A.R. as Parent and Natural Guardian of N.B. v. New York City Department of Education, No. 1:2012cv07144 - Document 24 (S.D.N.Y. 2013)
Court Description: OPINION: Based upon the conclusions set forth above, the motion of the DOE to dismiss the Complaint is denied re: 9 MOTION for Judgment on the Pleadings filed by New York City Department of Education. (Signed by Judge Robert W. Sweet on 9/13/2013) (cd)
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UNITED STATES DIST CT COURT SOUTHERN DISTRICT OF NEW YORK -x A.R., as Parent of N.B., a Minor, Natural Gua PIa iff, 12 Civ. 7144 inst- OPINION NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants. ----x A P PEA RAN C E S: Attorne for PIa iff LAW OFFICE OF ANTON PAPAKHIN 1359 Coney Island Avenue Brooklyn, NY 11230 By: Anton Papakhin, Esq. ARTHUR BLOCK ATTORNEY AT LAW 437 Madison Avenue, 29th Floor New York, NY 10022 By: R. Block, Esq. Attorneys for Defendant MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 Eric Porter, Esq. Sweet, D.J. The defendant New York City Department of Education ("DOE" or the "Defendant") has moved pursuant to Fed. R. Civ. P. 12(c) ("Rule 12(c)") to dismiss the complaint ("Complaint") of Plaintiff A.R. (the "Plaintiff") for lack of subject matter jurisdiction. The Complaint has asserted a claim for special education appeal (the "First Claim") and a claim for failure to comply with an administrative order (the "Second Claim") . Upon the conclusions set forth below, the motion of the DOE is denied. The resolution of this motion requires the Court to parse the procedures by which the DOE determines the special educational needs of an individual and the scope of its limited review powers to seek a resolution which has thus far evaded the parties, both ably represented by skilled counsel. As issue lS the cost of one half year of tuition for the student N.B. at a residential facility in Massachusetts, an issue which most regrettably will not be resolved by the disposition of the present motion, which is characterized by the DOE as raising a jurisdictional issue and by the Plaintiff as seeking a windfall. 1 Prior Proceedings Pla iff A.R. initiated this action on September 21, 2012, on behalf of N.B., her granddaughter and a student wi disability, see Individuals , inter alia, a tion funding pursuant to the th Disabilities ion Improvement Act ("IDEA") in the amount of $129,080.30, the 11 cost of N.B.'s tuition for a six month Rotenberg Center ("JRC"), a riod at the residential facility located Plaintiff Massachusetts, at whi laterally placed N.B. 2011-12 s year ("SY"). an appeal an administrative Education rtment's Of First Claim of the ce of State Review, in whi Second Claim is brought sabilities Act pursuant to the Americans with Section 504 of the Rehabil ) ) and ation Act of 1973 (t "Rehabilitation Act") seeking a remedy for the fai (" the ned that JRC was not an appropriate placement for N.B. DOE to comply with an aint is cision by the New York State ew Officer ("SRO") State the latter half of the re of the r of the Impartial Hearing Officer . The instant motion was heard and marked fully submitted on April 24, 2012. 2 The Administrative Process On May 17, 2011, t convened a meeting of t Committee on Special Education ("CSE") to formulate an Individualized Education P 12 SY. for N.B. for t ram ("IEP") 2011 The meeting was attended by Annette Standford, cial service provideri Marie Su education teacher and re Addo, district representat i Elizabeth McCollough lson, zette Velez, counselor; and PIa school psychologist; is iff. The CSE classified N.B. as learning disabled, and re that she be plac in an Integrated Co-Teaching ("ICT") classroom in a community school, and provided with one 30 minute counseling session r week. N.B. subsequently ninth grade at Transit Tech High School ("OPC") to hearing. program iff thereafter submitted a Due Process Complaint DOE dated October 7, 2011 In r OPC, sting an impartial plaintiff chall adequacy of the "immediate in the IEP, and residential placement at JRC," or, . tuit ("Transit"), a DOE ember of 2011. public high school, a attending t alternative, "direct funding" at JRC for the 2011-12 SY. 3 Plaintiff did sabled in her not challenge N.B.'s classification as learni DPC. The hearing before the rHO was ld on December 16, 2011, at which time N.B. continued to attend Transit and had not been admitted to JRC. a Plaintiff testifi at the hearing, with a representative from JRC assistant principal at Transit. Papa khin. Esq. (" Papa khin") , at was not currently at y acknowledged that N.B. and that Plaintiff, despite the ope, relief sought in the was accordingly not in fact seeking tuition funding pursuant to t test. iff's counsel, Mr. Anton a During the heari Burlington/Carter three prong "this Papakhin st case. The parent has not si school obligating her to that Plaintiff is "as lS not a tuition reimbursement a contract with the private y t r tuition." Papakhin also stat acement" at JRC, and fur aintiff is "not asking for p clarified years in a row. [P intiff is] not asking until the end of three acement even school year. The child will [JRC] and t strict can reconvene at to change t the p ram recommendation." 