J.L et al v. Department of Education

Filing 17

OPINION & ORDER: For the reasons above, the Court denies DOE's motion to dismiss. The Clerk of Court is respectfully directed to close all pending motions. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/25/2024) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
J.L. et al.,
-v-

Plaintiffs,

NEW YORK CITY DEPARTMENT OF EDUCATION,

24 Civ. 1926
OPINION & ORDER

Defendant.
PAUL A. ENGELMAYER, District Judge:
Plaintiffs J.L. and AL. bring this action against the New York City Department of
Education ("DOE") individually and on behalf of their minor daughter, P.L., who has an autism
spectrum disorder. Plaintiffs seek, inter alia, reimbursement for the cost of therapeutic services
during the 2020-21 school year as required by the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400 et seq., and Article 89 of the New York State Education Law, N.Y.
Educ. Law§ 4401 et seq. The parties agree that P.L. is entitled under the IDEA to a free and
appropriate public education ("F APE"), but they dispute whether DOE had a reimbursement
obligation for the period July 2020 through January 2021.
In moving now to dismiss for lack of Article III standing under Federal Rule of Civil
Procedure 12(b)(1 ), DOE claims that no administrative order or agreement required it to
reimburse plaintiffs for the period in question. It argues that a student's pendency entitlement
arises only when a due process complaint ("DPC") is filed, and that, because plaintiffs' DPC was
not filed until February 9, 2021, recovery for the then-in-progress 2020-21 school year is barred.
Dkt. 13 at 10-11. But DOE overlooks a vital fact: that during the claimed reimbursement period,
pendency proceedings arising out of a July 1, 2019 DPC were pending. See Dkt. 15 ("Amended

Complaint" or "AC") ,r,r 20, 25. And under the IDEA's "stay-put" provision, "[d]uring the
pendency of any proceedings conducted pursuant to this section, ... the child shall remain in the
then-current educational placement." 20 U.S.C. § 1415(j) (emphasis added). The "then-current"
placement for P .L. for that year was set by a May 19, 2020 administrative order that covered the
therapeutic services for which plaintiffs seek reimbursement here. See AC ,r,r 26-27. In these
circumstances, plaintiffs have plausibly alleged that DOE was under an administrative obligation
to fund those services during the claimed period. They thus have Article III standing to pursue
their claims against DOE. The Court denies DOE's motion to dismiss.
I.

Background
A. Statutory and Administrative Framework
Congress enacted the IDEA to promote the education of students with disabilities.

Arlington Cent. Sch. Dist. Bd. a/Educ. v. Murphy, 548 U.S. 291,295 (2006). The IDEA offers
federal funds to states in exchange for a connnitment to provide a F APE to all children with
disabilities. 20 U.S.C. § 1412(a)(l)(A); see also Endrew F ex rel. Joseph F v. Douglas Cnty.

Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). A FAPE should "emphasize[] special education and
related services designed to meet the[] unique needs" of a child with a disability and "prepare"
the child "for further education, employment, and independent living." 20 U.S.C.
§ 1400(d)(l )(A).
To that end, school districts in receipt ofIDEA funds must formulate an Individualized
Education Program ("IEP") for each eligible student that is "reasonably calculated to enable a
child to make progress appropriate in light of the child's circumstances." Endrew, 580 U.S. at
399. The IEP "sets out the child's present educational performance, establishes annual and
shmi-term objectives for improvements in that performance, and describes the specially designed

