F.L. v. Bd. of Educ. of the Great Neck U.F.S.D.

• Decision Date: 15 August 2017
• Docket Number: 15–cv–5916 (SJF)(GRB)
• Citation: 274 F.Supp.3d 94
• Parties: F.L., individually and on behalf of R.C.L., Plaintiffs, v. BOARD OF EDUCATION OF the GREAT NECK U.F.S.D., Defendant.
• Court: U.S. District Court — Eastern District of New York

274 F.Supp.3d 94

F.L., individually and on behalf of R.C.L., Plaintiffs,

v.BOARD OF EDUCATION OF the GREAT NECK U.F.S.D., Defendant.

15–cv–5916 (SJF)(GRB)

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

Signed August 15, 2017

Gary S. Mayerson, Maria C. McGinley, Mayerson & Associates, New York, NY, for Plaintiffs.

Laura A. Ferrugiari, Frazer & Feldman, Garden City, NY, for Defendant.

OPINION AND ORDER

FEUERSTEIN, District Judge:

Plaintiffs F.L., individually and on behalf of R.C.L. (together, "Plaintiffs"), commenced this action against Defendant Board of Education of the Great Neck U.F.S.D. ("Defendant" or the "District") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. , seeking, inter alia : (i) reversal of a June 17, 2015 Decision of New York State Review Officer Justyn Bates; and (ii) reimplementation of a March 23, 2015 Findings of Fact and Decision by Impartial Hearing Officer James McKeever, Esq. See Docket Entry ("DE") [1]. Presently before the Court are the parties' cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56. DE [30], [31]. For the reasons set forth herein, Plaintiffs' motion for summary judgment is denied and Defendant's motion for summary judgment is granted.

I. BACKGROUND

A. Relevant Facts ¹

1. The Parties and R.C.L.'s Individual Needs

Plaintiff R.C.L. was born on August 29, 1999, and, at all relevant times, was classified as having various learning disabilities including: (i) attention deficit hyperactivity disorder

("ADHD"); (ii) severe predominantly inattentive presentation; (iii) developmental coordination disorder ; (iv) severe specific learning disorder with impairment in reading; (v) severe specific learning disorder with impairment in written expression; and (vi) moderate to severe specific learning disorder with impairment in mathematics. Pls.' 56.1 Stmt. ¶¶ 1–2, 5–6. In addition to his learning disabilities, R.C.L. also suffers from: (i) auditory processing disorder, which affects his ability to integrate auditory information, and to recognize, discriminate, and process auditory messages; (ii) apraxia, which causes severe articulation difficulties; and (iii) severe oculomotor and visual processing delays in the areas of visual discrimination, visual memory, visual spatial relations, visual sequential memory, visual motor integration, visual processing speech, and laterality. Id. at ¶¶ 9–11. As a result of his learning disabilities and vision-related deficits, R.C.L. has significant difficulties with reading, mathematics, fine motor skills, pragmatic language, executive functioning, visual tracking, visual memory, auditory processing, attention, behavioral functioning, social functioning, and emotional functioning. Id. at ¶¶ 12–13. Plaintiff F.L. is R.C.L.'s father. Id. at ¶ 3. Defendant Board of Education of the Great Neck U.F.S.D. is a public authority and local education agency under the IDEA, and is therefore required to provide disabled children a free appropriate public education ("FAPE").Id. at ¶ 4. At all relevant times, R.C.L. was a student in the District eligible to receive special education programing, services, and support as provided for under the IDEA. Id. at ¶ 19.

2. R.C.L.'s Early Educational History ²

i. Preschool and Elementary School

R.C.L. attended Variety Child Learning Center in Syosset, New York from preschool through first grade, and enrolled in the District as a second grade student at John F. Kennedy Elementary School in Great Neck, New York during the 2004–05 school year. Id. at ¶¶ 20–22. Upon enrollment at John F. Kennedy Elementary School, the District classified R.C.L. as having multiple learning disabilities, placed him in a self-contained 12:1:1 special education classroom,³ and provided special education services for R.C.L. Id. at ¶¶ 22–23. As an elementary school student, R.C.L. had significant difficulties with academic progress, including difficulties in reading, writing, and mathematics. Id. at ¶ 24.

In January 2007, R.C.L. underwent psychological testing which reflected "extremely low processing speeds" and revealed that R.C.L.'s working memory deficits may lead to difficulties in following directions, retaining information long enough to process it for understanding, recalling sentences and factual information, and comprehending lengthy discourse. Id. at ¶¶ 26–27, 29. R.C.L. also had difficulty drawing inferences, creating solutions to problems, transferring and generalizing information, and solving abstract problems. Id. at ¶ 28. A psychological evaluation conducted during R.C.L.'s third grade year reflected persisting deficits in processing speed and problem solving skills. Id. at ¶¶ 30–31. During R.C.L.'s fifth grade year, R.C.L.'s parents secured Lindamood Bell ("LMB") supports and services for R.C.L. in reading and mathematics. Id. at ¶ 36. At F.L.'s request, the District performed an assistive technology ("AT") evaluation at the end of R.C.L.'s fifth grade year. Id. at ¶ 37. Although the District recommended, inter alia , "Dragon speech-to-text" software, the District initially had trouble obtaining AT for R.C.L. and provided R.C.L. with a Kindle. Id. at ¶¶ 39–42. According to Plaintiffs, when the District ultimately attempted to implement speech-to-text software in 2013, "it was less than effective because R.C.L.'s teachers apparently did not follow the steps to enable and program the device to understand R.C.L.'s significant speech production impediments." Id. at ¶ 43.

