Hidalgo et al v. New York City Department of Education

Filing 68

MEMORANDUM OPINION & ORDER: For the foregoing reasons, Plaintiffs' motion for reconsideration is DENIED. The Clerk of Court is directed to terminate the motion pending at Docket number 39. The parties shall file a letter updating the Court on the status of this case by no later than February 8, 2021. (Signed by Judge Ronnie Abrams on 1/8/2021) (rro)

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 1/8/2021

MARIA HIDALGO AND ABUNDIO
SANCHEZ, individually and as parents and
natural guardians of L.S.,
Plaintiffs,

No. 19-CV-2590 (RA)
MEMORANDUM
OPINION & ORDER

v.
NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant.
RONNIE ABRAMS, United States District Judge:

Plaintiffs Maria Hidalgo and Abundio Sanchez—the parents of L.S., a 10-year old child
who has developmental impairments stemming from a traumatic brain injury—commenced this
action pursuant to the Individuals with Disabilities Education Act (“IDEA”) seeking funding from
the New York City Department of Education (the “DOE”) for L.S.’s enrollment at the International
Institute for the Brain (“iBrain”), a private school for students with special needs. On October 29,
2019, the Court denied Plaintiffs’ motion for a preliminary injunction that would have required
the DOE, pursuant to the “stay-put” or “pendency” provision of the IDEA, to pay for L.S.’s tuition
at iBrain for the 2018–2019 school year pending final adjudication of their underlying
administrative action against the DOE. See 20 U.S.C. § 1415(j). Now before the Court is
Plaintiffs’ motion for reconsideration of the Court’s October 29, 2019 Opinion and Order
(“October 2019 Opinion”). For the reasons that follow, the motion is DENIED.

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 2 of 11

BACKGROUND
Assuming familiarity with the facts of this case, which were set forth in detail in the
October 2019 Opinion, Dkt. 38, the Court provides here a brief background of the issues relevant
to the instant motion.
I.

Statutory Background
Pursuant to the IDEA, federal funds are “available to assist state and local agencies” in

educating children with disabilities, “provided that the recipients of those funds comply with
various provisions of the Act.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 448 (2d Cir. 2015)
(internal quotation marks omitted). One of the principal purposes of the IDEA is to ensure that all
children with disabilities have available to them a “free appropriate public education” (“FAPE”).
20 U.S.C. § 1400(d)(1)(A). To achieve that end, “school districts must create individualized
education programs (‘IEPs’)” for such children. C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746
F.3d 68, 72 (2d Cir. 2014). An IEP “is a written statement that sets out the child’s present
educational performance, establishes annual and short-term objectives for improvements in that
performance, and describes the specially designed instruction and services that will enable the
child to meet those objectives.” R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)
(internal quotation marks omitted). In New York State, Committees on Special Education
(“CSEs”) convened by the local school district are responsible for developing IEPs. See N.Y.
Educ. Law § 4402(1)(b)(1).
Parents who believe that their child’s IEP is inadequate may file a due process complaint
with the appropriate state agency and challenge the IEP in an “impartial due process hearing.” See
20 U.S.C. §§ 1415(b)(6), (f)(1)(A). In New York State, the hearing first occurs before an
independent hearing officer (“IHO”) appointed by the local board of education. See N.Y. Educ.

2

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 3 of 11

Law § 4404(1). Either the DOE or the parents may subsequently challenge the IHO’s decision to
the Office of State Review, where it will be reviewed by a state review officer
(“SRO”). See id. § 4404(2); see also 20 U.S.C. § 1415(g). The SRO’s decision may then be
challenged in state or federal court. See id. § 1415(i)(2)(A).
Pertinent to this case, the “stay-put” or “pendency” provision of the IDEA further provides
that, “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” during the pendency of the
administrative process described above. 20 U.S.C. § 1415(j). “A claim for tuition reimbursement
pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for
tuition reimbursement pursuant to the inadequacy of an IEP.” Mackey ex rel. Thomas M. v. Bd. of
Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004). “Section 1415(j) represents
Congress’ policy choice that all [children with disabilities], regardless of whether their case is
meritorious or not, are to remain in their current educational placement until the dispute with
regard to their placement is ultimately resolved.” Id. at 160-61 (internal quotation marks and
alterations omitted). Put simply, § 1415(j) obligates an educational agency to maintain the “status
quo placement even if the child would otherwise have no substantive right to it.” E. Lyme Bd. Of
Educ., 790 F.3d at 453. The purpose of the pendency provision is to provide stability in the
education of the student while the parties’ dispute is being resolved. See id. at 452.
II. Factual Background 1
Plaintiffs are the parents of L.S., a 10-year-old child. Due to a traumatic brain injury, L.S.
has global developmental impairments that render her non-verbal and non-ambulatory. As a

1

Unless otherwise noted, the facts in this section are drawn from Plaintiffs’ Complaint and are undisputed.

