UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------- x Z.A.R., Mother and Natural Guardian of E.J., and : Z.A.R., individually :
Plaintiffs, : REPORT & : RECOMMENDATION -against- : : 19-cv-2615 (CBA) (PK) THE CITY OF NEW YORK and NEW YORK : CITY DEPARTMENT OF EDUCATION, :
Defendants. :
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Peggy Kuo, United States Magistrate Judge:
Plaintiff Z.A.R. brings this action individually and on behalf of her child E.J. against
Defendants The City of New York and New York City Department of Education (the “DOE” and
collectively with the City of New York, “Defendants”) pursuant to the Individuals with Disabilities
Education Act (“IDEA”). Plaintiff seeks review and reversal of a final administrative decision by a
New York State Review Officer denying her tuition reimbursement following E.J.’s unilateral
placement at a private school. (Dkt. 14.) The parties cross-moved for summary judgment. (Dkts. 40,
41.) The Honorable Carol Bagley Amon referred the motions to the undersigned. (Dkt. Entry Dec.
5, 2019.) For the reasons below, the undersigned recommends Plaintiff’s motion be GRANTED and
Defendants’ motion be DENIED. 1
BACKGROUND
I. Overview of the IDEA
The following overview of the IDEA will assist in interpreting the factual background of the
case:
1 Plaintiff’s Amended Complaint requests costs and attorneys’ fees, but her motion for summary judgment does
not request this relief. The undersigned therefore makes no recommendation as to this relief.
1
Under the IDEA, qualifying disabled students are entitled, each year, to free appropriate public education (“FAPE”) that conforms to a tailored education plan designed for their particular needs. The education plan, called an Individualized Education Program (“IEP”), must be developed annually by a Committee on Special Education (“CSE”)—a committee comprising at least “the student’s parent(s), a representative of the school district, a special education provider, a general education teacher if the student is being considered for a general education environment, and any other individual with special knowledge or expertise concerning the child.” In New York, decisions made by CSEs can be appealed to an Impartial Hearing Officer (“IHO”), and decisions made by IHOs can, in turn, be appealed to a State Review Officer (“SRO”). A dissatisfied party may seek judicial review of an SRO decision.
Parents of students covered under the IDEA may unilaterally reject the placement recommended by the CSE, choosing to enroll the student(s) elsewhere while they appeal the CSE’s recommendation if they find that recommendation unsuitable. In doing so, parents can seek DOE funding for the tuition of their preferred placement if they can demonstrate: (1) that the CSE’s recommended placement does not comply with the IDEA; (2) that the placement favored by the parent is appropriate given the needs of the child; and (3) that equitable considerations favor reimbursement. Parents who unilaterally reject the recommended placement during the pendency of an appeal of the CSE’s decision do so at their own financial risk.
J.L. v. New York City Dep’t of Educ., No. 15-CV-1200 (CBA)(RER), 2016 WL 6902137, at *1 (E.D.N.Y.
Nov. 22, 2016) (internal citations and quotations omitted).
II. Factual History
These facts are taken from the SRO administrative record (Dkt. 18-1), Defendants’ Rule 56.1
Statement of Material Facts (Dkt. 42), and Plaintiff’s Rule 56.1 Counterstatement of Material Facts
(Dkt. 44.) All page number references are to the ECF page number, not the document page number,
and all references to testimony are to the testimony provided in hearings before the IHO.
A. E.J.’s Educational History and the 2016 Appeal
E.J. is a bright student with recognized disabilities. (Dkt. 18-1 at 51; Dkt. 42 ¶ 1-2; Dkt. 44 ¶
1-2.) Her education was the subject of a prior New York State administrative review under the IDEA
for the 2013-14, 2014-15, and 2015-16 school years (the “2016 Appeal”). (Dkt. 18-1 at 7.) The record
in this matter does not include the full record in the 2016 Appeal, but the SRO decision includes
references to it. (Dkt. 18-1 at 7-8, 22-23.) The facts of that appeal are not relevant here, except that
2
the IHO in the 2016 Appeal concluded that reevaluations for E.J. were necessary, including speech
language, occupational therapy (“OT”), audiological, central auditory processing, and visual
perception processing evaluations, to be funded by the DOE, along with a classroom observation and
updated neuropsychological evaluation. (Dkt. 18-1 at 22-23.) Plaintiff challenged those
determinations, but her arguments were found insufficient and the IHO’s conclusions were upheld.
(Dkt. 18-1 at 8.)
Pursuant to the IHO’s determination in the 2016 Appeal, Plaintiff and the DOE entered into
a written agreement whereby the DOE would fund the reevaluations. (Dkt. 18-1 at 22-23.) It is not
clear from the record when the parties entered into that written agreement, and the agreement itself
was not part of the record provided here.
E.J. has attended the Summit School, a New York State-approved non-public school, since
the 2016-17 school year. (Dkt. 18-1 at 8.)
B. Scheduling the 2017-18 IEP Meeting
The DOE first contacted Plaintiff to schedule a CSE meeting to develop E.J.’s 2017-18 IEP
in February 2017. (Dkt. 18-1 at 19, 785-86.) A DOE school psychologist testified that she mailed a
notice to Plaintiff on February 22, 2017 scheduling a reevaluation for March 25, 2017 and an initial
CSE meeting for April 21, 2017. (Dkt. 18-1 at 19, 172-73, 785-86.)2 Plaintiff later wrote in an email
to the DOE school psychologist that she was never notified of the initial request for testing on March
25, 2017. (Dkt. 18-1 at 723.)
Neither Plaintiff nor E.J. appeared for the March 25, 2017 reevaluation, and the DOE
rescheduled it for May 13, 2017. (Dkt. 18-1 at 19, 173-74, 785.) The originally planned April 21, 2017
CSE meeting was also canceled. (Dkt. 18-1 at 19, 174, 785.) The DOE school psychologist called
2The record includes an event log that details communications, including emails exchanged between Plaintiff and the DOE.
3
Plaintiff on multiple occasions to reschedule the meeting but was unable to reach Plaintiff or to leave
voicemails. (Dkt. 18-1 at 19, 174, 785.) The DOE school psychologist also called E.J.’s father and
left voice messages for him. 3 (Dkt. 18-1 at 19, 174, 785.) On April 20, 2017, the DOE school
psychologist sent an email to Plaintiff notifying her that the reevaluation was rescheduled for May 13,
2017, and that the CSE meeting was rescheduled for May 30, 2017. (Dkt. 18-1 at 19, 174-75, 784-85.)
In a May 10, 2017 email, Plaintiff wrote to the DOE school psychologist requesting that the
reevaluation be rescheduled again, and noted that she would be “available any day during the week of
June 19th-23rd” for a CSE meeting to develop E.J.’s 2017-18 IEP. (Dkt. 18-1 at 722, 784; Dkt. 42 ¶
5.) Plaintiff also wrote that “If you would like to speak with me I can be reached by cell … or by
email as well.” (Dkt. 18-1 at 722, 784.)
The DOE school psychologist testified that she sent an email and a letter to Plaintiff notifying
her that she would schedule a CSE meeting during the week of June 19-23 and requesting a signed
consent form to reschedule E.J.’s reevaluations. (Dkt. 18-1 at 19, 176-77.) A DOE electronic event
log entered into evidence at the IHO hearing and referenced in the DOE school psychologist’s
testimony shows an entry on May 12, 2017 consistent with the DOE school psychologist’s testimony.
(Dkt. 18-1 at 783.)
In another email dated May 13, 2017, Plaintiff wrote that she had not given permission for the
CSE to communicate with her by email and instructed DOE to “send all communications regarding
meetings and other requests in writing to my home address.” (Dkt 18-1 at 723, 781; Dkt. 42 ¶ 4.)
Plaintiff noted that E.J. had “current” evaluations because they were less than three years old, and
asked whether there was “some reason why the CSE is requesting new evaluations where current
evaluations exist?” (Dkt. 18-1 at 723, 781.)
3 Plaintiff is E.J.’s custodial parent and responsible for all decisions regarding her education. (Dkt. 44 ¶ 4.) E.J.’s father is not involved in decisions regarding her education. (Dkt. 44 ¶ 4.)
4
In a separate May 13, 2017 email, Plaintiff wrote to a different DOE employee stating that she
did not consent to email communications and again “request[ed] that all communications need to be
mailed.” (Dkt. 18-1 at 728.) Plaintiff again wrote that E.J.’s testing was less than three years old and
therefore current and asked for clarification as to why E.J.’s existing evaluations could not be
considered at the upcoming CSE meeting. (Id.) The DOE employee replied on May 15, 2017, first
acknowledging Plaintiff’s preference not to communicate through email, and then suggesting that
Plaintiff contact the DOE school psychologist to discuss “any questions or concerns.” (Dkt. 18-1 at
727.)
In another email on May 24, 2017 to the DOE school psychologist, Plaintiff reiterated her
position that E.J.’s evaluations were current and again “requested the reasons why new evaluations
were needed.” (Dkt. 18-1 at 722.) The DOE school psychologist explained in a reply email that
reevaluations were needed to assess whether E.J. still had an educational disability and whether she
still needed special education services. (See Dkt. 18-1 at 177-79, 781-82.) In response, Plaintiff emailed
the DOE school psychologist a copy of E.J.’s 2014 neuropsychological evaluation. (Dkt. 18-1 at 782.)
