T.C. ex rel. A.C. v.
| Decision Date | 30 March 2016 |
| Docket Number | 15-CV-3477 (VEC) |
| Parties | T.C. and A.C., individually and on behalf of A.C., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
This case is brought under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., by a parent, T.C., and child, A.C., seeking reimbursement from the New York City Department of Education ("DOE") for the child's private school tuition. As this Court has expressed previously, the Court's heart goes out to the parent, who wants the very best for her child. The Court does not begrudge the parent's desire to place her child in the school that she believes is best. But the law does not guarantee children with disabilities—or, for that matter, gifted or normally-talented children—the best education that money can buy. What it guarantees children with disabilities is a free and appropriate public education ("FAPE"). In this case, the parent unilaterally elected to enroll her child in private school. That was the parent's prerogative, but because the Plaintiffs have not demonstrated that A.C. was denied a FAPE, they have not demonstrated that the public should pay the tuition.
Plaintiffs challenge the Individualized Education Program ("IEP") that the DOE created for A.C. on multiple procedural and substantive grounds. For the 2012-13 school year, T.C. unilaterally elected to send A.C. to the Rebecca School ("Rebecca"), a private school that he had attended for two years previously. After a two-round State review process in which Plaintiffs prevailed at their first hearing and lost at their second, Plaintiffs appealed to this Court, seeking reinstatement of the first administrative decision or a de novo review. The parties cross-moved for summary judgment.1 Plaintiffs' motion for summary judgment is DENIED and the DOE's motion for summary judgment is GRANTED.
A.C. was first diagnosed with autism when he was four years old, during the 2008-09 school year. Tr. 189-90.3 After his autism diagnosis, A.C. attended the New York Institute for Special Education's Preschool for the 2008-09 school year. Tr. 190. The following school year, T.C. placed A.C. at Rebecca4 for kindergarten because she disagreed with the school district'srecommended placement. Tr. 191-92. By the 2012-13 school year, A.C. had been enrolled at Rebecca for two years.
Plaintiffs now seek direct funding for tuition owed to Rebecca for the 2012-13 school year, which was A.C.'s third year at Rebecca. At the time the school district prepared A.C.'s IEP for the 2012-13 academic year, he was eight years old, see Ex. 1, at 1,5 and he demonstrated delays in relating, communicating, and sensory processing, Ex. 2, at 1-2. A.C. spoke very quickly, often to the point of being incomprehensible. Tr. 98, 147, 158. He also had difficulty interacting with peers and required adult support to do so. Tr. 112. When A.C. became "dysregulated," meaning he felt misunderstood or did not understand or like what was being asked of him, he would scream, run out of a room, or throw himself onto the floor. Tr. 98; Ex. 2, at 1. When "regulated," however, A.C. could participate in about ninety percent of a group's activities. Ex. 2, at 1. A.C. could read over one hundred words and simple sentences and could add using numbers up to twenty. Ex. 2, at 3-4; Tr. 98-99, 136.
On May 17, 2012, a CSE met to develop an IEP for A.C. for the 2012-13 academic year. Ex. 1, at 16; Tr. 11-12. The following individuals attended the meeting: (1) a school district representative and school psychologist, Dr. Craig Czarnecki; (2) a DOE special education teacher; (3) a DOE social worker; (4) T.C.; (5) a social worker from Rebecca; (6) A.C.'s then-current teacher at Rebecca; and (7) a parent representative. Ex. 1, at 18; Tr. 7, 10-11.
To prepare for the CSE meeting, Dr. Czarnecki reviewed a psychological evaluation of A.C. dated February 27, 2009 ("2009 Evaluation Report"), A.C's IEP for the prior year, and aprogress report on A.C. prepared by Rebecca staff in December 2011 ("2011 Rebecca Progress Report"). Tr. 12. Dr. Czarnecki has never met A.C., Tr. 35, and has never been a direct service provider for autistic students, Tr. 47. During the meeting, the participants discussed the 2011 Rebecca Progress Report, A.C.'s progress, his then-current level of functioning, and his educational needs. Tr. 193. Also during the meeting, the participants discussed the school district's recommendations, including that A.C. be placed in a 6:1:1 classroom setting and that A.C. participate in standardized assessments; T.C. and the two representatives from Rebecca expressed concern about the former, and T.C. expressed concern about the latter. Tr. 45, 194-95. According to T.C., the school district responded to the concerns by explaining that the 6:1:1 setting and the standardized assessments with extended time were all the district could do for A.C. Tr. 194, 195-96.
