G.B. v. TUXEDO UNION FREE SCHOOL DISTRICT

placement" was "the availability of ice hockey," and noting that "[t]he availability of ice hockey . . . is not a relevant consideration"). Thus, because N.B.'s private placements remedied her public placement's IDEA violations, and because N.B. progressed in her private placements, it does not matter whether N.B.'s parents removed her from Keller, in part, because it used the "ABA" methodology, or whether her parents chose Montclair and Montessori, in part, because they used the "Floortime" methodology. 3. Whether the Parents' Reimbursement Should be Equitably Reduced

"Any party aggrieved by the findings and decision" of an IHO or SRO in an IDEA case, has "the right to bring a civil action . . . in a district court of the United States." 20 U.S.C. § 1415(i)(2)(A). In such actions, a court "shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). This language "means that equitable considerations are relevant in fashioning relief" under IDEA. Burlington, 471 U.S. at 374. Thus, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist., 129 S. Ct. at 2496; see also Burlington, 471 U.S. at 369 ("The ordinary meaning of these words confers broad discretion on the court.").

Specifically, the parents' reimbursement "may be reduced or denied if . . . 10 business days . . . prior to the removal of the child from the public school, the parents did not give written notice to the public agency." 20 U.S.C. § 1412(a)(10)(C)(iii) (internal punctuation omitted); see also Forest Grove Sch. Dist., 129 S. Ct. at 2496 (noting that it may be appropriate to "reduce the amount of a reimbursement award if . . . the parents failed to give the school district adequate notice of their intent to enroll the child in private school"). This notice must state that the parents are "rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa). The record indicates that Mrs. B. telephoned Ms. Teed on January 10, 2007 to inform her that Mrs. B. removed N.B. from Keller effective January 2, 2007, eight days earlier, and that she intended to enroll N.B. at Montclair by the end of January 2007. (SRO Ex. 9; Tr. 167.) Ms. Teed wrote Mrs. B. a letter confirming this (SRO Ex. 9), but there is no record of Mrs. B ever sending the District written notice stating her concerns about Keller. Accordingly, Plaintiffs' reimbursement should be reduced for failure to provide proper notice before removing N.B. from Keller.

Mr. and Mrs. B. objected to N.B.'s 2007-08 placement on the record at the 8/7/07 CSE meeting (Tr. 913), thus providing sufficient notice of their intent to reject that IEP. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa).

Reimbursement may also be reduced "if, prior to the parents' removal of the child from the public school, the public agency informed the parents . . . of its intent to evaluate the child . . ., but the parents did not make the child available for such evaluation." 20 U.S.C. § 1412(a)(10)(C)(iii)(II); see also C.G. v. Five Town Cmty. Sch. Dist., No. 05-CV-237, 2007 WL 494994, at *30 (D. Me. Feb. 12, 2007), adopted by 2007 WL 1051650 (D. Me. Apr. 6, 2007) (noting that whether the parents' tuition reimbursement should be reduced depends on whether "they `removed' [their child] from public school . . . prior to receiving written notice . . . of the District's request to conduct evaluations"), aff'd, 513 F.3d 279 (1st Cir. 2008). The District contends that N.B.'s parents "refuse[d] to consent to a psychological evaluation of her as requested by the CSE." (Def.'s Mem. 21-22.) Although the District provides no citation to the record to support this statement, it appears that it refers to N.B.'s triennial evaluation, which was due August 23, 2007. (Tr. 885.) In mid-January 2007, Mrs. B. asked Ms. Teed if she could move this evaluation up, but then ultimately decided to have it performed privately by Dr. DeFina. (Tr. 884-86, 888, 896; Parents Admin. Ex. B.) Starting on January 26, 2007, the District made three requests to Plaintiffs for permission to have their daughter evaluated by a psychologist retained by the District. (Tr. 888-894.) Plaintiffs did not respond to these requests. ( Id.) But, there is no evidence that the District asked for this evaluation before N.B.'s parents removed her from Keller on January 2, 2007. Thus, because a refusal to submit to a public evaluation will only result in a reduction of reimbursement where " prior to the parents' removal of the child from the public school, the public agency informed the parents . . . of its intent to evaluate the child," 20 U.S.C. § 1412(a)(10)(C)(iii)(II) (emphasis added), Plaintiffs' reimbursement should not be reduced for failure to consent to a psychological evaluation.

