P.F. et al v. The Board of Education of the Bedford Central School District
Filing
17
OPINION & ORDER re: 7 MOTION for Summary Judgment filed by S.F., P.F. For the reasons set forth above, plaintiffs' motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate the motions at ECF No. 7 and to terminate this action. (As further set forth in this Order.) (Signed by Judge Katherine B. Forrest on 3/25/2016) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
P.F. and S.F., individually and on behalf of :
J.F.,
:
Plaintiffs-Appellants, :
:
-v:
:
Board of Education of the Bedford Central :
School District,
:
Defendant-Appellee. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 25, 2016
15-cv-507 (KBF)
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
On January 23, 2015, plaintiffs-appellants P.F. and S.F. (“plaintiffs” or
“parents”) filed this action on behalf of their minor child J.F. (“J.F” or “student”)
pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§
1400 et seq. Plaintiffs seek review of the October 15, 2014 administrative decision
of State Review Officer (“SRO”) Carol H. Hauge that denied tuition reimbursement
for the student’s attendance at a private school during the 2013-2014 school year.
The SRO’s decision reversed a July 12, 2014 decision of Impartial Hearing Officer
(“IHO”) Theresa R. Joyner.
On July 31, 2015, plaintiffs moved for summary judgment. (ECF No. 7.) On
September 18, 2015, defendant-appellee the Board of Education of the Bedford
Central School District (“defendant” or “the District”) opposed. (ECF No. 14.)
These motion became fully briefed on October 8, 2015. On October 22, 2015, the
action was transferred from the Hon. Kenneth M. Karas to the undersigned.
For the reasons set forth below, plaintiffs’ motion for summary judgment is
GRANTED.
I.
BACKGROUND
A.
The Student
J.F., who was nine years old during the 2013-14 school year, has multiple
disabilities, including global dyspraxia, severe apraxia of speech, and attention
deficit hyperactive disorder (ADHD). As a result, she is, inter alia, largely
nonverbal, unable to control her body movements and suffers from cognitive,
motoric, and speech / language delays. Her lack of muscle control makes it difficult
for her to speak and to employ non-verbal communication methods such as pointing.
She is also highly distractible. (Pls.’ R. 56.1 Stmt. of Material Facts, ECF No. 13
(“Pls.’ 56.1”), ¶¶ 1-2, 5.)
J.F. attended a hospital-based preschool program. Beginning in
kindergarten, she attended a mainstream elementary school within the Bedford
Central District (“the District”) and was placed in its LEAP I Program. (Id. ¶ 3.)
The District offers LEAP I, LEAP II, and SAIL, the latter of which is for autistic
children. (Id. ¶ 4.) These are the only programs within the District for elementary
school children with severe disabilities. (Tr. 88).1 The LEAP I class has a special
education teacher, an instruction assistant, two program aides, and a speech
therapist. (Tr. 31-32, 290.) The class size is 12:1+2, which means that there are
twelve students for every teacher and at least two paraprofessionals. (Tr. 31-33.)
“Tr.” citations refer to pages of the proceedings before the impartial hearing officer. “DX”
citations refer to documentary exhibits provided by the defendant District.
1
2
Although LEAP I is intended to be a three-year program, J.F. participated for
four years. (Pl.’s 56.1 ¶ 7.)
When J.F. began LEAP I at age five in the 2009-10 school year, her cognitive
abilities and academic functioning were at a 24-month level. (Tr. 292, DX 21.) As of
May 2013, after participating in LEAP I for four years, J.F. was operating at a prekindergarten to kindergarten level. (Tr. 353.) J.F.’s parents also engaged private
therapists to work with J.F. one-on-one. (Tr. 621, 787.) The teachers and
administrators in LEAP were aware that the parents engaged these additional
services. (Tr. 164, 228, 274-77, 699-700.) For the 2013-14 school year, the District’s
Committee on Special Education (“CSE”) recommended that J.F. be placed in LEAP
II.
B.
Educational Evaluations
Evaluations of J.F. in 2011, 2012, and April 2013, were used in the creation
of her Individualized Education Plans (“IEPs”) for the 2012-13 and 2013-14 school
years. (DX 6, 13.) The IEP for the 2012-13 school year recommended that she
remain in the LEAP I program; the IEP for the following school year recommended
that she be placed in LEAP II. Information contained in the underlying evaluations
is pertinent to the Court’s decision herein and is reviewed below.
