J.L. v. New York City Department of Education et al

Filing 49

OPINION AND ORDER. For the foregoing reasons, Defendants' motion to dismiss is granted in part and denied in part. The motion is granted with respect to Plaintiff H.B.'s claims arising from the 2014-15 and 2015-16 school years. And to the e xtent that the Complaint pleads claims against the individual Defendant under the ADA or the Rehabilitation Act, those claims are dismissed. The motion is denied in all other respects. Further, the parties' joint request for a discovery conferen ce is denied as moot. The Clerk of Court is directed to amend the caption to substitute Richard A. Carranza for Carmen Farina. In addition, the parties are directed to appear for a status conference on September 20, 2018 at 2:30 p.m. The Clerk of Cou rt is directed to terminate the motions pending at ECF Nos. 36 and 48. So ordered. re: 36 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 12(b)(7) filed by New York City Department of Education, Carmen Farina, [4 8] JOINT LETTER MOTION for Local Rule 37.2 Conference addressed to Judge William H. Pauley, III from Elizabeth C. DeGori dated July 16, 2018 filed by New York City Department of Education, Carmen Farina. (Status Conference set for 9/20/2018 at 02:30 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 8/28/2018) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

J.L., on behalf of J.P., et al.,
Plaintiffs,
-againstNEW YORK CITY DEPARTMENT OF
EDUCATION, et ano.,
Defendants.

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17cv7150
OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:
Defendants New York City Department of Education (“DOE”) and Richard A.
Carranza, 1 in his official capacity as Chancellor of the New York City School District, move to
dismiss the Amended Complaint. For the reasons that follow, Defendants’ motion to dismiss is
granted in part and denied in part.
BACKGROUND
This case is about the special education needs of severely disabled children who
rely on a variety of services to attend school. Plaintiffs are the parents of three students, aged
eight to fifteen, who were born with serious medical conditions that have severely limited their
cognitive and physical abilities. These disabilities present significant disadvantages for the
students and their families, and constrain virtually every facet of their lives, including their
ability to obtain an adequate education.
The claims in this action arise from a systemic breakdown in DOE’s practices,
policies, and procedures governing the services it must provide to medically fragile children.

1

Under Federal Rule of Civil Procedure 25(d), Carranza is automatically substituted as a party. The Clerk of
Court is directed to amend the caption accordingly.

While DOE is responsible for providing every child with a “free and appropriate public
education,” its policies and procedures have hobbled the efforts of the disabled students in this
case from securing the services they need. Instead of alleviating the burdens borne by disabled
students and their families, the current policies spawn a cumbersome and counterintuitive
bureaucracy that undermines the goal of educating these children. There is a glaring disconnect
among the agencies within DOE tasked with providing nursing, transportation, and porter
services. Because of these issues, the students were left with no other choice but to sit out
significant periods of the school year.
After attempting to navigate through DOE’s beadledom, one of the Plaintiffs
commenced this action to compel DOE to take prompt action. With a preliminary injunction in
place, Plaintiffs amended their complaint, asserting claims based on violations of the Individuals
with Disabilities Education Act (“IDEA”), New York State Education Law, the Rehabilitation
Act, the Americans with Disabilities Act (“ADA”), and federal civil rights under 42 U.S.C.
§ 1983. Defendants move to dismiss the Amended Complaint (the “Complaint”) in its entirety.
I.

Allegations of the Amended Complaint
For purposes of this motion, the factual allegations of the Complaint are accepted

as true. J.P., M.C., and O.A. are disabled children who suffer from severe medical conditions
and require substantial assistance to attend school. They require individualized nursing services,
transportation to and from school on a specialized bus outfitted to carry wheelchairs, a nurse to
accompany them on the bus, and another nurse that is either with or near them in school
throughout the day. (Compl. ¶¶ 6–9, 11.) Additionally, two of the students—J.P. and M.C.—
require porter service transporting them up and down the stairs of their walk-up apartment
buildings to and from the school bus. (Compl. ¶ 10.)

