F.L. ex rel. F.L. v.
| Decision Date | 08 June 2016 |
| Docket Number | 15-cv-520 (KBF) |
| Parties | F.L. and M.L., individually and on behalf of F.L., Plaintiffs, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
F.L. and M.L. have sued the New York City Department of Education ("Department") individually and on behalf of their son, F.L. (ECF No. 1.) Their complaint alleges that the Department violated both federal law, in the form of the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400 et seq., and state law, in the form of § 4404 of the New York State Education Law, by failing to provide F.L. with a free appropriate public education ("FAPE") for the 2013-2014 school year.
Plaintiffs seek a determination from the Court that the Individualized Education Program ("IEP") and other materials the Department created for F.L.'s 2013-2014 school year were procedurally and substantively deficient and were not reasonably calculated to provide F.L. with a FAPE. Plaintiffs previously presented their claims to an Impartial Hearing Officer ("IHO") and a State Review Officer ("SRO"), both of whom determined that the Department's plan for F.L. was appropriate and thus that plaintiffs were not entitled to be reimbursed for the tuition cost at the private school in which they enrolled F.L. after rejecting the Department's proposed plan. Before this Court, plaintiffs highlight five areas of claimed error: (1) absence of one-to-one instruction; (2) absence of vocational assessments and transition planning; (3) the timing and adequacy of school placement; (4) insufficiency of the Functional Behavior Assessment ("FBA") and Behavior Intervention Plan ("BIP") the Department prepared for F.L.; and (5) absence of extended day services. (ECF No. 23 at i.)
The Court's role in an IDEA case like the instant matter is an important but properly circumscribed one. In the instant case, each of the five areas of claimed error was addressed in both the IHO's decision and the SRO's decision. After carefully reviewing both decisions, as well as the administrative records that were before both officers and which provide the objective basis for deciding this case, the Court determines that deference to the state officers below is appropriate, with one important exception. On the question of one-to-one instruction, the SRO was not clear in his allocation of the burden of persuasion and thus failed to clearly determine the validity of the IEP. The Court therefore GRANTS summary judgment to the plaintiffs in part and remands this matter for further proceedings on this question, and DENIES summary judgment to defendant. (ECF Nos. 22 & 27.)
Before the passage of IDEA and its predecessor, the Education for All Handicapped Children Act of 1975, "the educational needs of millions of children with disabilities were not being fully met." 20 U.S.C. § 1400(c)(2). IDEA seeks to rectify that state of affairs by "require[ing] states receiving federal funds to provide all children with disabilities a ... FAPE." M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 238 (2d Cir. 2015) (internal quotation marks omitted). "A FAPE consists of special education and related services tailored to meet the unique needs of a particular child, which are reasonably calculated to enable the child to receive educational benefits." Id. at 238-39 (quoting Reyes ex rel. R.P. v. N.Y.C. Dep't of Educ., 760 F.3d 211, 214 (2d Cir. 2014)). IDEA ensures that all qualifying children receive a FAPE by requiring that school districts annually provide each child with an IEP, "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Id. at 239 (quoting R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)); 20 U.S.C. § 1414(d). The IEP must be likely to produce progress, and the opportunity for more than mere trivial advancement; at the same time, it is not required to furnish every special service that might maximize each handicapped child's potential. Id.
In New York, local Committees on Special Education ("CSEs") develop IEPs. Id.; N.Y. Educ. Law § 4402(1)(b)(1). A CSE includes the student's parent or parents, a teacher, a representative of the school board, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a).
If, after a CSE meeting and the resulting IEP, a parent believes that their child is not receiving a FAPE, the parent may, at their financial risk, unilaterally enroll the child in a private school and seek tuition reimbursement from the school district. M.O., 793 F.3d at 239. The parent initiates this process by filing a due process complaint (which is a statutory feature of the IDEA, not a constitutional process). 20 U.S.C. § 1412(a)(10)(C)(ii); N.Y. Educ. Law § 4404(1). The board of education the appoints an IHO, who conducts a formal hearing and fact-finding to determine (I) whether the CSE's plan and placement for the student were appropriate and, if not, (II) whether the parent's chosen private school is appropriate and (III) whether the equities favor reimbursing the parent for their costs. N.Y. Educ. Law § 4404(a). The first prong requires consideration of both whether the IEP in question was developed according to the IDEA's procedural requirements and whether the educational plan it set forth was reasonably calculated to confer educational benefits on the student. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). A substantive violation (that is, an IEP not reasonably calculated to confer educational benefits) automatically leads to a finding for the parents on prong I, but procedural violations only do so if,considered cumulatively, they impede the student's right to a FAPE. R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012).
