Thomason v. Porter

1

SHANNON THOMASON and VINNIE PENNA, as Parents and Natural Guardians of E.P., and SHANNON THOMASON and VINNIE PENNA, Individually, Plaintiffs, v. MEISHA PORTER, in her official capacity as the Chancellor of the New York City Department of Education, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.

No. 21-cv-6713 (LJL)

United States District Court, S.D. New York

February 13, 2023

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE:

Plaintiffs Shannon Thomason (“Thomason”) and Vinnie Penna (together with “Thomason,” the “Parents” or “Plaintiffs”) individually and on behalf of their minor son E.P., bring this action against Meisha Porter and the New York City Department of Education (collectively, the “DOE”) pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400-1482. Plaintiffs seek an order (i) vacating and reversing the determination of the State Review Officer (“SRO”) upholding the decision of an Impartial Hearing Officer (“IHO”) that the proposed Individualized Education Program (“IEP”) did not deny E.P. a Free Appropriate Public Education (“FAPE”) and (2) requiring the DOE to fund E.P.'s educational placement at the International Institute for the Brain (“iBRAIN”) for the 2019-2020 extended school year.

The parties have cross-moved for summary judgment. For the following reasons, the Parents' motion for summary judgment is denied and the DOE's cross-motion for summary judgment is granted.

BACKGROUND

I. Factual Overview

A E.P.'s Factual Background

During the 2019-2020 school year, E.P. was a nine-year-old boy with significant disabilities including cerebral palsy, spastic quadriplegia, and hypoxic ischemic encephalopathy. Dkt. No. 26 (“Pl. 56.1”) ¶ 2; Dkt. No. 32 (“DOE 56.1”) ¶ 2. E.P. is nonverbal and non-ambulatory and E.P.'s disabilities adversely affect his motor and sensory functioning, information processing, and language and speech, which in turn affect his educational abilities and performance. Pl. 56.1 ¶¶ 2-4; DOE 56.1 ¶¶ 2-4. E.P. uses a wheelchair, requires assistance to eat, and uses assistive technology to communicate. See Pl. 56.1 ¶ 5; DOE 56.1 ¶ 5; Certified Administrative Record (“R-”) 00953. E.P.'s IEP categorizes E.P.'s disability as a Traumatic Brain Injury. Pl. 56.1 ¶ 7; DOE 56.1 ¶ 7. The IEP describes E.P. as “a pleasant, delightful and intellectual child.” R-953.

During the 2018-2019 school year, E.P. was a student at iBRAIN, a school that educates children with brain injuries and brain-based disorders. Pl. 56.1 ¶¶ 10-11; DOE 56.1 ¶ 10. On April 30, 2019, an IHO ordered the DOE to fund E.P.'s placement at iBRAIN for the 2018-2019 school year, with certain reductions in the amount of tuition covered, after finding that the DOE failed to offer E.P. a FAPE. Pl. 56.1 ¶ 13; DOE 56.1 ¶ 13.

B. Development of E.P.'s 2019-2020 IEP

On February 4, 2019, DOE's Committee on Special Education (“CSE”) sent a Meeting Notice to the Parents to schedule a meeting on March 8, 2019 for the purposes of developing E.P.'s IEP for the 2019-2020 school year. Pl. 56.1 ¶ 14; DOE 56.1 ¶¶ 14, 54.^[1] On February 6, 2019, the DOE emailed the Parents to discuss their scheduling preferences for the 2019-2020 meeting. DOE 56.1 ¶ 54. The Parents responded by letter dated February 19, 2019, requesting that the IEP be a “Full Committee Meeting” with a DOE school physician and a parent member present and requested that both the DOE school physician and parent member participate in the meeting in person. Pl. 56.1 ¶ 15; DOE 56.1 ¶ 15. The Parents also advised the DOE that they were available to attend a meeting during the work week from 9:00 a.m. to 11:00 a.m. DOE 56.1 ¶ 54.

On March 27, 2019, the DOE sent the Parents a second Meeting Notice, rescheduling the IEP meeting to April 9, 2019 at 10:30 a.m. Id. ¶ 55. The Parents responded through counsel on April 4, 2019 and requested that the meeting be rescheduled because the Parents had not yet received the mailed copy of the Meeting Notice and the Meeting Notice did not list the names of the DOE school physician and the parent member. Pl. 56.1 ¶ 16; DOE 56.1 ¶¶ 16, 56. The letter also reiterated the Parents' request that the DOE school physician participate in the IEP meeting in person. Pl. 56.1 ¶ 16; DOE 56.1 ¶ 16. The DOE sent the Parents a third meeting notice on April 23, 2019, rescheduling the IEP meeting to June 7, 2019^[2] at 9:00 a.m. Pl. 56.1 ¶ 17 (citing R-947-49); DOE 56.1 ¶¶ 17, 57. The April 23 letter contained the name of the DOE school physician and the parent member. See Pl. 56.1 ¶ 17; DOE 56.1 ¶¶ 17, 57. By letter dated May 20, 2019, the Parents through counsel sent the DOE a letter identifying several alleged deficiencies in DOE communications, including an email that misidentified the name of the Parents' child, a several-day delay in receiving the April 23 letter, and another letter dated April 29, 2019, both of which had an incorrect zip code for the Parents' address and other alleged errors in a classroom observation report and social history update. See Pl. 56.1 ¶ 18; DOE 56.1 ¶ 18.

