Moonsammy et al v. Banks et al

Filing 31

OPINION & ORDER re: 20 MOTION for Summary Judgment . filed by Kemraj Moonsammy, Cindy Moonsammy, 24 CROSS MOTION for Summary Judgment and in opposition to Plaintiffs' Motion for Summary Judgment. filed by David C. Ba nks, The New York City Department of Education. For the foregoing reasons, the Court enters summary judgment in favor of the Moonsammys on their claim that the SRO erroneously denied them an IEE at public expense. The Court denies summary judgme nt to both parties on the Moonsammys' claims for direct payment and one-to-one nursing services. The Court remands these matters to the SRO for clarification and further development of the record and for supplementation of his order on these p oints, consistent with the discussion herein. The Court encourages the SRO to complete this process within two months. The Court directs that counsel, upon issuance of a supplemented order by the SRO, forthwith file such order on the docket of this case. The Clerk of Court is respectfully directed to terminate the motions pending at Dockets 20 and 24. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 9/23/2024) (vfr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CINDY MOONSAMMY, et al.,
-v-

Plaintiffs,

23 Civ. 10491 (PAE)
OPINION & ORDER

DAVID C. BANKS, et al.,
Defendants.
PAUL A. ENGELMA YER, District Judge:

Plaintiffs Cindy and Kemraj Moonsammy (the "Moonsammys"), individually and on
behalf of their minor daughter, A.M., bring this action against the New York City Department of
Education and its Chancellor, David C. Banks (together, the "Department"), pursuant to the
Individuals with Disabilities Education Act ("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. A.M., who was age six
when the complaint was filed, has various neurological and physical disabilities, including
cerebral palsy, severe visual impairment, and a form of epilepsy known as Lennox-Gastaut
Syndrome.
In 2022, after concluding that the individualized education program ("IEP") developed
for A.M. by the Department was inadequate, the Moonsammys unilaterally enrolled A.M. in a
private school, the International Institute for the Brain ("iBrain"). 1 Their initial enrollment

1

Although this fact is immaterial to this decision, the Court notes-as the Second Circuit and
other judges in this District have noted in like cases-that this case, on behalf of a student with
disabilities, was brought by the Brain Injury Rights Group, Ltd. ("BIRG"). BIRG's founder also
founded iBrain and has brought numerous cases on behalf of students seeking public funding
from the Department for iBrain tuition and related services. See, e.g., de Paulino v. N. Y. C. Dep 't
ofEduc., 959 F.3d 519, 528-29 (2d Cir. 2020) (noting "unusual set of facts" in cases brought by
BIRG on behalf of students at iBrain); de Paulino v. N. Y. C. Dep 't ofEduc., No. 22 Civ. 1865,
2023 WL 1433665, at *1 n.1 (S.D.N.Y. Feb. 1, 2023) (same); Ferreira v. N. Y.C. Dep 't ofEduc.,

contract with iBrain was keyed to the parents' seeking "public funding," including by litigating
against the Department, and materially suspended "tuition payment obligations" "until a final
determination/decision is issued by an administrative judge, agency, or appellate court." Dkt. 16
at 348-49 ("administrative record" or "AR"). Around the same time, the Moonsammys entered
into a contract with Sisters Travel and Transportation Services, LLC ("Sisters"), a specialized
transportation service, for A.M. 's transportation to and from iBrain. It, too, suspended payment
obligations "until an administrative or judicial decision is made." Id. at 340. The Moonsammys
thereafter filed a series of lawsuits in this Court, seeking orders directing the Department to make
payments directly -and "immediately"-to iBrain and Sisters. 2
In this action, the Moonsammys seek review of a portion of a July 31, 2023
administrative decision of a State Review Officer ("SRO"). 3 Reversing in part the determination
of an Impartial Hearing Officer ("IHO"), the SRO found that the Department had failed to
furnish a free appropriate public education ("FAPE") to A.M. for the 2020-21, 2021-22, and
2022-23 school years; that iBrain was an appropriate unilateral placement; and that the

Nos. 19 Civ. 2937, 2020 WL 1158532, at *2 n.1 (S.D.N.Y. Mar. 6, 2020) (describing
circumstances giving rise to certain cases brought by BIRG as "curious," although "ultimately
irrelevant" to court's decision).
Moonsammy et al. v. Banks et al., 24 Civ. 2616 (PAE), Dkt. 24 at 15; see also, e.g., 24 Civ.
2616 (PAE), Dkt. 45 at 5-6 (seeking immediate payment of$475,930 to iBrain and Sisters, for
tuition and transportation, respectively, for 2023-24 school year); 24 Civ. 2616 (PAE), Dkt. 45
at 6 (seeking immediate payment of $540,210 to iBrain and Sisters for tuition and transportation,
respectively, for the 2024-25 school year); 24 Civ. 2616 (PAE), Dkt. 19 at 14 (requesting a
preliminary injunction requiring Department to make "immediate" payment); Moonsammy et al.
v. Banks eta/., 24 Civ. 5151 (PAE), Dkt. 7, at 4 (requesting "an order requiring the DOE to fund
A.M.'s program/placement at iBRAIN"); 24 Civ. 5151 (PAE), Dkt. 25, at 9 (seeking "immediate
judicial intervention"); Moonsammy et al. v. Banks et al., 24 Civ. 6483 (PAE), Dkt. 5, at 4
(seeking "funding as direct payment to iBRAIN and to [Sisters]").
2

3

The Department did not cross-appeal.
2

Moonsammys were entitled to public funding for A.M. 's private school enrollment. Those
findings are not at issue here. The Moonsammys, instead, contend that the SRO en-ed in the
remedy he set for the denial of a F APE and in denying their request for a publicly funded
independent educational evaluation ("IEE") for A.M. Specifically, the Moonsammys challenge
the SRO's decisions (1) awarding reimbursement to the parents, rather than ordering the
Department to directly pay iBrain and Sisters for, respectively, the costs of A.M. 's tuition and
transportation services, upon proof of A.M.' s attendance at iBrain; (2) declining to make part of
the reimbursement award funding for one-to-one nursing services at iBrain; and (3) denying their
request for an IEE at public expense. The parties have cross-moved for summary judgment.
For the reasons that follow, the Court agrees with the Moonsammys that the SRO en-ed in
denying their request for a publicly funded IEE and grants summary judgment to them on their
IEE claim. The Court, however, denies summary judgment to both parties on the Moonsammys'
claims for direct payment and one-to-one nursing services. The Court instead remands these
matters to the SRO. On the direct payment issue, the SRO is to consider the equities relevant to
the choice between ( 1) an order requiring the Department to directly pay iBrain and Sisters for,
respectively, tuition and transportation services and (2) an order requiring the Department to
reimburse the Moonsammys for their expenditures for such services, and to explain which option
the equities, including the Moonsammys' financial circumstances, favor. On the nursing
services issue, the SRO is to consider whether, under his order dated July 31, 2023, the
Department has an obligation to fund one-to-one school nursing services for A.M. and the scope
of any such obligation.

3

I.

Background
A. Facts 4
1. A.M.'s Background

A.M. is a "child with a disability" under the IDEA. 20 U.S.C. § 1401(3)(A)(i) (listing
covered disabilities). Her neurological and physical disabilities include cerebral palsy, severe
visual impairment, and a form of epilepsy known as Lennox-Gastaut Syndrome, which causes
seizures three to four times a day. AR 20, 37. A.M. is non-ambulatory and non-verbal. Id. at
37. She requires one-to-one assistance to participate in classroom activity and to attend to her
basic needs. Id.

2. A.M.'s Relevant Educational History
A.M. was scheduled to start kindergarten in 2022, for what was to be her first year in
school. See id. at 626-28. Her parents had declined to send her to preschool due to the COVID19 pandemic and their concerns about the ability oflocal schools to address A.M.'s complex
needs, made more acute by hip surgery and a four-month hospital stay in late 2021. See id. at
788.
In August 2021, A.M.'s Committee on Special Education ("CSE") provided the
Moonsammys with an IEP for A.M.' s first year of school. It recommended a class with 12
students, one teacher, and three teaching assistants (a "12: 1:3 classroom"), but did not provide
for a one-to-one paraprofessional or nurse. Id. at 189, 195. In March 2022, the Moonsammys

The Court's account of the underlying facts is drawn from the parties' submissions in support
of and in opposition to the Moonsammys' motion for summary judgment and the Department's
cross-motion for summary judgment and the administrative record from the proceedings before
the state administrative officers and attached exhibits, Dkt. 16, including, inter alia, the transcript
from the hearing before the IHO; the written decision of the IHO; and the written decision of the
SRO. For exhibits and briefs with both internal and Bates-stamped numbering, the Court cites
the Bates-stamped page numbers.
4

4

notified the Department that they were rejecting the Department's proposed placement as
inadequate to meet A.M.'s needs and that they were enrolling A.M. at iBrain. Id. at 194-95.
In or around May 2022, A.M. began kindergarten at iBrain for the 2022-23 extended
school year. Id. at 543. On May 27, 2022, A.M. 's CSE convened again, and adopted
substantially similar recommendations to the preceding IEP, placing A.M. in a 12:1:4 classroom.