A November 2011 evaluation by J.F.’s special education teacher Deneane
Carrozza indicated that she was able to correctly point to only 2 of the 26 letters
presented to her, was unable to count a row of blocks, was only able to point to her
first name but not her last name, address, age, or birthday, but was able to correctly
identify most colors. (DX 60.) She was able to follow one-step directions, search for
3
hidden objects, play simple games, use a fork and spoon with little assistance, drink
from a cup with both hands and place it back on the table, remove her coat with
assistance, and indicate when she needed to use the bathroom. She was playful and
interested in her peers, but her attention would often wander after a few minutes at
a task. (Id.)
J.F. also received a speech / language reevaluation in November 2011 from
her speech therapist, Susan Schwartz. Schwartz reported that J.F. could
communicate verbally using only single words and had a sign language vocabulary
of approximately 100 words. The report further indicated that even these signs
were often physical approximations due to her poor motor coordination and
planning. Schwartz stated that J.F.’s verbal language was very difficult for
unfamiliar listeners to understand. The report concluded that J.F. could make her
basic needs and wants known through words, signs, gestures, and augmentative
communication devices, but that she had significant deficits in expressive and
receptive language skills and a short attention span. (DX 66.)
In November 2011, J.F. was also evaluated by her occupational therapist,
Margaret B. Barnickel. Barnickel found that J.F. had difficulty tolerating
unexpected light touch and was hypersensitive to auditory and visual stimulation,
which often distracted her. She reported that J.F. was able to maintain an upright
posture, could maintain personal space, and had improved body awareness. J.F.
was able to adjust her clothing for bathroom needs most of the time, place school
materials in a container, obtain needed materials in class, and take off untied shoes.
4
The report also found that J.F. did not meet cut-off scores on most physical skills.
(DX 68.)
A second evaluation by Ms. Carrozza in April 2012 stated that J.F. had
become more familiar with colors, had learned to identify 12 letters, and was
working on her counting skills. As of that date, however, J.F. remained unable to
trace the first letter of her name due to fine motor skill deficits. (Tr. 304-12.)
C.
The CSE Meetings and Recommended Placement
On March 20, 2013, the CSE convened a meeting with the J.F.’s parents to
formulate her IEP for the 2013-14 school year. (DX 11.) At the meeting, the CSE
recommended that J.F. be placed in the LEAP II program for the 2013-14 school
year. The parents expressed concern about the recommendation. The meeting was
adjourned to allow the parents to gain additional information about the LEAP II
program. (Tr. 57, 229; DX 11.) J.F.’s parents then personally visited the LEAP II
classroom and hired an independent evaluator to both observe J.F. in the LEAP I
classroom and to visit and provide an evaluation of the LEAP II classroom. The
CSE reconvened on May 10, 2013. At that meeting, the CSE continued to
recommend the LEAP II program. Based upon the additional information which
they had obtained, J.F.’s parents continued to express concerns with such a
placement. (Tr. 70-73, DX 11.)
On July 20, 2013, J.F.’s parents submitted a letter formally and specifically
setting forth their concerns with the LEAP II program. The letter indicated that
based upon their and various specialists familiarity with J.F. and the evaluations of
her skills and limitations, J.F. was not socially or academically ready for LEAP II
5
for the 2013-14 school year and was unlikely to make progress in the program. (Tr.
73, 798, 805-06; DX 41.) The parents enclosed a report from an outside speech
pathologist Dr. Soifer, dated April 2, 2013, who had observed that J.F. was not
academically, socially, or developmentally ready to meaningfully participate in
LEAP II. (Tr. 741-43, 749, 762-62, 809; DX 59.) The parents indicated to the CSE
that they would consider any other potential program offered by the District, as well
as private options. (DX 41.)
Another CSE meeting occurred on August 21, 2013. The CSE discussed Dr.
Soifer’s report, but did not make any changes to the proposed IEP. (DX 8, 59, 11.)
A final meeting took place on September 16, 2013. In that meeting, the CSE
reviewed two additional private reports regarding occupational therapy and speech
therapy; those reports did not indicate any materially different findings.
Nevertheless, the CSE continued to recommend LEAP II for the 2013-14 school
year; no significant change were made to the IEP as a result of that meeting. (DX
6)
D.
Rejection of the Placement
Following the provision of statutory notice, J.F.’s parents unilaterally placed
her at the Children’s Academy for the 2013-14 school year. The Children’s Academy
has thirty students attending kindergarten through fourth grade, with an average
of six students and three instructors and assistants per class. (Tr. 624-28.)
E.
Decisions of the IHO and SRO
On October 24, 2013, J.F.’s parents requested a hearing with a designated
impartial hearing officer (“IHO”). They alleged that the District failed to offer J.F. a
6
FAPE for the 2013-14 school year and requested that the District reimburse them
for the costs of the Children’s Academy.
