M.H v. N.Y. City Dep't Of Educ.

• Decision Date: 10 May 2010
• Docket Number: No. 09 Civ. 3657(LAP).,09 Civ. 3657(LAP).
• Citation: 712 F.Supp.2d 125
• Parties: M.H. and E.K., individually and collectively on behalf of P.H., Plaintiffs,v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
• Court: U.S. District Court — Southern District of New York

712 F.Supp.2d 125

M.H. and E.K., individually and collectively on behalf of P.H., Plaintiffs,v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 09 Civ. 3657(LAP).

United States District Court S.D. New York.

May 10, 2010.

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Jesse Cole Cutler, Skyer, Castro, Foley & Gersten, New York, NY, for Plaintiffs.

Andrew James Rauchberg, New York City Law Department, New York, NY, for Defendant.

OPINION AND ORDER

LORETTA A. PRESKA, Chief Judge.

Plaintiffs M.H. and E.K. (collectively “Plaintiffs” or “the Parents”) bring this action against the New York City Department of Education (the “DOE”) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2006) (the “IDEA”), challenging the DOE'S placement of their son as both procedurally and substantively inappropriate and seeking reimbursement of his private-school tuition. The parties have completed a state administrative hearing and an administrative appeal therefrom, and Plaintiffs now seek review of those proceedings in this Court. The parties have filed cross-motions for summary judgment solely on the basis of the record produced in the state administrative proceedings. For the reasons set forth below, Plaintiffs' motion is GRANTED, and the DOE'S motion is DENIED.

I. STATUTORY FRAMEWORK

The facts herein are analyzed in the context of the IDEA and the federal and New York State regulations that implement that statute. “Under the IDEA, states receiving federal funds are required to provide ‘all children with disabilities' a ‘free appropriate public education [ (‘FAPE’) ].' ” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); ( Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). “To meet these requirements, a school district's program must provide ‘special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.’ ” Id. (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (internal quotation marks omitted)). “Such services must be administered according to an [Individualized Education Plan (‘IEP’) ], which school districts must implement annually.” Id. The IEP is “[t]he centerpiece of the IDEA'S educational delivery system.” D.D. ex rel. V.D. v. N.Y. City Bd. of Ed., 465 F.3d 503, 507 (2d Cir.2006). It 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.’ ” Id. at 508 (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). “The IEP must provide ‘special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.’ ” A.D. & M.D. ex rel. E.D. v. Bd. of Ed., 690 F.Supp.2d 193, 197 (S.D.N.Y.2010) (quoting Gagliardo, 489 F.3d at 107). Substantively, the IEP 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).

New York “has assigned responsibility for developing appropriate IEPs to local Committees on Special Education (‘CSE’), the members of which are appointed by school boards or the trustees of school districts.” Gagliardo, 489 F.3d at 107 (quoting Walczak, 142 F.3d at 123). “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.” Id. at 107-08. “[T]he CSE must also be mindful of the IDEA'S strong preference for ‘mainstreaming,’ or educating children with disabilities to the maximum extent appropriate alongside their non-disabled peers.” Id. at 108.

“New York parents who disagree with their child's IEP may challenge it in an ‘impartial due process hearing’ before an [impartial hearing officer (‘IHO’) ] appointed by the local board of education.” Id. (citations omitted). The IHO's decision may be appealed to a State Review Officer (“SRO”), “and the SRO's decision in turn may be challenged in either state or federal court.” Id. The district court may “receive the records of the administrative proceedings” and also “hear additional evidence.” 20 U.S.C. § 1415(i)(2)(C). It conducts a “modified de novo” review of the administrative proceedings M.N. v. N.Y. City Dep't of Educ., 700 F.Supp.2d 356, at 363-64, No. 09 Civ. 20, 2010 WL 1244555, at *4 (S.D.N.Y. Mar. 25, 2010), and must base its determination “on the preponderance of the evidence,” § 1415(i)(2)(C). The court has “broad authority to grant ‘appropriate’ relief, including reimbursement for the cost of private special education when a school district fails to provide a FAPE.” Forest Grove Sch. Dist. v. T.A., --- U.S. ----, 129 S.Ct. 2484, 2492, 174 L.Ed.2d 168 (2009); see Sch. Comm. of Burlington v. Dep't of Ed. of Mass., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (holding that IDEA authorizes reimbursement).