The DOE acknowledged receipt of that email but wrote that DOE already had that 2014 evaluation
and noted that her “academic skill development has likely changed since [2014].” (See Dkt. 18-1 at
177-79, 781-82.)4
The parties dispute whether Plaintiff was properly notified of the exact date of the CSE
meeting. The DOE school psychologist testified that she mailed Plaintiff notice of the June 20, 2017
CSE meeting. (Dkt. 42 ¶ 5; Dkt. 18-1 at 181 (testimony that “a meeting notice was mailed for 6/20”);
Dkt. 18-1 at 759 (handwritten notation on CSE minute meeting that “letter mailed 5/12”).) The
4 The DOE event log includes the text of the May 24, 2017 email chain in which the DOE school psychologist
explains the need for updated testing. (Dkt. 18-1 at 781-82.) Only the log of the emails with the text of the emails copied into the log is provided, and not the emails themselves. (See Dkt. 18-1 at 219-220) (testimony of DOE school psychologist stating that “I just copy and paste straight from the – straight from my emails. I copy and paste” into the event log.)
5
record includes a copy of a May 12, 2017 notice that she claims to have mailed. (Dkt. 18-1 at 756-58
(copy of June 20, 2017 notice).) 5 It also states that the “Meeting can be conferenced by phone…
email [the DOE school psychologist] to confirm.” (Dkt. 18-1 at 756.) The third page of the notice
in the record contains Plaintiff’s address, but there is no postmark, date stamp or other indication that
the letter was, in fact, mailed. (Dkt. 18-1 at 758.) The DOE event log includes an entry by the DOE
school psychologist on May 12, 2017 stating, “‘Notice of IEP Meeting: Reevaluation/Annual Review’
sent for [E.J.] Letter sent today.” (Dkt. 18-1 at 783.) Plaintiff testified that she never received the
letter and disputes that the mailing took place. (Dkt. 44 ¶ 5; Dkt 18-1 at 566-67.)
The parties also dispute whether the Summit School had proper notice of or was invited to
participate in the CSE meeting prior to June 20, 2017. Although the DOE school psychologist
testified that she invited the Summit School to the CSE meeting “through Outlook,” there is no copy
of the meeting invitation in the record, and the DOE event log does not include reference to an
Outlook invitation. (See Dkt. 18-1 at 254.) The DOE school psychologist testified that, because the
Summit School provided documents in advance of the CSE meeting, she believed the school had
notice of the meeting. (Dkt. 42 ¶ 7; Dkt. 18-1 at 255-57.) The Summit School clinical director testified
that the school did not have prior notice of the meeting. (Dkt. 44 ¶ 7; Dkt. 18-1 at 333-34.) Other
Summit School employees also testified that they did not have notice of the CSE and would have
participated if they had. (Dkt. 44 ¶ 7; Dkt. 18-1 at 381-82; 409-410; 519-520.)
C. June 2017 CSE Meeting
E.J. was not reevaluated. Nevertheless, a Committee on Special Education met on June 20,
2017 to develop E.J.’s 2017-18 IEP. (Dkt. 42 ¶ 3.) E.J.’s teachers from the Summit School did not
attend the CSE meeting, but the Summit School clinical director did attend by phone. (See Dkt. 42 ¶
5 Although dated May 12, 2017 and indicating the date of the meeting as June 20, 2017, the notice also states
that “The IEP Meeting must be held no later than 04/23/2017.”
6
7; Dkt. 18-1 at 21-22.) The Summit School clinical director asked for the meeting to be postponed so
Plaintiff could attend, but the meeting went forward without her. (Dkt. 44 ¶ 7; see also Dkt. 18-1 at
709.)
The parties dispute whether DOE attempted to contact Plaintiff immediately before or during
the meeting to try to secure her attendance. Plaintiff contends that she did not receive any phone calls
on the day of the meeting. (Dkt. 44 ¶ 6; Dkt. 18-1 at 567.) Plaintiff further contends that she received
an email the next day “that did not state that an IEP meeting was taking place at the time the email
was sent or that her participation in an IEP meeting was needed.” (Dkt. 44 ¶ 6; see Dkt. 18-1 at 710.)
The DOE school psychologist testified that she did attempt to contact Plaintiff by phone and email
before and during the meeting. (Dkt. 42 ¶¶ 4, 6; Dkt. 18-1 at 214.) The Summit School’s records
include a notation by the clinical director that the DOE school psychologist attempted to call Plaintiff
before and at the end of the CSE meeting. (Dkt. 18-1 at 709.) The DOE’s records contain notes of
attempted calls before, during, and at the end of the meeting, to the cellphone number provided by
Plaintiff. (Dkt. 18-1 at 759-60, 781.) The record contains a copy of an email dated June 20, 2017,
without a time stamp, from the DOE school psychologist to Plaintiff. (Dkt. 18-1 at 710.) In that
email, the DOE school psychologist wrote that she was “trying to call the number provided for [E.J.’s]
meeting … It rings busy,” and requested a call back. (Id.) Plaintiff called the DOE school psychologist
on June 21, 2017 in response to the email, but there was no answer and no return call. (Dkt. 44 ¶ 6;
Dkt. 18-1 at 577-78.)
The CSE meeting convened on June 20, 2017 with the DOE school psychologist, a district
special education teacher, and the Summit School clinical director. (Dkt. 18-1 at 8, 753, 755.)
D. 2017-18 IEP
The parties disagree on which documents the CSE relied upon when developing the IEP. The
DOE contends that the CSE reviewed several documents in preparing E.J.’s IEP, including “a June
7
2014 psycho-educational evaluation, a December 2014 neuropsychological consultation report, a
March 2016 Occupational Therapy evaluation, a September 2016 IEP, a 2016-2017 mid-year
evaluation report, a December 2016 speech-language progress report, a January 2017 counseling
progress report, and results from school-wide assessments.” (Dkt. 42 ¶ 8.) The DOE states that it
did not consider other evaluative materials. (Dkt. 42 ¶ 9.) Plaintiff argues that “[t]he prior written
notice reflects that the school psychologist based her recommendation solely on Summit School
records” and that the DOE school psychologist “was of the incorrect belief that E.J did not receive
occupational therapy during the 16-17 school [year]…” (Dkt. 44 ¶ 8.) 6 The section of the DOE
“Prior Written Notice” describing “each evaluation procedure, assessment, record, or report used in
the decision to propose or refuse the action” only lists “School Documents/Progress Reports.” (Dkt.
18-1 at 761.) In addition, Plaintiff argues that the CSE did not consider E.J’s visual needs and failed
to include vision-related goals in the IEP. (Dkt. 44 ¶ 8.) Plaintiff also contends that the CSE
considered other evaluative materials, including testing results. (Dkt. 44 ¶ 9.)
The IEP itself directly or indirectly references all the documents that DOE claims it considered
when developing the IEP. (Dkt. 18-1 at 730 (June 2014 psycho-education evaluation, September 2016
IEP, school-wide assessments); 731 (December 2014 neuropsychological consultation report and
school-wide testing); 731-735 (mid-year, speech, and counseling reports); 735 (March 2016 OT
evaluation, visual perceptual test and visual motor integration test, September 2016 IEP).) The IEP
also references certain testing results. (Dkt. 18-1 at 730 (referencing Terra Nova and Wide Range
Achievement Test (“WRAT”) evaluations).) 7
6 The Prior Written Notice is a document that informs parents in writing of the DOE’s recommendations
concerning special education services. See 34 C.F.R. § 300.503 (describing prior notice requirement).
7 Although it is not clear from the record, these may be the same as the school-wide testing results referenced
by the DOE.
8
The IEP included a recommendation that E.J. participate in a general classroom setting with
ten weekly periods of “integrated co-teaching” (“ICT”) for English, math, social studies, and sciences,
along with individual counseling, OT, and speech-language services. (Dkt. 42 ¶ 10; Dkt. 18-1 at 746-
753.) The IEP also included testing accommodations and recommended specific educational
interventions. (Dkt. 42 ¶ 10-11; Dkt. 18-1 at 746-753.) 8 The IEP considered a “Special Class in a
community school 12-1” and “Special Class in a community school 12-1+1” but rejected those
options because they were “determined not appropriate.” (Dkt. 18-1 at 753.) The IEP also considered
a “NYSED-Approved Non Public School - Day” but it was “deemed too restrictive.” (Id.)
The DOE sent the Prior Written Notice and the IEP to Plaintiff on or about June 27, 2017.
(Dkt. 18-1 at 761-764, 780.) 9
E. The Unilateral Placement
On August 22, 2017, Plaintiff submitted a “Ten-Day Notice” 10 to DOE informing it that E.J.’s
IEP was not appropriate and denied her a FAPE, and that E.J. would therefore be unilaterally placed
at the Summit School for the 2017-18 school year. (Dkt. 18-1 at 54-55, 682-684.) E.J.’s tuition was
$34,088.00. (Dkt. 18-1 at 55, 695.)
