R.H. v. Board of Education Saugerties Central School District

Filing 36

MEMORANDUM-DECISION and ORDER - That plaintiff's 15 motion for summary judgment is DENIED. That defendant's 19 motion for summary judgment is GRANTED IN PART and DENIED IN PART as follows: GRANTED as it relates to plaintiff's IDEA claim, Rehabilitation Act claims, ADA claims, and state law claim. DENIED AS MOOT in all other respects. That plaintiff's complaint (Dkt. No. 1) is dismissed in its entirety. That the decision of State Review Officer Harrington is AFFIRMED to the extent that it found plaintiff's unilateral placement of C.H. was inappropriate. Signed by Senior Judge Gary L. Sharpe on 5/21/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
R.H., individually and on
behalf of C.H., a student with
a disability,
Plaintiff /
Counter Defendant,

1:16-cv-551
(GLS/CFH)

v.
BOARD OF EDUCATION
SAUGERTIES CENTRAL
SCHOOL DISTRICT,
Defendant /
Counter Claimant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF /
COUNTER DEFENDANT:
Office of Benjamin J. Hinerfeld
2 Penn Center, Suite 1020
1500 JFK Boulevard
Philadelphia, PA 19102
Gina DeCrescenzo, P.C.
180 South Broadway, Suite 302
White Plains, NY 10605
FOR THE DEFENDANT /
COUNTER CLAIMANT:
Thomas, Drohan Law Firm
2517 Route 52
Hopewell Junction, NY 12533

BENJAMIN J. HINERFELD, ESQ.

GINA M. DECRESCENZO, ESQ.

DAVID H. STRONG, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff R.H. brings this action—on behalf of himself and his son,
C.H.—against the Board of Education of the Saugerties Central School
District (hereinafter “the District”) for relief pursuant to the Individuals with
Disabilities Education Act (IDEA),1 Article 89 of the New York State
Education Law,2 Section 504 of the Rehabilitation Act,3 and Title II of the
Americans with Disabilities Act.4 (See generally Compl., Dkt. No. 1.)
Plaintiff seeks to overturn a State Review Officer’s (SRO) decision denying
him tuition reimbursement after finding that his child’s unilateral placement
at a private school was inappropriate. (Id.) The District filed a
counterclaim that seeks to overturn the portion of the SRO’s decision that
found that the educational program and services that the District’s

1

See 20 U.S.C. §§ 1400-1482.

2

See N.Y. Educ. Law §§ 4401-4410-C.

3

See 29 U.S.C. § 794.

4

See 42 U.S.C. §§ 12131-12165.

2

Committee on Special Education (CSE) recommended for C.H. during the
2014-15 school term were inappropriate. (Dkt. No. 5 ¶¶ 114-42.)
The parties have cross-moved for summary judgment. (Dkt. Nos. 1518, 19.) For the following reasons, R.H.’s motion is denied and the
District’s motion is granted in part and denied in part.
II. Background
A.

Facts5
1.

C.H.’s Background

C.H. is a teenage boy diagnosed with autism spectrum disorder and
anxiety. (Def.’s Statement of Material Facts (SMF) ¶¶ 1-3, Dkt. No. 19,
Attach 2; Pl.’s Statement of Material Facts (SMF) ¶ 4, Dkt. No. 16.) R.H.
describes his son as fearful, lonely, worrisome, and lacking social skills.
(Pl.’s SMF ¶ 6.) In third grade, C.H. enrolled in the Saugerties Central
School District. (Def.’s SMF ¶ 1.) Given C.H.’s disorder, on August 31,
2010, the District’s CSE found him eligible for special education services.
(Id. ¶ 3; Pl.’s SMF ¶ 4.)
5

Unless otherwise noted, the facts are undisputed. Although the normal inquiry as to whether
there are any disputed material facts does not apply when a party moves for summary judgment in an
IDEA action, see E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., No. 1:05–CV–972, 2008 WL
3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff’d, 361 F. App’x 156 (2d Cir. 2009), the court provides
citations to the parties’ statement of material facts, where they are properly supported by the record, for
ease of access. A complete copy of the administrative hearing record that was before the State Review
Board in Appeal 15-10 has been uploaded to the docket. (Dkt. Nos. 34, 35.)