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A. J.L on behalf of J.P.
J.P. is an eight-year-old-boy who suffers from ornithine transcarbamylase
deficiency, a rare genetic disorder which causes muscle spasms, hydrocephaly (an abnormal
buildup of cerebrospinal fluid in the brain), and frequent severe seizures. J.P.’s medical
condition requires him to use a nasal tube and a gastronomy tube. (Compl. ¶¶ 31–35.)
In May 2015, the DOE developed an Individualized Education Program (“IEP”)
to prepare J.P. for kindergarten. (Compl. ¶¶ 56–58.) Among other things, the IEP recommended
a Bus Nurse to accompany J.P. on his commute to school. (Compl. ¶ 60.) Despite this
recommendation, DOE failed to provide J.P. with a Bus Nurse from September 2015 to June
2016. (Compl. ¶ 67.) As a consequence, J.P. was unable to attend kindergarten for the entire
2015–16 academic year. (Compl. ¶ 68.) The same problems persisted the following school year,
leaving J.P. no choice but to stay home from August 2016 to June 2017. (Compl. ¶¶ 79–116.)
After experiencing similar roadblocks at the start of the 2017–18 school year, J.L. sought
temporary injunctive relief from this Court. (Compl. ¶¶ 117–144.)
The Complaint details J.L.’s repeated attempts to secure IEP-sanctioned services
for J.P. over three consecutive academic years. In 2015, after J.P.’s medical care providers
submitted the necessary paperwork to secure a Bus Nurse, DOE inexplicably rejected the forms.
(Compl. ¶¶ 76–78.) In 2016, with many of the same bureaucratic hurdles plaguing J.L.’s efforts
to secure a Bus Nurse, J.L. sought legal assistance to expedite the process. (Compl. ¶ 90.) But
DOE again lagged in its response and eventually rejected J.P.’s paperwork, explaining that the
“forms required additional clarification” before J.P. could receive a Bus Nurse. (Compl. ¶ 94.)
J.L. then worked with J.P.’s medical care providers to correct the various deficiencies, and
resubmitted the forms only to have them rejected again, this time due to additional technical

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deficiencies. (Compl. ¶ 101.) The tug of war among J.L., J.P.’s legal representatives, J.P.’s
medical staff, and DOE representatives spanned several months. (Compl. ¶¶ 76–111.) And just
when it appeared that the parties were on the cusp of obtaining approval, DOE reported that the
“school placement offered to J.L. in 2015 and 2016 was no longer available,” further limiting
J.P.’s chances of attending school. (Compl. ¶ 112.)
As the 2017–18 school year approached, J.L. again faced challenges in securing
IEP-related services for J.P. From June to September 2017, J.P. could not attend school because
DOE failed to provide the necessary porter and transportation services. On some days, for
example, the school bus transporting J.P. did not have enough room for his wheelchair. On other
days, DOE failed to provide porter service because it could not locate a wheelchair small enough
to transport J.P. safely down the stairs of his apartment building. (Compl. ¶¶ 124–141.)
B. H.B. on behalf of M.C.
M.C. is an eight-year-old boy who suffers from cerebral palsy and Menkes
disease, a terminal condition caused by copper deficiency. (Compl. ¶¶ 147–148.) Because of his
condition, M.C. is non-ambulatory, quadriplegic, wheelchair bound, and non-verbal.
M.C. should have started kindergarten in the 2014–15 school year. According to
the Complaint, however, M.C. spent the entirety of the 2014–15 and 2015–16 school years at
home. (Compl. ¶¶ 150–151.) In December 2016, DOE convened an IEP meeting for M.C.
Although the parties discussed providing M.C. with a Bus Nurse and School Nurse, these
services were not formally recommended. The DOE’s district representative instead advised
M.C.’s family that M.C. would receive a Bus Nurse and School Nurse only after the Office of
School Health (“OSH”) reviewed and approved the request. (Compl. ¶ 154.) Because no OSH

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representative was present at the IEP meeting, M.C.’s family had to contact OSH separately.
(Compl. ¶ 155.)
By May 2017, although M.C.’s nursing forms were submitted to OSH at least four
times, OSH did not approve any nursing services. (Compl. ¶ 163.) M.C.’s medical professionals
continued to submit the required forms on multiple occasions, but OSH repeatedly rejected them.
This kabuki dance between M.C.’s medical professionals and OSH continued into the summer.
(Compl. ¶¶ 164–173.)
In August 2017, DOE convened another IEP meeting and finally agreed to
recommend a Bus Nurse and School Nurse. (Compl. ¶ 175.) However, when M.C.’s family
requested porter services, DOE told them that the Office of Pupil Transportation (“OPT”) had to
approve that request. M.C.’s family separately arranged a home visit with OPT to determine
whether porter services were appropriate. OPT eventually approved porter services but told H.B.
that M.C. could not attend school until the brakes on his wheelchair were repaired. (Compl.
¶¶ 179–182.) The parties spent several weeks locating a company to repair M.C.’s wheelchair.
By then, however, M.C.’s physical therapist had completed a home visit to inspect M.C.’s
wheelchair and concluded that it was functional. (Compl. ¶ 186.)
Having resolved the wheelchair issue, OPT assured H.B. that it would provide the
necessary services to transport M.C. to school. But in October 2017, when the bus arrived, M.C.
was not permitted to ride because a Bus Nurse was not present. A few days later, DOE assured
H.B. that the nursing agency assigned to M.C.’s case had located an interim nurse to accompany
M.C. while it continued to search for a permanent nurse. Yet when M.C.’s legal representatives
called OPT to confirm the interim nurse assignment, the OPT representative could not be
reached. (Compl. ¶¶ 196–198.) Instead, M.C.’s lawyers had to call an OPT customer service