Plaintiff unilaterally enrolled E.J. at the Summit School on September 7, 2017. (Dkt. 42 ¶ 13;
Dkt. 18-1 at 695.)
8 Plaintiff disputes whether a few of those educational interventions were actually recommended, as opposed
to merely discussed in the IEP. (Dkt. 44 ¶ 11.) The IEP includes these additional interventions under a section titled “Management Needs,” but the IEP merely notes that E.J. “responds well to” those interventions, rather than outright recommending them. (Dkt. 18-1 at 737.) It does not include them on the list of recommended special education programs and services. (See Dkt. 18-1 at 746-747.)
9 The letter notifying Plaintiff of the IEP is dated June 26, 2017 but the DOE event log states it was mailed on
June 27, 2017. (Compare Dkt. 18-1 at 761 with 780.)
10 Federal regulations require parents to notify a school district at least ten business days before unilaterally
placing their child at a non-public school. 34 C.F.R. § 300.148(d)(1)(ii).
9
III. The State Administrative Proceedings
A. Due Process Complaint
On November 9, 2017, Plaintiff sent to the DOE an impartial hearing complaint, which the
parties also refer to as a “Due Process Complaint.” (See Dkt. 18-1 at 629-631.) In it, Plaintiff argued
that E.J.’s IEP denied her a FAPE. (Dkt. 18-1 at 629.) Plaintiff also contended that she had no
advance notice of the June 20, 2017 CSE meeting, that at the time of the meeting the Summit School
contested the meeting going forward without the parent, and that the DOE school psychologist
denied Plaintiff meaningful participation in the development of E.J.’s IEP. (Dkt. 18-1 at 629.) Plaintiff
further argued that the IEP was predetermined, that the Summit School was an appropriate placement
for E.J., and that while she had cooperated with DOE, DOE had not been cooperative with her.
(Dkt. 18-1 at 630.) She requested an interim order for busing and an award of tuition. (Dkt. 18-1 at
630-31.)
B. The IHO Decision
An IHO was appointed on November 10, 2017 to hear Plaintiff’s appeal. (Dkt. 18-1 at 50.)
The IHO held eight hearings between December 14, 2017 and April 30, 2018, at which the IHO heard
arguments and testimony from both Plaintiff’s and Defendants’ witnesses. (Id.)
The IHO did not make an express finding of procedural inadequacy in the development of
the IEP. Substantively, the IHO found that the IEP’s recommendation of ICT services in a general
education classroom was not appropriate because the class would not include students of E.J.’s ability
(referred to as “functional grouping”), and she would not receive sufficient support in class. (Dkt. 18-
1 at 56.) The IHO noted that E.J. “require[s] a class in which she can be grouped with students with
similar cognitive levels and provided with a substantial amount of attention….” (Id.)
However, the IHO found that it was “unclear” whether the Summit School was an appropriate
placement. (Id.) The IHO noted that “there is no evidence that the students in the [E.J.’s] class are
10
gifted or that she is grouped with gifted students.” (Id.) Based on records from the Summit School,
the IHO “question[ed] whether the work assigned meets [E.J.’s] needs, and perhaps, whether she is
being sufficiently challenged.” (Dkt. 18-1 at 53.) The IHO further noted that E.J. “performed
inconsistently at the Summit School during the 2016-2017 school year, and continues to struggle with
the same issues during the current school year.” (Dkt. 18-1 at 56.) The IHO found that the evidence
did not show that the Summit School was an appropriate placement. (Dkt. 18-1 at 57.)
The IHO also found that the equities weighed against tuition reimbursement. (Id.) The IHO
noted that “the Parents did not cooperate in having the Student evaluated, which hampered the
development of an appropriate IEP.” (Id.) The IHO also found that although Plaintiff contended
that she did not participate in the June 20, 2017 meeting because she did not receive the DOE’s notice,
she failed to include this information in her ten-day notice. (Id.) According to the IHO, if this
CSE.” (Id.)
The IHO ordered remedial efforts by the DOE, including reevaluations of E.J., and directed
the CSE to convene to review those reevaluations and “to make an appropriate recommendation.”
(Dkt. 18-1 at 58-59.) 11
C. The SRO Decision
Plaintiff appealed the IHO’s determination to the SRO, and the DOE cross-appealed. (Dkt.
18-1 at 10-11.) 12
The SRO rejected Plaintiff’s arguments concerning procedural inadequacies in the
development of the IEP. The SRO reviewed in detail the evidence regarding whether Plaintiff had
11 The IHO also issued an interim order on December 14, 2017, ordering bussing for E.J. to the Summit School.
(Dkt. 18-1 at 45.) That decision has not been appealed by either side.
12 The SRO made several administrative procedural findings that the parties do not raise on appeal here. (Dkt. 18-1 at 16-18.)
11
notice of the June 20, 2017 CSE meeting. (Dkt. 18-1 at 19-22.) The SRO found that Plaintiff’s
“testimonial assertions” regarding lack of notice of the June 20, 2017 CSE meeting did not outweigh
the DOE’s evidence that it provided notice and attempted to secure Plaintiff’s presence at the meeting.
(Dkt. 18-1 at 20-21.) The SRO therefore concluded that Plaintiff’s lack of attendance at the meeting
was not an IDEA procedural violation and that the DOE did not impede her participation in
developing E.J.’s IEP. (Dkt. 18-1 at 21.) The SRO also concluded that, although the CSE meeting
did not include “a regular education teacher of the student” as required by 20 U.S.C. § 1414(d)(1)(B)(ii),
Plaintiff’s refusal to consent to reevaluations for E.J. and failure “to respond to the attempts to gain
her participation in the CSE” weighed against a finding of procedural inadequacy. (Dkt. 18-1 at 21-
22.)
Regarding Plaintiff’s refusal to consent to reevaluations, the SRO found that because E.J.’s
initial evaluations were more than a year old, the DOE’s request for reevaluations was proper,
particularly in light of the 2016 Appeal’s finding that reevaluations were needed. (Dkt. 18-1 at 22-23.)
The SRO noted that because of Plaintiff’s refusal to consent to reevaluations, the DOE could have
considered E.J. entirely ineligible for special education; however, the DOE considered her eligible
based on her 2014 evaluations. (Dkt. 18-1 at 23-24.) The SRO then undertook a detailed review of
the evaluations available to the CSE and concluded that the CSE appropriately considered the available
did not consider “the full range of the student’s strengths and weaknesses,” the parent’s refusal to
consent to reevaluations was the cause of that deficiency. (Dkt. 18-1 at 24.)
Nevertheless, the SRO upheld the IHO’s conclusion that the IEP denied E.J. a FAPE, but on
different grounds. The SRO rejected the IHO’s functional grouping conclusions as outside the scope
of the IHO’s review. (Dkt. 18-1 at 34.) The SRO conducted a detailed weighing of the
appropriateness of the IEP’s recommendation of ICT in a general education classroom based on the
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evidence presented to the IHO. (Dkt. 18-1 at 31-34.) The SRO’s assessment was highly
individualized, noting that while “ICT services that include both a full-time special education teacher
and a full-time regular education teacher” would generally provide a student with E.J.’s profile with a
FAPE, the records from the Summit School suggested that such ICT services would be insufficient
for E.J., given her “gradual or inconsistent progress” in school and her “difficulties with attention and
distractibility.” (Dkt. 18-1 at 33-34.) The SRO wrote,
One factor that might have allayed my concerns would have been the input of a regular education teacher at the CSE meeting who was familiar with how a student with this level of distractibility could or could not make progress toward her annual goals in an ICT setting, but … no regular education teacher participated in the development of the IEP.
(Dkt. 18-1 at 34.) The SRO thus concluded that the DOE failed to meet its burden to show that a
general education class with ICT services would be appropriate for E.J., and therefore failed to show
that the DOE offered a FAPE. (Id.)
The SRO then determined, contrary to the IHO’s findings, that the Summit School was an
appropriate placement for E.J. (Dkt 18-1 at 34-41.) The SRO’s detailed legal description and factual
findings concluded that although E.J.’s progress was inconsistent, the Summit School had instruction
“specially designed to meet [E.J.’s] needs.” (Id.) The SRO therefore concluded that the Summit
School was an appropriate placement. (Dkt. 18-1 at 41.)
The SRO ultimately decided, however, that the hearing record supported the IHO’s
determination that equitable considerations favored a complete denial of tuition reimbursement. (Id.)
The SRO repeated its rejection of Plaintiff’s arguments concerning both the need for reevaluations
and the lack of notice of the June 2017 CSE meeting. (Dkt. 18-1 at 42.) The SRO found that the
combined effect of Plaintiff’s refusal to permit a reevaluation of E.J. and failure to attend the CSE
meeting supported a finding that she was uncooperative with the process of developing E.J.’s IEP.
(Dkt. 18-1 at 42.) The SRO specifically noted that, had Plaintiff been more cooperative, “the CSE
13
might have avoided some of the defects later found in the IEP.” (Id.) The SRO thus affirmed the
IHO’s determination that the equities weighed against reimbursement or direct funding of E.J.’s
Summit School tuition. (Id.)
