M.H. v. Pelham Union Free School District

168 F. Supp. 3d 667, 2016 U.S. Dist. LEXIS 38722, 2016 WL 2353949
CourtDistrict Court, S.D. New York
DecidedMarch 7, 2016
Docket15 Civ. 00060 (RMB)
StatusPublished
Cited by2 cases

This text of 168 F. Supp. 3d 667 (M.H. v. Pelham Union Free School District) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.H. v. Pelham Union Free School District, 168 F. Supp. 3d 667, 2016 U.S. Dist. LEXIS 38722, 2016 WL 2353949 (S.D.N.Y. 2016).

Opinion

DECISION & ORDER

Hon. Richard M. Berman, United States District Judge.

I. Background

On January 6, 2015, M.H. and S.H. (“Parents”) individually and on behalf of their son, S.H. (“S.”) (collectively, “Plaintiffs”) commenced this action pursuant to the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., against the Pelham Union Free School District (“Defendant” or “Pelham”). Plaintiffs appeal from adverse administrative decisions of the New York State Education Department Impartial Hearing Officer (“IHO”) and State Review Officer .(“SRO”). They request that the Court grant: (1) reimbursement for S.’s tuition at the Children’s Academy, a non-public school in New York City, for the 2013-14 school year (described by Plaintiffs as their “main argument” 1), and (2) “compensatory education” relief for the 2012-13 school year, notwithstanding that in their complaint, filed September 9, 2013 (“Due Process Complaint”), Plaintiffs did not mention 2012-13 (see J.A. Ex. P-A at 2, 9, 10). (See Compl., dated Jan. 6, 2015 (“Compl.”), at 2-4.)2

The parties agree that: (i) S. suffers from a “developmental disability” and has “severe language impairment,” “attention deficit hyperactivity disorder,” and “motoric (fine and gross motor) delays” (id. at 1; Answer, dated Feb. 19, 2015 (“Answer”), [671]*671at 1; Pis.’ Rule 56.1 Statement, dated Apr. 17, 2015 (“Pis.’ 56.1”), ¶¶ 1, 3, 5; Def.’s Rule 56.1 Response Statement, dated May 15, 2015 (“Def.’s 56.1”), ¶¶ 1, 3, 5); (ii) S. attended a special education class in public elementary school in Pelham, a school district required under the IDEA to provide a “free appropriate public education” (“FAPE”) to children with disabilities, during the 2010-11 school year (Pis.’ 56.1 ¶ 14; Def.’s 56.1 ¶ 14); (iii) S. participated in Pelham’s academic communication and experiential learning program (“A.C.E.Program”), a “class for students with various handicapping conditions,” during the 2011-12 and 2012-13 school years (Pis.’ 56.1 ¶¶ 15, 18 (internal quotation marks omitted); Def.’s 56.1 ¶¶ 15, 18); (iv) Pelham’s Individualized Education Programs (“IEPs”) for S. included, among other things, speech and occupational therapy sessions (Pis.’ 56.1 ¶¶4, 6, 79-80, 104; Def.’s 56.1 ¶¶ 4, 6, 79-80, 104), some of which sessions were “missed” during the 2012-13 school year3 (Pis.’ 56.1 ¶¶ 83, 85-86, 105-107; Def.’s 56.1 83, 85-86, 105-107); (v) on June 19, 2013, Pelham’s Committee on Special Education met to develop an IEP for S. for the 2013-14 school year and recommended that S. continue in Pelham’s A.C.E. Program (Pis.’ 56.1 ¶¶ 109, 119; Def.’s 56.1 ¶¶ 109, 119); (vi) at the June 19, 2013 IEP meeting, Plaintiffs were present, along with their educational consultant, Dr. Lydia Soifer, and “expressed their concern that S. was not making progress in Pelham’s program” (Pis.’ 56.1 ¶¶ 110, 112; Def.’s 56.1 ¶¶ 110, 112) (but see infra p. 676-77 where S.’s father is quoted as saying that S. made “great progress” during the 2011-12 school year (J.A. Ex. D-77 (emphasis added))); and (vii) Plaintiffs rejected Pel-ham’s A.C.E. Program and unilaterally enrolled S. in the Children’s Academy for the 2013-14 school year (Pis.’ 56.1 ¶ 125; Def.’s 56.1 ¶ 125).

