R.B. ex rel. D.B. v.
| Decision Date | 19 May 2016 |
| Docket Number | 15cv6331 (DLC) |
| Parties | R.B. and M.L.B., individually, and on behalf of D.B., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
For the plaintiffs:
Gary S. Mayerson
Mayerson and Associates
330 West 38 Street, Suite 600
New York, NY 10018
For the defendant:
Son K. Le
New York City Law Department
100 Church Street
New York, NY 10007
R.B. and M.L.B. (collectively, the "Parents") appeal from the decision of the State Review Officer ("SRO") denying reimbursement for tuition under the Individuals with Disabilities Education Act ("IDEA") for their son, D.B. The Parents principally raise four procedural deficiencies and three substantive deficiencies in the individualized education programs ("IEP") prepared for D.B. by the New York City Department of Education (the "Department") for the 2013-2014 and 2014-2015 school years. The procedural deficiencies are that (1) the IEPs did not include required vocation and transition planning, (2) the IEPs did not include appropriate and objectively-measurable annual goals and short-term objectives, (3) the IEPs were impermissibly predetermined, and (4) the Department did not give the Parents prior written notice for the 2013-2014 school year. The substantive deficiencies are that (1) the student-to-faculty ratio proposed in both IEPs provided inadequate support to D.B., (2) the school sites recommended for D.B. were inadequate, and (3) the teaching methodology that would be used in the recommended classrooms would be inappropriate for D.B. For the reasons that follow, the decision of the SRO is affirmed and the Department's motion for summary judgment is granted.
The following facts are taken from the administrative record or are undisputed by the parties.
D.B. is a seventeen-year-old boy who is diagnosed on the autism spectrum and has significant developmental delays. Under the IDEA, D.B. is entitled to receive a free appropriate public education ("FAPE") from the Department. Alternatively, if theDepartment fails to provide a FAPE, the Parents may enroll D.B. in private school and obtain reimbursement from the Department, subject to certain restrictions. D.B. has never attended public school. He has attended the Rebecca School since the 2009-2010 school year. The Parents have sought reimbursement from the Department for every school year since 2009-2010, but have never prevailed. Notably, the Parents were unsuccessful in obtaining reimbursement for the 2011-2012 school year after both the administrative officers, the District Court, and the Second Circuit Court of Appeals found no denial of a FAPE. See R.B. v. New York City Dep't of Educ., 15 F. Supp. 3d 421 (S.D.N.Y. 2014), aff'd, 603 F. App'x 36 (2d Cir. 2015). The instant appeal concerns challenges to the IEPs for the 2013-2014 and 2014-2015 school years.
On May 9, 2013, the Committee on Special Education ("CSE") met for approximately two hours and drafted the IEP for the 2013-2014 school year. Present at this meeting were (1) D.B.'s mother, M.L.B., (2) the Department's psychologist, Rose Fochetta ("Ms. Fochetta"), (3) D.B.'s teacher from the Rebecca School, Andrea Gutzeit, (4) the Department's special education teacher, Feng Ye, (5) a representative for the Parents, Sandra Morabito, and (6) the Rebecca School Transitions Program Supervisor, Marguerite Cohen. According to the IEP, although D.B. had lowscores on a psychoeducational evaluation, he had a desire to communicate and interact with adults and to participate in class activities. D.B. generally understands what is expected of him in school but often becomes distracted by his environment or his own actions. The IEP recommended the following occupational therapy ("OT") interventions: sensory and movement breaks throughout the day, visual supports, verbal prompts, multimodal learning, small group instruction, language broken down into manageable chunks, use of high interest activities, use of a calm affect when D.B. is upset, use of graphic organizers, and additional time for D.B. to process information.
The IEP contained a section entitled "measurable postsecondary goals" which stated that the Parents wanted D.B. eventually to live and work independently, and that D.B.'s course of study would focus on his transition needs. The IEP also contained eighteen measurable annual goals, ten of which had accompanying short-term instructional objectives and/or benchmarks. A class with a ratio of 6:1:1 was recommended.1 The school recommended for D.B. for the 2013-2014 school year was P.S. 138, which is located at 225 E. 23rd Street. The Parents enrolled D.B. at the Rebecca School for the 2013-2014 schoolyear on May 6, 2013 and notified the Department of their rejection of the 2013-2014 IEP on June 17, 2013.