The IHO’s hearing spanned six days from January through April, 2014. She
heard from fifteen witnesses and issued a 54-page decision. In her decision, the
IHO credited the testimony of plaintiffs’ witnesses. The IHO’s decision stated that
J.F. would not have been able to make educational progress in LEAP II, that J.F.’s
IEP did not contain a meaningful statement of her management needs and did not
sufficiently address how these needs would be managed in the classroom, and that
the IEP goals were inadequate. (See Jul. 12, 2014 Findings of Fact and Order, Case
No. 81285, (“IHO Decision”), at 44-47.) The IHO determined that the BOE had
failed to offer J.F. a FAPE for the 2013-14 school year, and awarded plaintiffs
reimbursement for the cost of the Children’s Academy tuition. (See id. at 47-48.)
The BOE appealed the IHO’s decision to the New York State Department of
Education. On October 15, 2014, an officer from the State Department of Education
found that the IEP was reasonably calculated to meet J.F.’s needs and to provide
her with educational benefits for the 2013-14 school year. (Decision on Application
of the Board of Education of the Bedford Central School District, Appeal No. 14-132,
(“SRO Decision”), at 23.) The SRO did not reach the question of whether plaintiffs’
unilateral placement of J.F. at the Children’s Academy was appropriate or whether
equitable considerations precluded an award of tuition reimbursement. (Id. at 23.)
On January 23, 2015, plaintiffs filed the present action seeking reversal of
the SRO’s decision.
7
II.
LEGAL FRAMEWORK
The IDEA requires states receiving federal funds to provide all children with
disabilities in the state a FAPE “that emphasizes special education and related
services designed to meet their unique needs and prepare them for further
education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); see also
id. § 1412(a)(1)(A). A FAPE must be “reasonably calculated to enable the child to
receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105,
107 (2d Cir. 2007) (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122
(2d Cir. 1998)) (internal quotation marks omitted).
The state’s DOE must develop an IEP for each disabled child 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.” Honig v. Doe, 484 U.S. 305, 311 (1988) (citation omitted); see also 20
U.S.C. § 1414(d)(1)(A). An IEP is adequate under the IDEA if it is “likely to produce
progress, not regression, and if the IEP affords the student with an opportunity
greater than mere trivial advancement.” T.P. v. Mamaroneck Union Free Sch.
Dist., 554 F.3d 247, 254 (2d Cir. 2009) (citation and quotation mark omitted). An
IEP is not required to “furnish[] . . . every special service necessary to maximize
each handicapped child’s potential.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d
377, 379 (2d Cir. 2003) (citation and internal quotation marks omitted). In New
8
York State, the formulation of IEPs is delegated to a local CSE, consisting of school
board representatives, educators, clinicians, and parents. N.Y. Educ. Law § 4402.
Parents may challenge the offered IEP by filing a due process complaint. See
20 U.S.C. § 1415(b)(6)(A). The parents may then proceed to a due process hearing
before an IHO. See id. § 1415(f)(1)(A). The IHO’s decision may be appealed by
either party to the SRO, who independently reviews the findings and decision
rendered by the IHO. Id. § 1415(g). While the SRO’s decision is considered final, a
party aggrieved by that decision may bring an action for relief in state or federal
court. Id. § 1415(i)(1)(B), (2)(A).
The IDEA “authorizes reimbursement for the cost of private special-education
services when a school district fails to provide a FAPE and the private-school
placement is appropriate.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009).
The Court must conduct a two-part analysis to determine whether a school district
has offered to provide a student with a FAPE: First, the Court asks whether “the
State complied with the procedures set forth in the [IDEA].” M.H., 685 F.3d at 245
(citation and internal quotation marks omitted). Second, the Court asks whether
the IEP developed through the IDEA’s procedures is “reasonably calculated to
enable the child to receive educational benefits.” Id. (citation and internal quotation
mark omitted).
If the State has failed to comply with the procedural or substantive
requirements of the IDEA in a manner that constitutes a denial of a FAPE, then the
Court must inquire whether the private schooling obtained by the parents “is
9
appropriate to the child’s needs” and must weigh “equitable considerations relating
to the reasonableness of the action taken by the parents.” Id. (citations and internal
quotation marks omitted). If the State has denied the student a FAPE, if the
private school placement is appropriate, and if the equities favor the parents, then
the school district must reimburse the parents for the “expenses that it should have
paid all along.” Id. at 246 (citation and internal quotation marks omitted).
A.
Procedural Considerations
“[N]ot every procedural error will render an IEP legally inadequate.” Id.
