M.H. ex rel. P.H. v. N.Y.C. Dep't of Educ.

Citation282 Ed. Law Rep. 37,685 F.3d 217
Decision Date29 June 2012
Docket Number10–2418.,Docket Nos. 10–2181
PartiesM.H. and E.K. individually and collectively on behalf of P.H., Plaintiffs–Appellees, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellant. M.S. individually, M.S., collectively and on behalf of D.S., L.S., individually, L.S., collectively and on behalf of D.S., Plaintiffs–Appellants, v. New York City Department of Education, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

OPINION TEXT STARTS HERE

Julie Steiner (G. Christopher Harriss, Stephen J. McGrath, Andrew Rauchberg, of counsel, on the brief), on behalf of Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for DefendantAppellant New York City Department of Education.

Jesse Cole Cutler (Samantha Bernstein, on the brief), Skyer and Associates, L.L.P., New York, New York, for PlaintiffsAppellees M.H. and E.K on behalf of P.H.; for PlaintiffsAppellants M.S. and L.S. individually and collectively on behalf of D.S.

Before: SACK, LIVINGSTON, and LYNCH, Circuit Judges.

BACKGROUND

SACK, Circuit Judge:

Both of these appeals, which we heard in tandem, concern the proper interpretation of the Individuals with Disabilities Education Act (“IDEA”), 120 U.S.C. § 1400 et seq. They each involve unique facts which must therefore be set out in considerable detail in order to address the legal issues they raise.2 The cases both require us to address the manner in which the federal courts must go about their IDEA-mandated review of state administrative decisions.

The IDEA

Congress enacted the IDEA “to ensure that all children with disabilities have available to them a free appropriate public education ... designed to meet their unique needs ... [and] to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (concluding that a court could award private-school-tuition reimbursement to the parents of disabled children not provided a “Free Appropriate Public Education”). “The IDEA offers federal funds to states that develop plans to assure ‘all children with disabilities' [residing in each such state] a ‘free appropriate public education,’ 20 U.S.C. § 1412(a)(1)(A).” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir.2003).

“To meet [the IDEA's] requirements, a school district's program must provide ‘special education and related services[,] [20 U.S.C. § 1401(9) ], tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) (some internal quotation marks omitted); see also Grim, 346 F.3d at 379 (similar). These services “must be administered according to an ‘individualized education program’ ..., which school districts must implement each year for each student with a disability.” Id. (quoting 20 U.S.C. § 1414(d)).

An individualized education program (“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 specially designed instruction and services that will enable the child to meet those objectives.’ D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir.2006) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)), amended on other grounds,480 F.3d 138 (2d Cir.2007). Under the IDEA, for a child's IEP to be adequate, it must be [‘]likely to produce progress, not regression, and [must] ... afford[ ] the student with an opportunity greater than mere trivial advancement.’ ” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir.2009) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir.2005)). However, it need “not ... furnish every special service necessary to maximize each handicapped child's potential.” Grim, 346 F.3d at 379 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 199, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)) (brackets, ellipsis, and internal quotation marks omitted). Under an IEP, “education [must] be provided in the ‘least restrictive setting consistent with a child's needs.’ Id. (quoting Walczak, 142 F.3d at 122 (2d Cir.1998)). The IEP is [t]he centerpiece of the IDEA's educational delivery system.” D.D. ex rel. V.D., 465 F.3d at 507 (internal quotation marks omitted).

“Since New York State receives federal funds under IDEA, it is obliged to comply with the requirements of this law. To meet these obligations and to implement its own policies regarding the education of disabled children, the State has assigned responsibility for developing appropriate IEPs to local Committees on Special Education [ (‘CSEs') ], the members of which are appointed by school boards or the trustees of school districts.” Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law § 4402(1)(b)(1)). “In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Gagliardo, 489 F.3d at 107–08 (citing N.Y. Comp. Codes R. & Regs. (“NYCCRR”) tit. 8, § 200.1(ww)(3)(i)). [T]he CSE must also be mindful of the IDEA's strong preference for ‘mainstreaming,’ or educating children with disabilities [t]o the maximum extent appropriate’ alongside their non-disabled peers.” Id. at 108 (citing 20 U.S.C. § 1412(a)(5)) (second set of brackets in original).