3

C.H. attended District schools for the first half of fourth grade (201112), before being homeschooled for the remainder of fourth grade and all
of fifth grade (2012-13). (Def.’s SMF ¶¶ 8-9.) On August 16, 2013, the
District’s CSE convened to develop an Individualized Education Program
(IEP) for C.H. for the 2013-14 school year. (Id. ¶ 14.) The CSE
recommended an 8:1+16 special class in a Board of Cooperative
Educational Services (BOCES) Management Needs Program (MNP).7 (Id.
¶ 15.)
C.H.’s Developmental-Behavioral Pediatrician, Dr. Monica Meyer,
recommended against placement in a District or BOCES program. (Pl.’s
SMF ¶ 12.) R.H. thought the overall environment, bullying, disciplinary
measures, and teaching techniques associated with the MNP class added
to C.H.’s anxiety, which led to school attendance issues. (Id. ¶¶ 18-23.)
Nonetheless, C.H.’s report cards for the first and second quarters of
the 2013-14 school year show grades in the 80s and 90s in all courses.
(Def.’s SMF ¶ 28.) In certain subjects, like reading and writing, C.H. was

6

This ratio meant there were to be eight students assigned to one teacher and one
student aide. (Dkt. No. 19, Attach. 3 at 2.)
7

The 2013-14 IEP was amended in October 2013 to add individual and small group
psychological counseling as a related service, as well as additional academic goals. (Def.’s SMF ¶ 21.)

4

even performing above his grade level. (Id. ¶¶ 31-32.) However, during
his time in the MNP program, C.H. struggled to overcome bullying, (Pl.’s
SMF ¶¶ 16-17), anxiety over disciplinary measures, (id. ¶ 22), inability to
complete worksheets, (id.), and sensory sensitivities, (id. ¶ 21). C.H.’s
school attendance also began to drastically decline. (Id. ¶19-20; Def.’s
SMF ¶ 43.)
On February 20, 2014, another CSE meeting convened to address
R.H.’s concern regarding C.H.’s lack of progress in reading and
math––notwithstanding that he had advanced to a fifth-grade level in math
by this time, (Def.’s SMF ¶ 33)––and certain teaching techniques used in
the MNP class, (id. ¶ 37). On April 10, 2014, the CSE reconvened to
review C.H.’s current placement and discuss an Asperger Program
Independent Education (APIE) placement offered by BOCES. (Id. ¶ 44;
Pl.’s SMF ¶ 27.) Ultimately, the CSE recommended that C.H. receive
home instruction for the remainder of the 2013-14 school year, pending
placement in the APIE program for the following year. (Def.’s SMF ¶ 49.)
The APIE program was created specifically for students on the autism
spectrum and offered weekly counseling services that focused on social
skills, managing stress, and other challenging areas for students like C.H.
5

(Id. ¶¶ 56-62.)
2.

2014-15 IEP

On January 15 and June 4, 2014, the CSE reconvened to further
review C.H.’s placement and develop a final IEP for the 2014-15 school
year. (Id. ¶¶ 48, 54.) The IEP developed for the 2014-15 school year
recommended the following program and services for C.H.:
(1) an 8:1+1 special class in the APIE program at BOCES;
(2) services consisting of small group speech-language therapy and
individual psychological counseling;
(3) modifications consisting of light filters, to reduce the flicker and
glare of fluorescent lighting in the classroom, and computer use; and,
(4) assistive technology consisting of computer software used to
make reading and writing more manageable. (Id. ¶ 55.)
3.

The Ridge School

Eventually, R.H. determined that the C.H.’s placement was
inappropriate and enrolled him unilaterally at The Ridge School (hereinafter
“Ridge”)8 for the remainder of the 2014-15 school year. (Id. ¶ 71.)
Although Ridge was twice denied approval from the Commissioner of
8

Ridge is a private school located in Salt Point, New York. (Def.’s SMF ¶ 71.)

