Board of Education of the North Rockland Central School District v. C.M.

Filing 66

MEMORANDUM AND OPINION re: 46 MOTION for Summary Judgment. The motion for summary judgment of plaintiff Board of Education of the North Rockland Central School District is GRANTED. The motion for summary judgment of defendant C.M., individu ally and on behalf of her child, P.G., is DENIED. The IHO's decision regarding Parents Section 504 claim is REVERSED, and the SRO's determination regarding Parents IDEA claims is AFFIRMED. In addition, in light of this Opinion and Order, the Courts July 25, 2016, Order (Doc. #38) directing the District to fund P.G.'s programs and services at the Whitney Academy for the 2016-2017 school year is hereby VACATED. By June 30, 2017, the parties shall submit a joint proposed judgm ent consistent with this Opinion and Order. If they cannot agree on a joint proposed judgment, the parties shall submit separate proposed judgments for the Courts consideration. In addition, if the parties would benefit from a settlement conferen ce before a magistrate judge or Court-appointed mediator, they shall inform the Court by letter by June 30, 2017, and the Court may refer the case for a settlement conference or mediation. The Clerk is instructed to terminate the motions. (Docs. ##46, 55). (Signed by Judge Vincent L. Briccetti on 6/19/2017) (js) Modified on 6/20/2017 (js).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BOARD OF EDUCATION OF THE NORTH
:
ROCKLAND CENTRAL SCHOOL
:
DISTRICT,
:
Plaintiff,
:
:
v.
:
:
:
C.M., individually and on behalf of her child,
P.G.,
:
Defendants.
:
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OPINION AND ORDER
16 CV 3924 (VB)

Briccetti, J.:
Plaintiff Board of Education of the North Rockland Central School District (the
“District”), brings this action pursuant to the Individuals with Disabilities Education Act, 20
U.S.C. § 1400, et seq. (“IDEA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794 (“Section 504”). The District seeks reversal of the portion of the decision of an impartial
hearing officer (“IHO”) that found the District had violated Section 504 and granted relief to
C.M., the parent of a child with disabilities, P.G. (“Parent”). Parent seeks to have the IHO’s
decision affirmed or, in the alternative, to have the State Review Officer’s (“SRO”) dismissal of
Parent’s IDEA claims reversed.
Now pending are the parties’ cross-motions for summary judgment. (Docs. ##46, 55).
For the reasons set forth below, the District’s motion is GRANTED and Parent’s motion
is DENIED.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

1

BACKGROUND
I.

Statutory Framework
A.

IDEA

The IDEA was enacted to promote the education of disabled children. 20 U.S.C.
§ 1400(d)(1)(A); see Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 179 (1982) (interpreting predecessor statute to IDEA). States receiving public funds are
required to provide a free appropriate public education (“FAPE”) to children with disabilities.
20 U.S.C. § 1412(a)(1)(A). Public school districts must provide “‘special education and related
services’ tailored to meet the unique needs of a particular child, [which are] ‘reasonably
calculated to enable the child to receive educational benefits.’” Walczak v. Fla. Union Free Sch.
Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. at 207).
States have an obligation under the IDEA to identify, locate, and evaluate “[a]ll children
with disabilities residing in the State” to determine whether they require special education and
related services. 20 U.S.C. § 1412(a)(3)(A); see Handberry v. Thompson, 446 F.3d 335, 347 (2d
Cir. 2006). This so-called “child find” obligation extends to children who are “suspected of
being a child with a disability.” 34 C.F.R. § 300.111(c)(1).
The IDEA requires states to create an individualized education program (“IEP”) for each
disabled student. See 20 U.S.C. § 1412(a)(4); see also Frank G. v. Bd. of Educ. of Hyde Park,
459 F.3d 356, 363 (2d Cir. 2006) (“The key element of the IDEA is the development of an IEP
for each handicapped child.”). The IEP is a “comprehensive statement of the educational needs
of a handicapped child and the specially designed instruction and related services to be employed
to meet those needs.” Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 368 (1985).

