M.G. et al v. New York City Department of Education et al

Filing 19

OPINION AND ORDER: For the reasons set forth above, plaintiffs' request for a preliminary injunction is granted in part and denied in part. Defendants are enjoined from terminating funding for the services provided to Y.T. under his current educ ational placement, including the current level of 1:1 ABA home services, until a final, non-appealable order or an uncontested IEP removes those services from Y.T.'s educational placement. A conference is scheduled for August 12, 2013 at 5:00 p.m. (Status Conference set for 8/12/2013 at 05:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 8/1/2013) (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

._--------------------------------------------------

)(

M.G. and V.M., on behalf of themselves
individually and their child, Y.T.,
Plaintiffs,
OPINION AND ORDER
- against­
13 Civ. 4639 (SAS)
NEW YORK CITY DEPARTMENT OF
EDUCATION; NEW YORK CITY
BOARD OF EDUCATION; DENNIS
WALCOTT, in his official capacity as
Chancellor of the New York City School
District,
Defendants .
._-------------------------------------------------- )(

SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION

The parents ofY.T. school system -

a child with autism in the New York City

filed this action against the New York City Department of

Education ("DOE") and other defendants, and are seeking a preliminary injunction
to maintain Y.T. 's current 1: 1 applied behavioral analysis ("ABA") home services
and also to add several new services to his educational placement. Because
plaintiffs have not yet exhausted administrative review on their claims, this Court

lacks subject-matter jurisdiction to consider their request for new services.
However, because I find that the 1:1 ABA services are part of Y.T.’s current
educational placement, and therefore must be maintained during the pendency of
the state administrative review, plaintiffs need not exhaust administrative remedies
to seek continuation of these services. Further, they are entitled to an injunction
enjoining defendants from defunding the 1:1 ABA home services until a final,
non-appealable order or an uncontested individualized education program (“IEP”)
removes those services from Y.T.’s educational placement.
II.

FACTUAL BACKGROUND
A.

Y.T.’s Background
Y.T. is an eleven year old child who has been classified as a student

with autism.1 This manifests itself through “weaknesses and deficits in the areas of
cognition, focus/attention, eye contact, socialization, expressive and receptive
language, activities of daily living . . . , behavior, gross motor skills and fine motor

1

See Complaint (“Compl.”) ¶ 1; Defendants’ Memorandum of Law in
Opposition to Plaintiffs’ Application for a Preliminary Injunction (“Opp. Mem.”)
at 1.
2

development.”2 “Y.T. is nonverbal,”3 and also has problems using the toilet, is
self-injurious, and hyperactive.4
B.

The 2008-2012 School Years
While born in Egypt, Y.T. moved with his parents to New York in

2008, where he was enrolled in the New York City public school system.5 Upon
their arrival, plaintiffs notified the DOE that Y.T. needed “special education
placement and services,” and the DOE began evaluating him in September 2008 to
determine a proper educational placement.6 During this evaluation, the DOE
created an interim service plan (“ISP”) for Y.T., placing him in a 6:1:1 ratio
classroom at P.S. 255 in District 75 (a citywide district for students with
disabilities) with a 1:1 Arabic-speaking paraprofessional.7 However, school staff
could not find an Arabic-speaking paraprofessional and plaintiffs were not

2

Compl. ¶ 40.

3

Id. ¶ 41.

4

See id. ¶¶ 42-43, 45-46.

5

See id. ¶¶ 3, 38, 51; Plaintiffs’ Memorandum of Law in Support of
Their Motion for a Temporary Restraining Order and Preliminary Injunction (“Pl.
Mem.”) at 6; Opp. Mem at 1.
6

See Compl. ¶¶ 51-52.

7

See id. ¶¶ 4, 65.
3

provided with translation services for much of the period prior to the instant
action.8
In November 2008, defendants conducted the first IEP meeting for
Y.T.9 “The IEP team classified Y.T. as autistic” and recommended the
aforementioned 6:1:1 classroom, along with other services.10 The paraprofessional
recommendation was changed in 2009 to a “monolingual crisis paraprofessional”
instead of the Arabic speaker first recommended, but the 6:1:1 classroom
recommendation remained constant.11
Plaintiffs allege that this program failed to produce any progress for
Y.T. during the 2008-2012 academic years, but defendants still did not change the
IEP recommendations or add additional services.12 They also claim that defendants

8

See id. ¶¶ 63, 65-67, 69, 74, 84, 93, 102, 114, 119.

9

See id. ¶ 68.

10

Id. ¶ 69.