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instruction and services that will enable the child to meet those objectives." Honig v. Doe, 484
U.S. 305, 311 (1988); see also 20 U.S.C. § 1414(d)(l)(A)(i).
If a parent believes that the educational program offered by a school district does not
offer an adequate FAPE, the parent may file a DPC "with respect to any matter relating to
identification, evaluation or educational placement of the child, or the provision of a free
appropriate public education to such child." 20 U.S.C. § 1415(b)(6); N.Y. Educ. Law§ 4404(1).
The filing of the DPC triggers the "stay-put" provision of the IDEA, which prohibits the school
district from changing the student's placement during the pendency of any administrative or
judicial proceeding conducted under the IDEA. See Honig, 484 U.S. at 323 (1988); see also
N Y.C. Dep 't of Educ. v. S.S., No. 9 Civ. 810, 2010 WL 983719, at *6 (S.D.N.Y. Mar. 17, 2010)
(the stay-put provision reflects "Congress' policy choice that all handicapped children, 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." (emphasis removed)). To
determine the last agreed-upon educational placement, courts examine (1) the placement
described in the most recently implemented IEP, (2) the operative placement at the time when
the stay-put provision was invoked, and (3) the placement at the time of the previously
implemented IEP. See Mackey v. Ed Of Educ. For Arlington Cent. Sch. Dist., 386 F.3d 158, 163
(2d Cir. 2004)).
A student's then-current placement can be changed only by one of four ways: (1) an
agreement of the parties, (2) an unappealed hearing officer or court decision, (3) an SRO
decision that agrees with the child's parents, or (4) determination by a court on appeal from an
SRO's decision. 34 C.F.R. § 300.514(c); Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692,

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697 (S.D.N.Y. 2006). Upon a pendency changing event, any change applies "only on a goingforward basis." S.S., 2010 WL 983719, at*!.
In New York, there is a two-tiered process for reviewing DPCs. Claims are first heard by
an impartial hearing officer ("IHO"). N.Y. Educ. L. § 4404(1). An IHO's determination can be
further appealed to a State Review Officer ("SRO"). N.Y. Educ. L. § 4404(2). The parent or the
school district may seek judicial review of an SRO's decision in state or federal court. 20 U.S.C.
§ 1415(i); 34 C.F.R. § 300.516; N.Y. Educ. L. § 4404(3). Courts have broad authority under the
IDEA to "grant such relief as the court determines is appropriate." 20 U.S.C.

§ 1415(i)(2)(C)(iii); see also S.S., 2010 WL 983719, at *5.
B. Plaintiffs' Allegations
The following facts, drawn from the AC, are treated as true for the purposes of resolving
a motion to dismiss. See Morrison v. Nat 'l Aust!. Bank Ltd., 54 7 F.3d 167, 170 (2d Cir. 2008).
In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1 ), the
court may consider evidence outside the pleadings. See id P .L. is a minor diagnosed with an
autism spectrum disorder and is covered by the IDEA. AC ,r 1. Beginning in 2018, plaintiffs
filed a series of complaints under the IDEA relating to services for P .L.

1. The 2017-18 and 2018-19 School Years
On June 29, 2018, plaintiffs filed a DPC based on DOE's failure to provide P.L. with a
FAPE for the 2017-18 school year. Dkt. 12, Ex. 1. On August 28, 2018, an IHO issued a
pendency order, directing that, consistent with P.L. 's IEP, DOE provide (1) 10 hours per week of
Special Education Itinerant Teacher ("SEIT") and related services, including three 45-minute
sessions of speech and language therapy, three 45-minute sessions of occupational therapy, and
three 45-minute sessions of physical therapy. See id. The IHO specified that "[flunding for

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these services shall be required as of the date of the hearing request, June 29, 2018," and "shall
continue until this matter is completed or as otherwise agreed by the parties." Id. at 4.
In September 2018, P.L. was diagnosed with epilepsy. Dkt. 12, Ex. 2. To address P.L.'s
evolving needs, P .L. 's parents privately developed a home program for her that consisted of 3035 hours of Applied Behavior Analysis ("ABA") therapy with related speech and occupational
therapy services. Id. On November 1, 2018, plaintiffs filed an amended DPC seeking
reimbursement for ABA services incurred during the 2017-18 school year, and preemptively
seeking funding for such services for the 2018-19 school year. AC ,r 25.
On May 19, 2020, the IHO issued a decision finding that, for the 2017-18 school year, P.L
was entitled to reimbursement for IO hours per week of ABA therapy in addition to the
recommended 10 hours per week of SEIT services. See Dkt. 12, Ex. 2. For the 2018-19 school
year, the IHO directed DOE to fund, for the 2018-19 school year, 35 hours per week of ABA
therapy and 10 hours per week of SEIT services. See id. This placement (the "May 19, 2020
Order")-which included the 30-35 hours per week of ABA therapy-was unappealed and final.
AC ,r,r 23, 39-40. It thus became P.L.'s operative pendency placement. See id.

