R.E. v. N.Y. City Dep't of Educ.

• Decision Date: 15 March 2011
• Docket Number: No. 10 Civ. 3176.,10 Civ. 3176.
• Parties: R.E. and M.E., individually and on behalf of J.E., Plaintiffs,v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
• Court: U.S. District Court — Southern District of New York

785 F.Supp.2d 28

271 Ed. Law Rep. 825

R.E. and M.E., individually and on behalf of J.E., Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 10 Civ. 3176.

United States District Court, S.D. New York.

March 15, 2011.

Mayerson & Associates, by: Gary S. Mayerson, Esq., New York, NY, for Plaintiffs.Michael A. Cardozo, Corporation Counsel of the City of New York, by: Lesley Berson, Esq., New York, NY, for Defendants.

OPINION

SWEET, District Judge.

The plaintiffs R.E. and M.E., on their own behalf and that of their son J.E. (“Plaintiff” or the “Student”) (collectively, the “Plaintiffs”), have moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment granting reimbursement for J.E.'s educational program costs and reversing the decision of the State Review Officer (“SRO”). The defendant Department of Education of the City of New York (“DOE” or the “Defendant”) has cross-moved under the same rule for summary judgment dismissing Plaintiffs' complaint.

At issue is the adequacy of an Individualized Education Program (“IEP”) offered by the DOE to J.E. and his family, to provide a Free Appropriate Public Education (“FAPE”) for J.E. under the Individuals with Disabilities Education Improvement Act (“IDEIA”). The IEP was determined to be inadequate by an Impartial Hearing Officer (“IHO”), a decision that was appealed by the DOE and subsequently annulled by the SRO. These issues are difficult, highly individualized and procedurally complicated, as indicated by the challenging concepts and assorted acronyms. Their correct resolution appears critical to J.E. and his parents. Based on the facts and conclusions set forth below, the motion of the Plaintiffs is granted, and the cross-motion of the DOE is denied.

Prior Proceedings

Plaintiffs filed their complaint on April 14, 2010 seeking reimbursement for the expense of J.E.'s placement in the McCarton School for the 2008–2009 school year and the reversal of the decision of the SRO.

Plaintiffs' motion for summary judgment granting the relief sought in the complaint and the DOE cross-motion for summary judgment dismissing the complaint were heard on October 27, 2010.

The Facts

The facts have been set forth in Plaintiffs' Local Rule 56.1 Statement of Material Facts, Defendant's Local Civil Rule 56.1 Statement of Undisputed Facts, and Defendant's Response to Plaintiffs' Statement of Material Facts, and are not disputed except as noted below.

Plaintiff J.E. was born on August 31, 1999 and Plaintiffs R.E. and M.E. are his father and mother.

At all relevant times, J.E. has been and continues to be a “child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified as a student with autism, as that term is defined by 20 U.S.C. § 1401(a)(1).

DOE is the local educational agency in the City of New York (“City”) and is responsible for making a FAPE available to any child with disabilities between the ages of 3 and 21 who resides in the City, including J.E.

J.E. has attended the McCarton School since the 2001–2002 school year.

On May 21, 2008, the Committee on Special Education (“CSE”) convened to formulate an IEP for J.E. and to make recommendations for the 2008–2009 school year. The CSE team comprised the Student's father, a DOE school psychologist, a DOE special education teacher, a parent member, the head teacher from the McCarton School, the Student's speech-language pathologist and occupational therapist from the the McCarton School, and the director of the McCarton School. J.E.'s father attended the CSE team meeting.

The DOE considered the following documents as part of J.E.'s May 21, 2008 IEP meeting: (1) the McCarton School's Educational Progress Report; (b) the McCarton School's Speech and Language Progress Report; (c) the McCarton School's Occupational Therapy Progress Report; and (d) a DOE special education teacher's observation of J.E. at the McCarton School. The DOE did not create any evaluations or reports of J.E. on its own. No one assessed J.E. to see whether he could learn in a group setting or with a methodology other than Applied Behavioral Analyses (“ABA”) such as Treatment and Education of Autism and Related Communication Handicapped Children (“TEACCH”). The last psychological test conducted by the DOE was in April 2007.

Plaintiffs submitted all documents requested by DOE and did not refuse to attend any meeting convened by DOE, nor did Plaintiffs refuse to agree to any observation or assessment of J.E. requested by DOE.

