N.Y. City Dep't of Educ. v. V. S.
| Decision Date | 29 July 2011 |
| Docket Number | 10-CV-05120 (JG) (JO) |
| Parties | NEW YORK CITY DEPARTMENT OF EDUCATION, Plaintiff, v. V.S., a minor child with a disability, and D.S., his mother and guardian, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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APPEARANCES
NEW YORK CITY LAW DEPARTMENT
100 Church Street
Room 2-195
New York, New York 10007
By: Janice L. Birnbaum
MAYERSON & ASSOCIATES
330 West 38th Street, Suite 600
New York, New York 10018
By: Gary S. Mayerson
Brianne Nicole Dotts
Tracey Spencer Walsh
The New York City Department of Education ("DOE" or "department") brings this action pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400, et seq. ("IDEIA"). The action concerns the obligations of the DOE stemming from the IDEIA's mandate to provide defendant V.S. with a free appropriate public education for the 2009-2010 school year. V.S., who has been diagnosed with autism, attended the Rebecca School, a private, for-profit school, duringthe 2008-2009 school year. In May 2009, the DOE developed an individualized education program ("IEP") for V.S., which provided for his placement in a special class for severely disabled children. The class was to be located in the building that houses PS 268, a general education school. According to D.S., V.S.'s mother, the IEP failed to offer a free appropriate public education. She therefore re-enrolled V.S. in the Rebecca School for the 2009-2010 school year and requested a hearing before an Impartial Hearing Officer ("IHO") to challenge the proposed IEP. On April 5, 2010, the IHO issued a Findings of Fact and Decision ("IHO decision"), in which she agreed with D.S. that the proposed IEP for the 2009-2010 school year did not provide V.S. with a free appropriate public education. The IHO concluded that the Rebecca School was a proper placement for V.S. and awarded D.S. a tuition reimbursement and prospective payment for the Rebecca School tuition. On May 5, 2010, the DOE appealed the IHO decision to a State Review Officer ("SRO"). In Appeal Decision No. 10-041, dated July 7, 2010 ("SRO decision"), the SRO concluded that the DOE would be liable for V.S.'s 2009-2010 tuition regardless of the appeal's outcome. He therefore declared the action moot and dismissed the DOE's appeal without ruling on the merits.
Both parties argue that the action is not moot. The DOE seeks a vacatur of the SRO's decision and a remand to the agency for a decision on the merits. In the alternative, it asks me to enter judgment on the merits in the DOE's favor. Defendants cross-move for a judgment affirming the IHO's determination on the merits. For the reasons stated below, I conclude that the present action is not moot. I decline to remand to the SRO and affirm the IHO's determination on the merits.
The IDEIA - the most recent reauthorization of the Individuals with Disabilities Education Act ("IDEA") - provides federal funds to states that provide a free appropriate public education to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A). "The 'free appropriate public education' mandated by federal law must include '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.'" Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). Special education services are administered pursuant to an individualized education program, or "a written statement for each child with a disability," that sets out the child's educational performance and goals and the services that will be provided to enable the child to meet those goals. 20 U.S.C. § 1414(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 53(2005). The IEP is developed collaboratively by the child's parents, educators and representatives of the local education agency, among others. 20 U.S.C. § 1414(d)(1)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (citing Honig v. Doe, 484 U.S. 305, 311 (1988)). A new IEP must be implemented each year. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007).
The IDEIA "does not itself articulate any specific level of educational benefits that must be provided through an IEP," Walczak, 142 F.3d at 130, but the courts have developed standards to determine what the statute requires. To provide a FAPE, an IEP must "be sufficient to confer some educational benefit upon the handicapped child,"but the statute does not require "the furnishing of every special service necessary to maximize each handicapped child's potential[.]" Rowley, 458 U.S. at 200, 199. "Rather, a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement." Cerra v. Pawling Cent. Sch. Dis., 427 F.3d 186 (2d Cir. 2005) (quotation marks omitted).
Although it does not explicitly set out substantive requirements, the IDEIA "provides a variety of 'procedural safeguards with respect to the provision of a free appropriate public education' by school districts." Mackey ex rel. Thomas M. v. Bd. of Educ, 386 F.3d 158, 160 (2d Cir. 2004) (quoting 20 U.S.C. § 1415(a)), supplemented, 112 F. App'x. 89 (2d Cir. 2004). "To meet these obligations and to implement its own policies regarding the education of disabled children, 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 (quotation marks and brackets omitted) (citing N.Y. Educ. Law § 4402(1)(b)(1)). A CSE developing a child's IEP 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. (citing N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(ww)(3)(i)).
Once an IEP is developed and proposed, a parent may challenge it before an IHO appointed by the local board of education. N.Y. Educ. Law § 4404(1); see also 20 U.S.C. § 1415(f) (). Either the parent or the school board may appeal an adverse decision by the IHO to an SRO. N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g) (). As required by the IDEIA, the SRO's decision may be challenged in either state or federal court. N.Y. Educ. Law § 4404(3); 20 U.S.C. § 1415(i)(2)(A).
In addition, a dissatisfied parent may unilaterally place her child in a private school and seek reimbursement from the state for the expense of educating the child privately. School Committee of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985); 20 U.S.C. § 1412(a)(10)(C). "In determining whether the parents are entitled to reimbursement, the Supreme Court has established a two part test: (1) was the IEP proposed by the school district inappropriate; (2) was the private placement appropriate to the child's needs." Gagliardo, 489 F.3d at 111-12 (citing Burlington, 471 U.S. at 370; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007)). A district court may also consider equitable factors in determining whether to order reimbursement for private placement. Id. at 112 (citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993)). A parent who determines that a proposed IEP is unsatisfactory and unilaterally places her child in private school usually "do[es] so at [her] own financial risk," as a parent generally cannot obtain reimbursement for a private school placement where the courts ultimately determine that the proposed IEP was appropriate. Burlington, 471 U.S. 374.
However, in some circumstances, parents are entitled to reimbursement for private school placement pending the outcome of a challenge regardless of an IEP'sadequacy. The IDEIA's "stay put" provision, 20 U.S.C. § 1415(j), provides that during the pendency of any proceedings challenging the appropriateness of a proposed IEP, "unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child[.]" This provision aims to preserve public funding for an educational placement Mackey, 386 F.3d at 163 (quoting Zvi D. v. Ambach, 649 F.2d 904, 906 (2d Cir. 1982)). Therefore, regardless of the merits of the parent's challenge to an IEP, id. at 161, a state must continue to fund the child's last agreed-upon placement unless and until a new placement is established, which occurs when (1) the parents and the state agree on a new placement, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); (2) an SRO decision "agrees with the parents that a change of placement is appropriate," Mackey, 386 F.3d at 163 (quoting 34 C.F.R. § 300.514(a), (c); 34 C.F.R. § 518(d)); (3) an administrative decision agreeing with either the parents or the state goes unappealed, 34 C.F.R. § 300.514(a); Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002); or (4) a court upholds a change in placement, Schutz, 290 F.3d at 484. Student X v. N.Y. City Dep't of Educ., No. 07-CV-2316 (NGG) (RER), 2008 WL 4890440, at *20 (E.D.N.Y. 2008).
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