Opinion
18-CV-11219 (JPC) (RWL)
01-24-2022
R.G., individually and on behalf of E.G., a child with a disability, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
REPORT AND RECOMMENDATION TO HON. JOHN P. CRONAN: CROSS-MOTIONS FOR SUMMARY JUDGMENT
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
By this lawsuit, Plaintiff R.G., the parent of a child with autism, E.G., seeks reimbursement for two months of tuition paid to send E.G. to a non-public school. Procedurally, this case is an appeal of the decision of a state review officer upholding the decision of an impartial hearing officer following an administrative hearing conducted pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C § 1400 et seq. The state review officer's decision denied the parent's request to be reimbursed costs of E.G.'s tuition at the Staten Island Academy for the 2017-2018 school year. R.G. now moves for summary judgment pursuant to Federal Rule Of Civil Procedure 56 to reverse the state review officer's decision. The defendant New York City Department of Education (“DOE”) cross-moves for summary judgment upholding the decision. For the reasons set forth below, the Court recommends that Plaintiff's motion be DENIED, Defendant's motion be GRANTED, and the state review officer's decision be affirmed.
The Educational Legal Framework
To place the facts of this case in context, it is helpful to begin by explaining the law governing a student's educational rights and the administrative proceedings to enforce them. There are two frameworks to consider: the Free Appropriate Public Education framework and the Parental Placement framework. This case implicates both.
A. IDEA, FAPE, And IEPs
Congress enacted IDEA to further the education of students with disabilities and provide them with a free and appropriate public education (“FAPE”). 20 U.S.C. § 1400(d)(1)(A); see Forest Grove School District v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 2491 (2009); Walczak v. Florida Union Free School District, 142 F.3d 119, 122 (2d Cir. 1998). Pursuant to IDEA, a child with a disability must receive a FAPE that includes special education and related services provided at public expense. 20 U.S.C. § 1400 (d)(1)(A); Reyes ex rel. R.P. v. New York City Department Of Education, 760 F.3d 211, 214 (2d Cir. 2014) (“A FAPE consists of special education and related services” (internal quotation marks omitted)). Toward that end, a school district must provide an educational program “tailored to meet the unique needs of a particular child.” Walczak, 142 F.3d at 122.
That process begins with development of an individualized education program, otherwise known by its acronym as an IEP. See Murphy v. Arlington Central School District Board Of Education, 297 F.3d 195, 197 (2d Cir. 2002); see generally 20 U.S.C. § 1414 (d) (setting forth IEP requirements). An 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.” D.D. ex rel. V.D. v. New York City Board Of Education, 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IEP is thus considered the “the centerpiece of the statute's education delivery system for disabled children.” Endrew F. v. Douglas County School District RE-1, U.S.,, 137 S.Ct. 988, 994 (2017) (internal quotation marks omitted); see also Frank G. v. Board Of Education of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006) (An IEP is “[t]he key element of the IDEA”).
As a state that receives federal funds under IDEA, New York must comply with the statute's requirements. Walczak, 142 F.3d at 123. The responsibility for developing IEPs in New York is assigned to a local committee on special education (“CSE”), comprised of members appointed by the local school district's board of education. R.E. v. New York City Department Of Education, 694 F.3d 167, 175 (2d Cir. 2012) (citing N.Y. Educ. Law § 4402(1)(b)(1)). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Id. at 175 (citing Gagliardo v. Arlington Central School District, 489 F.3d 105, 107-08 (2d Cir. 2007)).
An IEP must be prepared pursuant to certain procedural requirements, including prior written notice to the parent. 20 U.S.C. § 1415(b)(3); Board Of Education Of Yorktown Central School District v. C.S., 357 F.Supp.3d 311, 316 (S.D.N.Y. 2019). The IEP is developed by a team of individuals, including the child's parents, teachers, and representatives of the school district. See 20 U.S.C. § 1414(d)(1)(B). A school district is required to annually review and prepare a child's IEP to determine whether the goals set for the child are being met and to make any appropriate recommendations. See 20 U.S.C. § 1414(d)(4); see Hardison v. Board Of Education, 773 F.3d 372, 376 (2d Cir. 2014).