2

If the state fails to provide a FAPE to a disabled child, the parents may enroll the child in
a private school and seek reimbursement for the cost of the private school from the local board of
education. See 20 U.S.C. § 1412(a)(10)(C); Sch. Comm. of Burlington v. Dep’t of Educ., 471
U.S. at 369-70, 374.
In New York, parents seeking such reimbursement must first file a “due process”
complaint challenging the appropriateness of the IEP. FB v. N.Y.C. Dep’t of Educ., 923 F.
Supp. 2d 570, 577 (S.D.N.Y. 2013). An IHO conducts a hearing on the parents’ complaint. See
N.Y. Educ. Law § 4404(1). A board of education is required to reimburse parents for private
educational services if: (i) the board fails to establish the student’s IEP provided a FAPE; (ii) the
parents establish their unilateral placement was appropriate; and (iii) equitable considerations
favor the parents’ claim. See Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); M.W.
ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131, 135 (2d Cir. 2013). The IHO’s
decision may be appealed to an SRO at the New York State Education Department. See N.Y.
Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g). The SRO’s decision may be challenged in
federal court. See 20 U.S.C. § 1415(i)(2)(A).
B.

Section 504

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a).
“In the educational context, Section 504 imposes requirements on schools that are
parallel to the IDEA requirements.” K.H. v. N.Y. City Dep’t of Educ., 2014 WL 3866430, at *3
(E.D.N.Y. Aug. 6, 2014). “However, the two statutes provide different protections, because
‘Section 504 provides relief from discrimination, whereas the IDEA provides relief from
3

inappropriate educational placement decisions, regardless of discrimination.’” Id. (quoting
Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 152 (N.D.N.Y. 1997), aff’d, 208 F.3d
204 (2d Cir. 2000)). As a result, to establish liability under Section 504, “courts have held that a
plaintiff must demonstrate more than an incorrect evaluation or substantively faulty IEP.” R.B.
ex rel. L.B. v. Bd. of Educ., 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000). Rather, “there must be
evidence that a school district acted with deliberate or reckless indifference to the student’s
federally protected rights or with bad faith or gross misjudgment.” Schreiber v. E. Ramapo Cent.
Sch. Dist., 700 F. Supp. 2d 529, 564 (S.D.N.Y. 2010) (internal quotation marks omitted).
II.

Factual Background
The parties have submitted briefs, statements of material facts pursuant to Local Civil

Rule 56.1, and the record and exhibits from the proceedings below, which reflect the following
factual background.
P.G. was born in Novosibirsk, Russia in 1995. According to his medical records, his
birth parents were alcoholics. Beginning when he was three years old, P.G. lived in orphanages
in Russia, where he was abused, both physically and sexually. Parent and her now deceased
husband adopted P.G. in 2003, when he was eight years old, and brought him to the United
States. In May 2003, P.G. was diagnosed with prenatal hypotrophy (muscle weakness), perinatal
encephalopathy (brain damage of unknown origin), delay in psychological development, and
dysarthria (speech impairment). (Parent Ex. C).
As detailed below, P.G. has a long history of behavioral issues, in addition to
developmental disabilities.
A.

First Through Fifth Grades

P.G. was enrolled in the District on May 9, 2003, entering in the first grade. From the
first through fourth grades, i.e., the 2003-2004 through 2006-2007 school years, PG attended
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Stony Point Elementary School. Initially the District placed him in general education classes
with English as a Second Language (“ESL”) services. The District first referred P.G. for special
education services on October 8, 2004. Some of the District documents and evaluations from
this time and later have an incorrect birth date for P.G., which suggested he was two years
younger than his actual age. As a result, some of the evaluations of P.G. likely overstated his
abilities. Nevertheless, evaluations showed P.G. was functioning well below grade-level in math
and reading, had a very low IQ, and had attention deficits, among other issues.
On December 16, 2004, the District classified P.G. as a student with an “Other Health
Impairment.” (Dist. Ex. 164). He was recommended for consultant teacher services for English
language arts and math, a modified curriculum, and a behavior intervention plan.
In April 2005, the District’s Committee on Special Education (“CSE”) recommended a
15:1 student-teacher-ratio class in the third grade for P.G. for all core subjects, in addition to
counseling once per week.
In April 2006, the CSE made the same recommendations for P.G.’s fourth grade, but
added a self-contained reading class.
For the fifth grade, i.e., the 2007-2008 school year, P.G. attended Farley Middle School,
where he was placed in a self-contained program for all core classes. This is when “things began
to unravel for P.G.” (Parent SOF ¶ 97). “He became frustrated with the other students, the
teacher and the work.” (Id.). In addition, his “behavior issues grew worse and he would often
run away and hide in school.” (Id. ¶ 99). He was also performing “significantly below grade
level in all academic areas.” (Dist. SOF ¶ 128).

