Toth ex rel. T.T. v.

GEZA TOTH on behalf of T.T., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

14-cv-3776 (SLT) (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: January 9, 2017

January 5, 2017

MEMORANDUM AND ORDER

TOWNES, United States District Judge:

On June 11, 2014, Plaintiff Geza Toth filed a complaint, pro se, on behalf of his minor son, T.T., alleging that Defendant New York City Department of Education failed to provide T.T. with a "free appropriate public education" as required under the Individuals with Disabilities Education Improvement Act ("IDEA"), 42 U.S.C. §§ 1400 et seq. (Compl., ECF No. 1.) Defendant moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (h)(3) for lack of subject-matter jurisdiction on the grounds that Plaintiff's claims are moot or, alternatively, pursuant to Federal Rule of Civil Procedure 12(c) for failure to state a claim. (ECF No. 38.) Plaintiff opposed the motion and cross-moved to amend the Complaint. (ECF Nos. 39, 42.) On August 27, 2015, this Court referred both motions to United States Magistrate Judge James Orenstein ("Judge Orenstein") for a report and recommendation. (ECF No. 47.)

On March 14, 2016, Judge Orenstein issued a Report and Recommendation (the "R&R") recommending that Defendant's motion be granted to the extent that it seeks dismissal for lack of subject-matter jurisdiction and Plaintiff's cross-motion to amend the Complaint be denied. (ECF No. 48.) On April 9, 2016, Plaintiff filed objections to the R&R ("Objections"). (ECF No. 56.) Plaintiff's Objections are without merit. Accordingly, the Court adopts the R&R in its entirety.

BACKGROUND

I. STATUTORY FRAMEWORK

Any state that receives IDEA funding must provide all disabled children with a "free appropriate public education." 20 U.S.C. § 1412(a). "A free appropriate public education ["FAPE"] must include special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits." C.F. v. New York City Dep't of Educ., 746 F.3d 68, 71-2 (2d Cir. 2014) (citations omitted). "The key element of the IDEA is the development of an IEP [individualized education program] for each handicapped child, which includes a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006) (internal quotation marks and citation omitted); see 20 U.S.C. § 1414(d).

"New York parents who disagree with their child's IEP may challenge it in an impartial due process hearing, ... before an IHO [impartial hearing officer] appointed by the local board of education, ...." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (citing 20 U.S.C. § 1415(f), N.Y. Educ. Law § 4404(1)). Parents can appeal the IHO's decision to a state review officer ("SRO") and challenge the SRO's decision in a state or federal lawsuit. Id. (citing 20 U.S.C. § 1415(g) and (i)(2)(A), N.Y. Educ. Law § 4404(2)). Parents must exhaust the administrative review process before raising IDEA claims in a state or federal lawsuit. Cave v. East Meadow Union Free Sch. Distr., 514 F.3d 240, 245 (2d Cir. 2008) ("[o]nly after exhaustion of these procedures has an aggrieved party the right to file a suit in a federal or state court") (citing 20 U.S.C. § 1415(i)(2)(A)). "Failure to exhaust the administrative remedies deprives the court of subject matter jurisdiction." Id. (citations omitted). A party need not exhaustadministrative remedies only if the party can show that "(1) it would be futile to resort to the IDEA's due process procedures; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; or (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies." Murphy v. Arlington Centr. Sch. Dist. Bd. of Educ., 297 F.3d 195, 199-200 (2d Cir. 2002) (J. Sotomayor) (citing Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987) (quoting H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 (1985))).

The IDEA 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). Section 1415(j) is commonly referred to as the pendency provision. A party need not administratively exhaust a claim alleging violation of the pendency provision. Murphy, 297 F.3d at 199-200; Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 455 (2d Cir. 2015).

II. FACTS

These facts are drawn from the Complaint, the sealed record of the administrative proceedings, and exhibits filed in support of the motions currently in front of the Court. T.T. was born on October 2, 2007. (Compl. ¶ 7.) On June 10, 2010, he was diagnosed as autistic; his diagnosis is not in dispute. (Id. at ¶ 8.)

T.T. subsequently received ABA therapy.¹ From June 2010 to August 2011, he received 20 hours of therapy a week. (Id.) Starting August 2011, that number was reduced to 10 hours a week. (Id.) From July 2011 through August 2012, he attended a private school with "ABAtrained teachers" and was progressing well. (Id. at ¶ 10.) But when he aged out, his parents placed him in public school beginning in September 2012. (Id. at ¶ 12; Sept. 3, 2013, administrative hearing transcript at 193.) He was placed in a 6:1:1 classroom (Sept. 18, 2013, administrative hearing transcript at 406), which means that there was a teacher and an aide attending to six students. However, T.T. did not perform well in that setting. By June 2013, the school informed his parents that his behavior was unmanageable, that he was simply staring at the ceiling during class, and that he was "not learning anything ...." (Compl. ¶ 20; Sept. 3, 2013, administrative hearing transcript at 193.)