If a parent disagrees with the final IEP recommendation, the parent may claim that their child was denied a FAPE, unilaterally enroll the child in a private school, and sue the district for tuition reimbursement. M.O. v. New York City Department Of Education, 793 F.3d 236, 239 (2d Cir. 2015); E.T. v. Board Of Education, No. 11-CV-5510, 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012); Board Of Education Of Yorktown, 357 F.Supp.3d at 316. In acting unilaterally, the parent proceeds at their “own financial risk.” Gagliardo, 489 F.3d at 111. Procedurally, the parent must provide notice ten business days before removing their child from public school. 20 U.S.C. § 1412(a)(10)(C)(iii); Board of Education Of Yorktown, 357 F.Supp.3d at 316. The purpose of that notice is to provide the school district with “an opportunity to develop a FAPE within the District's own schools - thus saving the cost of reimbursement.” W.M. v. Lakeland Central School District, 783 F.Supp.2d 497, 506 (S.D.N.Y. 2011).
Under the FAPE framework, a parent is entitled to reimbursement for sending their disabled child to private school when three conditions are met: (1) the educational program recommended by the school district was inadequate or inappropriate; (2) the program selected by the parent was appropriate, such that the private program meets the student's special education needs, and (3) the equities favor the parent's claim. These elements are known as the Burlington/Carter test based on two Supreme Court decisions. T.M. v. Cornwall Central School District, 725 F.3d 145, 152 (2d Cir. 2014); see Florence County School District Four v. Carter, 510 U.S. 7, 114 S.Ct. 361 (1993); School Committee Of Burlington v. Department Of Education, 471 U.S. 359, 370, 105 S.Ct. 1996, 2003 (1985). The third element - equitable considerations - is the specific issue in dispute in instant case.
IDEA requires that an EIP be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F., 137 S.Ct. at 999. For a child's IEP to be adequate under IDEA, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. T.P. ex rel. S.P. v. Mamaroneck Union Free School District, 554 F.3d 247, 253 (2d Cir. 2009).
B. Parental Placement And IESPs
In addition to the FAPE framework, IDEA contains a separate framework for disabled children who are “parentally placed” in private schools. E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412(a)(1)(A)(i)-(ii); 34 C.F.R. §§ 300.131-133. Under this framework, states are required to allocate a proportional share of federal IDEA funds to private special education and related services to parentally-placed private school children. J.S. v. Scarsdale Union Free School District, 826 F.Supp.2d 635, 665 (S.D.N.Y. 2011). “The more limited services provided to parentally-placed children in private schools is commonly known as ‘equitable participation,' and is distinct from the FAPE requirement.” E.T., 2012 WL 5936537 at *11 (internal quotation marks omitted).
The parental-placement framework allows a parent to place their child in private school at the parent's expense and, rather than request tuition reimbursement, request the district to fund only the related special education services recommended for the child. 20 U.S.C. § 1412(a)(10)(A); 34 C.F.R. §§ 300.137-139. The services may be delivered at the private school, but the school district must adopt a “plan that describes the specific special education and related services that the [local education agency] will provide to the child.”); E.T., 2012 WL 5936537 at *11 (quoting 34 C.F.R. §§ 300.137(c), 300.138(b)). In New York, that plan is known as an Individualized Service Program or “IESP” and is developed in the same manner as an IEP. Id.; N.Y. Educ. Law § 3602-c(2)(b).
In some instances, a child may require both an IEP and IESP. That occurs when students are parentally placed for the 10-month school year but require 12 months of services. In that event, the student receives an IESP for the 10-month school year and an EIP for the summer months.
The source of information about a parentally-placed child's receiving both an IESP and IEP comes from Defendant's reply briefing. (Dkt. 61 at 2.)
C. Procedural Steps For Challenging An IEP Or IESP
The procedural steps a parent must follow to challenge an IEP are proscribed by IDEA. See 20 U.S.C. § 1415(b)(6)(A) (delineating procedures for parents complaining about “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”). Pursuant to New York's implementation of IDEA and the State's parental-placement program, the process for challenging an IEP or IESP is the same. See N.Y. Educ. Law § 3602-c(2)(b)(1) (providing that review of IESP may be sought pursuant to N.Y. Educ. Law § 4404); N.Y. Educ. Law § 4404 (detailing appeal procedures governing challenges to “any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]”).
The process begins with filing a due process complaint outlining the grounds for challenging the IEP or IESP. 20 U.S.C. § 1415(b)(6(A); N.Y. Educ. Law § 4404(1); Board Of Education Of Yorktown, 357 F.Supp.3d at 316. The parent is then entitled to a hearing before an impartial hearing officer (“IHO”) appointed by the local school district. See 20 U.S.C. § 1415(f)(1)(A); N.Y. Educ. Law § 4404(1)(a). In New York, the IHO's decision may be appealed to the State Education Department's Office of State Review, where a state review officer (“SRO”) will independently review the findings and decisions rendered by the IHO. 20 U.S.C. § 1415(g)(1); N.Y. Educ. Law § 4404(2). The SRO's decision is considered a final administrative decision, at which point any “aggrieved” party may bring an action for relief in state or federal district court. 20 U.S.C. §§ 1415(i)(1)(B), (2)(A); N.Y. Educ. Law § 4404(3)(a); see generally Hardison, 773 F.3d at 376 (describing administrative proceedings from complaint through challenge in court).