Id. at 43, 264. This IEP concluded that A.M. "require[d] a 1: 1 nurse at all times to tend to her
physical needs and ensure her medical safety, seizure management, and G-tube feed." Id. at 233.
However, it declined to recommend one-to-one nursing services because the Department's staff
did not have the required paperwork. Id. at 264. The Moonsammys decided to keep A.M. at
iBrain, where she has remained since. Id. at 357.

B. Administrative Proceedings
On October 18, 2022, the Moonsammys filed a due process complaint with the
Department, in which they sought an order directing the Department to fund the costs of A.M.' s
enrollment at iBrain and related services. Id. at 106 (the "due process complaint"). The due
process complaint alleged that several aspects of A.M. 's IEPs had left her without a FAPE since
August 2020, including her placement in a 12: 1:4 classroom, id. at 111-12, limited wheelchair
access at the proposed school location, id. at 112-13, and the failure to recommend a one-to-one
nurse for A.M., id. at 115. The due process complaint also alleged that A.M.'s unilateral
placement at iBrain was appropriate to address her "academic, physical, and social/emotional
needs." Id. at 116. The Moonsammys sought an order declaring that the Department had denied
A.M. a FAPE and that iBrain was an appropriate placement for A.M.; requiring the Department
to pay A.M. 's tuition and transportation expenses directly to iBrain and Sisters, respectively; and
requiring the Department to fund an IEE for A.M. Id. at 117.

5

On April 27, 2023, after two days of hearings and live testimony from five witnesses,
IHO Philip P. Sturges held that the Department did not have an obligation to fund A.M. 's private
school placement at iBrain. See id. at 38, 48. The IHO applied the Burlington-Carter
framework. Id. at 44. 5 Under that framework, parents who have unilaterally placed their child in
private school are "entitled to reimbursement if (1) the school district's proposed placement
violated the IDEA, (2) the parents' alternative private placement is appropriate to meet the
child's needs, and (3) equitable considerations favor reimbursement." See E.M v. NY.C. Dep't
ofEduc., 758 F.3d 442, 451-55 (2d Cir. 2014).
IHO Sturges's finding in favor of the Department on the first prong-to wit, that the
Department had offered A.M. a FAPE-was decisive under the Burlington-Carter framework.
AR 4~6. In light of that finding, IHO Sturges noted, "it [wa]s not necessary" to reach the
second and third prongs, but he did so "to provide the parties with a complete set of findings" in
the event of appellate reversal on the first prong. Id at 46-4 7. As to the second prong, IHO
Sturges would have held iBrain "an appropriate placement for [A.M.]"; and as to the third, IHO
Sturges would have found that equitable considerations warranted a 25% reduction in the tuition
reimbursement award for the 2022-2023 school year. Id at 47. Had he found that the
Department denied A.M. a F APE, IHO Sturges stated, his award would have directed the
Department to partially reimburse the parents. He would not have awarded "direct payment" of
money to iBrain and A.M. 's other service providers. Id
As to their request for an IEE, IHO Sturges found that, by expressing disagreement in the
due process complaint with an evaluation conducted by the Department on March 4, 2022, the

Sch. Comm. of the Town ofBurlington v. Dep't of Educ., 471 U.S. 359 (1985); Florence
Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (1993).
5 See

6

Moonsammys had taken "sufficient" action "to warrant the requested IEE." Id at 48. He
observed that "while the record d[id] not establish that the Parents requested an IEE from the
DOE prior to the request contained in the DPC, the DOE did not raise any specific objections to
an IEE at the hearing." Id. The IHO ordered the Department to fund a neuropsychological IEE
by an evaluator selected by the Moonsammys. Id
Both parties appealed. The Moonsammys argued that the Department had deprived A.M.
of a FAPE and that IHO Sturges therefore erred in denying them funding for A.M.'s placement
at iBrain. Id. at 60-70. They further argued that, as a remedy for denying A.M. a FAPE, they
were entitled to "direct payment" to iBrain and Sisters. Id. at 68. The Department argued that
equitable considerations warranted a I 00% reduction in any reimbursement award "because the
parents failed to cooperate with the CSE process," id. at 88, but it did not elaborate on that
contention. In the alternative, it argued, any reimbursement awarded to the parents should be
keyed to "[A.M. 's] actual attendance at school" and be made "contingent on proof of receipt of
services," because the Moonsammys were "not entitled to public funding or services not
received." Id. at 89. The Department also argued that IHO Sturges had erred in granting the
Moonsammys' request for an IEE at public expense. Id.
On July 31, 2023, SRO Justyn P. Bates issued a decision sustaining both appeals in part.

Id. at 12. He reversed the IHO's determination on the first Burlington-Carter prong, holding that
the Department, by failing "to consider [one-to-one] nurse services in light of' A.M.'s
"documented medical needs," had deprived A.M. of a FAPE. Id. at 26. He also found for the
Moonsammys on the second prong. The Department's failure to "challenge the IHO's
determination" that iBrain was an appropriate unilateral placement for A.M., the SRO held, left
that determination "final and binding on the parties." Id at 27. As to the third, SRO Bates

7

disagreed with the IHO's finding that the parents' "predetermination" to send A.M. to iBrain
warranted a reduction in the amount of tuition reimbursement. Id. at 28-29. As to the remedy,
SRO Bates, agreeing with the IHO, found direct payment of iBrain and Sisters "not an
appropriate form of relief." Id. at 32. He directed the Department to reimburse the
Moonsammys for "iBrain tuition costs for the 2021-22 and 2022-23 school years" and
"transportation costs to and from iBrain for the 2022-23 school year." Id. at 34.
On the Department's cross-appeal, SRO Bates held that "the IHO erred in his decision to
grant the parents' request for an IEE at public expense." Id. In his view, the Moonsammys had
failed to follow "the process contemplated by the IDEA and its implementing regulations." Id. at
33. By "ma[king] their request for an IEE in the due process complaint notice in the first
instance," the SRO opined, the Moonsarnmys had deprived the Department of an "opportunity to
engage with" them "outside of due process litigation." Id. On this basis, he concluded that the
Department was not required to fund an IEE. Id. at 24.
C. Procedural History

On November 30, 2023, having exhausted the administrative process, the Moonsarnmys
filed a complaint in this Court, seeking review of aspects of SRO Bates's order. Dkt. 1
(Complaint). They challenged the SRO's decisions (1) ordering the Department to reimburse the
parents for their expenditures for A.M.' s tuition and transportation, rather than ordering it to
directly pay iBrain and Sisters; (2) declining to award funding for one-to-one nursing services at
iBrain; and (3) denying their request for an IEE at public expense. The Department filed an
Answer but did not cross-appeal. Dkt. 9.
On April 17, 2024, the Moonsammys filed a motion for summary judgment, Dkt. 20, and
a memorandum of law in support, Dkt. 21 ("Pls.' Br."). On June 6, 2024, the Department filed a

8

cross-motion for summary judgment and an opposition to the Moonsammys' motion, Dkt. 24,
along with a memorandum oflaw in support, Dkt. 25 ("Defs.' Br."). On July 12, 2024, the
Moonsammys filed an opposition to the Department's motion and a reply to the Department's
opposition, Dkt. 29 ("Pls.' Reply Br.''). On July 23, 2024, the Department filed a reply to the
Moonsammys' opposition. Dkt. 30 ("Defs.' Reply Br.").

II.

Applicable Legal Standards
A.

Legal Framework

The IDEA offers federal funds to States in exchange for a commitment to provide a
FAPE to all children with disabilities. 20 U.S.C. § 1412(a)(l)(A); see also Endrew F. ex rel.

Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). AF APE should
"emphasize[ ] special education and related services designed to meet the unique needs" of a
child with a disability and "prepare" the child "for further education, employment, and
independent living." 20 U.S.C. § 1400(d)(l)(A).
To accomplish that purpose, the local educational agency must develop an IEP for each
child that "sets out the child's present educational performance, establishes annual and shortterm objectives for improvements in that performance, and describes the specially designed
instruction and services that will enable the child to meet those objectives.'' Honig v. Doe, 484
U.S. 305, 311 (1988); see 20 U.S.C. § 1414(d)(l )(A); TY v. NYC. Dep 't of Educ., 584 F.3d
412,415 (2d Cir. 2009). 6 The IEP must be "reasonably calculated to enable a child to make
progress appropriate in light of the child's circumstances.'' Endrew, 580 U.S. at 399. It must be

"Local educational agency" means "a public board of education or other public authority legally
constituted within a State for either administrative control or direction of, or to perform a service
function for, public elementary schools or secondary schools in a city .... " 20 U.S.C.
§ 1401 (l 9)(A).
6

9

calculated to provide an "appropriate education, not one that provides everything that might be
thought desirable by loving parents." Navarro Carrillo v. N Y.C. Dep 't ofEduc., No. 21-Civ.2639, 2023 WL 3162127, at *3 (2d Cir. May 1, 2023) (quoting Walczak v. Fla. Union Free Sch.
Dist., 142 F.3d 119, 127 (2d Cir. 1998)).
When a parent believes that the State has failed to offer her child a FAPE, the parent may
file a due process complaint and attend a hearing before an IHO. 20 U.S.C. § 1415(b)(6); N.Y.
Educ. Law§ 4404(1). Such a complaint initiates an "administrative challenge unrelated to the
concept of constitutional due process." R.E. v. N Y.C. Dep 't ofEduc., 694 F.3d 167, 175 (2d Cir.
2012). If the parent's concerns are not resolved at a "[p]reliminary meeting," 20 U.S.C.
§ 1415(f)(l)(B)(i), the matter proceeds to a hearing before the IHO, id. § 1415(f)(l)(A); see also
id. § 14 l 5(f)(3)(A)(i), who must "determin[e] ... whether the child received a [FAPE]," id.
§ 1415(f)(3)(E)(i); see also N.Y. Educ. Law§ 4404(l)(a). The IHO's decision is appealable by
either party to an SRO, who must "conduct an impartial review" of the IHO's "findings and
decision." 20 U.S.C. § 1415(g); N.Y. Educ. Law§ 4404(2). "Any party aggrieved by" the
SRO's decision "ha[s] the right" to seek judicial review by filing a civil action in state or federal
court. 20 U.S.C. § 1415(i)(2)(A); see also N.Y. Educ. Law§ 4404(3)(a).

B.

Standard of Review

Summary judgment in the context of an IDEA case "involves more than looking into
disputed issues of fact; rather, it is a pragmatic procedural mechanism for reviewing
administrative decisions." R.E., 694 F.3d at 184 (quotingA.C. ex rel. MC. v. Bd. ofEduc., 553
F.3d 165, 171 (2d Cir. 2009)). Although the "district court must base its decision on the
preponderance of the evidence," it ultimately 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." A.C., 553 F.3d at
171 (cleaned up).
When the decisions of an IHO and an SRO conflict, the Court should generally defer to
the SRO's decision as the "final decision of the state authorities," R.E., 694 F.3d at 189 (quoting
A.C., 553 F.3d at 171), particularly "when the state officer's review 'has been thorough and

careful,"' id. at 184. But where "the district court appropriately concludes that the SRO's
determinations are insufficiently reasoned to merit that deference, and in particular where the
SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely
appropriate for the court, having in its tum found the SRO's conclusions unpersuasive even after
appropriate deference is paid, to consider the IH O's analysis, which is also informed by greater
educational expertise than that of judges." Id. at 189 (citing MH v. New York City Dep 't of

Educ., 685 F.3d 217,246 (2d Cir. 2012)). The district court "may remand a proceeding when it
needs further clarification or does not have sufficient guidance from the administrative
agencies." Hidalgo v. N Y.C. Dep't ofEduc., No. 20 Civ. 98, 2021 WL 2827037, at *5
(S.D.N.Y. July 7, 2021).

III.

Discussion
The Moonsarnmys argue that the IDEA required SRO Bates (1) to order the Department

to make direct payments to iBrain and Sisters, rather than to reimburse the Moonsammys for the
cost of services these entities provided to A.M.; (2) to award funding for one-to-one school nurse
services; and (3) to grant a publicly funded IEE. The Department disagrees. The Court
considers each issue in tum.

11

A. Direct Payment Remedy
The Moonsammys first challenge SRO Bates' s choice of remedy for the denial of a
FAPE. The SRO ordered that the Department reimburse the Moonsammys for the cost of A.M. 's
private school emollment at iBrain and of the transportation services provided by Sisters, upon
proof of A.M.'s attendance at iBrain. AR 35. The Moonsammys had sought an order directing
the Department to pay these entities directly. Id. at 31. The Moonsammys argue here, based on
the evidence in the administrative proceedings,7 it was error not to award direct payment as the
remedy; that an award of parental reimbursement is "inconsistent" with the IDEA and Second
Circuit case law; and that direct payment is required even where the parents have not shown that
requiring them to first pay the school (and other providers) and then be reimbursed by the
Department would pose a hardship for them. Pis.' Br. at 14-19; see Pis.' Reply Br. at 8-14.
The Department counters that the Moonsammys misread the case law. It supports at
most, the Department contends, that a direct payment remedy is available only in "appropriate
circumstances"-with the relevant one here being a showing by the parents of a financial
inability to pay the school or other service provider before obtaining reimbursement. Defs.' Br.
at 8. Noting the SRO's finding that the Moonsammys did not adduce any evidence of a financial
inability to make the payments at issue here, the Department argues that the SRO did not err in
denying their request for direct payment. Id. at 1, 9.

7

The Moonsammys declined to supplement the administrative record "receive[d]" by this Court.
20 U.S.C. § 1415(i)(2)(C)(i). And they sought a waiver of the requirement to file a statement of
facts under Local Rule 56.1, on the grounds that their summary judgment motion is "in substance
an appeal from" SRO Bates' s determination; that "the inquiry here is not whether there are
disputed issues of fact; and that the motion "will be based solely on the administrative record."
Dkt. 12 at 2. The Court granted that waiver. Dkt. 13 at 2. Because neither party sought to
supplement the administrative record, see 20 U.S.C. § 1415(i)(2)(C)(ii), the Court bases its
decision solely on "the records of the administrative proceedings," id. § 1415(i)(2)(C)(i).
12

A threshold question is the standard of review. The Moonsammys argue that deference is
not due to the administrative hearing officers on this issue because the scope of authority to
award direct payments is an "inherently" legal question that involves interpretation of "the
federal statute and its requirements." Id. at 10 (citations omitted). On that question, which turns
on the meaning of statutory provisions, the Court agrees that deference is not warranted. See,
e.g., Lillbask ex rel. Mauclaire v. State of Conn. Dep 't ofEduc., 397 F.3d 77, 82 (2d Cir. 2005)

("[S]tate hearing officers are not more experienced or expert than courts in interpreting federal
statutes ... and, therefore, deference is not warranted." (citations omitted)).
The Court "begins, as always, with the statutory language at issue." Fry v. Napoleon
Cmty. Sch., 580 U.S. 154, 167 (2017). Section 1412(a)(!0)(C), enacted as part of the 1997

amendments to IDEA, addresses "[p ]ayment for education of children enrolled in private schools
without consent of or referral by the public agency." 8 Pub. L. No. 105-17, 111 Stat. 37 (1997)
(codified at 20 U.S.C. § 1412(a)(!0)(C)). Its first subsection provides that, "[i]n general," a local
educational agency does not have an obligation to "pay for the cost of education" at a private
school "if the agency made a free appropriate public education available to the child and the
parents elected to place the child in such private school." 20 U.S.C. § 1412(a)(I0)(C)(i). The
second subsection addresses "[r]eimbursement for private school placement." Id.
§ 1412(a)(l0)(C)(ii). It authorizes "a court or a hearing officer" to "require the agency to
reimburse the parents for the cost of' private school enrollment upon a "find[ing]" "that the

agency had not made a free appropriate public education available to the child in a timely
manner prior to that enrollment." Id. (emphasis added). The remaining two subsections set out

8

In setting out the local educational agency's obligations, the IDEA treats this group of children
as distinct from "children placed in placed in, or refe1Ted to, private schools by public agencies."
Id.§ 1412(a)(l0)(B).
13

the circumstances under which "[t]he cost of reimbursement described in clause (ii) may be
reduced or denied." See id.§§ 1412(a)(10)(C)(iii)-(iv). For example, "a judicial finding of
unreasonableness with respect to actions taken by the parents" permits the agency to "reduce[] or
den[y ]" the "cost of reimbursement." Id. § l 412(a)(l 0)(C)(iii)(III).
The term "reimbursement" is recurrent in Section 1412(a)(10)(C). 9 The use of this term
reinforces what is express in § 1412(a)(l 0)(C)(ii): that the statute authorizes a state
administrative hearing officer to order a local educational agency, like the Department, that has
denied a child a FAPE to pay the parents of the child for the costs of private school enrollment
such as tuition and transportation. And the provision textually presupposes that the parents had
incurred those costs. The term "reimburse" ordinarily means "to pay back (an equivalent for
something taken, lost, or expended) to someone" or "to make restoration or payment of an
equivalent to." Webster's Third New International Dictionary 1914 (1993); see Black's Law
Dictionary 1287 (6th ed. 1990) (defining "reimburse" as [t]o pay back, to make restoration, to
repay that expended; to indemnify, or make whole"). "Reimbursement" likewise refers to the
"the action of reimbursing." Webster's Third New International Dictionary 1914 (1993 ).
Section 1412(a)(l0)(C) is thus textually clear that "a court or a hearing officer" may order

The IDEA's implementing regulations speak in like terms. 34 C.F.R. § 300.148 governs the
"[p]lacement of children by parents when FAPE is at issue." Subsection (a) provides that the
"the question of financial reimbursement" is subject to the statutory due process procedures.
"Reimbursement for private school placement" is addressed in subsection (c), which provides:

9

If the parents of a child with a disability, who previously received special education

and related services under the authority of a public agency, enroll the child in a
private preschool, elementary school, or secondary school without the consent of
or referral by the public agency, a court or a hearing officer may require the agency
to reimburse the parents for the cost of that enrollment if the court or hearing officer
finds that the agency had not made FAPE available to the child in a timely manner
prior to that enrollment and that the private placement is appropriate.