The SRO summarily dismissed Plaintiff’s remaining requests for relief. (Id.)
IV. Standard of Review
In the context of the IDEA, summary judgment is a “pragmatic procedural mechanism” that
“involves more than looking into disputed issues of fact.” R.E. v. New York City Dep’t of Educ., 694
F.3d 167, 184 (2d Cir. 2012) (quoting A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009)
(internal quotations omitted)). “Though the parties in an IDEA action may call the procedure ‘a
motion for summary judgment,’ the procedure is in substance an appeal from an administrative
determination...” M.H. v. New York City 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)).
“Pursuant to the statute, the court is to receive the records of the administrative proceedings;
hear additional evidence at the request of a party; and, basing its decision on the preponderance of the
evidence, grant such relief as the court determines is appropriate.” J.L., 2016 WL 6902137 at *4
(internal alterations and quotations omitted).
A district court’s review of “state educational decisions under the IDEA is ‘circumscribed.’”
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (quoting Muller v Comm. On Special
Educ., 145 F.3d 95, 101 (2d Cir. 1998)). “Courts generally ‘defer to the final decision of the state
authorities, even where the reviewing authority disagrees with the hearing officer.’” M.H., 685 F.3d
at 241 (quoting A.C., 553 F.3d at 171). “When the IHO and SRO decisions conflict, the district court
defers to the SRO’s decision as the ‘final decision of the state authorities.’” M.B. ex rel. L.C. v. Minisink
Valley Cent. Sch. Dist., 523 Fed. App’x 76, 77 (2d Cir. 2013) (quoting R.E., 694 F.3d at 189 (internal
quotation marks omitted)). But the Court “do[es] not ‘simply rubber stamp administrative decisions.’”
14
R.E., 694 F.3d at 184 (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)).
The weight of the deference given to an SRO’s decision “will vary based on the type of determination
at issue.” M.H., 685 F.3d at 244. Substantive decisions on state education policy, the appropriateness
of unilateral placements, and other decisions that fall within the expertise of state administrative
officers, as well as determinations based on “thorough and logical reasoning,” and credibility
determinations are entitled to greater deference. See id. By contrast, procedural determinations,
questions of law, and equitable determinations are entitled to less deference. See id.; see also G.S. by &
through L.S. v. Fairfield Bd. of Educ., No. 3:16-CV-1355 (JCH), 2017 WL 2918916, at *13 (D. Conn. July
7, 2017) (“the Hearing Officer’s determination as to the equitable considerations is entitled to minimal
deference: it is not the type of question on which the Hearing Officer might be expected to bring
special expertise to bear.”).
V. Legal Standards under the IDEA
A state receiving federal funds under the IDEA must provide disabled children with a FAPE.
See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “To ensure that qualifying children
receive a FAPE, a school district must create an individualized education program (‘IEP’) for each
such child.” R.E., 694 F.3d at 15 (citing 20 U.S.C. § 1414(d) and Murphy v. Arlington Cent. Sch. Dist. Bd.
of Educ., 297 F.3d 195, 197 (2d Cir. 2002)).
“The IEP is ‘a written statement 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.’” R.E.,
694 F.3d at 175 (quoting D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006)
(internal quotation marks omitted)). “The IDEA requires that an IEP be ‘reasonably calculated to
enable the child to receive educational benefits.’” R.E., 694 F.3d at 174–75 (quoting Bd. of Educ. v.
Rowley, 458 U.S. 176, 207 (U.S. 1982)).
15
New York “has assigned responsibility for developing IEPs to local Committees on Special
Education (‘CSEs’).” Walczak, 142 F.3d at 123 (quoting N.Y. Educ. Law § 4402(1)(b)(1)). By statute,
E.J.’s CSE was required to include at least her parent, her regular education teacher, her special
education teacher, and a school board representative. N.Y. Educ. Law § 4402(1)(b)(1)(a); see also 20
U.S.C. § 1414(d)(1)(B)(ii) and (iii). “The CSE must examine the student’s level of achievement and
specific needs and determine an appropriate educational program.” R.E.., 694 F.3d at 175 (citing
Gagliardo, 489 F.3d at 107–08).
If parents believe the state has failed to provide a FAPE, they “may, at their own financial risk,
enroll the child in a private school and seek retroactive reimbursement for the cost of the private
school from the state.” A.C., 553 F.3d at 171 (quoting Gagliardo, 489 F.3d at 111). A parent may then
file a due process complaint “with the appropriate state agency.” R.E., 694 F.3d at 175 (citing 20
U.S.C. § 1415(b)(6)).
In New York, if parents contest the IEP, parents and the relevant school district appear before
an IHO who issues a written decision, see N.Y. Educ. Law § 4404(1), and if either party objects to the
IHO’s decision, they may appeal to an SRO, who either affirms or modifies the IHO’s order, id. §
4402(2). Either party may then appeal to a state or federal court for review of the SRO’s decision. 20
U.S.C. § 1415(i)(2)(A).
On review, district courts in the Second Circuit evaluate IDEA claims under the “Burlington-
Carter Test.” See J.L., 2016 WL 6902137 at *4 (referencing Sch. Comm. of Burlington v. Dep’t of Educ. of
Mass., 471 U.S. 359 (1985)). Under this three-prong test, the district court first considers whether the
IEP complies with the IDEA’s procedural and substantive requirements. See R.E., 694 F.3d at 189-
90. If the IEP is either procedurally or substantively deficient, the court must then determine whether
the parent’s unilateral placement was appropriate. See A.C., 553 F.3d at 171–72. For the third prong,
the court must determine whether a parent is entitled to tuition payment or reimbursement, and may
16
take into account equitable considerations in fashioning appropriate relief. See Frank G. v. Bd. of Educ.
of Hyde Park, 459 F.3d 356, 363-64 (2d Cir. 2006).
VI. The Parties’ Requested Relief
In her Motion for Summary Judgment and Opposition to Defendants’ Motion to Dismiss,
Plaintiff seeks to vacate the SRO’s complete denial of tuition funding for E.J.’s placement at the
Summit School. She urges the Court to reverse the SRO’s findings of procedural compliance, uphold
the SRO’s determinations that E.J. was substantively denied a FAPE and that the Summit School was
an appropriate placement, and find that the equities do not weigh in favor of tuition denial.
In their cross-motion for Summary Judgment and Reply in support, Defendants urge the
Court to deny Plaintiff’s request for tuition funding. They argue that the SRO’s findings of procedural
compliance were correct. Defendants further contend that Plaintiff had waived any substantive
challenges to the IEP and they should not have been considered below, and that in any event E.J. was
not denied a FAPE. Defendants also urge the Court to adopt the IHO’s conclusion that the Summit
School was not an appropriate placement for E.J. Finally, Defendants argue that complete denial of
tuition was an appropriate equitable determination. 13
DISCUSSION
I. Prong I of the Burlington-Carter Test: Procedural and Substantive Compliance with the IDEA
A. Procedural Compliance with the IDEA
A court must first examine “whether the state has complied with the procedures set forth in
the IDEA.” Cerra, 427 F.3d at 192. A procedural violation denies a student a FAPE only if it:
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’
13 Defendants also argue that Plaintiff failed to file a counterstatement of material facts, but Plaintiff did file
such a counterstatement at Dkt. 44.
17
child; or
(III) caused a deprivation of educational benefits.
20 U.S.C. § 1415(f)(3)(E)(ii); see also R.E., 694 F.3d at 190. “Multiple procedural violations may
cumulatively result in the denial of a FAPE even if the violations considered individually do not.”
R.E., 694 F.3d at 190.
Procedural safeguards are essential to the system Congress created in drafting the IDEA. See
Rowley, 458 U.S. at 205 (“When the elaborate and highly specific procedural safeguards embodied in §
1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in
the Act, we think that the importance Congress attached to these procedural safeguards cannot be
gainsaid.”)
Plaintiff contends that the DOE violated the IDEA’s procedural requirements because neither
she nor the Summit School had proper notice of the CSE meeting. The DOE argues that the IHO
and SRO’s findings of procedural compliance with the IDEA should be upheld.
The state administrative officers’ procedural findings are entitled to less deference than their
substantive determinations. See M.H., 685 F.3d at 244.
1. Parental Notice of the CSE meeting
The IEP must be “collaboratively developed by the parents of the child, educators, and other
specialists.” Frank G., 459 F.3d at 363 (quoting 20 U.S.C. § 1414(d)(1)(B) and Honig v. Doe, 484 U.S.
305, 311 (1988)). School districts must “ensure that the parents of each child with a disability are
members of any group that makes decisions on the educational placement of their child.” C.F. ex rel. R.F.
v. New York City Dep’t of Educ., 746 F.3d 68, 79 (2d Cir. 2014) (emphasis in original) (quoting 29 U.S.C.
§ 1414(e)). Parental notice and the opportunity to participate in the development of their child’s IEP
is an essential component of the IDEA. See Cerra, 427 F.3d at 192-93. “[T]he relevant inquiry is
whether there is “a full discussion with the child’s parents, before the child’s IEP is finalized, regarding
18
drafted content and the child’s needs and the services to be provided to meet those needs.” Danielle
G. v. New York City Dep’t of Educ., No. 06-CV-2152 (CBA), 2008 WL 3286579, at *6 (E.D.N.Y. Aug.
7, 2008) (citing Cerra, 427 F.3d at 193).