The facts are drawn from the administrative record (the “Record”) (Dkt. 42), which the Court has reviewed in its entirety. Citations to the Record are denoted by “R.”
A. E.G.'s Schooling From 2014 Through The 2016-2017 Academic Year
E.G. was born in January 2011 and has been classified as a student with autism. (R. 295). From the 2014-2015 school (pre-kindergarten) through the 2017-2018 school year (1st grade), E.G. attended private school at Staten Island Academy (the “Academy”). (R. 366-67, 452, 471.) The Academy is a pre-kindergarten through twelfth grade college preparatory school. (R. 75.) Although it is not a special education school, it has support services for students with learning disabilities. (R. 77.)
At the time E.G.'s parents applied for admission to the Academy, E.G. had not been diagnosed with his various disabilities. (R. 165-66.) The school accepted E.G., and his parents elected to send him to the program three days a week. (R. 167-68.) When E.G.'s parents learned of his diagnoses, they made an appointment with the Academy's director of admissions to explain that E.G., during the interim since applying for admission, had been diagnosed. (R. 167-68.) The school permitted E.G. to attend with support services including special education itinerant services (“SEIT”), speech language therapy, and occupational therapy. (R. 168.)
After E.G. attended the Academy's pre-kindergarten program for two years, his parents referred him to the local CSE (committee on special education) for the so-called Turning Five process. (R. 169.) The school psychologist at E.G.'s local public school -which is located around the corner from the family home - opined that E.G. would not be able to function in a regular kindergarten setting and told the parents that the CSE would be recommending that E.G. attend a public school on the other side of Staten Island from the family home. (R. 169-172, 285-86.) Concerned that the recommended program was overly restrictive, E.G.'s parents placed him at the Academy for kindergarten during the 2016-2017, for which they were reimbursed. (R. 273.) E.G. also continued to receive SEIT services, speech language therapy, and occupational therapy. (R. 161, 179.) Over the course of the school year, E.G. integrated into his class both behaviorally and socially. (R. 82.) His reading is on grade level but has challenges with math. (R. 86.)
B. E.G.'s Placement For The 2017-2018 School Year
In April 2017, the parents signed an agreement with the Academy to reserve E.G. a spot for the 2017-2018 academic year. No IEP meeting had yet taken place, but E.G.'s parents wanted to make sure that E.G. would be able to attend the Academy “if necessary.” (R. 177.) Specifically, E.G.'s parents were concerned that they would need to send E.G. to the Academy if the CSE recommended sending E.G. to a public school that was not appropriate for him. (R. 177.) E.G.'s parents obtained tuition refund insurance, which is available in case “you change your mind”, to protect themselves. (See R. 188-89.)
On May 21, 2017, eleven days before the deadline for filing a notice of parental placement, E.G.'s father signed a notice of intent to parentally place E.G. at the Academy for the 2017-2018 school year. (R. 260.) The signed form states that the parent has “placed my child in a non-public school at my expense and want the special education services to continue to be provided next school year.” (R. 260.)
The deadline for filing a request for educational services by parents placing their child in a nonpublic school is the first day of June preceding the school year for which the request for services is made. N.Y. Educ. Law § 3602-c(2).
On June 28, 2017 the CSE convened to assess E.G.'s special education needs for the 2017-2018 year. (R. 54.) The meeting originally had been scheduled for a date in May 2017 but was postponed at the parents' request. (R. 54.) The June 28, 2017 meeting was attended by two individuals affiliated with the DOE and by both parents. (R. 303.) The meeting did not include anyone from the Academy, which was by that time out of session. (R. 54-55.) The record reflects somewhat divergent testimony of what the parents requested at the meeting. E.G.'s mother testified that she and E.G.'s father informed the CSE that they “were completely open” to and “wanted” Westerly School, the public school that was right around the corner from their home. (R. 179-81, 190, 200.) In contrast, the district school psychologist testified that E.G.'s “parents told us they are placing [E.G.] ... into Staten Island Academy. All they want are services for him;” in other words, they were parentally placing E.G. at the Academy. (R. 48, 49-50.)
