Opinion
21-CV-9285 (VSB) (VF)
12-28-2022
MICHAEL ERDE and SUSANNE ERDE, as Parents and Natural Guardians of J.E., and MICHEAL ERDE and SUSANNE ERDE, Individually Plaintiffs, v. DAVID C. BANKS, in his Official Capacity as Chancellor of the New York City Department of Education, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, MAGISTRATE JUDGE
Plaintiffs Michael and Susan Erde, both individually and on behalf of their son, J.E., commenced this suit pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1401 et seq. Plaintiffs seek reversal of an administrative decision issued by the New York State Education Department's Office of State Review finding that: (1) equitable considerations warranted a $2,000.00 reduction in the tuition award for J.E.'s placement at International Institute for the Brain (“iBrain”) for the summer session of the 2020-2021 extended school year; and (2) the tuition award should be reimbursed to Plaintiffs and not paid directly to iBrain. See Compl. ¶¶ 6, 40, 79-81, ECF No. 1. On March 21, 2022, Plaintiffs moved for summary judgement on these claims. See ECF No. 18 (Pls.' Br.). On April 20, 2022, Defendants, Chancellor David C. Banks and the New York City Department of Education (“DOE”), filed a cross-motion for summary judgment. See ECF No. 21 (Defs.' Br.). Oral argument on the motions was held on November 17, 2022. See Hearing Transcript (“Tr.”), ECF No. 34. For the reasons explained below, I recommend that Plaintiffs' motion be GRANTED in part and DENIED in part, and Defendants' motion be GRANTED in part and DENIED in part.
On January 1, 2022, David C. Banks was appointed Chancellor of the DOE and is therefore substituted as a named defendant. See Fed.R.Civ.P. 25(d) (permitting automatic substitution of a party who is a public official sued in his official capacity when the public official “ceases to hold office” while a suit is pending).
BACKGROUND
A. The IDEA
“Congress enacted the IDEA to promote the education of children with disabilities.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006) (citations omitted). The IDEA requires that “states receiving federal funds” provide children with disabilities a “free appropriate public education” (“FAPE”). R.R. ex rel. M.R. v. Scarsdale Union Free Sch. Dist., 615 F.Supp.2d 283, 287 (S.D.N.Y. 2009) (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007)); see also 20 U.S.C. § 1412(a)(1)(A). A FAPE must provide “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.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (internal quotation marks and citation omitted). These services are administered through a written individualized education program (“IEP”). Walczak, 142 F.3d at 122; see also 20 U.S.C. § 1414(d). In New York, local Committees on Special Education are responsible for determining whether a child should be classified as eligible for educational services under the IDEA and, if so, for developing an appropriate IEP for that child. Walczak, 142 F.3d at 123 (citation omitted); see also NY. Educ. Law § 4402(1)(b)(1). Parents who believe that their school district has failed . to provide their child with a FAPE-due to an inadequate IEP or otherwise-may file a complaint with the state educational agency and request a due process hearing before an impartial hearing officer (“IHO”). See 20 U.S.C. §§ 1415(b), (f)(1)(A); N.Y. Educ. Law § 4404(1)(a); 8 N.Y.C.R.R. §§ 200.5(i), (j); see also N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 473 F.Supp.2d 532, 535 (S.D.N.Y. 2007), aff'd, 300 F. App'x. 11 (2d Cir. 2008). At the hearing, the IHO receives evidence and then issues a decision as to whether the parents are entitled to funding. See 20 U.S.C. § 1415(f). An IHO's decision may be appealed to a State Review Officer (“SRO”), and the SRO's decision may be challenged in either state or federal court. See 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law §§ 4404(2), (3)(a); 8 N.Y.C.R.R. § 200.5(k).
Parents who believe that their child's IEP fails to meet the requirements of the IDEA may, at their own financial risk, enroll the child in a private school and seek recovery of tuition costs from the state. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 374 (1985); 20 U.S.C. § 1412(a)(10)(C). Such recovery covers “‘expenses that [the school district] should have paid all along.'” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington, 471 U.S. at 370-71). The Supreme Court has established a test (known as the Burlington-Carter test) to determine whether a party is entitled to recovery of tuition expenses: “(1) was the IEP proposed by the school district inappropriate; [and] (2) was the private placement appropriate to the child's needs.” Gagliardo, 489 F.3d at 111-12 (citing Burlington, 471 U.S. at 370). Once these two prongs are satisfied, the Court has discretion to consider relevant equitable factors in fashioning appropriate relief. Gagliardo, 489 F.3d at 112 (citing Florence Cnty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7 (1993)); see also Forest Grove School Dist. v. T.A., 557 U.S. 230, 247 (2009).
Here, the burden of establishing the Burlington-Carter factors rests with the student's parents. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56-58 (2005) (holding that the burden rests with the party seeking relief).
The undisputed facts for these cross-motions for summary judgment are taken from the parties' Rule 56.1 statements and the administrative decisions of the IHO and SRO. Plaintiffs did not submit a counterstatement to Defendants' Rule 56.1 statement of undisputed material facts. Consequently, Defendants' Rule 56.1 statement of facts are deemed admitted by Plaintiffs. See Maersk, Inc. v. Neewra, Inc., 687 F.Supp.2d 300, 313 (S.D.N.Y. 2009) (deeming uncontroverted Rule 56.1 statement admitted for purposes of adjudicating summary judgment motion).
