Neske et al v. Banks et al
Filing
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ORDER granting 35 Motion for Summary Judgment; denying 30 Motion for Summary Judgment. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED, and Plaintiffs' motion for summary judgment is DENIED. The Clerk of Court is directed to terminate the motions at ECF Nos. 30 and 35, enter judgment consistent with this order, and close the case. SO ORDERED.. (Signed by Judge Analisa Torres on 3/26/2024) (ks) Transmission to Orders and Judgments Clerk for processing.
Id. at 175 (citing 20 U.S.C. § 1414(d)). An IEP “sets out the child’s present educational performance,
establishes annual and short-term objectives for improvements in that performance, and describes the
specially designed instruction and services that will enable the child to meet those objectives.” L.O.
v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 102–03 (2d Cir. 2016) (quoting R.E., 694 F.3d at 175). In
New York City, the DOE creates an IEP through a local committee on special education (“CSE”).
See N.Y. Educ. Law § 4402(1)(b)(1).
If a parent believes that the DOE has failed to provide their child with a FAPE, the parent may
file a due process complaint (“DPC”). M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 239 (2d Cir.
2015) (per curiam) (quoting Hardison v. Bd. of Educ., 773 F.3d 372, 376 (2d Cir. 2014)). A DPC
initiates administrative proceedings, including a hearing before an IHO. R.E., 694 F.3d at 175 (citing
N.Y. Educ. Law § 4404(1)). After an IHO has issued a decision, either party may appeal that
decision to the SRO. Id. (citing N.Y. Educ. Law § 4404(2)). After an SRO reaches a final
administrative decision, either party may seek review by bringing a civil action in state or federal
court. Id. (citing 20 U.S.C. § 1415(i)(2)(A)).
Parents who disagree with their child’s proposed IEP may unilaterally withdraw the child
from public school and place them in private school. Florence Cnty. Sch. Dist. Four v. Carter ex rel.
Carter, 510 U.S. 7, 9–10 (1993); Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359,
374–75 (1985). The parents may then “seek tuition reimbursement from the school district” through
a DPC. M.O., 793 F.3d at 239 (quoting Hardison, 773 F.3d at 376). If a district court finds that
“private placement desired by the parents was proper under [the IDEA] and that an IEP calling for
placement in a public school was inappropriate,” school authorities must retroactively reimburse the
parents for the cost of the private school’s tuition. Burlington, 471 U.S. at 370; see Carter, 510 U.S.
at 10.
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The Burlington/Carter test governs claims seeking reimbursement of tuition and certain
school-related services under the IDEA. See C.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 76 (2d Cir.
2014); see also Mendez v. Banks, 65 F.4th 56, 59 (2d Cir. 2023). Under the Burlington/Carter test, a
district court may order reimbursement if (1) the school district’s proposed plan would not provide
the child with an FAPE, (2) the parents’ alternative private placement was appropriate, and (3)
equitable considerations favor reimbursement. T.M. v. Cornwall Cent. Sch. Dist. 752 F.3d 145, 152
(2d Cir. 2014); Neske v. N.Y.C. Dep’t of Educ., No. 22-2962, 2023 WL 8888586, at *1 (2d Cir. Dec.
26, 2023) (summary order). “DOE bears the burden of establishing the initial prong, while the
student’s parents bear the burden on the second and third prongs.” Zayas v. Banks, No. 22 Civ. 7112,
2024 WL 216761, at *5 (S.D.N.Y. Jan. 19, 2024) (citing R.E., 694 F.3d at 184–85). “If the
challenged IEP was adequate, the state has satisfied its obligations under the IDEA” and the inquiry
ends. M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000). Only if the Court finds a
challenged IEP “inadequate should it proceed to the second question.” Id.
II.
Factual Background1
A.N., who turned twelve years old during the 2021-22 school year, has a traumatic brain
injury. Pl. 56.1 ¶¶ 2–3, ECF No. 37. A.N. has been diagnosed with quadriplegic cerebral palsy with
dystonia caused by bilateral brain bleed grade III with periventricular leukomalacia, infantile spasms,
seizure disorder, and gastroesophageal reflux disease. Id. ¶ 4. A.N. is “non-ambulatory and nonverbal and has highly intensive management needs.” Id. ¶ 5. A.N. has “severe global impairments
that adversely affect his fine and gross motor skills, cognition, memory, attention, reasoning, abstract
The facts in this section are taken from the parties’ Rule 56.1 statements, responses, and declarations, unless otherwise
noted. Disputed facts are so noted. Citations to a paragraph in a Rule 56.1 statement also include the opposing party’s
response. The Rule 56.1 statements cite to the certified administrative record filed at ECF No. 22.
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thinking, information processing, speech and language, and daily living skills, which in turn
adversely affect his educational abilities.” Id. ¶ 8.