The day following the CSE meeting, June 29, 2017, DOE issued a prior written notice to E.G.'s parents recommending that E.G. be placed in a “NYC DOE Specialized School” and also provided with related and supplementary services for both the “10 Month School Year” and the “Extended School Year.” (R. 257-59 (the “June 29, 2017 Notice”.) The notice made no mention of the Westerly school, which is not a specialized school.(See R. 57.) The June 29, 2017 Notice referred to the June 28, 2017 meeting as an IEP meeting and stated that an Individual Education Program had been developed. (R. 257.) When asked about the recommended placement in a specialized public school in the June 29, 2017 Notice, the school psychologist testified that “that must have been a mistake” because the CSE “never recommended a specialized school.” (R. 56-57.)
A DOE specialized school refers to a school in New York City school district 75. (R. 57.) District 75 is a “separate system” that “provides citywide educational, vocational, and behavior support programs for students who are on the autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disabled.” F. v. City School District Of The City Of New York, No. 15-CV-1448, 2016 WL 1274579, at *5 n.7 (S.D.N.Y. March 31, 2016) (quoting from NYC DOE website). E.G.'s parents did not want E.G. to attend a District 75 school, which they deemed overly restrictive given E.G's capabilities. (See R. 457 (SRO decision referring to parents' argument that the June 29, 2017 prior written notice recommendation was an “overly restrictive placement”).) Restrictiveness is an appropriate consideration by parents, “for it remains the case that the IDEA maintains a strong preference for educating disabled children in the least restrictive environment.” C.L. v. Scarsdale Union Free School District, 744 F.3d 826, 836 (2d Cir. 2014).
The same day, however, the CSE developed an IESP - not an IEP - for the 2017 2018 school year. (R. 295-303.) The IESP, which the parents received (R. 198), acknowledged that E.G. had been parentally-placed at a non-public school (R. 302) and recommended special education teacher support services, speech language therapy, occupational therapy, and other services. (R. 300-01.) The DOE never informed E.G.'s parents of a specific public “specialized school” for E.G. to attend, and never developed an IEP for the 2017-2018 school year.
On or about August 16, 2017, E.G.'s mother sent a ten-day notice letter to the CSE. The letter stated that the parent was “not in agreement with the Department of Education's recommendation for programming and placement for the 2017-2018 year, as it is not appropriate to meet [E.G.]'s needs. The Department of Education has failed to recommend an appropriate program and placement for [E.G.]. Therefore, [E.G.] will continue to attend Staten Island Academy for the 2017-2018 school year.” (R. 337.) The letter made no mention of the DOE's having provided an IESP, not an IEP.
Procedural History
On November 3, 2018, E.G.'s parents, through counsel, filed a due process complaint seeking reimbursement for E.G.'s tuition at the Academy for the 2017-2018 school year. (R. 473-78.) The due process complaint claimed that E.G. was denied a FAPE for that year because, as relevant here, DOE failed to develop and offer an IEP. (R. 474.) A hearing was held before an IHO on February 12 and April 13, 2018 and is the source of the testimony set forth above. (R. 37-222.)
The IHO denied the parents' request for tuition reimbursement. (R. 14.) The IHO concluded that the DOE had offered a FAPE as a result of having offered an IESP. (R. 13-14.) The parties agree that was error, as an offer of an IESP does not constitute a FAPE. (R. 468.) The parents thus appealed to the SRO. (R. 426-33.)
On appeal, the SRO affirmed denial of reimbursement. The SRO held that DOE did not provide E.G. with a FAPE. (R. 468, 471.) With respect to the other Burlington/Carter factors, the SRO did not consider the appropriateness of the Academy as a school for E.G., because the DOE did not appeal that issue. The SRO recognized that the third factor - equitable considerations - was “pivotal” and found that those considerations favored DOE. (R. 469-71.)
In its decision, the SRO found that the parents' May 21, 2017 notice of intent to place E.G. at a private school at the parents' expense demonstrated “the parent's objectively manifested intent, ” which “weighs heavily in the balance of equitable considerations.” (R. 469-71.) The SRO emphasized that E.G.'s parents understood the difference between an IEP and an IESP. (R. 471.) The SRO also reasoned that the parents' August 17, 2017 10-day notice letter “did not raise the district's failure to provide the student with an IEP, as opposed to an IESP, as a basis for rejecting the program offered in the June 2017 IESP. Nor did the parents ask for an IEP at that time or at any time thereafter.” (R. 471 (internal citations omitted).)
The further SRO noted that by virtue of other procedural protections (called “pendency”), E.G.'s parents already had received reimbursement for all but two months of the 2017-2018 school year tuition as well as all the services provided by the IESP. As the SRO explained, “the parent has already received, pursuant to pendency, reimbursement or direct payment of the costs of the student's tuition and related expenses at [the Academy] for the 2017-2018 school year - except for the limited period of time between the student's enrollment at [the Academy] on September 6, 2017 and the filing of the due process complaint notice on November 3, 2017. Additionally, the district has funded special education and related services for the student during the entire 2017-2018 school year pursuant to the June 2017 IESP.” (R. 471; see also R. 19-20 (pendency decision directing reimbursement for E.G.'s tuition from November 3, 2017 through final resolution of dispute).)