11

See id. ¶¶ 86, 90, 104, 116. Plaintiffs allege that DOE “place[s] a
majority of children who are classified as autistic in their 6:1:1 programs.” Pl.
Mem. at 6.
12

See Compl. ¶¶ 79, 96-97, 106-107, 116.
4

failed to properly constitute two of the IEP teams13 and did not conduct required
evaluations of Y.T.14
C.

The State Administrative Complaint
In February 2012, plaintiffs filed a complaint seeking modification to

the 2011-2012 IEP and “compensatory education for the previous three years.”15
On April 20, 2012, the Impartial Hearing Officer (“IHO”) assigned to Y.T.’s case
issued a first Interim Order directing the DOE to conduct several assessments and
evaluations of Y.T.16 On June 25, the IHO issued a Second Interim Order.17 In
that order, the IHO decided that “[r]ather than wait[ing] until the conclusion of the
entire hearing, . . . the record establishe[d] the appropriateness of supplemental
ABA services outside the school day to permit the student to make educational

13

See id. ¶¶ 92, 103.

14

See id. ¶¶ 62, 87, 113.

15

Id. ¶ 117. Plaintiffs refer to this complaint as a “due process
complaint” or “DPC,” presumably in reference to the “impartial due process
hearing” afforded under federal law. See 20 U.S.C. § 1415(f) (2006).
16

See Compl. ¶ 129; 4/20/12 Interim Order, Ex. L to 7/3/13 Declaration
of Elisa Hyman, Attorney for Plaintiffs (“Hyman Decl.”), at 3-4.
17

See Compl. ¶ 131; 6/25/12 Second Interim Order (“Second Interim
Order”), Ex. M to Hyman Decl.
5

progress.”18 Accordingly, she ordered the DOE to fund ten hours per week of
ABA services,19 which it began providing to Y.T. in the summer of 2012.20
During the pendency of this matter before the IHO, Y.T. entered the
2012-2013 school year, still placed in the 6:1:1 classroom environment along with
the 1:1 ABA home services included in the IHO’s interim order.21 On October 26,
the IHO issued another interim order, increasing the ABA home services to fifteen
hours per week and also ordering translation services.22 The DOE complied and
provided this higher level of services.23
On February 11, 2013, the IHO issued a final Findings of Fact and
Decision (“IHO Decision”).24 The IHO denied compensatory services for the
2008-2011 academic years on the ground that Y.T. “was not significantly denied a

18

Second Interim Order at 3.

19

See id.; Compl. ¶ 131.

20

See Compl. ¶ 132. The DOE did not appeal this or any of the other
interim orders issued by the IHO. See id. ¶ 141.
21

See id. ¶¶ 132, 134, 137.

22

See id. ¶ 138; 10/26/13 Third Interim Order, Ex. N to Hyman Decl., at

23

See Compl. ¶ 139.

24

See Ex. O to Hyman Decl.; Pl. Mem. at 13.

4.

6

FAPE [free appropriate public education] . . . to arise to the level of meriting an
award of compensatory services.”25
However, the IHO found that the services provided for the 2011-2012
school year were insufficient:
By that date the student had been in the 6:1:1 class at PS 255 for
three full years and had . . . the assistance of a 1:1
paraprofessional for two years. The DOE had access to multiple
progress reports and other evaluative material . . . to indicate the
student’s slow rate of progress and the repeated instances of
unmet goals from one IEP to the next. . . . Thus I find that the
[DOE] was now on notice that additional home-based service
were appropriate . . . . Based upon . . . credible testimony . . . I do
not find that the recommended 6:1:1 class, using a mixed modality
of instructional methods, was inappropriate for 2011-2012 — just
insufficient without additional 1:1 instruction outside the school
day. . . .
. . . . I now find it appropriate, so long as the student is not
receiving full-time ABA instruction in school to increase the
home services to 20 hours per week with at least 16 hours to be
direct services to the student.26
The remainder of plaintiffs’ requested relief was denied.27
On March 25, 2013, plaintiffs appealed the IHO’s decision to the State
Review Officer (“SRO”) at the New York State Department of Education.28 The
25

Id. at 15.

26

Id. at 16-17.

27

See id. at 18.

28

See Pl. Mem. at 13; Opp. Mem. at 4.
7

DOE then filed an Answer and Cross Appeal, and this administrative appeal is still
ongoing.29
D.