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A reevaluation from February 2008 showed P.G. was still performing academically at a
very low level and had significant cognitive difficulties. Nevertheless, he remained classified as
“other health impaired,” rather than developmentally or learning disabled. (See Dist. Ex. 97).
B.

BOCES Programs – Repeated Fifth Grade and Sixth Grade

On March 10, 2008, the District held a CSE meeting for P.G.’s sixth grade, i.e., the 20082009 school year. The IEP notes P.G.’s significant needs and low cognitive function. On June
11, 2008, P.G. was suspended from school for hitting two students unprovoked. A June 17,
2008, IEP recommended placement in an “8:1+1” (student to teacher plus special education
teacher ratio) program for students with emotional and behavioral difficulties at a Board of
Cooperative Educational Services (“BOCES”) in-District program at Haverstraw Middle School
(“BOCES Haverstraw”). (Dist. Ex. 97). In January 2009, the District amended P.G.’s IEP to
reflect that he was repeating the fifth grade during this school year.
In March 2009, P.G. jumped out of a second story window and suffered injuries. He was
taken to a psychiatric center for children, where he remained for several weeks. While
hospitalized, P.G. underwent a neuropsychological exam, which confirmed both his 1995 birth
date and his severe academic delays and language deficiencies, in addition to other diagnoses,
including “Pervasive Developmental Disorder, Not Otherwise Specified,” “Rule Out Post
Traumatic Stress Disorder” (“PTSD”), and “Mild Mental Retardation.” (Dist. Ex. 75).
On April 30, 2009, the CSE conducted a review of P.G.’s placement and determined that
he should continue at BOCES Haverstraw, in an 8:1+1 class, with counseling services. In
addition, the CSE added a 1:1 aide. On May 18, 2009, the CSE reconvened and added speech
language services to the IEP.

6

P.G. started the sixth grade, i.e., the 2009-2010 school year, at BOCES Haverstraw. On
September 23, 2009, P.G. was suspended from school for fighting. One month later, he was
arrested for breaking and entering.
In an academic and counseling report dated November 9, 2009, BOCES detailed P.G.’s
areas of progress and strengths, but noted that “there has been some regression as of late.” (Dist.
Ex. 58). The report further documented that P.G. continued to read at a third grade level, and
“has tremendous difficulty handling problematic situations,” including because he would
“verbally assault students and staff” when angry or frustrated. (Id.).
On November 23, 2009, the CSE recommended placement at Rockland BOCES Hilltop
School. (Parent SOF ¶ 185). According to Parent, BOCES Hilltop is “exclusively for children
with emotional and behavioral difficulties.” (Parent Response to Dist. SOF ¶ 180). At this time
P.G. was “nearly 15 years old, enrolled in the sixth grade, yet working on a third grade academic
level.” (Id.). At BOCES Hilltop, P.G. maintained the 1:1 aide, was still in an 8:1+1 class, and
was still “in the general educational curriculum including all assessments.” (Parent SOF ¶ 186).
C.

Seventh Grade

On May 3, 2010, the CSE met again and recommended that P.G. stay at BOCES Hilltop
for the seventh grade, i.e., the 2010-2011 school year.
On August 10, 2010, P.G. was suspended from school for “assault.” (Dist. Ex. 42).
In February 2011, P.G. sustained a concussion on the bus to school.
In March 2011, an evaluation of P.G. determined that his IQ and overall intellectual
functioning were in the “extremely low” range, and that his “total level of achievement” and
“academic achievement” were “very low.” (Dist. Ex. 30).