(citation omitted). Rather, relief is warranted only if the alleged procedural
inadequacies “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded
the parents’ opportunity to participate in the decisionmaking process regarding the
provision of [a FAPE] to the parents’ child; or (III) caused a deprivation of
educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii).
To be procedurally sound, an IEP must contain: “(1) the student’s present
levels of academic achievement and functional performance; (2) measurable annual
goals for the child; (3) the method used to measure the student’s progress toward
those goals; (4) the special education and related services that the IEP recommends;
(5) an explanation of the extent to which the student will be educated with
‘nondisabled’ peers; (6) the reasons for any alternate assessments; and (7) the start
date for recommended services, their duration, and their frequency.” M.H., 685
F.3d at 245 (citations omitted).
When developing an IEP, a CSE is required to “review existing evaluation
data on the child, including–(i) evaluations and information provided by the parents
10
of the child; (ii) current classroom-based, local, or State assessments, and classroombased observations; and (iii) observations by teachers and related service providers.”
20 U.S.C. § 1414(c)(1)(A). After reviewing that information, the CSE then
determines whether additional data are needed to complete the IEP. Id. §
1414(c)(1)(B). If needed, the CSE should administer an assessment or evaluation.
Id. § 1414(c)(2). The CSE is authorized to decide that no further evaluations are
needed. Id. § 1414(c)(4). The results of the initial or most recent evaluation of the
student and any independent evaluations obtained at public expense must be
considered in connection with the development of the IEP. 34 C.F.R. § 300.324;
N.Y. Comp. Codes R. & Regs. tit. 8, §§ 200.4(f)(1), 200.5(g)(1)(vi).
B.
Substantive Considerations
When reviewing substantive compliance, the IDEA provides only for a “basic
floor of opportunity . . . consist[ing] of access to specialized instruction and related
services which are individually designed to provide educational benefit to the
handicapped child.” Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982) (internal
quotation marks omitted). An IEP is appropriate if it is “likely to produce progress,
not regression” and provides an opportunity for more than mere “trivial
advancement.” Walczak, 142 F.3d at 130 (internal quotation marks omitted). The
IDEA only guarantees an “appropriate” education, “not one that provides
everything that might be thought desirable by loving parents.” Id. at 132 (citations
and internal quotation marks omitted).
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III.
STANDARD OF REVIEW
A motion for summary judgment in an IDEA case is “in substance an appeal
from an administrative determination, not a summary judgment [motion].” M.H. v.
N.Y.C. Dep’t of Educ., 685 F.3d 217, 226 (2d Cir. 2012) (quoting Lillbask ex rel.
Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005))
(internal quotation mark omitted). The motion triggers review of “a state’s
compliance with the procedures set forth in [the] IDEA” and whether the challenged
individualized education program (“IEP”) is “reasonably calculated to enable the
child to receive educational benefits.” Id. at 225-26 (quoting Lillbask, 397 F.3d at
83 n.3). “[B]asing its decision on the preponderance of the evidence, [the Court]
shall grant such relief as [it] determines is appropriate.” 20 U.S.C. §
1415(i)(2)(C)(iii). The review is substantive and considers more than whether a
material fact is disputed.
District courts independently review the administrative record and make
determinations based on a preponderance of the evidence. See M.H., 685 F.3d at
240. However, because the judiciary lacks expertise in educational policy, courts
should not “substitute their own notions of sound educational policy for those of the
school authorities which they review.” Rowley, 458 U.S. at 206; see also M.S. v.
Yonkers Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000) (holding that courts are
expected to give “due weight” to administrative proceedings because they generally
lack “the specialized knowledge and experience necessary to resolve persistent and
difficult questions of educational policy.” (citations and internal quotation marks
omitted)); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189 (2d Cir. 2012)
12
(“We must give ‘due weight’ to the state proceedings, mindful that we lack ‘the
specialized knowledge and experience necessary to resolve . . . questions of
educational policy.’” (citation and internal quotation marks omitted)). Thus, while
IDEA administrative determinations are subject to independent judicial review,
both the Supreme Court and the Second Circuit have consistently construed the
IDEA to “strictly limit[] judicial review of state administrative decisions.” Grim,
346 F.3d at 380 (citations omitted); see also C.F. v. N.Y. City Dep’t of Educ., 746
F.3d 68, 77 (2d Cir. 2014) (“The standard of review ‘requires a more critical
appraisal of the agency determination than clear-error review but nevertheless falls
well short of complete de novo review.’” (quoting M.H., 685 F.3d at 244)).