Plaintiffs Michael and Susan Erde are the parents and natural guardians of J.E., a teenage student who sustained a brain injury at birth and suffers from cerebral palsy, quadriplegia, and various other disorders. See Defendants' Responses to Plaintiffs' Local Civil Rule 56.1 Statement of Facts, ECF No. 23 (“Defs.' 56.1 Resp.”) ¶¶ 1-8. On June 3, 2019, a DOE Committee on Special Education convened a meeting to develop an IEP for J.E.; Plaintiffs did not participate in that meeting. See Defendants' Local Civil Rule 56.1 Statement of Facts (“Defs.' 56.1 Statement”) ¶¶ 1-2, ECF No. 24. On April 30, 2020, iBrain, a private school, created its own private IEP for J.E. Defs.' 56.1 Statement ¶ 3. On May 7, 2020, the Committee on Special Education convened another meeting, which was attended by J.E.'s parents. Id. ¶ 4; Defs.' 56.1 Resp. ¶ 12. There, the Committee on Special Education made additional recommendations for J.E. and developed another IEP. Id. At the May 7th meeting, J.E.'s father expressed his preference that J.E. remain at iBrain and that he did not want J.E. to be placed in the recommended District 75 (“D-75”) school, but J.E.'s Parents indicated that they were willing to visit any other placement offered by the DOE. Defs.' 56.1 Statement ¶ 5.
On June 29, 2020, Plaintiffs sent the DOE a Ten-Day Notice (the “Notice”) for the 2020-2021 extended school year, informing the DOE of their intent to unilaterally enroll J.E. at iBrain because “the DOE's program and placement offered cannot appropriately address [J.E.'s] educational needs.” Defs.' 56.1 Statement ¶ 6; Defs.' 56.1 Resp. ¶ 14. The Notice was sent three days (one business day) before the start of the extended school year, which began on July 1, 2020. See Defs.' 56.1 Resp. ¶ 14. On or about July 6, 2020, Plaintiffs filed a due process complaint, alleging that the DOE denied J.E. a FAPE for the 2020-2021 school year, and sought funding for J.E.'s placement at iBrain for the 2020 summer session. See Defs.' 56.1 Resp. ¶ 18. On July 7, 2020, the DOE issued a Prior Written Notice and School Location letter identifying a placement for J.E. at a D-75 school (Stephen McSweeney School in the Bronx). See Defs.' 56.1 Resp. ¶¶ 20-21. J.E. only attended iBrain for the summer session of the extended 2020-2021 school year because the family relocated out of state thereafter. See Defs.' 56.1 Resp. ¶ 10; see also Defs.' 56.1 Statement, ¶¶ 7-8.
By Findings of Fact and Decision dated May 1, 2021, the IHO determined that the DOE did not provide J.E. a FAPE for the 2020 summer session, but that Plaintiffs' unilateral placement at iBrain was inappropriate. See Defs.' 56.1 Resp. ¶¶ 23-25; Administrative Record (“R.”) at 32-40 (IHO Decision), ECF No. 11. In addition, the IHO found that “the equities disfavor neither side.” Defs.' 56.1 Resp. ¶ 26; R. at 39. Because the IHO concluded that Plaintiffs did not satisfy the Burlington-Carter test, the IHO denied Plaintiffs their requested relief and dismissed the complaint in its entirety. Defs.' 56.1 Resp. ¶ 27; R. at 39. Plaintiffs appealed the decision to the Office of State Review, seeking reversal on the grounds that the IHO erred by (i) failing to find the placement was appropriate; and (ii) failing to find that the equitable considerations favored relief in the form of reimbursement for tuition and all related services. Defs.' 56.1 Resp. ¶ 28; R. at 41.
By decision dated July 9, 2021, the SRO found that the Plaintiffs' unilateral placement at iBrain for the extended 2020-2021 school year was appropriate. Defs.' 56.1 Resp. ¶ 32; R. at 9-31 (SRO Decision). The SRO thus concluded that the IHO's denial of tuition reimbursement was improper. Defs.' 56.1 Resp. ¶¶ 31-32; R. at 9, 19-31; see also Defs.' 56.1 Statement, ¶ 9. Additionally, the SRO determined that the IHO erred in failing to address equitable considerations, and failed to provide a factual analysis to support the finding that the equities disfavored neither side. Defs.' 56.1 Statement ¶ 10; R. at 29.
In addressing the equities, the SRO determined that “the equitable considerations largely favore[d] the parents' request for relief,” with the exception of their failure to provide the DOE with the required ten-business day notice of their intent to unilaterally place J.E. at iBrain, having sent the notice only one business day before the start of the extended school year. Defs.' 56.1 Resp. ¶¶ 14, 17, 33; Defs.' 56.1 Statement ¶¶ 12-13; R. at 30-31. Accordingly, the SRO determined that equitable considerations weighed against a full award of tuition reimbursement to Plaintiffs, because they had not complied with the statutorily-mandated notice requirement. R. at 30-31. The SRO concluded that a reduction of $2,000.00 from an award of the cost for J.E.'s tuition for the 2020 summer session was appropriate. Defs.' 56.1 Resp. ¶ 33; Defs.' 56.1 Statement ¶¶ 12-14; R. at 30-31.
