M.L. et al v. East Ramapo Central School District

Filing 17

OPINION: The administrative finding was justified in denying reimbursement on equitable grounds. E.L.'s father was not simply seeking reimbursement for the expense of sending thechild to CHEIN. He was acting director of CHEIN and was seeking to promote the scope of CHEIN's business. This was sufficient grounds for denying reimbursement.Plaintiffs' motion for summary judgment is therefore denied and defendant's motion for summary judgment is granted. This opinion will resolve docket item number 7. (Signed by Judge Thomas P. Griesa on 4/2/2013) (ago)

UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK
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M.L. and S.L., on behalf of E.L.,

11-cv-9423 (TPG)
OPINION
Plaintiffs,

-againstEAST RAMAPO CENTRAL SCHOOL DISTRICT,

Defendant.
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Plaintiffs, M.L. and S.L. are the father and mother, respectively, of E.L., a 13 year old
boy with disabilities. They originally filed an action against defendant, East Ramapo School
District, alleging that defendant failed to offer their son, E.L., a Free Appropriate Public
Education (“FAPE”) for the 2010-2011 school year in violation of the Individuals with
Disabilities Act (the “IDEA”), 20 U.S.C. §§ 1400 et seq., and New York State’s
implementing laws and regulations, New York Education Law §§ 4401 et seq. and 8 NYCRR
§§ 200 et seq. The parents challenged East Ramapo’s failure to provide their child with these
statutorily imposed accommodations before an impartial hearing officer (“IHO”). Toward
that end, the IHO found that the school district failed to provide E.L. with a FAPE, and that
the parents’ unilateral placement of E.L. in a non-public school was appropriate. Yet, the

IHO also held that the balancing of the equities did not require reimbursement for the cost
of placing E.L. in a non-public institution.
The parties have completed a state administrative hearing and an administrative
appeal therefrom. With New York State administrative remedies exhausted, Plaintiffs now
seek review of those proceedings in this Court. Both parties have filed cross-motions for
summary judgment on the basis of the record produced in the state administrative
proceedings. Plaintiff seeks a reversal of the decision below and an order for reimbursement
in the amount of $32,000.00 for the 2010-2011 school year, as well as attorneys fees as
required by 20 U.S.C. § 1415(i)(3)(B)(i)(I). Defendant seeks an affirmation of the
administrative finding, which denied plaintiffs any reimbursement based upon a balancing of
the equities.
For the reasons set forth below, plaintiffs' motion is denied, and defendant’s cross
motion is granted.
BACKGROUND
E.L., the minor in this action brought by his parents on his behalf, suffers from
delayed language skills, anxiety, and obsessive compulsive disorder. Consequently, he was
classified by the East Ramapo School District as “Other Health Impaired” for purposes of
designating appropriate educational resources for his benefit. See Tr. at 323, 662-663, 824,
386. Over the course of his education, E.L.’s parents have placed him in a variety of school
environments. See Plaintiff’s Memorandum of Law at 5. Those schools were situated in the
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East Ramapo School District based upon Individualized Education Programs (“IEPs”)
designed by the school district. Id. For the 2005-2006 school year, East Ramapo officially
recommended an 8:1+2 class (8 students to 1 teacher and 2 paraprofessionals) in a public
school taught by Ms. Cathy Wisker. Id. After finding that this arrangement was unsuitable
for E.L.’s disabilities, E.L.’s parents made the decision to place him in a non-public school.
E.L. thereafter attended non-public schools from 2006-2009. Id. at 5.
On August 11, 2009, East Ramapo developed an Individualized Education Program
(“IEP”) for E.L., as required under both federal and state law. Id. That plan recommended
the same 8:1+2 class taught by Ms. Wisker that was advised for the 2005-2006 school year.
See Tr. at 295, 410. No changes were made to the plan. Id. At a meeting scheduled to
address the IEP’s status, E.L.’s parents told East Ramapo that the parties were in agreement
with respect to the class size, but rejected the composition of the class. Id. at 410. East
Ramapo, however, failed to provide E.L.’s family with an alternative placement for the 20092010 school year. Id. On the August 11, 2009, East Ramapo noted that the projected date
for the next review of E.L.’s plan (for 2010-2011) would take place June 24, 2010. Id. at 556.
In turn, E.L.’s parents chose to place E.L. in the Children’s Education Initiative
(“CHEIN” or “non-public school”), a nonprofit school for disabled children, which was in
fact established and maintained in part by E.L.’s parents and others at the beginning of that
school year. Id. a 6. They anticipated that East Ramapo would create an IEP for their child
for the 2010-2011 school year. Id. However, the district failed to take action by August 10,
2010, after the school year had already begun. Id. Consequently, E.L.’s father sent an email
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to Dr. Joel Klein, the district’s special education director, notifying the district that he had
not yet received an “Annual Review” for the 2010-2011 school year. See Email at 1. In
response, Dr. Elizabeth Cohen, the supervisor of case management and non-public school
services, told E.L.’s father that E.L.’s Annual Review would not take place until after the
school year began. See Dr. Cohen’s Email at 1. Accordingly, they signed an educational
contract with CHEIN on August 22, 2010 for E.L.’s placement during the 2010-2011 school
year. See Tr. at 405, 450, 556-557.
The district was thereafter in communication with E.L.’s parents and an
understanding was reached that E.L. would undergo a comprehensive evaluation, a critical
part of which was a speech and language evaluation scheduled to take place on September
27, 2010. See Evaluation Form. Because a Committee on Special Education (“CSE”)
meeting was scheduled for 9:00 AM on September 28, 2010, the day after these evaluations,
the parents requested an adjournment, so that they might have the evaluation results at the
meeting to discuss the next IEP. The district agreed and adjourned the meeting until
October 19, 2010. See Tr. at 468-469.
At the meeting, the district conducted the “Annual Review” that was previously
delayed and ultimately recommended that E.L. be placed with the same teacher that he was
with for the 2005-2006 and 2009-2010 school year and, yet again, in a 8:1+2 class. Id. In
addition, the district recommended that E.L. receive “related services” in the form of speech
and language therapy, occupational therapy, a bus matron, and a full-time, individual aide. Id.