4 During r at time s closing statement, Papahkin in reiterated that " Carter/Burlington reimbursement case where the child in t school at a f the contract, a so forth . s is not a parent has placed ial risk, cosigned . . this is not a three-prong test case." Following the conclusion of IHO hearing but prior to the issuance of the IHO's decision, Plaintiff unilaterally removed N.B. from Transit and enroll r at JRC, beginning on December 29, 2011. IHO issued a decision on January 20, 2012. the IHO t the DOE had not of appropriate public education ("FAPEff) also ned that the record red N.B. a free for the 2011-12 SY, she d not support a findi JRC, an out-of state residential cility in Massachusetts, was N.B.'s Least Restrictive Environment ("LREff), and there ce N.B. there tempora denied Plaintiff's request to pending however, lop a new IEP. CSE reconvening to materials submit were sufficient to i the CSE in creati 5 re ly IHO did, of the Plaintiff did not agree intiff's additional eva heari T r the DOE to re-evaluate N.B. within 14 decision (assuming the DOE While the during the a new IEP to reconvene a new lEP meeting "within recommendation) , se evaluations." seven days of the completion of r dire that the in developing the new lEP, must consider all the testimony and at the hea educat The IHO dence submitted by Plaintiff , allow Plaintiff to include any mental health or professionals in to devel meeting whom she necessary an appropriate program, and "tak[e] into consideration both non-public day and residential programs." lowing s receipt of the IHO 24, 2012, to confirm with him contacted Papakhin on Janua Plaintiff which evaluative materials t IHO hea at JRC," that sion, DOE submitted during replied that N.B. "was already Papa "JRC treatment team will partici aced te by phone at the meeting," and that Plaintiff "will be appealing this sion and Order to the lHO extent d not awa the parent tuition funding for residential placement at JRC." On January 27, 2012, DOE a dete ned that Plaintiff's evaluative materials were arrange for N.B. to be insufficient, and would there reevaluated be rHO. sed Papakhin that it had DOE in re Februa 3, 2012, the deadline set by Mr. Papakhin that it "will be unable to 6 conduct these evaluations by made available. In addition, 3 if the student is not reconvene of the IEP cannot ld until such evaluations are completed." Also on January 27, 2012, the DOE provided a notice, by hand, to Plaintiff, receipt. The notice s signed the notice to indicate her 1 an evaluation for N.B. 2, at 8:00 a.m. at Trans following Thursday, for .3 Plaintiff wrote on the notice, "I give permttiom [sic] my daug [sic] [D.R.] to come y [sic] in my place." De te receiving notice of this evaluation, neither Plaintiff, her daughter D.R., or N.B. attended the evaluation on ry 2, 2012. Therea r, on February 8, 2012, P iff served DOE with a Notice of Intention to Seek Review ("NOISR"), to appeal the IHO decision to the SRO. that she i Plaintiff's petition to the SRO "reverse the IHO to the extent that s JRC and indicating rect sted that the SRO not award tuition at [DOE] to pay the cost of [N.B.'s] tuition from the date of her enrollment on December 29, 2012 until June 30, 2012." 7 The SRO ision, dated May 24, 2012, denied the relief Plaintiff determined that t N.B.'s LRE. Furt challenged N.B.'s sted and dismissed record supported a fi The SRO that JRC was not r, the SRO found that the Plaintiff had not 1 s Y classification, not State-approved to like N.B., classif al. r educational se as The SRO concl to remand the matter to JRC was ces to children, rning disabled. that the rHO was therefore correct CSE. The SRO also determined Plaintiff's request for tuition reimbursement or t rect student's tuition at JRC was not yet ripe for re N.B. from public school, the e the parent had not N.B. at JRC, and t rent had not unilaterally pi was not obligated to pay rent costs of N.B.'s tuition at JRC 2011-12 SY, and therefore t rHO lacked jurisdiction over issue. , citing Papakhin's SRO additionally statements during the rHO hearing, t Plaintiff had " tuition reimbursement and direct nt of the student's tuition at JRC as relief." 