With respect to Plaintiffs' request for direct payment of the tuition costs to iBrain, the SRO found that “it is undisputed that the parents executed an enrollment contract with iBrain that included tuition costs, as well as the cost of a school nurse and 1:1 paraprofessional for the student.” R. at 30. The SRO also found that the enrollment contract indicated that “related services would be billed monthly at a specified hourly rate.” Id. But, the SRO concluded that the hearing record did not include “any reliable evidence related to [Plaintiffs'] inability to ‘front' the costs of [J.E.'s] attendance at iBrain” for the 2020 summer session. Defs.' 56.1 Statement ¶¶ 15-16; Defs.' 56.1 Resp. ¶ 34; R at 30-31. Thus, because Plaintiffs had failed to set forth any facts demonstrating financial hardship, the SRO determined that they were not entitled to have the award paid directly to iBrain. Defs.' 56.1 Statement ¶¶ 16-17; R. at 30-31. Instead, the SRO concluded that Plaintiffs were entitled only to reimbursement of tuition costs and expenses. See Defs.' 56.1 Statement ¶ 17; R. at 30-31.
C. Procedural Background
Plaintiffs commenced this action for judicial review of the SRO's decision on November 9, 2021. ECF No. 1. The administrative record was submitted under seal on January 27, 2022. ECF No. 11. On March 21, 2022, Plaintiffs filed a motion for summary judgment, seeking reversal of the SRO's determination and an award of direct funding for the full tuition and costs of related services for the 2020 summer session at iBrain. See ECF Nos. 18-19; see also Compl. ¶ 6. Defendants filed their opposition and a cross-motion for summary judgment on April 20, 2022. ECF Nos. 21-22. The motion was fully briefed on June 16, 2022. See ECF Nos. 27-28. Oral argument on the motions was held on November 17, 2022. See ECF No. 34.
LEGAL STANDARDS
Summary judgment is appropriate when “viewing all the facts of the record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.” Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986)); see also Fed.R.Civ.P. 56(c). In deciding whether to grant a motion for summary judgment, “the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Armstrong v. Liberty Mutual Life Assurance Co. of Boston, 273 F.Supp.2d 395, 402 (S.D.N.Y. 2003) (citation and internal quotation marks omitted) (alteration in original). The moving party bears the burden of demonstrating that there exists no genuine issue of material fact. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “An issue of fact is genuine when a reasonable jury could return a verdict for the nonmoving party, and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination.” Schultz v. Stoner, 308 F.Supp.2d 289, 297 (S.D.N.Y. 2004) (internal quotation marks and citations omitted). When deciding cross-motions for summary judgment, the standard applied “is the same as that for individual summary judgment motions and a court must consider each motion independent of the other.” Id. at 298 (citation and internal quotation marks omitted).
An aggrieved parent discontent with an SRO's decision to reduce or deny reimbursement may bring an action in federal district court. 20 U.S.C. § 1415(i)(2)(A). The district court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). “[T]he procedure is in substance an appeal from an administrative determination, not a summary judgment.” Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 84 n.3 (2d Cir. 2005) (citation omitted). “As courts in this circuit have observed, a motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact . . . [r]ather, the motion serves as a ‘pragmatic procedural mechanism' for reviewing a state's compliance with the procedures set forth in IDEA and determining whether the challenged IEP is reasonably calculated to enable the child to receive educational benefits.” Id. (collecting cases). “[A] motion for summary judgment can serve as an aid to the court within a statutory scheme whose purpose is to ensure that children with disabilities receive the educational benefits to which they are entitled.” T.Y. & K.Y. ex rel. T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).
That said, “the role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed.” Id. at 417 (citation omitted). “While the district court must base its decision on the preponderance of the evidence, it must give due weight to the administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009) (internal quotation marks, alterations and internal citations omitted). In other words, the district court must independently review the administrative record and base its decision on the “preponderance of the evidence.” Bd. of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 205 (1982) (citation omitted). District courts are not permitted to “substitute their own notions of sound educational policy for those of the school authorities which they review.” Id. at 206. “If a final state determination conflicts with an earlier decision, the earlier decision may be afforded diminished weight.” Gagliardo, 489 F.3d at 113 n.2 (citing cases). Federal courts shall “defer to the final decision of the state authorities, and . . . deference may not be eschewed merely because a decision is not unanimous or the reviewing authority disagrees with the hearing officer.” Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (1984).
DISCUSSION
In the state administrative proceeding, the SRO decided the two prongs of the Burlington-Carter test in Plaintiffs' favor, finding that (1) Defendants had failed to provide J.E. with a FAPE for the 2020-2021 extended school year; and (2) iBrain-where Plaintiffs had unilaterally enrolled J.E.-was an appropriate placement. R. at 17-28. Defendants do not contest either of those determinations here. See Defs.' Br. at 11. Accordingly, the narrow issue presented by the parties' cross motions is whether equitable considerations favor a $2,000 reduction in the award of tuition reimbursement, and whether Plaintiffs are entitled to direct tuition payment to iBrain rather than reimbursement for tuition and related costs.