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On or about April 15, 2011, Parent received an anonymous letter which stated that P.G.
was being bullied on the school bus.
On May 2, 2011, the CSE discontinued P.G.’s 1:1 aide because it was “no longer
necessary.” (Dist. Ex. 27).
On May 11, 2011, Parent requested an emergency CSE meeting because she was
“concerned both for his safety and his lack of progress in the 7th grade.” (Dist. Ex. 26).
By letter dated May 23, 2011, Judith Myerson, P.G.’s privately-retained psychotherapist,
diagnosed P.G. with PTSD, mild mental retardation, and alcohol-related neurodevelopmental
disorders, among other things. She opined that P.G.’s “current school placement exacerbates his
anxiety, PTSD and dysregulation,” and she recommended a residential placement for P.G. (Dist.
Ex. 25).
The CSE convened on May 24, 2011. Parent attended the meeting with a “student
advocate,” Ralph Antonelli, who “direct[s] the admissions and referrals at the the Judge
Rotenberg Center,” a special education school located in Massachusetts. (Dist. Ex. 24; Tr. at
1149). At the CSE meeting, Parent requested a residential placement for P.G. The CSE denied
that request, again recommending BOCES Hilltop instead.
Mr. Antonelli testified he told the CSE that P.G. “had not made progress,” which was
“clearly indicated” in “all the documents [he and Parent] had available to” them. (Tr. at 1169).
He testified they also discussed at the meeting P.G.’s “social and emotional needs,” particularly
that they “were not being met,” and that the district was “not addressing nor did they have the
ability to address” P.G.’s “abuse issues” including issues related to sexual abuse. (Tr. at 116970). Mr. Antonelli testified the CSE chairperson’s response to Parent’s request for a residential
placement was to “state[] clearly that the school district would never recommend residential

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placement, that they didn’t feel it was appropriate and that they felt his program was
appropriate.” (Id. at 1170-01).
Parent received the resulting IEP on or about June 17, 2011. (See Dist. Ex. 23).
Parent subsequently provided the District with a psychiatric assessment dated June 16,
2011, by Dr. Edward Hall, a psychiatrist who treated P.G. Dr. Hall’s report states,
“[e]ducationally [P.G.] has been classified for Special Education Placement under Other Health
Impaired yet has evidence of learning disabilities.” (Parent Ex. H). Dr. Hall’s assessment
further states P.G.’s history “places [him] at grave risk for serious harm to himself, antisocial
behavior, and impairments in social relations.” (Id.). It recommends “residential placement,”
among other things. (Parent Ex. H). The District apparently did not respond to this information.
(Parent SOF ¶ 229).
By letter dated June 21, 2011, the Stony Point Police Department Youth Bureau
identified P.G. as an “at risk youth, who should be under 24-hour supervision,” and noted it had
“had numerous contacts with him.” (Dist. Ex. 22).
D.

Eighth Grade

Parent enrolled P.G. at the BOCES Hilltop program again for the eighth grade, i.e., the
2011-2012 school year.
On January 13, 2012, BOCES Hilltop issued a “Regression Statement,” which
documented that it took several weeks for P.G. to “re-establish his skills” after he returned from
vacation. (Dist. Ex. 13).
A “Vocational Assessment Report” dated January 16, 2012, notes P.G. continued to read
at a second or third grade level in the eighth grade. (Dist. Ex. 12).

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In a psychological assessment dated January 26, 2012, Ms. Myerson, P.G.’s
psychotherapist, highlighted P.G.’s difficulties and again recommended residential placement.
(Dist. Ex. 9).
By report dated February 8, 2012, the BOCES Hilltop staff changed P.G.’s track to an
“alternative assessment” track and recommended “modifications to [P.G.’s] academic long-term
planning,” noting, among other things, that “the increased academic demands are beginning to
exceed [P.G.’s] cognitive abilities.” (Dist. Ex. 7). The report also states that P.G.’s “academic
placement will continue to require a high level of supervision, structure and support to meet his
social, emotional, behavioral and learning needs.” (Id.).
On February 9, 2012, the CSE met to plan for the 2012-2013 school year. The CSE
considered the BOCES report during this meeting. The CSE also considered Ms. Myerson’s
assessment.
The CSE again refused Parent’s request for a residential placement and instead
recommended placement at BOCES River View High School, where P.G. would be placed in a
program for students with emotional disabilities for the 2012-2013 school year. (Dist. Ex. 6).
Ms. Myerson testified she did not think this was an appropriate placement because P.G. was
“developmentally disabled,” which was not the “focus” of Riverview. (Tr. at 960).
P.G.’s adoptive father died in the spring of 2012. Parent alleges this exacerbated his
behavioral issues. At one point, P.G. disappeared for hours and was eventually found “wrapped
in a blue plastic tarp” in a wood pile in his back yard. (Tr. at 1604). P.G. also acted in a sexually
inappropriate manner toward Parent. In April 2012, Parent, with the help of a BOCES staff
member, tried to have P.G. hospitalized at a mental health facility, but he could not be admitted.