8 r On June 18, 2012, t CSE held an annual IEP for the 2011-2012 SY. members not only voi ew t agreement with the Parent but also issued an IEP re ng that N.B. be placed in a twelve month residential New York State approved non-public school 2012, the beginning of t N.B. has been rece JRC. in a ("NPS"). Since July 1, 2012-13 twelve month s free appropriate public e (" FAPE") through De ir 1 year, tion 's funding of her placement at the 1 The Statutory Scheme and the Burlington/Carter Test For Tuition Funding IDEA, 20 U.S.C. s children with comprised of " § 1400 et s , directs that ilities are entitled to a FAPE that is 1 education and reI services designed to meet their uni needs./I 20 U.S.C. Forest Grove S Dist. v. T. A., 557 U.S. 230, 238 Comm. of Burlin § 1400(d) (1) (A); see also on v. Dept. of Educ., 471 U.S. 359, 367 (1985); Bd. of Educ. v. Rowley, 458 U.S. 176, 188 states must ensure that disabled chil tai (2009); S ic education, in confo (1982). Participat n receive personally ty with and through the 1 The DOE's funding responsibility for N.B.'s placement at JRC prior to y 1, 2012 is what is at stake in the instant motion. 9 use of individualized education programs. 20 U.S.C. and (14); Rowley, 458 u.s. at 207. § 1401(9) In New York State, the formulation of IEPs is delegated to a local CSE, consisting of school board representatives, educators, a psychologist, and parents. N.Y. Educ. Law § 4402. The CSE evaluates students' educational status and areas for improvement. N.Y. Educ. Law § 4402 (1) (b) (1). The CSE creates an IEP which outlines the student's goals for the upcoming SY as well as recommendations designed to facilitate the student fulfilling those goals and making educational progress. 20 U.S.C. § 1414(d). Parents may challenge the offered IEP by filing a due process complaint and then proceeding to a hearing before an IHO. See 20 U.S.C. § 4404 (1) (a). § 1415(b) (6) (A) and (f) (1) (A); N.Y. Educ. L. The IHO's decision may be appealed by either party to the SRO, who independently reviews the findings and decision rendered by the IHO. 20 U.S.C. § 1415(g) (1); N.Y. Educ. L. § 4404 (1) (c). The SRO is empowered to modify "any determination of the impartial hearing officer" regarding the selection of an appropriate program or service. N.Y. Educ. L. 4404(2). While the SRO's decision is considered final, a party aggrieved by that decision may bring an action for relief in 10 § ral district court. 20 U.S.C. § 1415 (i) (1) (B), state or (2) (A) ¢ Parents dissatisfied with a school district's program laterally place their child in a private s may then seek retroactive tuition funding from the school district. 20 U.S.C. § 1412 (a) (10) (C). A school district is requi for the program selected by a parent only if: (1) the ional program recommended by the board of inadequate or inappropriate, (2) the program select parent was appropriate, and (3) the - d - ~ __ . "Burlington/Carter" test. Burli - parent's claim. These three factors on, __ ities was by t rt the ise the 471 U.S. 359; Florence County Sch. Dist. v. Carter, 510 U.S. 7, 12-13 (1993); Ga v. Arlington Sch. Dist., 489 F.3d 105, 114 Walczak v. Florida Union Free Sch. y to iardo (2d Cir. 2007); 142 F.3d 119, 129 (2d Cir. 1998). Standard of Review When rev 12(c), a court brought pursuant to FRCP ng a mot s the same standard as applied to its review of a motion to dismiss brought pursuant to Fed. R. Civ. P. 12 (b) (6). Heller v. Conrail 331 Fed. Appx. 766, 767-8 (2d 11 Cir. 2009) (citing erma n , 18 F . 3d 147, 150 (2d --~~--------------- Cir. 1994)). A court must "accept t material facts alleged in complaint as true and construe all reasonable inferences in P 1 a i n t iff' s f a v 0 r ." -=-P..=.h..=.e---"_=__________~_=__=_..=. (2d Cir. 2002) (internal quotes 308 F.3d 180, 184 ). However, "[tJo survive t a motion to dismiss, a complaint must conta matter, accepted as true, to 'state a on its face.'" Ashcroft v. ing Bell Atl. Co (2009) sufficient factual to relief that is I 1, 556 U.S. 662, . v. Twombl , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when t pl " Iqbal, 556 U.S. at 678. the This "plausibility is not akin to a probability requirement, for more t n a unlawfully." to suggest t theory." the e rence that the defendant is 1 misconduct alle st plaintiff ctual content that allows the court to reasonable in 678 r possibility that a de asks has acted A pleading "must set forth rmation t relief would be based on some recognized le --~--------------------------- , No. 01 cv 1 1910, 2005 U.S. Dist. LEXIS 7460, at *6 (E.D.N.Y Mar. 29, 2005) (quoting 753 F. Supp. 109, 111 (S.D.N.Y. 1999)}. A plaintiff must additionally assert enough facts to "nudg[eJ their claims across the line from conceivable to plaus