When an IHO and SRO reach conflicting conclusions, as here, the Court
generally defers to the SRO. R.E., 694 F.3d at 189. The Court “must defer to the
SRO’s decision on matters requiring educational expertise unless it concludes that
the decision was inadequately reasoned, in which case a better-reasoned IHO
opinion may be considered instead.” Id.; see also M.W. ex rel. S.W. v. N.Y.C. Dep’t
of Educ., 725 F.3d 131, 139 (2d Cir. 2013) (“Where an SRO has clearly demonstrated
a better command of the record and supported her conclusions through better legal
and factual analysis than an IHO, we will have little difficulty deferring to the
SRO’s opinion.” (citation omitted)). In addition, when the hearing officer had
opportunity to see and hear witnesses, his or her credibility determination is
accorded deference. See K.R. ex rel. Matthew R. v. New York City Dep’t of Educ.,
107 F. Supp. 3d 295, 308 (S.D.N.Y. 2015); J.R. v. Board of Educ. Of City of Rye
13
School Dist., 345 F. Supp. 2d 386, 399 (S.D.N.Y. 2004); see also M.H., 685 F.3d at
255.
Deference to the SRO’s decision “is particularly appropriate when . . . the
state hearing officer’s review has been ‘thorough and careful.’” R.E., 694 F.3d at
184 (quoting Walczak, 142 F.3d at 129)); see also M.H., 685 F.3d at 244
(“Determinations grounded in thorough and logical reasoning should be provided
more deference than decisions that are not.” (citation omitted)). An SRO decision
deserves deference “even where the reviewing authority disagrees with the hearing
officer.” Id. at 240 (citation and internal quotation mark omitted). More deference
is warranted when reviewing “the substantive adequacy of an IEP,” the adequacy of
an educational methodology, and records containing the same evidence that was
before the SRO. Id. at 244. Less deference is warranted in appeals involving an
IEP’s procedural validity, objective indications of student progress, and records with
new evidence. Id. Deference to a well-reasoned SRO determination merits
particular importance where, as here, the Court’s decision rests solely on the
administrative record. See id. at 241. Where an SRO has concluded that an IEP
was proper, the burden of demonstrating that the SRO erred falls on the plaintiff.
Reyes ex rel. R.P. v. N.Y.C. Dep’t of Educ., 760 F.3d 211, 219 (2d Cir. 2014).
IV.
DISCUSSION
Plaintiffs seek reversal of the SRO’s decision on four principal grounds.
First, plaintiffs argue that J.F.’s 2013-14 IEP and placement in LEAP II was
“predetermined” in advance of the CSE meetings, and the SRO inappropriately
14
assumed that the fact that J.F.’s parents’ strenuously objected and voiced such
objections meant that they had been provided an opportunity for meaningful
participation. Second, plaintiffs argue that the SRO disregarded testimony and
evidence that the IEP was inadequate because it did not contain a meaningful
statement of management needs and because it did not provide appropriate annual
goals. Third, plaintiffs contend that the SRO improperly discredited the testimony
of independent evaluator Dr. Soifer and improperly overturned the IHO’s credibility
determinations without reasoned analysis. Finally, plaintiffs challenge the SRO’s
legal conclusion that plaintiffs could not contest the adequacy of the LEAP II
program before the student was actually placed in the program.
As further detailed below, and with due regard for the expertise of the
District and SRO, this Court concludes that defendant did deny J.F. a FAPE by
(1) predetermining LEAP II as the placement outcome, thereby violating the IDEA’s
procedural requirements, (2) proposing a 2013-14 IEP for J.F. that lacked a proper
statement of management needs and did not contain proper annual goals, and
(3) recommending placement in a classroom setting that did not have the capacity
to implement the goals in J.F.’s IEP.
A.
Predetermination
The BOE predetermined the IEP by committing to a LEAP II placement for
J.F. regardless of what evidence and reports the parents brought forward, thus
depriving plaintiffs of a meaningful opportunity to participate in the meeting.
The IDEA guarantees parents the opportunity “to participate in meetings
with respect to the identification, evaluation and educational placement of the
15
child.” 20 U.S.C. § 1415(b)(1); see also Rowley, 458 U.S. at 206. Predetermination
of a student’s IEP amounts to a procedural violation of the IDEA “if it deprives the
student’s parents of meaningful participation in the IEP process.” B.K. v. New York
City Dep’t of Educ., 12 F. Supp. 3d 343, 358 (E.D.N.Y. 2014) (collecting cases). For
an IEP to be predetermined, the district must “not have an open mind” to consider
alternative programs or services during the meeting. T.P., 554 F.3d at 253. Mere
parental disagreement with a school district’s IEP and placement recommendation
does not amount to a denial of meaningful participation. See B.K., 12 F. Supp. 3d at
359. School districts are permitted to come prepared to the CSE meeting with a
draft IEP—as long as it has not been finalized and the parents are not deprived of
“the opportunity to meaningfully participate in the IEP development process.”
