Phillips v. Banks

656 F.Supp.3d 469

Andrea PHILLIPS and Paul Hinton, as Parents and Natural Guardians of S.H.,and Andrea Phillips and Paul Hinton, individually, Plaintiffs, v. David C. BANKS,¹ in his official capacity as The Chancellor of the New York City Department of Education,and the New York City Department of Education, Defendants.

21 Civ. 09178 (GWG)

United States District Court, S.D. New York

Signed February 15, 2023

Rory J. Bellantoni, Ashleigh C. Rousseau, John Henry Olthoff, Brain Injury Rights Group, Ltd., New York, NY, for Plaintiffs.

Wynee Ngo, NYC Law Department, New York, NY, for Defendants.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Andrea Phillips and Paul Hinton, on behalf of their child S.H. and themselves, brought this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., against the Chancellor of the New York City Department of Education and the New York City Department of Education (collectively, "DOE"). See Complaint, filed Nov. 5, 2021 (Docket # 1) ("Compl."). Following state administrative determinations on their claims, the plaintiffs filed this action to seek review of the administrative proceedings, and both sides filed summary judgment motions.² For the reasons below, the Court denies the plaintiffs' motion for summary judgment and grants DOE's cross motion.

I. BACKGROUND

A. Legal Background

The Second Circuit has summarized the operation of the IDEA as follows:

A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education ("FAPE"). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S Ct. 3034, 73 L.Ed.2d 690 (1982). In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007). If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A).

R.E. v. New York City Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012).

"Instead of requiring that parents send their child for an extended period to a public school that offers a program the parents believe to be inadequate to their child's needs, the IDEA further authorizes parents to enroll their child unilaterally in a private school and, in challenging their child's proposed IEP, to seek reimbursement for tuition at the private school that in their view provides a suitable program." Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 159 (2d Cir. 2021) (referencing 20 U.S.C. § 1412(a)(10)(C)(ii)).

B. S.H.'s Educational Background and Disabilities

S.H. was 20 years old when this lawsuit began. See R. 48.³ S.H. attended New York City public schools beginning in the 2006-07 school year for kindergarten. R. 8; Pl. Mem. at 1. He is non-ambulatory and nonverbal, R. 301-302, 313, and has been diagnosed with cerebral palsy, spastic quadriplegia, microcephaly, multifocal partial seizures, and dysgenesis of the corpus callosum, R. 364, 954; Def. 56.1 Stat. ¶ 2, which, as the SRO summarized, has resulted in S.H. having cognitive impairments, cortical visual impairment, and orthopedic problems. R. 18.

For the 2017-18 school year, the CSE met in November 2017 to develop that school year's IEP. R. 18, 819. The CSE agreed that S.H. remained eligible as a student with multiple disabilities and recommended: a year-round "12:1+(3:1) special class in a specialized school"⁴; sessions of individual occupational, physical, and speech-language therapy; sessions of individual occupational therapy and speech-language therapy outside of school; adapted physical education; a "full time 1:1 paraprofessional for health and feeding"; and a dynamic display speech generating device. R. 8-9; R. 814-815.

Over a year later, the CSE convened to develop S.H.'s IEP for the 2018-19 school year. R. 9; R. 742. The CSE found continued eligibility for S.H. as a student with multiple disabilities and recommended mostly the same services. R. 746-48. Likewise, the CSE convened a year later for S.H.'s 2019-20 school year IEP. R. 780. The CSE found S.H. remained eligible and provided for most of the same services but added that S.H. should receive "repetition of activities," "math manipulatives," and "repeated prompts." R. 774.

Shortly thereafter, S.H.'s parents gave notice that they had enrolled S.H. in the International Institute for the Brain ("iBRAIN") and executed a related transportation contract. R. 9-10, 915. On January 2, 2020, S.H. began attending iBRAIN. Id.

C. Administrative Proceedings

Plaintiffs filed their due process complaint on April 29, 2020. R. 794. This complaint alleged that DOE "procedurally and substantively denied [S.H.] a FAPE during his entire educational career" and requested an impartial hearing pursuant to IDEA and its related New York state law provisions. Id. Plaintiffs alleged, among other things, that the IEP for the 2017-18 school year was not based on a thorough enough review, did not alter previous recommendations that had not led to sufficient progress, and did not provide for enough services (or services at a sufficient frequency and duration, such as at-home physical therapy only five times a week for only 30 minutes per session). R. 796. As to the 2018-19 school year, the complaint alleged that a lack of training for and/or calibration of an "eye gaze" device rendered it useless for S.H. to use to communicate. R. 797. Additionally, the complaint said that entire school year was "an almost total loss" for S.H. because the assigned teacher left midway through and the new teacher and service providers "did not know how to work with him." Id. As for the 2019-20 school year, plaintiffs noted that tests incorporated in that year's IEP showed regression for S.H. over the previous year and nevertheless approved insufficient services, from inadequate at-home support to educational and related programming to transportation. R. 797-98.

The complaint alleged DOE's failure to provide a FAPE for various reasons. R. 799-802. First, DOE improperly classified S.H. as having "multiple disabilities" rather than classifying him as having "traumatic brain injury." R. 799-800. Second, the CSE "failed to develop appropriate goals." R. 800. Third, DOE "failed to conduct appropriate, timely and comprehensive evaluations." Id. Fourth, "[t]he CSE denied the Parents their right to meaningfully participate in the Student's education" including by "repeatedly [misinforming] the Parents about the types of supports and prostheses that Sam required to increase strength, control, and flexibility in his joints, and failed to provide these supports." Id. Fifth, "[t]he DOE failed to recommend and provide appropriate related services." Id. Sixth and seventh, DOE did not address S.H.'s "highly intensive management needs" and "academic needs," respectively. R. 801. Eighth, "[t]he DOE failed to present appropriate Present Levels of Performance on the Student's IEPs." Id. And ninth, "[t]he DOE failed to develop an appropriate educational placement," by recommending essentially the same educational format year after year, not recommending a private school, and not mandating a school nurse. Id.

On October 13, 2020, the state appointed Impartial Hearing Officer Mitchell Regenbogen to hear the matter. R. 43. DOE moved to dismiss the complaint with respect to any claims it made from 2006 through the 2017-18 school years because of IDEA's two-year statute of limitations. R. 45-46. Plaintiffs did not oppose this motion. Id. The IHO granted the motion. R. 46. With respect to the 2017-18 school year, the IHO noted that the plaintiffs "did not file the . . . due process complaint until more than two years after [S.H.'s IEP] meeting and more than two years after the start of the 2017-2018 school year, that the Parent was present...