At a minimum, the DOE “must take steps to ensure that one or both of the parents of a child
with a disability are present at each IEP Team meeting or are afforded the opportunity to participate,
including [ n]otifying parents of the meeting early enough to ensure that they will have an opportunity
to attend.” 34 C.F.R. § 300.322(a). The DOE notice “must [i]ndicate the purpose, time, and location
of the meeting” and meet other regulatory mandates. Id. § 300.322(b). An IEP meeting may go
forward without the participation of the parent “if the public agency is unable to convince the parents
that they should attend.” Id. § 300.322(d).
Plaintiff did not participate in the June 20, 2017 CSE meeting. She contends that she did not
receive advance notice of the meeting. The DOE counters that it provided Plaintiff with notice of
the meeting, and points to evidence in the record in support, including testimony of the DOE school
psychologist, entries in the DOE’s event log, and a copy of the meeting notice letter. (Dkt. 42 ¶ 5;
Dkt. 18-1 at 756, 759, 783.) The SRO concluded that Plaintiff’s “testimonial assertions that she did
not receive the notice for the June 20, 2017 CSE meeting or any telephone calls from the CSE do not
outweigh the district’s evidence that there were multiple attempts to schedule a CSE meeting, [and]
that the district notified the parent of the June 20, 2017 CSE meeting….” (Dkt. 18-1 at 20.)
The DOE fails to show that it provided advance notice to Plaintiff of the June 20, 2017 CSE
meeting. Although the DOE contends that it sent the notice to Plaintiff on May 12, 2017, the record
is insufficient to support a conclusion that the notice was actually mailed. Under New York law, there
is a rebuttable presumption that a mailed letter was received by the addressee. See Meckel v. Continental
Resources Co., 758 F.2d 811, 817 (2d Cir. 1985). “To invoke the presumption, a party must first produce
evidence of mailing, either by offering the testimony of the person who actually mailed the letter or
19
through indirect evidence such as proof that the mail was sent through office procedures followed in
the regular course of business.” Bronia, Inc. v. Ho, 873 F. Supp. 854, 859 (S.D.N.Y. 1995) (citing Capital
Data Corp. v. Capital Nat. Bank, 778 F. Supp. 669, 675 (S.D.N.Y. 1991)); see also Zambrana v. Pressler &
Pressler, LLP, No. 16-CV-2907 (VEC), 2016 WL 7046820, at *4 (S.D.N.Y. Dec. 2, 2016) (“Because,
however, [defendants’ witness] does not purport to have first-hand knowledge of whether the 2010
Agreement was sent to [p]laintiff and does not describe a standard office mailing procedure,
[d]efendants have no evidence that the 2010 Agreement was sent to [p]laintiff or that she otherwise
received the 2010 Agreement.”)
The DOE school psychologist testified that “I sent—I didn’t email this—the other meeting
notice, because, you know, [Plaintiff] indicated that that wouldn’t be—that she doesn’t approve of
that. So a meeting notice was mailed for 6/20.” (Dkt. 18-1 at 181.) The DOE event log similarly has
a note for May 12, 2017 that “Letter sent today.” (Dkt. 18-1 at 783.) There is no specific testimony
in the record, or any record evidence, that the DOE school psychologist properly mailed the meeting
notice. In earlier testimony, the DOE school psychologist explained that when she mailed a letter,
she “put [the letter] in the envelope myself,” but that she “didn’t put it in the mail slot, but it goes into
our mail bin.” (Dkt. 18-1 at 172). Placing an addressed envelope in an office mail bin does not
establish proof of mailing. See, e.g., J.T.M. Grp., Inc. v. Fleischman, No. 2000-1797 (SC), 2001 WL
1665333, at *1 (N.Y. App. Oct. 24, 2001) (placing mailing in “outgoing mail basket” insufficient to
establish proof of mailing); see also William Gardam & Son v. Batterson, 198 N.Y. 175, 178-179 (N.Y.
1910) (testimony that insurance executive placed “sealed, stamped” envelope “in a box, or tray on my
desk to be mailed to the post office, the same as I always do with every letter going from my office”
did not establish proof of mailing). The record does not contain any evidence of office procedures
concerning mailing. Cf. Riker Danzig Scherer Hyland & Perretti LLP v. Premier Capital, LLC, No. 15-CV-
08293 (ALC)(AJP), 2017 WL 2779709, at *6 (S.D.N.Y. June 26, 2017) (incomplete description of
20
office procedures, even though it included putting envelopes into “outgoing bin,” insufficient to show
actual mailing). The May 12, 2017 entry in the DOE event log stating “Letter sent today” does not
establish proof of actual mailing, because that entry was made by the DOE school psychologist and
not someone with knowledge of the actual mailing. (See Dkt. 18-1 at 783.)
The SRO’s decision to “infer from [the DOE school psychologist’s] testimony that the
psychologist follows a process for mailing documents” is not supported by law. (Dkt. 18-1 at 20.) See
Gonzalez v. Ross, 47 N.Y.2d 922, 923 (N.Y. 1979) (holding that even in administrative hearings, where
there are less stringent evidentiary requirements for proof of mailing, there must nevertheless be some
evidence that an office procedure for mailing was established or followed); Elia v. Highland Cent. Sch.
Dist., 78 A.D.3d 1265, 1267 (N.Y. App. 2010) (affidavit that failed to specify procedure for mailing,
who would have mailed it, or that procedures were followed is insufficient to establish proof of office
procedure); see also I.B. v. New York City Dep't of Educ., No. 15-CV-01309 (LTS), 2016 WL 1069679, at
*11 (S.D.N.Y. Mar. 17, 2016) (no deference to state administrative officers where conclusions
incorrect as a matter of law). To the extent the SRO’s conclusion that Plaintiff had notice of the June
20, 2017 meeting was based on a determination that Plaintiff’s testimony was not credible, the DOE
was nevertheless required to offer evidence that it complied with the IDEA’s notice requirements,
which it failed to do. See Mr. “M” ex rel “K.M.” v. Ridgefield Bd. of Educ., No. 05-CV-584 (RNC), 2007
WL 987483, at *6 n.6 (D. Conn. Mar. 30, 2007) (“The IHO’s finding that the parents chose not to
attend the meeting … is at odds with the testimony of [the student’s] mother. Assuming the finding
reflects a permissible decision by the IHO to decline to credit the mother’s testimony, it does not
absolve the Board of responsibility. The burden remained with the Board to satisfy its obligation
under the law to take affirmative steps to try to secure the important objective of having the parents
participate in the meeting.”) The undersigned therefore finds that the DOE did not offer sufficient
evidence to establish that it notified Plaintiff of the June 20, 2017 meeting.
21
While there is evidence in the record that DOE made substantial efforts to contact Plaintiff
on the day of the CSE meeting, those communications would not have provided the notice required
under the IDEA. The DOE school psychologist tried to call and email Plaintiff immediately before,
during, and at the end of the meeting. (Dkt. 42 ¶¶ 4, 6, Dkt. 18-1 at 709, 710, 759-60, 781.) But in
the absence of evidence that Plaintiff knew the date of the meeting, these efforts could not have been
“early enough to ensure that [Plaintiff would] have an opportunity to attend” the CSE meeting. See
34 C.F.R. § 300.322(a)(1).
The undersigned finds that DOE’s failure to provide Plaintiff with adequate notice of the date
and time of the CSE meeting “significantly impeded the parent[’s] opportunity to participate in the
decisionmaking process. 20 U.S.C. § 1415(f)(3)(E)(ii)(II); R.E., 694 F.3d at 190.
2. Summit School Notice of the CSE meeting
Along with the parents, the input of a child’s educators is important to the development of
the IEP. See 20 U.S.C. § 1414(d)(1)(B); Frank G., 459 F.3d at 363. The IDEA requires that the team
that develops a student’s IEP include a regular education teacher of the student if the student is or
may be participating in the regular education environment. 20 U.S.C. § 1414(d)(1)(B)(ii) and (iii); see
also R.G. v. New York City Dep’t of Educ., 980 F. Supp. 2d 345, 361 (E.D.N.Y. 2013) (“Participation in
the CSE of a regular education teacher who is or may be responsible for implementing a portion of a
child’s IEP is critical to meeting” the IDEA’s objectives). New York law requires the participation of
both a regular and special education teacher of the student. N.Y. Educ. Law § 4402(1)(b)(1)(a)(ii) and
(iii).
The CSE meeting did not include any of E.J.’s regular or special education teachers. (Dkt. 18-
1 at 21-22.) Plaintiff argues that this, too, was a procedural violation that denied E.J. a FAPE. The
DOE argues that the Summit School was invited to attend and had knowledge of the June 20, 2017
meeting. Plaintiff counters that the Summit School had no notice of the meeting. While the SRO
22
acknowledged that there was no general education teacher present at the meeting, neither the IHO
nor the SRO made an express finding of whether the Summit School had notice. 14
On the issue of notice to the Summit School, the DOE school psychologist testified,
The school is always invited. I invited them through Outlook. I have a system with that school in particular because there’s so many kids. So I have a system where I invite them and ask for the documents that I need, and I inform the school at the same time … So it was likely an oversight if it doesn’t appear on here. … I never have a meeting without cross-checking and making sure … Sometimes they don’t get it, sometimes – I don’t know what happens.
