UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK BRENDA MELENDEZ, as Parent and Natural MEMORANDUM & ORDER Guardian of J.C.M., and BRENDA MELENDEZ, 21-CV-579 (NGG) (LB) individually, Plaintiff, -against- MEISHA PORTER, in her Official Capacity as the Chancellor of the New York City Department of Education, and the NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.
NICHOLAS G. GARAUFIS, United States District Judge. Pending before the court are Magistrate Judge Bloom's Report and Recommendation ("R&R") on the parties' cross-motions for Summary Judgment, and Plaintiffs Objections to that R&R. (See Pl.'s Mot. for S.J. (Dkt. 34); Defs.' Mot. for S.J. (Dkt. 36); May 15, 2023 R&R (Dkt. 41) ("R&R"); Pl.'s Objections to R&R (Dkt. 42).) For the reasons stated below, the R&R is ADOPTED in full.
I. BACKGROUND
The court assumes familiarity with the background of this civil · case brought against the New York City Department of Education (the "DOE") and its Chancellor, pursuant to the Individuals with Disabilities Education Act ("IDEA''), 20 U.S.C. §§ 1401 et seq., in light of Magistrate Judge Bloom's lengthy and enlightening de- scription of the foregoing factual and procedural history. (R&R at 2-11.)
II. LEGAL STANDARD
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made" by a magistrate judge in
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an R&R. 28 U.S.C. § 636(b)(l)(C). Where a party timely and specifically objects, the court conducts a de nova review of the contested portions of the R&R. Fischer v. Forrest, 286 F. Supp. 3d 590, 601 (S.D.N.Y. 2018). "However, when a party makes only conclusory or general objections, or simply reiterates his original arguments, the court reviews the report and recommendation strictly for clear error." Piligian v. Icahn Sch. of Med. at Mount Sinai, 490 F. Supp. 3d 707, 715 (S.D.N.Y. 2020). 1
III. DISCUSSION
Plaintiff raises four objections to the R&R. (See generally Pl.'s Obj.) The court addresses each objection in turn below. Plaintiff first objects on the basis that "the Magistrate Judge erred by basing much of her decision on irrelevant and immaterial in- formation pertaining to other Students and non-parties- resulting in pure speculation and conjecture." (Pl.'s Obj. at 2.) Plaintiff asserts that while it may have been permissible for the State Review Officer (or "SRO") to take into consideration such
federal court deciding a motion for summary judgment. (Id. at 3.) This objection lacks merit because the Magistrate's decision was based on sound legal analysis rather than "irrelevant and immaterial information." The information relied on by the Mag- istrate that the Plaintiff dismisses as "rank hearsay'' is actually derived from a hearty melange of case law from within the Sec- ond Circuit. (See, e.g., id. at 13-14 (citing Ventura de Paulino v. N.Y.C. Dep't of Educ., 959 F.3d 519, 528 (2d Cir. 2020); Neske v. Porter, No. 21-CV-10363 (VEC), 2022 WL 3290561, at *4 (S.D.N.Y. Aug. 11, 2022); Ferreira v. N.Y.C. Dep't of Educ., No. 19-CV-2937 (JMF), 2020 WL 1158532, at *2 n.1 (S.D.N.Y. Mar. 6, 2020); Donohuev. N.Y.C. Dep'tofEduc., No. 20-CV-1942 (ALC)
1 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
2
j
(KHP), 2021 WL 4481344, at *3-5, 10 (S.D.N.Y. Sept. 30, 2021)).) Moreover, although the Magistrate conducted an independent review of the record as required, she was also compelJed to give "due weight to administrative proceedings" and be "mindful that the judiciary generalJy lacks the specialized knowledge and ex- perience necessary to resolve persistent and difficult questions of educational policy." (R&R at 11 (quoting M.H. v. N. Y. C. Dep't of Educ., 685 F.3d 217, 240 (2d Cir. 2012)).) Indeed, "[d]eference [to an SRO's decision] is particularly appropriate when [an SRO's] review has been thorough and careful." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Where, as here, the SRO's decision was thorough, careful, and reliant on the SRO's specialized lmowledge and experience, a federal court should weigh that determination in the course of reaching its own conclusions. Therefore, to the extent the Magistrate Judge deferred to the SRO's understanding of how the facts of several similar cases were pertinent in adjudicating the instant matter, (see e.g., R&R at 13 ("As noted in SRO Bate's decision ... ")), she was welJ within her authority to do so. For these reasons, the Plaintiffs first objection is overruled. The Plaintiff next objects on the basis "that the Magistrate erred in finding plaintiffs behavior was uncooperative and supported a reduction in the relief requested." (Pl.'s Obj. at 4.) This objec- tion "simply reiterates [Plaintiffs] original arguments." Piligian, 490 F. Supp. 3d at 715. In Point One of her motion for summary judgment, Plaintiff argued at length that "Plaintiff was coopera- tive with DOE in the IEP process," (Pl.'s Mot. at 8), and thus "the reduction of tuition by 33% was inappropriate." (Id. at 7.) The portion of the R&R relevant to this objection is thus reviewed only for clear error. The court finds no clear error, and the Plain- tiffs second objection is overruled.