II. FACTUAL BACKGROUNDA. Introduction

The following facts and allegations are drawn from the witness testimony and documentary evidence submitted to the IHO over eight days between January 30, 2008 and September 5, 2008. P.H., the son of M.H. and E.K., is a boy who was classified by the DOE's CSE as having autism. (Pls' 56.1 Stmt. ¶ 1; DOE's 56.1 Resp. ¶ 1.) ¹ In the year prior to the events at issue, and pursuant to a mandate of the DOE's Committee on Preschool Special Education (“CPSE”), P.H. received Special Education Itinerant Teacher (“SEIT”) services in a one-to-one (“1:1”) student-teacher ratio in addition to his mainstream preschool enrollment. (Pls' 56.1 Stmt. ¶¶ 2-3; DOE's 56.1 Resp. ¶¶ 2-3.) The CPSE mandated that P.H.'s SEITs be trained in and provide at least 35 hours per week of services using Applied Behavior Analysis (“ABA”) (Pls' 56.1 Stmt. ¶¶ 2-3; DOE's 56.1 Resp. ¶¶ 2-3), an education methodology that “highlights the development and generalization of speech and language, social skills, functional academics, [and] prevocational and daily living kills,” ² A.B.A. Methodologies-Methodologies-New York City-Department of Education, http:// schools. nyc. gov/ Offices/ District75/ Departments/ Autism/ Methodologies/ abametho dologies. htm (last visited May 3, 2010); (Pls' 56.1 Stmt. ¶ 3; DOE's 56.1 Resp. ¶ 3). ³ Pursuant to the mandate, P.H. also received several related services each week: five sixty-minute sessions of speech therapy; three sixty-minute sessions of occupational therapy; and two sixty-minute sessions of physical therapy. (Pls' 56.1 Stmt. ¶ 4; DOE's 56.1 Resp. ¶ 4.)

B. The CSE Meeting and the IEP

On April 17, 2007, pursuant to the IDEA, the DOE's CSE convened a team to formulate an Individualized Education Program (“IEP”) for P.H.'s 2007-08 school year. ( See DOE's 56.1. Stmt. ¶ 2; Pls' 56.1 Resp. ¶ 2.) ⁴ The CSE team members included Giselle Jordan, who was a DOE representative, school psychologist, and the leader of the meeting; P.H.'s SEIT; a DOE social worker; a general-education teacher; a special-education teacher; P.H.'s parents; an additional parent member; and the director of P.H.'s preschool. (Pls' 56.1 Stmt. ¶ 6; DOE's 56.1 Resp. ¶ 6.) As of the meeting, Jordan had been a school psychologist with the CSE for approximately three years and had worked as a psychologist for approximately twenty-one years before that. (Hr'g Tr. 26:9-27:16.) ⁵ She had no training in either ABA or TEACCH, another special-education methodology.⁶ ( Id. at 174:15-175:21.) As the DOE representative and CSE team leader, Jordan was ultimately responsible for preparing P.H.'s IEP. ( See id. at 32:4-11; Finding of Fact and Decision, Case No. 113216, at 15 (Oct. 2, 2008) [hereinafter “IHO Decision”].) The parents provided the team with certain documents to consider in developing the IEP: a psycho-educational evaluation and addendum prepared by Dr. David Salsberg, the director of pediatric psychology and neuropsychology at New York University Medical Center (Hr'g Tr. 571:15-17); progress reports from P.H.'s speech therapist, occupational therapist, and physical therapist; an educational progress report from the SEIT; a social history update; a classroom observation report; and a teacher report. (Pls' 56.1 Stmt. ¶ 7; DOE's 56.1 Resp. ¶ 7.) Jordan stated that she had solicited and reviewed all of these documents for the purpose of creating P.H.'s IEP. ( See Hr'g Tr. 30:3-31:22.)

These documents generally support three conclusions: (1) the parents and P.H.'s SEIT were satisfied with P.H.'s preschool placement and wanted him to continue in substantially the same manner; (2) P.H.'s other evaluators, including the social worker from the DOE, were less optimistic about his performance in that setting; and (3) all agreed that P.H. needed more individualized educational support. In preschool, P.H. had been “receiv[ing] 12[-]month educational instruction [in a mainstream preschool class,] occupational therapy, physical therapy, speech/language therapy, and SEIT support.” (District Ex. 13 at 1.) ⁷ The SEIT, who provided in-school support on a 1:1 basis (IHO Decision 13), reported that P.H. had made “substantial progress throughout the year” and recommended that P.H. “be continually exposed to typical peers.” ( See District Ex. 11 at 1.) The parents similarly reported that they were pleased with P.H.'s educational program. ( See District Ex. 14 at 2 (“[P.H.] is doing very well in his ... mainstream placement and is flourishing with typical peers. Parents would like to...