Cruz v. N.Y.C. Dep't of Educ.

NEYSHA CRUZ, individually, andNEYSHA CRUZ, as p/n/g of O.F., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

19 Civ. 856 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 20, 2020

ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Neysha Cruz is the mother of O.F., a 15-year-old boy with developmental impairments. In this action against Defendant New York City Department of Education ("DOE"), she seeks injunctive relief under the Individuals with Disabilities Education Act ("IDEA"). (Cmplt. (Dkt. No. 1)) Plaintiff appeals from an April 5, 2019 order of a state review officer ("SRO") which, inter alia, found that the International Institute for the Brain (the "Brain Institute") constitutes O.F.'s pendency placement. The SRO ordered DOE to pay O.F.'s tuition at the Brain Institute retroactive to September 14, 2018. (Apr. 5, 2019 SRO Decision (Dkt. No. 35-1) at 11)¹ In accordance with the SRO's decision, DOE paid O.F.'s tuition for the 2018-19 school year, retroactively to September 14, 2018. Plaintiff contends that DOE is obligated to pay O.F.'s tuition at the Brain Institute retroactive to July 9, 2018. (Pltf. Opp. (Dkt. No. 60) at 6)

Pursuant to Federal Rule of Civil Procedure 12(b)(1), DOE has moved to dismiss for lack of subject matter jurisdiction, arguing that Plaintiff's claims are moot. DOE has alsomoved to dismiss for failure to state a claim under Rule 12(b)(6). For the reasons stated below, DOE's Rule 12(b)(6) motion to dismiss will be granted .

BACKGROUND

I. FACTS

Plaintiff is the mother of O.F., a 15-year-old boy who suffers from a brain injury, cerebral palsy, and a seizure disorder. (Cmplt. (Dkt. No. 1) ¶¶ 6-7) These impairments have significantly affected O.F.'s educational abilities and performance. (Id. ¶ 7) He is non-verbal and non-ambulatory, and he requires a high degree of individualized attention and intervention in the classroom. (Id.)

During the 2017-18 school year, O.F. was a student at the International Academy of Hope ("Hope Academy"). (Id. ¶ 9) At Hope Academy, O.F. had an extended school day and a twelve-month academic program. (Id.) In a January 12, 2018 decision, an impartial hearing officer ("IHO") found that Hope Academy was "meeting [O.F.'s] extensive needs," and that he was "benefiting from his time at" the school. (Jan. 12, 2018 IHO Decision (Dkt. No. 13-1) at 8) The IHO directed DOE to pay O.F.'s tuition at Hope Academy for the 2017-18 year (id. at 10), and DOE did so without appealing. (Cmplt. (Dkt. No. 1) ¶ 9; Def. Br. (Dkt. No. 55) at 8, 10 n.2)

On June 21, 2018, Plaintiff provided DOE "with a ten (10) day notice" that she intended to place O.F. in a different school for the 2018-19 school year - the Brain Institute.² (Cmplt. (Dkt. No. 1) ¶ 11; 10-Day Notice Ltr. (Dkt. No. 13-1) at 15) On July 9, 2018, Plaintiff began school at the Brain Institute. (Apr. 5, 2019 SRO Decision (Dkt. No. 35-1) at 6 n.5) That same day, Plaintiff filed a due process complaint against the DOE, seeking, inter alia, a "stay-put" pendency order under 20 U.S.C. § 1415(j) requiring DOE to fund O.F.'s placement at the Brain Institute during the 2018-19 school year while Plaintiff's complaint was adjudicated.³ (Cmplt. (Dkt. No. 1) ¶ 12; Jan. 12, 2018 IHO Decision (Dkt. No. 13-1) at 9)

II. PROCEDURAL HISTORY

A. The IHO's September 4, 2018 Decision

An IHO conducted a pendency hearing on August 24, 2018. (Cmplt. (Dkt. No. 1) ¶¶ 13-14) At the hearing, Plaintiff argued that the Brain Institute's educational program for O.F. was "substantially similar" to O.F.'s educational program at Hope Academy, and therefore the Brain Institute constituted Plaintiff's pendency placement. (Id. ¶ 14; Aug. 24, 2018 Hearing Tr. (Dkt. No. 13-1) at 34-37) At the hearing, however, the Brain Institute's director of special education testified that the school's vision services department would not be fully staffed until September 2018. (Aug. 24, 2018 Hearing Tr. (Dkt. No. 13-1) at 49-50)

In a September 4, 2018 Interim Order on Pendency, the IHO found that "the reasons why O.F. can no longer attend [Hope Academy] [are] fundamental to a determination of pendency where pendency lies in a parental placement." (Sept. 4, 2018 IHO Decision (Dkt. No. 13-1) at 66) The IHO therefore directed Plaintiff to "produce evidence regarding why O.F. can no longer continue attending [Hope Academy] for the 2018/19 school year for the purpose of determining pendency." (Id. at 67) "Absent such evidence," the IHO would not hear "the issue of a substantially similar placement." (Id.) Plaintiff appealed the IHO's decision to an SRO. (Cmplt. (Dkt. No. 1) ¶ 16)