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I' -J
The Plaintiffs third objection, that the Magistrate "improperly dismissed Plaintiffs arguments about DOE's responsibilities in the IEP process," (Pl.'s Obj. at 8), also "simply reiterates [Plain- tiffs] original arguments." Piligian, 490 F. Supp. 3d at 715. (See Pl's Mot. at 17-19.) The portions of the R&R in which the Magis- trate (1) independently determined that the DOE was not obligated to provide an in-person physician for the IEP meeting, (R&R at 16-17), (2) independently determined that DOE did not make procedural errors in scheduling the IEP meetings, (id. at 16), and (3) independently determined that the school district made appropriate efforts to secure the parent's participation in the IEP meeting, (id.), are thus reviewed solely for clear error. The court finds no clear error relating to these portions of the R&R, and this objection is overruled. Much like Plaintiffs second and third objections, Plaintiffs fourth objection fails to raise a new argument. Point Three of her mo- tion for summary judgment states much the same concern as her fourth objection: she contends in both instances that as a matter oflaw, "the equities cannot favor [the Department of Education], as it has conceded its obligation to provide" a free and appropri- ate public education consisting of special education and related services designed to meet the child's needs, also known as a "FAPE." (Pl.'s Mot. at 21-22.) Here too, the simple recycling of an argument does not warrant de nova review of an able Magis- trate's conclusions by the district court. The court thus reviews the relevant portion of the R&R for clear error. Finding none, Plaintiffs fourth objection is overruled.
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IV. CONCLUSION
Finding no merit to any of Plaintiffs objections, the court ADOPTS IN FULL the Magistrate Judge's well-reasoned R&R.
SO ORDERED.
Dated: Brooklyn, New York July 5, 2023
s/Nicholas G. Garaufis N.icHoIAs G~ GARAUF1s y~ United States District Judg
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------X BRENDA MELENDEZ, as Parent and Natural Guardian of J.C.M., and BRENDA MELENDEZ, individually, REPORT AND RECOMMENDATION Plaintiff, 21 CV 579 (NGG)(LB) -against-
MEISHA PORTER, in her Official Capacity as the Chancellor of the New York City Department of Education, and the NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendants. ------------------------·-------X BLOOM, United States Magistrate Jndge:
Plaintiff Brenda Melendez brings this action individually and as parent and natural
guardian of her minor son, J.C.M., pursuant to the Individuals with Disabilities Education Act
("IDEA"), 20U.S.C. §§ 1401 et seq. Plaintiff seeks to overturn the New York State Education
Department's administrative decision to reduce funding for J.C.M.'s tuition at the International
Institute for the Brain ("iBrain") for the 2018-2019 school year. Plaintiff moves for summary
judgment, ECF No. 34. Defendants, the New York City Department of Education (the "DOE")
and former Chancellor Meisha Porter, cross-move for summary judgment. ECF No. 36. The
Honorable Nicholas G. Garaufis referred the parties' motions to me for a Report and
Recommendation pursuant to 28 tJ:S.C. § 636(b). For the reasons set forth herein, I respectfully
recommend that plaintiffs motion for summary judgment should be denied, and defendants'
cross-motion for summary judgment should be granted.
--. '
BACKGROUND
I. Overview of the IDEA
One of the IDEA's central purposes is to ensure that a child with disabilities receives a
"Free and Appropriate Public Education" (FAPE) consisting of "special education and related
services designed to JTleet [the child's] needs." 20 U.S.C. § 1400(d)(l)(A)-(C). In order to
receive federal funding under the IDEA, New York State must make available a FAPE to all
children in the state with one or more qualifying disabilities. 20 U.S.C. § 1412(a)(l)(A). The
DOE is the local agency responsible for providing a FAPE to all disabled children in New York
City. 20 U.S.C. § 1412; M.P.G. ex rel. J.P. v. New York City Dep't of Educ., No. 08-CV-8051,
2010 WL 3398256, at *3 (S.D.N.Y. Aug. 27, 2010). The DOE ensures that the special education
and related services required by the IDEA meet federal and state requirements and are provided
in conformity with an Individualized Education Program ("IEP"). 20 U.S.C. § 1401(9).
The DOE creates an IEP for each student prior to the start of every school year. 20 U.S.C,
§ 1414(d). The IEP consists of an evaluation of the student's needs and a program of instructions
that outlines "the child's present educational perfmmance, establishes annual short-te1m
objectives for improvements in that performance, and describes the specially designed
instruction and services that will enable the child to meet those objectives." Honig v. Doe, 484
U.S. 305, 3ll. (1988). The IEP is developed by an "IEP team" consisting of the child's parents,
teachers, school district representatives, and in some cases, the child. 2() U.S.C. §l414(d)(l)(B);
N.Y. Educ. Law§§ 2853(4), 3602. In New York, an IEP team is also refen-ed to as the
Committee on Special Education ("CSE") or the CSE team. See N.Y. Educ. Law§
4402(1)(6)(1).