6

Education for special education placement, (id. ¶ 73), R.H. and Dr. Meyer
described it as a small, private school for students with high-functioning
autism who did not function well in a traditional school environment, (Pl.’s
SMF ¶¶ 32-33). In 2014-15, there were four students attending Ridge,
including C.H. (Id. ¶ 63.) Two of the students were ninth graders, one was
a sixth grader, and C.H. was the only seventh grader. (Def.’s SMF ¶ 79.)
All students were instructed together in all subjects. (Id. ¶ 89.) At Ridge,
students did not receive homework, (id. ¶ 92), were skipped over if they
declined to read in a given subject area, (id. ¶ 90), were taught using
outdated materials, (id. ¶ 86), had changing schedules during their fivehour school day, (id. ¶¶ 87-88), and were not required to make up work
that they failed to complete, (id. ¶ 91). The school did not use fluorescent
lighting or school bells in an effort to decrease anxiety. (Dkt. No. 34,
Attach. 5 at 591-92.)
Ridge employs two full-time teachers, Linda and Michael Kondor, and
five part-time teachers. (Def.’s SMF ¶¶ 72, 75.) Ms. Kondor, a special
education teacher who has worked at Ridge since 2005, characterized it as
an alternative for students suffering from school phobia and deficiencies in
focusing, communicating, language processing, and other social skills.
7

(Pl.’s SMF ¶¶ 39-40, 54-56.) She also testified that Ridge employed a
scaffolding methodology with C.H., wherein instructors started introducing
new subject matter slowly, until his competency levels increased at his
pace. (Id. ¶ 76; Dkt. No. 34, Attach. 5 at 594-95.) However, Ridge did not
develop any written education plan, behavior plan, or academic goals for
C.H. (Def.’s SMF ¶¶ 102, 104.) There was also no remedial program
created for C.H. to address his areas of deficiency. (Dkt. No. 34, Attach. 5
at 598.) Ridge responded to C.H.’s handwriting deficiencies by allowing
C.H. to use his personal tablet device to take notes. (Id. at 643-44, 66768.) Although Ms. Kondor testified that she removed students from the
group for individual instruction related to their special education needs, she
did not testify what this specifically entailed for C.H. (Id. at 614-16.) Ms.
Kondor also testified that students regularly went on field trips, which either
corresponded with class lessons or helped build their social skills. (Pl.’s
SMF ¶ 82.)
Ms. Kondor, Dr. Meyer, and R.H. all opined that C.H. made progress
at Ridge based on various observations. (Id. ¶¶ 38, 85-86, 90-91.)
4.

Administrative Review

Following C.H.’s placement at Ridge, R.H. filed a due process
8

complaint with the District. (Compl. ¶ 65.) After six days of proceedings,
the Impartial Hearing Officer (IHO) ruled in favor of R.H. (See generally
Dkt. No. 34, Attach. 8.) Specifically, the IHO concluded that the 2014-159
proposed placement:
(1) could not, at the time it was recommended, adequately detail
such essential elements as the student [to] teacher ratio; (2) did
not commit to a student profile consistent with [C.H.’s] needs; (3)
was pedagogically so indeterminate that the family lacked any
basis at the time they were required to decide about the program
on which to be able to judge whether it could meet [C.H.’s] needs;
and (4) would be offered in a setting that had already proven to be
perceived by [C.H.] as hostile and threatening.
(Id. at 56.) Additionally, the IHO determined that Ridge was an appropriate
unilateral placement. (Id. at 57-64.) The IHO based his conclusion on the
testimony of Dr. Meyer and Holly Ellison, C.H.’s consulting psychiatrist,
who wrote letters recommending the placement based on its perceived
ability to overcome C.H.’s school aversion problem, (id. at 61-62; Dkt. No.
34, Attach. 1 at 80-83, 110-12), as well as based on other testimonial
evidence demonstrating that Ridge provided an “individualized educational
9

