M.N v. N.Y. City Dep't Of Educ.
| Decision Date | 25 March 2010 |
| Docket Number | No. 09 Civ. 20(RJS).,09 Civ. 20(RJS). |
| Citation | 700 F.Supp.2d 356 |
| Parties | M.N. and H.N., on behalf of J.N., Plaintiffs,v.NEW YORK CITY DEPARTMENT OF EDUCATION, REGION 9 (DISTRICT 2), Defendant. |
| Court | U.S. District Court — Southern District of New York |
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Gary S. Mayerson, Mayerson and Associates, New York, NY, for Plaintiffs.
Janice Casey Silverberg, Janice Louise Birnbaum, New York City Law Depart., Office of The Corporation Counsel, Bronx, NY, for Defendant.
Plaintiffs M.N. and H.N., on behalf of their minor child, J.N., bring this action pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”)1 against Defendant New York City Department of Education (“DOE”). Plaintiffs have moved for modified de novo review of the August 14, 2008 administrative decision of Impartial Hearing Officer Ellen Fluhr Thomas and the November 26, 2008 decision of State Review Officer Paul F. Kelly regarding the adequacy of J.N.'s individualized education program for the 2007-2008 school year. The DOE has cross-moved for summary judgment. For the reasons that follow, Plaintiffs' motion is denied, and Defendant's motion for summary judgment is granted.
The IDEIA requires states receiving federal funds to provide children with disabilities a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A). Under the IDEIA, a free appropriate public education (“FAPE”) must provide “special education and related services tailored to meet the unique needs of a particular child” that are “ ‘reasonably calculated to enable the child to receive educational benefits.’ ” 2 Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).
The special education and related services required by the IDEIA are provided to students pursuant to an individualized education program (“IEP”), which school districts must provide annually. 20 U.S.C. § 1414(d). The IEP is a written program of instruction 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.” Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IEP is developed by a “team” consisting of the child's parents, teachers, representatives of the local educational agency, and, where appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). In New York, the IEP team is called the Committee on Special Education (“CSE”). See N.Y. Educ. Law § 4402(1)(b)(1).
The IDEIA also provides “procedural safeguards” to ensure that students with disabilities receive a FAPE. 20 U.S.C. § 1415(a). Specifically, the IDEIA requires that states provide parents with the opportunity to present complaints “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” Id. § 1415(b)(6)(A). New York State has implemented a two-tiered system of administrative review. N.Y. Educ. Law § 4404. Under the first tier, parents dissatisfied with a proposed IEP may have it reviewed by an impartial hearing officer (“IHO”). N.Y. Educ. Law § 4404(1). Following the decision of the IHO, an aggrieved party may appeal to a state review officer (“SRO”). Id. § 4404(2). After exhausting this two-step administrative process, any party still aggrieved may bring a civil action challenging the decision in federal or state court. 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3). Pursuant to the IDEIA's “stay put” provision, parents have the right to keep their child in his current educational placement during the pendency of these proceedings. 20 U.S.C. § 1415(j); see also Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir.2004) (discussing IDEIA's “stay put” provision).
The following facts are taken from the administrative record and the exhibits submitted by the parties.3 J.N., a child with autism, was born in January 2002. In September 2005, J.N. began attending the Gramercy School, where he received special education services through the Committee on Preschool Special Education (“CPSE”).4 (IHO Ex. P at 1.) 5
On September 19, 2006, the CPSE convened to formulate J.N.'s IEP for the 2006-2007 school year. (IHO Ex. D at 1.) The resultant IEP recommended that J.N. be placed in a special class with an 8:1:2 ratio of students to teachers to aides. ( Id.) The IEP further provided for twelve hours per week of special education itinerant teacher (“SEIT”) services, three hours per week of occupational therapy, and one hour per week of physical therapy.6 ( Id.)
By letter dated May 4, 2007, J.N.'s parents learned that, pursuant to a lottery, J.N. was being offered a seat at the New York Center for Autism Charter School (the “Charter School”) and could begin attending classes at the start of the 2007-2008 school year. (IHO Ex. G.) The Charter School is a state-approved public school with 28 students, all of whom are classified with autism or pervasive developmental disorder. (Tr. at 29-30.) The Charter School employs the ABA model and provides a 4:1:3 student to teacher to aide ratio for each class. (Tr. at 30-31.) The Charter School does not, however, offer after-school related services such as speech therapy and occupational therapy. (Tr. at 73-74, 234.)