2
New York has a two-tiered administrative review process to address disputes regarding
the child's IEP or provision of a FAPE. A parent who believes that their child was not offered a
F APE may file a "due process complaint" ("DPC") enumerating their challenges and requesting
an impartial hearing before an Impartial Hearing Officer ("IHO"). 20 U.S.C §§ 1415(b)(6),
1415(f)(l)(A); N.Y. Educ. Law§ 4404(l)(a); 8 N.Y.C.R.R. 200.5(i)-U); J.L. v. New York City
Dep't of Educ., No. 15-CV-1200, 2016WL 6902137, at *l (E.D.N.Y. Nov. 22, 2016)
(summarizing New York's administrative appeals process). Either party can appeal the IHO's
decision to a State Review Officer ("SRO"). Id. A party aggrieved by the SRO's decision can
seekjudicial review in state or federal court. 20 U.S.C.A. § 1415(i)(2)(A).
A parent who believes that their child's IEP fails to comply with statutory requirements
may, at their own financial risk, unilaterally remove their child from the IEP's proposed public
school and place their child in a private school that they believe is appropriate for their child's
needs. 20U.S.C. § 1412(a)(l0)(C); see Ventura de Paulino v. New York City Dep't of Educ.,
959 F.3d 519, 525 (2d Cir. 2020) ("[W]hen the parents unilaterally enrolled the students at
iBrain, the parents did so at their own financial risk."). The parent may seek retroactive
reimbursement for the private school tuition and cost of related services from the local school
district. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
The Supreme Court has established a three-pronged test (known as the Burlington-Carter
test) to determine whether the school district must reimburse the parent for the unilaterally
selected educational services. Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. ~359, 369-70
(1985). First, the aggrieved patty must establish (1) whether the school district denied the student
a F APE, and (2) whether the unilateral placement selected by the parent is appropriate. Id. If
these two prongs are satisfied, the court must then consider (3) whether the equities warrant
3
reimbursement to the parent. Id.; Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S.
7, 12 (1993).
II. Factual History 1
Plaintiff is the parent and natural guardian of J.C.M., a thirteen-year-old 2 student with a
traumatic brain injury. R. at 25, 1099. J.C.M. has been diagnosed with multiple medical
conditions related to his brain injury, including cerebral palsy, epileptic seizure disorder, and
cortical visual impairment. R. at 8, 1368. He has global impairments that render him non-
ambulatory and non-verbal, and adversely affect his educational abilities and performance. R. at
8-9, 1398-1400. He requires adult support for all activities of daily living and a high degree of
individualized attention and support throughout the school day. ECF No. 35, Plf.'s Mem. of Law
at 1-2; R. at 1105, 1154.
In January 2018, Fabiana Czemerinski, the chairperson 3 of J.C.M.'s CSE team, met with
program administrators of the International Academy of Hope ("iHope"), J.C.M.'s placement, to
discuss scheduling IEP meetings for J.C.M. and other students at iHope. R. at 665. Ms.
Czemerinski and iHope agreed that the IEP meetings would be held in March and April of that
year at the CSE office. R. at 666-67. Ms. Czemerinski and iHope also agreed that the meetings
would be held during the day so that iHope staff and parents could participate in the meetings. R.
at 667.
On January 10, 2018, plaintiff signed a consent form in English that states, "if you would
like to receive [DOE] notices via email please sign the consent on this form ... ", but did not
1 The following facts are taken from the administrative record [ECF No. 24], and the parties' motions, [ECF Nos.
34, 36, 38-39]. The facts are undisputed unless otherwise stated. The administrative record has been Bates stamped with "DOE [page number]." The Court will cite to the record as "R. at" with the corresponding Bates stamped number, referencing the parties' motions. 2 J.C.M. was nine-years old during the 2018-2019 school year. R. at 25. 3 In her role as chairperson, Ms. Czemerinski supervised J.C.M. 's CSE team and coordinated directly with iHope
when J.C.M. was there. R. at 1294-95.
4
provide an email address as requested on the form. R. at 1103. Plaintiffs native language is
Spanish, and she often requires a Spanish interpreter to communicate in English. R. at 323, 622,
678.
In preparation for the IEP meeting, a CSE social worker conducted a classroom
observation of J.C.M. on January 11, 2018. R. at 668. The CSE team scheduled two other
evaluations for J.C.M.-a "social history update" and an adaptive behavioral evaluation 4-and
sent plaintiff a notice regarding these evaluations on February 9, 2018. R. at 669. The CSE team
conducted both evaluations with plaintiff present on March 29, 2018. R. at 669, 1117-33.
On February 14, 2018, the CSE sent plaintiff a notice in English and Spanish stating that
J.C.M.'s IEP meeting was scheduled for April 10, 2018 at 10:00 a.m. at the CSE office. R. at
1107-11. On or around February 27, 2018, plaintiff cancelled the meeting. R. at 1296. The CSE
sent plaintiff a notice in English and Spanish on the same date, stating that the IEP meeting was
rescheduled for April 19, 2018 at 1:00 p.m. at the CSE office. R. at 1112-16. The February 14
and February 27 notices also provide that plaintiff can request the participation of a school
physician, and that the request must be made in writing at least 72 hours prior to the IEP
meeting. R. at 1108, 1113.
Around this time, Ms. Czemerinski began noticing that other parents of iHope students
were cancelling scheduled IEP meetings, and she called iHope administrators to "express [the
CSE's] concerns." R. at 33,675. During the call, iHope "indicated that their hands were tied," R.
at 674-675, and afte1ward sent Ms. Czemerinski a copy of a memorandum that iHope's board
chairman had sent to parents on April 6, 2018, stating: "[iHope has] been informed that certain
parents have been advised by their attorney to cancel IEP Meetings scheduled for the remainder
4 The record alternately refers to this evaluation as a "Vineland" evaluation. R. at 668-69, 1295-96.
5
of April and May .... [W]hether you are being represented by Patrick Donohue, his staff or any
other attorney for that matter, they are your lawyer( s) and they do not represent iHope Academy.
