M.B. et al v. New York City Department of Education
Filing
42
MEMORANDUM OPINION AND ORDER re: 41 FIRST LETTER MOTION for Conference addressed to Judge Laura Taylor Swain from Marion Walsh, Esq. dated October 23, 2015. filed by M.B. For the foregoing reasons, Plaintiff M.B.'s motion to admit additional evidence is denied. This Memorandum Opinion and Order resolves Docket Entry Numbers 29 and 41. The parties are directed to submit a proposed briefing schedule for summary judgment motion practice. The conference currently scheduled for October 29, 2015, is adjourned to a control date of January 15, 2016, at 10:00 a.m. (As further set forth in this Order), ( Status Conference set for 1/15/2016 at 10:00 AM before Judge Laura Taylor Swain.) (Signed by Judge Laura Taylor Swain on 10/27/2015) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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M.B., individually and on behalf of her child M.,
No. 14CV3455-LTS-JCF
Plaintiff,
-againstNEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
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MEMORANDUM OPINION AND ORDER
Plaintiff M.B. (“M.B.” or “Plaintiff”), individually and on behalf of her minor
daughter M., brings the instant action against the New York City Department of Education
(“DOE” or “Defendant”) pursuant to the Individuals with Disabilities Education Improvement
Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Plaintiff has alleged that the DOE failed to offer M. a
Free Appropriate Public Education (“FAPE”) for the 2013-14 school year. In the instant
motion, Plaintiff seeks permission to amend the administrative record in this case, upon which
the Court will determine the parties’ anticipated cross-motions for summary judgment, to
include letters from two doctors who have treated M., as well a “forthcoming” affidavit from a
third. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. The Court has
carefully considered the parties’ submissions. For the reasons stated below, Plaintiff’s motion
to supplement the administrative record in this case is denied.
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BACKGROUND
Plaintiff M.B. is the mother of minor student M., who is has been classified by
the DOE as a student with an “Other Health Impairment.” (Compl. ¶¶ 2, 13.) M.B. alleges that
M. has a diagnosis of spastic cerebral palsy, that her processing speed falls in the extremely low
range, her full scale IQ falls in the borderline range, she loses energy throughout the day and
she uses a wheelchair and/or a walker to help her move around on school grounds. (Id. ¶¶ 1415.)
Plaintiff asserts that, pursuant to the IDEA, the DOE – as a recipient of federal
funding – is obligated to “take affirmative steps to identify, evaluate and provide free
appropriate educational programs and services to all disabled children” such as M. (Id. ¶ 9.)
Under the IDEA, school districts must formulate Individualized Education Programs (“IEP”)
for disabled children, which must include “special education and related services designed to
meet the student’s unique needs.” (Id. ¶ 10.) A parent may challenge an IEP by initiating a
hearing before an Impartial Hearing Officer (“IHO”), at which point the IHO must determine
whether the district has offered the student a FAPE. (Id. ¶¶ 11-12.) If the IHO finds that a
student has been denied a FAPE, he or she may direct the school district to fund that student’s
tuition at an appropriately specialized school. (See id. ¶ 21.) An IHO’s decision may be
appealed to a State Review Officer (“SRO”), and a party aggrieved by an SRO’s determination
may bring an action challenging that determination in a district court. (See id. ¶¶ 5, 23; see also
20 U.S.C. § 1415(I).)
M.B., concerned about the services being provided for M., commenced an
impartial hearing process to challenge M.’s IEP on July 10, 2013. (Compl. ¶ 16.) The IHO
issued a decision on October 30, 2013, which found that M. had been denied a FAPE for the
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2013-14 school year. (Compl. ¶¶ 20-21.) In light of this finding, the IHO ordered that the DOE
fund M.’s tuition at the Henry Viscardi School, a nonpublic institution, for the remainder of the
2013-14 school year. (Id. ¶ 21.) On December 17, 2013, the DOE requested review of the
IHO’s decision, and on February 12, 2014, the SRO issued its decision on the DOE’s appeal.
(Id. ¶¶ 22-23.) The SRO found that the IHO had exceeded her authority, and reversed the
IHO’s decision that M. had been denied a FAPE. (Id. ¶¶ 24, 27.)
M.B. filed suit seeking review of the SRO’s decision on May 13, 2014. On April
8, 2015, M.B. filed the instant motion seeking to supplement the administrative record upon
which the Court will decide this case with two additional letters and an affidavit from
healthcare providers who have previously treated M., claiming that, without these documents,
the administrative record is deficient.1 (See Docket Entry Nos. 29-30.)