(Dkt. 18-1 at 254-255.) The DOE school psychologist also testified that she believed the Summit
School had notice because she had documents from the Summit school and “I would not have the
documents if they didn’t know about the meeting, and they sent me documents.” (Dkt. 18-1 at 255.)
Contrary to the DOE’s assertions, the Summit School clinical director testified, “Nobody on
staff knew about [the June 20, 2017 meeting]. We put things on our calendar when we get the
left on our voicemail indicating that there was going to be a meeting. We did not know.” (Dkt. 18-1
at 334.) The Summit School clinical director further testified about the steps that the School would
have taken to prepare for the meeting had it been notified, including holding preparatory meetings
among the Summit School staff, and stated that those steps never occurred. (Dkt. 18-1 at 336-337.)
Other Summit School employees testified that they did not have notice of the CSE meeting and would
have participated if they had. (Dkt. 44 ¶ 7; Dkt. 18-1 at 381-82; 409-410; 519-520.)
In reaching its conclusion that there were no procedural violations that amounted to the denial
of a FAPE, the SRO did not make any credibility determinations about this conflicting testimony of
the DOE and the Summit School. In the absence of any such determination, the undersigned finds,
14 The SRO decision focuses on the absence of any of E.J.’s regular education teachers, but because E.J.
attended Summit School and no Summit School teachers attended, it is clear from the record that none of E.J.’s special education teachers attended, either.
23
based on the record, that the Summit School was not notified of the June 20, 2017 CSE meeting. The
record does not contain any Outlook invitation, either as an independent exhibit or as a notice on the
DOE event log. Nor does the record specify the date on which E.J.’s evaluative documents were sent
by the Summit School or received by the DOE. Because there were several earlier attempted meetings
in April and May 2017, the school may have sent the documents in response to an earlier-received
CSE meeting invitation, rather than in response to a notification of a meeting on June 20, 2017. 15 The
May 12, 2017 letter that the DOE school psychologist testified she sent to Plaintiff does not mention
that the Summit School was invited. (Dkt. 18-1 at 756.) The testimony of the DOE school
psychologist thus boils down to an understandable belief, based on her regular practice and her review
of her records, that she notified the Summit School, but no actual recollection of sending an invitation.
Against this is the testimony of four employees of the Summit School who expressly deny that they
had notice. The weight of the evidence therefore favors a finding that there was no notice.
Despite the Summit School clinical director’s request to postpone the CSE meeting so their
staff could participate, the DOE school psychologist went ahead with the meeting. (Dkt. 18-1 at 335-
336.) Thus, it was the DOE’s decision that led to the exclusion of E.J.’s regular and special education
teachers.
The undersigned finds that the failure to include a regular or special education teacher
constituted a procedural violation of the IDEA because it “impeded [E.J.’s] right to a free appropriate
public education.” See R.G., 980 F. Supp. 2d at 361-62.
3. Consideration of Evaluative Information in Developing the 2017-18 IEP
The parties agree that the record contained sufficient information to develop E.J.’s IEP.
15In the hearing before the IHO, Plaintiff’s counsel asked the DOE school psychologist whether the documents she was referencing might have been sent to the DOE as part of an annual review process. (Dkt. 18-1 at 256-257.) The DOE school psychologist testified that she did not know about the annual review process, but noted that when annual reviews are scheduled, the DOE asks for documents. (Id.)
24
Plaintiff contends, however, that the CSE did not adequately consider the information in the record
when developing the IEP, and in particular argues that the CSE failed to appropriately review records
related to E.J.’s OT needs. The DOE counters that the CSE properly considered the available
to the CSE and comparing it with the information in the IEP, the SRO concluded that the CSE did
consider the evaluative information available to it. (Dkt. 18-1 at 31.) The IEP directly or indirectly
references all the documents available in the record, including E.J.’s OT evaluations and mid-year
reports. (Dkt. 18-1 at 731-735.) It makes specific recommendations regarding E.J.’s learning profile,
self-regulation, distractibility, focusing deficits, need for sensory regulation, and her emotional needs.
(Id.) The SRO’s well-reasoned conclusion concerning the appropriateness of the materials considered
is therefore entitled to deference.
***
Because the DOE’s failure to notify Plaintiff “significantly impeded the parent’s opportunity
to participate in the decisionmaking process,” and because the failure to include E.J.’s regular and
special education teachers “impeded the child’s right to a [FAPE],” the undersigned finds that the
DOE failed to comply with the procedural requirements of the IDEA, and that these procedural
violations denied E.J. a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(ii)(II); R.E., 694 F.3d at 190 (“Multiple
procedural violations may cumulatively result in the denial of a FAPE even if the violations considered
individually do not”).
B. Substantive Compliance With the IDEA
Courts must also examine whether the IEP complies with the IDEA’s substantive
requirements that it “include special education and related services tailored to meet the unique needs
of a particular child, and be reasonably calculated to enable the child to receive educational benefits.”
J.L., 2016 WL 6902137 at *5 (quoting C.F., 746 F.3d at 72).
25
The “IDEA does not itself articulate any specific level of educational benefits that must be
provided through an IEP.” Walczak, 142 F.3d at 130. School districts are not required to furnish
“every special service necessary to maximize each handicapped child’s potential.” Rowley, 458 U.S. at
199. “[A] school district fulfills its substantive obligations under the IDEA if it provides an IEP that
is likely to produce progress, not regression, and if the IEP affords the student with an opportunity
greater than mere trivial advancement.” A.C., 553 F.3d at 173 (quoting Cerra, 427 F.3d at 195)
(alteration in original).
“Substantive inadequacy automatically entitles the parents to reimbursement, as long as the
parents’ alternative placement was appropriate and equitable considerations favor reimbursement.”
T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 160 (2d Cir. 2014) (internal quotations
omitted).
1. Waiver
The IDEA provides that a parent may file a due process complaint to challenge IEP
determinations. See 20 U.S.C. § 1415(b)(6). Arguments not raised in a parent’s due process complaint
are generally waived, “unless the other party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B). However,
“the waiver rule is not to be mechanically applied.” See C.F., 746 F.3d at 78. A court can consider an
issue if (1) the due process complaint provides the DOE fair notice; (2) “both the IHO and SRO
reached the issue on the merits, giving [the court] a record for review;” and (3) the issues “are at the
heart of th[e] dispute.” See id.; see also B.P. v. New York City Dep’t of Educ., 634 Fed. App’x 845, 849-50
(2d Cir. 2015); see also H.W. v. New York State Educ. Dep’t, No. 13-CV-3873 (SIL), 2015 WL 1509509,
at *15 (E.D.N.Y. Mar. 31, 2015) C.U. v. New York City Dep’t of Educ., 23 F.Supp.3d 210, 223–24
(S.D.N.Y. 2014).
The DOE contends that Plaintiff waived her right to object to the IEP’s substantive
determination recommending a general education class with ICT services because Plaintiff did not
26
expressly object to it in her due process complaint. Plaintiff’s due process complaint did, however,
raise a challenge, albeit broadly, to the CSE’s substantive determination. Her stated basis for
challenging the IEP was that it offered E.J. an “inappropriate education placement … in light of her
special and unique needs,” and it was “not appropriate to address E.J.’s academic, social and emotional
challenges.” (Dkt. 18-1 at 630.) This broad challenge to the substantive adequacy of the IEP gave
DOE fair notice of the issues Plaintiff would raise at the state administrative hearing. Furthermore,
the IHO and SRO both reached the merits on Plaintiff’s substantive challenges to the IEP, and the
appropriateness of the IEP goes to the heart of this dispute. In light of the “more plaintiff-friendly
standard” for waiver articulated by the Second Circuit, see H.W., 2015 WL 1509509, at *15 (quoting
C.U., 23 F. Supp. 3d at 223–24), the undersigned finds that Plaintiff did not waive her substantive
challenges to the IEP.
2. Whether the IEP offered a FAPE
In the preliminary statement to its Motion for Summary Judgement, the DOE urges the Court
to find that “DOE’s recommendations for the Student were reasonably calculated to enable the child
to receive educational benefits.” (Dkt. 43 at 5.) DOE does not provide any argument on substantive
adequacy.
The SRO issued a well-reasoned and thorough decision on matters of state educational policy.
The SRO upheld the IHO’s conclusion that the IEP failed to comply with the substantive
requirements of the IDEA, albeit on different grounds from the IHO. The SRO determined that the
IHO’s findings concerning “functional grouping” were inappropriate because they were not
mentioned in Plaintiff’s due process complaint, and the DOE did not “open[] the door” to them, and
they were not adequately developed in the hearing record. (Dkt. 18-1 at 17-18.) The SRO nevertheless
conducted a detailed weighing of the appropriateness of the IEP’s recommendation of ICT services
in a general education classroom based on the evidence presented at the hearings. (Dkt. 18-1 at 31-
27
34.) The SRO balanced the DOE’s evidence against the evidence provided by Plaintiff’s witnesses.