Their strategy towards the IEP meetings may differ from the school's." R. at 1277-80.
On April 13, 2018, plaintiff cancelled the IEP meeting set for April 19, 2018 and stated
that she would contact the CSE to reschedule within one week. R. at 34, 1139, 1297. A CSE
team member called plaintiff to reschedule the IEP meeting on April 17, 2018, but plaintiff did
not answer, so the team member left a voice message. Id. On April 18, 2018, the CSE sent a
notice in English and Spanish noting that it had not been able to reach plaintiff, but that her
request to reschedule the IEP meeting was granted and that the meeting would be held on June 8,
2018 at 9:00 a.m. R. at 1139-1144, 1297. On April 19, 2018, plaintiff sent the CSE a letter in
English and Spanish requesting that the IEP meeting be scheduled after 3 :00 p.m. on a weekday
(Monday through Thursday), that it take place at iHope, and that a physician participate in
person at the meeting. R. at 34, 682-83, 994, 1451-54. Plaintiff asked that the CSE send a "few
proposed dates and times" by email or regular mail, because she "prefer[ed] not to schedule any
meetings through the telephone." R. at 1453. Plaintiffs attorney, Patrick Donohue, is copied on
the letter. R. at 1454.
On or around April 27, 2018, the CSE sent a notice in English and Spanish rescheduling
the IEP meeting for Tuesday, May 15, 2018 at 3:15 p.m. at the CSE office. R. at 1145--49. On
April 30, 2018, the CSE sent another notice in English and Spanish confirming the IEP meeting
for 3:15 p.m. on May 15, 2018. R. at 1150-52. The notice states that the CSE denied plaintiffs
request to hold the meeting at iHope, and that a physician would participate but not in person. R.
at 1145--46, 1150-52.
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On May 3, 2018, a CSE team member called plaintiff to remind her of the IEP meeting
scheduled for May 15, 2018 and to request J.C.M.'s updated progress reports, but plaintiff did
not answer, so the team member left a voice message. R. at 1297. On May I 0, 2018, plaintiffs
attorney, Patrick Donohue, sent a letter addressed to Ms. Czemerinski requesting that the May
15, 2018 meeting not proceed as scheduled because the "proposed date and time does not work"
for plaintiff and requested that the CSE email plaintiff additional proposed dates and times. R. at
1455. Mr. Donohue also stated that plaintiff did "not waive the right to have" a physician
participate in the meeting and that "the CSE should ONLY propose dates whereby the DOE
School Physician can participate in person." R. at 1456.
On May 14, 2018, a CSE team member called plaintiff a second time to remind her of the
May 15, 2018 meeting and request updated progress reports. R. at 1297-98. Plaintiff did not
answer and the team member was unable to leave a voice message. Id. On May 15, 2018, the
CSE team member called plaintiff a third time to remind her about the IEP meeting and request
updated progress reports, but plaintiff did not answer, and the team member could not leave a
voice message. R. at 1298. The CSE proceeded with the IEP meeting on May 15, 2018. R. at
687-88. Plaintiff and J.C.M.'s iHope providers did not participate in the meeting. R. at 1165,
1298. A physician participated in the IEP meeting by telephone. R. at 1028-29, 1298.
On June 4, 2018, plaintiff signed a contract for J.C.M.'s enrollment at iBrain for the
2018-2019 school year. R. at 1440-45. On June 18, 2018, the CSE sent plaintiff a notice of the
IEP that it had developed for J.C.M. for the 2018-2019 school year. R. at I 166-72. On June 21,
2018, plaintiffs attorney 5 sent a ten-day notice 6 notifying the DOE of plaintiffs intention to
5 The letter is signed by William Frazier, chief of staff of the Brain Injmy Rights Group. 6 IDEA regulation requires that parents 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)(l)(ii).
7
unilaterally place J.C.M. at iBrain and arguing that because the CSE did not conduct a "full
committee meeting" with a physician present, it did not offer J.C.M. a PAPE, and therefore
plaintiff"has no choice other than to enroll [J.C.M.] at" iBrain. R. at 1457-58.
On or around July 10, 2018, plaintiff filed a DPC and requested an impartial hearing on
(1) whether the DOE had denied J.C.M. a PAPE, (2) whether unilateral placement of J.C.M. at
iBrain was appropriate, and (3) whether the equities favored direct reimbursement for the
education and related services that J.C.M. would receive at iBrain. 7 R. at 10, 26-27.
Ill. IHO Hearing & Decision
IHO Susan Lushing was assigned to hear the merits of plaintiffs claims. 8 R. at 27. An
impartial hearing was held on July 8 and July 21, 2020, during which three witnesses testified by
affidavit subject to cross-examination, and both parties offered documents as evidence. Id. On
September 21, 2020, IHO Lushing issued a Findings of Pact and Decision ("FOFD"), in which
she mled that the DOE had conceded that it had denied J.C.M. a FAPE for the 2018-2019 school
year, that iBrain was an appropriate unilateral placement, and that equitable considerations
weighed against full reimbursement of J.C.M.'s tuition due to plaintiffs "failure to fully
cooperate with the CSE in developing an IEP .... " R. at 11, 27, 43-44.