E.G.'s parents initiated this action on December 21, 2018. (Dkt. 1.) On February 14, 2019, the case was referred to me for general pre-trial management and reports and recommendations on dispositive motions. (Dkt. 10.) The parties filed the administrative record on April 20, 2021. E.G.'s parents filed their motion for summary judgment on June 3, 2021 (Dkt. 44-45); the DOE filed its opposition and cross-motion on September 13, 2021 (Dkt. 54-55); the parents filed their reply on October 27, 2021 (Dkt. 56); and the DOE filed its reply for its cross-motion on January 7, 2022 (Dkt. 61), at which point the motions were fully briefed.
The Court uses the following terms to refer to the parties' memoranda of law: “Pl. Mem.” refers to Plaintiff's moving brief; “Def. Mem.” refers to Defendant's brief in opposition and in support of its cross-motion; “Pl. Reply” refers to Plaintiff's reply in support of their motion; and “Def. Reply” refers to Defendant's reply in support of its cross-motion.
The parties agree that the first two requirements for reimbursement are met. First, the DOE failed to provide E.G. with a FAPE for the 2017-2018 school year; although the DOE issued an IESP, an IESP is not the same as a FAPE. E.T., 2012 WL 5936537 at *11. The parties thus do not challenge the SRO finding that the IHO improperly conflated the two. (See R. 467-68.) Nor do the parties challenge the IHO finding that the Academy offers an appropriate education for E.G.. (See R. 14.) Indeed, the DOE did not even appeal that issue to the SHO. Accordingly, the only issue here is whether the SHO decision on equitable considerations should be overturned in whole or in part.
Standard Of Review
In IDEA cases such as this, the usual summary judgment standards do not apply. See, e.g., T.P. ex rel. S.P. v. Mamaroneck Union Free School District, 554 F.3d 247, 252 (2d Cir. 2009); Viola v. Arlington Central School District, 414 F.Supp.2d 366, 377 (S.D.N.Y. 2006). Instead, summary judgment in IDEA cases is “in substance an appeal from an administrative determination, not a summary judgment.” Lillbask ex rel. Mauclaire v. Connecticut Department Of Education, 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal quotation marks omitted). When reviewing IDEA administrative decisions, a federal district court considers the record and any additional evidence the parties submit and bases its determination on a preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C); T.P., 554 F.3d at 252. The Court may grant “such relief as the court determines appropriate.” 20 U.S.C. § 1415(i)(2)(C)
Courts do not, however, have free reign in such actions. “The role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed, ” and “courts must bear in mind the statutory context and administrative judges' greater institutional competence in matters of educational policy.” R.E., 694 F.3d at 189. The Court “must give due weight to administrative proceedings mindful that the judiciary lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of education policy.” M.H. v. New York City Department of Education, 685 F.3d 217, 240 (2d Cir. 2012) (internal quotations marks omitted). Referencing two well-known standards of review, the Second Circuit has placed review of state agency proceedings somewhere between: “The standard of review requires a more critical appraisal of the agency determination than clear-error review” but “falls well short of complete de novo review.” C.F. v. New York City Department of Education, 746 F.3d 68, 77 (2d Cir. 2014) (internal quotation marks omitted).
“In deciding what weight is due ..., the analysis often will hinge on the kinds of considerations that normally determine whether any particular judgment is persuasive, ” such as the “quality and thoroughness of the reasoning, the type of determination under review, and whether the decision is based on the administrative body's familiarity with the evidence and the witnesses.” Reyes, 760 F.3d at 218 (internal quotation marks omitted); see also M.H., 685 F.3d at 244. In particular, “the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO.” M.H., 685 F.3d at 244.
At the administrative level, the burden of proof and persuasion falls on the school district to demonstrate that the student was not denied a FAPE. N.Y. Educ. Law § 4404(1)(c). On appeal to a federal court, however, the burden of demonstrating that an SRO ruled incorrectly falls on the party challenging that decision. M.H., 685 F.3d at 225 n.3.
Discussion
As explained above, the sole issue on this appeal is whether to uphold the SRO's decision finding that equitable considerations favored DOE thus warranting denying or reducing reimbursement to E.G.'s parents for the costs of his tuition at the Academy during the 2017-2018 school year. See 20 U.S.C. § 1412(a)(10)(C)(iii) (explaining basis on which cost of reimbursement may be “reduced or denied”).