DISCUSSION
The IDEA provides that, in an action brought to review an SRO’s determination
of whether a student has been denied a FAPE, the district court shall: (i) receive the records of
the administrative proceedings; (ii) hear additional evidence at the request of a party; and (iii)
base its decision on the preponderance of the evidence, granting such relief as it deems
appropriate. See 20 U.S.C. § 1415(i)(2)(c); see also Eschenasy v. New York City Dept. of
Educ., 604 F. Supp. 2d 639, 646 (S.D.N.Y. 2009). “The taking of additional evidence is a mater
1
M.B. seeks to supplement the record with: (1) a letter from Dr. Vipul Kothari, M’s
pediatrician since birth (see Docket Entry No. 29-1, Affidavit of M.B. (“M.B. Aff.”),
¶¶ 12-13 & Ex. A (“Kothari Letter”); (2) a letter from Dr. Julia Holtman, a pediatric
neurologist (see M.B. Aff. ¶ 14 & Ex. B (“Holtman Letter”); and (3) an affidavit from
Dr. Ellen Godwin, a pediatric clinical specialist, which has not yet been created. (See
M.B. Aff. ¶¶ 15, 27.) On October 13, 2015, M.B. proffered an updated letter from Dr.
Godwin. (See Docket Entry No. 39.)
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. . . left to the discretion of the trial court.” See, e.g., G.B. ex rel N.B. v. Tuxedo Union Free
School District, 751 F. Supp. 2d 552, 555 n.1 (S.D.N.Y. 2010) (internal quotation marks and
citation omitted). While the Second Circuit has yet to address the standard for admitting
additional evidence in an IDEA case, courts within this district have adopted the approach
articulated by the First Circuit in Town of Burlington v. Dept. of Educ. for Mass., 736 F.2d 773
(1st Cir. 1984). See Eschenasy, 604 F. Supp. 2d at 649. In Burlington, the First Circuit held
that “the administrative record should be the main source of evidence with limited additions,”
but declined to adopt a rigid rule unduly limiting the reviewing court’s discretion. Eschenasy,
604 F. Supp. 2d at 649 (citing Burlington, 736 F.2d at 790-91). Rather, the First Circuit
adopted a rebuttable presumption prohibiting additional evidence that was not presented during
the administrative proceedings below. Id., see also Burlington, 736 F.2d at 791. In applying
this standard, a court is to “weigh heavily the important concerns of not allowing a party to
undercut the statutory role of administrative expertise, the unfairness involved in one party’s
reserving its best evidence for trial, the reason the witness did not testify at the administrative
hearing, and the conservation of judicial resources.” Burlington, 736 F.2d at 791.
“Additional” evidence has been characterized by courts within this Circuit as
“supplemental,” and therefore such evidence must be “relevant, non-cumulative, and useful.”
See Eschenasy, 604 F. Supp. 2d at 649 (internal quotation marks and citation omitted); see also
Genn v. New Haven Board of Education, No. 3:12CV00704-CSH, 2015 WL 1064766, at *3-4
(D. Conn. Mar. 11, 2015). In deciding whether to admit additional evidence, a court must “be
careful not to allow such evidence to change the character of the hearing from one of review to
a trial de novo.” Burlington, 736 F.2d at 791. Indeed, courts have recognized that a “lenient
standard for additional evidence would have the consequence of making the whole IDEA
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process more time consuming, as parties scrambled to use the federal court proceeding to patch
up holes in their administrative case.” Genn, 2015 WL 1064766, at *4 (internal quotation
marks and citations omitted). “The party seeking to supplement the record bears the burden of
establishing that the additional evidence is probative of the issues before the court, and must
also explain why the evidence was not presented at the administrative level.” Id.
Here, M.B. has failed to demonstrate the relevance of the supplemental evidence
that she seeks to have admitted, and her explanation for failing to tender it earlier – that no one
else had requested medical testimony at the hearing and M.B. thought the letters she had
submitted were sufficient2 – does not justify a belated exercise in filling perceived gaps in the
administrative record. The Kothari and Holtman Letters both recommend that, due to her
intellectual and motor impairments, M. be placed at a specialized school. (See Kothari Letter,
Holtman Letter.) As the DOE points out, however, neither of the letters indicates whether the
opinions expressed therein actually pertain to the 2013-14 school year at issue, making it
apparent “from the face of each letter that [the] proffered evidence lacks relevance and
probative value to the present case.” (See Defendant’s Memorandum of Law in Opposition to
Plaintiff’s Motion to Admit Additional Evidence, Docket Entry No. 33, at p.10; see also Kothari
Letter, Holtman Letter.) Indeed, these letters post-date both the IHO’s October 2013 decision
and the SRO’s February 2014 decision. Furthermore, neither letter includes any information
with respect to the writer’s medical qualifications, the source of the writer’s knowledge of, or
familiarity with, M., or the basis of the writer’s recommendation with respect to M.’s placement
in a specialized school. Similarly, the affidavit of Dr. Godwin has yet to be created, making it
2
In her affidavit, M.B. states that “[a]t the hearing, no one asked for the doctor’s
opinion or testimony. I submitted letters and thought that was enough.” (See M.B.