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line, which reported that “M.C. was not in the DOE’s system because no bus route had been
created for him yet” and that “routing a bus would take an additional 5 to 7 days.” (Compl.
¶¶ 199–200.)
A few days later, when a bus finally arrived to take M.C. to school, he could not
go because DOE had again failed to provide a Bus Nurse. H.B. learned that “M.C. had a Bus
Nurse assigned to him . . . but that the bus would not let the Bus Nurse on the bus because OPT
claimed that the IEP did not provide for M.C. to have a nurse on the bus . . . .” (Compl. ¶¶ 202–
203.) Having exhausted several options to secure these services, H.B. and M.C.’s legal
representatives threatened DOE with legal action. Facing litigation, DOE finally “coordinate[d]
M.C.’s receipt of a Bus Nurse, School Nurse, porter service and bussing [sic] simultaneously.”
(Compl. ¶ 205.)
C. K.M. and D.A. on behalf of O.A.
O.A. is a fifteen-year-old boy who suffers from a progressive neuromuscular
disorder with a quadriplegic level of involvement that requires him to use a wheelchair.
(Compl. ¶ 213.) O.A. also suffers from frequent seizures requiring timely medical attention.
(Compl. ¶¶ 214–217.)
Like J.P. and M.C., O.A. has received special education services since he began
attending school. O.A.’s IEP provides that he must be bused to and from school in a bus
designed with a wheelchair lift. O.A. also needs a Bus Nurse and a School Nurse to be with him
at all times since he is vulnerable to seizures. (Compl. ¶¶ 218–222.)
The Complaint alleges that O.A. miss the 2017–18 school year because DOE
failed to provide the appropriate nursing and transportation services. Although K.M. submitted
all of the required forms to secure a Bus Nurse and Attendant Nurse in time for the start of the

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2017–18 school year, “DOE did not provide a Bus Nurse on the first day of school.” (Compl.
¶ 241.) When K.M. contacted OSH to find out why, the OSH representative informed K.M.
“that she had only [ ] been informed of O.A.’s case a few days earlier, and that she would start
contacting nursing agencies.” (Compl. ¶ 248.) About a week later, the OSH representative
finally informed “K.M. that OSH had located a Bus Nurse, and that the nurse’s agency would
contact K.M.” (Compl ¶ 253.) Despite multiple assurances from both DOE and the nursing
agency that a Bus Nurse had been assigned to O.A., they repeatedly failed to provide one due to
a host of administrative snafus. (Compl. ¶¶ 253–270.) And even when DOE finally provided
nurses, they were unqualified to “meet O.A.’s medical needs . . . or were not able to work all five
days of the week.” (Compl. ¶ 271.)
Lawyers for K.M. threatened to sue DOE, informing Defendants that if O.A. did
not have a permanent Bus Nurse, Attendant Nurse, and busing simultaneously within a few days,
that they would initial legal action. Facing litigation, DOE finally complied. (Compl. ¶¶ 272–
273.)
DISCUSSION
I.

Standard
Defendants move to dismiss the Complaint for lack of subject matter jurisdiction

and failure to state a claim. (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss (“Mot.”), ECF No.
38, at 10, 12.) “When a defendant moves to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction, and also moves to dismiss on other grounds such as Rule 12(b)(6) for failure
to state a claim upon which relief can be granted, the Court must consider the Rule 12(b)(1)
motion first.” Baldessarre v. Monroe–Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490, 499
(S.D.N.Y. 2011). Under Rule 12(b)(1), this Court “must accept as true all material factual

7

allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to
Plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). While courts
are generally limited to examining the sufficiency of the pleadings, where a party challenges a
court’s subject matter jurisdiction, “the court may resolve disputed jurisdictional fact issues by
reference to evidence outside the pleadings.” Flores v. S. Peru Copper Corp., 414 F.3d 233, 255
n.30 (2d Cir. 2003).
On a motion to dismiss under Rule 12(b)(6), this Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in Plaintiffs’ favor. M.G.
v. N.Y.C. Dep’t of Educ., 15 F. Supp. 3d 296, 302 (S.D.N.Y. 2014). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alterations, citations, and quotation
marks omitted).
II.