7 Plaintiff also sought a detennination whether iBrain was a sufficient "pendency placement" under the IDEA. R. at
35. The IHO found that she lacked jurisdiction to rule on the issue, R. at 36, and plaintiff appealed her decision to the SRO. R. at 14. The SRO affirmed the IHO's decision and dismissed plaintiffs appeal as lacking in merit based on the Second Circuit's decisions in Ventura de Paulino and Neske v. New York City Dep't of Educ., 2020 WL 5868279 at* 1 (2d Cir. Oct 2, 2021), both of which found that parents could not unilaterally place students at iBrain and receive pendency funding. R. at 15. The SRO noted that this Court had already applied the Ventura de Paulino decision to the instant case, finding that plaintiff "cannot. .. determine that [J.C.M.'s] pendency placement would be better provided somewhere else, enroll [him] in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis." M. v. New York City Dep't of Educ., 2020 WL 4273907, at *7 (S.D.N.Y. July 24, 2020), reconsideration denied, 2020 WL 5117948 (S.D.N.Y. Aug. 31, 2020). The parties' instant motions do not raise this issue. 8 There were three different IHOs assigned to the parent's various claims. ECF No. 24-1 at 11. IHO Lushing's decision on plaintiffs substantive claims is the only IHO decision at issue in the instant matter.
8
In weighing the equities, !HO Lushing found that plaintiff had cooperated with the DOE
in February and March of 2018, but that "cooperation ceased" thereafter. R. at 41. Specifically,
she found that plaintiff cancelled the IEP meetings scheduled for April 10 and 19, 2018 without
attempting to reschedule, and that plaintiffs cancellations coincided with a "rash of
cancellations" by parents of iHope students. R. at 33-34. She further found the memorandum by
iHope's board chairman to be "convincing evidence of a concerted effort," in which "the parents
had been advised by their attorney, Patrick Donohue, not to participate in the IEP process." R. at
33, 42.
!HO Lushing concluded that the CSE team had "tried very hard to accommodate"
plaintiffs requests and that her proffered reason for not participating in the IEP meeting on May
15, 2018-that the DOE had failed to require a physician's in-person attendance-was "a
manufactured excuse to obstruct the IEP process." R. at 42. IHO Lushing also noted that "[p ]re-
COVID," telephonic appearances at IEP meetings were "widely used as a reasonable method to
obtain" a physician's participation. Id. Accordingly, !HO Lushing reduced the DOE's
reimbursement for J.C.M.'s tuition at iBrain by "about 33% or $48,000 because of parental
noncooperation" but declined to reduce reimbursement for transportation services. 9 R. at 43--44.
IV. SRO Decision
Defendants appealed !HO Lushing's determination regarding the appropriateness of
J.C.M. 's unilateral placement at iBrain, and plaintiff appealed the decision to reduce
reimbursement due to equitable considerations. 10 R. at 21. The matter was assigned to State
9 !HO Lushing found that transportation costs for J.C.M. amounted to $134,860.00 but could not identify the cost of
other related services in the administrative record. 10 As to whether defendants had provided J.C.M. a PAPE, the SRO found that "[a]s the [school] district has not cross-appealed from the IHO's determination thatit failed to offer the student a F APE for the 2018-19 school year based upon the district 1 s concession, that issue has become final and binding upon the parties and will not be further discussed." R. at 18.
9
Review Officer ("SRO") Justyn P. Bates. R. at 23. After reviewing IHO Lushing's FOFD and
the administrative record, SRO Bates found that !HO Lushing had not erred in finding that iBrain
was an appropriate unilateral placement for J.C.M. and declined to disturb her determination on
equitable considerations and a reduction in the tuition award. Id. SRO Bates agreed with !HO
Lushing's reasoning that the iHope memorandum was a '"better explanation' for [plaintiff's]
refusal to cooperate with the CSE" and compelling evidence that plaintiff's decision to follow
the advice of her attorney and "not [] assist the CSE" aligned with a larger "concerted effott by"
other parents of students at iHope. R. at 23. As such, SRO Bates affirmed IHO Lushing's
conclusion that plaintiff's failure to cooperate was a "serious impediment" to the CSE
perfmming its legal obligations under the IDEA and that the equities were not in plaintiff's
favor, and concluded that a 33% reduction in the tuition award was a "reasonable exercise of her
sound discretion in this matter." Id.
V. Procedural History
Plaintiff commenced this action seeking federal review of SRO Bates's decision. ECF
No. l. Plaintiff also moved for a preliminary injunction ordering defendants to comply with the
FOFD's order to immediately fund J.C.M.'s placement at iBrain for the 2018-2019 year. ECF
No. 5. On April 7, 2021, plaintiff withdrew her motion for a preliminary injunction after
receiving all payments pursuant to the FOFD. ECF No. lo. Plaintiff amended the complaint
seeking the Court's review of the remaining adverse portion of SRO Bates's decision. ECF No.