Id.§ 300.148(c).

14

"reimbursement"-repayment-to "the parents for the cost of' "enrollment" of"the[ir] child in a
private elementary school or secondary school," where the officer finds that the agency had
denied the child a FAPE. 20 U.S.C. § 1412(a)(IO)(C).
The Supreme Comt's and the Second Circuit's discussions of the IDEA reinforce the
centrality of the reimbursement remedy. The Court has explained that the "IDEA authorizes
reimbursement for the cost of private special-education services when a school district fails to
provide a FAPE and the private-school placement is appropriate .... " Forest Grove Sch. Dist.

v. TA., 557 U.S. 230, 247 (2009); Burlington, 471 U.S. at 369. The Second Circuit has stated,
"If a state fails in its obligation to provide a free appropriate public education to a [child with a
disability], the parents may enroll the child in a private school and seek retroactive

reimbursement for the cost of the private school from the state." Doe v. E. Lyme Bd. ofEduc.,
790 F.3d 440,448 (2d Cir. 2015) (quoting Frank G. v. Bd. of Educ. ofHyde Park, 459 F.3d 356,
363 (2d Cir. 2006)) (emphasis added).
The IDEA, in contrast, does not explicitly refer to a remedy consisting of direct payment
by the educational agency to the private school or other service provider. Finding this omission
not to be "dispositive," however, a growing body of case law in this District has held that a direct
payment remedy can be rooted not in§ 1412(a)(IO)(C) but in the IDEA's separate judicial
review provision,§ 1415(i)(2). Mr. & Mrs. A. ex rel. D.A. v. NY.C. Dep't of Educ., 769 F. Supp.
2d 403, 428 (S.D.N.Y. 2011) (Gardephe, J.); see also, e.g., A.R. ex rel. F.P. v. N Y.C. Dep 't. of

Educ., No. 12 Civ. 4493, 2013 WL 5312537, at *11 (S.D.N.Y. Sept. 23, 2013) (Crotty, J.).
Section 1415(i)(2)(C)(iii) authorizes "the court," "basing its decision on the preponderance of the
evidence," to "grant such relief as the court determines is appropriate." 20 U.S.C.
§ 1415(i)(2)(C)(iii). This provision, courts in this District have held, permits a direct payment

15

remedy because, where parents lack the means to front the tuition and related costs of private
school, such remedy vindicates the "IDEA's universal guarantee of a free, appropriate public
education to all children with disabilities, regardless of means," even though the Act does not
"make explicit mention of [this] particular remedy." Mr. & Mrs. A., 769 F. Supp. 2d at 403, 423
(internal quotation marks omitted). Courts in this District have ordered the direct payment
remedy in several recent cases, all involving requests for payment to iBrain. Ferreira v. NY. C.
Dep't of Educ., No. 20 Civ. 9849, 2023 WL 2499261, at *2, *9-10 (S.D.N.Y. Mar. 14, 2023)

(Torres, J.); Maysonet v. NY. C. Dep 't ofEduc., No. 22 Civ. 1685, 2023 WL 2537851, at* I, *56 (S.D.N.Y. Mar. 16, 2023) (Schofield, J.); Cohen v. NY.C. Dep't of Educ., No. 21 Civ. 6260,
2023 WL 6258147, at *6 (S.D.N.Y. Sept. 26, 2023) (Vyskocil, J.); Mondano v. Banks, No. 22
Civ. 7519, 2024 WL 1363583, at *12 (S.D.N.Y. Mar. 30, 2024) (Cronan, J.); Erde v. Banks, No.
21 Civ. 9285, 2022 WL 18461297, at *9-10 (S.D.N.Y. Dec. 28, 2022), report and
recommendation adopted, No. 21 Civ. 9285, 2023 WL 373156 (S.D.N.Y. Jan. 24, 2023)

(Broderick, J.).
The fountainhead for this line of cases is Judge Gardephe' s decision in Mr. & Mrs. A. ex
rel. D.A. v. New York City Department of Education, 769 F. Supp. 2d 403 (S.D.N.Y. 2011). He

held that the Department had denied the child a FAPE; that the private school in which the
child's parents had unilaterally emailed him was an "appropriate" placement; and that the
equities favored an award of the costs of private school tuition. See id. at 417-20 (applying
Burlington-Carter framework). Noting the evidence that the parents "lack[ed] the financial

resources" to pay and thereafter seek reimbursement of private school tuition, which "dwarf[ed]"
their annual income, id. at 427-28, 430, Judge Gardephe found that it would be "entirely
inconsistent with IDEA's statutory purpose" to limit the parents to a reimbursement remedy in

16

these circumstances, id. at 428. Although legal "research ha[d] disclosed no federal decision
holding that IDEA authorizes courts to order retroactive direct tuition payments to a private
school," id. at 424, Judge Gardephe reasoned that the "IDEA's statutory purpose" and the
Supreme Court's decision in Forest Grove supported remedial authority broader than the
"statute's explicit remedy ofreimbursement," id. at 428-29. 10 Moreover, Judge Gardephe
explained, "[t]the theme of concern for children from low-income families that runs through
IDEA and its legislative history ... counsels caution in adopting an interpretation of
§ 1415(i)(2)(C)(iii) that would limit a private school tuition remedy to those who have the means
to pay the tuition in the first instance." Id. at 421. Invoking a court's "'broad discretion' to
'grant such relief as ... is appropriate"' under § l 4 l 5(i)(2)(C)(iii)-the judicial review
provision-Judge Gardephe found that a district court could award "retroactive direct tuition
payment relief' "[w]here ... parents lack the financial resources to front the costs of private
school tuition." Id. at 427-28.

In Forest Grove, 557 U.S. 230, the Supreme Court considered the effect of the 1997
amendments to the IDEA on the reimbursement remedy recognized in School Committee of
Burlington v. Department of Education ofMassachusetts, 4 71 U.S. 359 (1985), and Florence
County School District Four v. Carter, 510 U.S. 7 (1993). The amendments had not "change[d]
the text" of§ l 415(i)(2)(C)(iii), to which Burlington and Carter had sourced the reimbursement
remedy. Forest Grove, 557 U.S. at 239. The Supreme Court held that Congress, in amending
the IDEA in 1997 to add§ 1412(a)(10)(C), did not "abrogate[] sub silentio" its decisions
recognizing the availability of the "reimbursement" remedy "without regard to the child's prior
receipt of services." Id. at 24 3. Recognizing that conditions imposed on States by Spending
Clause legislation, like the IDEA, must "be stated unambiguously," the Supreme Court found
that that Burlington and Carter had put States "on notice" that the "IDEA authorizes courts to
order reimbursement of the costs of private special-education services in appropriate
circumstances." Id. at 246 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. I, 17
(1981)). In Mr. & Mrs. A., Judge Gardephe read Forest Grove to "foreclose[]" the Department's
argument that the 1997 amendments to IDEA implicitly precluded a direct payment remedy. 769
F. Supp. 2d at 428-29.
10

17

Two years later, inA.R. ex rel. F.P. v. New York City Department ofEducation, No. 12
Civ. 4493, 2013 WL 5312537 (S.D.N.Y. Sept. 23, 2013), Judge Crotty ordered the same relief,
citing Mr. & Mrs. A. 's holding "that a court's broad discretion to grant such relief as is
appropriate under 20 U.S.C. § 1415(i)(2)(C)(iii) includes the power, in a proper case, to award
retroactive direct payment of private school tuition," id. at * 11 (cleaned up) (quoting 769 F.
Supp. 2d at 427). He "credit[ed] the Plaintiff[']s undisputed evidence that she could not afford to
pay [private school] tuition," which included a declaration and an exhibit "indicating an annual
income ofless than $7,000 and lack of child support from the Student's father." Id. Based on
such evidence, Judge Crotty "exercise[d] [his] discretion" to order direct payment to the private
school. Id.
The following year, the Second Circuit, in the context of a discussion of Article III
standing, noted the above two cases had "recently" recognized a direct payment remedy under
the IDEA. E.M v. NY.C. Dep't ofEduc., 758 F.3d 442,452 (2d Cir. 2014) (citing Mr. & Mrs.
A. andA.R.). The Circuit stated: "[A] growing number of our district courts have recently held

that the IDEA permits courts, in appropriate cases, not only to order 'reimbursement' of tuition
costs to parents, but also to order retrospective payment of tuition directly to the private school
where a parent has unilaterally enrolled her child." Id. Moreover, the Circuit explained that
"where the equities call for it, direct payment fits comfortably within the Burlington-Carter
framework" because "direct payment to the private school ... 'merely requires [the educational
agency] to belatedly pay expenses that it should have paid all along and would have borne in the
first instance had it developed a proper IEP.'" Id. at 453-54 (quoting Burlington, 471 U.S. at
3 70-71 ). The Circuit held that the theoretical availability of a direct payment remedy supported
the plaintiffs standing-by showing her claimed injury to be judicially redressable-while