Administrative Exhaustion
Defendants argue that this Court lacks subject matter jurisdiction because

Plaintiffs failed to exhaust their administrative remedies before commencing this action under
the IDEA. “Although the IDEA provides for a federal cause of action to enforce such rights, it
imposes a broadly applicable requirement that plaintiffs first exhaust administrative remedies.”
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 2002).
“Exhaustion of administrative remedies is required under the IDEA so that disputes related to the
education of disabled children are first analyzed by administrators with expertise in the area who

8

can promptly resolve grievances.” J.S., 386 F.3d at 112. Thus, failure to exhaust administrative
remedies “deprives a court of subject matter jurisdiction.” Polera, 288 F.3d at 483. 2
The exhaustion requirement is excused, however, when it would “be futile
because the administrative procedures do not provide an adequate remedy.” J.S., 386 F.3d at
112. The party asserting futility bears the burden of proof. Polera, 288 F.3d at 488 n.8. Courts
have recognized that exhaustion of administrative remedies is futile “in cases involving systemic
violations that could not be remedied by local or state administrative agencies because the
framework and procedures for assessing and placing students in appropriate education programs
were at issue, or because the nature and volume of complaints were incapable of correction by
the administrative hearing process.” F.C. v. N.Y.C. Dep’t of Educ., 2016 WL 8716232, at *6
(S.D.N.Y. Aug. 5, 2016).
Defendants contend that Plaintiffs’ claims arise from “individual factual
circumstances” that must be “exhausted through the administrative process.” (Mot. at 14–15.)
The thrust of Plaintiffs’ claims, however, is that DOE’s policies have undermined its ability to
implement the nursing, transportation, and porter services expressly provided for in IEPs. This
Court is mindful that a “plaintiff could plausibly frame any IEP-related claim as one of
‘implementation’ and thereby sidestep the IDEA’s exhaustion requirement.” Polera, 288 F.3d at
489. The Complaint is replete with allegations that DOE policies and procedures created layers
of bureaucracy that made it difficult for parents of disabled children to obtain services.
Plaintiffs’ “claims are systemic in that the wrongdoing complained of is inherent in the

2

Although Plaintiffs assert an assortment of other statutory claims predicated, “the IDEA subjects not only
an IDEA action, but any other federal statutory claim seeking relief that would be available under the IDEA to the
same administrative exhaustion requirement.” Baldessarre, 820 F. Supp. 2d at 501 (citing 20 U.S.C. § 1415(l)).

9

program . . . that [Defendants] adopted and is not directed against any specific child.” J.G. by
Mrs. G. v. Bd. of Educ. of Rochester City Sch. Dist., 830 F.2d 444, 446 (2d Cir. 1987).
Here, DOE’s policies never required OSH or OPT—agencies critical to providing
the services at issue in this action—to appear for IEP meetings. (See, e.g., Compl. ¶¶ 155, 284,
291.) Accordingly, Plaintiffs were required to contact OSH and OPT separately after the IEP
meeting. This policy created a disjointed bureaucracy in which OSH and OPT acted in isolation
without coordinating—much less knowing—the services each was required to provide. (See
Compl. ¶¶ 232–237.)
J.P.’s situation is emblematic of the organizational dysfunction fostered by DOE’s
policies. On September 13, 2017, a “bus came to pick J.P. up at his home, [but it] had no room
for J.P.’s wheelchair, so he was unable to attend school.” (Compl. ¶ 137.) The next day, the bus
simply failed to “come to pick up J.P. for school.” (Compl. ¶ 138.) Moreover, because DOE
failed to simultaneously provide J.P.’s nursing, transportation, and porter needs from June 2017
to September 2017, the “nurse originally assigned to J.P. in June 2017 was no longer available
for J.P.” (Compl. ¶ 139.) As a result of OSH’s failure to re-assign a new nurse or tell OPT and
J.P’s representatives that it had eliminated his original nursing assignment, J.P. could not attend
school on September 15 because a nurse was not on the bus. (Compl. ¶ 140.) M.C. and O.A.
have had similar interactions with DOE’s bureaucracy. (Compl. ¶¶ 181–203, 230–271.)
DOE’s policies sanctioned a Kafkaesque approval process that often precluded
receipt of IEP-related services. According to the Complaint, “even after the Plaintiffs submitted
medical documentation clearly demonstrating the medical need for nursing services, OSH denied
or delayed approval of Nurse Services because of requests for information or documentation that
was necessary to evaluate the students’ needs for nurses.” (Compl. ¶ 286.) Indeed, J.P. was left

