DB ex rel. AB v. N.Y.C. Dep't of Educ.

• Decision Date: 05 November 2015
• Docket Number: No. 14 Civ. 9951 (CM),14 Civ. 9951 (CM)
• Citation: 145 F.Supp.3d 230
• Parties: GB and DB, individually and on behalf of AB, Plaintiff, v. New York City Department of Education, Defendant.
• Court: U.S. District Court — Southern District of New York

145 F.Supp.3d 230

GB and DB, individually and on behalf of AB, Plaintiff,

v.New York City Department of Education, Defendant.

No. 14 Civ. 9951 (CM)

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

Signed November 5, 2015

Steven Laurence Goldstein, Steven L. Goldstein, Attorney-at-Law, New York, NY, for Plaintiff.

Lyssa M. Sampson, Lesley Berson Mbaye, New York City Law Department, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

McMahon

, District Judge.:

Plaintiffs GB and DB (the “Parents”), individually and on behalf of their son, AB, bring this action against Defendant New York City Department of Education (“DOE”), pursuant to then Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.,

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq.,

and Article 89 of the New York State Education Law, N.Y. Educ. L. §§ 4401 et seq.

The Parents are seeking review of the November 6, 2014, administrative decision of State Review Officer Kristen G. Casey (“SRO”), which substantively reversed the decision of Impartial Hearing Officer Daniel Ajello (“IHO”), who found that AB's Individualized Education Plan (“IEP”) did not provide a free appropriate public education (“FAPE”) under IDEA. The Parents challenge the SRO's decision and seek reimbursement for the cost of AB's enrollment in the Rebecca School, a private school in which the Parents unilaterally enrolled AB for the 2012–2013 school year. The parties have filed cross-motions for summary judgment.

BACKGROUND

I. Underlying Facts

AB was born on October 10, 1994 and is classified as a student with autism

. (Def. Ex. 1).¹ AB has sensory integration dysfunction and attention deficits, and he is especially sensitive to auditory and visual input. (Tr. 161–162, Tr. 215–216, Pl. Ex. M–N). When AB becomes overwhelmed, he retreats inwardly, and becomes cognitively unavailable for learning. (Tr. 162, 216, 416–417).

AB also has a seizure disorder, multiple food allergies, and Pediatric Acquired Neurological Disorder

Associated with Strep (“PANDAS”), which occurs when strep bacteria affect the brain and cause neurological dysfunction including heightened anxiety and obsessive compulsive disorder (“OCD”) type behaviors. (Pl. Ex. M). For PANDAS symptoms are treated with antibiotics, but the underlying disease cannot be cured, so any exposure to strep can cause the symptoms reemerge, possibly even more severely than the initial episode. For his seizure disorder, AB needs to be in a climate-controlled environment and to remain well-hydrated, as he is at risk for seizures when he is dehydrated or overheated. (Tr. 411–414, Ex. N). AB has not had a seizure for several years, but he continues to be at risk for having a seizure at any time. (Tr. 411–414, Ex. N).

AB has attended the Rebecca School, a private school for students with developmental delays, since 2006. (Tr. 135–136, 157, 159, 394–395). For the 2006–2007 school year the DOE did not provide AB with a school placement, and as a result, in January 2007, an IHO ordered the DOE to fund AB's placement at Rebecca for the 2006–2007 school year. (Pl. Ex. B). Subsequent impartial hearings resulted in settlements whereby the DOE paid for AB to attend Rebecca every year through the 2011–2012 school year. (TR. 397).

AB has made steady progress at Rebecca. (Pl. Ex. H, I, J, K, and L). At Rebecca he receives occupational therapy to address his sensory processing issues. (Tr. 163–164). This is administered by way of a “sensory diet,” which includes music therapy to help address his auditory sensitivities, and deep pressure to help calm him physically. (Tr. 165–167). Rebecca personnel immediately alert the Parents to any potential exposure AB might have to Strep, so that precautions may be taken to avoid a PANDAS relapse

. (Tr. 409). As a result, his PANDAS symptoms are under control. (Tr. 408). Rebecca is also climate-controlled, and personnel ensure that he remains well-hydrated. (Tr. 411–414, Ex. N).

II. AB's IEP for the 2012–2013 School Year

On February 14, 2012, the DOE's Committee on Special Education (“CSE”) convened to develop AB's IEP for the 2012–2013 school year. (Def. Ex. 1; Tr. 38). The CSE consisted of: Michelina Leone–Flick (a DOE social worker), Craig Czarnecki (a DOE school psychologist who also served as District Representative), Lili Weeks (a DOE special education teacher), Carmen Garcia (a district parent member), Joshua Rich (AB's then-current teacher at Rebecca), Andrea Albert (a Rebecca social worker), Pamela Leff (a Rebecca social worker intern), and AB's mother (GB). (Def. Ex. 1.13; Tr. 39–40). None of the DOE's participants was familiar with AB. (Tr. 103–105).