18

emphasizing that its holding "d[id] not mean that she is entitled to the relief she seeks," namely,
direct payment. Id. at 461. Rather, the Circuit stated, the "district court may consider many
factors" in detennining the parents' entitlement to direct payment, listed non-exhaustively:
whether plaintiffs unilateral withdrawal of her child from the public school was
justified, whether plaintiff provided the Depaitment with adequate notice of the
withdrawal, whether the amount of private-school tuition was reasonable, whether
plaintiff should have availed herself of need-based scholarships or other financial
aid from the private school, and whether there was any fraud or collusion in
generating (or inflating) the tuition to be charged to the Department, or whether the
anangement with the school was fraudulent or collusive in any other respect.
Id. The Circuit remanded the case to the district court to address the merits of the dispute, noting
that the district court in turn "might" "perhaps more profitably, remand the matter" to enable
state administrative hearing officers to undertake "a complete reexamination in light of [the
Second Circuit's] instructions." Id. at 463.
More recently, in several cases, courts in this District, overturning administrative hearing
officers who had awarded a reimbursement remedy, have ordered direct payment to iBrain even
though proof had not been adduced that the parents were "unable to pay for the services for
which they seek payment." Ferreira, 2023 WL 2499261, at* 10. These cases have noted that,
although the parents in the preceding cases such as A.R. had demonstrated financial hardship, the
decisions there had not held that such a showing was required as a matter of law. See id.
("Although the court in A.R. did consider the plaintiffs inability to pay, the court did not require
such proof."); Cohen, 2023 WL 6258147, at *5 ("[I]n each of [the prior cases awarding direct
payment], the parent plaintiffs demonstrated financial hardship. However, none of the courts
directly held that such a showing of financial hardship was a necessary prerequisite."). Holding
that a showing of financial hardship is unnecessary, these courts have exercised their equitable
authority under the judicial review provision (§ 1415(i)(2)(C)(iii)) to order the Department to

19

directly pay iBrain tuition and for related services. See Ferreira, 2023 WL 2499261, at *10
("[C]ourts have broad discretion to grant appropriate relief, including retrospective direct
payment of private school tuition.... The Court concludes, based on the factual findings of both
the IHO and SRO, that direct retrospective payment is an appropriate remedy here."); Cohen,
2023 WL 6258147, at *5 ("[T]he Court finds that Plaintiffs are not required to establish financial
hardship in order to seek direct retrospective payment to iBRAIN for their son's 2018-2019
school year. ... To require parents to fund their children's education in the first instance, unless
they demonstrate an inability to pay-as the SRO did here-skews the equities underlying the
IDEA and cases applying that law."); Mondano, 2024 WL 1363583, at* 12 ("The Court ... finds
that the SRO' s determination, inasmuch as it hinged entirely on the absence of the evidence
concerning Mondano's financial ability to pay for the tuition upfront, was in error." (citing
Cohen and Ferreira)).
In Maysonet, 2023 WL 2537851, Judge Schofield overturned an SRO's denial of a
parent's request that the Department directly pay iBrain, but took a different route to that result.
Noting the record's lack of clarity as to the parent's ability to pay, Judge Schofield directed the
parent to provide "evidence" of "inability to pay tuition and other costs," following which the
parent supplied a sworn affidavit stating that "neither [the parent] nor her family had the
financial means to front these costs." Id. at *5-6. Exercising her authority under the judicial
review provision, Judge Schofield ordered direct payment, finding that "[t]he IDEA's broad
grant of discretion and the circumstances ofth[at] case-including Plaintiffs' financial status, the
time elapsed between when services were provided to [the child] and adjudication of Plaintiffs'
claim and Defendant's undisputed obligation to cover the outstanding costs-support[ed] an
award of direct tuition payment." Id. at *6. She did "not reach the question of whether parents

20

must show their inability to pay in order to receive an award of direct tuition funding." Id. at *5;

accord. Erde, 2022 WL 18461297, at *9-10 (direct payment recommended after parents, at
magistrate judge's direction, submitted evidence of their combined adjusted gross income,
expenses, and Medicaid coverage), report and recommendation adopted, 2023 WL 373156; cf

Brock ex rel. S.B. v. NY.C. Dep't of Educ., No. 13 Civ. 8673, 2015 WL 1516602, *4 (S.D.N.Y.
Mar. 31, 2015) (Daniels, J.) (awarding direct payment on basis of, inter alia, parent's receipt of
supplemental security income payments).
The assembled case law thus can be synthesized as follows. There is a wide recognition
in this District that, although the IDEA references only the remedy of reimbursement,
§ 1415(i)(2)(C)(iii) empowers courts, where "appropriate," to order direct payment, to the
service providers, of tuition and fees for related services for a child whom the educational agency
had denied a FAPE. There is not, however, consensus as to the boundaries of judicial discretion
under that provision, including whether a parent must show financial hardship from paying, or a
durable legal obligation to pay, before a court may order direct payment in lieu of imposing a
reimbursement obligation on the State. And, as yet, although several courts have tacitly assumed
the existence of such authority, there does not appear be case law identifying a statutory basis for
an IHO or SRO to order direct payment. 11
Here, the Moonsammys pursue an order requiring the Department to directly pay iBrain
and Sisters, based on the recent decisions like Ferreira and Cohen that have granted such in the

By its terms, § 14 l 5(i)(2)(C)(iii) addresses only the remedial authority of courts. The courts in
this District that have termed "error" denials by state administrative hearing officers of direct
payment appear to have done so on the assumption that the administrative officers had, but failed
to exercise, the same authority as courts to award direct payment under §1415(i)(2)(C)(iii).
Mondano, 2024 WL 1363583, at *12; see also Cohen, 2023 WL 6258147, at *6; Ferreira, 2023
WL 2499261, at *9-10.
11

21

absence of a showing of financial hardship. Pis.' Br. at 14-19. The Department argues against
direct payment, on the ground that the Moonsammys have not demonstrated that requiring them
to pay iBrain and Sisters and then to seek reimbursement would pose a hardship. In his terse
explanation for imposing a reimbursement remedy, and not requiring the Department to make
such direct payment, SRO Bates stated that:
there is no evidence in the hearing record regarding the parents' financial resources,
such as showing of eligibility for government benefit programs for low-income
families that cover food, housing, medical, or other basic living expenses, or a copy
of a recent tax return, or other evidence regarding the parents' assets, liabilities,
income, or expenses.
AR32.
On the present record, the Court could overturn the SRO only by adopting the sweeping
view that the denial of a FAPE automatically entitles a parent to the direct payment remedy,
without ever needing to make an individualized showing that the equities so favor. As the SRO
found and as the Moonsammys do not dispute, counsel for the Moonsammys did not make any
record of any facts particular to them that supported entry of such an order. The Moonsammys
did not adduce any evidence that the statutory reimbursement remedy would work a hardship on
them. Indeed, the record is devoid of evidence supporting any of the equitable considerations
listed by the Second Circuit in E.M bearing on a parent's bid for direct payment. See 758 F.3d
at 461 (listing "factors" "bear[ing] ... on the equities of plaintiffs claim for [direct payment]
relief'). This Court is unpersuaded that the judicial review provision's authorization of
"appropriate' remedies can be deployed categorically-without regard to the circumstances
associated with the private school placement at issue-to override the reimbursement remedy
that the IDEA repeatedly references. See 20 U.S.C. § 1412(a)(10)(C); cf. E.M, 758 F.3d at 453
("[T]he broad spectrum of equitable relief contemplated under the IDEA encompasses, in

22

appropriate circumstances, a direct-payment remedy. Indeed, where the equities call for it,

direct payment fits comfortably within the Burlington-Carter framework .... " (emphases
added) (citations omitted)).
And there are sound policy justifications, too, for sometimes requiring parents with the
ability to pay tuition and associated expenses to do so, subject to a right to seek reimbursement.
That arrangement may smoke out excessive charges by the private school or service provider. It
may promote greater pricing discipline by such schools and service providers. It may incent
parents to question and negotiate other charges that may be outsized. See, e.g., Mr. & Mrs. A.,
769 F. Supp. 2d at 429-30 (noting State's valid interest in guarding against risk of"artificially
inflated tuition" payment requests stemming from "sham transactions" in which "parents and
private schools ... tacitly underst[and] that, should funding from the public school district not be
granted, the parent will be relieved from payment"); id. at 428-30 (inquiry into parents' financial
ability to "front the costs of private school tuition" is germane, because when parents have the
ability to do so, their payment may provide some evidence of the validity of the tuition and other
charges sought); A.R., 2013 WL 5312537, at *8-11 (similar); see also E.M, 758 F.3d at 461
(inviting district court to examine "whether there was any fraud or collusion in generating (or
inflating) the tuition to be charged to the Department"). Indeed, a recent case has raised just
such concerns about the very third parties whom the Moonsammys here ask the Department to
directly pay: iBrain and Sisters. See Davis v. Banks, No. 22 Civ. 8184, 2023 WL 5917659, at *5
(S.D.N.Y. Sept. 11, 2023) (Furman, J.) (noting "legitimate concerns about waste, fraud, and
abuse" in connection with request to reimburse iBrain and Sisters and that "further factfinding"
by hearing officer "may be warranted"); id. at *5 n.7.

