Rivas v. Banks

• Docket Number: 22-cv-10007 (LJL)
• Decision Date: 27 November 2023
• Parties: CLAUDIA RIVAS, as parent and natural guardian of S.C., and CLAUDIA RIVAS, 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.
• Court: U.S. District Court — Southern District of New York

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CLAUDIA RIVAS, as parent and natural guardian of S.C., and CLAUDIA RIVAS, 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.

No. 22-cv-10007 (LJL)

United States District Court, S.D. New York

November 27, 2023

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Claudia Rivas (the “Parent”), on behalf of both herself and her son, S.C., and defendants the New York City Department of Education and David Banks, in his official capacity as Chancellor of the New York City Department of Education (together, the “DOE”) cross-move for summary judgment, pursuant to Federal Rule of Civil Procedure 56. Dkt. Nos. 15, 20. For the reasons that follow, the Court denies the Parent's motion, grants the DOE's motion in part, and remands for clarification of the DOE's financial obligations under the August 24, 2021 pendency order.

BACKGROUND

During the 2021-2022 school year, SC was an eleven-year-old boy who had been diagnosed with several severe disabilities, including cystic encephalomalacia, global central nervous system injury, seizure disorder, hypoxic-ischemic encephalopathy, cerebral palsy, optic atrophy, and cortical visual impairment. Administrative Record (“A.R.”) 9.^[1] He was both

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nonverbal and non-ambulatory and received all hydration and nutrition through a percutaneous endoscopic gastronomy tube. Id. As a result, SC was fully dependent on others for all activities of daily living. Id. However, SC communicated using facial expressions, head turning, touching desired objects, and pressing switches with minimal support. Id.

Since the 2018-2019 school year, SC has attended the International Institute for the Brain (“iBrain”), a private school in New York City. Id. at 8 & n.2. On January 22, 2021, in anticipation of the annual revision of S.C.'s DOE-imposed Individual Education Program (“IEP”), iBrain developed its own education plan for S.C.'s 2021-2022 school year. Id. at 9. The iBrain plan recommended that S.C. enroll in a twelve-month program at a private school, receive instruction in a classroom with a ratio of six students to one teacher and one paraprofessional (a “6:1:1 class”), and have dedicated 1:1 care from a paraprofessional. Id. iBrain's plan also proposed that S.C. receive the following “related services” each week: five hour-long occupational therapy sessions, five hour-long physical therapy sessions, five hour-long speech-language therapy sessions, three hour-long vision education sessions, one hour-long parent counseling session, and one hour-long assistive technology session. Id. Additionally, the iBrain plan observed that S.C. had benefitted from weekly music therapy sessions and therefore recommended two hour-long music therapy sessions per week. Id.

On February 1, 2021, a DOE Committee on Special Education (“CSE”) convened for the annual review of S.C.'s IEP. Id. at 10. The CSE's 2021-2022 IEP stated that S.C. should receive special education as a student with a traumatic brain jury. Id. Like the iBrain plan, the IEP provided that S.C. should enroll in a twelve-month special education program, attend 6:1:1 classes, and receive 1:1 care from a paraprofessional. Id. The IEP did not require music therapy,

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but otherwise included the same weekly related services as the iBrain plan. Id. Finally, the IEP recognized that S.C. needed special transportation measures, including a lift bus with air conditioning. Id.

The DOE sent the Parent letters on February 19, 2021 that described the terms of the IEP, id. at 607-09, and stated that the IEP services “will be provided at” P.S. 168, a public school within District 75-a school district designated for special education instruction-located at 3050 Webster Avenue in the Bronx, id. at 611. However, on June 16, 2021, the DOE sent the Parent a follow-up letter, explaining that S.C. had been reassigned to P.S. 168's location within the P.S. 551 building at 339 Morris Avenue in the Bronx. Id. at 617.

On June 23, 2021, the Parent responded to the DOE with a letter explaining that she rejected both the IEP and school placement and intended to unilaterally place S.C. in iBrain for the 2021-2022 school year. Id. at 10. But her letter indicated that she remained open to enrolling S.C. in an appropriate DOE school. Id. Two days later, she signed an enrollment agreement with iBrain. Id.

