Khanimova et al v. Banks et al

Filing 21

OPINION AND ORDER re: 14 MOTION for Summary Judgment filed by Svetlana Khanimova, 17 CROSS MOTION for Summary Judgment filed by David C. Banks, New York City Department of Education. For the foregoing reasons, Plaintif f's motion for summary judgment is DENIED and Defendants' cross-motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motions at ECF Numbers 14 and 17, enter judgment in favor of Defendants, and close this case. SO ORDERED. (Signed by Judge J. Paul Oetken on 5/9/2024) (vfr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SVETLANA KHANIMOVA,
individually and as parent and natural
guardian of Y.N.,
Plaintiff,

23-CV-4124 (JPO)
OPINION AND ORDER

-vDAVID C. BANKS, in his official
capacity as Chancellor of the New York
City Department of Education, et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Svetlana Khanimova, both individually and as the parent and natural guardian of
minor Y.N., brings this action against the New York City Department of Education (“the
Department”) and David Banks, in his official capacity as Chancellor of the Department,
pursuant to the Individuals with Disabilities Education Act (“the IDEA”), 20 U.S.C. § 1400 et
seq., and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq.
Khanimova seeks reversal of an administrative decision of a State Review Officer (“SRO”)
denying funding for one-on-one nursing services and nursing transportation for her minor
daughter, Y.N.
Before the Court are the parties’ cross-motions for summary judgment. For the reasons
that follow, the Court denies Khanimova’s motion for summary judgment and grants
Defendants’ cross-motion for summary judgment.

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I.

Background
A.

Legal Background

Congress enacted the IDEA “to ensure that all children with disabilities have available to
them a free appropriate public education” and “to ensure that the rights of children with
disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(A)-(B). States
that provide a free appropriate public education (“FAPE”) to all children who have disabilities
are eligible for federal funding under the IDEA. See id. § 1412(a)(1)(A); Cerra v. Pawling Cent.
Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). Because New York receives federal funds under
the IDEA, it must comply with the IDEA’s requirements. Walczak v. Fla. Union Free Sch. Dist.,
142 F.3d 119, 123 (2d Cir. 1998).
The IDEA requires that a state provide each disabled child with an individualized
education program (“IEP”). See 20 U.S.C. § 1414(d)(1)(A). The IEP is “[t]he ‘centerpiece’ of
the IDEA’s education delivery system.” Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297
F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). The IEP is “a
written statement that ‘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.’” D.D. ex
rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig, 484 U.S. at
311). New York law requires local Committees on Special Education (“CSEs”) to develop IEPs
for disabled children. N.Y. Educ. Law § 4402(1)(b)(1); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d
167, 175 (2d Cir. 2012).
A parent who believes that his or her disabled child has been denied a FAPE under the
IDEA may unilaterally place that child in a private school and then seek reimbursement from the
school district. 20 U.S.C. § 1412(a)(10)(C)(ii); Hardison v. Bd. of Educ., 773 F.3d 372, 376 (2d
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Cir. 2014). To determine whether a parent is entitled to reimbursement, a court applies the threepronged Burlington/Carter test, “which looks to (1) whether the school district’s proposed plan
will provide the child with a free appropriate public education; (2) whether the parents’ private
placement is appropriate to the child’s needs; and (3) a consideration of the equities.” C.F. ex
rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 73 (2d Cir. 2014). To receive reimbursement, the
parent must file a due process complaint challenging the appropriateness of the school district’s
recommendation. A hearing on this complaint is held before an impartial hearing officer
(“IHO”). N.Y. Educ. Law § 4404(1). The IHO’s decision may be appealed to a state review
officer, see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2), and the decision of the SRO may be
challenged in state or federal court, 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3)(a).
B.

Factual Background and Procedural History

Plaintiff Khanimova is the parent and guardian of student Y.N., who suffers from a brain
injury that causes severe impairments in her cognition, language, vision, memory, and speech.
(ECF No. 16-1 at 12.) Y.N. is non-verbal and non-ambulatory, has profound hearing loss, and is
legally blind. (Id.) She has also been diagnosed with infantile spasm seizure disorder and
cerebral palsy. (Id. at 12-13.)
In January 2022, Y.N. began attending the International Institute for the Brain (“iBrain”).
A CSE convened to develop Y.N.’s IEP for the 2022-23 school year and determined that Y.N.
was eligible for special education as a student with multiple disabilities, and the CSE
recommended placement in a state-approved nonpublic school day program. (Id. at 13.) In June
2022, Khanimova informed the district that she was rejecting the CSE’s recommended program
and that Y.N. would be enrolled at iBrain for the 2022-23 school year. (Id.)