10

out of school for nearly two years because OSH refused to accept multiple submissions from his
lawyers and medical care providers. (Compl. ¶¶ 76–78, 88–116; see also Compl. ¶¶ 163–173
(alleging that O.A.’s forms repeatedly were submitted and rejected).) Even after J.P.’s
representatives repeatedly re-submitted forms, OSH failed to process them in an expeditious
manner.
DOE also lacked a mechanism to assure Plaintiffs that J.P., M.C., and O.A. would
receive IEP-mandated services. Put another way, DOE representatives were not expressly
required to respond to service requests within a prescribed time frame. The Complaint alleges
that concerned parents repeatedly attempted to contact OSH and OPT representatives and
confirm, for example, that a bus was assigned to pick up their child on the first day of school.
Those representatives were not readily reachable, and when they eventually returned the calls—
sometimes several days later—they often lacked information regarding whether (and when) the
requested services would be provided. (Compl. ¶¶ 235–250.)
Accordingly, Plaintiffs’ claims arise from DOE’s failure to implement IEPsanctioned services. That failure stems not from a dispute regarding the scope of an IEP, but
primarily from DOE’s policies. See Kalliope R. ex rel. Irene D. v. N.Y. State Dep’t of Educ.,
827 F. Supp. 2d 130, 139 (E.D.N.Y. 2010). In some cases, the implementation of these policies
prevented Plaintiffs’ children from attending school for several years, essentially rendering the
IEP useless. “Thus, the focus of this case will be on [Defendants’] alleged policy, not whether a
particular IEP is appropriate for a particular student.” Kalliope R., 827 F. Supp. 2d at 139. And
because “systemic violations are often the result of implemented policies and procedures, [ ]
administrative hearing officers do not have the ability to alter already existing policies.” S.W. by
J.W. v. Warren, 528 F. Supp. 2d 282, 294 (S.D.N.Y. 2007).

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Accordingly, because Plaintiffs’ exhaustion of administrative remedies would
have been futile, this Court may properly exercise subject matter jurisdiction over Plaintiffs’
claims.
III.

Mootness
Defendants contend that Plaintiffs’ claims for injunctive relief are moot because

DOE’s Standard Operating Procedure Manual, revised one month after this action was
commenced (the “Revised Manual”), “already provides for the requested relief.” (Mot. at 23.)
Defendants offer a side-by-side chart comparing excerpts of the Revised Manual and the
Complaint, and argue that the revisions provide adequate remedies to Plaintiffs’ grievances.
(Mot. at 7–8.) For example, Defendants note that while DOE previously delegated the task of
recommending nurses to OSH, the Revised Manual now centralizes it into a collaborative
process between the IEP team, OSH, the student’s medical providers, and the parents. (Mot. at 7
(citing Revised Manual at 78).)
“A case is moot when the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d 51, 52 (2d Cir. 2015)
(quotation marks omitted). More specifically, “[a] case becomes moot when interim relief or
events have eradicated the effects of the defendant’s act or omission, and there is no reasonable
expectation that the alleged violation will recur.” Van Wie v. Pataki, 267 F.3d 109, 113 (2d Cir.
2001) (quoting Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998)); Myers
Indus., Inc. v. Schoeller Arca Sys., Inc., 171 F. Supp. 3d 107, 116 n.10 (S.D.N.Y. 2016).
The fact that DOE has adopted a new policy does not moot this case, because it is
unclear whether the Revised Manual will fix the issues raised by Plaintiffs. Defendants
characterize the Revised Manual as a panacea for the problems that have ensnared DOE’s efforts

12

to provide IEP services. But without knowing how those revised policies have taken hold in
practice, the Revised Manual is hollow in force. And DOE’s struggle to provide IEP services in
a timely fashion remains at issue irrespective of the new provisions in the Revised Manual.
Plaintiffs have submitted a number of affidavits attesting to DOE’s continued failure to comply
with the Revised Manual, underscoring the reality that it is too soon to determine whether the
Revised Policy is in fact effective. 3 (See Decl. of Caroline J. Heller in Opp. to Mot. to Dismiss,
ECF No. 42, Ex. 2; Decl. of Rebecca Shore in Opp. to Mot. to Dismiss, ECF No. 45, at ¶¶ 13–
19; Decl. of Rita Rodriguez in Opp. to Mot. to Dismiss, ECF No. 44.)
IV.