18; Fed. R. Civ. P; 15; IDEA§ 1415(i) ("[t]he party bringing the action shall have 90 days from
the date of the Decision of the hearing officer to bring such an action, or if the State has an
explicit time limitation for bringing such action under this part [20 U.S.C.S. §§ 141 let seq.l, in
such time as the State law allows."); Education Law§ 4404(3)(a) (providing that a party may
10
commence an action within four months of an SRO's decision). Defendants answered the
amended complaint on June 3, 2021. ECF No. 21. Defendants filed a certified copy of the
administrative record under seal on November 5, 2021. ECF No. 24.
Plaintiff now moves for summary judgment pursuant to Rule 56, ECF No. 34, and defendants
cross-move for summaty judgment. ECF No. 36. Plaintiff and defendants oppose each other's
motions. ECF Nos. 36, 38-39.
STANDARD OF REVIEW
A motion for summary judgment in an IDEA case is more akin to a "mechanism for
reviewing a state's compliance with the procedures set forth in IDEA" than "an inquiry into
possible disputed issues of fact." Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397
F.3d 77, 83 n.3 (2d Cir. 2005) (collecting cases). In reviewing an administrative decision under
the IDEA, a district court must review the administrative record in its entirety, hear additional
evidence at the party's request, and make its determination based on a preponderance of the
evidence. 20 U.S.C. § 1415(i)(2)(C); Gagliardo v. Arlington Cent. Sch. Dist., F.3d 105, 112 (2d
Cir. 2007).
A district court reviews an SRO's final determination under the "modified de nova
review" standard. T.K. v. New York City Dep't of Educ., 779 F. Supp. 2d 289,310 (E.D.N.Y.
2011). This standard ofreview requires the court to conduct an independent review of the
administrative proceedings and establish whether "there has been compliance with the IDEA's
process and the child's educational needs have been appropriately addressed." Wall by Wall v.
Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 501,508 (E.D.N.Y. 1996). "[F]ederal courts
reviewing administrative decisions must give 'due weight' to [administrative] proceedings,
mindful that the judiciary generally 'lacks the specialized knowledge and experience necessary
11
to resolve persistent and difficult questions of educational policy."' M.H. v. New York City
Dep't of Educ., 685 F.3d 217,240 (2d Cir. 2012) (quoting Gagliardo, 489 F.3d at 113).
"Deference is particularly appropriate when [an SRO' s] review has been thorough and careful."
Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
DISCUSSION
The parties do not dispute that J.C.M. was denied a FAPE or that his unilateral placement
at iBrain was appropriate. Therefore, the only issue for the Court's review is whether SRO Bates
erred in his detetmination that the equities warrant a 33% reduction of the DOE's reimbursement
of J.C.M.'s tuition at iBrain. Plaintiff argues that the equities weigh in favor of full
reimbursement and that SRO Bates's decision affirming a reduction of the reimbursement award
should be reversed. Plf.'s Mem. of Law at 24-25. Defendants argue that SRO Bates did not err in
holding that the equities weigh against plaintiff due to her failure to cooperate with the DOE, and
his decision should be accorded deference. ECF No. 37, Defs.' Mem. of Law at 22.
When a school district fails to provide a student with a FAPE, and the student's unilateral
placement is appropriate, "the district court enjoys broad discretion in considering equitable
factors relevant to fashioning relief." Gagliardo, 489 F.3d at 112; Forest Grove Sch. Dist. v.
T.A., 557 U.S. 230, 246-247 (Even where a parent is entitled to reimbursement under the IDEA,
"comts retain discretion to reduce the amount of a reimbursement award if the equities so
warrant."). A court may consider various factors in weighing the equities, including whether
plaintiffs unilateral withdrawal was justified, whether the parent made their child available for
the school district's evaluation, whether the private school's tuition was reasonable, or whether
there was any fraud or collusion in generating the tuition to be charged to the school district or in
any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442,461 (2d Cir. 2014); 20
12
U.S.C. § 1412(a)(I0)(C)(iii); 34 CFR 300.148(d). "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). Factors that the Court may consider in determining a parent's reasonableness include
"whether the parents cooperated with the CSE (e.g., providing reports, attending the meeting,
participating in the meeting); whether the parents timely notified the school district of their intent
to place their child in a private school; ... whether the parents or the DOE unreasonably delayed
anything; and the appropriateness of the DO E's conduct .... " GB v. New York City Dep't of
Educ., 145 F. Supp. 3d 230,257 (S.D.N.Y. 2015). Plaintiff bears the burden of establishing that
the equities weigh in her favor. R.E. v. New York City Dep't of Educ., 694 F.3d 167, 185 (2d
Cir. 2012).
I. SRO Bates Did Not EIT in Finding Against Plaintiff on Equitable Grounds
As noted in SRO Bates's decision and the FOFD, the circumstances of this case are
strikingly similar to those in other cases where parents of students at iHope unilaterally moved
their students to iBrain and sought retroactive reimbursement for iBrain's tuition and related
costs for the 2018-2019 school year (collectively, the "iBrain cases"). See, e.g .. Ventura de
Paulino, 959 F.3d at 528 (identifying "approximately 23 cases" represented by the same counsel,
in "which parents ... transfe1Ted their children from iHope to iBrain for the 2018-2019 school
year without the City's consent" and sought City funding for iBrain's educational services); see
also Neske v. Porter, No. 21-CV-10363, 2022 WL 3290561, at *4 (S.D.N.Y. Aug. 11, 2022),
reconsideration denied, No. 21-CV-10363, 2022 WL 16578963 (S.D.N.Y. Nov. 1, 2022)
(considering "strong evidence that plaintiffs were part of an organized campaign to shift students
from iHope to iBrain and to thwart the District's process for preparing IEPs for those students.").