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On July 6, 2022, Khanimova alleged in a due process complaint notice that the district
failed to offer Y.N. a FAPE for the 2022-23 school year. (Id.) Khanimova and the district
proceeded to a hearing before an IHO. (Id. at 14.) On October 20, 2022, the IHO concluded in
his Findings of Fact and Decision that the district had failed to offer Y.N. a FAPE for the 202223 school year, that iBrain was an appropriate unilateral placement for Y.N., and that equitable
considerations weighed in favor of Khanimova’s request for tuition reimbursement and the
provision of transportation to and from the school. (Id.; see also id. at 22-23, 28-29.) The IHO
then ordered the district to fund the “Student’s placement at the Private School for the 2022-2023
school year in the amount of $279,596.80,” and to fund “Student’s special transportation” as set
forth in a specific agreement. (Id. at 29.)
Khanimova appealed the IHO’s decision to the SRO to the extent that it denied public
funding for one-on-one nursing services for Y.N. (ECF No. 16-1 at 11.) The SRO concluded
that Khanimova’s request for review was untimely. A request for review of an IHO’s decision
must be personally served within forty days of the date of the IHO’s decision, meaning
Khanimova’s request for review had to be served by November 29, 2022. See 8 N.Y.C.R.R.
§ 279.4(a). But Khanimova served the request on the district on December 2, 2022, three days
after that forty-day period expired. (ECF No. 16-1 at 15.) The SRO therefore dismissed
Khanimova’s appeal as untimely. (Id. at 16.)
On May 17, 2023, Khanimova filed this action challenging the SRO decision and seeking
an award of one-on-one nursing services for Y.N.
II.

Legal Standard
“IDEA actions generally are resolved on summary judgment.” J.W. v. N.Y.C. Dep’t of

Educ., 95 F. Supp. 3d 592, 600 (S.D.N.Y. 2015) (internal quotation marks and citation omitted).
Unlike typical summary judgment motions, however, in an IDEA action, “the procedure is in
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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) (internal quotation marks and
citation omitted). The inquiry focuses on “whether the administrative record, together with any
additional evidence, establishes that there has been compliance with the IDEA’s processes and
that the child’s educational needs have been appropriately addressed.” D.C. ex rel. E.B. v.
N.Y.C. Dep’t of Educ., 950 F. Supp. 2d 494, 498 n.1 (S.D.N.Y. 2013) (internal quotation marks
and citation omitted).
“While the district court must base its decision on the preponderance of the evidence, it
must give due weight to the administrative proceedings, mindful that the judiciary generally
lacks the specialized knowledge and experience necessary to resolve persistent and difficult
questions of educational policy.” M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 243 (2d Cir.
2015) (internal quotation marks and citation omitted). The “‘due weight’ [that courts] ordinarily
must give to the state administrative proceedings,” however, “is not implicated with respect
to . . . issue[s] of law.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997).
III.

Discussion
The Court declines to disturb the SRO’s determination that Khanimova’s appeal from the

IHO’s decision was untimely, and as a result, the Court cannot grant Khanimova the relief she
seeks. “To initiate an appeal from the IHO’s decision to the SRO, state regulations require the
petitioning party to effectuate timely personal service of a verified petition upon the respondent.”
B.C. ex rel. B.M. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 360 (S.D.N.Y. 2013).
Specifically, state regulations require a party seeking review to “personally serve a notice of
request for review and a request for review upon the opposing party (respondent) within 40 days
after the date of the decision of the impartial hearing officer sought to be reviewed.” 8
N.Y.C.R.R. § 279.4(a). “If a petitioner fails to timely initiate an appeal to the SRO, the reasons
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for failure to timely seek review must be set forth in the petition, and ‘[t]he SRO, in his or her
sole discretion, may excuse a failure to timely serve or file a petition for review . . . for good
cause shown.’” B.C., 971 F. Supp. 2d at 361 (quoting 8 N.Y.C.R.R. § 279.13).
“A plaintiff’s failure to exhaust administrative remedies under the IDEA ‘deprives the
Court of subject matter jurisdiction.’” Id. at 364 (quoting Cave v. E. Meadow Union Free Sch.
Dist., 514 F.3d 240, 245 (2d Cir. 2008)). “Courts in this Circuit have held that—absent good
cause shown—a party who fails to make a timely appeal to the SRO, or fails to timely serve the
respondent, has failed to satisfy the exhaustion requirement.” Id. at 365 (collecting cases). Thus,
there is a “line of precedent in this Circuit holding that a plaintiff’s procedural errors, such as
failure to timely serve or file a petition for SRO review, will be deemed a failure to exhaust
administrative remedies.” Id. (citing R.S. v. Bedford Cent. Sch. Dist., 899 F. Supp. 2d 285, 291
(S.D.N.Y. 2012)).
Here, Khanimova failed to serve the request for review within the required forty-day
period. The IHO’s decision was rendered on October 20, 2022 (ECF No. 16-1 at 29), and as a
result, the deadline to file any appeal was November 29, 2022. But Khanimova served her
request for review on December 2, 2022, three days after the forty-day window expired. (Id. at
15.) “Therefore, absent some exception, [Plaintiff] has failed to exhaust her administrative
challenge” to the IHO’s decision, which “ordinarily deprive[s] federal courts of subject matter
jurisdiction over [Plaintiff’s] IDEA claims.” Avaras v. Clarkstown Cent. Sch. Dist., No. 18-CV6964, 2019 WL 4600870, at *10, 13 (S.D.N.Y. Sept. 21, 2019).
Still, “applicable New York administrative law allows for an SRO’s decision to be
overturned if ‘made in violation of lawful procedure[,] affected by an error of law[,] arbitrary
and capricious[,] or an abuse of discretion.” R.S., 899 F. Supp. 2d at 290 (quoting N.Y. C.P.L.R.