3

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 4 of 11

student classified as having a disability, the New York City Department of Education (“DOE”)
must provide her with a FAPE for every school year.
On March 24, 2016, the CSE convened an IEP meeting for L.S. According to Plaintiffs,
both parties agreed at that meeting that the IEP for the 2016–2017 school year should include an
educational program consisting of, among other things, a 6:1:1 class size (i.e., 6 students, 1 teacher,
and 1 aide). The IEP was not reduced to writing at that time, but the meeting was audio recorded.
Plaintiffs submitted a copy of the recording in support of their motion for a preliminary injunction.
On June 23, 2016, Plaintiffs sent the DOE a so-called “10-Day Notice” indicating their
intent to “unilaterally place their daughter at The International Academy of Hope (‘iHope’) for the
2016–2017 school year.” Declaration of Karl J. Ashanti (“Ashanti Decl.”), Ex. C, Dkt. 21-3. 2
Their reason for doing so was their purported “understanding that there is no private school
placement the DOE can recommend which would be appropriate for L.S.” Id. The following day,
the DOE issued a written version of what it claimed was the IEP agreed upon by the parties at the
March 24, 2016 meeting. See Ashanti Decl., Ex. B, Dkt. 21-2.
According to Plaintiffs, although the June 24, 2016 document “matches up very
consistently” with the terms of the IEP discussed at that meeting, it provides for a class ratio of
12:1:4, not 6:1:1. Pls’ Mem. Prelim. Inj., Dkt. 22, at 5. They therefore maintain that the document
reflects an inaccurate memorialization of the IEP to which they agreed at the March 24, 2016
meeting. In spite of this alleged discrepancy, in 2017 the parties entered into a stipulation of
settlement in which the DOE agreed to fund L.S.’s placement at iHope for the 2016–2017 school
year. The stipulation provided that it could be renewed “for up to two school years,” (i.e., the

The record reflects that L.S. also attended iHope during the 2015–2016 school year, which the DOE funded as
parted of a stipulation of settlement. See Ashanti Decl., Ex. C (“Since the DOE settled this case last year [the 2015–
2016 academic year] by providing prospective payment of tuition at iHope, [Plaintiffs] are respectfully requesting a
similar settlement for the upcoming school year”).

2

4

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 5 of 11

2017–2018 and 2018–2019 school years) under certain conditions not relevant here. Ashanti
Decl., Ex. D, Dkt. 21-4 (the “Settlement Agreement”). The settlement agreement also provided
that it could not be relied upon by any party “to indicate, establish, or support the position that the
School and/or Services provided and/or funded . . . comprises in whole or in part, the Student’s
educational program for purposes of the ‘pendency’ or ‘stay put’ provisions of the [IDEA].” Id.
at 6.
L.S. attended iHope during the 2016–2017 and 2017–2018 school years pursuant to the
Settlement Agreement. On June 21, 2018, Plaintiffs provided the DOE with a 10-Day Notice
indicating their “intent to unilaterally place” L.S. at iBrain for the 2018–2019 school year. Ashanti
Decl., Ex. E, Dkt. 21-5. On July 9, 2018, L.S. started attending iBrain, where she remains a
student. On that same day, Plaintiffs filed a due process complaint against the DOE, alleging that
it did not provide L.S. with a FAPE for the 2018–2019 school year, and requesting, among other
things, an order requiring the DOE to fund L.S.’s placement at iBrain during the pendency of the
due process proceedings.
IHO Ajello heard evidence regarding L.S.’s pendency placement on August 30, 2018. Ten
days later, the IHO issued an order ruling that L.S.’s pendency should be based on an April 29,
2015 IEP—the IEP for the 2015–2016 school year—which recommended a 12:1:4, not a 6:1:1,
class size for L.S. Plaintiffs appealed that order to the SRO. On November 23, 2018, the SRO
largely affirmed the IHO’s order, except that she found that L.S.’s pendency placement should be
based on an even earlier IEP—one established for the 2014–2015 school year.