23

Regrettably, there appears to have been little if any effort by any participant in the
administrative proceedings in A.M. 's case to develop a factual record that would enable a sound
exercise of judicial discretion under § l 4 l 5(i)(2)(C)(iii). IHO Sturges, finding that the
Department had provided A.M. a FAPE, did not consider the parents' financial circumstances or
other factors bearing on their request for direct payment. See AR 46. Rather, in the single
paragraph that he termed his "complete set of findings" on this issue, the IHO stated that the
Moonsarnmys' "predetermination" to enroll A.M. at iBrain "would have warranted a 25%
reduction had tuition been awarded for the 2022-2023 school year." AR 47. SRO Bates's terse
account of his reasons for granting 100% reimbursement did little more than (1) fault the
Moonsarnmys for not making a record of their income, expenses, assets and liabilities, while (2)
faulting the IHO for discounting the reimbursement remedy by 25% based on his perception that
the Moonsarnmys had "predetermined" their choice of iBrain. AR 28, 32. In not probing the
equities further, the SRO appears to have viewed the Moonsammys' failure to demonstrate
financial hardship as necessarily fatal to their request for direct payment. But see E.M, 758 F.3d
at 453 (explaining that "where the equities call for it, direct payment fits comfortably within the

Burlington-Carter framework .... " (emphasis added)). Finally, dismayingly, counsel for the
Moonsammys, apparently regarding the direct payment remedy for denial of a FAPE as available
as of right, did not motivate to develop a record that might have assisted their clients on this
point. 12 The result is that the "record of the administrative proceedings," 20 U.S.C.
With one exception: the record contains an unsigned document styled as an "affidavit" by
Kemraj Moonsarnmy which states, without elaboration, that his "family is unable to pay up front
the cost of [A.M.'s] placement." AR 360; see also AR 780 ("swear[ing]" or "affirm[ing," in
testimony before the IHO, that "the content of the affidavit is the truth"). Although this
document is conclusory, it at least suggests the possibility that, had a factual inquiry been
undertaken, the Moonsammys might have been able to show that requiring them to pay iBrain
and Sisters and then seek reimbursement would have posed a financial hardship.
12

24

§ 1415(i)(2)(C)(ii), is factually emaciated as to the equities. Lacking evidence and findings, the
Court is unable to non-speculatively resolve whether these support awarding the Moonsanunys
direct payment. See, e.g., Mondano, 2024 WL 1363583, at *12 (faulting SRO for failing to
"balance [the] parent's financial status against ... considerations that may legitimately drive a
preference for reimbursement as the form of payment").
The Court, however, is unprepared to punish the parents and A.M. for the lapses of their
counsel to adequately develop the administrative record below and before this Court.

13

Instead,

the Court concludes, "the proper course is to remand for further clarification" on whether the
equities support an award of direct payment here. Davis, 2023 WL 5917659 at *5 (quoting
Hidalgo, 2021 WL 2827037, at *5); see also, e.g., T.L. v. N.Y.C. Dep't of Educ., 938 F. Supp. 2d
417, 436 (E.D.N.Y. 2013) ("A court may remand a proceeding when it needs further clarification
or does not have sufficient guidance from the administrative agencies."); NY.C. Dep't a/Educ.
v. VS., No. 10 Civ. 5120, 2011 WL 3273922, at *11 (E.D.N.Y. July 29, 2011) ("[R]emand is

appropriate where the district court has received insufficient guidance from state administrative
agencies as to the merits of a case."). Section 1415(i)(2)(C)(iii) directs "the court" to "bas[e] its
decision on the preponderance of the evidence," but such can only be done on a record that
sufficiently ventilates the equitable considerations bearing on the request for direct payment.
Because the Court-unlike the administrative hearing officers seasoned in these
matters-is "ill-equipped to address" those considerations "in the first instance," the Court
remands this matter to the SRO to develop the record. F.B. v. N. Y. C. Dep 't ofEduc., 923 F.
Supp. 2d 570, 589 (S.D.N.Y. 2013); TL.., 938 F. Supp. 2d at 434 (remanding to SRO "for

See supra note 1 (observing that multiple courts have expressed concerns regarding parents'
representation by BIRG, which was founded by the founder of iBrain), and note 6 (noting that
the parties have declined to supplement the record before this Court).
13

25

clarification and additional factfinding" where "the administrative record [wa]s unacceptably
sparse in detail"). It would be fruitful to develop the record, among other points, as to whether
the Moonsammys were contractually obliged to pay the fees assessed by iBrain and Sisters had it
been determined that the Department had offered them a F APE, whether these fees were
justifiable, whether the Moonsammys would have been able to pay the fees assessed (or, if
excessive, reasonable fees for these services), and what the consequences to the Moonsammys
would have been of obliging them first to pay iBrain and Sisters and thereafter to seek
reimbursement. The SRO should consider whether the assembled evidence equitably supports a
remedy of reimbursement as opposed to direct payment. E.M, 758 F.3d at 461; Mr. & Mrs. A.,
769 F. Supp. 2d at 429-30. In all events, the SRO should heed the Second Circuit's instruction
in E.M to consider "the equities of [the parents'] claim for relief," and the factors listed therein
as germane to those equities, 758 F.3d at 461, and to draw upon his expertise in education policy
to weight these factors, T.L. ., 938 F. Supp. 2d at 436. "Remand by the SRO to the IHO or other
action at the state level is not precluded" by this decision. Id. at 437; D.F. v. City Sch. Dist., No.
15 Civ. 1448, 2016 WL 1274579, at *14 (S.D.N.Y. Mar. 31, 2016); Vinluan ex rel. D. V v.
Ardsley Union Free Sch. Dist., No. 19 Civ. 6496, 2021 WL 3193128, at *2 (S.D.N.Y. July 27,

2021); see also N.Y. Educ. Law§ 4404(2).
Accordingly, the Court remands the Moonsammys' direct payment claim to the SRO for
clarification and further development of his order not inconsistent with this opinion.

B. Nursing Services
The Moonsammys next argue that SRO Bates erred in omitting, from the reimbursement
award, funding for one-to-one nursing services at iBrain for the 2022-23 school year. Because
A.M. has medical needs requiring individual attention from a nurse during the school day, and

26

because she could not be expected to benefit from special education without such care, they
argue, the IDEA required the SRO to provide funding for one-to-one nursing services.
Under the IDEA, a FAPE comprises both "special education" and "related services."
20 U.S.C. § 1401(9). "Related services" are "the support services required to assist a child to
benefit from" educational instruction tailored to the unique needs of a child with a disability.

Endrew F., 580 U.S. at 390-91 (internal quotation marks omitted); see WA. v. Hendrick Hudson
Cent. Sch. Dist., 927 F.3d 126, 149 (2d Cir. 2019). The Act defines "related services" to include
school nursing services. 20 U.S.C. § 1401(26)(A); 34 C.F.R. § 300.34(a) (same).
At the outset, the Department urges the Court to disregard the Moonsammys' nursing
services claim. It argues that the Moonsammys failed to raise that claim in the Complaint and
therefore cannot pursue it at summary judgment. Defs.' Br. at 9 n. l. The Department's factual
premise is wrong. Although the term "one-to-one nursing services" does not appear in the
Complaint, it sought "funding," under the IDEA, "for A.M's private school educational
placement/program (iBrain), including the cost of tuition, related services, and special
transportation services." Complaint at 16 (prayer for relief) (emphasis added); see also id.

,r,r

86, 114. School nursing services constitute the type of "related services" contemplated by

the IDEA, 20 U.S.C. § 1401(26), a point the Department does not dispute. And the
Moonsammys' submissions throughout the administrative proceedings, in emphasizing A.M. 's
documented medical needs, put the Department on notice that nursing services were among
central "related services" for which the Moonsammys were seeking funding. See, e.g., AR 19
(SRO), 46 (IHO), 115 (due process complaint). The Court thus finds that the Moonsammys
raised and preserved their claim for nursing services.