Because Dr. DeFina did not issue his report until December 6, 2007 (Parents' Admin. Ex. B), it was not available for the CSE's 8/7/07 meeting at which it determined N.B.'s placement for the 2007-08 school year. Still, Ms. Teed testified that, even without an up-to-date psychological evaluation, the CSE had "sufficient [information] to make a determination" that N.B. should be placed in a self-contained class for the 2007-08 school year. (Tr. 941-92.)

Finally, reimbursement may be reduced "upon a judicial finding of unreasonableness with respect to actions taken by the parents." Id. § 1412(a)(10)(C)(iii)(III). Ms. Teed testified that on July 30, 2007, she requested Plaintiffs' permission to share N.B.'s educational records with a neuropsychologist retained by the District. (Tr. 895.) Because Plaintiffs' did not immediately respond, Ms. Teed asked their permission again a week later at the 8/7/07 CSE meeting. (Tr. 898-99.) Ms. Teed stated that Plaintiffs' attorney indicated that she would not allow her clients to sign the authorization at that time because she had not yet reviewed the forms. ( Id.) At that meeting, the CSE issued the last IEP at issue. While the CSE did not have the benefit of the requested records, it did have the advice of Dr. Blechman and his staff at BOCES. (Tr. 823-24.) Plaintiffs allowed Dr. Blechman and his BOCES team to evaluate their daughter at the District's request, even though Plaintiffs were opposed to sending N.B. to a self-contained program, like the one BOCES offered. (Tr. 910.) Moreover, the CSE had access to N.B.'s June 2007 Montclair progress report, a thirty-one page document. (District's Admin. Ex. 76.) Finally, Ms. Teed testified that, despite Plaintiffs' alleged lack of cooperation, the CSE had "sufficient [information] to make a determination" regarding N.B. at its August 7, 2007 meeting. (Tr. 941-92.) While Plaintiffs should have responded promptly to Ms. Teed's request for N.B.'s educational records, Ms. Teed may also be faulted for not requesting those records until one week before the CSE meeting. See Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462, 469 (7th Cir. 2000) ("[A] school district is [] also bound by the IDEA's preference for a cooperative placement process. . . ."). The evidence does not support a finding that the absence of these records materially harmed the decision making process, in fact, Ms. Teed testified to the contrary. Cf. M.S. v. Mullica Twp. Bd. of Educ., 485 F. Supp. 2d 555, 568 (D.N.J. 2007) (reducing parents reimbursement where they "refused to cooperate with the [school district] to such an extent that the [school district] was unreasonably prevented from creating an IEP"), aff'd, 263 F. App'x 264 (3d Cir. 2008). Accordingly, the Plaintiffs' reimbursement should not be reduced for failure to consent to the release of N.B.'s educational records. See Warren G. ex rel. Tom G. v. Cumberland Cnty. School Dist., 190 F.3d 80, 85-86 (3d Cir. 1999) (reversing the district court's reduction of reimbursement, despite the administrative panel's finding that parents made "unrealistic and unreasonable demands, provid[ed] inaccurate information, contradict[ed] themselves and ma[de] false accusations against the District," because "[t]he conduct of parents should not be permitted to defeat the purpose of the Act").

4. Whether Plaintiffs' Exhausted Their Administrative Remedies

The SRO upheld N.B.'s 2006-07 placement at Keller, in part, because N.B.'s parents did not raise the concern that N.B.'s class at Keller was not integrated "at any time prior to their withdrawal" from Keller nor "did they indicate such in their May 7, 2007 due process complaint notice." (SRO Decision at 11.) To the extent that this is a finding that Plaintiffs did not properly raise the issue of whether N.B.'s proposed placement for the Spring of 2007 violated IDEA's mainstreaming requirement, it is misguided.