The IEP that came out of this meeting was based entirely on: the information discussed at the CSE meeting and provided by T.C. and A.C.'s teacher at Rebecca; the 2009 Evaluation Report; and the 2011 Rebecca Progress Report. Tr. 13-20. The school district did not conduct any separate evaluations of A.C. prior to preparing the IEP or do any classroom observations. Tr. 42-43, 45; Ex. 1, at 1. The IEP indicates that A.C.'s overall cognitive functioning is "Low Average," Ex. 1, at 1, and that his reading and math skills are at a kindergarten level, Ex. 1, at 16. It also notes that A.C. "needs a large amount of sensory input throughout the day to maintain his regulation." Ex. 1, at 2.
The IEP calls for a 6:1:1 special education class in a specialized school. Ex. 1, at 3, 11; Tr. 21. The IEP recommends additional services, including speech language therapy twice per week individually and twice per week in a group of three, occupational therapy ("OT") twice per week individually and twice per week in a group of two, and counseling once per week individually and once per week in a group of two. Ex. 1, at 12. The IEP does not provide parentcounseling and training services. See Ex. 1. The IEP articulates fifteen annual goals for A.C., Ex. 1, at 4-11, and identifies strategies and tools to address his sensory needs, Ex. 1, at 3. The IEP provides that A.C. will participate in the same state and school district assessments as general education students but provides testing accommodations, including double the amount of time, a quiet room with minimal distractions, directions and questions read and reread aloud, and the recording of answers in any manner. Ex. 1, at 13-14. The "Promotion Criteria" section of the IEP, enabling the CSE to specify standard or modified criteria to promote A.C. to the next grade, is blank. Ex. 1, at 17.
The parties dispute whether T.C. ever received the IEP or Final Notice and Recommendation ("FNR") providing a placement for A.C. The DOE contends, based on an FNR dated June 6, 2012, that it mailed T.C. the FNR, which recommended placement in a 6:1:1 special class in a specialized school at P168X within P842X in the Bronx. See Ex. 3. At the IHO hearing, Dr. Czarnecki and a DOE clerical employee testified regarding the standard procedures for mailing IEPs and FNRs to establish a presumption that those documents were mailed to T.C. Tr. 25-27, 214-221. T.C., however, alleges that she never received an IEP or an FNR for the 2012-13 school year and that a district staff member informed her in October 2013 that there was nothing on file regarding a 2012-13 placement. Tr. 196-97. Nevertheless, on June 18, 2012, T.C. faxed a letter to the school district stating that she opposes the 6:1:1 recommendation made at the CSE meeting, that she has received neither the IEP nor a school placement, and that she is placing A.C. at Rebecca and will seek an impartial hearing to pursue public funding for that placement. Ex. B; Tr. 196. The school district received the letter on June 22, 2012, Ex. B, but T.C. never received a response, Tr. 198. T.C. placed A.C. at Rebecca for the 2012-13 school year. Ex. E; Tr. 198.
On August 9, 2013, T.C. filed a due process complaint, raising the following issues: (1) the school district representative at the CSE was unqualified; (2) the school district relied on insufficient evaluative data to assess A.C.'s needs, including the outdated 2009 Evaluation Report; (3) the school district failed to provide the IEP and a placement to T.C.; and (4) the IEP was insufficient to meet A.C.'s needs, especially the 6:1:1 classroom, the omission of parent training and counseling and appropriate sensory supports, the requirement that A.C. participate in standardized testing, the proposal of insufficient goals, and the failure to recommend appropriate teaching instruction. Ex. A. T.C. sought a declaratory finding that the school district failed to provide a FAPE for the 2012-13 academic year and sought direct funding and reimbursement for Rebecca tuition. Id. at 2-3.
An IHO heard the matter over three days. IHO Decision 2. Dr. Czarnecki and a DOE office clerical employee testified for the DOE. Tr. 5-77, 211-22. For T.C., three witnesses from Rebecca testified —the Director (Tina McCourt), A.C.'s classroom teacher, and a speech therapist,—and T.C. also testified. Tr. 87-210.
On May 5, 2014, the IHO ruled in favor of T.C. See generally IHO Decision. The IHO concluded that the school district failed to prove that it offered A.C. a FAPE for the 2012-13 academic year. See generally id. at 18-26. Specifically, the IHO found that A.C. was denied a FAPE on the following procedural and substantive grounds: failure to conduct a timely evaluation of A.C., including psychological and educational testing, id. at...
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