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

420 F.Supp.3d 107

Brenda L. MELENDEZ, as Parent and Natural Guardian of J.C., Brenda L. Melendez, Individually, Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

19 Civ. 02928 (ER)

United States District Court, S.D. New York.

Signed October 15, 2019

Filed October 16, 2019

Peter Glenn Albert, Karl Joseph Ashanti, Brain Injury Rights Group, Ltd., New York, NY, for Plaintiffs.

Rachel Kathryn Marcoccia, New York City Law Department, New York, NY, for Defendant.

OPINION AND ORDER

RAMOS, D.J.:

Plaintiff Brenda L. Melendez ("Melendez"), the parent of J.C., a nine-year-old boy with a serious brain injury, seeks injunctive relief pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. , and related state law, against Defendant New York City Department of Education (the "DOE"). J.C. attended the International Academy of Hope ("iHope") before enrolling at the International Institute for the Brain ("iBrain"). On November 13, 2018, DOE denied Melendez's request for pendency at iBrain. Melendez seeks an injunction vacating this pendency order and ordering that the DOE fund J.C.'s pendency placement at iBrain for the 2018-2019 school year until a final adjudication on Plaintiff's due process complaint against DOE has been resolved.

For the reasons stated below, the Court GRANTS the preliminary injunction in part.

I. Statutory and Legal Background

Congress passed the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A) (emphasis added). It defines free appropriate public education ("FAPE") as "appropriate preschool, elementary school, or secondary school education," "provided at public expense, under public supervision and direction, and without charge," and "in conformity with the individualized education program [‘IEP’] required under section 1414(d) of this title." Id. § 1401(9). The statute further mandates that the FAPE "meet the standards of the State educational agency." Id.

As part of the child's FAPE, "the IDEA provides for the creation of an IEP." Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz , 290 F.3d 476, 481 (2d Cir. 2002). The IEP includes, among other things, "a statement of the child's present levels of academic achievement and functional performance," "a statement of measurable annual goals," and "a description of how the child's progress toward meeting the annual goals ... will be measured." 20 U.S.C. § 1414(d)(1)(A)(i).

"Congress repeatedly emphasized throughout the Act the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness." Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). As a result, states must allow parents "to seek review of any decisions they think inappropriate." Id. at 312, 108 S.Ct. 592.

In New York, parents may request an "impartial due process hearing" before an impartial hearing officer ("IHO"). N.Y. Educ. Law § 4404(1). If they are unsatisfied with the IHO's decision, they can appeal the decision to a state review officer ("SRO"). Id. § 4404(2). "The SRO's decision is final[ ] and concludes the state administrative review." Schutz , 290 F.3d at 481. "Upon issuance of a final administrative decision, however, a dissatisfied party has the right to bring a civil action in either federal or state court pursuant to the IDEA." Id.

The IDEA further provides that, "during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child." 20 U.S.C. § 1415(j) (emphasis added). To determine a child's "then-current educational placement," Second Circuit courts consider: (1) "the placement described in the child's most recently implemented IEP; (2) the operative placement actually functioning at the time when the stay put provision of the IDEA was invoked; or (3) the placement at the time of the previously implemented IEP." Doe v. E. Lyme Bd. of Educ. , 790 F.3d 440, 452 (2d Cir. 2015) (internal quotation marks and citations omitted).

Under Second Circuit precedent, "the term ‘educational placement’ refers only to the general type of educational program in which the child is placed." Concerned Parents & Citizens for the Continuing Ed. at Malcolm X (PS 79) v. New York City Bd. of Educ. , 629 F.2d 751, 753 (2d Cir. 1980). Indeed, "[t]he IDEA's pendency provision does not entitle a disabled child to keep receiving services from the exact same service providers while his proceedings are pending; instead, it only entitles the child to receive the same general type of educational program." T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist. , 752 F.3d 145, 171 (2d Cir. 2014). Furthermore, "[i]t is up to the school district to decide how to provide that educational program, at least as long as the decision is made in good faith." Id. If, however, the school district offers to provide pendency services and the parents enroll their child in a private school anyway, "it is within the district court's authority to order [the school district] to reimburse [the student's] parents for pendency services up to the amount that it would have cost [the school district] itself to provide the required pendency services." Id. at 172. Importantly, parents can invoke the stay-put provision to maintain even just some of the services that their child receives at a public school. E. Lyme Bd. of Educ. , 790 F.3d at 453-54 (2d Cir. 2015) (granting a student pendency funding for some services related to the student's IEP even though the school board "argue[d] that the Parent should not be permitted to obtain reimbursement for tuition at [a private school] by unilaterally enrolling the Student there").

