S.Y. v. N.Y.C. Dep't of Educ.

Decision Date28 September 2016
Docket Number15 Civ. 6277 (AT)
Citation210 F.Supp.3d 556
Parties S.Y. and R.Y., individually, and on behalf of R.Y., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION and Carmen Fariña, in her official capacity as Chancellor of the New York City Department of Education, Defendants.
CourtU.S. District Court — Southern District of New York

Michele Kule-Korgood, Law Offices of Michele Kule-Korgood, Forest Hills, NY, for Plaintiffs.

Neil Anthony Giovanatti, New York City Law Department, New York, NY, for Defendants.


ANALISA TORRES, District Judge.

S.Y. and R.Y. (together, the "Parents"), individually and on behalf of their child, R.Y., (collectively, "Plaintiffs") bring this action against Defendants, the New York City Department of Education and its Chancellor (together, the "DOE"), pursuant to the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. (2012).1 Plaintiffs seek review of the April 9, 2015 decision of New York State Review Officer Justyn P. Bates (the "SRO Op.") reversing the February 15, 2013 decision of Impartial Hearing Officer Susan M. Barbour (the "IHO Op."), which found that the DOE had failed to offer R.Y. a free appropriate public education and directed the DOE to pay for R.Y.'s private school tuition. The parties move for summary judgment. For the reasons stated below, Plaintiffs' motion is GRANTED, and the DOE's cross-motion is DENIED.


Under the IDEA, New York State must "provide disabled children with a free and appropriate public education (‘FAPE’)." R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 174–75 (2d Cir. 2012). "To ensure that qualifying children receive a FAPE, a school district must create an individualized education plan (‘IEP’) for each such child." Id. at 175 (citing 20 U.S.C. § 1414(d) ). The IEP is a written statement 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."

L.O. v. N.Y.C. Dep't of Educ., 822 F.3d 95, 102–03 (2d Cir. 2016) (quoting R.E., 694 F.3d at 175 ). "The IDEA requires that an IEP be ‘reasonably calculated to enable the child to receive educational benefits.’ " R.E., 694 F.3d at 175 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ).

In New York City, the DOE creates an IEP through a local Committee on Special Education (the "CSE"). See N.Y. Educ. Law § 4402(1)(b)(1) (McKinney, Westlaw through 2016 ch. 240). At a minimum, the CSE is composed of the student's parent, one of the student's special education teachers, a school psychologist, a school district representative, an individual who can interpret the instructional implications of evaluation results, a school physician, and a parent of another student with a disability. Id. § 4402(1)(b)(1)(a). "The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program." R.E., 694 F.3d at 175.

The IEP does not necessarily specify a particular school. See T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009). "The [DOE]'s practice is to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or FNR identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it." R.E., 694 F.3d at 191.

If a parent believes that the DOE has breached its obligations under the IDEA by failing to provide the student with a FAPE, the parent " ‘may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district’ by filing what is known as a ‘due process complaint.’ " M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 239 (2d Cir. 2015) (per curiam) (quoting Hardison v. Bd. of Educ., 773 F.3d 372, 376 (2d Cir. 2014) ). The due process complaint initiates administrative proceedings involving a hearing before an impartial hearing officer ("IHO"). R.E., 694 F.3d at 175 (citing N.Y. Educ. Law § 4404(1) ). "Either party may then appeal the case to the state review officer (‘SRO’), who may affirm or modify the IHO's order." Id. (citing N.Y. Educ. Law § 4404(2) ).

The administrative proceedings are governed by a three-pronged framework known as the Burlington /Carter test. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) ; Sch. Comm. of Town of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). As implemented by New York law, this test allocates to "the local school board ... the initial burden of establishing the validity of its plan at a due process hearing. If the board fails to carry its burden, the parents bear the burden of establishing the appropriateness of their private placement and that the equities favor them." R.E., 694 F.3d at 184–85 (footnote omitted) (citing N.Y. Educ. Law § 4404(1)(c) ). Any party aggrieved by the SRO's final administrative decision has the right to seek further review by bringing a civil action in state or federal court. Id. at 175 (citing 20 U.S.C. § 1415(i)(2)(A) ).