The Instant Action
At the end of the 2012-2013 school year, plaintiffs were informed that

the DOE intended to discontinue the 1:1 ABA home services as of June 30, 2013.30
In response, plaintiffs filed their Complaint in this Court, seeking a temporary
restraining order (“TRO”), preliminary injunction, and a permanent injunction
ordering additional services for Y.T.31 A TRO was issued maintaining the current
1:1 ABA home services until this Court could rule on plaintiffs’ request for a
preliminary injunction.32
III.

LEGAL STANDARD
“‘A preliminary injunction is an extraordinary remedy never awarded

as of right.’”33 In general, to obtain a preliminary injunction, the moving party

29

See Pl. Mem. at 13; Opp. Mem. at 5.

30

See Pl. Mem. at 14; Opp. Mem. at 5. Plaintiffs only learned of this
fact after contacting the DOE through counsel. See Pl. Mem. at 14.
31

See Compl. at 40-43.

32

See 7/5/13 Temporary Restraining Order and Order to Show Cause for
Preliminary Injunction.
33

UBS Fin. Servs., Inc. v. West Virginia Univ. Hosps., Inc., 660 F.3d
643, 648 (2d Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555
8

must establish: “[1] that [it] is likely to succeed on the merits, [2] that [it] is likely
to suffer irreparable harm in the absence of preliminary relief, [3] that the balance
of equities tips in [its] favor, and [4] that an injunction is in the public interest.”34
The moving party may be entitled to a preliminary injunction even if the party is
unable to establish a likelihood of success on the merits, provided that the party
demonstrates “‘a serious question going to the merits to make them a fair ground
for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor.’”35
In addition, when the moving party seeks a “mandatory” injunction, that is, an
injunction that commands action rather than merely prohibiting it, the standard is

U.S. 7, 24 (2008)).
34

Winter, 555 U.S. at 20 (citing Munaf v. Geren, 553 U.S. 674, 689-90
(2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger
v. Romero–Barcelo, 456 U.S. 305, 311-12 (1982)). See also Fed. R. Civ. P. 65(a)
(preliminary injunctions).
35

Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011)
(quoting Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 152,
156 (2d Cir. 2010)). Accord Pamlab, L.L.C. v. Macoven Pharm., L.L.C., 881 F.
Supp. 2d 470, 475 (S.D.N.Y. 2012) (recognizing that the Supreme Court in Winter
“cast some doubt on the continuing viability” of the Second Circuit’s “serious
questions” prong, but noting that “the Second Circuit has since held that ‘our
venerable standard for assessing a movant’s probability of success on the merits
remains valid’” (quoting Citigroup Global Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010))).
9

higher: “[W]here ‘the injunction sought will alter rather than maintain the status
quo,’ the movant must show [a] ‘clear’ or ‘substantial’ likelihood of success.”36
IV.

APPLICABLE LAW
The Individuals with Disabilities Education Act (“IDEA”)37 is

designed “to ensure that all children with disabilities have available to them a free
appropriate public education.”38 Under IDEA, a state must provide a FAPE “to all
children with disabilities residing in the State between the ages of 3 and 21,”39 and
must develop an IEP for each child with a disability.40 “[F]or a child’s IEP to be
adequate, it must be ‘likely to produce progress, not regression, and [must] . . .

36

Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir.
1999) (quoting Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d Cir. 1996)). The
Second Circuit has recognized that “[t]he distinction between mandatory and
prohibitory injunctions is not without ambiguities or critics, and that in a close case
an injunction can be framed in mandatory or prohibitory terms.” Jolly, 76 F.3d at
474 (quotation marks and citations omitted).
37

20 U.S.C. § 1400 et seq.

38

Id. § 1400(d)(1)(A).

39

Id. § 1412(a)(1)(A).

40

See id. § 1412(a)(4). See also id. § 1414(d) (outlining minimum
requirements for an IEP and how it is developed).

10

afford[] the student with an opportunity greater than mere trivial advancement.’”41
“However, it need ‘not . . . furnish every special service necessary to maximize
each . . . child’s potential.’”42
IDEA also requires states to establish procedural safeguards for
children with disabilities and their parents to ensure that they can exercise their
rights under the Act.43 One of those safeguards is the ability to file an
administrative complaint challenging a child’s educational placement or the
provision of a FAPE, and the right to an “impartial due process hearing” on that
complaint.44 In New York, this hearing “is [first] conducted by [the] local
educational agency” through an IHO, and either party may appeal the IHO’s
decision to the state educational agency.45

41

M.H. v. New York City Dept. of Educ., 685 F.3d 217, 224 (2d Cir.
2012) (alterations in original) (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free
Sch. Dist., 554 F.3d 186, 195 (2d Cir. 2009)) (internal quotation marks omitted).
42

Id. (first ellipses in original) (quoting Grim v. Rhinebeck Cent. Sch.
Dist., 346 F.3d 377, 379 (2d Cir. 2003)).
43

See 20 U.S.C. § 1415(a).