If a New York parent “believe[s] an IEP is insufficient under the IDEA,” he or she “may challenge it in an ‘impartial due process hearing,’ 20 U.S.C. § 1415(f), before an [Impartial Hearing Officer, or ‘IHO’] appointed by the local board of education.” Grim, 346 F.3d at 379 (quoting N.Y. Educ. Law § 4404(1)). At the hearing before the IHO, “the school district has the burden of demonstrating the appropriateness of its proposed IEP.” Id. As the governing New York State statute explains:

The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.

N.Y. Educ. Law § 4404(1)(c).3 An IHO's decision may, in turn, be appealed to a State Review Officer (“SRO”), who is an officer of the State's Department of Education. Grim, 346 F.3d at 379–80.4

Generally, either party aggrieved” by the findings of the SRO “shall have the right to bring a civil action” in either state or federal court. 20 U.S.C. § 1415(i)(2)(A). When such an action is brought in federal district court, the court reviews the records of all of the prior administrative hearings and must hear additional evidence if so requested by either of the parties. Id. at § 1415(i)(2)(c). The court typically considers the propriety of the IEP on the parties' cross motions for summary judgment.

However,

a motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact. Rather, the motion serves as a pragmatic procedural mechanism for reviewinga state's compliance with the procedures set forth in [the] IDEA [in developing the specific IEP at issue] and determining whether the challenged IEP is reasonably calculated to enable the child to receive educational benefits.

Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 83 n. 3 (2d Cir.2005) (internal quotation marks omitted). “Though the parties in an IDEA action may call the procedure ‘a motion for summary judgment,’ the procedure is in substance an appeal from an administrative determination, not a summary judgment [motion].” Id. (ellipsis, brackets, and citation omitted). [B]asing its decision on the preponderance of the evidence, [the court is required to] grant such relief as the court determines is appropriate.” § 1415(i)(2)(C)(iii).

In the separate proceedings consolidated for purposes of this appeal, the parent plaintiffs assert that the school districts serving their children, having failed to provide each of them with a free appropriate public education (“FAPE”), must reimburse the parents for the costs associated with sending these children to private schools for an appropriate education. Although these cases are similar to many IDEA cases in this regard, see, e.g., Gagliardo, 489 F.3d at 106, they inevitably involve distinct facts and procedural histories.

M.H. Background

P.H., the son of M.H. and E.K., was born on October 11, 2001. He is autistic. During the 2006–07 school year, when P.H., was of pre-school age, he attended a mainstream preschool. Pursuant to a mandate of the Committee on Preschool Special Education (the “CPSE”) of the New York State Education Department, he received Special Education Itinerant Teacher (“SEIT”) services on a one-to-one (“1:1”) basis. The SEIT worked one-on-one with P.H. throughout the school day at P.H.'s home. Plaintiffs' 56.1 Statement ¶¶ 2–3, M.H. v. N.Y.C. Dep't of Educ., 712 F.Supp.2d 125 (S.D.N.Y.2010) (No. 09 Civ. 3657), ECF No. 13 (“Pls. 56.1 Stmt.); Defendants' 56.1 Response ¶¶ 2–3, M.H. v. N.Y.C. Dep't of Educ., 712 F.Supp.2d 125 (S.D.N.Y.2010) (No. 09 Civ. 3657), ECF No. 19 (“Def.'s 56.1 Resp.). Pursuant to the CPSE mandate, P.H.'s SEITs were trained in Applied Behavior Analysis (“ABA”) 5 and provided at least 35 hours weekly of services using that approach. Pls.' 56.1 Stmt. ¶¶ 2–3; Def.'s 56.1 Resp. ¶¶ 2–3.

In addition, P.H. received several related...

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