M.M. ex rel. A.M. v. New York City Dep’t of Educ. Region 9 (Dist. 2), 583 F. Supp.
2d 498, 506 (S.D.N.Y. 2008) (citations omitted); see also Dirocco ex rel. M.D. v. Bd.
of Educ. of Beacon City Sch. Dist., No. 11 Civ. 3897 ER, 2013 WL 25959, at *18
(S.D.N.Y. Jan. 2, 2013).
Based on the record evidence, it is clear that the District never considered
any alternative to placing J.F. in LEAP II, despite the parents’ efforts to bring and
highlight various sources of evidence showing that J.F. did not meaningfully
progress in LEAP I in the first four years and that she lacked the academic and
social skills to successfully transition to LEAP II. Defendant counters that
professional disagreement is not “predetermination,” P.K. v. Bedford Cent. Sch.
Dist., 569 F. Supp. 2d. 371, 383 (S.D.N.Y. 2008), and that the IDEA’s meaningful
16
participation requirement does not give parents veto power, T.Y. v. New York City
Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009). These arguments are beside the
point because here, the problem is not the parents’ insistence on a “veto” or
“professional disagreement.” Rather, the critical problem is that despite four CSE
meetings in which the parents attempted to highlight their concerns with the IEP
and the LEAP II program and supported their concerns with evaluations and
reports from other professionals, the District made no material changes to the IEP
and offered no other options. Thus, the parents’ concerns about the LEAP II
classroom setting, while voiced clearly and repeatedly, were not taken into account.
Even the SRO acknowledged that the CSE was “committed to the decision to
recommend the 12:1+2 special placement—the LEAP II program.” (SRO Op. at 13
(emphasis added).)
The SRO reasons that the parents “actively participated throughout the CSE
process and were afforded several opportunities to both provide input and present
their concerns” and therefore were provided a “meaningful participation”
opportunity under the IDEA. However, that J.F.’s parents tenaciously attempted to
participate, and that they were able to “table” (or adjourn) several CSE meetings to
summon additional evidence, does not excuse the CSE’s lack of willingness to
meaningfully respond to any of their concerns. Here, they were denied meaningful
participation precisely because their presentation of extensive evidence as to
numerous problems—such as the inadequacy of the annual goals and criteria, J.F.’s
lack of meaningful progress thus far, and Dr. Soifer’s conclusion that LEAP II would
17
not be an environment to stimulate meaningful progress—was ignored. Therefore,
the District’s predetermination of LEAP II as the appropriate placement for J.F.
constitutes a procedural violation of the IDEA’s guarantee of a FAPE.
B.
IEP Inadequacies
Plaintiffs allege that the IEP for the 2013-14 school year did not contain a
meaningful statement of J.F.’s management needs or appropriate annual goals.
They argue that the while the IHO recognized these deficiencies, the SRO failed to
properly address them in reversing the IHO’s decision. The Court agrees.
1.
Statement of management needs
J.F.’s September 13, 2016 IEP for the 2013-14 school year contained the
following statement for management needs: “The student has significant delays
and requires a small teacher-student ratio program with minimal distractions in
order to academically progress.” (DX 6.) The Court adopts the IHO’s conclusion
that this statement of management needs was inadequate because the SRO’s review
on this issue was not “thorough and careful.” M.H., 685 F.3d at 241 (internal
citations omitted).
A statement of management needs must be specified so that teachers can be
apprised of “the nature and degree to which environmental factors and human
resources or materials are required to enable the student to benefit from
instruction.” N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1 (ww)(3)(i)(d). The
statement of management needs in J.F.’s IEP does not address a number of critical
issues relating to J.F.’s management needs in the classroom setting, such as
reducing her distractibility and impulsivity and reacting to her sensory needs. (See
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IHO Op. at 43.) A vague and cursory statement that J.F. should be in a small class
size environment with “minimal distractions” is inadequate because it does not
inform a teacher or parent of what tools, skills, and resources are necessary to
produce an appropriate learning environment for J.F. It outlines no strategies and
synthesizes no parameters to achieve proper management of J.F.’s specific needs.
The SRO’s review of this topic is not well-reasoned, and merely attempts to
make up for the deficiency by citing to language found in other parts of the IEP.