44

See id. § 1415(b)(6), (f).

45

Id. § 1415(g)(1); N.Y. Educ. Law § 4404.

11

Once a party exhausts these administrative remedies, it may seek
review of the final decision in either a state or federal district court.46 While
“judicial review is normally not available under [IDEA] until all administrative
proceedings are completed, . . . parents may bypass the administrative process
where exhaustion may be futile or inadequate.”47 This is limited to situations
where “adequate remedies” are not available or where “‘wrongs alleged could not
or would not have been corrected’” through the administrative process.48 If there
has not been administrative exhaustion and exhaustion is not excused, a court will
lack subject-matter jurisdiction over claims brought under IDEA.49

46

See 20 U.S.C. § 1415(i)(2)(A).

47

Honig v. Doe, 484 U.S. 305, 326-27 (1988). Accord Cave v. East
Meadow Union Free Sch. Dist., 514 F.3d 240, 249 (2d Cir. 2008).
48

Levine v. Greece Cent. Sch. Dist., 353 Fed. App’x 461, 464-65 (2d
Cir. 2009) (quoting Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir. 1992)).
49

See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195,
199 (2d Cir. 2002). While plaintiffs also assert claims under Section 794 of Title
29 of the United States Code (Section 504 of the Rehabilitation Act), these claims
are also subject to IDEA’s exhaustion requirement. IDEA requires that “before the
filing of a civil action under [other federal laws] seeking relief that is also available
under [IDEA], the [administrative] procedures under [IDEA] shall be exhausted to
the same extent as would be required had the action been brought under [IDEA
itself].” 20 U.S.C. § 1415(l).

12

IDEA also contains a “stay-put” or “pendency” provision, which
states that during any of these hearings or appeals, “the child shall remain in the
then-current educational placement of the child.”50 This provision applies in all
cases “unless the State or local educational agency and the parents otherwise
agree.”51 In a pendency provision claim, the “inquiry focuses on identifying the
student’s then current educational placement.”52 Normally, the “then current
placement” is “the last agreed upon placement at the moment when the due process
proceeding is commenced.”53 Importantly, though, “[t]he purpose of the pendency
provision is to provide stability and consistency in the education of a student with a
disability,”54 including “a stable learning environment during what may be a
lengthy administrative and judicial review.”55

50

20 U.S.C. § 1415(j). Accord 34 C.F.R. § 300.518(a) (2013).

51

20 U.S.C. § 1415(j).

52

Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 696 (S.D.N.Y.
2006) (citing Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982)).
53

Id.

54

Id. (citing Honig, 484 U.S. 305).

55

Murphy, 297 F.3d at 199.

13

A party seeking a judicial remedy for a violation of the stay-put
provision need not exhaust its administrative remedies.56 This is because “‘an
immediate appeal is necessary to give realistic protection to the claimed right,’”
making administrative exhaustion “inadequate.”57 When such a claim is brought,
“[p]endency has the effect of an automatic injunction, which is imposed without
regard to such factors as irreparable harm, likelihood of success on the merits, and
a balancing of the hardships.”58
V.

DISCUSSION
A.

The 1:1 ABA Services Should Be Maintained Through Pendency
Plaintiffs seek an injunction to maintain the 1:1 ABA home services

that Y.T. is now receiving throughout the pendency of their state proceedings and
possible court review.59 Because this Court’s enforcement of IDEA’s pendency
provision is automatic and does not require a showing of “irreparable harm,

56

See id. at 199-200.

57

Id. at 199 (quoting Miss America Org. v. Mattel, Inc., 945 F.2d 536,
545 (2d Cir. 1991)).
58

Arlington, 421 F. Supp. 2d at 696 (citing Zvi D., 694 F.2d 904).

59

See Compl. at 40.

14

likelihood of success on the merits, [or] a balancing of the hardships,”60 all that
remains is for me to determine what Y.T.’s “current educational placement” is.61
Though not found in the 2011-2012 or 2012-2013 IEPs, the 1:1 ABA
services became a part of Y.T.’s “current educational placement” once the DOE
began providing them. Ordinarily, the current placement for pendency purposes is
“the last agreed upon placement at the moment when the due process proceeding is
commenced.”62 However, that placement was already deviated from the time the
DOE began providing Y.T. with 1:1 ABA services under the IHO’s Second Interim
Order.63 Although the parties disagree as to whether this change constitutes an
agreement between the parents and the DOE to change Y.T.’s educational

60

Arlington, 421 F. Supp. 2d at 696 (citing Zvi D., 694 F.2d 904).