The IHO also concluded that the 2013-14 MNP failed to provide C.H. a Free Appropriate Public
Education (FAPE) but denied compensatory education services for this time period. (Dkt. No. 34, Attach.
8 at 56, 63.) Although the District appealed the entirety of the IHO’s findings to the SRO, (id., Attach. 9
¶ 4 & at 20), the SRO determined that claims regarding the 2013-14 school year were moot, (Dkt. No. 1,
Attach. 2 at 11-12). Although R.H. now requests that the court affirm the IHO’s findings that the District
failed to offer C.H. a FAPE for the 2013-14 school year, (Compl. ¶ 103), the District’s counter claim only
seeks reversal of the SRO’s decision pertaining to the 2014-15 school year, (Dkt. No. 5 ¶¶ 115, 142). As
such, the court does not address the merits of findings pertaining to the 2013-14 school year.

9

experience . . . in a setting that is home-like and supportive,” which
addressed C.H.’s particular disability and was sensitive and responsive to
his anxiety, (Dkt. No. 34, Attach. 8 at 58-59). Moreover, the IHO found that
C.H. was making progress academically and emotionally at Ridge. (Id. at
59-60.) Finally, the IHO found that a balancing of the equities weighed in
favor of R.H.’s request for relief. (Id. at 62-63.)
Thereafter, the District appealed the decision to an SRO, who
sustained the IHO’s decision as it related to the District’s failure to provide
a Free Appropriate Public Education (FAPE) during the 2014-15 school
year, but vacated the IHO decision in part, concluding that there was
insufficient evidence in the record to conclude that Ridge provided C.H.
instruction specially designed to address his social/emotional needs, as
opposed to providing a different environment than the one in which he had
experienced anxiety. (Dkt. No. 1, Attach. 2 at 25, 27-28.) Instead, the
SRO concluded that Ridge merely provided C.H. with the types of
advantages that might be preferred by the parents of any child, disabled or
not. (Id. at 27.) Moreover, the SRO concluded that “given the very limited
amount of objective information contained in the hearing record
documenting [C.H.]’s progress, the evidence does not support the
10

conclusion that Ridge was appropriate solely based on the progress that
[C.H.] made there during the 2014-15 school year.” (Id.)
B.

Procedural History
R.H. filed the instant action on May 11, 2016, alleging that the District

failed to offer C.H. a FAPE, Ridge was an appropriate placement for C.H.,
and equitable considerations support an award of reimbursement for C.H.’s
placement at Ridge. (Compl. at ¶ 103.) R.H. also requests that this court
award him reasonable attorney’s fees and costs, (id. ¶ 105), and that the
court accept additional evidence to supplement the record before the SRO,
(id. ¶ 101). Magistrate Judge Hummel subsequently declined to consider
R.H.’s proffered additional evidence. (Dkt. No. 32.) As such, the record
before the court is the same as the administrative hearing record. (Dkt.
Nos. 34, 35.)
R.H. filed a summary judgment motion with respect to the IDEA
claims, (Dkt. Nos. 15-18), and the District filed a cross-motion for summary
judgment on all claims, (Dkt. No. 19).
III. Legal Context and Standard of Review
“The IDEA requires New York [S]tate to ‘provide disabled children
with a [FAPE].’” M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131,
11

135 (2d Cir. 2013) (quoting R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167,
174-75 (2d Cir. 2012)). As such, a school district, through a CSE, “must
produce, in writing, an [IEP] . . . that ‘describes the specially designed
instruction and services that will enable the child to meet’ stated
educational objectives and is reasonably calculated to give educational
benefits to the child.” Id. (quoting R.E., 694 F.3d at 175); see 20 U.S.C.
§ 1414(d).
“If a state fails in its obligation to provide a [FAPE] to a handicapped
child, the parents may enroll the child in a private school and seek
retroactive reimbursement for the cost of the private school from the state.”
Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 448 (2d Cir. 2015) (internal
quotation marks and citation omitted). The parent begins this process by
“fil[ing] a due process complaint with the D[epartment of Education]
seeking review of ‘any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a [FAPE] to such
child.’” A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 528 (2d Cir. 2017)
(quoting 20 U.S.C. § 1415(b)(6)(A)). The filing “‘triggers an administrative
procedure by which the board of education appoints an [IHO] who
conducts a formal hearing and fact-finding. The decision of an IHO may be
12