e." Twombly, 12 550 U.S. at 570. Finally, a court may not take as true "conclusions of tions of fact." law or unwarranted Gelt ., 27 F.3d 763, 771 ------------~--~~ rst Nationwide Bank v. (2d Cir. 1994) (internal citation omitted). The Court Has Jurisdiction iff's First Claim is an a final de administrat issued by New York State's two-tier system of ew that is avail le to the parent of a disabled school age child who dis local school a denial strict. te evidentia for IHO and the SRO issued merits of the FAPE nations with re sted a typical namely, private school placement at public expense. legal es with the actions of Plaintiff re FAPE under the IDEA decisions on I to this Court of I aim, i.e. factual ct to the three-pronged standard enunciated by the Supreme Court This Court has t juri pursuant to 20 U.S.C. §1415(i) (2) (A) to deve t re subject matter Burli and specific type of relief that is appropriate under ent circumstances to ensure that Plaintiff are fully compensated for De 's past vio 13 r child ions of their r s under the IDEA. See Burlington, 471 U.S. at 369 (holding t Congress conveyed "broad discretion on t such relief as it dete nes is appropriate") court" to "grant ,2 The Exhaustion Requirement Supports The SRO Decision The mistake i aintiff, as conceded above, was to pursue direct tuition for the 2011-12 SY at JRC pursuant to the _B_u_r_l_ _-L_o n Carter test during the underlying __ strative proceeding, hear As Papakhin stated during intiff was not at t time seeking tu IHO payment e, as he stated, "this is not a Carter/Burlington ement case./I Indeed, such a remedy was unavail Plaintiff at the time of the IHO attending JRC. an avail elementa school or secondary s referral by t 1 the child in a sis added) i see also 34 Further, though courts have rent's right to direct tuition payments from a Defendant s not court dismissed an on the ground of because the rent administrat rev 2 (same). (reimbursement 1 without the consent of or public agency") C.F.R. § 300.148(c) recognized a ring, since N.B. was not See 20 U.S.C. § 1412 (a) (10 (C) (ii) le remedy where parents " le to cited a single decis which a federal appeal from a final nistrative decision ilure to exhaust nistrat remedies made a unilateral placement while the was pending. 14 school distri under the IDEA, as oppo reimbursement to merely tuition payments parents direct payment of actually enrolled already made, tion similarly requires t student in the unilateral placement. A ex rel. D.A. v. New York Cit 403, 428 parents have (S.D.N.Y. 2011) 769 F. Supp. 2d (direct tuition an remedy where parent lacks financial ability to student and take the risk will not be able to lable ion costs y up front, "and in the rare instance where a pr willing to enroll See school is the parents costs"); see also P.K. v. New York City Dep't of ., 819 F. Supp. 2d 90, 102, 117 8 --------~--~~----------- (E.D.N.Y. 2011) (awarding rect tuition funding where nt had enrolled student in unilateral placement and met Burli ----=-- Carter test) . Plaintiff did not assert a claim for tuition at the time of the IHO hear leo avai an IHO According to because such relief was not DOE, Plaintiff was free to re aring following her enrol nt of N.B. at JRC, at which been available to the remedies she now seeks would t r. See NY Educ. L. § 4404; 34 C.F.R. 300.513(c); Memorandum of Law In 15 st § 300.507; 34 C.F.R. § of Defendant's Motion adings and Defendant's Request for a Stay for Judgment on t Discovery ("Def. Mem.") at 13. As noted , the SRO found the issue of tuition reimbursement was not ripe for review by the IHO, requisite ------~~-- Carter elements not having been Burli on established. Jurisdiction over the 1 has been establis The necessary elements of tuition re motion to ss for lack of juri d. rsement have not. ction is therefore ied. The Motion To Dismiss The Second Claim Is Denied Plaintiff's Second Cia review months, remedy dated a DOE's respons is a non-administrat ility for the placement ~~ and June 2012, see 159-165, DOE's failure to comply with the IHO ry 20, 2012, whi r two seeks a sion red: ¢ "Unless [Parent] and the Department of Education agree that the documentation from Kings County Hospital is a sufficient substitute for Department of Education evaluations, the CSE is to a the child to evaluated within 14 days of the receipt of this Order;" ¢ "The CSE is to reconvene an IEP meeting within seven ys of the complet of those evaluat s or with 14 days of the rece of this Order if 16 are deemed to the Kings County Hospital Reco be sufficient;" ¢ "At the IEP meeting the CSE must reconsider t child's classification and recommended program in light of ce in the record, the testimony at hearing