Z.A.R. v. The City of New York

• Decision Date: 26 February 2021
• Docket Number: 19-cv-2615 (CBA) (PK)
• Parties: Z.A.R., Mother and Natural Guardian of E.J., and Z.A.R., individually Plaintiffs, v. THE CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.
• Court: U.S. District Court — Eastern District of New York

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Z.A.R., Mother and Natural Guardian of E.J., and Z.A.R., individually Plaintiffs, v. THE CITY OF NEW YORK and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants.

No. 19-cv-2615 (CBA) (PK)

United States District Court, E.D. New York

February 26, 2021

REPORT & RECOMMENDATION

PEGGY KUO, UNITED STATES MAGISTRATE JUDGE

Plaintiff Z.A.R. brings this action individually and on behalf of her child E.J. against Defendants The City of New York and New York City Department of Education (the “DOE” and collectively with the City of New York “Defendants”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). Plaintiff seeks review and reversal of a final administrative decision by a New York State Review Officer denying her tuition reimbursement following E.J.'s unilateral placement at a private school. (Dkt. 14.) The parties cross-moved for summary judgment. (Dkts. 40, 41.) The Honorable Carol Bagley Amon referred the motions to the undersigned. (Dkt. Entry Dec. 5, 2019.) For the reasons below, the undersigned recommends Plaintiff's motion be GRANTED and Defendants' motion be DENIED.^[1]

BACKGROUND

I. Overview of the IDEA

The following overview of the IDEA will assist in interpreting the factual background of the case:

Under the IDEA, qualifying disabled students are entitled each year, to free appropriate public education (“FAPE”) that conforms to a tailored education plan designed for their particular needs. The education plan called an Individualized Education Program (“IEP”), must be developed annually by a Committee on Special Education (“CSE”)-a committee comprising at least “the student's parent(s), a representative of the school district, a special education provider, a general education teacher if the student is being considered for a general education environment, and any other individual with special knowledge or expertise concerning the child.” In New York, decisions made by CSEs can be appealed to an Impartial Hearing Officer (“IHO”), and decisions made by IHOs can, in turn, be appealed to a State Review Officer (“SRO”). A dissatisfied party may seek judicial review of an SRO decision.

Parents of students covered under the IDEA may unilaterally reject the placement recommended by the CSE, choosing to enroll the student(s) elsewhere while they appeal the CSE's recommendation if they find that recommendation unsuitable. In doing so, parents can seek DOE funding for the tuition of their preferred placement if they can demonstrate: (1) that the CSE's recommended placement does not comply with the IDEA; (2) that the placement favored by the parent is appropriate given the needs of the child; and (3) that equitable considerations favor reimbursement. Parents who unilaterally reject the recommended placement during the pendency of an appeal of the CSE's decision do so at their own financial risk.

J.L. v. New York City Dep't of Educ., No. 15-CV-1200 (CBA)(RER), 2016 WL 6902137, at *1 (E.D.N.Y. Nov. 22, 2016) (internal citations and quotations omitted).

II. Factual History

These facts are taken from the SRO administrative record (Dkt. 18-1), Defendants' Rule 56.1

Statement of Material Facts (Dkt. 42), and Plaintiff's Rule 56.1 Counterstatement of Material Facts (Dkt. 44.) All page number references are to the ECF page number, not the document page number, and all references to testimony are to the testimony provided in hearings before the IHO.

A. E.J.'s Educational History and the 2016 Appeal

E.J. is a bright student with recognized disabilities. (Dkt. 18-1 at 51; Dkt. 42 ¶ 1-2; Dkt. 44 ¶ 1-2.) Her education was the subject of a prior New York State administrative review under the IDEA for the 2013-14, 2014-15, and 2015-16 school years (the “2016 Appeal”). (Dkt. 18-1 at 7.) The record in this matter does not include the full record in the 2016 Appeal, but the SRO decision includes references to it. (Dkt. 18-1 at 7-8, 22-23.) The facts of that appeal are not relevant here, except that the IHO in the 2016 Appeal concluded that reevaluations for E.J. were necessary, including speech language, occupational therapy (“OT”), audiological, central auditory processing, and visual perception processing evaluations, to be funded by the DOE, along with a classroom observation and updated neuropsychological evaluation. (Dkt. 18-1 at 22-23.) Plaintiff challenged those determinations, but her arguments were found insufficient and the IHO's conclusions were upheld. (Dkt. 18-1 at 8.)

Pursuant to the IHO's determination in the 2016 Appeal, Plaintiff and the DOE entered into a written agreement whereby the DOE would fund the reevaluations. (Dkt. 18-1 at 22-23.) It is not clear from the record when the parties entered into that written agreement, and the agreement itself was not part of the record provided here.

E.J. has attended the Summit School, a New York State-approved non-public school, since the 2016-17 school year. (Dkt. 18-1 at 8.)