IDEA requires that a due process complaint contain "a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and a proposed resolution of the problem to the extent known and available to the party at the time." 20 U.S.C. § 1415(b)(7)(A)(ii). Further, "[t]he party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice." Id. § 1415(f)(3)(B). "IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court. . . ." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004); see also Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 490 (2d Cir. 2002) ("[The] disabled-student plaintiffs . . . should not be permitted to `sit on' live claims and spurn the administrative process that could provide the educational services they seek, then later sue for damages."). Exhaustion is required "so that disputes related to the education of disabled children are first analyzed by administrators with expertise in the area who can promptly resolve grievances." J.S., 386 F.3d at 112. This "`affords full exploration of technical educational issues, furthers development of a complete factual record, and promotes judicial efficiency.'" Id. (quoting Polera, 288 F.3d at 487).

Here, Plaintiffs' first due process complaint noted that N.B. had attended "a neuro-typical preschool" prior to the 2005-06 year, and alleged that "it was agreed by all of the special education professionals present" at the 2005 CPSE meetings, "that NB needed to be in a `full day, integrated program." (IHO Ex. 1, at 5 (emphasis in original).) After noting several deficiencies in the Keller school, the complaint avers that the District offered to let N.B. leave Keller, but only if she attended a school on a list provided by the District, "none of [which] . . . had a full-day integrated learning program." ( Id. at 8.) The complaint insists that N.B. "clearly needed" an integrated program and that it was "counter-productive" for N.B. to continue at Keller. ( Id. at 9-10.) Thus, N.B.'s parents placed her at Montclair because, they claimed, it was "[t]he only other appropriate school we could identify for NB with a full-day integrated learning program using sensory-based learning." ( Id. at 10.) The due process complaint concludes with Mrs. B.'s assertion that "NB has a one-on-one teaching assistant who works with her on a daily basis at the Montclaire [sic] school, and as NB's mother, I have noticed a dramatic improvement." ( Id. at 11.) The complaint's proposed solution was that N.B. "[c]ontinue [her] program at Montclaire [sic] with tuition reimbursement." ( Id. at 3.)

The District's response justified N.B.'s placement by asserting that N.B. improved at Keller, but still needs to "develop prerequisite skills in order to be able to function in larger group settings." (IHO Ex. 4.) The letter further noted that "other NYS approved preschools . . . were considered and rejected as Mrs. [B.] was unwilling to consider a non-integrated class setting." ( Id.) N.B.'s parents sent a second impartial hearing request on November 12, 2007, seeking to amend their first complaint to challenge N.B.'s 2007-08 placement as well. This second complaint attacked N.B.'s 2007-08 placement, inter alia, because it "fail[ed] to provide for any mainstreaming," which was assertedly inappropriate because N.B. "functions adequately in an integrated classroom environment and models effectively from non-disabled students." (IHO Ex. 2, at 4.) The complaint then insisted that N.B. "should be within an integrated classroom," and that she "requires a one to one aide." ( Id. at 5.)

As noted, the IHO combined these complaints and heard extensive testimony on, among other issues, whether the CPSE agreed to place N.B in a self-contained or an integrated class for the 2006-07 year, and on whether N.B.'s class at Keller was in fact integrated. The IHO also heard testimony that Keller did not provide N.B. with a 1:1 aid to accompany her to class, even though she had such an aide at every other school she attended, and her Keller teacher recommended such an aide. (Tr. 1490.) Moreover, Ms. Sanchez testified that N.B. was often ignored at Keller (Tr. 411-12, 1283-87), and often did not have "any assistance from an aide or a teacher to kind of support her to be able to engage in what the other kids were doing," (Tr. 412).