The SRO determined that although there was “no indication from the hearing record that [J.E.'s parents] impeded the CSE process,” they nevertheless “did not notify the district of their intention to unilaterally place [J.E.] at iBrain for the 2020-21 school year until June 29, 2020.” R. at 30. As the SRO concluded, the “notice was untimely” because it was sent less than ten days before the start of the 2020-21 school year. R. at 30.Consequently, the SRO determined that Plaintiffs' “lack of compliance [with] the 10-day notice provision warrant[ed] a small but meaningful reduction of $2,000 in the tuition reimbursement award.” Id.
The SRO found that “the hearing record establishe[d] that the district's extended school year began on July 1, 2022 with classes starting on July 2, 2020[,]” and that “[t]he program at iBrain for the 2020-21 school year commenced on July 6, 2020.” R. at 30.
Moreover, the SRO concluded that Plaintiffs were “not entitled to direct funding of the tuition costs” because “the hearing record [did] not include . . . any reliable evidence related to the parents' inability to ‘front' the costs of [J.E.]'s attendance at iBrain.” Id. The SRO thus ordered that Defendants reimburse Plaintiffs “for the cost of [J.E.]'s tuition and related services at iBrain for the 2020-21 school year, less $2,000 . . . upon [Plaintiffs'] submission to the district [of] proof of the student's attendance and delivery of related services at iBrain as well as proof of payment for the time period when the student attended iBrain for the 2020-21 school year.” R. at 31.
As it relates to the reduction in the amount of the award, Plaintiffs do not dispute that their notice to the DOE of their intent to place J.E. at iBrain was untimely. Pls.' Br. at 2, 4. Instead, Plaintiffs argue that “the reduction in the tuition award was inappropriate and is unsupported by legal precedent as the record reflects that Plaintiffs cooperated with Defendants during the IEP process.” Id. at 4. More specifically, Plaintiffs argue that they satisfied the notice requirement because “as of May 7, 2020, the IEP team knew that Plaintiffs would likely reject a recommendation of a D-75 school.” Id. at 14; see also id. at 9, 20. Additionally, Plaintiffs' argue that an exception to the notice provision should apply based on the DOE's failure to timely issue the Prior Written Notice and School Location Letter, informing Plaintiffs of J.E.'s placement for the 2020-21 school year. Id. at 8, 14-15, 19.
And as it relates to the form of the tuition award, Plaintiffs argue that direct funding to iBrain for tuition expenses related to J.E.'s placement for the 2020 summer session was appropriate because they made a showing of a legal obligation to pay tuition and an additional showing of financial hardship is not required. See Pls.' Reply Br. at 8-9; Pls.' Br. at 4, 13, 16-20. Plaintiffs assert that in concluding that direct funding was not appropriate, the SRO misapplied the holding in Mr. & Mrs. A ex rel. D.A. v. New York City Dep't of Educ., 769 F.Supp.2d 403 (S.D.N.Y. 2011). Pls.' Br. at 16-18.
For the reasons set forth below, I recommend finding that the SRO appropriately determined that the equitable considerations warranted a reduction of $2,000.00 in the reimbursement amount and that Plaintiffs are entitled to direct funding of the tuition award to iBrain, given their showing of financial hardship in this proceeding.
A. The SRO did not err in determining that a reduction in the amount of the award was warranted.
Where, as here, the parents have met their burden of demonstrating that a student was not provided with a FAPE and that his private placement was appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112 (citation omitted). A “major consideration in deciding whether the third [BurlingtonCarter] factor is satisfied is whether the parents have cooperated with the City throughout the process to ensure that their child receives a FAPE.” Bettinger v. N.Y. City Bd. of Educ., No. 06-CV-6889 (PAC), 2007 WL 4208560 at *6 (S.D.N.Y. Nov. 20, 2007). In addressing whether the parents' uncooperativeness warrants modification of a tuition award, courts consider whether the parents' conduct “frustrate[d] the public educational authorities' ability to place the child in an appropriate private setting of the State's choice.” Bettinger, 2007 WL 4208560 at *7 (denying full reimbursement where parents' lack of cooperation frustrated placement process) (citation and internal quotation marks omitted) (internal quotation marks omitted). Additionally, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant-for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school.” Forest Grove, 557 U.S. at 247.
As an initial matter, the IDEA permits a reduction in the amount of the tuition award when the parents fail to give timely notice of their intent to unilaterally place their child in a private school. Specifically, under the IDEA, the “cost of reimbursement [for a private school placement] may be reduced or denied” if:
10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa).20 U.S.C. § 1412(a)(10)(C)(iii)(I)(bb).
Here, there is no dispute that Plaintiffs did not provide written notice of their unilateral decision to place J.E. at iBrain until one business day before the start of the DOE's 2020-2021 extended school year. Defs.' 56.1 Statement ¶ 13. Plaintiffs thus failed to comply with the 10-day written notice requirement. The SRO reasoned that because “the parents did not notify the district of their intention to unilaterally place J.E. at iBrain for the 2020-2021 extended school year until June 29, 2020, their notice was untimely and failed to comply with the 10-day notice provision.” R. at 31. That determination is supported by the record and the plain text of the statute.