(Dkt. 18-1 at 31-33.) The SRO’s assessment was highly individualized, noting that while ICT services
would generally provide a student with E.J.’s profile with a FAPE, the records from the Summit
School suggested that ICT services alone would be insufficient for E.J. (Dkt. 18-1 at 33-34.)
The SRO stated that the testimony of a regular education teacher at the CSE might have
“allayed [the SRO’s] concerns,” but the DOE failed to offer that testimony in evidence. (Dkt. 18-1 at
34.) The SRO suggested that the decision was a close one, but that “[o]n this record [the SRO] cannot
conclude that the district convincingly established that a general education class with ICT services
would be appropriate” for E.J., given her unique needs. (Id.) In a footnote, the SRO emphasized how
close the decision was, noting that if it had been Plaintiff’s burden to show that the IEP’s offering was
inadequate, as opposed to the DOE’s burden to show it was adequate, the SRO might have reached
a different conclusion. (Id.) In these circumstances, the Second Circuit has made clear that it is not
the role of a federal court to put its thumb on the other side of the scale on difficult matters of state
education policy. See M.H., 685 F.3d at 240 (“District courts are not to make ‘subjective credibility
assessment[s],’ and cannot ‘ch[oose] between the views of conflicting experts on ... controversial
issue[s] of educational policy ... in direct contradiction of the opinions of state administrative officers
who had heard the same evidence’”) (quoting Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 383
(2d Cir. 2003) (alterations in original). The undersigned therefore defers to the SRO’s determination
that the IEP substantively denied E.J. a FAPE.
II. Prong II: Appropriateness of the Unilateral Placement
A parent may reject the CSE’s recommendations in an IEP and unilaterally place their child in
a private school pending an appeal of the CSE’s decision, but “do so at their own financial risk.” J.L.,
2016 WL 6902137 at *1. Parents may retroactively seek reimbursement from the state for a unilateral
placement. 20 U.S.C. § 1412(a)(10)(C)(ii). A parent seeking reimbursement must establish that “the
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private placement is appropriate, even if the proposal in the IEP is inappropriate.” Frank G., 459 F.3d
at 364. In general, “the same considerations and criteria that apply in determining whether the School
District’s placement is appropriate should be considered in determining the appropriateness of the
parents’ placement … [i.e., whether the placement is] reasonably calculated to enable the child to
receive educational benefits.” Id. (citing Rowley, 458 U.S. at 207).
The DOE urges the Court to reject the SRO’s finding and adopt the IHO’s conclusion that
the Summit School was not an appropriate placement. The DOE argues that the record showed E.J.
made inconsistent progress, struggled academically, and had behavioral challenges at the Summit
School. Pointing to the IHO’s statement that E.J. “was not doing well in any of her classes,” the
DOE argued that it is “at best … unclear whether the program at Summit School is meeting” E.J.’s
needs. (Dkt. 43 at 23.) Plaintiff counters that the Summit School has programs that meet E.J.’s needs,
and the SRO’s well-reasoned determination that it was an appropriate placement warrants deference.
The SRO’s decision is the final decision of state authorities on the appropriateness of the
Summit School and is therefore entitled to deference, even though the SRO and IHO disagreed with
each other. See M.B., 523 Fed. App’x at 77; M.H., 685 F.3d at 241. The SRO correctly described the
standard for appropriateness laid out by the Second Circuit:
[P]arents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specifically designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Dkt. 18-1 at 35-36) (quoting Gagliardo, 489 F.3d at 112.) The SRO then considered in detail whether
the Summit School met that standard. The SRO evaluated the programming offered by the Summit
School generally, and then the specific programming that E.J. was offered, by conducting a detailed
examination of the hearing record before the IHO. (Dkt. 18-1 at 36-38.) Based on its searching
review, the SRO concluded that the Summit School provided instruction and support services that
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met E.J.’s unique needs. (Dkt. 18-1 at 38.)
The SRO also considered E.J.’s progress, another indication that the SRO’s opinion was
thorough and well-reasoned. (Dkt. 18-1 at 38-41.) The SRO correctly stated that progress is neither
necessary nor sufficient to a determination that the unilateral placement is appropriate, but it is
relevant. (Dkt. 18-1 at 38-39) (citing cases). The SRO noted that E.J. made progress during the 2017-
18 school year, citing to specific testimony by the Summit School clinical director and E.J.’s teachers
that she had improved on several challenges associated with her disability. (Dkt. 18-1 at 39-41.) The
SRO concluded that E.J.’s inconsistent progress “appears to relate directly to the student’s disability,”
and therefore did not preclude a finding that the Summit School was an appropriate placement. (Dkt.
18-1 at 41); see also Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App’x 12, 16 (2d Cir. 2011) (“While the
SRO did agree with the IHO that the progress of [p]laintiffs’ son was ‘disappointing’ during his eighth
grade year, it noted that this factor was not dispositive and proceeded to focus its analysis of the
appropriateness of the placement on a review of the student's particular needs related to his disability
and the manner in which [the school’s] program was designed to address those needs at the time the
unilateral placement was made”).
A district court may only favor the IHO decision where it is well-reasoned and the SRO’s
decision is poorly reasoned or otherwise unsupportable. Cf. R.E., 694 F.3d at 189 (“[A] 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”). Because this is a matter of state education policy, the fact that the SRO’s decision is
thorough and well-reasoned alone would be enough to uphold it. But the undersigned also notes that
the IHO’s decision is not well-reasoned insofar as it appears to place a premium on progress over the
factors laid out by the Second Circuit for evaluating the appropriateness of a unilateral placement. (See
Dkt. 18-1 at 56-57.) And to the extent that the IHO’s decision examined whether the Summit School
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offered educational instruction that meets E.J.’s needs, it focused on the Summit School’s absence of
functional grouping, which the SRO properly concluded was not appropriate for consideration.
(Compare 18-1 at 17-18 with Dkt. 18-1 at 56-57.)
The undersigned therefore recommends that the Court affirm the SRO’s decision and find
that the Summit School was an appropriate placement.
III. Prong III: Equitable Considerations
If the IEP fails to provide a FAPE, “equitable considerations are relevant in fashioning relief.”
Burlington, 471 U.S. at 374 (quoting 20 U.S.C. § 1415(e)(2) (a court may grant “such relief as the court
determines is appropriate”)). “The authority to grant reimbursement is discretionary—the court ‘has
broad discretion to consider the range of all relevant facts in determining whether and to what extent
awarding relief is equitable.’” Bd. of Educ. of Wappingers Cent. Sch. Dist. v. M.N. on Behalf of J.N., No. 16-
CV-09448 (TPG), 2017 WL 4641219, at *9 (S.D.N.Y. Oct. 13, 2017) (quoting J.S. v. Scarsdale Union
Free Sch. Dist., 826 F. Supp. 2d 635, 671 (S.D.N.Y. 2011)).
One such factor is the “unreasonableness with respect to actions taken by the parents.” 20
U.S.C. § 1412(a)(10)(C)(iii)(III); see J.L., 2016 WL 6902137 at *8. “Important to the equitable
consideration is whether the parents obstructed or were uncooperative in the school district’s efforts
to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d
Cir. 2014); see also Frank G., 459 F.3d at 363–64 (“equitable considerations relating to the
reasonableness of the action taken by the parents are relevant in fashioning relief”) (internal quotations
and alterations omitted).
Parents and school officials have “shared responsibility for [their] relationship,” and a court
should consider both sides’ actions in fashioning equitable relief. See T.K. v. New York City Dep’t of
Educ., 810 F.3d 869, 879 (2d Cir. 2016). A parent’s obstruction should only preclude reimbursement
if it is the parent’s own “acts or omissions that hinder [the DOE] from meeting its statutory obligation
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in the first place.” See A. v. Greenwich Bd. of Educ., No. 3:15-CV-00203 (CSH), 2016 WL 3951052, at
*19 (D. Conn. July 20, 2016).
Unlike with questions of substantive state education policy, state administrative officers do
not bring special expertise to bear in equitable determinations, and thus their equitable conclusions
are entitled to less deference on review. See, e.g., G.S., 2017 WL 2918916 at *13. Indeed, federal courts
are well-equipped to evaluate the equities. See W.M. v. Lakeland Cent. Sch. Dist., 783 F.Supp.2d 497,
503 (S.D.N.Y. 2011) (district courts have “particular expertise” and “broad discretion” when engaging
in a “balancing of the equities”).
Plaintiff argues that the SRO’s determination to deny tuition reimbursement on equitable
grounds was erroneous, and that a more searching review of the record would show that Plaintiff was
not uncooperative and should be entitled to tuition reimbursement. 16 The DOE argues that the shared
conclusion of both the IHO and SRO that the equities did not favor reimbursement is entitled to
deference. It also points to evidence in the record that the DOE repeatedly rescheduled the CSE to
a time that Plaintiff specifically requested and “made significant efforts to secure the parent’s
participation.” (Dkt. 43 at 23.) The DOE argues that Plaintiff, meanwhile, was not responsive,
withheld consent for reevaluations, and was otherwise uncooperative. Had Plaintiff been more
cooperative, the DOE argues, pointing to the SRO’s decision, “it would have eliminated some of the
alleged defects now relied upon by the parent.” (Dkt. 43 at 24.)