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§ 7803(3)); see also Avaras, 2019 WL 4600870, at *10 (“If an SRO dismisses a petition for
review as untimely, courts will uphold the decision unless that decision was ‘arbitrary and
capricious.’”) “When determining whether a SRO’s decision was ‘arbitrary and capricious,’
courts must determine whether the decision ‘was based on [] consideration of [] relevant factors
and whether there has been a clear error of judgment.” Avaras, 2019 WL 4600870, at *11
(quoting State of N.Y. Dep’t of Soc. Servs. v. Shalala, 21 F.3d 485, 492 (2d Cir. 1994)).
Khanimova contends that the SRO’s decision was arbitrary and capricious because it
failed to account for the fact that Defendants waited until November 30, 2022, one day after the
forty-day timeframe to file an appeal expired, to inform Khanimova that they would not be
funding Y.N.’s one-on-one nurse or transportation nurse. (ECF No. 15 at 11-12, 14-15.) Absent
that notification, Khanimova maintains, a “fair reading” of the IHO’s decision suggested that
one-on-one nursing services and a transportation nurse would be reimbursed. (Id. at 14.)
The SRO gave persuasive reasoning for rejecting Khanimova’s argument. As an initial
matter, Khanimova gives little to no detail about the communication she allegedly received on
November 30, 2022. Regardless, the IHO’s decision itself put Khanimova on notice that the
district was declining to fund the student’s one-on-one nursing services, as the decision stated
that it was ordering the reimbursement for a specific amount for base tuition and for special
transportation, neither of which includes the one-on-one nursing services Khanimova seeks.
Indeed, the enrollment contract between iBrain and Khanimova states that base tuition is
$175,000 and that supplemental tuition is $104,596.80, which sum to $279,596.80, the amount
that the IHO awarded Khanimova for enrollment at iBrain. (ECF No. 16-8 at 18-19.) And even
Khanimova’s own counsel clarified at the hearing in front of the IHO that “the one-to-one nurse
is not” “included in the tuition” for iBrain. (ECF No. 16-12 at 67.) Nor could Khanimova have

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understood the award of “special transportation” to include one-on-one nursing services, as the
IHO order itself discusses the special transportation as simply covering transportation to and
from Y.N.’s home and the school pursuant to a specific agreement. (ECF No. 16-1 at 28.)
Moreover, Khanimova makes no such argument that she understood the “special transportation”
category to include one-on-one nursing services.
Khanimova also suggests that because the IHO discussed Y.N.’s one-on-one nursing
services at iBrain and assistance from a nurse for transportation in his decision, the most natural
reading of that decision covered funding for such services. (ECF No. 15 at 14-15.) But the
IHO’s discussion of those services was in the portion in which the IHO descriptively recounted
the evidence presented by the parties (ECF No. 16-1 at 25), and the IHO’s listing of reimbursable
costs at the end of his decision is the relevant portion of his decision (id. at 29).
As a result, Khanimova was given sufficient notice that the amount the IHO awarded did
not include one-on-one nursing services, and Khanimova has not shown that the SRO’s decision
dismissing her appeal as untimely was arbitrary or capricious. “Because [the] SRO . . . has
addressed Plaintiff’s good-cause arguments and proffered his reasoning for rejecting it, this
Court is unfortunately not in a position to overturn his determination,” despite the possibly “de
minimis nature of the delay.” See Avaras, 2019 WL 4600870, at *11 (“[T]he arbitrary and
capricious standard mandates considerable deference to SROs”.). The Court therefore does not
have subject-matter jurisdiction due to Khanimova’s failure to file a timely appeal. Accordingly,
the Court grants Defendants’ cross-motion for summary judgment and declines to reach the
merits of Khanimova’s appeal.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion for summary judgment is DENIED and

Defendants’ cross-motion for summary judgment is GRANTED.
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The Clerk of Court is directed to close the motions at ECF Numbers 14 and 17, enter
judgment in favor of Defendants, and close this case.
SO ORDERED.
Dated: May 9, 2024
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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