After a March 9, 2021 CSE meeting, an IEP for A.N. was developed for the 2021-22 school
year. Id. ¶¶ 12–13. DOE designated A.N. to attend P.S. 37. Def. 56.1 ¶ 4, ECF No. 41. On June 23,
2021, Plaintiffs notified DOE that they intended to “unilaterally place [A.N.] at iBrain.”2 Id. ¶ 5.
On July 7, 2021, Plaintiffs filed a DPC, alleging that DOE failed to provide A.N. with an
FAPE. Pl. 56.1 ¶ 14. Specifically, Plaintiffs argued that the IEP (1) lacked music therapy, (2) failed
to provide individual parent counseling, (3) did not include an extended school day, (4) did not
provide assistive technology, and (5) included a proposed school location that was not safe or
appropriate for A.N. Id. ¶¶ 15–17; Def. 56.1 ¶ 7.
Following a hearing, the IHO issued a findings of fact and decision on January 23, 2022 (the
“IHO Order”). Pl. 56.1 ¶ 20. The IHO found that the DOE had provided A.N. with an FAPE for the
2021-22 school year under Burlington/Carter prong one. Id. ¶ 21(e). The IHO continued her
analysis and found that the parents had met their burdens on Burlington/Carter prongs two and three.
Id. ¶ 21(f), (g). Finally, in an exercise of discretion, the IHO ordered DOE to reimburse Plaintiffs for
the cost of A.N.’s assistive technology device. Id. ¶ 21(h). Both Plaintiffs and Defendants appealed
to the Office of State Review. Id. ¶ 22.
By order dated April 15, 2022 (the “SRO Order”), the SRO affirmed the IHO’s determination
that DOE had offered A.N. an FAPE for the 2021-22 school year. Def. 56.1 ¶ 9. The SRO reversed
the IHO Order only as to reimbursement for the assistive technology device, stating that this was
“inappropriate . . . where the parents had already engaged in self-help . . . [and] reject[ed] the
district’s proposed March 2021 IEP.” Pl. 56.1 ¶ 28.
iBrain is a private school located in Manhattan that operates under the full name “the International Institute for the
Brain.” Neske., 824 F. App’x at 81.
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On August 15, 2022, Plaintiffs commenced this action, seeking reimbursement of iBrain’s
tuition for the 2021-22 school year and for the assistive technology device they purchased. Compl. at
15–16, ECF No. 1.
LEGAL STANDARD
Although the parties have filed motions for summary judgment, the “procedure is in substance
an appeal from an administrative determination, not a summary judgment [motion].” M.H. v. N.Y.C.
Dep’t of Educ., 685 F.3d 217, 226 (2d Cir. 2012) (quoting Lillbask ex rel. Mauclaire v. Conn. Dep’t
of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)) (alteration in original). In an IDEA case, a motion for
summary judgment “serves as a pragmatic procedural mechanism for reviewing a state’s compliance”
with the IDEA. Id. at 225–26 (quoting Lillbask, 397 F.3d at 83 n.3). The Court “must base its
decision on the preponderance of the evidence.” R.E., 694 F.3d at 184.
Still, the Court “must give ‘due weight’ to [administrative] proceedings, mindful that the
judiciary generally ‘lacks the specialized knowledge and experience necessary to resolve persistent
and difficult questions of educational policy.’” M.H., 685 F.3d at 240 (quoting Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, 113 (2d Cir. 2007)). “[C]ourts may not ‘substitute their
own notions of sound educational policy for those of the school authorities which they review.’” T.Y.
v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 417 (2d Cir. 2009) (quoting Bd. of Educ. v. Rowley, 458 U.S.
176, 206 (1982)). Therefore, “the role of federal courts in reviewing state educational decisions
under the IDEA is ‘circumscribed.’” M.H., 685 F.3d at 240 (quoting Gagliardo, 489 F.3d at 112).
“[W]here the SRO and IHO agree, deference to the conclusions of the administrators on this
issue is particularly appropriate.” S.K. v. City Sch. Dist. of City of N.Y., No. 17 Civ. 6043, 2020 WL
1244473, at *11 (S.D.N.Y. Mar. 13, 2020) (citation omitted). Where the IHO and SRO reach
conflicting conclusions, “reviewing courts . . . must defer to the reasoned conclusions of the SRO as
the final state administrative determination.” M.H., 685 F.3d at 246. The degree of deference
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depends on both the quality of the decisions and the nature of issue at hand. See C.F, 746 F.3d at 77.
“Deference is particularly appropriate when the state officer’s review ‘has been thorough and
careful.’” R.E., 694 F.3d at 184 (citation omitted). Greater “deference is also appropriate when
reviewing the SRO’s determination of the substantive adequacy of an IEP and appropriate
educational methodologies [rather] than on determinations about the propriety of the procedures by
which an IEP was developed.” Thomason v. Porter, No. 21 Civ. 6713, 2023 WL 1966207, at *7
(S.D.N.Y. Feb. 13, 2023). However, a court need not defer to administrative decisions on matters of
law. See Lillbask, 397 F.3d at 82.
