p.m., T.S. missed math, social studies, science, recess, among other activities. (Id. ¶ 90.) Ms. Reicherter tried to make up as much work as possible to make up for the time T.S. spent at Fit and kept a folder of all the work he had missed. (Id. ¶ 93.)

The District held another CSE meeting on May 1, 2017 where the CSE team reviewed T.S.'s progress in all areas. (Id. ¶ 94.) The CSE noted T.S.'s areas of strength, including in reading, decoding, spelling, and some math skills. (Id. ¶ 97.) It was further noted that writing was difficult for T.S., but he was making progress. (Id. ¶ 98.) Although the parties debate which subjects he was progressing and the extent of this progress, it is clear from the record that T.S. was making slow and, at times, inconsistent progress. (DE 35 ¶ 101.)

T.S.'s speech provider reported that he was progressing, that he could speak more words, and was making progress with “wh” questions. (Id. ¶ 100.) A Physical Therapy (“PT”) evaluation was reviewed, and the PT provider stated that T.S. was making progress. (Id. ¶ 105.)...