Sufficiency of Plaintiffs’ Claims
A. IDEA
Defendants’ argument that Plaintiffs’ IDEA claim is “not sufficiently linked to the

factual circumstances” is belied by the Complaint’s detailed allegations. (Mot. at 19.) The basis
of Plaintiffs’ IDEA claim is that DOE’s persistent failure to implement J.P., M.C., and O.A.’s
IEPs prevented them from attending school and receiving a free and appropriate public
education. In resolving Defendants’ administrative exhaustion argument, this Court concluded
that Plaintiffs sufficiently alleged that DOE’s policies had systemically foreclosed Plaintiffs from
obtaining IEP services. This is enough to sustain an IDEA claim at the pleading stage.
“[A] party challenging the implementation of an IEP must show more than a de
minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the
school board or other authorities failed to implement substantial or significant provisions of the
IEP.” D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 (E.D.N.Y. Sept. 2,

3

Given that mootness is a question of subject matter jurisdiction, this Court may appropriately consider
evidence outside of the pleadings, such as affidavits and other materials. United States v. Vasquez, 145 F.3d 74, 80
(2d Cir. 1998); Mayers v. N.Y. Cmty. Bancorp, Inc., 2005 WL 2105810, at *6 (E.D.N.Y. Aug. 31, 2005).

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2011). The Complaint unmasks the muddled process to obtain OSH and OPT approval for
nursing and transportation services. (Compl. ¶¶ 284, 292.) It also describes a system in which
OSH and OPT—along with various nursing and busing services—lack the coordination to
effectively fulfill their duties. (See, e.g., Compl. ¶¶ 246, 260–261.) Because a “student denied a
timely enrollment, an appropriate placement, or special education services identified in an IEP[]
plainly suffers a very severe harm,” Plaintiffs have adequately pled a violation of the IDEA. J.G.
ex rel. F.B. v. Mills, 995 F. Supp. 2d 109, 120 (E.D.N.Y. 2011).
While the bulk of Plaintiffs’ allegations adequately support their claims under the
IDEA, this Court notes that H.B.’s claims, as they relate to the 2014–15 and 2015–16 school
years, are insufficiently pled. As Defendants note, the Complaint contains a threadbare
allegation that “M.C. spent the 2014–15 and 2015–16 school years, in their entirety, at home
without instruction.” (Compl. ¶ 151.) The vast majority of H.B.’s allegations relate to IEPs that
were formulated in December 2016 and August 2017. (Compl. ¶¶ 152–207.) Accordingly,
H.B.’s IDEA claims are dismissed insofar as they seek relief for Defendants’ conduct predating
the December 2016 IEP.
B. ADA and Rehabilitation Act Claims
Parents of children with disabilities may bring claims under the ADA or Section
504 of the Rehabilitation Act. 4 20 U.S.C. § 1415(b)(1). The ADA provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs or activities of a public entity, or be subjected

4
There is no individual liability under the ADA or § 504 of the Rehabilitation Act. It is not entirely clear
from the face of the Complaint that the causes of action predicated on these statutes are directed solely at the New
York City Department of Education. To the extent that they are alleged against the sole named individual
defendant, the ADA and Rehabilitation Act claims are dismissed as to that Defendant. Menes v. City Univ. of N.Y.,
92 F. Supp. 2d 294, 306 (S.D.N.Y 2000).