On June 7, 2019, the CSE convened to formulate E.P.'s IEP for the 2019-2020 school year (the “June 2019 IEP”). Pl. 56.1 ¶ 20; DOE 56.1 ¶ 20. The Parents were present in person for the meeting, as were an additional parent member, a district psychologist, a special education teacher, and a district social worker. Pl. 56.1 ¶ 20 (citing R-981); DOE 56.1 ¶¶ 20, 59. The DOE school physician joined the meeting telephonically, as did E.P.'s educational team from iBRAIN. Pl. 56.1 ¶ 20; DOE 56.1 ¶¶ 20, 59. Approximately thirty minutes into the IEP meeting, Thomason noted her objection to the DOE school physician appearing telephonically and removed herself from the meeting. Pl. 56.1 ¶ 20; DOE 56.1 ¶¶ 20, 59. E.P.'s educational team then discontinued participation in the IEP meeting. DOE 56.1 ¶ 59.

The CSE recommended that E.P. attend a twelve-month academic program in a specialized public school in a classroom with a ratio of eight students to one teacher and one paraprofessional (known as an “8:1:1 class”). Pl. 56.1 ¶ 21; DOE 56.1 ¶¶ 21, 60; see S.K. v. City Sch. Dist. of City of New York, 2020 WL 1244473, at *2 (S.D.N.Y. Mar. 13, 2020). The CSE also recommended that E.P. be provided certain related services, including adapted physical education three times per week, counseling in a group of three in one thirty-minute session per week, occupational therapy in five thirty-minute sessions per week, physical therapy in five thirty-minute sessions per week, individual speech-language therapy in four sixty-minute sessions per week, small group speech-language therapy in one sixty-minute session per week, a full time 1:1 paraprofessional for support with health and activities of daily living, assistive technology devices and software, and special transportation. Pl. 56.1 ¶ 21; DOE 56.1 ¶¶ 21, 60.

On June 21, 2019, the Parents sent the DOE a 10-Day Notice, advising the DOE that they intended to unilaterally enroll E.P. in iBRAIN and to seek public funding for the placement. Pl. 56.1 ¶ 25; DOE 56.1 ¶ 25. The Parents subsequently enrolled E.P. at iBRAIN for the 2019-2020 school year and entered into a contract for school transportation services. Pl. 56.1 ¶ 28; DOE 56.1 ¶ 28.

On July 31, 2019, the CSE modified E.P.'s June 2019 IEP (the “July 2019 IEP”). Pl. 56.1 ¶ 27; DOE 56.1 ¶ 27. The CSE made two modifications to the June 2019 IEP: The CSE added transportation services and it added nursing services for E.P. Pl. 56.1 ¶ 27; DOE 56.1 ¶ 27. It is disputed whether the CSE held another meeting before modifying E.P.'s IEP. Pl. 56.1 ¶ 27; DOE 56.1 ¶ 27.

C. Due Process Complaint and Proceedings Before the Impartial Hearing Officer

On July 8, 2019, the Parents through counsel filed a due process complaint (“DPC”). Pl. 56.1 ¶ 31; DOE 56.1 ¶ 31. The DPC challenged CSE's recommendation, arguing that the DOE failed to offer E.P. a FAPE for the 2019-2020 school year because it had committed several procedural and substantive errors under the IDEA and New York State law. R-1047. Specifically, the DPC alleged that (1) the DOE failed to hold the CSE at a mutually agreeable time; (2) the DOE ignored the Parents' request that the physician attend the CSE meeting in person; (3) the June 2019 IEP was not a product of an individualized assessment of E.P.; (4) the IEP would expose E.P. to “substantial regression” due to the reduction in related services and the recommended student-to-teacher ratio; (5) the IEP does not reflect the individual needs of E.P. and has immeasurable goals; and (6) the school program and placement were inappropriate.

R-1047-48. The DPC also requested an interim order of pendency based on the April 30, 2019 IHO decision, which would require the DOE to prospectively pay for E.P.'s tuition at iBRAIN and his transportation needs to iBRAIN. R-1046-47.

An impartial hearing was held on August 14, 2019, August 21, 2019, and September 9, 2019 to address the pendency order. SRO Decision (“SRO Dec.”) 5. On August 21, 2019,^[3] the IHO issued a pendency order, which funded E.P.'s placement at iBRAIN during the 2019-2020 school year. IHO Decision (“IHO Dec.”) 2. The impartial hearing reconvened on the merits on September 19, 2019 and continued over fourteen days through February 9, 2021. Pl. 56.1 ¶ 33; DOE 56.1 ¶ 33; SRO Dec. 5. On March 22, 2021, the IHO issued his decision. Pl. 56.1 ¶ 34; DOE 56.1 ¶ 34.

The IHO concluded that the DOE offered E.P. a FAPE during the 2019-2020 school year. IHO Dec. 6-7. In so concluding, the IHO found that the 8:1:1 class was sufficiently restrictive to provide the required level of services for E.P Id. at 6. The IHO also found that the procedural violations with respect to the meeting...