appealed to [an SRO], and an SRO’s decision may be challenged by filing
a civil action in state or federal court.’” Id. (quoting M.O. v. N.Y.C. Dep’t of
Educ., 793 F.3d 236, 239 (2d Cir. 2015)); see 20 U.S.C. § 1415(i)(2)(A).
The summary judgment stage in an IDEA action “is in substance an
appeal from an administrative determination.” M.H. v. N.Y.C. Dep’t of
Educ., 685 F.3d 217, 226 (2d Cir. 2012). The court’s role is to “engage in
an independent review of the administrative record and make a
determination based on a preponderance of the evidence.” Hardison v.
Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 385-86 (2d Cir.
2014) (internal quotation marks and citation omitted); see 20 U.S.C.
§ 1415(i)(2)(C)(iii). However, “[t]he role of the federal courts in reviewing
state educational decisions under the IDEA is circumscribed,” and “courts
must bear in mind the statutory context and administrative judges’ greater
institutional competence in matters of educational policy.” Hardison, 773
F.3d at 386 (internal quotation marks and citation omitted). Accordingly,
“federal courts reviewing administrative decisions must give due weight to
[state administrative] proceedings, mindful that the judiciary generally lacks
the specialized knowledge and experience necessary to resolve persistent
and difficult questions of educational policy.” M.H., 685 F.3d at 240
13

(internal quotation marks and citation omitted). Notably,“[e]xpertise in an
area speaks not only to the ability to reach the right conclusion about a
given factual situation but also the ability to discern how much evidence is
required to reach a supportable conclusion at all.” Hardison, 773 F.3d at
387.
The analysis of how much deference to afford an administrative
judge’s decision hinges
[O]n the kinds of considerations that normally determine whether
any particular judgment is persuasive, for example whether the
decision being reviewed is well-reasoned, and whether it was
based on substantially greater familiarity with the evidence and
the witnesses than the reviewing court. But the district court’s
determination of the persuasiveness of an administrative finding
must also be colored by an acute awareness of institutional
competence and role.

M.H., 685 F.3d at 244. Generally, if the IHO and SRO reach conflicting
conclusions, the court should defer to the SRO’s decision. See Hardison,
773 F.3d at 386. “Decisions involving a dispute over an appropriate
educational methodology should be afforded more deference than
determinations concerning whether there have been objective indications
of progress.” M.H., 685 F.3d at 244. Nonetheless, “[a]n assessment of
educational progress is a type of judgment for which the district court
14

should defer to the SRO’s educational experience, particularly where . . .
the district court’s decision was based solely on the record that was before
the SRO.” Matrejek v. Brewster Cent. Sch. Dist., 293 F. App’x 20, 21 (2d
Cir. 2008) (internal quotation marks and citation omitted); see M.H., 685
F.3d at 244 (“[t]he district court should afford more deference when its
review is based entirely on the same evidence as that before the SRO[.]”).
IV. Discussion
A.

IDEA Claim
1.

Legal Framework

In determining whether a disabled child’s parents are entitled to
reimbursement of expenses incurred for placement at a private school, the
court uses the Burlington/Carter test. See Florence Cty. Sch. Dist. Four v.
Carter ex. rel. Carter, 510 U.S. 7, 12-13 (1993); Sch. Comm. of Town of
Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985). If the District fails
to establish that the student’s IEP provided a FAPE, “the parents are
entitled to reimbursement if . . . they establish that their unilateral
placement was appropriate and . . . the equities favor them.” A.M., 845
F.3d at 534 (internal quotation marks and citation omitted).
“Parents seeking reimbursement for a private placement bear the
15