Accordingly, the issue of whether the District offered to educate N.B. alongside non-disabled children to the maximum extent appropriate (including a 1:1 aide) during the 2006-07 year was properly raised before the IHO. To be sure, this issue is a bit confusing due to the odd fact pattern upon which it is based, viz., the facts that the 10/3/06 IEP recommended a self-contained class, the class was "effectively integrated" in violation of the IEP, the CPSE chairperson testified this effective integration did not occur, and that the CPSE chairperson placed Mrs. B. in a Catch-22 where she could either transfer her daughter to a self-contained class, or leave her in the effectively integrated class without the accommodations she needed. But, this obscure fact pattern was largely created by the District, not N.B.'s parents. Moreover, even though the SRO "noted" that Plaintiffs did not allege that N.B.'s 2006-07 placement violated IDEA's mainstreaming requirement in their first due process complaint, he considered that claim nonetheless. (SRO Decision, at 11-12.) Thus, Plaintiffs did exhaust that claim.

In fact, it is the District that raises an argument before this Court that it did not press before the IHO and SRO. The District seeks to avoid responsibility for its 6/5/06 IEP, which improperly recommended that N.B. attend a self-contained class, by pointing out that Keller officials ignored the IEP by effectively integrating N.B.'s class without the CPSE's permission. (Def.'s Mem. 10.) Yet, the District's brief to the SRO asserted just the opposite, that "[i]n her special class at the Keller School, N.B. was suitably grouped for instructional purposes with children having similar needs and abilities." (Def.'s Mem. of Law Submitted to the Office of State Review, Sept. 3, 2008, at 7.) The Court has noted that the District's new argument fails, among other reasons, because, if the Keller class was integrated, it would violate IDEA's FAPE requirement by failing to provide that 1:1 aide that every witness (except maybe Dr. Nuzzolo) testified she needed in order to succeed in an integrated class. The Court is comfortable making this observation, even though Plaintiffs' first due process complaint did not explicitly fault Keller for failing to provide N.B. with a 1:1 aide, because, based on the totality of Plaintiffs' due process complaints and the IHO record, Plaintiffs' position was clear: N.B. needed an integrated classroom with a 1:1 aide.

To the extent the SRO suggested that Plaintiffs' reimbursement claim for the spring of 2007 is barred because N.B.'s parents did not raise the concern that her class at Keller was not integrated "at any time prior to their withdrawal" from Keller (SRO Decision at 11), it was mistaken. First, as noted, the District responded to Plaintiffs' May 7, 2007, due process complaint by noting that "Mrs. [B.] was unwilling to consider a non-integrated class setting." (IHO Ex. 4.) Second, that N.B.'s class at Keller was clandestinely integrated may have made complaining that it was insufficiently integrated rather awkward for N.B.'s parents. But, even assuming that N.B.'s parents unjustifiably failed to complain to Keller officials or to the CPSE before removing their daughter, this would not bar their claim for failure to exhaust administrative remedies. See J.S., 386 F.3d at 112 (noting that exhaustion is required "so that disputes related to the education of disabled children are first analyzed by administrators"). Rather, Plaintiffs' alleged failure to cooperate, at most, suggests that their damages should be equitably reduced. See 20 U.S.C. § 1412(a)(10)(C)(iii)(III) (stating that reimbursement may be reduced "upon a judicial finding of unreasonableness with respect to actions taken by the parents"); Forest Grove Sch. Dist., 129 S. Ct. at 2496 (noting that district courts may, in their discretion, reduce the damages of parents who "immediately enroll their children in private school without first endeavoring to cooperate with the school district"). The District may address this issue in supplemental briefing.

III. Conclusion

For the foregoing reasons, the Court grants Plaintiffs' motion for summary judgment and denies Defendant's cross-motion for summary judgment. The Clerk of the Court is respectfully directed to terminate the pending motion. (Dkt. No. 13.) The Parties should submit briefs, within thirty days, addressing Plaintiffs' damages (including the extent to which they should be equitably reduced), and whether an injunction should issue.

SO ORDERED.