10

Parent testified that she tried to contact the District several times during this period, but
the District never returned her calls.
On or about June 11, 2012, Parent contacted a special education attorney.
In August or September 2012, Parent removed P.G. from the District and placed him in a
group home for individuals with developmental disabilities located in the neighboring
Clarkstown Central School District (“Clarkstown”). Ms. Myerson testified she did not believe
this was an appropriate placement for P.G. but “it was a better situation than him being at home .
. . [b]ecause there was a 24 hour staff available to keep an eye on him.” (Tr. at 965-66).
As a result of this placement in Clarkstown, P.G. was not under the District’s purview for
the remainder of the 2012-2013 academic school year, or for any years thereafter.
E.

Enrollment at the Whitney Academy

While enrolled at Clarkstown, P.G. was arrested on two occasions and spent several
months in jail, from January-April and September-December 2014.
In November 2014, Parent brought a due process complaint against Clarkstown for the
2012-2013, 2013-2014, and 2014-2015 school years. At a CSE meeting on January 8, 2015,
Clarkstown agreed that P.G. should be placed at the Whitney Academy for the remainder of the
2014-2015 and the 2015-2016 school years. The Whitney Academy “specializes in the treatment
of dually diagnosed (developmentally delayed and psychiatrically disordered) young men, ages
ten to twenty-two, who present with a wide spectrum of behavior problems.” (Parent SOF ¶ 292,
citing Parent Exs. CC and DD).
Ms. Myerson testified she “believe[s] that [P.G. is] where he should be.” (Tr. at 972).
She testified the Whitney Academy “ha[s] a trauma focus . . . [and] a focus on sexual behaviors, .

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. . [and] a very structured program and supervision.” (Id.). In addition, students at Whitney
“have to have some form of developmental disability to be there.” (Id.).
P.G. “aged out of special education services on June 30, 2016.” (Parent SOF ¶ 2).
II.

Procedural Background
Parent filed a due process complaint against the District on January 9, 2015, alleging

violations of the IDEA and Section 504, among other things. In particular, Parent alleged the
District failed to provide P.G. with a FAPE for the 2005-2006 through 2011-2012 school years.
In addition, Parent alleged the District “egregiously misunderst[ood] and neglect[ed] . . . PG’s
needs,” causing P.G. a “gross denial” of a FAPE. (Due Process Complaint ¶ 60). On January
20, 2015, the District responded to the due process complaint. It submitted an amended response
on consent on February 25, 2015.
The IHO held a hearing over eleven non-consecutive days between May 26, 2015, and
October 19, 2015. By decision dated January 27, 2016, the IHO dismissed Parent’s IDEA claims
on the ground that they were time-barred, but found the District had violated Section 504 with
respect to its actions between January and June 2012. The IHO “concluded that the appropriate
remedy for the District’s violations of the Student’s rights under Section 504 is funding for an
additional year at the Whitney Academy” (IHO at 32); i.e., for the 2016-2017 school year.
Parent and the District timely filed cross-appeals with the SRO. By decision dated May
2, 2016, the SRO affirmed the portion of the IHO’s decision dismissing Parent’s claims under
the IDEA as time-barred, and found it lacked jurisdiction over the Section 504 claims. The SRO
therefore denied both appeals.
The District initiated this action on May 26, 2016. On June 23, 2016, because the District
had refused to comply with the IHO’s January 27, 2016, remedy order, Parent moved for a

12

preliminary injunction and temporary restraining order to enforce the IHO’s award of an
additional year’s tuition at the Whitney Academy and continuation of related services during the
pendency of this action. (Doc. #11). On July 21, 2016, the Court heard oral argument on the
motion and, by Order dated July 25, 2016, the Court granted plaintiff’s motion for the reasons
stated on the record at the July 21 hearing. (Docs. #38).
DISCUSSION
I.