Moreover, courts in this Circuit have found that the equities may warrant a reduction in the amount of a tuition award, sometimes even in full, where, as here, the parents failed to comply with the notice requirement in 20 U.S.C. § 1412, or otherwise exhibited uncooperative behavior. For example, in Wood v. Kingston City Sch. Dist., the court concluded that the equities warranted a ten percent reduction in tuition reimbursement because the parents' notice of their intent to enroll their child in private school was untimely. 2010 WL 3907829, at *9, 11 (N.D.N.Y Sept. 29, 2020). In that case, the parents had provided the school district with notice five business days prior to the start of the school year. Id.; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 672, 676 (S.D.N.Y. 2011) (concluding that equitable considerations justified reducing tuition reimbursement request by 75%, reflecting the parents' unilateral placement in a private school, delayed notice to the district of their insistence that the district pay the private school tuition, and “at best mixed evidence of the Parents' cooperativeness with the District”); S.W. v. New York City Dep't of Educ., 646 F.Supp.2d 346, 360-64 (S.D.N.Y. 2009) (denying in full direct tuition payment because plaintiff did not give written notice to the DOE that she was rejecting the public-school placement and enrolling the student in private school); Carmel Cent. Sch. Dist. v. V.P. ex rel. G.P., 373 F.Supp.2d 402, 412-17 (S.D.N.Y. 2005) (denying tuition reimbursement in full where parents did not give notice to the DOE until after re-enrolling their child in private school); Cf. N.R. ex rel. T.R. v. Dep't of Educ., No. 07-CV-9648 (BSJ), 2009 WL 874061, at *6-8 (S.D.N.Y. Mar. 31, 2009) (finding that equitable considerations warranted full reimbursement of plaintiff's tuition payment where plaintiff “satisfied IDEA requirements by providing written notice . . . more than ten days prior to [student's] removal from public school”). As these cases demonstrate, even when a school district fails to provide a FAPE, courts still retain discretion to reduce the amount of a reimbursement award if the equities so warrant. See, e.g., Donohue v. New York City Dep't of Educ., No. 20-CV-1942 (ALC) (KHP), 2021 WL 4481344, at *9-11 (S.D.N.Y. Sept. 30, 2021) (finding the SRO did not commit error in imposing a 25 percent reduction on equitable grounds); Wood, 2010 WL 3907829, at *9, 11; Bettinger, 2007 WL 4208560 at *7-8.
Plaintiffs nevertheless argue that they “cooperated throughout the IEP development process,” and specifically note that, as required by 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa), “the IEP team knew as of May 7, 2020, that Plaintiffs would likely reject a recommendation of a D-75 school.” See Pls.' Br. at 9, 14. The record, however, does not support Plaintiffs' argument that, as of the May 2020 meeting, the “IEP team knew that Plaintiffs would likely reject a recommendation of a D-75 school.” Id. At that meeting, J.E.'s father “stated that [J.E.] prefers to stay at iBrain and not have a D-75 recommendation,” and he further noted that he did “not want [J.E.] to be placed in the previous High School that was recommended [because of] privacy and safety concerns.” R. at 420; Defs.' 56.1 Statement ¶ 5. But significantly, J.E.'s parents also stated that they remained “willing to visit any placement offered” by the DOE. Id.
Although Plaintiffs communicated a “preference” for private placement, they also plainly indicated an openness to viewing potential placements in the D-75 school district. Defs.' 56.1 Statement ¶ 5. Plaintiffs thus did not communicate their rejection of a public-school placement at the May 2020 meeting. Indeed, even now, Plaintiffs' counsel does not state that Plaintiffs had notified the IEP team of their rejection of a placement in a D-75 school. Instead, counsel argues that the “IEP team knew that Plaintiffs would likely reject a recommendation of a D-75 school.” Pls.' Br. at 14 (emphasis added). The statute, however, requires that the parents have “inform[ed] the IEP Team that they were rejecting the placement proposed;” that the parents indicated the possibility that they might reject the placement does not suffice under the plain text of the statute. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa). Simply put, the record does not demonstrate that Plaintiffs unequivocally stated their intent to “reject[ ] the placement proposed by the public agency,” as the statute requires. Id.
Likewise, Plaintiffs' contention that the delay in notice “did not prejudice the Defendants,” Pls.' Br. at 4, ignores the statutory text, which permits a reduction in the amount of the award for untimely notice without regard to prejudice. And, significantly, the SRO did not deny an award all together; he merely reduced the amount by a small fraction of the overall award. Moreover, if Plaintiffs had timely provided the 10-day written notice, the DOE could have had an opportunity to amend the May 2020 IEP in light of Plaintiffs' concerns, as Plaintiffs' counsel acknowledged at oral argument. See Tr. at 32.
