P.K. ex rel. S.K. v. New York City Dep't of Educ.

Citation277 Ed. Law Rep. 941,819 F.Supp.2d 90
Decision Date15 August 2011
Docket NumberNo. 09 CV 1472(SJ)(SMG).,09 CV 1472(SJ)(SMG).
PartiesP.K. and T.K. on behalf of S.K., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION (REGION 4), Defendant.
CourtU.S. District Court — Eastern District of New York


Mayerson & Associates, by: Gary S. Mayerson, Tracey Spencer Walsh, New York, NY, for Plaintiffs.

The New York City Law Department, by: Lesley Berson Mbaye, New York, NY, for Defendant.


JOHNSON, Senior District Judge:

P.K. and T.K. (Plaintiffs) on behalf of their daughter, S.K., filed suit against the New York City Department of Education, Region 4 (Defendant or “the Department”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), to challenge the denial of certain educational benefits. Before the Court are the parties' cross-motions for summary judgment and Defendant's motion to strike Plaintiff's supplemental affidavit, which were referred to Chief Magistrate Judge Steven M. Gold for a Report and Recommendation (“Report”).

On March 17, 2011, Magistrate Judge Gold issued a Report recommending that this Court: (1) grant Plaintiffs' motion for summary judgment; (2) deny Defendant's motion for summary judgment; (3) grant Defendant's motion to strike; and (4) award full reimbursement for the cost of tuition at Manhattan Children's Center (“MCC”) for the 20082009 school year. (Report at 1–2 & n. 3, 32–33 (Docket Entry (“DE”) No. 41).) The parties timely filed objections. ( See DE Nos. 46, 47, 48.) After a de novo review of the record, the Court adopts the expansive and well-reasoned Report in its entirety.1


The facts of the case are described in detail in the Report. ( See Report at 2–5.) To summarize, in 2005, S.K., then two years old, was evaluated by the Department's Early Intervention Program and began to receive speech therapy. In May 2006, S.K. was diagnosed with severe autism. She began receiving speech therapy and applied behavioral analysis (“ABA”) services as determined by the Department's Committee on Preschool Education (“CPSE”) in July 2006.

The CPSE created a final Individualized Education Program (“the preschool IEP”) for S.K. in January 2008, in which it recommended a preschool class with a ratio of eight students to one teacher, home ABA therapy, and weekly one-on-one speech and occupational therapy sessions. The speech and language therapy sessions were necessary because of S.K.'s “significant delays” in expressive language and speech comprehension.

In March 2008, a Committee on Special Education (“CSE”) convened a meeting, which S.K.'s mother attended; shortly thereafter, a kindergarten IEP (“the kindergarten IEP”) was created for S.K. Like the preschool IEP, the kindergarten IEP recommended one-on-one occupational therapy sessions. However, unlike the preschool IEP, the kindergarten IEP recommended a six-to-one student-to-teacher ratio for S.K.'s class in a specialized year-round public school and three-to-one speech therapy sessions, and eliminated home ABA therapy. The IEP noted that while S.K. had made substantial progress with an ABA therapist, she continued to have significant speech delays.

In May 2008, Plaintiffs filed a request for a due process hearing, raising procedural and substantive challenges to the kindergarten IEP, In June 2008, the Department's Final Notice of Recommendation offered placement at a full-year special education class at P.S. 151 for the 20082009 school year. Plaintiffs sent a letter to the Department rejecting the placement based on their previous visits to the school, finding that the placement did not appropriately meet S.K.'s needs. After investigating alternatives, Plaintiffs decided that MCC, a special education school for children with autism, was appropriate for S.K. During the 20082009 school year, S.K. attended MCC and received, inter alia, ABA therapy.