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to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, Section 504 of the
Rehabilitation Act provides that “no otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
assistance.” 29 U.S.C. § 794. To make out a prima facie case under either of these statutes, a
plaintiff must show “(1) that she is a qualified individual with a disability, (2) that the defendants
are subject to [the relevant statute], and (3) that she was denied the opportunity to participate in
or benefit from defendants’ services, programs, or activities, or was otherwise discriminated
against by defendants, by reason of her disability.” Harris v. Mills, 572 F.3d 66, 73–74 (2d Cir.
2009).
Courts have considered both the ADA and Section 504 in conjunction with the
IDEA. To plead a claim under either statute, Plaintiffs must show that Defendants acted in bad
faith or with gross misjudgment when administering disability services. S.W., 528 F. Supp. 2d at
290; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 301 (S.D.N.Y. 2010). Because
the ADA and Section 504 “address discrimination against disabled students, rather than incorrect
or erroneous special education treatments, as in the case of IDEA,” there must be “something
more than a mere violation of the IDEA . . . in order to show a violation of [either statute] in the
context of educating children with disabilities.” Scaggs v. N.Y. Dep’t of Educ., 2007 WL
1456221, at *15 (E.D.N.Y. May 16, 2007).
The Complaint does not allege that Defendants acted with animosity or ill will.
The question, then, is whether, “[v]iewing the evidence in the light most favorable to Plaintiffs,
they have sufficiently pled the requisite ‘gross misjudgment’ necessary for their ADA and
Section 504 claims to withstand a motion to dismiss.” Scaggs, 2007 WL 1456221, at *16.

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Courts have equated gross misjudgment with deliberate or reckless indifference. Gabel ex rel.
L.G. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005);
Myslow v. New Milford Sch. Dist., 2006 WL 473735, at *9 (D. Conn. Feb. 28, 2005) (“It is not
clear whether [the] ‘deliberate indifference’ standard is at all different from the ‘bad faith or
gross misjudgment’ formulation . . . [but] the Court assumes that the standards are identical.”).
Drawing all inferences in Plaintiffs’ favor, the Complaint sufficiently pleads that
DOE’s failure to provide its services resulted from gross misjudgment. Plaintiffs notified DOE
that its policies were undermining the delivery of timely and effective services. DOE provides
no streamlined process for parents of disabled students to convey service requests and
recommendations to OSH and OPT. Moreover, parents are routinely kept in the dark about the
status of their requests—their telephone calls go unreturned, and when they do make contact
with DOE, the explanations they receive are unclear. (See Compl. ¶¶ 31–146, 147–207, 208–
272.) While bureaucratic incompetence may have triggered DOE’s failure to implement IEP
services, it eventually morphed into a reckless disregard for J.P., M.C., and O.A.’s educational
needs. This is particularly true in view of the allegations that DOE representatives were aware of
the myriad failures to provide nursing and transportation services yet did nothing to remediate
them. (Compl. ¶¶ 191–20, 253–271.) Plaintiffs adequately allege that as a result of DOE’s
policies, DOE “did not fulfill the requirements of plaintiffs’ IEPs . . . or failed to properly and
timely evaluate disabled students, and . . . were made aware of plaintiffs’ parents’ requests but on
several occasions stated they could not meet those requests due to a lack of service providers.”
S.W., 528 F. Supp. 2d at 291.
In sum, the Complaint sufficiently asserts that “[D]efendants had no proper or
reasonable basis for the policy limiting available services for [disabled students afflicted with

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severe medical conditions], knowing it would result in a failure to adequately implement IEPs
established to provide” them with “an equal opportunity to a free and adequate education.”
S.W., 528 F. Supp. 2d at 291; Scaggs, 2007 WL 1456221, at *16 (detailing “extensive list of
[defendants’] failures and omissions with regard to disabled students . . . combined with
[plaintiffs’] assertions that defendants were aware of plaintiffs’ disabilities, that plaintiffs’
parents requested accommodation and programs to address such disabilities and that the
defendants intentionally refused to take any remedial or corrective action to remedy the
problems”). Accordingly, because DOE policies effectively “limit[ed] the availability of
services and thereby impede[d] the implementation of IEPs for [severely disabled students], at
this stage [this Court] can infer that [P]laintiffs may be able to show bad faith or gross
misjudgment.” S.W., 528 F. Supp. 2d at 291.
C. Section 1983
“It is well settled that § 1983 does not create any new substantive rights, but
merely provides a federal cause of action for violations of certain federal rights.” Mrs. W. v.
Tirozzi, 832 F.2d 748, 754 (2d Cir. 1987). Accordingly, Plaintiffs bring claims under 42 U.S.C.
§ 1983, asserting violations of the IDEA, the Rehabilitation Act, and the ADA. “To prevail on
their Section 1983 claim, plaintiffs must establish that they were deprived of a right secured by
the Constitution or laws of the United States without due process of law, and that the alleged
deprivation was committed under color of state law.” B.D. v. DeBuono, 130 F. Supp. 2d 401,
430–431 (S.D.N.Y. 2007). A governmental entity like DOE is subject to municipal liability
under § 1983 if Plaintiffs show “an injury to a constitutionally protected right . . . that . . . was
caused by a policy or custom of the municipality or by a municipal official responsible for
establishing final policy.” Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008); Booker v. Bd. of