A. R.Y.'s 2012-2013 IEP and Placement

The factual background of this case is largely undisputed. R.Y. is a sixteen-year-old student diagnosed with autism. See Pl. Mem. 1, ECF No. 19; Def. Mem. 2, ECF No. 21; Ex. 6 at 6.2 R.Y. faces developmental impairments in visual and spatial tracking, focusing, social and language skills, and motor coordination. Tr. 137-38. In the 2011-2012 school year, when R.Y. was twelve years old, she was reportedly working at a prekindergarten level. Tr. 138. R.Y. had previously attended both public and private schools but, for the previous six years, had been attending the Rebecca School, a specialized private school. Pl. Mem. 3. The Rebecca School utilizes a methodology known as the Developmental, Individual Difference, Relationship/Floortime ("DIR") model. Id. at 2–3.

On May 31, 2012, the DOE held a meeting of the CSE in order to formulate an IEP for R.Y.'s 2012-2013 school year. Def. Mem. 2. The CSE members in attendance were R.Y.'s father ("Mr. Y."); Craig Czarnecki, Ph.D., serving as a DOE school psychologist as well as the DOE district representative; Lindsay Dalkin, a DOE special education teacher; Michelina Leone-Flick, a DOE social worker; Rebecca Lubin, R.Y.'s teacher at the Rebecca School; and Lynne Kalvin, a social worker at the Rebecca School. Id. at 2–3. In anticipation of the CSE meeting, the DOE had completed a social update evaluation of R.Y. in October 2011 and a psychoeducational evaluation in November 2011. Id. at 3. The Rebecca School submitted its own progress report in December 2011, and Dr. Czarnecki conducted a classroom observation of R.Y. in January 2012. Id.

Based on their review of these materials and the input of the CSE members, the CSE created the 2012-2013 IEP, which recommended that R.Y. be placed in a twelve-month specialized school and, further, in a special education class with six students, one special education teacher, and one paraprofessional, commonly referred to as a "6:1:1" or "6:1+1" ratio. Id. at 4; Ex. 2 at 12-13. The IEP also recommended a variety of related services, including speech-and-language therapy, occupational therapy, physical therapy, and counseling. Def. Mem. 4; Ex. 2 at 12. Finally, the IEP contained a set of goals and short-term objectives designed for R.Y.'s upcoming school year. Def. Mem. 4; Ex. 2 at 4-11.

On June 18, 2012, having reviewed the IEP's recommendations, the Parents wrote to the DOE about their concerns with the IEP and stated that they would be reenrolling R.Y. in the Rebecca School for the start of the upcoming school year. Ex. D at 1. In a final notice of recommendation ("FNR") dated that same day, the DOE informed the Parents that R.Y. would be placed in a 6:1:1 special education classroom at a specialized public school identified as P053K @ I088K ("P053K"). Ex. 3 at 1. The FNR did not identify a particular classroom at P053K. See id. The Parents visited P053K on two occasions: once on June 25 and again on July 9. See Def. Mem. 5. On July 2, 2012, the first day of the new academic year, see Ex. 2 at 1, the Parents filed a due process complaint, triggering New York's administrative review of the IEP, see Def. Mem. 5; Ex. A at 1.

B. IHO Hearing and Opinion

The assigned IHO, Susan M. Barbour, held a hearing on eight nonconsecutive dates ranging from July 16 to December 19, 2012. IHO Op. 1-2. The IHO issued her decision on February 15, 2013. Id. at 17. The Parents raised a number of procedural and substantive challenges to the IEP. In analyzing the first prong of the Burlington /Carter test, the IHO found that none of the alleged procedural deficiencies was significant enough to invalidate the IEP. Id. at 11–14. However, the IHO determined that the IEP's failure to recommend a one-to-one paraprofessional for R.Y. denied her a FAPE. Id. at 14. In particular, the IHO observed that R.Y.'s 2011-2012 IEP had recommended such a paraprofessional, and "[t]he DOE has provided no evidence indicating that the student's academic and social emotional needs has so greatly progressed as to eliminate the need for a one-to-one paraprofessional." Id. at 14–15. "To the contrary," the IHO found, "with a 6:1:1 program recommendation, considering all of the evidence, in particular the DOE's own psychological evaluation, the student's need for a one-to-one paraprofessional remains." Id. at 15.

Having found that the DOE deprived R.Y. of a FAPE for 2012-2013, the IHO turned to the second prong of the Burlington /Carter test and found that "the Rebecca [S]chool was appropriate and meets [R.Y.'s] educational needs." Id. at 16. Finally, as to the third prong, the IHO concluded that the equities favored R.Y.'s parents and...

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