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E.L.’s parents were dissatisfied with the outcome of the Annual Review and, said
“that this was going to be moving to an impartial hearing, that they were not going to be
satisfied with the program and had actually asked the chairperson to put language in the IEP
itself, stating that this would be moving to an impartial hearing.” See Hearing Transcript at
213. Moreover, they objected in writing and advised the district at the meeting that E.L.
would remain at CHEIN for the 2010-2011 school year. See Hearing Transcript at 26. E.L.’s
father said that he wanted the district to provide his child with a free and appropriate
education. Id. The IEP itself also stated that “the parents do not agree with the class
placement.” See IEP at 6. East Ramapo did not offer an alternative placement to E.L.’s
family for the 2010-2011 school year. See Plaintiff’s Memorandum of Law at 7. The meeting,
nonetheless, resulted in the generation of an Individualized Education Services Program
(“IESP”), as well as an IEP. Id. After the meeting, E.L.’s parents agreed to visit the class
proposed by East Ramapo. See Tr. at 412-413, 544-545. This apparently confirmed their
belief that the other students in the class were not socially interacting with one another or
with the teacher and were functioning at a lower academic level than son. Id.
On February 9, 2011, the parents requested an Impartial Hearing (“IH”) to obtain
funding from East Ramapo so that E.L. could attend CHEIN for the duration of the 20102011 school year. Id. The presiding officer then issued an opinion finding that East Ramapo
had failed to provide E.L. with a FAPE and that CHEIN was an appropriate placement. Id.;
see also IHO Decision at 21. But, the hearing officer denied E.L.’s parents any
reimbursement, finding that equitable considerations did not weigh in the parents’ favor. See
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Decision at 29. In his opinion, they would have sent E.L. to a non-public school “regardless
of the CSE’s recommended placement.” Id.
In coming to this conclusion, the officer made several findings of fact. Initially, he
noted that E.L.’s father, as acting director of CHEIN, met with the superintendent of the
East Ramapo School District to seek funding for the CHEIN. See Hearing Transcript at 2728. The hearing officer determined that this was consistent with the father’s intention to
expand the school’s program. Id. E.L.’s father also sought support from East Ramapo for
other students in the program. Id. Moreover, an email sent by the father to Dr. Cohen
provided no indication that the parents intended to return their child to public school, and
there was no clear record of communication between the parties that would indicate that the
parents were interested in returning their son to a public school in the district. Id. at 28. The
conversations primarily related to CHEIN and its potential relocation into the district of
East Ramapo. Id. And finally, the hearing officer determined that the contract dated August
22, 2010, signed by the parents, demonstrated that they had committed to CHEIN before
the CSE meeting with the District. Id. As a result of these findings, their claims for
reimbursement were denied. Id. at 29.
In response, E.L.’s parents then appealed to a State Review Officer (“SRO”), which
accepted the hearing officer’s findings and held that the parents had failed to satisfy their
burden of providing notice to the district. See SRO Decision at 8. Additionally, the SRO
determined that a “review of the hearing record does not compel a contrary conclusion with
regard to the impartial hearing officer’s credibility determination” relating to the parent’s
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alleged intent to send E.L. to a non-public school. rd. at 9. The SRO therefore dismissed the
appeal. rd.
E.L.'s parents now seek relief from this court, arguing that equitable considerations
require reimbursement of their child's CHErN tuition and other related services.

THE COURT'S RULING

The administrative finding was justified in denying reimbursement on equitable
grounds.
E.L.'s father was not simply seeking reimbursement for the expense of sending the
child to CHErN. He was acting director of CHErN and was seeking to promote the scope
of CHErN's business. This was sufficient grounds for denying reimbursement.
Plaintiffs' motion for summary judgment is therefore denied and defendant's motion
for summary judgment is granted.
This opinion will resolve docket item number 7.

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SO ORDERED.

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Dated: New York, New York

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April 2, 2013

Thomas P. Griesa, U.S.D.J.
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