L.B. ex rel. J.B. v.
| Decision Date | 27 September 2016 |
| Docket Number | 15-CV-03176 (AJN) |
| Parties | L.B. and F.B., individually and on behalf of J.B., Plaintiffs, v. The New York City Department of Education, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs L.B. and F.B. (the "Plaintiffs" or "Parents") bring this action, individually and on behalf of their minor son, J.B., against the New York City Department of Education (the "Defendant" or "DOE"), seeking review of a December 22, 2014 decision by State Review Officer Carol H. Hague (the "SRO"), which reversed a July 26, 2012 decision by Impartial Hearing Officer Michael S. Lazan (the "IHO") and found that the DOE complied with its obligations under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq., in developing a sufficient individualized education plan ("IEP") for J.B. and offering him a free appropriate public education ("FAPE") for the 2010-11 school year. Plaintiffs challenge the SRO's decision and seek reimbursement for the cost of enrolling J.B. for the school year at the Cooke Center for Learning and Development ("Cooke"), a private educational institution which Plaintiffs unilaterally selected after rejecting the school placement recommended by the DOE. As is common in IDEA actions, the parties have cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiffs' motion is DENIED and Defendant's motion is GRANTED.
Congress enacted the IDEA "to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A).1 Under the IDEA, states have "an affirmative obligation to provide a basic floor of opportunity for all children with disabilities," which means "an education likely to produce progress, not regression, and one that affords the student with an opportunity greater than mere trivial advancement." T.K. v. N.Y.C. Dep't of Educ., 810 F.3d 869, 875 (2d Cir. 2016) (internal quotation marks and brackets omitted). "The 'centerpiece' of the IDEA and its principal mechanism for achieving this goal is the IEP." Id. "An IEP is '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 specifically designed instruction and services that will enable the child to meet those objectives.'" N.M. v. N.Y.C. Dep't of Educ., 15-cv-1781, 2016 WL 796857, at *1 (S.D.N.Y. Feb. 24, 2016) (quoting R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)).
The State of New York "has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ('CSEs')." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217,224 (2d Cir. 2012) (internal quotation marks and brackets omitted); see also N.Y. Educ. Law § 4402(1)(b)(1). "CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others." R.E., 694 F.3d at 175; see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). In developing the IEP, the CSE is required to "examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E., 694 F.3d at 175. "To comply with its substantive obligations under the IDEA, a school district must provide 'an IEP that is likely to produce progress, not regression.'" N.M., 2016 WL 796857, at *1 (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)). "If an IEP is substantively deficient, parents may reject the CSE's plan and seek reimbursement from the state for private school tuition, subject to certain conditions." R.B. v. N.Y.C. Dep't of Educ., 15-cv-6331, 2016 WL 2939167, at *4 (citing T.K., 810 F.3d at 875; 20 U.S.C. § 1412(a)(10)(C)(ii)). Parents may also seek reimbursement if an IEP is procedurally deficient, but only if the deficiencies "significantly impede the parents' participation rights, impede the child's right to a FAPE, or cause a deprivation of educational benefits." T.K., 810 F.3d at 875 (internal quotation marks and brackets omitted).
"To begin the tuition-reimbursement process, a parent must first file a due-process complaint which triggers an administrative review process." N.K. v. N.Y.C. Dep't of Educ., 961 F. Supp. 2d 577, 580 (S.D.N.Y. 2013) (internal quotation marks omitted) (citing 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)). If the school fails to remedy any purported deficiencies set forth in the due process complaint within thirty days, then, according to IDEA mandate, the state provides an impartial due process hearing before an IHO. See R.E., 694 F.3dat 175, 187-88 (citing 20 U.S.C. § 1415(f)(1)(B)). Under New York's Education Law § 4404(1)(c) and the so-called "Burlington/Carter" test, R.E., 694 F.3d at 184-85 (internal footnote omitted); see also Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12-16 (1993); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 369-70 (1985).
The decision of an IHO "can then be appealed to an SRO of the New York State Education Department." M.W. v. N.Y.C. Dep't of Educ., 869 F. Supp. 2d 320, 329 (E.D.N.Y. 2012) (internal brackets omitted), aff'd 725 F.3d 131 (2d Cir. 2013). "Only after exhaustion of these procedures has an aggrieved party the right to file a suit in a federal or state court." Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (citing 20 U.S.C. § 1415(i)(2)(A)).
J.B. has a history of academic, speech and language, and attentional deficits that dates back to his early childhood. DOE Ex. 8 (Social History Update, dated April 21, 2009) at 2.2 Verbal difficulties and delays were identified while J.B. was attending a regular education private pre-school program, and he began to receive thrice weekly speech and language therapy through the DOE's Committee on Pre-School Special Education in 1998, at the age of three. Id. J.B. attended first grade at a DOE public school, receiving related services through the DOE,including speech and language therapy and occupational therapy ("OT"). Id. Beginning in second grade, he was enrolled for several years at the School for Language and Communication Development, a special private school designed for students with language difficulties, where he continued to receive related services. Id. at 3. At the age of eight, J.B. was diagnosed with Attention Deficit Hyperactivity Disorder. Id. In 2005, the Parents rejected J.B.'s DOE-recommended placement at the Hallen School, a state-approved special education school in Westchester, New York, and instead placed him at one of Cooke's school sites. Id. J.B. remained at Cooke, and transitioned to one of its middle school sites in September 2008. Id.
During the 2009-2010 school year, J.B. attended ninth grade at a Cooke facility. See Impartial Hearing Transcript ("Tr.") at 161, 255; DOE Ex. 9 (Cooke Progress Report, dated November 2009) at 1. At the time, J.B. presented with cognitive deficits across multiple domains. Tr. at 256. He had particular difficulties with, among other things, working memory, speech and language processing, verbal and perceptual reasoning, verbal and reading comprehension, and problem-solving, and he reflected multi-year delays in his general academic development, pragmatic language usage, and social-emotional functioning. Id. at 256-57, 276-77, 310; DOE Ex. 7 (Psycho-Educational Evaluation, dated February 26, 2008) at 5. J.B.'s IEP for the 2009-10 school year noted that J.B. "present[ed] with cognitive delays, academic delays, and speech-language processing delays which preclude[d] participation in the general education environment," and recommended that he be placed in a community high school within a special class with a 15:1 student-teacher ratio because "anything less restrictive would be inappropriate" to address his academic functioning. Parents' Ex. D (2009-10 IEP) at 1, 20-22. It further recommended that J.B. receive several related services, including counseling (one forty-minute session per week in a group of three); OT (one forty-minute session per week in a group of two);one-on-one speech and language therapy (one forty-minute session per week); and group-based speech and language therapy (one forty-minute session per week). Id. at 22. The IEP also recommended that J.B. participate in the DOE's regular-length school year rather than in a twelve-month school year. Id. at 1.
Pursuant to a Notice of IEP Meeting dated December 22, 2009, a CSE convened on January 28, 2010 to conduct J.B.'s annual review and develop an IEP for the 2010-11 school year, during which J.B. would turn sixteen. See DOE Ex. 5 (Notice of IEP Meeting) at 1; DOE Ex. 3 (2010-11 IEP) at 1-2; Tr. at 159. The meeting was chaired by Jacqueline Giurato, a special education teacher who also served as the CSE's district representative. Tr. at 160. Also present were Nancy Levine, a school psychologist; Gloria Gonzales, who served as the CSE's parent member; and J.B.'s mother, L.B. Id. at 160, 481; DOE Ex. 3 (IEP) at 2; DOE Ex. 4 (CSE Meeting Minutes) ...
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