Yet what the SRO calls “direct implementation” recommendations—“teacher
prompting, help opening snack or lunch containers, use of visuals, physical
assistance, vestibular and proprioceptive input, [and] physical facilitation and
prompts,” (SRO Op. at 20), are themselves vague and uninformative as to what
resources and materials are necessary to create an adequate learning environment.
Furthermore, these phrases were not actually listed as implementation
recommendations or guides in other portions of the IEP. Rather, they are phrases
that happen to be used in describing J.F.’s behavior and development and goals.2
2.
Statement of annual goals
Plaintiffs argue that the annual goals listed in the IEP are not reasonably
calculated to produce meaningful progress because they are not purposefully
designed to respond to her needs, and their criterial levels are too low. They argue,
Indeed, certain phrases that the SRO calls “direct implementation” recommendations are
used in disparate ways in the IEP. For example, the IEP describes J.F.’s social development as
“Student can appear distractible in the classroom, but responds to classroom interventions such as
use of visual and teacher prompts.” (DX 6, at 3 (emphasis added).) However, it also states, “Student
is able to participate in dressing and feeding herself with verbal prompts and minimal physical
prompts.” (Id.) In addition, it states that J.F. needs to be able to take turns in structured activity
“with verbal prompt.” (Id.)
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inter alia, that the IHO properly evaluated the credibility of witnesses to find that
J.F. did not achieve any of her 2012-13 IEP goals, and that the number and mastery
criteria for the goals were reduced in order to make it easier for J.F. to meet the
goals. (IHO Op. at 43.)
The IDEA requires that the IEP’s annual statement of academic and
functional goals must be designed to meet the needs of the student, which result
from her documented disabilities. See 20 U.S.C. 1414(d)(1()(A)(i)(II); 34 C.F.R.
300.320(a)(2)(i). Here, because the IHO’s determination was largely based on her
evaluation of the credibility of the witnesses, which the SRO lacked, and because
the IHO’s analysis was more thorough and supported by record evidence, the Court
adopts the IHO’s determination that J.F.’s IEP annual goals were not adequate.
In determining that the annual goals were not appropriate, the IHO credited
J.F.’s special education teacher Ms. Carrozza’s testimony that the number of goals
was reduced from 22 in the 2011-12 IEP to 17 in the 2012-13 IEP; in the 2013-14
IEP, there were 19 goals. (IHO Op. at 43, DX 6.) Ms. Carrozza testified that the
goals were reduced to give the student a great opportunity to meet the goals. (Tr.
344.) At no time, however, were J.F.’s goals written for mastery level at 85 or 90
percent. (Tr. 346.) She acknowledged that when J.F. meets a goal at 50%, that
could result from pure guessing.3 (Tr. 345.) The IHO also credited the testimony of
the student’s mother, S.F., who stated that Ms. Carrozza had admitted at a parent-
Although Carrozza added that J.F. would be tested multiple times, (Tr. 344), additional
evidence in the record supports the shifting mastery-rate goal-setting. (See Tr. 263 (testimony of
Susan Schwartz, speech therapist); Tr. 460 (testimony of Elissa Lebovich-Lesser, school
psychologist).)
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teacher conference in the 2012-13 school year that J.F. had not successfully met any
of her IEP goals for that year. (Tr. 797.) The IHO also credited the independent
evaluator Dr. Soifer, who stated that the goals as stated contained too-low criteria
levels, were not sufficiently intense, repetitive, and focused, and needed to be
broken down into smaller parts. (Tr. 760-61, Ex. 13.) Based on these
determinations, the IHO concluded that the goals and program did not meet J.F.’s
needs and did not enable her to make progress.
The SRO, on the other hand, only discussed the existence of annual goals in
the IEP. Her review is almost entirely a perfunctory regurgitation of the content of
the IEP and generic testimony as to J.F.’s needs, and does not contain analysis as to
how these goals would meet J.F.’s specific needs.4 Most importantly, her review
also ignores the issues raised by the IHO. (See SRO Op. at 15-17.)
For these reasons, this Court agrees with the IHO that the IEP is not
reasonably calculated to produce meaningful progress for J.F.
C.
LEAP II and the IEP Goals
Plaintiffs contend that the SRO committed legal error in concluding that the
parents could not use evidence from observations of LEAP II classes to question the
appropriateness of a LEAP II placement. This Court agrees. In M.O. v. New York
City Dep’t of Educ., 793 F.3d 236, 244 (2d Cir. 2015), the Second Circuit held that
School districts do not have “‘carte blanche’ to assign a child to a school “that cannot
satisfy the IEP’s requirements.” Parents do not need to “send their child to a
The SRO’s statement that the annual goals were selected based on a “need-based rationale”
is too general to constitute well-reasoned analysis. (See SRO Op. at 17.)