The Parent filed a Due Process Complaint (“DPC”) with the DOE on July 6, 2021, contending that the IEP and school placement failed to provide S.C. with a Free Appropriate Public Education (“FAPE”), in violation of both federal and New York law. Id. at 10-11, 40410. Specifically, the DPC challenged the IEP's failure to require music therapy and an extended school day. Id. at 407. The DPC also averred that the assigned school could not implement the IEP because it did not offer extended school days and, as a District 75 school, had 6:1:1 classes that were “primarily for students on the autism spectrum, ” who would not be an appropriate peer group for S.C. Id. As the DPC asserted that iBrain was an appropriate placement and the

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equities favored the Parent, the DPC requested declaratory relief and an order directing the DOE to pay S.C.'s iBrain tuition for the 2021-2022 school year. Id. at 408-09.

An Impartial Hearing Officer (“IHO”) held an initial hearing on August 24, 2021 to determine S.C.'s “stay-put” placement during the proceedings. Id. at 12, 112. Following the hearing, the IHO issued a pendency order that required the DOE to fund S.C.'s attendance of iBrain and pay “the cost of related services during the 2021-2022 extended school year which includes relates services, and 1:1 paraprofessional.” Id. at 114. She further ordered the DOE to cover the costs of S.C.'s special transportation up to a maximum cost of $355 per trip. Id. By its terms, the pendency order was to expire when “a final resolution of the matter is reached.” Id.

S.C. was hospitalized between August 2021 and January 2022. Id. at 11. He was not medically cleared to receive in-person or remote instruction during that time, so he did not attend school. Id. But on January 14, 2022, SC secured the necessary medical approvals and resumed services from home. Id. at 12.

An impartial hearing ensued over the course of five nonconsecutive days between October 6, 2021 and April 18, 2022. Id. at 6, 30. On May 5, 2022, the IHO issued her findings of fact and decision. Id. at 6, 43. She determined that the DOE offered S.C. a FAPE for the 2021-2022 school year. Id. at 40. While the IHO acknowledged that iBrain's director of special education testified that music therapy was beneficial to S.C., id. at 37 (citing id. at 236-37), the IHO credited the CSE's finding that the goals served by music therapy could be met through other “occupational, physical and speech and language services as well as with assistive technology, ” id. at 38. Accordingly, the IHO ruled that the “DOE is not obligated to provide music therapy.” Id. Next, she rejected the Parent's contention that S.C.'s IEP necessitated an extended school day. Id. (“Although not addressed at the hearing, . . . I find that DOE is not

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required to provide an extended school day.”). The IHO likewise found the Parent's concern that S.C. would be inappropriately placed with autistic children “purely speculative.” Id. And because the Parent did not challenge the wheelchair accessibility of S.C.'s school until her “closing” argument, the IHO declined to reach that issue. Id.

Although the conclusion that the DOE provided S.C. a FAPE was dispositive, the IHO nevertheless examined the remaining two steps in the reimbursement analysis “[i]n order to have a complete record.” Id. at 40. She determined that iBrain was an appropriate placement for S.C. based on his prior progress at the school. Id. at 41. Finally, the IHO found that the equities favored the Parent since “there is no evidence that Parent did anything but cooperate.” Id. at 42. However, because the DOE offered S.C. a FAPE, she denied the Parent's “requests for funding for [S.C.'s] attendance at iBrain during the 2021-2022 school year.” Id. at 43.

On June 14, 2022, the Parent appealed the IHO's findings of fact and decision to a State Review Officer (“SRO”). Id. at 53. The Parent reprised her argument that an IEP without music therapy would be inappropriate for S.C. Id. at 60. She contended that the IHO erred in deciding that an extended school day was unnecessary because the DOE failed “to rebut Parent's allegation that it was impossible to implement the February 1 IEP without an extended school day.” Id. at 59. According to the Parent, in characterizing her grouping concerns as speculative, the IHO ignored “extensive testimony” that S.C. would be placed in a class with autistic students at his assigned DOE school, thereby jeopardizing his educational goals and safety alike. Id. at 61. Though the Parent conceded “the school's inaccessibility was not raised in the DPC, ” she asserted that “the fact that S.C. could not even get to his classroom renders the school location inappropriate on its face.” Id. The DOE opposed her appeal. Id. at 66-73.

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The SRO issued a decision on July 25, 2022 that affirmed the IHO's decision and dismissed the Parent's appeal. Id. at 28. Like the IHO, the SRO determined that the IEP offered a FAPE even though it did not require music therapy, as the IEP included goals and services to develop the same motor, social, and communication skills “underlying iBrain's recommendation for music therapy.” Id. at 21. Nor was the IEP deficient in failing to mandate an extended school day. Id. at 23. The SRO reasoned that the assigned DOE school could provide the related services described in the IEP during an ordinary school day because specialists could assist S.C. while he received...