J.B. v. New York City Department of Education

242 F. Supp. 3d 186, 2017 U.S. Dist. LEXIS 39166, 2017 WL 1050108
CourtDistrict Court, E.D. New York
DecidedMarch 17, 2017
Docket16-CV-398 (RRM) (RLM)
StatusPublished
Cited by2 cases

This text of 242 F. Supp. 3d 186 (J.B. v. New York City Department of Education) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.B. v. New York City Department of Education, 242 F. Supp. 3d 186, 2017 U.S. Dist. LEXIS 39166, 2017 WL 1050108 (E.D.N.Y. 2017).

Opinion

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, United States District Judge

On April 15, 2015, plaintiff J.B. (the “Parent”) commenced this action on behalf of her child, K.B., pursuant to the individuals With Disabilities Education Improvement Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”). (Compl. (Doc. No 1.)) The Parent alleges that the New York City Department of Education (“DOE”) failed to provide a “free and appropriate public education” (“FAPE”) for the 2014-2015 school year, and that the Parent’s placement of KB. at a private school was the least restrictive environment available to meet her needs.

On January 20, 2015, the Parent filed a due process complaint seeking tuition reimbursement for KB.’s attendance at the Rebecca School for the 2014-2015 school year. (Id. at 515.) On July 28, 2015, an Impartial Hearing Officer (“IHO”) ruled against the Parent and found that K.B. was provided a FAPE. (Id', at 31-53.) The Parent appealed to the New York Stale Education Department Office of State Review, and on November 4, 2015, the State Review Officer (“SRO”) affirmed the IHO’s decision. (Id. at 6-29.) The Parent now challenges the SRO’s decision in this Court.

Before the Court are the parties’ cross-motions for summary judgment. For the reasons set forth herein, the Parent’s motion for summary judgment (Pet’r. Mem. (Doc. No. 24)) is denied, and the DOE’s cross-motion for summary judgment (Def. Mem. (Doc. No. 23)) is granted.

BACKGROUND

I. The IDEA

The IDEA provides federal funds to slates that assure all children with disabilities the right to a FAPE. 20 U.S.C. §§ 1412(1), 1415. A FAPE must include special services tailored to meet the child’s particular needs. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998); 20 U.S.C. § 1401(a)(18). For an IEP to be adequate under the IDEA, the IEP must be likely to produce progress rather than regression and afford “an opportunity greater than mere trivial advancement.” M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (internal quotation marks omitted). However, the IDEA does not require the IEP to furnish every special service necessary to maximize each child’s potential. Id.

New York receives federal funds .under the IDEA, and, therefore, must comply with its requirements. Accordingly, the DOE must, at least annually, set forth the student’s particular needs — and the services required to meet those needs — in an IEP that includes descriptions of: (1) the student’s present levels of academic achievement and functional performance; (2) annual goals, including short-term instructional objectives; (3) how the student is progressing toward these annual goals; (4) the special education, related services, and supplementary aids and devices that the student will receive; (5) the extent to which the student will be able to participate in a regular educational program; (6) the proposed services’.projected initiation date and duration;. and. (7) objective criteria, evaluation procedures, and schedules for determining, on at least an annual basis, whether the student is achieving his instructional objectives. ' 20 U.S.C. § 1414(d).

[190]*190II. K.B.’s Medical and Educational History

The following facts are not in dispute. During the relevant period for purposes of this litigation. 2014-2015, K.B. was 15 years old. K.B. was first diagnosed with autism in 2008 and she presents with a variety of severe deficits. (Id.) For example, K.B. has developmental delays, which require full modification of her education curriculum in terms of depth, breadth, and pacing of curricular activities. (Id. at 625.)1 She presents with deficits in all areas of language and communication, visual-spatial perception, sensory processing, and oral motor, fine motor, and gross motor skills. (Id. at 599-620.) At the time of the CSE meeting,"KB. was not yet fully toilet trained. (Id. at 624.)

K.B. requires adult assistance to succeed in a school setting. In order to be successful in a classroom, KB. needs a'sensory diet at least every two hours. (Id. at 468, 604, 615.) For example, she requires brushing protocol, joint compression, and walking on a treadmill to prevent dysregu-lation. (Id.) When surprised by a loud noise, KB. physically “freezes” and becomes unsure of depth perception. (Id. at 468, 599, 611.) In addition, KB. requires an oral-motor protocol to avoid choking. (Id. at 477, 483, 608, 619.)

Due to KB.’s lack , of progress from kindergarten through eighth grade, the Parent filed a due process complaint for the 2012-2013 school year. (Id. at 255.) On May 2, 2013, the DOE authorized the Parent to place K.B. in a state-approved private school. (Id. at 448.) On July 3, 2013, the Parent placed KB. at the Rebecca School, and the DOE funded such placement for the 2013-2014 school year. (Id. at 259.)

III. IEP for the 2014-2015 School Year

In June 2014, KB.’s Committee on Special Education (“CSE”) met to establish her IEP recommendation for the 2014-2015 school year. (Id. at 621-22, 641.) The CSE team included: the Parent; KB.’s teacher at the Rebecca School. Sara Ger-stein; social worker at the Rebecca School, Bonnie Waring; DOE school psychologist and district representative, Rose Fochetta; and DOE special education teacher, Feng Ye. (Id.) The two DOE members recommended, and the CSE adopted, a twelvemonth, 6:1 + 1 program (6 students, 1 teacher, and 1 aide) in a District 752 program for students with disabilities. (Id. at 642.) The CSE further recommended one individual 45-minute session and one group 45-minute session of occupational therapy per week, two individual 45-min-ute sessions and one group 45-minute session of speech-language therapy per week, two individual 45-minute sessions of physical therapy per week, adapted physical therapy twice per week, travel training once per week, one individual 45-minute session of counseling per week, and one parent counseling and training session for 60 minutes per month. (Id. at 627-628.) The ÍEP recommended the use of visual cues, teacher prompting, hand over hand support for writing, and a sensory diet. (Id. at 625.) The IEP included twelve annual goals, each with short-term objectives [191]*191and progress checks,, addressing the development of basic literacy, math, motor, language, and visual spatial skills. (Id. at 627-632.)

On June 10, 2014, the DOE sent the Parent a prior written notice summarizing the IEP. (Id. at 644.) On June 16,2014, the DOE sent the Parent a school location letter proposing PS Q1773 to implement K,B.’s IEP for 2014-2015 year. (Id.

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242 F. Supp. 3d 186, 2017 U.S. Dist. LEXIS 39166, 2017 WL 1050108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jb-v-new-york-city-department-of-education-nyed-2017.