DISCUSSION
Plaintiffs contend that the SRO Order erred in determining that the DOE could provide A.N.
with an FAPE under Burlington/Carter prong one. Specifically, Plaintiffs contend that the proposed
IEP was substantively inadequate because it (1) omitted music therapy, (2) did not include an
extended school day, and (3) proposed placing A.N. in classes at P.S. 37 that were inappropriate. Pl.
Mem. at 9–22, ECF No. 31.
As a preliminary matter, the Court must determine the level of deference owed to the
administrative decisions. The SRO here issued a twenty-six-page, single-spaced decision in which he
reviewed the IHO Order, cited various appropriate facts in the record, and reasonably applied the law.
Certified Administrative Record (“C.A.R.”) at 6–32, ECF No. 22;3 see Zayas, 2024 WL 216761, at
*6 (“Deference is particularly appropriate when, as here, the SRO’s review has been thorough and
careful.” (cleaned up)). Moreover, the IHO and SRO Orders agree that the DOE has met its burden
on the first prong, and their “unanimity makes deference ‘particularly apt.’” Rivas v. Banks, No. 22
Civ. 10007, 2023 WL 8188069, at *7 (S.D.N.Y. Nov. 27, 2023) (citation omitted). And, Plaintiffs
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The C.A.R. was filed under seal at ECF No. 22. Pages 1 to 219 of the C.A.R. are available at ECF No. 22; pages 220 to
867 are available at ECF No. 22-1; and pages 868 to 1009 are available at ECF No. 22-2. Throughout this order, the
Court refers to the page numbers at the bottom of the C.A.R. and does not specify the particular docket entry.
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challenge “the sufficiency of goals and strategies in an IEP,” which is “precisely the type of issue
upon which the IDEA requires deference to the expertise of the administrative officers.” L.O., 822
F.3d at 118 (cleaned up). Accordingly, both the IHO and the SRO are owed substantial deference as
to each of the conclusions that Plaintiffs challenge.
First, Plaintiffs contend that the IEP was inadequate because it did not recommend music
therapy as an essential related service for A.N. Music therapy, according to the testimony of iBrain’s
director of special education services, helps students with cerebral palsy to move and is “really
motivating,” particularly for students who have “a harder time trying to process and understand
language.” Pl. Opp. at 2, ECF No. 40; see C.A.R. at 336–38.
But, the SRO’s view that music therapy was not necessary to offer A.N. an FAPE is entitled
to considerable deference. See Rivas, 2023 WL 8188069, at *7; Zayas, 2024 WL 216761, at 10–11.
And, the record does not undermine the SRO’s conclusion. The DOE’s school psychologist testified
that other related services, including occupational therapy, permitted the IEP to incorporate the
benefits of music therapy, which “were to help strengthen the student’s upper extremities, [] to
improve his expressive language, and to help him with interpersonal interactions.” C.A.R. at 468–69.
And, the IEP noted that A.N. became “extremely happy and excited in the presence of live music”
and sometimes “need[ed] extra live musical support.” Id. at 721–22. The school psychologist
testified that music “was incorporated into his management needs,” as well as the curriculum. Id. at
468; id. at 729; see N.K. v. N.Y.C. Dep’t of Educ., 961 F. Supp. 2d 577, 592–93 (S.D.N.Y. 2013)
(holding that “music therapy is not necessary to provide” an FAPE, when the IEP “does recommend
that [the student] have access to music throughout the day” (cleaned up)). Ultimately, the IDEA
“does not require a school district to furnish every special service required necessary to maximize
each handicapped child’s potential.” D.B. v. Ithaca City Sch. Dist., 690 F. App’x 778, 783 (2d Cir.
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2017) (quotation marks and citation omitted). Accordingly, the Court rejects Plaintiffs’ contention
that the omission of music therapy deprived A.N. of an FAPE.
Second, Plaintiffs argue that, because the IEP included seventeen hours of related services per
week and required thirty-five periods of special education, Defendants could not implement the IEP
without an extended school day, which the IEP did not include. “[C]hallenges to a school district’s
proposed placement school must be evaluated prospectively (i.e., at the time of the parents’
placement decision) and cannot be based on mere speculation.” M.O., 793 F.3d at 244 (internal
quotation marks and citation omitted). “While it is speculative to conclude that a school with the
capacity to implement a given student’s IEP will simply fail to adhere to that plan’s mandates, . . . it
is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the
services required by the IEP.” Id.