Standard of Review
In federal court, parties seeking review of administrative decisions in cases brought under

the IDEA usually do so by motion for summary judgment. See Viola v. Arlington Cent. Sch.
Dist., 414 F. Supp. 2d 366, 377 (S.D.N.Y. 2006). However, unlike in an ordinary summary
judgment motion, the existence of a disputed issue of material fact will not necessarily defeat the
motion. Id. Rather, summary judgment in the IDEA context functions as an appeal from an
administrative decision. T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.
2009).
In this context, the Court (i) reviews the record of the administrative proceedings;
(ii) hears additional evidence at the request of a party; and (iii) grants such relief as it deems
appropriate based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C).
“Although the district court must engage in an independent review of the administrative
record and make a determination based on a ‘preponderance of the evidence,’ . . . such review ‘is
by no means an invitation to the courts to substitute their own notions of sound educational
policy for those of the school authorities which they review.’” Gagliardo v. Arlington Cent. Sch.
Dist., 489 F.3d 105, 112–13 (2d Cir. 2007) (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d
1114, 1120 (2d Cir. 1997) and Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458

13

U.S. 176, 206 (1982)). “To the contrary, federal courts reviewing administrative decisions must
give ‘due weight’ to these proceedings, mindful that the judiciary generally ‘lack[s] the
specialized knowledge and experience necessary to resolve persistent and difficult questions of
educational policy.’” Id. (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. at 206, 208). Indeed, “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. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244 (2d Cir. 2012).
“However, the district court is not required to defer to administrative determinations
regarding matters of law.” K.H. v. N.Y.C. Dep’t of Educ., 2014 WL 3866430, at *15 (E.D.N.Y.
Aug. 6, 2014).
II.

Accrual of Section 504 Claim
The District argues Parent’s Section 504 claim is time-barred.
The Court agrees.
Claims brought under Section 504 are governed by a three-year statute of limitations.

Morse v. Univ. of Vt., 973 F.2d 122, 127 (2d Cir. 1992).
The statute of limitations for Section 504 claims accrues “when [plaintiff] knew or had
reason to know of the injury serving as the basis for his claim.” Harris v. City of N.Y., 186 F.3d
243, 247 (2d Cir. 1999).
“In analyzing the timing of accrual in the context of discrimination claims, the Supreme
Court has instructed that “the proper focus is on the time of the discriminatory act, not the point
at which the consequences of the act become painful.” Morse v. Univ. of Vermont, 973 F.2d at
125 (quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981)).

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“Thus, in analyzing Plaintiffs’ Section 504 . . . claim[], the Court measures timeliness
from the date Plaintiff received notice of Defendants’ allegedly adverse actions.” Pape v. Bd. of
Educ. of the Wappingers Cent. Sch. Dist., 2009 WL 3151200, at *9 (S.D.N.Y. Sept. 29, 2009)
(citing Morse v. Univ. of Vermont, 973 F.2d at 125).
Determining when a parent knew or should have known of the discriminatory act “is
necessarily a fact-specific inquiry.” K.H. v. N.Y.C. Dep’t of Educ., 2014 WL 3866430, at *16.
Here, Parent’s due process complaint alleges the District violated Section 504 “by failing
to provide an appropriate residential placement and appropriate support and services.” (Due
Process Complaint ¶ 60).
The record makes clear Parent knew of this allegedly discriminatory failure by no later
than May-June 2011.
In particular, by March 2011, if not earlier, Parent knew P.G. had an “extremely low”
range IQ and overall intellectual functioning, and yet the District had only classified him as
“other health impaired.” (Dist. Ex. 30). In May 2011, P.G.’s private psychotherapist diagnosed
P.G. with mild mental retardation and alcohol-related neurodevelopmental disorders, among
other things, and opined that P.G.’s school placement was inappropriate for his needs. She also
advised that P.G. should be placed in a residential program instead. Parent participated in the
May 24, 2011, CSE meeting with the assistance of an advocate not affiliated with the District.
Parent and the advocate raised their concerns about P.G.’s lack of progress and requested a
residential placement for P.G. In addition, Dr. Hall’s June 16, 2011, psychiatric assessment
explicitly states P.G. was improperly classified as “other health impaired” rather than as
developmentally or learning disabled. It also recommends a residential placement.

