E.K. v. New York City Department of Education

Background

J.A.K. attended a private school during the relevant school years. His parents privately obtained special-education itinerant teacher and behavior-support services, occupational-therapy services, tutoring, and evaluations. The New York City Department of Education later determined that J.A.K. qualified for special-education services under the Individuals with Disabilities Education Act.

In administrative proceedings, the impartial hearing officer found that the Department failed to provide J.A.K. with a free appropriate public education for part of the 2021–22 school year and all of the 2022–23 school year. The hearing officer ordered reimbursement for certain services beginning May 3, 2022. On appeal, the state review officer found that the Department had failed to provide a free appropriate public education for the entire 2021–22 school year, ordered additional reimbursement, and denied reimbursement for tutoring and behavior-support services obtained before May 3, 2022.

The parents then filed this federal case. The parties settled three of the five claims. The remaining claims concerned whether the Department had fully implemented the administrative decisions and whether the parents were entitled to reimbursement for $760.40 in credit-card processing fees charged by the service provider. The parents also sought attorneys’ fees, costs, and prejudgment interest.

Administrative Fees

The Department argued that the parents had not properly presented the credit-card processing fees during the administrative proceedings. Judge Moses rejected that argument. The invoices showing the fees had been submitted to the hearing officer, and the hearing officer had ordered reimbursement of the parents’ out-of-pocket expenses for the provider’s services without distinguishing between service charges and administrative fees. Because the Department did not raise the distinction in its appeal to the state review officer, the report recommends denying the Department’s motion on the implementation claim and directing reimbursement of $760.40.

Prejudgment Interest

The parents also sought interest on all reimbursement obligations, arguing that the Department had delayed payment. The report recommends denying that request. The Department began issuing checks less than two and a half months after receiving the first group of invoices and had reimbursed the documented expenses, except for the disputed $760.40, by August 7, 2024. Judge Moses concluded that this was not the type of unusually long delay that had supported interest awards in other cases. The report also notes that the parents had not requested interest in their administrative complaint or original federal complaint.

Attorneys’ Fees and Costs

The report concludes that the parents were entitled to reasonable attorneys’ fees because they had prevailed in the administrative proceedings and had obtained an enforceable written settlement of three federal claims. The report applied the “lodestar” method, which calculates fees using reasonable hourly rates multiplied by reasonable hours worked.

For the administrative proceedings, the report recommends $36,308 in fees. It recommends hourly rates of $400 for attorneys Steven J. Alizio and Justin B. Shane and $100 for paralegal J. Pearl Marasigan. It also recommends reducing Alizio’s and Shane’s administrative hours by 5% and Marasigan’s hours by 60%, primarily because many of her entries involved clerical tasks.

For the federal case, the report recommends $30,132 in fees. It applies hourly rates of $360 for Alizio and Shane and $100 for Marasigan, and recommends reducing the billed federal hours by 25%. The report rejects the Department’s argument that a $41,000 settlement offer cut off the parents’ ability to recover later fees, finding that the offer was made too late and was less than the fees reasonably incurred by August 27, 2024. It also recommends $405 in litigation costs for the federal filing fee.

Recommended Disposition

Judge Moses recommends that the Department’s motion for summary judgment be denied and that the parents’ motion for summary judgment be granted in part. The recommended judgment is $67,605.40: $760.40 in reimbursement, $36,308 in fees for the administrative proceedings, $30,132 in fees for the federal action, and $405 in expenses. The report and recommendation was addressed to District Judge Lorna G. Schofield, and the parties were given 14 days to file objections, subject to the stated mailing exception.