Gabel ex rel. L.G. v. Board of Educ. of Hyde Park
| Decision Date | 10 May 2005 |
| Docket Number | No. 04 CIV.510 CM.,04 CIV.510 CM. |
| Citation | 368 F.Supp.2d 313 |
| Parties | Philip GABEL and Tina Gabel on behalf of their child, L.G., a student with a disability, Plaintiffs, v. BOARD OF EDUCATION OF THE HYDE PARK CENTRAL SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Kenneth S. Ritzenberg, Albany, NY, for Plaintiffs.
Daniel Petigrow, Hopewell Junction, NY, for Defendant.
In this action brought pursuant to the Individuals with Disabilities in Education Act, 20 U.S.C. § 1400 et seq. (IDEA), the parents of L.G., a disabled student, seek reimbursement for tuition they paid for their daughter to attend the Randolph School for the 2000-2001 school year. The Impartial Hearing Officer (IHO) assigned to preside at the hearing on the Gabels' complaint concluded that plaintiffs were entitled to tuition reimbursement; that finding was subsequently overturned by the State Review Officer (SRO) assigned to the case.
For the reasons stated below, plaintiffs' motion for summary judgment on the issue of tuition reimbursement is granted, and the SRO's decision denying tuition reimbursement is overturned. The District's cross motion seeking affirmance of the SRO's decision on the merits is denied. The SRO's determination regarding his jurisdiction to consider plaintiffs' claim for the reimbursement of certain "related services" (which he awarded to the parents) must be vacated, because the SRO concluded erroneously that federal law gave plaintiffs a right to a due process hearing on this issue. However, defendant's cross motion for reinstatement of the IHO's decision dismissing the claim for related services reimbursement must be denied, because, under state law, the IHO did indeed have jurisdiction to consider that claim. The issue of "related services" is remanded to the SRO for further consideration See, e.g., Nichols v. Prudential Ins. Co. of America, 406 F.3d 98 (2d Cir.2005) (). However, for the reasons set forth below, any appeal from his administrative decision will have to be directed to the New York State Commissioner of Education.
Plaintiffs also assert a claim of discrimination against the defendant District pursuant to § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504). Because they allege more than a mere IDEA violation, defendant's motion for summary judgment dismissing that claim is denied.
L.G. was born on September 3, 1984. She has resided in the Hyde Park Central School District. She was diagnosed with a severe communication speech disorder during pre-school.
For most of her elementary school years, L.G. attended a Dutchess County BOCES-operated communication disorder program at Nassau Elementary School, located in the Spackenkill Union Free School District. She remained in that program through the end of the 1997-98 school year.
At the annual review conducted by the District's Committee on Special Education (CSE), held on June 16, 1998, it was recommended that L.G. be placed in a District-run program at the Haviland Middle School in regular sixth grade classes, with consultant teacher support for all subjects, five periods of resource room per week, and related services consisting of intensive speech/language therapy services to address articulation and language deficits, counseling and occupational therapy. In September 1998, L.G. would have been 14 years old, or about 2-3 years older than the average sixth grader.
During the 1998-99 school year, the CSE convened several times and additional evaluations were reviewed. As a result, additional services were added to L.G.'s program, including occupational therapy and oral-motor therapy.
In June 1999, Teresa Buso, L.G.'s special education teacher, administered a Woodcock-Johnson Test of Achievement to L.G. These scores were available to the CSE when it met for the annual review on July 1, 1999. At that time, the CSE recommended that L.G. continue at the Haviland Middle School for the 1999-2000 school year, but with a number of changes to her Individualized Education Plan (IEP), including: a special 12:1:1 program1 for English and Social Studies; a regular class for math and science with the services of a direct consultant teacher five days per week; and a number of related services, including: six hours per week of speech/language therapy (some individual and some group therapy); one counseling session per week; two sessions of occupational therapy per week; and monthly oral-motor speech therapy on a consultation basis. The CSE also recommended a summer program of related services, including speech/language therapy and oral-motor therapy consults.