B. The SRO's November 16, 2018 Decision

In a November 16, 2018 decision, an SRO concluded that when a parent unilaterally changes a child's placement, a school district may nonetheless be required to fund the new placement where it is "substantially similar to the private programing that was endorsed in the ruling granting the parent[] tuition reimbursement." (Nov. 16, 2018 SRO Decision (Dkt. No. 13-1) at 83) While finding that it was not unreasonable for the IHO to inquire why O.F. could no longer attend Hope Academy, the SRO ruled that the IHO erred in making the "substantial similarity" determination "contingent on the parent's production of evidence that the student can no longer attend [Hope Academy]." (Id. at 87) According to the SRO, it was improper to "require that the parent first show the student was incapable of attending the [prior] school before reaching the issue of substantial similarities." (Id.)

The SRO concluded that a remand was necessary because the evidentiary record was "incomplete." (Id. at 86) The SRO directed the IHO to determine, on remand, whether (1) O.F. was receiving necessary vision services at the Brain Institute, and (2) the parent counseling and training services and assistive technology services offered at the Brain Institute were comparable to those provided at Hope Academy. (Id.) Once the IHO had made these determinations, the SRO directed the IHO to proceed as follows:

If, after comparing the similarity or lack thereof between [Hope Academy] and [the Brain Institute] with regard to the student's vision services, parent counseling and training services, and assistive technology services, the [IHO] finds no significant changes, the [IHO] should enter an order directing the district to fund the student's stay-put at [the Brain Institute]. In the event that [the Brain Institute] was unable to implement all of the student's programming at the beginning of the school year but became able to at some point thereafter (i.e., vision services became available at some later date), the [IHO] should determine the date at which the two programs became substantially similar and issue a directive awarding reimbursement from the date that the two programs became substantially similar.

(Id.)

C. The IHO's November 22, 2018 Decision

In a November 22, 2018 decision, the IHO ruled that the Brain Institute was not O.F.'s pendency placement. (Nov. 22, 2018 IHO Decision (Dkt. No. 13-1) at 90-93) Notwithstanding the SRO's November 16, 2018 decision, the IHO "declin[ed] to address the issue of substantial similarity of the [Hope Academy] and [Brain Institute] placements," because "the fundamental issue of why the student was removed by the parent from [Hope Academy] was not answered by the parent."⁴ (Id. at 93)

D. Prior Federal Court Action

On December 21, 2018, Plaintiff commenced an action in this District seeking, inter alia, an order vacating the IHO's November 22, 2018 decision and designating the Brain Institute as O.F.'s pendency placement. See Cruz v. N.Y.C. Dep't of Educ., No. 18 Civ. 12140 (PGG), 2019 WL 147500, at *1 (S.D.N.Y. Jan. 9, 2019). The Court concluded that "[t]he hearing officer [had] ignored the [SRO's] directive" to determine "substantial similarity." Id. at *6. The Court vacated the IHO's November 22, 2018 decision, and ordered the IHO to comply with the SRO's directive and "issue a revised Final Order of Pendency addressing, inter alia, whether the educational placement provided by the Brain Institute is substantially similar to the placement provided by Hope Academy in the 2017-18 school year." Id. at *11.

E. The IHO's January 23, 2019 Amended Decision

On January 23, 2019, the IHO issued an amended decision finding that the Brain Institute's educational program for O.F. was substantially similar to the Hope Academy'seducational program for O.F., and ordered DOE to "fund tuition for O.F. to attend [the Brain Institute] as pendency in this matter." (Jan. 23, 2019 IHO Officer Decision (Dkt. No. 13-1) at 126-27) The IHO reasoned that "O.F. is receiving parent counseling and training, assistive technology, and hearing education services at [the Brain Institute] that are substantially similar to the same services received at [Hope Academy] in the 2017/18 school year."⁵ (Id. at 127) The IHO ordered DOE to pay O.F.'s full tuition from July 10, 2018 on.⁶ (Jan. 23, 2019 Hearing Officer Decision (Dkt. No. 13-1) at 127) Citing a "[c]onflict of [i]nterest," and without offering any further explanation, the IHO recused himself after issuing his decision. (Jan. 24, 2019 Notification (Dkt. No. 13-1) at 132)

On January 24, 2019, DOE informed Plaintiff's counsel that DOE was contemplating an appeal (Jan. 23, 2019 email (Dkt. No. 13-1) at 137), and on January 28, 2019, DOE notified Plaintiff's counsel that DOE would not fund O.F's education at the Brain Institute while DOE's appeal was pending. (Jan. 28, 2019 email (Dkt. No. 13-1) at 136) Plaintiff commenced the instant action on January 20, 2019. (Cmplt. (Dkt. No. 1))

F. The SRO's April 5, 2019 Decision

On March 4, 2019, DOE appealed the IHO's January 23, 2019 pendency decision. (Mar. 4, 2019 DOE Appeal Papers (Dkt. No. 26-2) at 1-17) Although DOE conceded that the programs at the two schools were substantially similar as of September 14, 2018 - when theBrain Institute began to offer O.F. vision...