5

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 6 of 11

PROCEDURAL HISTORY
Plaintiffs filed suit in this Court on March 22, 2019. Just over three months later, they
moved for a preliminary injunction seeking the same relief as that sought in the Complaint—an
order vacating the SRO’s decision and directing the DOE to fund L.S.’s placement at iBrain for
the 2018-2019 school year until the final adjudication of Plaintiffs’ due process proceeding. After
oral argument on the motion was held on August 8, 2019, the parties were granted permission to
submit supplemental letters addressing the impact of recent cases from this District which similarly
addressed whether parents are permitted to move their child from one private school to another
and receive “stay-put” funding for the new placement so long as the new school offers a program
that is “substantially similar” to the prior one.
On October 29, 2019, the Court denied Plaintiffs’ motion for a preliminary injunction. The
Court held that the IDEA does not grant parents the authority to unilaterally move their child to a
substantially similar school and compel the DOE to fund that school—provided that the agreedupon placement remains available to service the child’s IEP. The Court further held that iHope
constituted L.S.’s pendency placement.
On November 12, 2019, Plaintiffs filed a motion for reconsideration pursuant to Federal
Rule of Civil Procedure 59(e) and Local Civil Rule 6.3. Following oral argument and efforts to
settle the matter, the Court of Appeals for the Second Circuit decided Ventura de Paulino v. New
York City Department of Education, 959 F.3d 519, 525 (2d Cir. 2020), which confirmed the
interpretation of the IDEA set forth in this Court’s October 2019 Opinion. On May 28, 2020, the
Court ordered Plaintiffs to file a letter that advised the Court whether they intended to withdraw
their motion for reconsideration in light of that decision. On July 13, 2020, Plaintiffs submitted a

6

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 7 of 11

letter arguing that Ventura de Paulino should not control this action because the facts of this case
were materially distinguishable. The Court disagrees.
STANDARD OF REVIEW
Motions for reconsideration filed prior to final judgment are governed by Local Civil Rule
6.3, which provides that the moving party shall set forth “the matters or controlling decisions which
counsel believes the Court has overlooked.” 3 SEC v. Collector's Coffee Inc., 464 F. Supp. 3d 665,
667 (S.D.N.Y. 2020). “The Second Circuit has held that ‘[a] motion for reconsideration should be
granted only when the [moving party] identifies an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’”
Id. (quoting Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104
(2d Cir. 2013)). Reconsideration of a previous order is an extraordinary remedy, subject to a strict
standard and sparingly employed. See, e.g, Ortega v. Mutt, No. 14-CV-09703 (JGK), 2017 WL
1968296, at *1 (S.D.N.Y. May 11, 2017).
DISCUSSION
Plaintiff principally argues that the Court’s decision improperly deprives L.S. of her
entitlement to pendency funding because “she cannot obtain [] funding for an education and related
services at a school she did not attend,” and that the Court erred in applying the reasoning of Neske
v. New York City Department of Education, No. 19-CV-2933 (VEC), 2019 WL 3531959,
(S.D.N.Y. Aug. 2, 2019) because the facts in that case are materially distinguishable from those
here.
The Court is not persuaded. As stated in the October 2019 Opinion, when parents
unilaterally move their child from a pendency placement to a different placement of their choice,
Because final judgment has not been entered in this case, Fed. R. Civ. P. 59(e), which governs a “motion to alter or
amend a judgment,” is inapplicable here.

3

7

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 8 of 11

they are not entitled to pendency funding for the new placement. This legal conclusion is now
supported by intervening Second Circuit precedent, rendering irrrelevant any prior reliance on
Neske.
Pursuant to 20 U.S.C. § 1415(j), L.S. was entitled to remain in “[her] then-current
educational placement” pending the resolution of her due process complaint against the DOE
concerning the 2018–2019 school year. Generally, the “then-current educational placement” is
“whatever educational placement was last agreed upon for the child.” T.M. ex rel. A.M. v.
Cornwall Cent. Sch. Dist., 752 F.3d 145, 171 (2d Cir. 2014). To determine the “then-current
educational placement” courts typically look to: “(1) ‘the placement described in the child’s most
recently implemented IEP’; (2) ‘the operative placement actually functioning at the time when the
stay put provision of the IDEA was invoked’; or (3) ‘the placement at the time of the previously
implemented IEP.’” E. Lyme Bd. of Educ., 790 F.3d at 452 (quoting Mackey, 386 F.3d at 163).
Each of these definitions turns on the meaning of “placement” in § 1415(j). The Second
Circuit has defined the phrase “educational placement” to refer to “the classes, individualized
attention and additional services a child will receive—rather than the ‘bricks and mortar’ of the
specific school.” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009). In the specific
context of the stay-put provision, the Circuit has interpreted that phrase to refer to “the same
general level and type of services” that a child receives. T.M. ex. Rel. A.M., 752 F.3d at 171.
At the time this Court issued its October 2019 Opinion, judges in this District were split as
to whether these precedents interpreting 20 U.S.C. § 1415(j) permitted families to receive “stayput” funding when they unilaterally moved their child from one private school to another, so long
as the new school offered a program “substantially similar” to the prior one. Compare, e.g., Neske,
2019 WL 3531959 (finding that parents have no right to pendency funding for new placement