The IEP that Defendant formulated for T.T. commencing December 28, 2012 provided that he continue in the 6:1:1 public classroom, but it did not call for any ABA therapy. (Pl. Opp. Memo. of Law,² Decl. of Dr. Karen M. Hopkins, Ex. A at 9; Compl. ¶ 18.) The projected date of the IEP's next review was December 11, 2013. (Id. at 1.) In January 2013, T.T.'s parents filed a "due process complaint." In March 2013, Plaintiff and Defendant entered into a Resolution Agreement whereby: (i) Defendant would provide for 10 hours of SETSS³ therapy from July 5, 2013, through January 31, 2014, and (ii) by January 1, 2014, Defendant would "consider" at-home SETSS services for the rest of the 2013-14 school year. (Id. at ¶ 19; PX⁴ E and I.) T.T. was still attending public school.

On June 28, 2013, T.T.'s parents filed another due process complaint seeking a placement at the Brooklyn Autism Center ("BAC") and an increase in T.T.'s at-home therapyfrom 10 hours to 15 hours a week. (PX A at 1.) On December 1, 2013, the IHO denied Plaintiff's claim and, on February 12, 2014, the SRO affirmed that decision. (Compl. ¶¶ 27, 28.)

The IEP commencing January 1, 2014 continued to place T.T. in a 6:1:1 public school classroom with no SETSS services. (Pl. Opp. Memo. of Law, Decl. of Dr. Karen M. Hopkins, Ex. B at 6.) In April 2014, the parties entered into another Resolution Agreement whereby: (i) Defendant would provide 15 hours a week of at-home SETSS therapy for a year, starting April 23, 2014, and (ii) by April 1, 2015, additional at-home SETSS services through April 23, 2016, would be considered. (Def. Moving Memo. of Law,⁵ Decl. of Lyssa M. Sampson, Ex. A at ¶ 4.)

On June 11, 2014, Plaintiff filed the instant lawsuit. On March 4, 2015, the parties entered into another Resolution Agreement whereby: (i) on or before March 30, 2015, the Central Based Support Team ("CBST") would identify an "appropriate" private school program for T.T., and (ii) 15 hours per week of at-home SETSS services would be provided for a year starting April 24, 2015. (Def.'s Reply Memo. of Law in Support of its Motion to Dismiss, Decl. of Lyssa M. Sampson, Esq., Ex. A at ¶ 1.) Thus, T.T. was continually receiving ABA therapy at home from July 5, 2013, through April 24, 2016. The CBST subsequently identified a placement for T.T. at the Association for Metroarea Autistic Children ("AMAC"), starting July 1, 2015. (Id. at ¶ 5.) The AMAC uses the ABA method.⁶

The IEP commencing July 6, 2015 provided for 15 hours of at-home SETSS services, "as per previous impartial hearing and resolution agreement." (Obj. to Report and Recommendations Dated March 14, 2016 ("Pl.'s Obj."), Ex. C at 4, ECF No. 50.) The IEP also provided for T.T. to attend the AMAC school. (Id. at 10.) On March 29, 2016, Plaintiff was notified that the at-home therapy was scheduled to end on April 24, 2016. (Pl.'s Obj. ¶ 3, Ex.A.) On April 4, 2016, Plaintiff initiated an administrative proceeding seeking, inter alia, "[c]larification" as to when the at-home therapy provided for in the July 6, 2015 IEP was to end. (Memo. of Law in Resp. to Pl.'s Obj. to the Report and Recommendation of Judge Orenstein, Decl. of Lesley Berson Mbaye, Ex. A.) Neither party has informed the Court whether T.T. is still receiving one-on-one therapy at home.

III. PROCEDURAL HISTORY

In the Complaint, Plaintiff challenged the IEP, without specifying which IEP, for "fail[ing] to consider a 1:1 ratio placement classroom, despite overwhelming evidence that Terence required one, and instead placed Terence in a 6:1:1 classroom," thereby denying T:T a FAPE. (Compl. ¶ 6.) He also challenged the IHO and SRO denials of his request to place T.T. in the BAC and to increase the therapy hours to 15 hours a week. (Id. at ¶¶ 30-2.) Plaintiff seeks the following relief:

"(a) an independent review and consideration of the underlying administrative record and any additional evidence this Court may find appropriate to consider;

(b)...