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facially deficient placement school prior to challenging that school's capacity to
implement their child's IEP,” because that would be “antithetical to the IDEA'[s]
reimbursement process.” Id.
The SRO’s conclusion that the parents cannot base their complaint on “a
retrospective analysis of how the district would have implemented the student’s
September 2013 IEP at the assigned public school site,” (SRO Op. at 21), is
incorrect. Plaintiffs’ challenge is exactly of the sort addressed by M.O. It is
undisputed that there is only one LEAP II classroom, and that is the precise
classroom that the CSE recommended J.F. be placed. The parents and Dr. Soifer,
the independent evaluator, visited the LEAP II classroom before the September
2013 IEP was adopted. (See DX 59.) Plaintiffs’ substantive concerns about the
LEAP II classroom, therefore, are precisely that the LEAP II classroom would not
properly implement the IEP’s requirements.5 Although it would be “speculative to
conclude that a school with the capacity to implement a given student's IEP will
simply fail to adhere to that plan's mandates, it is not speculative to find that an
IEP cannot be implemented at a proposed school that lacks the services required by
the IEP.” M.O., 793 F.3d at 244. (internal citation omitted).
The IHO provided a careful and well-reasoned analysis as to why LEAP II
lacks the services required by J.F.’s IEP. (See IHO Op. 44-45.) First, the IHO
While in M.O., the Second Circuit found that plaintiffs could not attack the substance of the
IEP via attacking the placement setting, 793 F.3d at 244, here, plaintiffs’ argument about LEAP II is
separate from the argument about the IEP’s inadequacies. Plaintiffs argue that the LEAP II
classroom would not address J.P.’s special education needs because it was too advanced and would
exacerbate problems acknowledged in the IEP.
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credited Dr. Soifer’s conclusion that LEAP II would be too advanced for J.F. (DX
59.)6 Second, J.F.’s mother observed that the LEAP II classroom contained a lot of
movement of other students coming from and going to activities, which would
distract J.F., whose IEP specifically notes her problems with distractibility. (Tr.
804-06; DX 6.) The LEAP II teacher, Ms. Guarnieri, also testified that she could
only communicate through sign language through the speech therapist, and she did
not have experience working with children with global apraxia, like J.F. (Tr. 41718.) J.F.’s difficulties with verbal communication due to her global apraxia is welldocumented; her IEP lists annual goals involving sign language. (DX 6.) The SRO
does not address any of these issues, and instead provides only a conclusory
statement that the record “does not support the conclusion that . . . the district
would have deviated from the student’s IEP in a material or substantial way.”
(SRO Op. at 22.)
This Court credits the better-reasoned IHO opinion, which is supported by
evaluative evidence, and finds that the placement in LEAP II cannot satisfy the
IEP’s requirements and therefore is not reasonably calculated to enable J.F.’s
educational benefits.
The Court agrees with plaintiffs that Dr. Soifer’s mistaken references to a “smart board”
instead of a white board and the placement of folders containing students’ schedules in the LEAP II
classroom were not proper bases to discredit her testimony. Defendant’s sole other argument is that
Dr. Soifer never herself treated or provided services to J.F. However, Dr. Soifer observed J.F. in the
LEAP I classroom, communicated with her teachers, and reviewed J.F.’s IEP; the SRO also did not
specifically discredit any substantive portion of Dr. Soifer’s analysis.
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D.
Placement in the Children’s Academy
The SRO did not reach the question of whether the Children’s Academy was
an appropriate unilateral placement, or the question of whether the equitable
factors favored an award of tuition reimbursement. The Court defers to the IHO’s
well-reasoned findings on these issues. The IHO reviewed and credited evidence
that the Children’s Academy was a suitable—and indeed, very effective—
environment for J.F.’s educational progress. She also noted the numerous
differences between the Children’s Academy and LEAP II. (IHO Op. 45-47.) She
also concluded that nothing in the record precluded reimbursement on equitable
grounds, as the parents cooperated fully with the CSE and provided numerous
additional evaluations in an effort to find an adequate placement within the public
system. (IHO Op. 47.)
V.
CONCLUSION
For the reasons set forth above, plaintiffs’ motion for summary judgment is
GRANTED. The Clerk of Court is directed to terminate the motions at ECF No. 7
and to terminate this action.
SO ORDERED
Dated:
New York, New York
March 25, 2016
____________________________________
KATHERINE B. FORREST
United States District Judge
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