and t evaluations. The CSE is also to consider. [BJased on the foregoing t CSE is to dete an appropriate program ta cons ration both non-public day and resi ial programs." Porter De . Ex. 4 at 19-20. hough the DOE has referred to its motion as see "judgment on the pleadi s," the DOE is in ng ct seeking dismissal of the Second Claim based solely upon the ground that there is documentary factual allegations that all that aIle the Complaint. y refutes material DOE does not contend Second Claim, assuming the truth of the factual ions in the Complaint, does not state a cause of action as a matter of law. is branch of t motion for partial summary judgment motion is a de r Fed. R. Civ. P. 56. However, no Statement of Material Facts has been by Local Ci mot the DOE has not part of the khin declaration I Rule 56.1. Moreover, in s ffered at least four documents t nistrative reco as of its are Furthermore, sents material issues of fact 17 eto are The motion is therefore both defective and DOE has contended that its documenta e its show the DOE complied with the IHO Order, and that its " ementation Manager," Kevin McGinn, and other took all of the steps required of it in a t loyees, ly manner. DOE also relies upon a notice scheduling an evaluation session in New York City on February 2, 2013, whi acknowledged by the Parent. was all y Its position is that the Parent prevented the DOE from implement t o r. laration, N.B. is a According to Papakhin's h who began an education and seriously emotionally disturbed treatment program at JRC on r 29, 2011. As of January 24, 2012, Papakhin was inf of the delicate nature of this initial stage of treatment scussions with her clinician at JRC, Gregory Todisco. ing her from the Boston area to NYC for the k a her transition, and McGinn e-mailed ild with a history of elopement a tr from a secure facility n would be disruptive of would pose a flight risk. conducted an exchange with re to whether a new evaluation of N.B. was needed to implement 18 IHO cision. in s exchange and the responsibility for t eva rt ion. There is a dispute as to the conclusions reached The existence of this dispute lack of further rs a grant of 1 summary judgment. The Available Relief The Plaintiff has u Court grant relief t t and direct the requested tuition re sement, and suggests that the Court take evidence to meet t requirements. Plaintiff's Memo Burlington/Carter in Opposition to Defendant's Motion for Judgment on PI ngs ("Pl. Opp.") at 15. Plaintiff has acknowle ility to pay JRC tuition, a i any evidence regarding r required element of a aim that she has not submitted rect tuition funding, see ex r reI. D.A., 769 F. Supp. 2d at 428, but contends that "it is doubtful that De resources, and that 15. However, Plaintiff issue at any level of Plaintiff's contention t actually believes" Plaintiff has such this ct is simple." Pl. Opp. at s not presented any evidence on this istrative review. In addition, t assessment of this issue does not 19 require educational expertise is contradicted by the case upon which Plaintiff expressly relies in her DPC. In that case, the court found that: The determination whether a parent is not financially able to front the cost of private placement should be made in the first instance by the IHO or SRO; i.e., the parent should exhaust the state administrative procedures before raising the claim in court proceedings. Though the specifics of the calculation are not given here, such evaluations are regularly done in the educational setting relative to determinations of financial aid. Schools should draw from similar experience and expertise in order to fashion an appropriate calculus here. Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). Whatever equitable powers the Court possesses, the statutory scheme under which tuition reimbursement is achieved requires that the initial presentation to be made in the administrative process. In view of the grant of reimbursement for N.B.'s 2012-13 SY to require further administrative proceedings for a tuition refund for half of the 2011-12 SY may seem an unnecessary formalism. However, no process is presently before the Court under which such relief can be achieved. 20 Given realities surrounding t might well be as that the administrat reimbursement of expeditious and 2012-13 SY, it process for last half of the 2011-12 SY will be ief. While one is not to rely on assumptions, it is hoped that further llate review will not be necessary. Conclusion Bas upon the conclusions set forth above, of the DOE to dismiss the Complaint is denied. It is so ordered. New York, NY September I J ' 2013 ROBERT W. SWEET U.S.D.J. 21 motion
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