8

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 9 of 11

when “the original placement remains an available option”) with Melendez v. N.Y.C. Dep’t of
Educ., No. 19-CV-2928 (ER), 2019 WL 5212233, at *9 (S.D.N.Y. Oct. 16, 2019) (directing IHO
to issue revised pendency order that addressed whether services at new placement were
substantially similar to those received at agreed-upon placement). In denying Plaintiff’s motion
for a preliminary injunction, the Court held that such an interpretation would effectively undermine
the school district’s ability to choose the appropriate schools for the children in its district, as the
IDEA authorizes it to do.
The Second Circuit has since held the stay-put provision of the IDEA does not entitle
parents to pendency funding for a new school in which the child was unilaterally enrolled,
regardless of whether that new school is substantially similar to the program that was last agreed
upon by the parents and the school district. See Ventura de Paulino, 959 F.3d at 525. Parents who
“unilaterally change their child’s placement during the pendency of review proceedings . . . . do
so . . . at their own financial risk.” Id. at 526 (internal quotation marks omitted). The Court of
Appeals expressly stated that “it is the City, not the Parents, that is authorized to decide how (and
where) the Students’ pendency services are to be provided.” Id. at 533. Reasoning that the stayput provision was intended as a procedural safeguard “preventing the school district from
unilaterally modifying a student's educational program during the pendency of an IEP dispute”
without consent of the parents, the Ventura de Paulino court concluded that that provision “does
not eliminate . . . the school district's preexisting and independent authority to determine how to
provide the most-recently-agreed-upon educational program.” Id. at 534 (emphasis in original).
“To hold otherwise would turn the stay-put provision on its head,” by not only eliminating the
school district’s authority to determine pendency services but also granting parents an effective

9

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 10 of 11

veto over school choice, “a power the IDEA clearly does not grant them.” Id. (internal quotation
marks omitted).
Plaintiffs argue that the instant matter is distinguishable from Ventura de Paulino because
the DOE allegedly failed to offer a pendency placement that would maintain L.S.’s educational
status quo. Dkt. 61 at 3-4. According to Plaintiffs, because DOE’s proposed pendency placement
at a public school would not guarantee a level of education commensurate with L.S.’s “thencurrent educational placement” at iHope, they fall under the exception recognized by Ventura de
Paulino for circumstances “where the school providing the child's pendency services is no longer
available and the school district either refuses or fails to provide pendency services to the child.”
959 F.3d at 534 n.65 (emphasis in original). That exception does not apply here, however, because
iHope, “the school providing [L.S.’s] pendency” services, remained available to Plaintiffs. Indeed,
the Settlement Agreement entitled L.S. to remain at iHope for the 2018-2019 school year.
Accordingly, Plaintiffs’ decision to unilaterally transfer L.S. from iHope to iBrain constituted an
effective rejection of her pendency placement and disentitled them to funding for the new
placement. In sum, the holding of Ventura de Paulino applies squarely to the instant case, and
confirms the legal conclusions that supported the October 2019 Opinion.
Because Plaintiffs have pointed to no evidence or controlling precedent that the Court
overlooked and which would alter its decision, they are not entitled to relief under Local Civil Rule
6.3.

10

Case 1:19-cv-02590-RA Document 68 Filed 01/08/21 Page 11 of 11

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for reconsideration is DENIED. The Clerk
of Court is directed to terminate the motion pending at Docket number 39. The parties shall file
a letter updating the Court on the status of this case by no later than February 8, 2021.

SO ORDERED.
Dated:

January 8, 2021
New York, New York
Ronnie Abrams
United States District Judge

11