13
Notably, Patrick Donohue and the attorneys at his firm, Brain Injury Rights Group ("BIRG"), are
counsel of record in this case and represent the plaintiff parents in many, if not all of the iBrain
cases. See, e.g., Ferreira v. New York City Dep't of Educ., No. 19-CV-2937, 2020 WL I 158532,
at *2 n.l (S.D.N.Y. Mar. 6, 2020), affd, No. 20-908, 2020 WL 8838249 (2d Cir. Nov. 4, 2020)
(detailing the "curious" circumstances around the plaintiffs "abrupt transfer" from iHope to
iBrain, including Donohue's history as founder of iHope, iBrain, and BIRG, and BIRG's
representation of plaintiffs in other cases seeking funding at iBrain (citations omitted)).
In each of the iBrain cases where the parent sought review of equitable considerations,
the comt considered facts similar to those in this case and held that the equities did not weigh in
the parent's favor. See, e.g., Donohue v. New York City Dep't ofEduc., No. l:20-CV-1942,
2021 WL 4481344, at *3-5, 10 (S.D.N.Y. Sept. 30, 2021) (finding that Patrick Donohue,
plaintiff parent in the case, cancelled the initially scheduled IEP meeting, requested the meeting
be held at iHope and on a weekday after 3 :00 p.m. and not be rescheduled unless a physician
paiticipated in the meeting in person, and ultimately did not attend the meeting); Neske, No. 21-
CV-10363, 2022 WL 3290561, at *2, 5-6 (finding that the plaintiff had requested a physician's
in-person attendance, that Ms. Czemerinski's had testified that over 35 parents ofiHope students
had made the same request, that Patrick Donohue had advised iHope parents not to cooperate,
and that the plaintiff ultimately did not attend the IEP meeting despite multiple attempts by the
CSE "to arrange a mutually convenient time and place."); Maysonet v. New York City Dep't of
Educ., No. 22-CV-1685, 2023 WL 2537851, at *4 (S.D.N.Y. Mar. 16, 2023) (affirming the
SRO's reduction and finding that the CSE had repeatedly rescheduled the IEP meeting to secure
plaintiffs participation, and that plaintiffs failure to provide the CSE progress reports and stated
reason for not participating in the meeting-because the physician was going to attend
14
telephonically rather than in person-was "unreasonable behavior and a negative equitable
consideration under the IDEA").
After conducting an independent review of the administrative record in this case, I reach
the same conclusion. Plaintiff participated in the IEP process in February and March of2018 but
ceased cooperation thereafter. Plaintiff twice cancelled the IEP meeting scheduled for J.C.M.
without attempting to reschedule. R. at 34, 1139-44, 1297. When she wrote to reschedule the
meeting on April 19, 2018, plaintiff stated that she was only available on certain days and times
and requested that the meeting take place at iHope and that a physician participate in person. R.
at 682-83, 1451-54. The CSE rescheduled the IEP meeting to accommodate plaintiffs schedule
and allowed the physician to attend telephonically. R. at 1145-45. The CSE attempted to confirm
plaintiffs attendance and requested updated progress reports three times thereafter, to no avail.
R. at 1455. Plaintiffs last communication to the CSE is a letter from her attorney, insisting that
the CSE only propose dates where a physician could participate in person. R. at 1456. These
facts are summarized in the FOFD and SRO Bates's decision affirming the FOFD. Accordingly,
the Court should find that SRO Bates did not err in affirming the FOFD, and that plaintiffs
behavior was unreasonable and impeded the DOE's ability to comply with its obligations under
the IDEA.
Plaintiffs argument that the DOE cannot hold the IEP meeting in the parent's absence
unless the parent affirmatively refuses to participate is a misunderstanding of the law. Plf.'s
Mem. of Law at 16; Plf.'s Opp. at 11-12. Federal regulations provide that the DOE may proceed
with the meeting if it "is unable to convince the parents that they should attend" and "must keep
a record of its attempts to arrange a mutually agreed on time and place, such as ... telephone
calls ... [and] copies of correspondence .... " 34 C.F.R. § 300.322(d). "The IDEA does not require
15
the presence of a parent member and the parent member's absence cannot, therefore, be
considered a procedural defect under the federal statute." Bd. of Educ. of the City Sch. Dist. of
City ofNew York v. Mills, No. 03-CV-50, 2005 WL 1618765, at *5 (S.D.N.Y. July 11, 2005).
Plaintiff also argues that her conduct is "belied by defendants' actions, or inactions,"
noting that the CSE did not include the location of the IEP meeting in its April 30, 2018 notice
and did not email her when unable to leave voice messages. Plf.'s Mem. of Law at 3, 14-17.
