Moonsammy v. Banks

1

CINDY MOONSAMMY, et al., Plaintiffs, v. DAVID C. BANKS, et al., Defendants.

No. 23 Civ. 10491 (PAE)

United States District Court, S.D. New York

September 23, 2024

OPINION & ORDER

PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE

Plaintiffs Cindy and Kemraj Moonsammy (the “Moonsammys”) individually and on behalf of their minor daughter, A.M bring this action against the New York City Department of Education and its Chancellor, David C. Banks (together, the “Department”), pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C § 1400 et seq., and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq. A.M., who was age six when the complaint was filed, has various neurological and physical disabilities, including cerebral palsy, severe visual impairment, and a form of epilepsy known as Lennox-Gastaut Syndrome.

In 2022, after concluding that the individualized education program (“IEP”) developed for A.M. by the Department was inadequate, the Moonsammys unilaterally enrolled A.M. in a private school, the International Institute for the Brain (“iBrain”).^[1] Their initial enrollment contract with iBrain was keyed to the parents' seeking “public funding,” including by litigating against the Department, and materially suspended “tuition payment obligations” “until a final determination/decision is issued by an administrative judge, agency, or appellate court.” Dkt. 16 at 348-49 (“administrative record” or “AR”). Around the same time, the Moonsammys entered into a contract with Sisters Travel and Transportation Services, LLC (“Sisters”), a specialized transportation service, for A.M.'s transportation to and from iBrain. It, too, suspended payment obligations “until an administrative or judicial decision is made.” Id. at 340. The Moonsammys thereafter filed a series of lawsuits in this Court, seeking orders directing the Department to make payments directly -and “immediately”-to iBrain and Sisters.^[2]

In this action, the Moonsammys seek review of a portion of a July 31, 2023 administrative decision of a State Review Officer (“SRO”).^[3] Reversing in part the determination of an Impartial Hearing Officer (“IHO”), the SRO found that the Department had failed to furnish a free appropriate public education (“FAPE”) to A.M. for the 2020-21, 2021-22, and 2022-23 school years; that iBrain was an appropriate unilateral placement; and that the Moonsammys were entitled to public funding for A.M.'s private school enrollment. Those findings are not at issue here. The Moonsammys, instead, contend that the SRO erred in the remedy he set for the denial of a FAPE and in denying their request for a publicly funded independent educational evaluation (“IEE”) for A.M. Specifically, the Moonsammys challenge the SRO's decisions (1) awarding reimbursement to the parents, rather than ordering the Department to directly pay iBrain and Sisters for, respectively, the costs of A.M.'s tuition and transportation services, upon proof of A.M.'s attendance at iBrain; (2) declining to make part of the reimbursement award funding for one-to-one nursing services at iBrain; and (3) denying their request for an IEE at public expense. The parties have cross-moved for summary judgment.

For the reasons that follow, the Court agrees with the Moonsammys that the SRO erred in denying their request for a publicly funded IEE and grants summary judgment to them on their IEE claim. The Court, however, denies summary judgment to both parties on the Moonsammys' claims for direct payment and one-to-one nursing services. The Court instead remands these matters to the SRO. On the direct payment issue, the SRO is to consider the equities relevant to the choice between (1) an order requiring the Department to directly pay iBrain and Sisters for, respectively, tuition and transportation services and (2) an order requiring the Department to reimburse the Moonsammys for their expenditures for such services, and to explain which option the equities, including the Moonsammys' financial circumstances, favor. On the nursing services issue, the SRO is to consider whether, under his order dated July 31, 2023, the Department has an obligation to fund one-to-one school nursing services for A.M. and the scope of any such obligation.

I. Background

A. Facts ^[4]

1. A.M.'s Background

A.M. is a “child with a disability” under the IDEA. 20 U.S.C. § 1401 (3)(A)(i) (listing covered disabilities). Her neurological and physical disabilities include cerebral palsy, severe visual impairment, and a form of epilepsy known as Lennox-Gastaut Syndrome, which causes seizures three to four times a day. AR 20, 37. A.M. is non-ambulatory and non-verbal. Id. at 37. She requires one-to-one assistance to participate in classroom activity and to attend to her basic needs. Id.