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Educ., 238 F. Supp. 2d 469, 475 (N.D.N.Y. 2002) (“For purposes of § 1983, school districts are
considered to be local governments and are subject to similar liability as local governments.”).
There are four ways to establish the existence of an official policy or custom: (1)
a formal policy officially endorsed by the municipality; (2) actions taken by government officials
responsible for establishing the municipal policies that caused the particular deprivation in
question; (3) a practice so consistent and widespread that, although not expressly authorized, it
constitutes a custom or usage of which a supervising policy-maker must have been aware; or
(4) a failure by policymakers to provide adequate training to subordinates to such an extent that it
amounts to deliberate indifference to rights of those who come into contact with the municipal
employee. Brandon v. City of New York, 705 F. Supp. 2d 261, 276–277 (S.D.N.Y. 2010)
(citation omitted).
Plaintiffs rely on a “widespread practice” to support their claims that Defendants
violated the IDEA and the Rehabilitation Act. For purposes of establishing a § 1983 claim,
Plaintiffs need not identify an express rule or regulation; it is sufficient to show “that a
discriminatory practice of subordinate employees was so manifest as to imply the constructive
acquiescence of policy-making officials.” Patterson v. Cty. of Oneida, 375 F.3d 206, 226 (2d
Cir. 2004).
This Court concludes that the Complaint sufficiently alleges that Defendants’
conduct is a reflection of DOE’s systemic policies and practices. F.C., 2016 WL 8716232, at
*18 (to the extent court held that “certain of defendants’ conduct had adequately been pled to
reflect systemic policies or practices . . . [the complaint] ple[d] policies and practices within the
scope of § 1983”); Brooklyn Sch. for Special Children v. Crew, 1997 WL 539775, at *15
(S.D.N.Y. Aug. 28, 1997) (“[T]he practices described are widespread enough, if proved as

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alleged, to impose § 1983 liability . . . [and the complaint alleges] far more than the type of
isolated wrongdoing that would fail to a state claim . . . .”). As a result of DOE’s widespread
practices regarding the provision of nursing, transportation, and porter services to disabled
students, Plaintiffs and their children were injured—they were deprived of a free and appropriate
public education. And because these practices were so endemic to DOE’s system of reviewing,
processing, and implementing IEP services to disabled students, the Complaint also adequately
imputes constructive knowledge of these persistent practices to the individual Defendant in this
action.
V.

Necessary Party
Defendants insist that if this litigation were to proceed, the New York State

Education Department (“NYSED”) must be joined as a necessary and indispensable party
because Plaintiffs’ claims “implicate the need to follow NYSED Guidelines and state
regulations.” (Mot. at 25.) A party is necessary to a case if, “in that person’s absence, the court
cannot accord complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A).
Plaintiffs do not challenge NYSED guidelines, policies, or regulations. To the
contrary, Plaintiffs simply claim that the City DOE’s practices and policies concerning the IEP
process—namely, the implementation of certain IEP conditions—deprived them of a free and
appropriate public education. Defendants recognize that the City has the authority to reform its
practices and policies, citing the Revised Manual as proof that Plaintiffs’ claims are moot.
Accordingly, the NYSED is not a necessary party.
VI.

Discovery
In July 2018, the parties filed a joint letter requesting a discovery conference to

address Defendants’ refusal to respond to Plaintiffs’ request for documents. (ECF No. 48.)

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Among other things, Defendants requested a “stay of discovery in this action until a reasonable
time following the Court’s decision on Defendants’ motion to dismiss.” (ECF No. 48 at 2.)
Given that this Opinion & Order completely resolves Defendants’ motion to dismiss, the parties’
joint request for a discovery conference is denied as moot.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted in part and
denied in part. The motion is granted with respect to Plaintiff H.B.’s claims arising from the
2014–15 and 2015–16 school years. And to the extent that the Complaint pleads claims against
the individual Defendant under the ADA or the Rehabilitation Act, those claims are dismissed.
The motion is denied in all other respects. Further, the parties’ joint request for a discovery
conference is denied as moot. The Clerk of Court is directed to amend the caption to substitute
Richard A. Carranza for Carmen Fariña. In addition, the parties are directed to appear for a
status conference on September 20, 2018 at 2:30 p.m. The Clerk of Court is directed to
terminate the motions pending at ECF Nos. 36 and 48.
Dated: August 28, 2018
New York, New York

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