16 Several of Plaintiff’s arguments on the equities—that the SRO should not have considered the 2016 Appeal,
that the SRO’s reference to E.J.’s father was an inappropriate equitable consideration, that denial of a FAPE should have been an equitable consideration, and that she did not receive notice of the IEP—are completely unsupported by the record or by law, and should be rejected. The SRO appropriately considered the parties’ behavior in the 2016 Appeal, as it went to the reasonableness of Plaintiff’s refusal to consent to updated evaluations. The SRO described the DOE’s attempts to contact E.J.’s father, but did not mention that fact in its evaluation of the equities. That E.J. was denied a FAPE is a prerequisite to the consideration of the equities, not a factor in weighing them. See S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 364 (S.D.N.Y. 2009) (“[T]he fact that the DOE failed to provide an adequate FAPE is a fact common to all due process challenges that meet the first prong of Burlington; it is not an independent factor that should be considered when weighing the equities”). And while Plaintiff testified that she did not receive the IEP until October, her ten- day notice dated August 22, 2017 complained about the substance of the IEP. (Dkt. 18-1 at 21 n.9.)
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The record shows clear instances of Plaintiff’s non-cooperation. Although Plaintiff and DOE
entered into a written agreement for DOE to fund and conduct reevaluations for E.J. following the
2016 appeal (Dkt. 18-1 at 22-23), Plaintiff later refused to provide consent for such reevaluations (Dkt.
18-1 at 722, 723, 728, 781).
Federal regulations under the IDEA mandate regular reevaluations of children with
disabilities. See 34 C.F.R. § 300.303(a). Absent an agreement otherwise between the parent and the
DOE, reevaluations must occur every three years, but may occur as often as every year. Id. §
300.303(b). Reevaluations must occur “[i]f the public agency determines that the educational or related
services needs, including improved academic achievement and functional performance, of the child
warrant a reevaluation.” Id. § 300.303(a)(1); see also C.S. v. Yorktown Cent. Sch. Dist., No. 16-CV-9950
(KMK), 2018 WL 1627262, at *12 (S.D.N.Y. Mar. 30, 2018).
Federal regulations also require parental consent to reevaluations in most instances. 34 C.F.R.
§ 300.300(c). But if a parent refuses consent to reevaluation of a child placed in a private school by
the parent, the DOE “is not required to consider the child as eligible for services” under the IDEA.
See id. § 300.300(d)(4).
The SRO’s conclusion that Plaintiff was uncooperative with the reevaluations is convincing
and supported by the evidence. Plaintiff’s refusal to consent to reevaluations was not reasonable, for
at least three reasons. First, the record suggests she agreed to the reevaluations, in writing, after the
2016 Appeal. Second, Plaintiff continued to refuse to consent to reevaluations despite the DOE’s
explanation that reevaluations were necessary. (See Dkt. 18-1 at 177-81, 781-82.) Third, Plaintiff’s
refusal is unsupported by the law, which allows for yearly reevaluations if the DOE determines they
are necessary. 34 C.F.R. § 300.303(a)(1); see also C.S., 2018 WL 1627262 at *12. The DOE made such
a determination here. (See, e.g., Dkt. 18-1 at 781-82.)
Plaintiff’s communications with DOE were also inconsistent and contradictory. On May 10,
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2017, Plaintiff wrote to the DOE school psychologist that she could “be reached by cell … or by
email” (Dkt. 18-1 at 722, 784), but three days later, on May 13, 2017, she wrote that she had not given
permission for the CSE to communicate with her by email and demanded that all communications be
sent in writing to her home address (Dkt. 18-1 at 723, 781; Dkt. 42 ¶ 4). She nevertheless continued
to send emails to the DOE on multiple occasions after indicating that she did not consent to email
communications. (See Dkt. 18-1 at 781-783.) The record also contains many examples of unanswered
phone calls to Plaintiff’s various phone numbers. (See, e.g., Dkt. 18-1 at 782-784.)
While the DOE’s request for reevaluations was consistent with federal regulations, as the SRO
noted, if a parent refuses consent to reevaluation of a child placed in a private school by the parent,
the district “is not required to consider the child as eligible for services” under the IDEA. (Dkt. 18-1
at 23-24) (citing 34 C.F.R. § 300.300(d)(4).) Plaintiff’s refusal to make E.J. available for reevaluation
could have put an end to this entire process. But as the SRO also noted, “the district did not avail
itself of the option to no longer treat the student as eligible and … instead proceeded with its meeting
on June 20, 2017 and continued to treat the student as eligible for special education…” (Dkt. 18-1 at
24.) Having decided to convene the CSE, the DOE was then required to develop an adequate IEP
that provided a FAPE. 34 C.F.R. § 300.306(c)(2).
The undersigned finds that the DOE acted unreasonably in developing the IEP, and the
substantive inadequacy of the IEP is the result of the DOE’s unreasonable actions. In considering
the IEP’s inadequacy, the SRO suggested that the presence of a regular education teacher at the CSE
meeting might have allayed concerns about the flaws in the IEP’s proposal for ICT services in a
general education classroom. (Dkt. 18-1 at 34.) It was the DOE’s responsibility to ensure the presence
of a properly constituted CSE, including a regular and special education teacher. 34 C.F.R. §
300.321(a) (“The public agency must ensure that the IEP Team for each child with a disability includes”
a regular and special education teacher) (emphasis added). The DOE chose to ignore the Summit
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School’s request to postpone the June 20, 2017 CSE meeting to a time when the school could fully
participate. (Dkt. 44 ¶ 7; Dkt. 18-1 at 709.) There is no suggestion in the record that Plaintiff’s non-
cooperation with DOE had anything to do with the Summit School’s lack of notice of the CSE, or
that the Summit School had been similarly uncooperative. Compare A. v. Greenwich Bd. of Educ., 2016
WL 3951052, at *20 (“[I]n order for equitable considerations to bar reimbursement in this case, there
must have been an act or omission on the part of [plaintiffs] that in some way obstructed the [school
district’s] provision of a FAPE to [the child]”).
When balancing the equities, the SRO speculated that if Plaintiff had “more fully cooperated,
especially with the reevaluation process, the CSE might have avoided some of the defects later found
in the IEP.” (See Dkt. 18-1 at 42.) While reevaluations may have been available if Plaintiff had been
more cooperative, the SRO does not explain how those reevaluations would have made it less
“difficult to overlook the description of the student’s progress during the 2016-17 school year, as
described in Summit evaluations and progress reports, which indicate that even with the individualized
support and a low student-to-teacher ratio, the student continued to make inconsistent progress.” (See
Dkt. 18-1 at 33-34.) Similarly, the SRO fails to explain how the reevaluations would have been able
to “allay[ his] concerns” in the same way as the “input of a regular education teacher at the CSE
meeting who was familiar with how a student with this level of distractibility could or could not make
progress toward her annual goals in an ICT setting.” (Id.)
The undersigned respectfully finds that the SRO’s hypothetical conclusion is not supported
by the record and is not entitled to deference. The SRO found that the CSE appropriately considered
the evaluative information in the record. (Dkt. 18-1 at 31.) The SRO, reviewing the same information
that the CSE reviewed, determined that the CSE failed to develop an IEP that provided a FAPE.
Thus, although Plaintiff was uncooperative, the procedural and substantive inadequacies in E.J.’s IEP
were not the result of her uncooperativeness, but rather can be traced to the DOE’s actions, i.e., its
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failure to provide adequate notice of the CSE meeting to Plaintiff and the Summit School, and its
refusal to postpone the June 20, 2017 CSE meeting. Accordingly, the undersigned respectfully
recommends a finding that the equities do not weigh against Plaintiff’s request for tuition
reimbursement, and that Plaintiff be granted full tuition reimbursement. See Frank G., 459 F.3d at 372
(“The Supreme Court has also instructed us that, because “‘[t]he [IDEA] was intended to give
handicapped children both an appropriate education and a free one; it should not be interpreted to
defeat one or the other of those objectives.’”) (quoting Burlington, 471 U.S. at 372) (alterations in
original).
IV. Conclusion
For the foregoing reasons, the undersigned respectfully recommends that Plaintiff’s motion
be granted, that the determination of the SRO to deny tuition reimbursement to Plaintiff be
overturned, and that Plaintiff’s request for reimbursement of tuition for the Summit School for the
2017-18 school year be granted. The undersigned also respectfully recommends that Defendant’s
motion be denied.
Any objection to this Report and Recommendation must be filed in writing with the Clerk of
Court within fourteen (14) days of service. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to
timely file any such objection waives the right to appeal the District Court’s Order. Caidor v. Onondaga
Cty., 517 F.3d 601, 604 (2d Cir. 2008).
SO ORDERED:
Peggy Kuo PEGGY KUO United States Magistrate Judge
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Dated: Brooklyn, New York February 26, 2021
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