ii. Middle School

Beginning in his sixth grade year, R.C.L. attended middle school at North Middle School in Brentwood, New York, where he was again classified as having multiple learning disabilities and was placed in a 12:1:1 classroom. Id. at ¶¶ 46–48. As a sixth grade student, R.C.L. received instruction in self-contained classes for his core academic subjects, as well as speech therapy, occupational therapy, and "Wilson Reading every other day as a building-level support." Id. During the 2011–12 school year, the District conducted a comprehensive psycho-educational evaluation of R.C.L., which established that he "struggled with processing speed, fluid reasoning, visual memory, auditory working memory, visual-motor integration, learning problems, anxiety in the classroom, withdrawn behavior, impaired social skills, and delayed daily living skills." Id. at ¶¶ 49–50. Accordingly, R.C.L. was again placed in self-contained classes for all of his core academic subjects and received related services including speech therapy, occupational therapy, counseling, and building-level support of Wilson Reading every other day. Id. at ¶¶ 51–52. In April 2012, R.C.L. took the Grade 7 English Language Arts State and District-wide assessment and the Grade 7 Mathematics State and District-wide assessment, and received a score of one (1) on each examination, which is the lowest possible score. Id. at ¶¶ 55–56. Although F.L. requested that the District test R.C.L. for dyslexia

, Plaintiffs claim that "the District dismissively ... told R.C.L.'s father that R.C.L. [was] already getting all the services that he would get even if he was dyslexic." Id. at ¶¶ 53–54 (internal quotation omitted).

3. 2012–2013 School Year

On May 24, 2012, the District's Committee on Special Education (the "CSE") met for R.C.L.'s annual review and to develop an individualized education program ("IEP") for R.C.L. for the 2012–13 school year (the "May 2012 IEP"), which was projected to be implemented on September 4, 2012. Id. at ¶¶ 57, 60. The CSE classified R.C.L. as having a learning disability and recommended that he: (i) be placed in self-contained special education classes in a 12:1:1 classroom at Great Neck North High School ("Great Neck North") for his core academic subjects, including English, math, science, and social studies; (ii) attend forty (40) minutes of resource room on a daily basis in a 5:1 setting; (iii) attend thirty (30) minutes of speech and language therapy two-and-a-half (2.5) times per week in a 5:1 setting; (iv) attend one (1) individual occupational therapy session per week; (v) attend one (1) thirty (30) minute group counseling session per week in a 5:1 setting; and (vi) receive additional supports, modifications, and accommodations, including, inter alia , AT to help compensate for R.C.L.'s significant reading and writing difficulties. Id. at ¶ 58; see also Def.'s 56.1 Stmt. ¶ 19. Although not specifically identified in the May 2012 IEP as an educational program or related service, during the 2012–13 school year, R.C.L. also received "building-level support services," including: (i) individual reading instruction every other day from a Level 1 Wilson-certified special education reading teacher; and (ii) individual math services every other day in the math learning center. Pls.' 56.1 Stmt. ¶ 58; Def.'s 56.1 Stmt. ¶¶ 13, 21–22. The May 2012 IEP further stated that a Functional Behavior Analysis ("FBA") and Behavior Intervention Plan ("BIP") would be conducted in the fall of 2012. Id. Plaintiffs agreed with the outcome of the May 24, 2012 CSE meeting. Def.'s 56.1 Stmt. ¶ 23.

At F.L.'s request, the CSE met again on November 30, 2012 to monitor R.C.L.'s progress, to review R.C.L.'s FBA and BIP, and to review and revise the May 2012 IEP as necessary (the "November 2012 IEP"). Pls.' 56.1 Stmt. ¶ 61; Def.'s 56.1 Stmt. ¶¶ 24–25. At the November 30, 2012 meeting, the CSE reviewed: (i) R.C.L.'s May 2012 report card; (ii) a March 19, 2012 Annual Review Report; (iii) a March 7, 2012 Speech and Language Annual Review Report; (iv) a February 27, 2012 Occupational Therapy Annual Review Report; and (v) a February 17, 2012 Counseling Review Progress Summary. Def.'s 56.1 Stmt. ¶ 25. In the November 2012 IEP, the CSE noted that R.C.L. demonstrated progress in reading when he received accommodations and supports. Id. at ¶ 26. Although the CSE did not modify R.C.L.'s educational program in the November 2012 IEP, the CSE recommended that R.C.L. receive...