M.H. v. N.Y.C. Dep't of Educ.
| Decision Date | 13 October 2021 |
| Docket Number | 20-cv-1923 (LJL) |
| Parties | M.H., individually and on behalf of M.T., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant. Attorney/Paralegal Rate per Hour Total Hours |
| Court | U.S. District Court — Southern District of New York |
Plaintiff brings this action pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C § 1415(i)(3), seeking attorneys' fees and equitable relief. Pending before the Court is Plaintiff's motion for summary judgment, seeking attorneys' fees, costs, and interest for work performed by the Cuddy Law Firm (“CLF”), as well as equitable relief, and the cross-motion of Defendant New York City Department of Education (“DOE”) for summary judgment on Plaintiff's claims for equitable relief.
For the following reasons, Plaintiff's motion for summary judgment is granted in part and denied in part and Defendant's cross motion is granted.
The following facts are undisputed for purposes of summary judgment except as otherwise stated.
M.T. is a child with a disability under IDEA, 20 U.S.C. § 1401(3)(A), and is classified with autism. Dkt. No. 33 (“Joint Statement” or “Undisputed Facts”) ¶ 2; 31-3. M.H. is M.T.'s parent as defined by IDEA, § 1401(23). Joint Statement ¶ 3. M.H. and M.T. reside in Kings County, New York. Joint Statement ¶ 1.
Defendant New York City Department of Education (“DOE”) is a local educational agency as defined by IDEA, 20 U.S.C § 1401(19). Id. ¶ 6.
M.T. has an Individualized Education Program (“IEP”), see 20 U.S.C. § 1414(d), mandating a state-approved nonpublic school. She attends Brooklyn Blue Feather (“BBF”), a state-approved nonpublic school.
On April 17, 2017, M.H. initiated an impartial due process hearing (Case Number 165990), pro se, on behalf of M.T. Joint Statement ¶¶ 12-13 (citing Dkt. Nos. 14, 15 ¶¶ 8, 9). The request was on a form created by Defendant. Dkt. Nos. 35 ¶ 46, 31 ¶ 31, 31-1. M.H. sought limited relief in the form of an outside evaluation, noting that M.T.'s last evaluation had been three years earlier. Dkt. No. 31-1.
After filing her initial complaint pro se, M.H. retained CLF to represent her when DOE contacted M.H to try to resolve the case without a hearing and made threatening noises to M.H. when she did not settle. Dkt. No. 32-1 ¶¶ 3-4. Nina Aasen of CLF served as lead counsel for M.H. Dkt. No. 31 ¶ 28.
On June 15, 2017, CLF sought to amend the due process complaint on behalf of M.H. to allege a denial of a free appropriate public education (“FAPE”), see 20 U.S.C. § 1401(9), for the 2016-2017 and 2017-2018 school years. Joint Statement ¶ 15 (citing Dkt. Nos. 14, 15 ¶ 10). A due process complaint can be amended either by agreement between the parties or, if at least five days before a hearing, by the impartial hearing officer (“IHO”). See N.Y. Comp. Codes R. & Regs. tit. viii § 200.5(i)(7). Defendant denied M.H.'s request to amend the due process complaint on or about June 20, 2017, Joint Statement ¶ 16, but on July 18, 2017, the IHO overruled Defendant's denial and accepted the amended due process complaint. Id. ¶ 18 (citing Dkt. Nos. 14, 15 ¶ 12).
The amended due process complaint contained five alleged IDEA violations contributing to that claim, including the failure to recommend an appropriate program for the 2016-2017 school year, the failure to recommend an appropriate program for the 2017-2018 school year, the failure to conduct updated comprehensive evaluations, the failure to agree to the parent's request for independent evaluations, and the failure to conduct a functional behavioral assessment and develop a behavior intervention plan. Dkt. No. 31-3. It claimed, among other things, that the failure of the IEP to specify that M.T. would receive applied behavior analysis (“ABA”) or discrete trial instruction and home-based ABA services, and the lack of updated comprehensive evaluations in all areas, constituted a denial of a FAPE. Although BBF offers ABA services as part of its elementary school program for children, like M.T., who have autism, it was not on M.T.'s IEP and was not recognized as one of her needs, despite recommendations in her evaluations that she receive ABA. Joint Statement ¶¶ 4, 5; Dkt. No. 32-1 ¶ 8.