27

Of central importance to this issue, the Department's failure to "consider" one-to-one
nursing services for A.M. was-as the Moonsammys rightly note-the basis of SRO Bates's
determination that she had been denied a FAPE. Id. at 26. The SRO began by observing that
New York State guidance documents in effect at the time A.M.'s IEP was prepared called for the
CSE to "weigh the factors of both the student's individual health needs and what specific school
health and/or school nurse services are required to meet those needs." Id. at 20. The factors to
be weighed included the "complexity of the student's individual health needs and level of care
needed during the school day to enable the student to attend school and benefit from special
education"; the "qualifications required to meet the student's health needs"; and the "extent and
frequency the student would need [sic] the services of a nurse (e.g., portions of the school day or
continuously throughout the day)." Id. The SRO then reviewed A.M. 's "diagnoses" of spastic
quadriplegic cerebral palsy, hypotonic infantile spasm, microcephaly, Lennox Gastaut
Syndrome, and cortical visual impairment (CVI), id. at 20-21, and noted that she presented with
"absent and myoclonic seizures approximately three to four times per day," id. at 24. The SRO
found evidence that A.M. had "medical needs ... warrant[ing] consideration of a 1: 1 nurse,"
including to "observe aspiration precaution, monitor food and fluid intake, observe seizure
precautions, obtain seizure action plan and necessary medications, monitor seizure activity, and
monitor for signs and symptoms of low oxygen levels or low heart rate.'' Id. at 25. The SRO
further noted that A.M. "was recommended for special transportation with accommodations in
part because she required medical and/or healthcare treatments or procedures during the school
day and at home." Id. Finding "problematic" the Department's explanation for excluding
nursing services-that the Moonsammys had failed to submit medical forms to another state
office-the SRO concluded that the "fail[ure] to consider 1:1 nurse services in light of the

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student's documented medical needs" amounted to "a denial of a FAPE" for the 2020-21, 2021-

22, and 2022-23 school years. Id. at 26. On that basis, the SRO reversed the IHO's
determination that the Department had offered A.M. a F APE. Id.
Notwithstanding this finding, the SRO's order furnishing relief is silent as to
reimbursement for nursing services. See id. at 34-35. In the conclusion to the order, the SRO
stated: "I shall award reimbursement of the iBrain tuition costs for the 2021-22 and 2022-23
school years and reimbursement of transportation costs to and from iBrain for the 2022-23
school year in accordance with this decision." Id. at 34. The decretal language that followed
stated that reimbursement was to cover the "costs [of] iBrain tuition for the 2021-22 and 2022-

23 school years upon the parents' submission to the district of proof of attendance and payment"
and "the costs of the student's transportation to and from iBrain for the 2022-23 school year
pursuant to the contract that the parent entered into with Sisters Travel upon the parents
submission [sic] of proof of payment." Id. at 3 5. Although conceivably the SRO so intended,
the order does not state that "tuition reimbursement for iBrain," id. at 29, included the total cost
of nursing services provided "at iBrain," id. 24. At the same time, the SRO's order does not set
out a justification for omitting nursing services from the scope of reimbursement. It does not
attempt to reconcile the exclusion of nursing services from the remedy with the substance of the
order, finding that the failure to consider such services caused A.M. to be denied a FAPE.
The Moonsammys posit that the SRO omitted payment for one-to-one nursing services
from the award either because he perceived that the parents had failed to timely submit requisite
medical documentation, or because of an "oversight" on his part. Pls.' Br. at 26-27; Pls.' Reply
Br. at 20-21. The former theory-that the SRO put the burden on the Moonsammys to furnish
documentation-is not persuasive. That is because the SRO, in finding denial of a F APE, found

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that "the IHO erred in accepting the [Department's] explanation that ... the parents were
required to send documentation to another office for a later determination of whether the student
required a 1: 1 nurse[.]" AR 26. SRO Bates stated that the Department and the CSE "failed to
appreciate that they were the entities responsible to determine whether the student needed a 1: 1
nurse in order to receive a FAPE and recommend a 1: 1 nurse if the student required one." Id.
The Moonsammys' alternative explanation that the order's omission of nursing services
from the reimbursement award was an oversight, on the other hand, is plausible. The Second
Circuit recently took note of a similar administrative oversight in an IDEA case, Scheff v. NY. C.

Dep't ofEduc., No. 23-1006-cv, 2024 WL 3982986 (2d Cir. Aug. 29, 2024). There, "due to an
oversight by the IHO, the decretal language of the [IHO's order] did not require the DOE to pay
for any nursing expenses for that same time, even though the substance of that order explained
that the lack of nursing services was part of the DOE's failure to provide [the student] a FAPE."
Id. at *2. Unlike in this case, however, the IHO there later "issued a corrected order ... that

specifically required the DOE to pay for nursing expenses, as well." Id.
The Court's judgment therefore is to remand to the SRO on this issue, too-to obtain
clarification on whether the SRO awarded reimbursement for nursing services. The Court rejects
the Department's lukewarm defense of what it conjectures was a deliberate omission of nursing
services from his award. It depicts the SRO's "exclusion" as "not an error" and as "deserv[ing]
deference." Defs.' Br. at 11; see, e.g., Rowley, 458 U.S. at 206. But the depiction of the SRO as
affirmatively deciding to deny such relief is an ipse dixit and the lack of a stated justification
undermines its argument for deference. On the contrary, the SRO repeatedly faulted the IEPs for
A.M. as inadequate because they excluded nursing services. Cf MH, 685 F.3d at 241 ("The

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SRO's or IHO's factual findings must be 'reasoned and supported by the record' to warrant
deference." (quoting Gagliardo, 489 F.3d at 114)).
Remand for clarification is thus in order. See, e.g., Hidalgo, 2021 WL 2827037 at *5
(S.D.N.Y. July 7, 2021). The SRO is "uniquely well suited" to interpret his own order and to
clarify whether the reimbursement for iBrain tuition is intended to cover one-to-one nursing
services for A.M. D.N. v. N.Y.C. Dep't ofEduc., No. 11 Civ. 9223, 2012 WL 6101918, at *5
(S.D.N.Y. Dec. 10, 2012). If the omission of nursing services was an oversight, the SRO, on
remand, should clarify, inter alia, the circumstances under which the Department is required to
fund the cost of one-to-one nursing services for A.M. at iBrain, including addressing whether the
Department's funding obligation is limited to those days A.M. was actually provided such
services at iBrain. See Scheff, 2024 WL 3982986, at *2 (noting issuance by IHO on remand of
corrected order).
The Court therefore remands to the SRO for clarification as to the disposition of the
Moonsammys' claim for nursing services.

C. Independent Educational Evaluation at Public Expense
The Moonsammys next claim that the SRO erred in denying their request that an
independent educational evaluation ("IEE") of A.M.-specifically, a neuropsychological
evaluation-be conducted at public expense. They contend that a "psychological update" that
the Department conducted on March 4, 2022, see A.R. 190-91 (the "March 2022 evaluation"),
triggered a right to such an IEE, and that the SRO erred in reversing the IHO's grant of one.
The IDEA grants the parents of a child with a disability the right to obtain an IEE of the
child, 34 C.F.R. § 300.502(a)(l), which a local educational agency must consider "in any
decision made with respect to the provision ofFAPE to the child," id.§ 300.502(c)(I). An

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evaluation "means a comprehensive assessment of the child that follows the mandatory
procedures outlined in Section 1414 of the IDEA, including assessing the child in all areas of
their disability." D.S. v. Trumbull Bd. ofEduc., 975 F.3d 152, 163 (2d Cir. 2020). An IEE is "an
evaluation conducted by a qualified examiner who is not employed by the public agency
responsible for the education of the child in question." 34 C.F.R. § 300.502(a)(3)(1); see 8
NYCRR § 200.l(z).
The IDEA provides for a publicly funded IEE in a "limited circumstance": a parent who
"disagrees" with the education agency's "evaluation" of their child has the right to an IEE "at
public expense." D.S., 975 F.3d at 158 (citing 34 C.F.R § 300.502(b)(l)). An IEE at "public
expense" means that "the public agency either pays for the full cost of the evaluation or ensures
that the evaluation is otherwise provided at no cost to the parent." 34 C.F.R. § 300.502(a)(3)(ii).
By guaranteeing a publicly funded IEE, the IDEA provides parents with "access to an expert
who can evaluate all the materials that the school must make available, and who can give an
independent opinion. They are not left to challenge an adverse evaluation without a realistic
opportunity to access the necessary evidence, or without an expert with the firepower to match
the opposition." Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 60-61(2005).
34 C.F.R. § 300.502(b) sets out the local educational agency's obligations if a parent
"disagrees with an evaluation obtained by the" agency. 14 Once the parent requests an IEE at
public expense, the "burden automatically shifts to the agency." D.S., 975 F.3d at 168.
"[W]ithout unnecessary delay," the agency must either "[f]ile a due process complaint to request
a hearing to show that its evaluation is appropriate," or"[ e]nsure that an [IEE] is provided at