The McCarton School personnel cooperated with DOE, reporting that “[w]e [met] with them.... We share[d] our IEP with them. We share[d] all of our progress reports with them, and the Behavior Intervention Plan.” It is disputed, however, whether the Behavioral Intervention Plan (“BIP”) was provided to use for J.E.

J.E.'s McCarton School teachers informed DOE that J.E. exhibits interfering behaviors, including self-stimulatory behaviors such as scripting, escape behaviors, and impulsivity.

The Commissioner's Regulations require that a proper Functional Behavior Assessment (“FBA”) include “the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors, and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probably consequences that serve to maintain it.” N.Y. Comp. Codes R. & Regs. (“NYCRR”), tit. 8, § 200.1(r).

The Commissioner's Regulations state that “the FBA shall, as appropriate, be based on multiple sources of data.... The FBA shall not be based solely on the student's history of presenting problem behaviors.” 8 NYCRR § 200.22(a)(2).

The Commissioner's Regulations state that “the FBA shall provide a baseline of the student's problem behaviors with regard to frequency, duration, intensity and/or latency across activities, settings, people and times of the day, and include the information required in section 200.1(r) of this part in sufficient detail to form the basis for a behavioral intervention plan for the student that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors, and an assessment of student preferences for reinforcement.” 8 NYCRR § 200.22(a)(3).

Xen Xen Guan (“Ms. Guan”) developed the FBA upon which the DOE's BIP was based. Whether Ms. Guan has training specific to conducting evaluations for children with autism is contested. Ms. Guan did not observe, or even request to observe, J.E. to develop this FBA. Ms. Guan did not review any data, nor did she ask for any data from the McCarton School. The elements of the FBA were agreed upon at the meeting and the FBA was developed and written after J.E.'s May 21, 2008 IEP meeting.

A plan was not developed to transition J.E. from his 1:1 placement to the DOE's proposed placement. Ms. Guan admitted that transitioning J.E. from the McCarton School to the proposed program would create significant anxiety for J.E. and the DOE did not address this concern in IEP or BIP. According to the DOE, no federal or state law requires a school district to include such a plan on a student's IEP when the student is moving from one elementary school to another.

The McCarton School Education Progress Report, which was considered by the IEP team, provides an analysis of J.E.'s then-current educational status and progress. It states throughout J.E.'s continued need for 1:1 teaching instruction to make progress. “He requires a structured one-to-one environment to learn, with continuous positive reinforcement, redirection and adult prompting to remain focused and state on task.... Even with 1:1 support, he often requires repetition of questions being asked.... Continued treatment using a 1:1 model is strongly recommended to increase [J.E.'s] abilities and is necessary to help him develop attentional and behavioral controls.” According to the DOE, the Report did not indicate that the 1:1 support had to be provided by a teacher.

The McCarton School's Speech and Language Progress Report recommended that J.E. “continue to receive speech and language therapy five times per week for 60–minute sessions within the classroom. An additional three afterschool sessions per week are recommended to facilitate carryover and generalization of skill[s] acquired in school.”

The McCarton School's Occupational Therapy Progress Report recommended that J.E. continue to receive five 45–minute sessions per week at a 1:1 ratio.

The DOE Classroom Observation conducted by Ms. Carol Schaechter gives a description of J.E. working on a 1:1 activity with a teacher. There is no mention of J.E. working in a group. Ms. Schaechter also noted that “behaviorally, [J.E.] often seems sluggish, and tends to slump over in his seat and close his eyes. He cries and stomps his feet when his regular schedule is disrupted and becomes anxious over any change of routine or schedule.”

Dr. Feldman, the educational director at the McCarton School, testified that it would be “impossible” for J.E. to make meaningful progress in a 6:1:1 classroom setting. No one at J.E.'s IEP meeting disputed that J.E. required 1:1 instruction.¹

All of J.E.'s then-current teachers and reports recommended a 1:1 placement for J.E. The McCarton School reports and teachers indicated that J.E. was educated in a classroom with five other students. The Educational Progress Report recommended that J.E. continue to receive individualized education with 1:1 “staff support.” The CSE team considered all the McCarton School reports and recommendations, and determined that J.E.'s educational and behavioral needs could be appropriately addressed in a 6:1:1 classroom with a dedicated 1:1 behavior management paraprofessional.

Ms. Guan stated that a 1:1 paraprofessional is not the same as a 1:1 teacher under certain circumstances. The...