The amended complaint sought the following relief: (1) a finding that M.T.'s March 16, 2016 IEP denied her a FAPE; (2) a finding that M.T.'s March 11, 2017 IEP denied her a FAPE; (3) an order directing Defendant to fund the requested independent evaluations by providers of M.H.'s choosing and at the providers' usual and customary rates; (4) an order that ABA and discrete trials be specified as methodology on M.T.'s IEP; (5) an order that ABA home-based services be added to M.T.'s IEP as part of her educational program; (6) an order reimbursing Plaintiff for expenses of providing home-based ABA services to M.T. for necessary home ABA services that the Department had failed to provide; (7) an order for additional services of home-based ABA services to M.T. to make up for ABA home-based services denied to M.T. and to compensate for the ongoing denials of a FAPE; (8) an order directing Defendant's Committee on Special Education (“CSE”) to reconvene to consider all appropriate evaluations, including independent evaluations, to develop a new IEP; (9) payment of attorneys' fees and expenses; and (10) any further relief that the IHO would deem just and proper to ensure that M.T. received a FAPE. Dkt. No. 31-3.
An impartial due process hearing for M.H. and M.T. was first scheduled for May 30, 2017. The May 30, 2017 first pre-hearing conference lasted only two minutes because the representative from DOE failed to attend, apparently because the representative did not have the code for the telephonic hearing. In the absence of the DOE representative, the IHO simply confirmed that the due process complaint would be amended. Joint Statement ¶ 14; Dkt. No. 31 ¶ 35; 31-2.
The due process hearing was ultimately held over four separate days from August 7, 2017 to April 18, 2018. Over the course of the hearings, Plaintiff introduced 59 exhibits into evidence and Defendant introduced an additional three exhibits.[1] Defendant presented two witnesses while Plaintiff presented the testimony of five witnesses, including that of M.H.
At the August 7 hearing, the parties and IHO addressed DOE's refusal to agree to pay the rates charged by the independent providers selected by M.H. for a M.T.'s evaluation[2] and Plaintiff moved its first 45 exhibits into the record. Joint Statement ¶ 20; Dkt. No. 31-4. The IHO directed that counsel for M.H. and counsel for DOE speak about the issue of rates. A second hearing was held on September 19, 2017. At the September 2017 hearing, Plaintiff entered an additional five exhibits into evidence and Defendant put on as a witness a DOE supervisor of psychologists for DOE's CSE, who was subject to both cross-examination and re-direct examination. Joint Statement ¶ 21; Dkt. No. 31-5. Also, after the parties noted that the DOE did not speak to counsel about rates but contacted M.H. directly to demand that she agree to the DOE's rates, the IHO directed Plaintiff's counsel to prepare a proposed order that Plaintiff was entitled to have independent evaluations at providers' rates. Joint Statement ¶ 21; Dkt. No. 31-5. The third hearing was on December 19, 2017. At that hearing, Plaintiff entered an additional six exhibits into evidence and Defendant entered its first three exhibits into evidence and presented two witnesses-the principal and school psychologist from M.T.'s school-who were subject to cross-examination, re-direct examination, and re-cross-examination. Joint Statement ¶ 23.
The last hearing was on April 18, 2018 and lasted approximately three hours and fifty minutes. Id. ¶ 24. On October 6, 2017, the IHO had issued an Interim Order requiring Defendant to fund at M.H.'s proposed rates: (i) an independent neuropsychological evaluation; (ii) an independent speech and language evaluation; (iii) an independent occupational therapy evaluation; and (iv) an independent functional behavior assessment, all at rates specified in the order. Id. ¶ 22; Dkt. No. 31-6. At the April 18, 2018 hearing, Plaintiff entered three additional exhibits into evidence and presented her own testimony and that of four other witnesses, including the neuropsychological evaluator, the occupational therapy evaluator, and M.T.'s ABA therapist and board-certified behavior analyst (“BCBA”). Id.; Dkt. No. 31-9. At the conclusion of the April 18 hearing, the IHO ordered closing briefs to be submitted within two weeks of the date when the transcript was delivered. Dkt. No. 31-9. M.H.'s closing brief was 20 pages long, complete with citations to the relevant portions of the record and applicable regulations and case law. Dkt. No. 31-10.
On June 6, 2018, the IHO issued her initial Findings of Fact and Decision (“FOFD”). Dkt. No. 31 ¶ 72; Dkt. No. 31, Ex K. On June 7, 2018, the IHO issued an amended FOFD. Joint Statement ¶ 26.
In the FOFD, the IHO found that M.T. had been denied a FAPE for both school years at issue. The IHO determined that “[p]redetermination during the March 2017 IEP meeting led to inappropriate instructional services, failure to perform a functional behavioral assessment, and inadequate related services” and that “[t]he decision not to include ABA on the Student's IEP arose from predetermination, not an assessment of the individualized needs, ” concluding “[p]redetermination is a denial of FAPE.” Dkt. No. 31, Ex L at 5.[3] The IHO also concluded that M.T. “requires ABA both at school and at home” and that “occupational therapy and...
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