E.G.'s parents argue that the equities favor them because the purpose of enrolling their child at the Academy in May 2017 was to meet a DOE deadline and preserve their options; they informed the CSE that they were open to a public school option, and the DOE could not have been misled as to the parents' intentions because the notice of intent the DOE sent following the CSE meeting recommended placement at an unacceptable “specialized” school and contemplated an IEP, not an IESP. In opposition, the DOE contends that the parents consistently informed DOE they were parentally placing E.G. in private school at the parents' expense, the parents delayed the CSE meeting, the June 29, 2017 Notice's reference to a specialized school for the 10-month school year was a mistake, and the parents were at fault for not inquiring why they had received an IESP instead of an IEP and for not specifying that the basis for their rejection of the CSE recommendation was failure to offer an IEP rather than merely deficiencies with the IESP.
The Court finds that both parties are responsible for not sufficiently communicating with each other and confusing what otherwise should have been a cooperative process based on accurate information and full transparency. The Court further finds that the SRO's decision was well-reasoned and supported by the Record and that the parents have not established a basis for disturbing that decision.
A. Equitable Considerations Generally
A number of factors may be considered in assessing the equities. Some are codified in the IDEA, which provides that reimbursement may be reduced or denied if (1) the parents failed to timely inform the IEP team at the most recent IEP meeting attended prior to removing the child from public school - or failed to provide the 10-day written notice - that they were rejecting the placement proposed to provide a FAPE for their child, “including stating their concerns and their intent to enroll the child in a private school at public expense; or (2) the parents failed to make the child available for evaluation, or (3) the parents' actions were unreasonable. 20 U.S.C. § 1412(a)(10)(C)(iii).
That list is non-exhaustive. Forest Grove, 129 S.Ct. at 2493; E.M. v. New York City Department of Education, 758 F.3d 442 (2d Cir. 2014) (characterizing the statutory factors as “elucidative rather than exhaustive” and stating that “[i]n making that equitable determination, the district court may consider many factors”). The court has “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.” J.S., 826 F.Supp.2d at 671 (citing Carter, 510 U.S. at 16, 114 S.Ct. 361). “Among the most important of these is ‘whether the parents have cooperated with the District throughout the process to ensure their child received a FAPE.'” Id. (cleaned up) (quoting Bettinger v. New York City Board of Education, No. 06-CV-6889, 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). In considering the equities, “courts should generally presume that public-school officials are properly performing their obligations under IDEA.” Forest Grove, 57 U.S. at 247, 129 S.Ct. at 2496. And to obtain reimbursement in whole or in part, parents bear the burden of establishing that equitable considerations favor them. R.E., 694 F.3d at 185.
B. Analysis
The equitable factors in this case are not decidedly one-sided. Rather, some factors favor Plaintiff while some favor Defendant. As the SRO reasonably determined, the overall weighing of equitable factors warrants denying the Plaintiff's request for the two months of E.G.'s 2017-2018 tuition that was not reimbursed.
To begin, the parents communicated their intent to parentally place E.G. in private school at their own expense. The May 17, 2017 notice of intent signed and submitted by E.G.'s father is clear and direct. It states that the parents “have placed” E.G. in a nonpublic school “at [the parents'] expense” and that the parents “want [their] child to continue receiving special education services.” (R. 260.) Indeed, the notice makes those statements in two different places, including immediately after the salutation and immediately before the signature block. The notice thus unequivocally informed the DOE that E.G.'s parents were paying to send their child to the Academy but wanted to continue to receive special education services. See E.T, 2012 WL 5936537 at *16 (parents' intent “informs the balancing of the equities”); see also R. 471 (SRO opinion stating that the May 17, 2017 letter demonstrated “the parent's objectively manifested intent” and “weighs heavily in the balance of equitable considerations”).
Plaintiff argues that E.G.'s parents had not actually made a decision to send E.G. to the Academy at that time but instead submitted the parental placement notice to meet the deadline for parental-placement notification and requesting services. As no CSE meeting had yet occurred, the parents did not know what the CSE would recommend and what the parents' alternative options would be. The Court agrees with the parents that they should not be penalized for essentially preserving their rights. See New York City Department of Education v. V.S., No. 10-CV-5120, 2011 WL 3273922 at *4, 15 (E.D.N.Y. July 29, 2011) (finding it “entirely reasonable” for the parent to preserve her options by paying a partially refundable deposit to a private school where the parent worked cooperatively with the school district throughout the process).