burden of demonstrating that the private placement is appropriate[.]” Frank
G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (citation
omitted). The private school need not meet the IDEA definition of a FAPE,
see 20 U.S.C. § 1401(9), or meet state education standards or
requirements, such as providing certified special education teachers or an
IEP. See Carter, 510 U.S. at 14; see also C.L. v. Scarsdale Union Free
Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014) (“[T]he test for the parents’
private placement is that it is appropriate . . . not that it is perfect.”) (internal
quotation marks and citation omitted). However, aside from these limited
exceptions, “the same considerations and criteria that apply in determining
whether the . . . District’s placement is appropriate should be considered
in determining the appropriateness of the parents’ placement.” Frank G.,
459 F.3d at 364. Accordingly, the ultimate issue is whether the placement
is “reasonably calculated to enable the child to receive educational
benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).
The Second Circuit has held that “for an IEP to be reasonably
calculated to enable a child to receive an educational benefit, it must be
likely to produce progress, not regression.” Frank G., 459 F.3d at 364
(internal quotation marks and citation omitted). As such, in deciding the
16

unilateral placement’s appropriateness, the court must “examine the record
for any objective evidence indicating whether the child was likely to make
progress or regress under the proposed plan.” Id. (internal quotation
marks and citation omitted). Although “[g]rades, test scores, and regular
advancement may constitute evidence that a child is receiving educational
benefit, . . . courts assessing the propriety of a unilateral placement [must]
consider the totality of the circumstances in determining whether that
placement reasonably serves a child’s individual needs.” Id. (citation
omitted). Ultimately, the parents must demonstrate that the child’s
placement provides “educational instruction specially designed to meet the
unique needs of a handicapped child, supported by such services as are
necessary to permit the child to benefit from instruction.” Rowley, 458 U.S.
at 188-89 (internal quotation marks omitted). “[C]ourts should not disturb a
state’s denial of IDEA reimbursement where . . . the chief benefits of the
chosen school are the kind of educational and environmental advantages
and amenities that might be preferred by parents of any child, disabled or
not.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d
Cir.2007).
2.

Analysis of C.H.’s Placement at Ridge
17

R.H. argues that the IHO correctly concluded that C.H. made
progress at Ridge, (Dkt. No. 18 at 10-12), the SRO imposed an improper
burden on R.H. in evaluating the appropriateness of his unilateral
placement choice, (id. at 12-17), and the SRO improperly rejected the
IHO’s credibility determinations regarding the testimony of Dr. Meyer, Ms.
Kondor, and Ms. Ellison, (id. at 17-19).
However, a review of the SRO’s decision reveals that he applied the
proper standard at the second step of the Burlington/Carter analysis and
considered the totality of circumstances in reaching his conclusion that
Ridge was inappropriate for C.H.’s unique needs. (Dkt. No. 1, Attach. 2 at
24, 26-27.) Specifically, the SRO found that R.H. failed to meet his burden
of establishing the appropriateness of his unilateral placement based on
the fact that: (1) Ridge avoided C.H.’s anxiety-related needs rather than
addressing them, (id. at 25), (2) there was insufficient evidence to
demonstrate that Ridge provided specially-designed instruction to address
C.H.’s social-emotional needs, (id. at 25-26), and (3) there was insufficient
objective evidence of C.H.’s progress at Ridge, (id. at 27). In his
evaluation, the SRO placed less weight on subjective assessments than
the IHO based on what he determined to be a lack of objective evidence to
18