First, the CSE's notice dated April 27, 2018 includes the location of the IEP meeting, and
plaintiff could have contacted the CSE to confirm the location. R. at 1150-52. Second, the CSE's
decision to use one method of communication over another is not a failure to comply with the
IDEA. GB, 145 F. Supp. 3d at 257. Even if the CSE is obliged to use all available
communication methods, which it is not, it is unclear whether plaintiff ever provided her email
address to the CSE. R. at 1103. Moreover, plaintiffs letter dated April 19, 2018 notes that she
preferred communications by email or regular mail. The CSE mailed notices in English and
Spanish, plaintiffs native language, and called plaintiff on multiple occasions to confirm her
participation at the IEP meeting. Any of the CSE's alleged shortcomings do not obviate
plaintiffs own responsibilities in the IEP process. Erde v. Banks, No. 21-CV-9285, 2022 WL
18461297, at *7 (S.D.N.Y. Dec. 28, 2022), report and recommendation adopted, No. 21-CV-
9285, 2023 WL 373156 (S.D.N.Y. Jan. 24, 2023). "The duty to take steps to find a mutually
agreed on time assumes good faith attempts to agree by both sides." Mr. "M" ex rel "K.M." v.
Ridgefield Bd. of Educ., No. 3:05-CV-584, 2007 WL 987483, at *6 (D. Conn. Mar. 30, 2007).
Plaintiffs contention that she has a "right" under the IDEA and New York law to request
a physician's in-person attendance misunderstands the law and is unpersuasive. Plf.'s Mem. of
Law at 15. State regulations permit a physician's attendance "if specifically requested in writing
16
by the parent ... at least 72 hours prior to the [CSE] meeting" but do not require that the physician
attend in person or grant the parent the right to refuse to attend a meeting if the physician does
not attend in person. 8 N.Y.C.R.R. § 200.3(a)(l)(vii). Indeed, 8 N.Y.C.R.R. § 200.5(d)(7)
explicitly provides that the CSE can "use alternative means of pmticipation, such as
videoconference or conference telephone calls." Plaintiffs insistence on a physician's in-person
participation at the IEP meeting is not only without basis but is undermined by her own failure to
participate. Her request appears to be a "a tactic designed to stymie the DOE's effort to create
IEPs for the students." Neske, No. 21-CV-l 0363, 2022 WL 3290561, at *4.
Finally, plaintiff contends that if a school district concedes that it did not provide a
FAPE, it must pay for the child's education. Plf.' s Mem. of Law at 23. However, even where the
DOE has conceded that a student was denied a FAPE, the court must review the record
separately in weighing the equities. Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Cent. Sch.
Dist., 368 F. Supp. 2d 313, 328-329 (S.D.N.Y. 2005) (separately weighing the equities after
finding the district had denied the student a FAPE); N.R. ex rel. T.R. v. Dep't of Educ. of City
Sch. Dist. of City of New York, No. 07-CV-9648, 2009 WL 874061, at *7 (S.D.N.Y. Mar. 31,
2009) (finding defendant had conceded it denied the student a FAPE and separately finding that
plaintiff had not acted "with the requisite level of unreasonableness" to be denied on equitable
grounds). As noted in Donohue, "[t]here would be no need for a third prong [under the
Burlington-Carter test]-the equities-if it were the case that a finding of a denial ofF APE and
an appropriate unilateral placement (the first two prongs) precluded denial or reduction of
reimbursement costs for families." No. 20-CV-1942, 2021 WL 4481344, at *IO n.4.
Based on the undisputed facts in this case, the Court should find that SRO Bates did not
err in affirming IHO Lushing's determination that the equities warrant a reduction of the tuition
17
award for J.C.M.'s attendance at iBrain, and in finding that a 33% reduction of the full tuition
cost was reasonable and within !HO Lushing's sound discretion. L.K. v. New York City Dep't of
Educ., 674 Fed. App'x IOI, 101 (2d Cir. Jan. 19, 2017) (summary order) ("Total reimbursement
will not be appropriate if the court determines that the cost of the private education was
unreasonable." (quoting Carter, 510 U.S. at 16)); M.W. ex rel. S.W. v. New York City Dep't of
Educ., 725 F.3d 131, 139 (2d Cir. 2013) (Noting that in dete1mining whether the reduction
amount is reasonable, the Court is "further restrained by [its] lack of specialized knowledge and
educational expertise." (internal quotation marks, citation and alterations omitted)); see also
Donohue, 2021 WL 4481344, at * 11 (deferring to the state officer's review and the "well-
reasoned analysis" of the !HO decision based on the parent's conduct). 11
CONCLUSION
Accordingly, I respectfully recommend that plaintiffs motion for summary judgment
should be denied, and defendant's cross-motion should be granted.
11 Plaintiff also requests attorney's fees. Plf.'s Mem of Law at 24. As plaintiff is not the prevailing party in this
action, plaintiffs request for attorneys' fees should be denied.
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FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(6)(1) and Rule 72(6) of the Federal Rules of Civil
Procedure, the parties shall have fourteen days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections shall be filed with the Clerk of the Court.
Any request for an extension of time to file objections must be made within the fourteen-day
period. Failure to file a timely objection to this Report generally waives any further judicial
review. Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002);
Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989); see Thomas v. Am, 474.
U.S. 140 (1985).
SO ORDERED.
/S/ LOIS BLOOM United States Magistrate Judge
Dated: May 15, 2023 Brooklyn, New York
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