Aff. ¶ 22.)
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impossible for the Court to ascertain whether it will ultimately be of any relevance to this case.
(See M.B. Aff. ¶ 27.) The letter from Dr. Godwin that M.B. has proffered speaks as of its
August 20, 2015, date about perceived shortcomings of the public school program and argues
for different features and a different setting, asserting that the Viscardi School would be the
“best environment” for M. (See Docket Entry No. 39.)
Although M.B. argues that these documents are needed to fill alleged “gaps” in
the administrative record pertaining to M.’s medical condition, she concedes that the record
contains letters from a physical therapist who treated M., as well as a letter from Dr. Godwin.3
(See M.B. Aff. ¶¶ 15-16.) She also concedes that, at the Committee on Special Education
meetings convened to formulate an IEP for M, she “presented letters of . . . doctors for M,
confirming that she required a specialized school.” (Id. ¶ 17.) M.B. further asserts that
admitting this additional evidence would not prejudice the DOE because “the District should
have had and did possess evidence of M’s physical condition.” (See Plaintiff’s Memorandum
of Law, Docket Entry No. 30, at p.11) (emphasis supplied). Thus, even if M.B. had properly
demonstrated the relevance of the proposed supplemental evidence, it is unclear how such
evidence would not be inappropriately cumulative at this point.4
3
Dr. Godwin’s letter, dated April 23, 2013, includes information regarding M’s
physical limitations, possible emotional repercussions of M being improperly placed
in a community school, and Dr. Godwin’s opinion that it would be appropriate to
place M. in a specialized school environment. (See Administrative Record, Pl. Ex.
E-1.) M.B. has offered no explanation of how Dr. Godwin’s “forthcoming” affidavit
would not be duplicative of this letter, and the August 20, 2015, letter is not
materially different from the 2013 letter. It proffers no additional detail concerning
M.’s condition or needs in 2013.
4
Furthermore, the administrative record contains a “Psychoeducational Evaluation
Report” prepared by school psychologist Kristin Koziel, dated August 4, 2013, that
contains an in-depth assessment of M’s cognitive and academic abilities, and that
also notes her limited motor skills, physical disabilities and need for appropriate
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Furthermore, M.B. does not claim that Drs. Kothari and Holtman were
unavailable to testify at the hearing before the IHO, where they could have been crossexamined, or even that they were unable to provide these letters at an earlier date. (See
generally M.B. Aff.) Nor does she allege that the opinions of these doctors were improperly
excluded from the administrative proceedings at any time. See, e.g., Genn 2015 WL 1064766,
at *1 (noting that if the IHO had “erred in excluding evidence, supplementation of the record
with relevant evidence would be warranted.”). Although M.B. notes her belief that Dr. Godwin
was not available to testify at the hearing before the IHO (M.B. Aff. ¶ 22), she provides no
further explanation as to why Dr. Godwin was unable to appear and does not even attempt to
explain why she did not take the alternative step of proffering an affidavit from Dr. Godwin at
that time. By failing to demonstrate both the relevance of the evidence to the instant appeal and
that she was unable to tender the evidence during the administrative proceeding, M.B. has not
demonstrated a sufficient reason for supplementation of the record and has fallen short of
rebutting the presumption against admission of supplemental evidence.
support. (See Administrative Record, Def. Ex. 14.) The presence of this report in
the record thus severely undercuts M.B.’s argument that the record contains gaps
with respect to M’s medical condition.
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CONCLUSION
For the foregoing reasons, Plaintiff M.B.’s motion to admit additional evidence
is denied. This Memorandum Opinion and Order resolves Docket Entry Numbers 29 and 41.
The parties are directed to submit a proposed briefing schedule for summary
judgment motion practice. The conference currently scheduled for October 29, 2015, is
adjourned to a control date of January 15, 2016, at 10:00 a.m.
SO ORDERED.
Dated: New York, New York
October 27, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
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