support R.H.’s claims. (Compare Dkt. No. 23 at 9 with Dkt. No. 1, Attach.
2 at 26-27.) The SRO grappled with the testimony from witnesses, like Ms.
Kondor, regarding the type of needs that were addressed at Ridge, and
weighed such testimony against the totality of the evidence. (Dkt. No. 1,
Attach. 2 at 26.) He ultimately concluded that the environment at Ridge
offered the type of advantages that might be preferred by any child,
disabled or not. (Id. at 26-27.) The court gives particular deference to the
SRO’s conclusions regarding the appropriate methodology to address
individual educational deficiencies as well as to his assessment of the
sufficiency of the evidence relating to C.H.’s progress at Ridge. See
Hardison, 773 F.3d at 387; M.H., 685 F.3d at 244. Moreover, because the
record before the court is the same as the record before the SRO and the
SRO’s thorough analysis of the second prong of the Burlington/Carter test
is well-reasoned and persuasive, (Dkt. No. 1, Attach. 2 at 23-27), the court
finds further reason to defer to the SRO’s conclusion. See Hardison, 773
F.3d at 387; Matrejek, 293 F. App’x at 21-22. In sum, although R.H.
understandably prefers the IHO’s decision, the court defers to the SRO’s
educational experience given his valid reasoning and lack of documentary
evidence in the record. See Hardison, 773 F.3d at 386-87; M.H., 685 F.3d
19

at 244.
Additionally, an independent review of the administrative record
reveals that the SRO’s conclusion––that Ridge did not address C.H.’s
disability-related needs or provide specially-designed instruction to him––is
sufficiently supported by the record. For instance, the record demonstrates
that, if C.H. did not wish to read at Ridge, he was simply skipped over,
(Dkt. No. 34, Attach. 5 at 668-69), and if he did not complete assignments,
he was not required to make them up or receive any consequences, (id. at
596-97, 671-72). Furthermore, Ridge did not develop any written
behavioral plan to address C.H.’s anxiety, (id. at 677), provide visual aids
as were previously useful, (id. at 648), or maintain a set-schedule, (id. at
684). And R.H. presented no evidence regarding the academic goals or
education plan set for C.H. (Id. at 662.)
A review of the record also reveals that the SRO’s conclusion
regarding C.H.’s progress at Ridge is sound. Notably, there was scant
evidence in the record that constituted “objective evidence” of progress,
which is preferable in this Circuit. See Frank G., 459 F.3d at 364, 366.
Specifically, as the District points out
[T]he record . . . contains no report cards, progress notes[,] or
20

work samples from Ridge . . . nor any testimony concerning what
goals or issues were addressed in counseling, occupational
therapy[,] or speech-language therapy. Additionally, Ridge did
not conduct any pre[] or post-testing to gauge C.H.’s progress
(nor does it assign homework or grades based upon objective
measures)[.]
(Dkt. No. 19, Attach. 3 at 19-20 (citing Dkt. No. 34, Attach. 5 at 653-56,
699).) R.H. did not present any objective evidence in the form of written
goals of C.H.’s counseling, (Dkt. No. 34, Attach. 5 at 681), or objective
evidence from meetings between C.H.’s therapists and teachers, (id. at
628). Furthermore, there was no standardized assessment of C.H. since
his enrollment. (Compare id. at 14, with id. at 654-56.) Instead, the bulk of
the evidence of C.H.’s progress was the subjective assessment of R.H.,
Ms. Kondor, Dr. Meyer, and Ms. Ellison. (Pl.’s SMF ¶¶ 38, 85-86, 90-91,
96; Dkt. No. 34, Attach. 1 at 80-83, 110-12.)
Although C.H.’s attendance improved, (Dkt. No. 34, Attach. 5 at 604;
Dkt. No. 34, Attach. 6 at 839-40), there was also evidence of regression,
such as that C.H. had to leave group instruction weekly, (Dkt. No. 34,
Attach. 5 at 673), had an altercation with another student that caused his
removal from the classroom, (id. at 676), and refused to complete work
assignments, (id.). Accordingly, the court defers to the SRO’s

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determination that “more specific information as to the types of services
provided to [C.H.] and how those services tied into [C.H.’s] educational
progress” was needed to determine if Ridge addressed his unique needs.
(Dkt. No. 1, Attach 2. at 26) (internal quotation marks and citation
omitted).)
In conclusion, the court defers to the SRO’s well-reasoned decision.
Although the court sympathizes with C.H.’s uphill battle to receive a
meaningful education in a suitable environment, the court is reluctant to
substitute its own view of sound educational policy for the more
experienced and specialized views of the SRO. See M.H., 685 F.3d at
240; Gagliardo, 489 F.3d at 112-13. The record supports the conclusion
that R.H. failed to meet his burden of establishing the appropriateness of
C.H.’s placement at Ridge given the lack of evidence that the private
placement was specially designed to meet his unique needs. Because the
court determines that R.H. failed to meet his burden as to the
appropriateness of C.H.’s private placement, it need not address steps one
or three of the Burlington/Carter test. For these reasons, the District’s
cross-motion for summary judgment is granted with regard to plaintiff’s