15

Despite all of this information, the District did not change P.G.’s classification and it
denied Parent’s request for a residential placement for the 2011-2012 school year. Parent knew
of the District’s decisions in this regard at the May 24, 2011, CSE meeting, and they were
confirmed on or about June 17, 2011, when she received the resulting IEP. 1 (Dist. Exs. 23, 24).
Accordingly, Parent knew or should have known of the District’s allegedly
discriminatory acts by no later than June 2011. And since Parent’s due process complaint
against the District was not filed until January 9, 2015, more than three years after the Section
504 claim accrued, the Section 504 claim is time-barred.
The Court respectfully disagrees with the IHO’s conclusions to the contrary. The IHO
found Parent’s Section 504 claim was timely because “from January 2012 through June 2012,”
the District “denied the Student a FAPE under Section 504 by failing to provide the Student a
residential placement.” (IHO at 31). The IHO concluded “the District’s failure to remove the
Student from BOCES Hilltop between January and June of 2012 was a ‘gross misjudgment.’”
(IHO at 32). However, the IHO did not address the fact that Parent already knew about the
District’s decision to reject Parent’s request for a residential placement, and its recommendation
instead for placement at BOCES Hilltop for the 2011-2012 school year, by no later than June

1

The Court notes that the 2012-2013 school year—and therefore the February 9, 2012,
CSE meeting and resulting IEP—are not the basis for any claims before this Court. The due
process complaint seeks relief for the 2005-2006 through 2011-2012 school years only. (Due
Process Compl. “Proposed Resolution” ¶¶ B, C). Moreover, Parent’s decision to limit her claims
against the District up to and including the 2011-2012 school year appears intentional: Parent
brought a separate due process complaint against the Clarkstown School District for the 20122013 through 2014-2015 school years. (Dist. Ex. 256). Because Parent does not seek relief from
the District for the 2012-2013 school year, the February 9, 2012, CSE meeting and resulting
IEP—which addressed recommendations for “School Year: 2012-2013”—cannot be the basis for
Parent’s claims here. (Doc. #6).
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2011. Therefore, the IHO committed legal error when it concluded Parent’s Section 504 claim
was not barred by the applicable statute of limitations.
III.

Parent’s IDEA Claim
Parent argues her IDEA claim is still timely, and in the alternative, the statute of

limitations should be tolled because the District made specific misrepresentations to Parent and
the District withheld information from Parent. (Parent Br. at 21-23).
The Court disagrees.
Under the IDEA, parents must request an impartial due process hearing “within 2 years
of the date the parent . . . knew or should have known about the alleged action that forms the
basis of the complaint.” 20 U.S.C. § 1415(f)(3)(C).
However, a claim will not be considered time-barred if “the parent was prevented from
requesting the hearing due to (i) specific misrepresentations by the local educational agency that
it had resolved the problem forming the basis of the complaint; or (ii) the local educational
agency’s withholding of information from the parent” that is required to be provided under the
IDEA. 20 U.S.C. § 1415(f)(3)(D).
A.

Timeliness

For the same reasons provided with respect to Parent’s Section 504 claim, supra, Parent
knew or should have known about the acts that formed the basis of her complaint—namely, that
P.G. was allegedly denied a FAPE for the 2005-2006 through 2011-2012 school years—no later
than June 2011. Nevertheless, Parent did not bring her due process complaint until January
2015, well beyond the two-year statute of limitations for IDEA claims.
Accordingly, Parent’s IDEA claims with respect to the 2005-2006 through 2011-2012
school years are untimely.

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B.