Relatedly, Plaintiffs also contend that the DOE's failure to timely issue the Prior Written Notice and School Location Letter, identifying the D-75 school J.E. was to attend, triggered an exception under the IDEA that prevents a reduction in the reimbursement amount. Pls.' Br. at 5, 7-8, 19. Specifically, Plaintiffs contend that the cost of reimbursement can “not be reduced or denied for failure to provide [the ten-day] notice if . . . the parents had not received notice . . . of the notice requirement.” See 20 U.S.C. § 1412(a)(10)(C)(iv)(I)(bb); Pls.' Br. at 15. To be sure, it is undisputed that the DOE failed to timely issue the letter identifying the D-75 school placement. See R. at 31. But Plaintiffs do not contend that they had not previously “received notice” of the requirement that they had to provide 10-day written notice, as is required for the exception to apply. And, tellingly, even now Plaintiffs do not represent that their failure to provide the required notice to the DOE was because they were unaware of the notice requirement. In any case, the DOE's failure to provide prior written notice of placement does not by itself alleviate the parents of their obligation to provide the district with 10-day written notice prior to placement of the child in a private school. See W.M. v. Lakeland Cent. Sch. Dist., 783 F.Supp.2d 497, 505 (S.D.N.Y. 2011) (finding that while “there [was] no evidence that the parents were informed of the IDEA's notice requirement,” the equities favored only “providing partial reimbursement to the plaintiff” where “both parties [were] at fault for various delays”); see also R.B. v. New York City Dep't of Educ., No. 15-CV-6331 (DLC), 2016 WL 2939167, at *9 (S.D.N.Y. May 19, 2016) (reasoning that “the procedural deficiencies were formalities and the record shows that the Parents were afforded a full opportunity to participate in the IEP process” and affirming SRO's holding that the DOE's procedural violations did not result in a denial of FAPE).
The notice from the DOE was not received by Plaintiffs until July 7, 2020, after the start of the 2020-2021 extended school year. See Defs.' 56.1 Resp. ¶¶ 15, 20-21; R. at 30; Pls.' Br. at 5-7.
Finally, Plaintiffs contend that Defendants are “precluded from arguing that the equities are in [their] favor when [they have] failed to provide a FAPE.” Pls.' Br. at 18. But courts have found that even where a plaintiff has prevailed on prongs I and II of the Burlington-Carter test, equitable considerations can still impact the nature of the appropriate relief, including supporting a reduction in the tuition award. See, e.g., Wood, 2010 WL 3907829, at *9; Donohue, 2021 WL 4481344, at *9-11. And, Plaintiffs have not provided any case law holding that a denial of a FAPE precludes a reduction in the amount of reimbursement. To the contrary, “where a student is not provided with a FAPE and his private placement is appropriate, the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” N.R., 2009 WL 874061, at *6 (citing Gagliardo, 489 F.3d at 112) (internal quotation marks omitted).
In short, a preponderance of the evidence supports a conclusion that Plaintiffs did not comply with the notice requirement in 20 U.S.C. § 1412 and thus the SRO did not err in reducing the amount of reimbursement due to that untimely notice. Moreover, the SRO's finding that the appropriate amount of the reduction was $2,000 is entitled to deference because a thorough and careful equities analysis underlies his decision. Cf, H.L. o/b/o V.L. v. Marlboro Twp. Bd. of Educ., No. 16-CV-9324 (FLW) (DEA), 2017 WL 5463347, at *8-9 (D. N.J. Nov. 14, 2017) (finding that ALJ's decision to deny, rather than reduce, reimbursement without equities analysis was not entitled to deference). The record adequately supports the SRO's determination and his decision on the balance of equities is entitled to deference. I therefore recommend upholding the SRO's determination that Plaintiffs' failure to comply with the ten-day notice requirement warranted a $2,000 reduction in the amount of the award.
B. Plaintiffs are entitled to direct funding of the tuition award.
With regards to the form of the tuition award, the SRO determined that direct funding of the tuition payment to iBrain was inappropriate because the hearing record did not include “any reliable evidence related to the parents' inability to ‘front' the costs of the student's attendance at iBrain.” R. at 30-31. As such, the SRO concluded that “the district shall reimburse [J.E.'s] parents for the cost of [J.E.]'s tuition and related services at iBrain . . . less $2,000 . . . upon [J.E.'s] parents submission to the district [of] proof of the student's attendance and delivery of related services at iBrain as well as proof of payment for the time period when the student attended iBrain for the 2020-21 school year.” Id. at 31. Plaintiffs argue that the SRO erred in awarding retroactive reimbursement, rather than retroactive direct funding to iBrain. Pls.' Br. at 13, 16-20.
As an initial matter, both parties agree that retroactive direct tuition payment is an available remedy under the IDEA. Pls.' Br. at 16-19; Defs.' Br. at 11, 17-19; see Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F.Supp.2d 403, 427-28 (S.D.N.Y. 2011) ([A] court's “broad discretion to grant such relief as . . . is appropriate under [20 U.S.C.] § 1415(i)(2)(C)(iii) includes the power, in a proper case, to award retroactive direct payment of private school tuition.”) (internal quotation marks omitted); E.M. v. New York City Dep't of Educ., 758 F.3d 442, 445, 463 (2d Cir. 2014) (holding that plaintiff's contractual obligation to pay tuition under the school's enrollment contract gave her standing to seek direct retroactive tuition payment); S.W., 646 F.Supp.2d at 360 (“In a case where the equities favor such an award, there may be good reasons why direct tuition payment should be a remedy available to a needy parent, on either a prospective or retrospective basis.”). The parties also agree that that the Burlington test governs Plaintiffs' request for retroactive direct payment of tuition expenses.
Pls.' Br. at 18-19; Defs.' Br. at 17; see S.W. 646 F.Supp.2d at 360 n.3 (concluding “the Burlington analysis would apply” to a claim for a “retroactive direct tuition payment”). Thus, the narrow issue in dispute is whether the appropriate relief here is retroactive direct funding to iBrain or retroactive tuition reimbursement to Plaintiffs.