2. The 2019-20 School Year
On July I, 2019, plaintiffs filed a DPC seeking therapeutic and other related services for
P.L. for the 2019-20 school year. Id. ,r 20. On July 31, 2019, the IHO issued a pendency order
entitling P .L. to IO hours per week of ABA therapy and 10 hours per week of SEIT services. Id.

,r 22. But the DPC proceedings relating to the 2019-20 school year continued until December 2,
2022. Id. ,r 44. On that day, an IHO decision, which was not appealed, determined that DOE
was required for the 2019-20 school year to fund up to 40 hours per week of combined ABA and
SEIT services. Id. ,r 25. Thus, between May 19, 2020 and December 2, 2022, J.L.'s operative

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pendency placement was the final May 19, 2020 Order, which provided for 30-35 hours per
week of ABA services. Id. ,r 27.

3. 2020-21 School Year
On Febrnary 9, 2021, plaintiffs filed another DPC seeking reimbursement for therapeutic
services and related relief for P.L. for the ongoing 2020-21 school year. Id. ,r 28. On March 29,
2021, the parties executed a pendency program effective Febrnary 9, 2021, that stipulated,
consistent with the discussion above, that the "last agreed upon placement" was the May 19,
2020 decision. Id. ,r 31. Proceedings related to the 2020-21 school year did not conclude until
March 23, 2023, when an administrative decision issued that did not grant P.L. ABA or SEIT
services, but directed DOE to fund P.L. 's tuition and transportation costs for the 2020-21 school
year. AC ,r 37; see also Dkt. 12, Ex. 6.

C. Procedural History
On March 14, 2024, plaintiffs filed a Complaint in this Court. It sought, inter alia, a
reimbursement of$33,925.50 for ABA and SEIT therapy costs incurred during the 2020-21
school year (from July 2020 through January 2021 ). On May 1, 2024, after two extensions, DOE
filed a motion to dismiss under Rule 12(b)(1 ), arguing that plaintiffs lacked standing to pursue
damages for the 2020-21 school year. Dkt. 11. On May 22, 2024, plaintiffs filed the AC.
Dkt. 15. On June 11, 2024, DOE filed a letter stating that it would rely on its previously filed
motion to dismiss. Dkt. 16. Plaintiffs did not file an opposition.

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II.

Discussion
A. Legal Standards Governing Motions Under Rule 12(b)(1)1
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). "A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists." Morrison, 547 F.3d
at 170 (citation omitted). "The court must take all facts alleged in the complaint as true and draw
all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and
that showing is not made by drawing from the pleadings inferences favorable to the party
asserting it." Id. (citation omitted). On a motion challenging jurisdiction under Rule 12(b)(l),2
the Court may properly refer to matter outside the pleadings. Makarova, 201 F.3d at 113.

1 A plaintiff's failure to oppose a motion to dismiss does not require dismissal of a complaint or

change the standard of review. See Goldberg v. Danaher, 599 F.3d 181, 183-84 (2d Cir. 2010);
McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000); Gould v. Airway Off., LLC, No. 15 Civ.
7964 (PAE), 2016 WL 3948102, at *2 (S.D.N.Y. July 19, 2016). The Court tests the legal
adequacy of such a complaint applying the same standards applicable to opposed motions to
dismiss. See McCall, 232 F.3d at 322; Gould, 2016 WL 3948102, at *2. The Court assumes
here that plaintiffs did not file an opposition based on their view that the AC-which sharpened
plaintiffs' claim with regard to DOE's obligations during the relevant period-had cured the
deficiencies alleged in DOE's motion to dismiss, on which DOE continued to rely.
DOE's challenge to a reimbursement obligation presents a threshold methodological question
as to whether this challenge implicates plaintiffs' standing, under Rule 12(b)(1 ), or whether they
have stated a plausible claim, under Rule 12(b)(6). The Court's assessment is that were DOE's
claim of a lack of legal entitlement to reimbursement meritorious, such would likely entitle DOE
to dismissal on either ground, maldng this case one in which "merits and jurisdiction ... come
intertwined," and in which "the district court may dismiss the claim under Rule 12(b)(l) or Rule
12(b)(6). Or both." Brownbackv. King, 592 U.S. 209,218 & n.8 (2021) (noting existence of
circumstances where a ruling on subject matter jurisdiction "may simultaneously be a judgment
on the merits"). Here, however, because the Court finds the claim of a reimbursement obligation
well-pied, there is no occasion to resolve this methodological issue.
2

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To establish the "irreducible constitutional minimum" of Article III standing-which
DOE's challenge to subject matter jurisdiction contests-a complaint must plead three elements.