2. A.M.'s Relevant Educational History

A.M. was scheduled to start kindergarten in 2022, for what was to be her first year in school. See id. at 626-28. Her parents had declined to send her to preschool due to the COVID-19 pandemic and their concerns about the ability of local schools to address A.M.'s complex needs, made more acute by hip surgery and a four-month hospital stay in late 2021. See id. at 788.

In August 2021, A.M.'s Committee on Special Education (“CSE”) provided the Moonsammys with an IEP for A.M.'s first year of school. It recommended a class with 12 students, one teacher, and three teaching assistants (a “12:1:3 classroom”), but did not provide for a one-to-one paraprofessional or nurse. Id. at 189, 195. In March 2022, the Moonsammys notified the Department that they were rejecting the Department's proposed placement as inadequate to meet A.M.'s needs and that they were enrolling A.M. at iBrain. Id. at 194-95.

In or around May 2022, A.M. began kindergarten at iBrain for the 2022-23 extended school year. Id. at 543. On May 27, 2022, A.M.'s CSE convened again, and adopted substantially similar recommendations to the preceding IEP, placing A.M. in a 12:1:4 classroom. Id. at 43, 264. This IEP concluded that A.M. “require[d] ¶ 1:1 nurse at all times to tend to her physical needs and ensure her medical safety, seizure management, and G-tube feed.” Id. at 233. However, it declined to recommend one-to-one nursing services because the Department's staff did not have the required paperwork. Id. at 264. The Moonsammys decided to keep A.M. at iBrain, where she has remained since. Id. at 357.

B. Administrative Proceedings

On October 18, 2022, the Moonsammys filed a due process complaint with the Department, in which they sought an order directing the Department to fund the costs of A.M.'s enrollment at iBrain and related services. Id. at 106 (the “due process complaint”). The due process complaint alleged that several aspects of A.M.'s lEPs had left her without a FAPE since August 2020, including her placement in a 12:1:4 classroom, id. at 111-12, limited wheelchair access at the proposed school location, id. at 112-13, and the failure to recommend a one-to-one nurse for A.M., id. at 115. The due process complaint also alleged that A.M.'s unilateral placement at iBrain was appropriate to address her “academic, physical, and social/emotional needs.” Id. at 116. The Moonsammys sought an order declaring that the Department had denied A.M. a FAPE and that iBrain was an appropriate placement for A.M.; requiring the Department to pay A.M.'s tuition and transportation expenses directly to iBrain and Sisters, respectively; and requiring the Department to fund an IEE for A.M. Id. at 117.

On April 27, 2023, after two days of hearings and live testimony from five witnesses, IHO Philip P. Sturges held that the Department did not have an obligation to fund A.M.'s private school placement at iBrain. See id. at 38, 48. The IHO applied the Burlington-Carter framework. Id. at 44.^[5] Under that framework, parents who have unilaterally placed their child in private school are “entitled to reimbursement if (1) the school district's proposed placement violated the IDEA, (2) the parents' alternative private placement is appropriate to meet the child's needs, and (3) equitable considerations favor reimbursement.” See E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 451-55 (2d Cir. 2014).

IHO Sturges's finding in favor of the Department on the first prong-to wit, that the Department had offered A.M. a FAPE-was decisive under the Burlington-Carter framework. AR 44-46. In light of that finding, IHO Sturges noted, “it [wa]s not necessary” to reach the second and third prongs, but he did so “to provide the parties with a complete set of findings” in the event of appellate reversal on the first prong. Id. at 46-47. As to the second prong, IHO Sturges would have held iBrain “an appropriate placement for [A.M.]”; and as to the third, IHO Sturges would have found that equitable considerations warranted a 25% reduction in the tuition reimbursement award for the 2022-2023 school year. Id. at 47. Had he found that the Department denied A.M. a FAPE, IHO Sturges stated, his award would have directed the Department to partially reimburse the parents. He would not have awarded “direct payment” of money to iBrain and A.M.'s other service providers. Id.

As to their request for an IEE, IHO Sturges found that, by expressing disagreement in the due process complaint with an evaluation conducted by the Department on March 4, 2022, the Moonsammys had taken “sufficient” action “to warrant the requested IEE.” Id. at 48. He observed that “while the record d[id] not establish that the Parents requested an IEE from the DOE prior to the request contained in the DPC, the DOE did not raise any specific objections to an IEE at the hearing.” Id. The IHO ordered the Department to fund a neuropsychological IEE by an evaluator...