In denying direct funding, the SRO reasoned that “it is the parents' burden of production and persuasion with respect to whether they have the financial resources to ‘front' the costs of iBrain and whether they are legally obligated for the student's tuition payments.” R. at 30. As it pertains to Plaintiffs' obligations for tuition payment, the SRO found that it is “undisputed that [J.E.'s] parents executed an enrollment contract with iBrain that included tuitions costs.” R. at 30. The enrollment contract provided that Plaintiffs “may seek public funding from their local school district to pay for Student's Full Tuition due to iBrain for the School Year by asserting Student's due process rights,” and that “[in] the event Parent is required to file a due process complaint against the local school district . . . the tuition payment obligations . . . will be suspended.” R. at 423. Nevertheless, the SRO also found that “the hearing record [did] not include . . . any reliable evidence related to the parents' inability to ‘front' the costs of [J.E.]'s attendance at iBrain.” R. at 30-31. Thus, the SRO concluded that Plaintiffs were “entitled to tuition reimbursement from the district upon submission of proof of receipt of the services and payment,” but were “not entitled to direct funding of the tuition costs.” Id.
Consistent with the SRO's determination, several courts have ordered direct funding of a tuition payment where there has been a showing by the parents of both a legal obligation to pay the tuition and a lack of financial resources to pay that tuition. See Mr. & Mrs. A., 769 F.Supp. at 406, 406, 427-28 (awarding direct payment relief where parents “due to lack of financial resources, ha[d] not made tuition payments but [were] legally obligated to do so”); A.R. ex rel. F.P. v. New York City Dep't of Educ., No. 12-CV-4493 (PAC), 2013 WL 5312537, at *10-11 (S.D.N.Y. Sept. 23, 2013) (crediting plaintiff's declaration and exhibit setting forth her lack of financial resources and inability to pay the tuition, and granting plaintiff relief in the form of a direct payment to the student's private school); Brock ex rel S.B. v. New York City Dep't of Educ., 2015 WL 1516602, at *8 (S.D.N.Y. Mar. 31, 2015) (ordering the DOE to pay tuition costs directly to the private school where plaintiffs' counsel's represented that plaintiffs qualified for Supplemental Security Income and lacked the financial resources to pay the cost of the private school tuition); see also E.M. 758 F.3d at 452-54 (explaining that “where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework,” and that such relief “furthers the IDEA's remedial purposes by extending the unilateral withdrawal option to parents with limited financial means, who otherwise could not avail themselves of it.”) (emphasis added); Connors v. Mills, 34 F.Supp.2d 795, 805-06 (N.D.N.Y. 1998) (finding that because the plaintiff “ha[d] presented no evidence that she [was] unable to front the tuition for [the student's] placement at [the private school]” and because the record did not reflect that plaintiff “ever complained of her financial situation prior to this litigation,” her claim “d[id] not fall within the scope of the financial circumstances exception” enabling relief in the form of direct funding). But, as Plaintiffs' counsel contended at oral argument, the IDEA itself does not impose a financial hardship requirement, and it is not clear from the cases that have awarded direct funding that the courts squarely decided the question of whether a showing of financial hardship was required. See Tr. at 13-14.
Here, there is no dispute that Plaintiffs have a legal obligation to pay tuition expenses for J.E.'s education at iBrain during the 2020 summer session-expenses which amount to approximately $30,970. See R. at 422-28 (iBrain enrollment contract); see also Tr. at 5-6. But, at the administrative level, Plaintiffs had not put forth evidence demonstrating a lack of financial resources to pay those tuition expenses. See Tr. at 6. At oral argument, however, the parties agreed that this Court is permitted to consider evidence of Plaintiff's financial state, and order direct funding to iBrain, if the Court determined that Plaintiffs were financially unable to afford the $30,970 payment to iBrain. See Tr. at 23, 25-27, 32-38; see also G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 751 F.Supp.2d 552, 554 n.1 (S.D.N.Y. 2010) (In IDEA appeals, “courts generally accept evidence that was not withheld in bad faith, is relevant, and does not change the administrative review into a trial de novo.”); Mr. & Mrs. A., 769 F.Supp. at 406, 427 (noting a court's “broad discretion” to “‘grant such relief as . . . is appropriate' under [20 U.S.C.] § 1415(i)(2)(C)(iii)”); A.R. ex rel. F.P., 2013 WL 5312537, at *11 (accepting declaration regarding Plaintiff's financial state because “there [was] no indication that th[e] evidence was previously withheld in bad faith,” crediting the evidence that she could not afford to pay tuition, and “exercis[ing] its discretion under 20 U.S.C. § 1415(i)(2)(C)(iii) to grant Plaintiff relief in the form of a direct payment of $44,500 from [the] DOE to [the private school]”).