In developing AB's IEP, the CSE team reviewed and relied almost entirely on a December 2011 Interdisciplinary Transition Program Report of Progress Update from Rebecca (the “Rebecca Progress Report”). (Def. Ex. 2; Tr. 40–42, 53–55, 82, 102–103). The CSE team also listened to input from GB and from AB's Rebecca teacher, and discussed AB's IEP from the prior year. (Tr. 63, 65–66, 104–105). Leone–Flick testified that the CSE gave weight to the opinion of GB and AB's Rebecca teacher on certain IEP drafting issues, particularly the drafting of the annual goals. (Tr. 75–79, 108). For example, the CSE changed certain goals in the IEP that provided for AB to perform a certain task on “three out of five opportunities,” if AB's teacher thought “four out of five opportunities” was appropriate. (Tr. 75).

Based on the Progress Report and discussions among the CSE team, the primary recommendations that emerged from the CSE meeting were that AB (1) be placed in a 12–month school year program; (2) be placed in a special class with a 6:1:1 staffing in a District 75 specialized school; (3) receive related services, including Speech and Language Therapy (five 45–minute individual sessions per week), occupational therapy (five 45–minute individual sessions per week), and counseling (two 45–minute individual sessions per week). (Def. Ex. 1.7–1.8). The IEP additionally contained eleven annual goals and forty short-term objectives, including goals for reading, literacy, interaction with peers and adults, and daily living skills. (Def. Ex. 1.3–1.7; Tr. 56). Several of the short-term objectives used terminology associated with the particular teaching methodology used at the Rebecca School (the “DIR” methodology) that is not used and not compatible with the methodology used at DOE schools. (Tr. 208–209).

The CSE did not conduct a functional behavior assessment (“FBA”) of AB in advance of the meeting, and did not later develop a behavior intervention plan (“BIP”) for AB. (Tr. 71–72, 109). However, neither GB nor AB's Rebecca teacher suggested that a BIP was necessary. (Tr. 71–72, 109).

At the meeting, both GB and AB's Rebecca teacher expressed concern about the proposed placement, stating their belief that such a setting would not be sufficient to enable AB to learn. (Tr. 300–301, 400). The Parents also expressed concern with the substance of the goals and other information in the IEP. Generally, the Parents are concerned because most of the goals were copied directly out of the Rebecca Progress Report; the Parents believe the goals are too vague to be implemented in a new setting. (Tr. 65–69, 76–77, 80).

GB testified that she felt nothing she said at the meeting mattered, because the CSE had determined the placement to give AB prior to the meeting. (Tr. 418). However, Leone–Flick testified that the CSE had an “open mind,” and in fact 8:1:1 and 12:1:1 programs were considered for AB before a 6:1:1 program was deemed the most appropriate at the meeting. (Tr. 79–80, 105). Leone–Flick also testified that GB did not ask her to consider a CBST placement or a private school placement. (Tr. 105–106). However, GB testified that at the end of the meeting, when she was told AB was being offered a 6:1:1 placement, she asked for an approved private school placement or a placement at Rebecca instead, but was told by the district representative that he could not offer those placements. (Tr. 401).

When GB left the meeting, she was given a copy of the meeting minutes, and told she would receive the typed IEP at a later date in the mail. (Tr. 423–424). Leone–Flick testified that the IEP was typed up by Weeks sometime after the meeting, but Leone–Flick did not know exactly when. (Tr. 80, 82, 84–85, 90–94). The Parents never received the final IEP in the mail after the CSE meeting, and they eventually picked up a copy of it sometime in August or September. (Tr. 423–424, 467–468). Leone–Flick testified that, although she did not type up the IEP or even know when it was typed up, IEPs were usually mailed two to three weeks after an IEP meeting. (Tr. 85–86, 90–91, 94).

III. The Parents' Rejection of the Proposed Public School Site

On June 1, 2012, the Parents signed a contract with Rebecca for AB's re-enrollment for the twelve-month 2012–2013 school year. (Pl. Ex. O; Tr. 189, 438). The tuition for that school year was $97,700, and the Parents paid a $5,000 non-refundable deposit. (Pl. Ex. O; Tr. 189, 440–441). GB testified that despite having made this payment, if the DOE had offered AB a school and plan that was appropriate, AB would have attended the DOE placement. (Tr. 426).

On June 15, 2012, the Parents' counsel wrote a letter to the CSE asserting the IEP did not offer AB a FAPE for the 2012–2013 school year. (Pl. Ex. G). The Parents raised various procedural and substantive objections to the IEP, and indicated that they were placing AB at Rebecca for July and August 2012 and would seek tuition reimbursement and direct payment for the tuition from the DOE. (Pl. Ex. G). The Parents received no response from the DOE. (Tr. 425).

On or about June 21, 2012, the DOE sent the Parents a Final Notice of Recommendation (“FNR”) identifying P079M at the Horan School (“Horan”) as the assigned public school site to implement the 2012–2013 IEP. (Def. Ex. 5). The FNR reiterated the CSE...