61

Id. Even without Zvi D.’s rule that a court’s enforcement of IDEA’s
pendency provision acts as “an automatic preliminary injunction,” 694 F.2d at 906,
plaintiffs here would still be entitled to preliminary injunctive relief. There is “‘a
serious question going to the merits to make them a fair ground for trial,’” and the
“‘balance of hardships tip[s] decidedly in the plaintiff[s’] favor.’” Red Earth, 657
F.3d at 143 (quoting Metropolitan Taxicab, 615 F.3d at 156).
62

Id.

63

See Compl. ¶ 132; Opp. Mem. at 15.

15

placement,64 in either case the current educational placement of Y.T. includes these
services. Regardless of “agreement,” the DOE implemented these changes instead
of waiting to do on pendency grounds. To remove these services now, pending the
outcome of any number of further administrative or judicial proceedings regarding
past or present academic years, would destroy the purposes of the pendency
provision: maintaining a stable and consistent educational environment for the
child.65
Defendants also argue that the 1:1 ABA services are compensatory in
nature and thus not part of Y.T.’s current educational placement.66 However, the
interim orders and final IHO Decision do not support this interpretation. The IHO
Decision states that the 2011-2012 IEP was “insufficient without additional 1:1
[ABA] instruction outside the school day” and that Y.T. is entitled to twenty hours
per week of 1:1 ABA home services “so long as [Y.T.] is not receiving full-time
64

See 20 U.S.C. § 1415(j) (creating an exemption to the stay-put
requirement when “the State or local educational agency and the parents” agree to
the change); Pl. Mem. at 17; Opp. Mem. at 15.
65

See Arlington, 421 F. Supp. 2d at 696 (citing Honig, 484 U.S. 305).
See also Doe v. Brookline Sch. Comm., 722 F.2d 910, 917 (1st Cir. 1983)
(“Congress has expressed a strong preference for the preservation of the status quo
through its enactment of [the pendency provision] . . . .”).
66

See Opp. Mem. at 14-15.

16

ABA instruction in school.”67 The reasoning behind the IHO’s opinion declaring
an IEP inadequate for lack of ABA services would equally apply to any future IEP
that also fails to include those services.
Contrary to defendants’ argument,68 no language in the IHO Decision
supports their claim that the ABA services were compensatory in nature. Although
the portion of the IHO Decision ordering 1:1 ABA services made reference to the
November 8, 2011 IEP, this reference was merely to indicate that by this point the
DOE was on notice of Y.T.’s need for additional services beyond what had been
previously included in his IEPs.69 The only part of the order that could be read to
suggest any time limitation on these services is an attached form after the signature
page ordering the payment.70 In fact, the IHO stated that a key reason for not
immediately ordering full-time classroom ABA instruction, an order far beyond the
1:1 home services disputed here, was so Y.T. could be reevaluated at the close of

67

IHO Decision at 17 (emphasis added).

68

See Opp. Mem. at 14-15.

69

See IHO Decision at 18.

70

See id. at 25.

17

the 2012-2013 school year after receiving additional 1:1 ABA instruction.71 This
demonstrates that to the extent the IHO anticipated cessation of the ABA home
care, it would be replaced by more 1:1 instruction, belying any argument that the
services were compensatory.
This Court recognizes the potentially perverse incentives caused by
ordering the ABA services under the stay-put provision. By complying with the
IHO’s interim orders and providing Y.T. with the 1:1 ABA services, the DOE
opened itself to being forced to maintain the provision of these services throughout
the pendency of plaintiffs’ administrative complaint and appeals.72 However, the
pendency provision is designed to “provide stability and consistency in the
education of a student with a disability.”73 The potential for increased reluctance
by state and local educational agencies to provide desired services during pendency
is not enough to overcome IDEA’s clear intent to avoid undue disruption in Y.T.’s
educational environment.

71

See id. at 17.

72

See Opp. Mem. at 15.

73

Arlington, 421 F. Supp. 2d at 696 (citing Honig, 484 U.S. 305).

18

B.

