In Davis v. Banks, No. 21-CV-3265 (PKC) (PK), 2023 WL 6214107, 123 LRP 29915 (S.D.N.Y. Sept. 25, 2023), the district court awarded summary judgment to the grandmother and legal guardian of a nine-year-old student with a disability, concluding that the New York City Department of Education (DOE) denied the student a free appropriate public education (FAPE) by proceeding with an IEP meeting in the grandmother’s absence.
The student, identified as O.C., had significant medical and developmental needs, including intraventricular hemorrhage, necrotizing enterocolitis requiring bowel revision, a brain cyst, and a seizure disorder. O.C. was nonverbal and non-ambulatory and received nutrition through a gastric tube. He communicated using assistive and alternative communication technology.
In preparation for the student’s 2019–20 IEP, the Committee on Special Education (CSE) rescheduled the IEP meeting multiple times. The grandmother also timely requested that a DOE physician attend the meeting, as permitted under New York regulations. The final meeting date was June 5, 2019, at 9:00 a.m.
The CSE convened at the scheduled time, but the grandmother did not arrive by 10:00 a.m. Her advocate, who was present, explained that the grandmother had become lost on the subway and was returning home. The advocate stated that the grandmother wished to participate in person and requested that the meeting be delayed or rescheduled. The CSE asked whether the grandmother could participate by telephone, but the advocate declined, explaining that in-person participation was requested. The advocate and iBrain staff left shortly thereafter.
Testimony indicated that CSE members attempted to contact the grandmother by phone. She reportedly requested an additional thirty minutes but did not answer subsequent calls. The CSE proceeded with the meeting without the grandmother, her advocate, iBrain personnel, or the requested DOE physician. The resulting IEP recommended placement in a 12:1+(3:1) special class at a public specialized school, along with related services.
The grandmother subsequently provided ten-day notice of her intent to place the student at iBrain and filed a due process complaint. The impartial hearing officer (IHO) conducted hearings by telephone in early 2020 and ruled in favor of the grandmother, ordering funding for the iBrain placement for the 2019–20 school year. The IHO credited testimony that the grandmother had difficulty hearing and understanding the proceedings and lacked access to technology needed to meaningfully participate.
On administrative appeal, the state review officer (SRO) reversed. The grandmother then sought judicial review.
The district court held that proceeding with the IEP meeting without the grandmother constituted a procedural violation that denied FAPE. The court found that the grandmother was improperly excluded despite her clear intent to participate and the advocate’s request to delay or reschedule the meeting. The court rejected the notion that telephonic participation was a reasonable alternative under the circumstances, noting both the grandmother’s location at the time and her demonstrated difficulty participating by phone.
The court further concluded that the district committed an additional procedural violation by failing to include a physician on the CSE after a timely request. The court held that the combined procedural violations significantly impeded the grandmother’s opportunity to participate in the IEP process and deprived the student of FAPE.
Because the denial of FAPE was established on procedural grounds, the court declined to reach the issue of whether the IEP itself was substantively appropriate. The court concluded that the iBrain placement was appropriate and that equitable considerations favored reimbursement, relying on factual findings made by the IHO that were not meaningfully addressed by the SRO.
The decision highlights the importance of ensuring meaningful parental participation in IEP meetings and complying with procedural requirements governing CSE composition. Failure to do so may result in a denial of FAPE without any review of the IEP’s substantive adequacy.