Principal points upon which the parties appear to disagree include: (i) whether S. progressed or declined academically during three years (2010-11, 2011-12, 2012-13) at Pelham (see 1/26/16 Hr’g Tr. at 4:2-8, 18:16-21:22; Pis.’ 56.1 ¶¶ 51, 54, 67, 70-72, 76; Def.’s 56.1 ¶¶ 51, 54, 67, 70-72, 76); and (ii) whether procedures existed for Plaintiffs to pursue their claim for missed sessions in 2012-13, including the filing of [672]*672a timely supplemental due process complaint (see 1/26/16 Hr’g Tr. at 23:9-12, 24:5-7, 27:16-20; Def.’s Mem at 5-6; Pis.’ Reply Mem. in Supp. of Mot. for Modified De Novo Review, dated May 29, 2015 (“Pis.’ Reply”), at 3).

As noted, on September 9, 2013, Plaintiffs submitted their Due Process Complaint to Pelham pursuant to the IDEA and New York State Education Law, “re-questpng] a due process hearing ... to adjudicate ... relief the hearing officer deems appropriate pertaining to the 2013-2014 school year.” (J.A. Ex. P-A at 2.) The Due Process Complaint contended that “[p]rocedurally and substantively, [Pelham] deprived [S.] of a FAPE ... for the 2013-2014 school year.” (Id. at 9.) It also stated that: “For the 2013-2014 school year, the reimbursement, compensatory and/or prospective funding award should cover ... tuition and costs for placement at Children’s Academy ... [and] a compensatory education award for any and all educational services [S.] was entitled to but did not receive.” (Id. at 10.) It did not, as noted, mention the 2012-13 school year. (Id. at 2, 9, 10; see also 1/26/16 Hr’g Tr. at 9:20-22, 26:16-27:5.)

The IHO conducted an extended hearing over nine days between December 9, 2013 and May 30, 2014, during which fourteen witnesses, including S.’s father and Plaintiffs’ expert, Dr. Soifer, testified. (J.A. Ex. II (Findings of Fact and Decision, No. 79949, dated Aug. 27, 2014) at 1-2.) Plaintiffs, who were represented by counsel at the hearing, do not challenge the SRO’s observation that “the impartial hearing was conducted in a manner consistent with the requirements of due process.” (J.A. Ex. I (Application of a Student with a Disability, Appeal No. 14-152, dated Nov. 4, 2014) at 9.) Plaintiffs presented eight witnesses, including S.’s father and Plaintiffs’ expert, and the Defendant presented six witnesses. (J.A. Ex. II at 2.) Witnesses were subject to cross examination. (See, e.g., Tr. at 317:13-14.) “Multiple subpoena requests were made and granted” by the IHO. (J.A. Ex. II at 2.) Plaintiffs subpoenaed Kim Talmor, who had been S.’s occupational therapist at Pelham, as a witness. (Compl. at 4; J.A. Ex. II at 2.) On August 27, 2014, the IHO dismissed Plaintiffs’ Due Prócess Complaint. (J.A. Ex. II at 26.) The IHO determined that, for the 2013-14 school year, Pelham “provided [S.] a FAPE through its IEP dated June 19, 2013 and its corresponding [public] school placement.” (Id. at 25.) The IHO also determined that for the 2012-13 school year, “there is no evidence in the record to suggest that [S.’s] failure to receive related services in 2012-2013 rose to the level of FAPE denial.” (Id. at 16.)

On November 4, 2014, following an appeal by Plaintiffs, the SRO “affirmed the IHO’s conclusion that [Pelham] demonstrated it offered [S.] a FAPE for the 2013-14 school year,” citing, among other things, that “[S.] made progress during the 2012-13 school year”; that “the June 2013 IEP addressed [S.’s] behavioral needs”; and that the “parents and their educational consultant were afforded participation” in the June 19, 2013 IEP meeting. (J.A. Ex. I at 3, 9-10.) The SRO also determined that, with respect to any missed sessions during the 2012-13 school year, Plaintiffs’ “due process complaint notice cannot be reasonably read to include the issues raised sua sponte by the IHO regarding [Pelham’s] implementation of [S.’s] IEP during the 2012-13 school year.” (Id. at 8.) The SRO observed that the Due Process Complaint in several places “explicitly confined the parents’ challenges ...

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Bluebook (online)
168 F. Supp. 3d 667, 2016 U.S. Dist. LEXIS 38722, 2016 WL 2353949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mh-v-pelham-union-free-school-district-nysd-2016.