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claims under the IDEA and New York Education Law,10 and R.H.’s motion
for summary judgment is denied with regard to those claims.11
B.

Remaining Claims
R.H.’s claims under Section 504 of the Rehabilitation Act and Title II

of the ADA are also summarily dismissed for the reasons stated by the
District. (Dkt. No. 19, Attach. 3 at 23-24 (citing C.L. v. Scarsdale Union
Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014); French v. N.Y. State
Dep’t of Educ., 476 F. App’x 468, 472-73 (2d Cir. 2011)).)
Plaintiffs argue that alleged deliberate inaction and
misrepresentations on the part of the District resulted in a “willful or
deliberately reckless denial of rights to both C.H. and [R.H.]”12 (Dkt. No. 22
at 17-18 (citing Dkt. No. 22, Attach. 1 ¶¶ 115, 133, 141, 144).) However,
the District has effectively rebutted such arguments in its reply. (Dkt. No.
10

Given that Article 89 of the New York Education Law tracks the IDEA closely and because
R.H. does not argue that the District violated state law specifically, but instead appears to acknowledge
that both claims rise or fall together, summary judgment in favor of the District on the Article 89 claim is
appropriate for the same reasons discussed above. See R.C. v. Bd. of Educ. of the Wappingers Cent.
Sch. Dist., No. 15-CV-5848, 2016 WL 5477747, at *12 n.17 (S.D.N.Y. Sept. 29, 2016), aff’d sub nom.,
R.C. ex rel. N.C. v. Bd. of Educ. of Wappingers Cent. Sch. Dist., 705 F. App’x 29 (2d Cir. 2017).
11

Accordingly, the District’s challenge to the portion of the SRO’s decision affirming the IHO’s
decision that the District failed to offer C.H. a FAPE for the 2014-15 school year is moot and need not be
addressed.
12

R.H. notes that “[a]lthough the SRO lacks jurisdiction to rule on claims under [the] ADA [and]
§[]504, the IHO does not.” (Dkt. No. 28 at 6 n.5.) As such, it is worth noting that the IHO found that the
District acted in good faith despite ultimately determining it denied C.H. a FAPE. (Dkt. No. 34, Attach. 8
at 57.)

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29 at 8-10.) After reviewing the summaries of the February and June 2014
CSE meetings, (Dkt. No. 34 at 47-49, 73-80), and the recording of the April
2014 CSE meeting, (P Ex. KK:13 33:40-34:16, 36:55-38:24), the court
agrees that R.H. has presented insufficient evidence to enable a
reasonable factfinder to find bad faith or gross misjudgment on the part of
the District, even assuming it failed to provide C.H. a FAPE. For this
reason, the District is entitled to summary judgment on these claims.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that plaintiff’s motion for summary judgment (Dkt. Nos.
15-18) is DENIED; and it is further,
ORDERED that defendant’s motion for summary judgment (Dkt. No.
19) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED as it relates to plaintiff’s IDEA claim, Rehabilitation
Act claims, ADA claims, and state law claim; and
DENIED AS MOOT in all other respects; and it is further,
ORDERED that plaintiffs’ complaint (Dkt. No. 1) is dismissed in its
entirety; and it is further
13

“P Ex. KK” is a compact audio disc; which contains two recordings. (Dkt. No. 35.)

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ORDERED that the decision of State Review Officer Harrington is
AFFIRMED to the extent that it found plaintiff’s unilateral placement of C.H.
was inappropriate; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
May 21, 2018
Albany, New York

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