Plaintiffs’ Request for Mandatory Injunctive Relief Is Denied
In addition to the maintenance of the currently-received 1:1 ABA

home services under IDEA’s pendency provision, plaintiffs also request an order
directing defendants to provide additional services, evaluations, and observations.74
Plaintiffs do not contend that these additional services are part of Y.T.’s current
educational placement and thus excused from the administrative exhaustion
requirement. Nor do they contend that they have in fact exhausted their
administrative claims.75 Because plaintiffs cannot show that administrative
exhaustion is otherwise futile or inadequate,76 this Court currently lacks subjectmatter jurisdiction to decide on their request for mandatory injunctive relief.
As their first ground for exemption from the exhaustion requirement,
plaintiffs claim that the administrative system is unduly delayed.77 Though it is
74

See Compl. at 40-41.

75

See Compl. ¶¶ 248-257; Pl. Mem. at 15.

76

See Honig, 484 U.S. at 327.

77

See Compl. ¶¶ 251, 254-255. In support of this argument, plaintiffs
cite to Sabatini v. Corning-Painted Area School District, 78 F. Supp. 2d 138
(W.D.N.Y. 1999), where the court exempted the plaintiffs from exhaustion due to
delays in the administrative process, see id. at 141; Pl. Mem. at 15 n.5. To
whatever extent the arguments made in Sabatini are pursuasive to this Court, the
facts of that case are distinguishable. The Sabatini court made a significant point

19

true that the SRO here has not issued its final decision within the thirty days
provided for by regulation,78 plaintiffs submitted their last filing in that review on
July 1, and briefing should have been fully submitted as of July 22.79 Though this
may constitute a delay relative to the timeline established by federal regulations, at
this time I do not believe that “‘the wrongs alleged [cannot] . . . be[] corrected by
resort to the administrative hearing process.’”80
Plaintiffs also argue that their Complaint raises “systemic policy and
practice claims” which the administrative process has “‘no power to correct.’”81
However, plaintiffs have failed to plead that the SRO is incapable of ordering relief
that could remedy the alleged systemic failures.82 Indeed, the relief plaintiffs seek

of noting that it was defendants in that case, not plaintiffs, who had appealed the
IHO decision, and that there was “no indication of the reason for the delay or the
date when the appeal will be decided.” 78 F. Supp. 2d at 141.
78

See 34 C.F.R. § 300.515(b).

79

See Opp. Mem. at 5.

80

Levine, 353 Fed. App’x at 464 (quoting Heldman, 962 F.2d at 158).

81

Levine, 353 Fed. App’x at 465 (quoting J.S. v. Attica Cent. Sch., 386
F.3d 107, 113 (2d Cir. 2004)).
82

See Compl. ¶¶ 163-188.

20

from this Court is functionally the same as that sought in their appeal to the SRO.83
Plaintiffs do not plausibly contend that the SRO lacks power to grant the relief
requested on behalf of Y.T.
Even if this Court had subject matter jurisdiction to grant plaintiffs’
requested mandatory relief, their claims do not meet the standard for a preliminary
injunction. Plaintiffs are requesting additional services that are not currently being
provided to Y.T. They have failed to show irreparable harm from not receiving
these additional services immediately (as opposed to upon the conclusion of
normal administrative or judicial processes). Nor have they demonstrated a
substantial likelihood of success on the merits or that the balance of hardships tips
decidedly in their favor. If the requested injunction were entered, the DOE would
be forced to provide services never before ordered for Y.T., while Y.T.’s not
receiving the services would merely maintain the status quo. For all of these
reasons, plaintiffs’ request for a mandatory preliminary injunction ordering
additional services beyond those currently received by Y.T. is denied.

83

Compare Compl. at 40-43, with 3/25/13 Petition to New York State
Review Officer, Ex. E to Hyman Decl.

21

VI.

CONCLUSION
For the reasons set forth above, plaintiffs' request for a preliminary

injunction is granted in part and denied in part. Defendants are enjoined from
terminating funding for the services provided to Y.T. under his current educational
placement, including the current level of 1: 1 ABA home services, until a final,
non-appealable order or an uncontested IEP removes those services from Y.T. 's
educational placement. A conference is scheduled for August 12, 2013 at 5 :00
p.m.

SO ORDERED:

Dated:

New York, New York
August 1,2013

22

- Appearances For Plaintiffs:
Elisa F. Hyman, Esq.
Friedman & Moses, LLP
233 Broadway, Suite 901
New York, NY 10279
[phone]

For Defendants:
Andrew J. Rauchberg
Assistant Corporation Counsel
100 Church Street, Room 2-189
New York, NY 10007
[phone]

23