The parents rejected the District's proposed placement of L.G. They were unhappy with their daughter's experience the prior year. Furthermore, the class proposed for her was a self-contained class comprised solely of boys with behavioral problems. Instead, they unilaterally enrolled their daughter at the Randolph School, a private school located near Wappingers Falls, New York (i.e., out of district). Randolph provides small class sizes with individualized and small group instruction for its students. Randolph is not approved by the State of New York for the provision of special education services to students with disabilities. It is, however, chartered by the New York States Board of Regents.
Plaintiffs requested an impartial hearing contesting the CSE's proposal for their daughter for the 1999-2000 school year and seeking tuition reimbursement for the expense of placing their daughter at Randolph.
The dispute was eventually compromised by the signing of a Settlement Agreement. The Settlement Agreement provided, in pertinent part:
1. The District shall pay to the Parents the sum of Eight Thousand, Seven Hundred Fifty Dollars ($8,750) in full settlement of any claims for tuition reimbursement, damages, or attorney's fees for the placement of the student for the 1999-00 school year. Such payment shall be made to the Parents within ten (10) days of the District's execution of this Agreement.
2. The District shall provide teacher training materials to the individuals who provide educational services to the Parents' child to assist in the understanding of the child's disability, how the disability impacts her access to education, and what appropriate interventions and accommodations are to be utilized to address her needs...
3. The District shall arrange and pay for a central auditory processing evaluation of the Parents' daughter.
4. The District shall provide speech therapy and oral-motor therapy services to Parents' daughter at the Randolph School for the remainder of the 1999-00 school year at a frequency and duration of ninety (90) minutes, two times per week for individual language services in a separate or integrated setting at the discretion of the therapist; sixty (60) minutes, three times per week for individual oral motor and language services in a separate location...
5. The District shall provide occupational therapy services to Parents' daughter at the Randolph School for the remainder of the 1999-00 school year...
13. The District and Parents agree that the District's Committee on Special Education shall convene to initiate the Parents' daughter's annual review meeting for the creation of the child's Individualized Education Plan for the 2000-01 school year on March 29, 2000... and shall continue such at meetings scheduled thereafter at the mutual convenience of the attendees. In advance of such meeting the District shall provide to the Parents information as to all programs that would be appropriate to consider for the child's placement for the 2000-01 school year...
16. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter of the parties' dispute and supercedes any previous agreements whether oral or in writing.
The Agreement also provides for responsibility for testing and services in connection therewith. Under settled principles of contract construction, all prior discussions are merged into the Settlement Agreement; indeed, the document itself so states, at Paragraph 16.
Pursuant to the Settlement Agreement, the District began providing L.G. with speech therapy, oral motor therapy and occupational therapy at the Randolph School. Prior to the Settlement Agreement, the District had not been providing L.G. with any of the related services that were recommended in her IEP.
The CSE met on April 12, 2000 to recommend a program for L.G. for the 2000-01 school year. A number of placements were discussed, including the District's Franklin Delano Roosevelt High School and the BOCES programs in the Arlington and Spackenkill High Schools. These were all age-appropriate placements, since L.G. would be 16 years old during the 2000-01 school year. Plaintiffs agreed to observe classes at FDR High School. However, plaintiffs demanded information about demographics and program options before they would consent to any referral to an out-of-district program.2 Plaintiffs could only observe classes at out-of-district programs after a referral was made, and the District apparently failed to provide the requested data prior to the end of the 1999-2000 school year.3 This resulted in a stalemate between plaintiffs and the District and meant that the parents could not visit any out-of-district BOCES program.4
The CSE reconvened on June 20, 2000. At that meeting, the CSE recommended that L.G. be placed in a BOCES 12:1:1 program at the Spackenkill High School. The CSE recommended that L.G. pursue an academic diploma. As of June 20, plaintiffs had not yet...
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