Under New York law, the local school board bears the burden of establishing the first prong and the parents bear the burden of establishing the second and third. M.O., 793 F.3d at 243. An IHO's decision may be appealed to an SRO, and an SRO's decision may be challenged by filing a civil action in state or federal court. 20 U.S.C. §§ 1415(g)-(i); N.Y. Educ. Law 4404(2)-(3).
F.L. is a (now 18-year-old, as of the summer of 2013 15-year-old) boy diagnosed with autism who presents with significant delays in his receptive, pragmatic, and expressive language and motor skills. His autism significantly impedes his ability to learn, communicate, and generally operate in the world. (E.g., P-BB.1) He typically speaks one to three words at a time, and is learning to speak in sentences. (Tr. 192-93.)
F.L. has attended the McCarton School since 2002, when the school was founded. (Tr. 257.) McCarton is a not-for-profit school that provides students aged 3-18 who are on the autism spectrum with an integrated educational model and intensive Applied Behavior Analysis ("ABA") instruction, delivered by teachers and therapists who work one-to-one with students. (P-PP.) F.L.'s school day runs from 8:45 a.m. to 4:45 p.m., and he attends McCarton all 12 months of the year. (P-CC.)
Although F.L. has long attended McCarton, the Department has remained responsible for preparing annual IEPs for him. On January 23, 2013, the Department wrote to plaintiffs, seeking consent to test and assess F.L., which the Department had determined was "required as part of a requested reevaluation or mandated three-year evaluation." (D-10 at 1.) Plaintiffs gave their consent and asked that they receive the results; they also requested that "FBA and Assistive Technology assessments [be] done as part of the mix of evaluations." (Id. at 2.) By all accounts, the Department did not itself conduct any further evaluations of F.L. in preparation for his 2013-2014 IEP.
On April 24, 2013, F.L.'s CSE met to develop his program for the 2013-2014 school year. The meeting's participants included F.L. (the student), his mother M.L., a Department special education teacher/district representative, a Department school psychologist, and F.L.'s lead teacher, speech therapist, ABA teacher and occupational therapist from McCarton, the four of whom participated by phone. (D-6 at 26.) During the two-hour meeting, the group reviewed a number of materials, including the educational progress report, behavior support plan, occupational therapy progress report, speech and language progress report, and prescribed occupational therapy goals which the staff at McCarton had prepared for F.L. (D-14; D-15; D-16; D-17; D-18.)
Because F.L. attended school year-round, his 2013-2014 school year began on July 1, 2013; this was thus the date by which the Department had to have his IEPin effect. 20 U.S.C. § 1414(d)(2)(A). Plaintiffs received F.L.'s IEP on June 15, 2013. (P-N; D-6.)
The 25-page IEP detailed F.L.'s academic, social, physical, and management needs, identified postsecondary goals relevant to his adult life. (D-6 at 1-4.) It also listed 40 annual goals and the criteria, methodology, and frequency with which they would be assessed. (Id. at 4-19.) The IEP called for F.L. to learn in a "6:1+1" classroom, which means he would be one of six students who were being taught by one teacher, who was in turn assisted by one paraprofessional. (Id. at 20.) It also listed the occupational and speech-language therapies he would receive individually and in groups each week. (Id.) In addition, F.L. would have a dedicated crisis management paraprofessional assigned to him full time. (Id.) The IEP concluded by noting the other options considered, all of which featured higher student-to-teacher ratios and all of which were deemed less appropriate given F.L.'s cognitive, academic, and social/emotional needs. (Id. at 24.)
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