In light of this precedent, some courts within this District have held that "parents may move their child from a previously approved private facility to another private facility and still receive ‘stay put funding’ as long as the new facility has the same ‘general type of educational programming’ as the approved facility." Navarro Carrilo v. New York City Dep't of Educ. , 384 F.Supp.3d 441, 447 (S.D.N.Y. 2019) (vacating an IHO's decision and requiring DOE to provide stay-put funding for a student at iBrain because her general educational programming was substantially similar to the programing that she received at iHope); see also Soria v. New York City Dep't of Educ. , 397 F.Supp.3d 397, 402-05 (S.D.N.Y. 2019) (finding that a pendency placement at iBrain was appropriate where it was substantially similar to the program at iHope); Abrams v. Carranza , No. 19 Civ. 4175 (AJN), 2019 WL 2385561, at *2 (S.D.N.Y. June 6, 2019) (enforcing a pendency order that found "the program available at iBRAIN substantially similar to the program available at iHOPE and require[ed] the DOE to fund [the student's] placement at iBRAIN"); Cruz v. New York City Dep't of Educ. , No. 18 Civ. 12140 (PGG), 2019 WL 147500, at *11 (S.D.N.Y. Jan. 9, 2019) (vacating an IHO's decision and remanding the case to the IHO to decide "whether the educational placement provided by the Brain Institute [was] substantially similar to the placement provided by Hope Academy in the 2017-18 school year").

At least two courts, however, have come to the opposite conclusion. In de Paulino v. New York City Department of Education , the court denied an application for a preliminary injunction and then a motion for reconsideration because "allowing parents to unilaterally move a student from his or her proper pendency placement simply because the parents allege their preferred placement is ‘substantially similar’ runs afoul of the ‘stay put’ provision's entire purpose." No. 19 Civ. 222 (GBD), 2019 WL 2498206, at *3 (S.D.N.Y. May 31, 2019). And in Neske v. New York City Department of Education , the Court found that plaintiffs had failed to state a claim because " § 1415(j) does not require the City to fund a student's attendance at a preferred, ‘substantially similar’ school, at least not when the existing school is concededly able to service the student's IEP." 19 Civ. 2933 (VEC), 2019 WL 3531959, at *7 (S.D.N.Y. Aug. 2, 2019) (citing de Paulino , 2019 WL 2498206, at *3 ).

Three of the foregoing district court decisions are currently on appeal. The student appealed the denial of its request for preliminary injunction in de Paulino , see Notice of Appeal, No. 19 Civ. 222 (GBD), ECF No. 90 (S.D.N.Y. June 3, 2019), and the DOE appealed the grant of preliminary injunction in both Navarro Carrilo , Notice of Appeal, No. 19 Civ. 2944 (CM), ECF No. 21 (S.D.N.Y. June 18, 2019), and Soria , Notice of Interlocutory Appeal, No. 19 Civ. 2149 (AT), ECF No. 32 (S.D.N.Y. Aug. 16, 2019). The court in Navarro Carrilo stayed the case, pending the Second Circuit's decision. Order Granting Say Pending Appeal, No. 19 Civ. 2944 (CM), ECF No. 29 (S.D.N.Y. June 26, 2019). The court in Soria declined to stay the case. Order Denying Letter Motion to Stay, No. 19 Civ. 2149 (AT), ECF No. 36 (S.D.N.Y. Aug. 21, 2019).

II. Statement of Relevant Facts

Melendez is the parent and natural guardian of J.C. Doc. 13 at 1. J.C. is a nine-year-old boy with a brain injury and global developmental impairments. Id. As a result, J.C. cannot walk or speak and requires a high degree of attention, instruction, and intervention. Id. ; see also Doc. 13, Declaration of Karl Ashanti ("Ashanti Decl."), ¶ 2. On August 29, 2016, the DOE created an IEP for J.C. Doc. 12, Ex. A (Individualized Education Program for J.C.). For the 2016-2017 school year, he enrolled in iHope and the DOE funded his placement. Ashanti Decl, ¶ 4.

On April 1, 2017, iHope proposed an IEP for the 2017-2018...