Pursuant to 20 U.S.C. § 1415(f), an Impartial Hearing Officer (“IHO”) presided over due process hearings in July and September 2008. The IHO found that the Department denied S.K. a free and appropriate public education (“FAPE”), see 20 U.S.C. § 1401(9). Specifically, the IHO determined that: (1) the kindergarten IEP was deficient because the Department failed to develop a functional behavioral assessment (“FBA”) and behavioral intervention plan (“BIP”) to address S.K.'s interfering behaviors; (2) the kindergarten IEP did not comply with 8 N.Y.C.R.R. § 200.13 because it failed to provide sufficient speech therapy and did not offer any parent counseling and training; and (3) the Department failed to offer any methods for accurately measuring S.K.'s progress in meeting her goals. The IHO also found that MCC could provide an appropriate educational program to meet S.K.'s needs, and that equitable consideration supported Plaintiffs. As a result, the IHO ordered the Department to pay tuition at MCC.2

Defendant appealed the IHO decision and the matter was reviewed by a Department State Review Officer (“SRO”). See N.Y. Educ. L. § 4404. The SRO annulled the IHO decision and determined that the Department offered S.K. a FAPE for the 20082009 school year. Specifically, the SRO found that: (1) the kindergarten IEP was not deficient because there is no need for an FBA or BIP, as S.K.'s teachers could manage her interfering behaviors; (2) the proposed public school placement would have met the speech therapy and parent training requirements of 8 N.Y.C.R.R. § 200.13; and (3) any deficiency in the kindergarten IEP with respect to measuring progress towards goals did not deny S.K. a FAPE.3

Plaintiffs then filed the instant action seeking reversal of the IHO's decision and tuition reimbursement, which permits the Court to consider both the administrative record and additional evidence “at the request of a party,” 20 U.S.C. § 1415(i)(2)(C)(ii). The parties cross-moved for summary judgment.4 ( See DE Nos. 7, 20.) Defendant also moved to strike a supplemental affidavit that Plaintiffs filed, in which Plaintiffs contend that Defendant's violation of the 1998 Jose P. consent decree is an additional basis for an award in their favor. ( See DE No. 30.)

The parties presented limited oral argument to the Court in July 2010. After the Court's referral, Magistrate Judge Gold heard extensive oral argument and ordered supplemental briefing. ( See Transcript dated Jan. 21, 2011 (DE No. 34).)


A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within 14 days of service of the recommendation, any party may file written objections to the magistrate's report. See id.

If either party objects to the magistrate judge's recommendations, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See id.; see also Fed.R.Civ.P. 72(b)(3); United States v. Tortora, 30 F.3d 334, 337 (2d Cir.1994). A de novo determination entails an independent review of all objections and responses to the magistrate's findings and recommendations. See, e.g., Tortora, 30 F.3d at 337–38; cf. Bristol–Myers Squibb Co. v. McNeil–P.P.C. Inc., 973 F.2d 1033, 1045 (2d Cir.1992).

The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's Order. See 28 U.S.C. § 636(b)(1); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

As the Report correctly notes, in an IDEA case, the Court determines “whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed.” (Report at 6) (citing S.W. v. New York City Dep't of Educ., 646 F.Supp.2d 346, 352 n. 1 (S.D.N.Y.2009).) The Court engages in “an independent review of the administrative record,” but “such review is ‘is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.’ Gagliardo v. Arlington Central Sch. Dist., 489 F.3d 105, 112–13 (2d Cir.2007) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).

Under IDEA's statutory framework, parents who are dissatisfied with a school district's placement may unilaterally place their child in a private school and then seek retroactive tuition reimbursement from the local school district. M.P.G. ex rel. J.P. v. New York City Dep't of Educ., No. 08 Civ. 8051(TPG), 2010 WL 3398256, at *2 (S.D.N.Y. Aug. 27, 2010) (citing 20 U.S.C. § 1412(a)(10)(C)). Under the “ BurlingtonCarter ” test, reimbursement is appropriate when (1) the school district has provided an “inadequate or inappropriate” placement; (2) the parents' selected program is appropriate, such that the private program meets the student's special education needs; and (3) the equities favor the parents. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369–70, 105 S.Ct. 1996, 85 L.Ed.2d 385, (1985); Florence Cnty. Sch. Dist. Four v. Carter. 510 U.S. 7, 12–13, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).

The Report's Findings and Recommendations

After exhaustively reviewing the administrative record, Magistrate Judge Gold affirms in part and rejects in part the SRO's decision. As to Prong I of the BurlingtonCarter test for reimbursement, Magistrate Judge Gold defers to the SRO's determinations that the Department was not...

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