On May 8, 2007, prior to Plaintiffs formally accepting the seat at the Charter School, the CSE convened in order to develop J.N.'s IEP for the 2007-2008 school year. (IHO Ex. B.) At the meeting, J.N.'s parents informed the school district that J.N. had been accepted into the Charter School. Because of an administrative error, however, the CSE was unable to recommend the Charter School as J.N.'s placement in the IEP.7 (Tr. at 253.) Nevertheless, the CSE formulated an IEP that recommended that J.N. be placed in a specialized class on a twelve-month basis with a 6:1:1 student to teacher to aide ratio. (IHO Ex. B at 1.) The IEP further recommended the related services of individual speech and language therapy (two-and-a-half hours per week), occupational therapy (two-and-a-half hours per week), and physical therapy (thirty minutes per week). ( Id.) The IEP did not recommend the continuation of SEIT services, as those services are only provided for preschool students. N.Y. Educ. Law § 4410(1).
On May 16, 2007, J.N.'s parents formally accepted the seat at the Charter School. (IHO Ex. G.) By letter dated June 10, 2007, the parents notified the DOE that they would be placing their child in the Charter School. (IHO Ex. F.) Because the Charter School did not offer the after-school related services recommended by the May 2007 IEP, Plaintiffs, on July 27, 2007, filed a due process complaint seeking to have those services provided privately at the DOE's expense. (IHO Ex. A.)
The impartial hearing commenced on September 26, 2007. (Tr. at 1.) At the hearing, the parties stipulated that, pursuant to the IDEIA's “stay put” provision, J.N. was entitled to continue receiving, at Defendant's expense, the SEIT and related services that were set forth in the September 2006 IEP throughout the pendency of the action.8 (Tr. at 7-8.) Without taking testimony from any witnesses, the parties agreed to adjourn the hearing and to argue the merits of the case at a future date. (Tr. at 9.)
On January 31, 2008, the CSE reconvened to revise J.N.'s IEP to reflect his attendance at the Charter School. (IHO Ex. 1 at 1.) At this meeting, the CSE determined that the Charter School program, which embedded related services within its curriculum, was meeting all of the student's educational needs. (Tr. at 61-62.) Accordingly, it terminated the SEIT and related services that had been recommended in the May 2007 IEP. (IHO Ex. 1 at 30.)
On April 8, 2008, the impartial hearing resumed to determine whether J.N.'s placement at the Charter School without SEIT and related services deprived J.N. of a FAPE.9 (Tr. at 12.)
On August 14, 2008, after hearing testimony from five witnesses and reviewing the documentary evidence submitted by the parties, the IHO concluded that J.N.'s placement at the Charter School, without related services, provided J.N. with a FAPE. (IHO Decision at 8-9.) This finding was based largely on testimony from Jamie Pagliaro, the Charter School's executive director. ( Id.) Pagliaro testified that the Charter School employs a needs-driven approach, where each student has an individualized curriculum that embeds ABA strategies into every activity throughout the school day. (Tr. at 32, 61-62, 85.) Pagliaro acknowledged that many of the students received related services in an extra-curricular environment but expressed skepticism as to the educational necessity of such services:
[T]here was some early autism research that suggested forty hours a week was a magical number, so I think many parents made the case that they get thirty hours a week of service at school, and that they are entitled to an additional ten hours a week of service.
(Tr. at 82.) Pagliaro stated that many parents depend on extra-curricular related services not because they furnish an educational benefit, but rather because they provide “structured time for their kids outside of the school day,” something that can be difficult to find given the “level of challenge these children present.” (Tr. at 82-83.)
Pagliaro further testified that J.N. has made “huge progress” since enrolling at the Charter School and stressed that, in his opinion, extra-curricular related services are not necessary to help J.N. benefit from special education. (Tr. at 69, 71.)
The IHO also cited the testimony of Julia Fisher, the Charter School's Director of Education. Fisher testified that J.N. has made “vast...
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