Specific Misrepresentation Exception

Parent argues the District misrepresented P.G.’s “level of functioning, progress and
behaviors,” and the SRO erred when it determined that these misrepresentations did not warrant
the application of the IDEA’s “specific misrepresentation” exception to the statute of limitations.
(Parent Br. at 21).
The Court disagrees.
The SRO correctly determined “the hearing record does not support a conclusion that the
district prevented the parent from filing a due process complaint notice due to an intentional or
knowing deception.” (SRO at 19). Moreover, any alleged misrepresentations by the District had
become known to the Parent by the May 24, 2011, CSE meeting. Specifically, at that meeting,
Parent told the CSE she did not think P.G. was making sufficient progress and was not in an
appropriate setting.
Accordingly, Parent could have timely filed her IDEA due process complaint within two
years from the May 24, 2011, CSE meeting or resulting IEP, but failed to do so. She is not
entitled to any tolling under the specific misrepresentation exception beyond that two-year
period.
C.

Withholding of Information Exception

Parent argues “[t]he District’s failure to provide the parent procedural safeguards every
year, particularly during the years when PG was in severe crisis, in conjunction with the District
telling her there was nothing she could do,” justifies tolling under the withholding of information
exception. (Parent Br. at 23).
The Court disagrees.

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“Federal and local regulations require a school district to provide parents with a notice of
procedural safeguards on certain specified occasions,” and at least “once per year.” R.B. ex rel.
A.B. v. Dep’t of Educ. of City of N.Y., 2011 WL 4375694, at *6 (S.D.N.Y. Sept. 16, 2011)
(citing 34 C.F.R. § 300.504; 8 NYRCC § 200.5(f)(3)). The IDEA provides that the statute of
limitations for filing a due process complaint “shall not apply to a parent if the parent was
prevented from requesting the hearing due to . . . the local educational agency’s withholding of
information from the parent that was required . . . to be provided to the parent.” 20 U.S.C.A. §
1415(f)(3)(D). Thus, the IDEA’s two-year statute of limitations must be tolled if a parent did not
know of her rights because of a school district’s failure to provide procedural safeguard notices.
Y.A. v. N.Y. City Dep't of Educ., 2016 WL 5811843, at *8 (S.D.N.Y. Sept. 21, 2016).
Here, Parent knew of her rights no later than August 2012. In particular, in May 2011,
Parent engaged the services of Mr. Antonelli and he “educated [her] a little bit about [P.G.]’s
rights.” (Tr. 1542-43). In June 2012, she consulted with a special education attorney. On
August 28, 2012, Parent signed an acknowledgment of receipt of procedural safeguards. (Dist.
Ex. 245). Yet she did not file her due process complaint until January 9, 2015, more than two
years later.
As a result, the Court agrees with the IHO and SRO that Parent was not prevented from
timely filing her due process complaint due to the District withholding information it was
required to provide. 2

2

Although not raised in Parent’s briefs, the Court has also considered the “continuing
violation” exception to the statute of limitations, but has determined there are no “compelling
circumstances” justifying its application here. See L.K. v. Sewanhaka Cent. High Sch. Dist.,
2015 WL 12964663, at *12 (E.D.N.Y. July 16, 2015), aff’d, 641 F. App’x 56 (2d Cir. 2016)
(summary order).
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IV.

The Parties’ Remaining Arguments
Because the Court has determined all of Parent’s claims are barred by the applicable

statutes of limitations, it need not address the remainder of the arguments raised in the parties’
briefs.
CONCLUSION
The motion for summary judgment of plaintiff Board of Education of the North Rockland
Central School District is GRANTED.
The motion for summary judgment of defendant C.M., individually and on behalf of her
child, P.G., is DENIED.
The IHO’s decision regarding Parent’s Section 504 claim is REVERSED, and the SRO’s
determination regarding Parent’s IDEA claims is AFFIRMED. In addition, in light of this
Opinion and Order, the Court’s July 25, 2016, Order (Doc. #38) directing the District to fund
P.G.’s programs and services at the Whitney Academy for the 2016-2017 school year is hereby
VACATED.
By June 30, 2017, the parties shall submit a joint proposed judgment consistent with this
Opinion and Order. If they cannot agree on a joint proposed judgment, the parties shall submit
separate proposed judgments for the Court’s consideration. In addition, if the parties would
benefit from a settlement conference before a magistrate judge or Court-appointed mediator, they

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shall inform the Court by letter by June 30, 2017, and the Court may refer the case for a
settlement conference or mediation.
The Clerk is instructed to terminate the motions. (Docs. ##46, 55).
Dated: June 19, 2017
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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