B. Scheduling the 2017-18 IEP Meeting

The DOE first contacted Plaintiff to schedule a CSE meeting to develop E.J.'s 2017-18 IEP in February 2017. (Dkt. 18-1 at 19, 785-86.) A DOE school psychologist testified that she mailed a notice to Plaintiff on February 22, 2017 scheduling a reevaluation for March 25, 2017 and an initial CSE meeting for April 21, 2017. (Dkt. 18-1 at 19, 172-73, 785-86.)^[2] Plaintiff later wrote in an email to the DOE school psychologist that she was never notified of the initial request for testing on March 25, 2017. (Dkt. 18-1 at 723.)

Neither Plaintiff nor E.J. appeared for the March 25, 2017 reevaluation, and the DOE rescheduled it for May 13, 2017. (Dkt. 18-1 at 19, 173-74, 785.) The originally planned April 21, 2017 CSE meeting was also canceled. (Dkt. 18-1 at 19, 174, 785.) The DOE school psychologist called Plaintiff on multiple occasions to reschedule the meeting but was unable to reach Plaintiff or to leave voicemails. (Dkt. 18-1 at 19, 174, 785.) The DOE school psychologist also called E.J.'s father and left voice messages for him.^[3] (Dkt. 18-1 at 19, 174, 785.) On April 20, 2017, the DOE school psychologist sent an email to Plaintiff notifying her that the reevaluation was rescheduled for May 13, 2017, and that the CSE meeting was rescheduled for May 30, 2017. (Dkt. 18-1 at 19, 174-75, 784-85.)

In a May 10, 2017 email, Plaintiff wrote to the DOE school psychologist requesting that the reevaluation be rescheduled again, and noted that she would be “available any day during the week of June 19th-23rd” for a CSE meeting to develop E.J.'s 2017-18 IEP. (Dkt. 18-1 at 722, 784; Dkt. 42 ¶ 5.) Plaintiff also wrote that “If you would like to speak with me I can be reached by cell ... or by email as well.” (Dkt. 18-1 at 722, 784.)

The DOE school psychologist testified that she sent an email and a letter to Plaintiff notifying her that she would schedule a CSE meeting during the week of June 19-23 and requesting a signed consent form to reschedule E.J.'s reevaluations. (Dkt. 18-1 at 19, 176-77.) A DOE electronic event log entered into evidence at the IHO hearing and referenced in the DOE school psychologist's testimony shows an entry on May 12, 2017 consistent with the DOE school psychologist's testimony. (Dkt. 18-1 at 783.)

In another email dated May 13, 2017, Plaintiff wrote that she had not given permission for the CSE to communicate with her by email and instructed DOE to “send all communications regarding meetings and other requests in writing to my home address.” (Dkt 18-1 at 723, 781; Dkt. 42 ¶ 4.) Plaintiff noted that E.J. had “current” evaluations because they were less than three years old, and asked whether there was “some reason why the CSE is requesting new evaluations where current evaluations exist?” (Dkt. 18-1 at 723, 781.)

In a separate May 13, 2017 email, Plaintiff wrote to a different DOE employee stating that she did not consent to email communications and again “request[ed] that all communications need to be mailed.” (Dkt. 18-1 at 728.) Plaintiff again wrote that E.J.'s testing was less than three years old and therefore current and asked for clarification as to why E.J.'s existing evaluations could not be considered at the upcoming CSE meeting. (Id.) The DOE employee replied on May 15, 2017, first acknowledging Plaintiff's preference not to communicate through email, and then suggesting that Plaintiff contact the DOE school psychologist to discuss “any questions or concerns.” (Dkt. 18-1 at 727.)

In another email on May 24, 2017 to the DOE school psychologist, Plaintiff reiterated her position that E.J.'s evaluations were current and again “requested the reasons why new evaluations were needed.” (Dkt. 18-1 at 722.) The DOE school psychologist explained in a reply email that reevaluations were needed to assess whether E.J. still had an educational disability and whether she still needed special education services. (See Dkt. 18-1 at 177-79, 781-82.) In response, Plaintiff emailed the DOE school psychologist a copy of E.J.'s 2014 neuropsychological evaluation. (Dkt. 18-1 at 782.) The DOE acknowledged receipt of that email but wrote that DOE already had that 2014 evaluation and noted that her “academic skill development has likely changed since [2014].” (See Dkt. 18-1 at 177-79, 781-82.)^[4]

The parties dispute whether Plaintiff was properly notified of the exact date of the CSE meeting. The DOE school psychologist testified that she mailed Plaintiff notice of the June 20, 2017 CSE meeting. (Dkt. 42 ¶ 5; Dkt. 18-1 at 181 (testimony that “a meeting notice was mailed for 6/20”); Dkt. 18-1 at 759 (handwritten notation on CSE minute meeting that “letter mailed 5/12”).) The record includes a copy of a May 12, 2017 notice that she claims to have mailed. (Dkt. 18-1 at 756-58 (copy of June 20, 2017 notice).)^[5] It also states that the ...