At the same time, however, the parents did not add any qualification to the notice of intent suggesting that enrollment at their own expense was conditional in any way. That too may be forgiven as the notice of intent is a DOE form providing blanks to fill in for a parent's name and signature, the name of the school where the parents intend to place their child, and the district in which it is located. The form does not provide any other blanks or invitation to append any conditions or qualifications.
The parents do bear responsibility for postponing the CSE meeting from May to June. Had the CSE meeting occurred before the parents submitted their notice of intent, the timing issue may have been avoided. The Record, however, does not provide any evidence that the May CSE meeting would have taken place early enough in May for the parents to file the notice of intent after the CSE meeting and within the time frame necessary to meet the deadline for filing for a request for special education services. To the contrary, E.G.'s mother testified that the original date was for late May. (R. 174.)
As proof that the parents had not made a definitive decision to parentally place E.G. at their expense, they emphasize their having obtained tuition insurance in case they made a later decision not to send E.G. to the Academy. While such evidence could be corroborative of the parents' actual intent, it is of limited weight here. There is no evidence in the Record that E.G.'s parents notified the CSE or DOE that they had obtained tuition insurance. The DOE thus had no knowledge that the parents were merely preserving their rights to request supplemental services.
E.G's parents argue that, in any event, the mother informed the CSE at their meeting on June 28, 2017 that she remained open to a public school placement and Westerly in particular. As noted previously, the testimony on that point is disputed and contradicted by the testimony of the district school psychologist. (Compare R. 48, 49-50 with R. 179-81, 190, 200.) But even assuming that the mother did express her openness to a public school placement, the parents' actions - more specifically, their lack of action - following the meeting are problematic. Neither upon receiving the IESP, nor any time after, did the parents attempt to contact the CSE or DOE to ask why they had received an IESP (based on parental placement) and had not yet received an IEP for the regular school year (that would have provided potential grounds for tuition reimbursement). See C.L., 744 F.3d at 840 (even assuming parents never intended to keep their child in public school, equities favored parents because they cooperated with the district and had affirmatively requested development of an IEP).
During her testimony at the impartial hearing, E.G.'s mother testified that “yes, ” she asked for an IEP at the CSE meeting. (R. 190.) But she then clarified, “Did I say I wanted an IEP? I said I wanted - I wanted the Westerly school.” (R. 190.) The Court understands the mother's testimony to be that she did not explicitly ask for an IEP, but she expressed her desire for placement at the Westerly public school.
And when the parents notified DOE in their August 16, 2017 10-day letter that they did not agree with the 2017-2018 recommendations and would place E.G. at the Academy for the 2017-2018 year “at the public's expense, ” they did not give any explanation (other than generally saying the recommended program and placement was inappropriate) and did not ask for an IEP instead of an IESP. By not specifying the basis for their concerns, the parents did not give the DOE a sufficiently informed opportunity to address and potentially remedy the problem. See J.S., 826 F.Supp.2d at 637 (faulting parents for not providing notice of withdrawal from public school because “purpose of the notice requirement is to give the district ‘a meaningful opportunity to minimize its expenses by developing its own IEP that would provide the child with a FAPE within the School District'”) (quoting W.M., 783 F.Supp.2d at 506; V.S., 2011 WL 3273922 at *15 (finding parent worked cooperatively with the school district throughout the process, including by informing the DOE of the basis for her objections to proposed IEP).
One might forgive those lapses if the parents did not understand the differences between an IEP and IESP, but the SRO found that the mother knew them well. (R. 470.) The Record supports that, and Plaintiff does not contend otherwise. (R. 184, 196-97; see also R. 49-50 (district school psychologist testimony that, at the CSE, she explained to the parent the difference between the student receiving services through an IESP and an IEP, in light of the parent stating that the student would attend the Academy).) As the SRO noted, at the impartial hearing, E.G.'s mother “testified that she understood that ‘an IESP would be implemented only in private school' and that the parents ‘would have to be paying for the private school for the IESP services to be available.'” (R. 470 (citing R. 196-97).)
The SRO cited pages from the impartial hearing transcript. The Court has cited to the Record pages.
All that said, the parents are not solely to blame. To the contrary, the DOE's June 29, 2017 notice dated just the day after the June 28, 2017 CSE meeting significantly confused matters. The June 29, 2017 notice stated unequivocally that the parents had attended an “IEP” meeting on June 28, 2017 and that an IEP had been developed, and recommended that E.G. be placed in a NYC DOE Specialized School and receive related services for both the regular and extended school year. (R. 257-59.) Plaintiff asserts that the June 29, 2017 notice “effectively proclaimed that [the DOE] was not influenced by Plaintiff's [May 21, 2017] notice of intention form when engaging in its decision-making process regarding E.G.'s program of special education.” (Pl. Reply at 3.) In other words, whatever E.G.'s parents had communicated prior to the CSE meeting did not lead the CSE to believe that the parents were interested in a public school placement pursuant to an IEP.