The SRO determined that Plaintiffs’ challenge was impermissibly speculative. C.A.R. at 24–
25. The Court agrees. The IEP recommended that the majority of A.N.’s related services be
conducted on a “push-in” basis: in other words, rather than pulling the child out of the classroom, the
services would be provided in the classroom. See id. at 723 (“The CSE Team recognizes that the
majority of the related service sessions should be push-in so that [A.N.] can work towards his
academic goals. However, when new skills are introduced or if a session mandates a separate
location, pull-out services are recommended.”). In their memorandum of law, Plaintiffs concede that
it was mathematically possible for DOE to implement the IEP—without an extended school day—
with most of the services delivered on such a “push-in” basis. Pl. Mem. at 13–14. Plaintiffs’
argument, then, amounts to speculation that the school would “simply fail to adhere to that [IEP]’s
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mandates,” which is not a permissible basis to challenge an IEP. M.O., 793 F.3d at 244.4
Third, Plaintiffs argue that P.S. 37 would have grouped A.N. with students that would not
have been appropriate for his development, specifically pointing to P.S. 37’s enrollment of children
on the autism spectrum. “[T]he IDEA does not provide a parent with veto power over a student’s
classroom or classmates . . . or prohibit the grouping of students with autism with students with
intellectual disabilities.” M.S. v. N.Y.C. Dep’t of Educ., 2 F. Supp. 3d 311, 332 n.10 (E.D.N.Y. 2013)
(citation omitted). Plaintiffs point to the testimony of iBrain’s director of special education, who said
that children at the “more severe end of the [autism] spectrum typically don’t have a strong interest in
peers and peer interactions” and could “throw things or hit people.” C.A.R. at 351–52. But, even
these broad assertions do not foreclose the possibility that A.N. could be placed with other children—
including children with autism—who have similar needs and do not pose any physical risk to him.
Moreover, the SRO found that, because A.N. never attended the school and was not assigned a class,
Plaintiffs’ concerns about grouping were “entirely speculative.” C.A.R. at 28. The Court agrees,
and such a speculative challenge is “not an appropriate basis for unilateral placement.” R.E., 694
F.3d at 195.
Accordingly, the Court shall not disturb the SRO and IHO’s determinations that DOE’s
proposed plan would have provided A.N. with an FAPE, and DOE has met its burden at
Burlington/Carter prong one. The Court need not proceed to the other prongs of the test. See J.M. v.
N.Y.C. Dep’t of Educ., 171 F. Supp. 3d 236, 253 (S.D.N.Y. 2016).
Plaintiffs also seek reimbursement for the assistive technology device that they purchased; the
IHO ordered such reimbursement, and the SRO reversed. The SRO Order is correct. Reimbursement
Plaintiffs indicate that the provision of “push-in” services at such a degree could hinder A.N.’s education and fault DOE
for not providing more specific numbers about how often related services would be provided on a “push-in” basis. Pl.
Mem. at 13–14. But, the SRO found reasonable the CSE’s determination not “to lock the provider into a set push-in, pullout schedule.” C.A.R. at 24–25. And, on such issues of educational methodologies, deference is particularly appropriate.
Thomason, 2023 WL 1966207, at *7.
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for related services is analyzed together with the parents’ entitlement to tuition reimbursement. See
Mendez, 65 F.4th at 59. Because the Court has found that the IEP would have provided A.N. with an
FAPE, Plaintiffs do not have a right to reimbursement pursuant to Burlington/Carter.5 See Dervishi
v. Stamford Bd. of Educ., No. 21 Civ. 1184, 2023 WL 2712610, at *15 (D. Conn. Mar. 30, 2023)
(holding that plaintiff’s “unilateral placement” precludes reimbursement for assistive technology
where plaintiff did not demonstrate an FAPE denial).6
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED, and
Plaintiffs’ motion for summary judgment is DENIED. The Clerk of Court is directed to terminate the
motions at ECF Nos. 30 and 35, enter judgment consistent with this order, and close the case.
SO ORDERED.
Dated: March 26, 2024
New York, New York
Plaintiffs do not argue that A.N.’s IEP omitted an assistive technology device and was, therefore, insufficient. Indeed,
A.N.’s IEP included an assistive technology device, but Plaintiffs rejected the IEP. See Pl. 56.1 ¶ 13; C.A.R. at 747.
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Plaintiffs contend that “transportation and nursing services are routinely reimbursed whether or not the [] student is
placed in private or public programming.” Pl. Opp. at 15. Plaintiffs provide no support for this contention. To the extent
that transportation services are reimbursed despite a unilateral placement, this generally is because the IDEA’s pendency
obligation requires such reimbursement. E.g., Donohue v. Banks, No. 22 Civ. 8998, 2023 WL 6386014, at *8–9
(S.D.N.Y. Sept. 30, 2023); accord Mendez, 65 F.4th at 59. Plaintiffs do not bring any claim based on pendency in this
action. See Compl. ¶¶ 103–18.
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