Accordingly, at the Court's direction, on December 8, 2022, counsel for Plaintiffs submitted a sworn declaration under penalty of perjury representing that based on his review of Plaintiffs' tax returns for the years 2020 and 2021 and following conversations with J.E.'s father, Plaintiffs cannot afford the outstanding tuition payment of $30,970. See ECF No. 33 ¶¶ 21-25, 33 (filed under seal). In addition to informing the Court of Plaintiffs' approximate combined adjusted gross income for 2020 and 2021, counsel specifically represented that the cost of living for Plaintiffs has increased since they moved to South Carolina, in part because (i) J.E. has required more accommodations and services than he did in New York; (ii) Medicaid is covering the cost of fewer medical and other equipment for J.E.; and (iii) the cost of J.E.'s education has increased, leading to more out-of-pocket expenses. Id. ¶¶ 26-27, 29-33. Finally, counsel's declaration notes that Plaintiffs have two other children to care for in addition to J.E. Id. ¶ 28.
On December 15, 2022, counsel for Defendants submitted a letter contesting the adequacy of counsel's declaration, contending that the declaration was “thin and oddly vague.” See ECF No. 36 at 1 (under seal); ECF No. 39 at 1 (redacted version). Defendants argue that “there is nothing from the Parent in support of the statement that the family is allegedly unable to pay for the tuition costs.” Id. First, to the extent Defendants now appear to complain that there is no declaration from Plaintiffs themselves, this was an issue addressed at oral argument and at that time, Defendants did not object to Plaintiffs attempting to demonstrate financial hardship through a sworn declaration from their attorney after his review of Plaintiffs' financial information. See Tr. at 34-37. In fact, counsel for Defendants confirmed that while they reserved the right to assert a “content based objection” to Plaintiffs' supplemental submission, they would not raise an objection “as to the form.” Id. at 36. The sworn declaration of Plaintiffs' counsel, made under penalty of perjury, is a sufficient basis from which the Court can assess whether Plaintiffs are financially unable to make the tuition payment to iBrain-a determination that Defendants conceded could be made by the Court at this stage. See id. at 35-37.
After reviewing the declaration from Plaintiffs' counsel, I am satisfied that Plaintiffs have demonstrated that they would suffer a financial hardship if required to make the $30,970 payment to iBrain. Significantly, there is no dispute here that J.E. was denied a FAPE, J.E.'s placement at iBrain was appropriate, Defendants are responsible for the tuition costs of J.E.'s private placement, and a payment to iBrain for the tuition expenses incurred in the summer of 2020 has not yet been made by Plaintiffs. The only remaining issue is whether Defendants' payment should be made to Plaintiffs, through reimbursement, or to iBrain, through direct funding. If, as they represent, Plaintiffs are unable to make the payment to iBrain, then Plaintiffs will effectively be left without a remedy for Defendants' failure to provide a FAPE, as they will be unable to obtain direct reimbursement from Defendants for the cost of iBrain, even though they remain contractually liable for the payment. Such a result would undermine the very purpose of the IDEA, which Congress enacted to ensure that all disabled children have access to a FAPE. See Mr. & Mrs. A., 769 F.Supp. at 406, 426 (noting that “Congress did not intend the child's entitlement to a free education to turn upon her parent's ability to ‘front' its costs”) (citation omitted) (emphasis in original). Accordingly, I recommend finding that Plaintiffs have shown a financial inability to make the tuition payment owed to iBrain and are thus entitled to direct funding of the amount owed, less $2,000.00.
C. Attorney's Fees
Plaintiffs also request that the Court declare them a prevailing party in the underlying IDEA proceeding and the instant action. See Pls.' Br. at 20-21; see also id. at 20, n.6; Pls.' Reply Br. at 9-10. In an action or proceeding brought under the IDEA, a court may, in its discretion, award reasonable attorney's fees to a prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3). To be considered a prevailing party, for attorney's fees, a plaintiff must “succeed on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing the suit.” G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 81 (2d Cir. 1999) (citation omitted) (internal quotation marks omitted); see also Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (“[A] plaintiff ‘prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.”); O'Shea v. Bd. of Educ., 521 F.Supp.2d 284, 289 (S.D.N.Y. 2007) (A prevailing party is “one who has been awarded some relief by the court.”) (quoting Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001)). Attorney's fees may be awarded for representation in connection with administrative hearings before an IHO, appeals to the SRO, or appeals to federal court. See G.M. ex rel. R.F., 173 F.3d at 84; see also A.R. ex rel. R.V. v. New York City Dep't of Educ., 407 F.3d 65, 75, 83 (2d Cir. 2005).
Defendants do not dispute that Plaintiffs prevailed at the administrative level. See Defs.' Reply Br. at 10. Thus, the only question is whether Plaintiffs are a prevailing party here, in federal court. Because I recommend that Plaintiffs' motion for summary judgment be granted with respect to their request for an award of direct funding, Plaintiffs have succeeded on a significant issue in this litigation. Plaintiffs are thus a prevailing party. Thus, to the extent Plaintiffs intend to submit a motion for attorneys' fees, the motion may seek fees for services rendered in connection with both the administrative proceedings and this federal action.
CONCLUSION
For the foregoing reasons, I recommend that Plaintiffs' motion for summary judgment be GRANTED in part and DENIED in part, and Defendants' cross-motion for summary judgment be GRANTED in part and DENIED in part. Specifically, I recommend that Plaintiffs' outstanding tuition dues be paid by Defendants directly to iBrain, less $2,000.00.
SO ORDERED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Vernon S. Broderick. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).