For the following school year, the CSE met for approximately two hours on January 17, 2014, and drafted the IEP for the 2014-2015 school year. Present at that meeting were (1) D.B.'s mother, M.L.B., (2) the Department's psychologist, Ms. Fochetta, (3) the Department's special education teacher, Feng Ye, (4) D.B.'s teacher from the Rebecca School, Andrea Gutzeit, and (5) a social worker from the Rebecca School, Joshua Noble.
This IEP contained four measurable postsecondary goals and twelve annual goals, ten of which had accompanying short-term instructional objectives and/or benchmarks. As with the prior year, a classroom with a 6:1:1 ratio was recommended for D.B. The school recommended for D.B. for the 2014-2015 school year was P.S. M226, which is located at 345 E. 15th Street. In May 2014, the Parents rejected the 2014-2015 IEP and enrolled D.B. at the Rebecca School for that school year. After rejecting the IEP, on June 20, the Parents visited the assigned school site.
On July 21, 2014, the Parents requested a hearing before an impartial hearing officer ("IHO") and sought reimbursement for the 2013-2014 and 2014-2015 school years, arguing that both IEPs denied a FAPE to D.B. The Parents raised 148 purported deficiencies in the two IEPs, twelve of which they termed "coreclaims" in their closing brief. After holding hearings from October 15 to November 19,2 the IHO found that both IEPs were procedurally and substantively inadequate, causing a deprivation of educational benefits and rising to the level of a denial of a FAPE. Specifically, the IHO held: (1) the vocational and transition recommendations for both school years were deficient, (2) the annual goals and short-term objectives for both school years were deficient and insufficiently measurable, (3) the IEPs for both school years were impermissibly predetermined, (4) the Department failed to give the Parents prior written notice for the 2013-2014 school year, (5) the recommended 6:1:1 classroom would be unduly restrictive and not likely to result in D.B.'s progress in social interactions, (6) the teaching methodology typically used in the recommended 6:1:1 classroom would not be effective for D.B., and (7) the recommended school sites for both years were not equipped to carry out the IEPs.
The IHO also found that the Rebecca School was an appropriate placement for D.B. and that the relevant equitable considerations favored reimbursement. Accordingly, the Department was ordered to reimburse the Parents for the cost of tuition at the Rebecca School for the 2013-2014 and 2014-2015 school years.
The Department appealed the decision of the IHO to an SRO. The Parents cross-appealed, arguing that the IHO should have addressed additional bases on which they claimed D.B. was denied a FAPE. The SRO reversed the decision of the IHO, and dismissed the plaintiffs' cross-appeal, finding that the IEPs for the 2013-2014 and 2014-2015 school years did not deny a FAPE to D.B. Specifically, the SRO held: (1) neither of the IEPs were impermissibly predetermined, (2) the failure to provide prior written notice for the 2013-2014 school year was a procedural violation but did not deny a FAPE to D.B., (3) the annual goals and short-term objectives for both school years were adequate, (4) the recommendation of a 6:1:1 classroom was reasonably calculated to meet D.B.'s education needs, (5) the failure to conduct a formal vocation assessment of D.B. was a procedural deficiency but did not deny a FAPE to D.B., (6) the Department was not required to specify a particular teaching methodology, and moreover, there no showing that D.B. required any particular teaching methodology, and (7) the Parents' objections to the recommended schools sites could not be considered because they were based on retrospective observations of the schools.
The Parents filed their complaint in federal court on August 11, 2015, appealing the decision of the SRO, and seekinga declaration that (1) the Department failed to offer D.B. a FAPE for the 2013-2014 and 2014-2015 schools years, (2) that D.B.'s placement at the Rebecca School for the 2013-2014 and 2014-2015 schools years was reasonably calculated to provide D.B. with meaningful education benefits, and (3) that the equities favor plaintiffs' reimbursement. The Parents sought tuition reimbursement for the 2013-2014 and 2014-2015 school years as well as leave to submit a fee application for the purposes of attorney's fees and other costs. The Department filed its answer on October 16.
On December 23, the Parents filed a motion for summary judgment on all their claims. This case was reassigned to this Court on January 14, 2016. On February 5, the Department filed a cross-motion for summary judgment, seeking affirmance of the SRO's decision and dismissal of the Parents' complaint in its entirety. The Parents' motion became fully submitted on March 8. The Department's motion became fully submitted on April 4.
The Parents' papers address many...
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