14

§ 300.5(b)(5) limits the parent to "only one independent educational evaluation at public
expense each time the public agency conducts an evaluation with which the parent disagrees."
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public expense." 34 C.F.R. § 300.502(b)(2)(i)-(ii). Where a parent requests an IEE, the agency
"may ask for the parent's reason why he or she objects to the public evaluation," but it "may not
require the parent to provide an explanation and may not unreasonably delay either providing the
independent educational evaluation at public expense or filing a due process complaint to request
a due process hearing to defend the public evaluation." Id § 300.502(b)(4). In the event the
agency pursues a due process hearing and "the final decision is that the agency's evaluation is
appropriate," § 300.502(b)(3) provides that "the parent still has the right to an independent
educational evaluation, but not at public expense."
The Department does not dispute that the March 2022 evaluation was a comprehensive
assessment of A.M., triggering the parents' right to an IEE. See D.S., 975 F.3d at 163. In their
due process complaint, the Moonsammys sought "an independent neuropsychological evaluation
conducted by a qualified provider of the Parents' choosing at a reasonable market rate." AR 115.
They argued that the Department's March 2022 evaluation had "failed to thoroughly assess
[A.M.] in all areas of her suspected disability." Id. Reversing the IHO's contrary determination,
SRO Bates denied the Moonsammys' request for a publicly funded IEE. Id. at 34. He
acknowledged that they had disagreed with the March 2022 evaluation on the grounds that it
"was not sufficiently comprehensive"; "did not use a variety of assessment tools and measures";
and "failed to accurately reflect [A.M.'s] aptitude (when also taking into account her disability)."

Id. at 33. But he denied their request, finding that the Moonsammys had acted improperly by
expressing their disagreement with the evaluation "for the first time in the due process complaint
notice." AR 34. Rather, he stated, "the process [under] the IDEA and its implementing
regulations" "envisions that a [local educational agency] has an opportunity to engage with the
parent on the request for an IEE at public expense outside of due process litigation." Id at 33. If

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"an unnecessary" "delay should occur as a result" of the agency's engagement with the parents,
he stated, the parents may be entitled to a publicly funded IEE, and "at no point does a parent
need to file a due process complaint notice to obtain an IEE at public expense." Id. at 33-34
(citing D.S., 975 F.3d at 168-69). SRO Bates acknowledged that his denial of the IEE request
departed from his "previous approach of allowing the parent to initially disagree with a district
evaluation and request an IEE in a due process complaint notice." Id. at 33. SRO Bates did not
address the substance of the parents' challenge: whether the Department's March 2022
evaluation had been "appropriate." 34 C.F.R.§ 300.502(b).
The Moonsammys argue that the SRO erred in inventing a procedural limitation not
imposed by the IDEA, its implementing regulations, or the case law. They are correct. 15 The
SRO assumed that because the Moonsammys were not required to file a due process complaint
to express their disagreement with the Department's evaluation, it was impermissible for them to
have used that mechanism to do so. That is wrong. As the Second Circuit has recognized,
parents may express their disagreement in a multiplicity of "formal" and informal ways,
including in a due process complaint. D.S., 975 F.3d at 169 n.11; see also Genn v. New Haven
Ed. ofEduc., 219 F. Supp. 3d 296, 317 (D. Conn. 2016) (parent need not "announce in a

formalistic manner, 'I, Parent, disagree with this assessment!' to be found to have disagreed in

15

SRO Bates separately stated that the "parents may have delayed sufficiently clear
communication of the IEE request for a number of years" or "more likely included the request
for an IEE as an afterthought." AR 34. He did not cite evidence for this accusation. Nor, in any
event, could his stated rationale justify denying an IEE. A "parent's right to an IEE at public
expense ripens each time a new evaluation is conducted." D.S., 975 F.3d at 169-70. Thus,
regardless of prior evaluations, the Department's March 2022 evaluation of A.M. gave the
Moonsammys a right to an IEE based on their disagreement with that evaluation. Insofar as the
due process complaint was filed October 18, 2022, some 7 .5 months after the March 2022
evaluation, the SRO's claim that the Moonsammys had delayed "for a number of years" in
communicating their disagreement with that evaluation is demonstrably wrong.
34

substance with the assessment"). In D.S., the parents "first expressed their disagreement" with
the local educational agency's evaluation "by presenting the Board with a draft due process
complaint and then by filing a formal due process complaint shortly thereafter." 975 F.3d at 169
n.11. The Second Circuit did not find any impediment to that approach. It explained that the
IDEA and its implementing regulations do not "prescribe any formal way in which a parent must
disagree with an evaluation." Id. (citing Genn, 219 F. Supp. at 317). Rather, it stated, "once a
parent disagrees with an evaluation-however that disagreement is expressed-the [agency]
bears the immediate and automatic burden to respond accordingly." Id. And, the Circuit noted,
the agency had had a sufficient opportunity to respond after the parents filed their due process
complaint: the agency "filed its own due process complaint, and the two complaints-raising
identical issues-were ultimately consolidated and resolved together," which "render[ed]
harmless any departure from the standard administrative procedures required by the IDEA." Id.
That is the case here, too. The IDEA's implementing regulations placed the onus on the
Department, as the local educational agency, to respond once a parent "disagrees" with its
evaluation. 34 C.F.R. § 300.502(b)(l); see D.S., 975 F.3d at 168-69. The Department was
obliged to respond by (1) providing a publicly funded IEE; or (2) defending its evaluation in a
due process hearing; the regulations are equally unequivocal that an agency may ask for, but is
not entitled to, an explanation of the parent's objection to its evaluation. 34 C.F.R. §§
300.502(b)(2)-(4). Both avenues remained open to the Department after the Moonsanunys
expressed their disagreement in their due process complaint notice. The Department does not
argue, and the SRO did not find, that the Moonsammys' choice of this more "formal route" to
express their disagreement prevented the Department from providing an IEE at public expense.

D.S., 975 F.3d at 169 n.11. Had the Department done so, the parents' request for an IEE, in any

35

ensuing due process hearing, would have become moot. 16 The Department also does not dispute
that it could have defended its evaluation in the due process hearing initiated by the
Moonsammys before IHO Sturges. See AR 47 (IHO's finding that "the [Department] did not
raise any specific objections to an IEE at the hearing"). The Department also remained free to
file its own due process complaint defending its evaluation after receiving the Moonsammys'
due process complaint notice, as the Second Circuit recognized in D.S., 975 F.3d at 169 n.11.
The Department, however, did not avail itself of any of these mechanisms.
The "'deference owed to an SRO's decision depends on the quality of that opinion,' in
particular, where-as here-the SRO and the IHO disagree." C.L. v. New York City Dep 't of
Educ., 552 F. App'x 81, 82 (2d Cir. 2014) (quoting R.E., 694 F.3d at 189). Here, insofar as the

SRO's determination that the Moonsammys were not entitled to a publicly funded IEE was based
on his perception of"the process envision[ed]" by the IDEA, AR 33, that assessment is not
entitled to deference. His understanding of the law was not "based on substantially greater
familiarity with the evidence and the witnesses than the reviewing court," and he did not have
superior "institutional competence" on this point. MH., 685 F.3d at 244.
Based on its review of the administrative record, the pertinent facts within which are
undisputed, the Court agrees with the IHO that the Department was, and is, required to provide
the Moonsammys with an IEE at public expense. The IHO recognized the right of a parent "to
have an IEE conducted at public expense if the parent expresses disagreement with an evaluation
conducted by the district and requests that an IEE be conducted at public expense." AR 47-48
(citing 34 C.F.R. § 300.502(b) and 8 N.Y.C.R.R. § 200.5(g)(l)). He found that the Department

16

The Department was free to ask the Moonsammys the reason for their disagreement at any
point. 34 C.F.R. § 300.502(b)(4).
36

did not respond to, much less refute, the Moonsammys' contentions that the agency's March
2022 evaluation of A.M. "was not sufficiently comprehensive"; "did not use a variety of
assessment tools and measures"; and "failed to accurately reflect [A.M. 's] aptitude." AR 115.
Under these circumstances, the IHO rationally found that the Department had failed to
"demonstrate[]" that its evaluation was "appropriate" in light of the concerns raised by the
Moonsammys. 34 C.F.R. § 300.502(b). Such entitled the parents to an IEE at public expense.
The Court therefore holds that SRO Bates erred in denying the Moonsammys' request for
a publicly funded IEE. The Court enters summary judgment in favor of the Moonsammys on
their IEE claim.

CONCLUSION
For the foregoing reasons, the Court enters summary judgment in favor of the
Moonsammys on their claim that the SRO erroneously denied them an IEE at public expense.
The Court denies summary judgment to both parties on the Moonsammys' claims for
direct payment and one-to-one nursing services. The Court remands these matters to the SRO
for clarification and further development of the record and for supplementation of his order on
these points, consistent with the discussion herein. The Court encourages the SRO to complete
this process within two months. The Court directs that counsel, upon issuance of a supplemented
order by the SRO, forthwith file such order on the docket of this case.
The Clerk of Court is respectfully directed to terminate the motions pending at Dockets
20 and 24.

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SO ORDERED.

Dated: September 23, 2024
New York, New York

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