The district school psychologist testified that the information in the June 29, 2017 notice of the DOE's recommendation must have been a mistake. (R. 56.) If so, that was the DOE's mistake, not the parents. And, based on DOE's faulty notice, the parents were given every reason to believe that DOE recommended placement of E.G. at a specialized public school, although not Westerly.
In its reply, DOE argues that the parents were not confused because they recognized, and even admitted in their due process complaint, that DOE provided an IEP for summer 2017, with an IESP for the 2017-2018 regular school year, and because Plaintiff “likely” received the IESP and IEP “around the same time.” (Def. Reply at 4-5.) DOE notes that, throughout the administrative process, Plaintiff did not cite the notice as a reason why the equities favored the parents and asserts that the parents' counsel is “only belatedly” making that claim. (Def. Reply at 5.) The Court is not persuaded by this argument, particularly as it is based in part on speculation as to what “likely” happened. The Court nevertheless reaches a decision in DOE's favor for other reasons as discussed above.
That is not the end of the story. The DOE never provided the parents with an IEP for the regular school year (and thus did not provide a FAPE as the parties agree) and instead provided an IESP. The parents were well aware of that. As E.G.'s mother testified, DOE never offered a placement; instead, they offered services. (R. 193.) The parents, knowing the difference between an IEP and IESP, never followed up to inquire about why they received an IESP and not the IEP that supposedly had been developed as stated in the June 29, 2017 notice. The parents' failure to do so is consistent with their having informed the DOE that they intended to parentally place E.G. at their own expense and seek supplemental services. And it is all the more noteworthy given that for the 20162017 school year, the parents had filed a due process complaint addressing a similar scenario where the DOE provided an IESP and not an IEP. (R. 183; see also R. 471 (SRO noting parents' failure to request an IEP and the parents' experience with the same issue for the 2016-2017 school year).) The parents had protested the provision of an IESP instead of an IEP just the previous year, but they did not do so this time.
The parents were awarded reimbursement for the 2016-2017 school year. (R. 29192.) There is an important difference between that year's dispute and the current 20172018 dispute. For the 2016-2017 year, the parents did not receive or submit an executed notice of intent to parentally place E.G. at the parents' expense. (R. 184-86.) The DOE thus had no reason to believe that the parents sought to parentally place E.G. at the parents' expense for that year. The opposite occurred for 2017-2018; the parents completed and submitted the notice stating that they would parentally place E.G. at their own expense and requested supplemental special education services. The DOE thus received affirmative (and unequivocal) information that the parents would pay for E.G's placement and sought only an IESP.
To be sure, this is not a case where the parents explicitly refused to cooperate with the DOE. See, e.g., Bettinger, 2007 WL 4208560 at *3 (equitable factors did not favor parents who cooperated in formulating IEP but then refused to interview with two schools proposed by DOE). And the Court agrees with Plaintiff that, as a general matter, the onus should not be put on parents to “remediat[e] the blunders made by Defendant in issuing a prior written notice recommending a public school and referencing an IEP” and then “failing to act with regards to those very recommendations.” (Pl. Reply at 5.) But, in the circumstances of this case, the fact that the parents did not specify their concerns about having received an IESP and not an IEP for 2017-2018 as they had for the previous year was unreasonable and not in keeping with the obligation to “cooperat[e] with the District throughout the process to ensure their child received a FAPE.” J.S., 826 F.Supp.2d at 671 (internal quotation marks and brackets omitted).
Taking all the facts together, the Court finds that the SRO's decision was well-reasoned and supported by the Record. Importantly, the SRO acknowledged that the parents already had received reimbursement for most of the school year by virtue of pendency and also had received the special education services prescribed by the IESP, leaving unreimbursed only the time period between E.G.'s enrollment at the Academy on September 6, 2017 and filing of the due process complaint on November 3, 2017. (R. 471.) The amount in controversy is thus about twenty percent of the 2017-2018 school year tuition. Given the contributions of both parties to the state of affairs, the Court agrees that the SRO reasonably determined that the equities do not weigh in favor of reimbursement for that limited period.
To the extent not discussed above, the Court has considered Plaintiff's arguments and finds them to be without merit.
Conclusion
For the reasons set forth above, the Court recommends that Plaintiff's motion be DENIED, Defendant's motion be GRANTED, and the SRO's decision affirmed.
Deadline For Objections And Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable John P. Cronan, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.
RESPECTFULLY SUBMITTED,