Lujan v. Deft. of Wildlife, 504 U.S. 555, 560 (1992). "The plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330,
338 (2016) (citations omitted). To establish injury in fact, a plaintiff must show that he or she
suffered '" an invasion of a legally protected interest' that is 'concrete and particularized' and
'actual or imminent, not conjectural or hypothetical."' Id. at 339 (quoting Lujan, 504 U.S. at
560). For an injury to be "fairly traceable" to a defendant, there must be "a causal nexus
between the defendant's conduct and the injury." Heldman ex rel. TH v. Sobol, 962 F.2d 148,
156 (2d Cir. 1992) (citing Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated on other

grounds by Lexmark Int 'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)).

B. Analysis
In disputing plaintiffs' Article III standing, DOE argues that plaintiffs have not pled a
legal right to reimbursement from DOE for the cost of P.L.'s therapeutic services from July 2020
through January 2021. DOE argues that no administrative order or agreement required DOE to
reimburse plaintiffs for therapeutic costs incurred from July 2020 through January 2021-and,
therefore, that plaintiffs suffer no injury fairly traceable to DOE. The premise of this argument is
that DOE's pendency obligations for the 2020-21 school year were "triggered on February 9,
2021 with the filing of the DPC." Dkt. 13 at 10 (citing Doe v. E. Lyme Bd. ofEduc., 790 F.3d
440,452 (2d Cir. 2015) (student's entitlement to pendency arises when DPC is filed)). Because
plaintiffs did not file their DPC until "after the period for which Plaintiffs seek reimbursement in

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this action," DOE argues, plaintiffs are not entitled to reimbursement during the relevant period.
Dkt. 13 at 10 (emphasis in original).
DO E's argument fails because it ignores P .L. 's pendency rights from a previously filed
DPC. Under the "stay-put" provision of the IDEA, a child is entitled to "remain in the thencurrent educational placement" during "the pendency of any proceedings conducted pursuant to
this section," and "until all such proceedings have been completed." 20 U.S.C. § 1415(j)
(emphasis added). Here, DOE overlooks the fact that proceedings arising out of a DPC filed on
July 1, 2019 were pending resolution throughout the claimed entitlement period and did not
conclude until December 2, 2022. AC ,i,i 23, 27. As the AC alleges, P.L.'s educational
placement during that entire period was set by the May 19, 2020 Order, which provided for 3035 hours per week of ABA services. Id. As such, DOE's funding obligations did not arise from
the February 9, 2021 DPC, as DOE presupposes. Instead, these arose from the July 1, 2019
DPC, which triggered the IDEA's "stay-put" provision, and which resulted in the May 19, 2020
Order. See Bd. ofEduc. v. Schutz, 290 F.3d 476,484 (2d Cir. 2002) (while pendency
proceedings are ongoing, school district must continue funding student's last agreed-upon
placement "until a new placement is established" by a final agreement or unappealed
administrative decision); Arlington, 421 F. Supp. 2d at 697 (same); S.S., 2023 WL 8480726, at
*3 (same).
On this premise, which the AC plausibly pleads, DOE was required by the statutory stayput provision to fund P.L.'s then-current placement, which, per the May 2020 Order, included
30-35 hours of ABA therapy. Insofar as the AC pleads the DOE did not fund and has not funded
that therapy, the AC has plead all the elements of Article III standing: (1) an injury in fact
(deprivation of a procedural right under the IDEA and lack of monetary repayment), (2)

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traceable to unlawful conduct by the defendant (DOE's failure to meet its alleged pendency
obligations), that is (3) redressable by a favorable decision (an order mandating DOE to make
such payment). See, e.g., A.S. ex rel. P.B.S. v. Ed of Educ. for Town of W. Hartford, 47 F.
App'x 615,616 n.2 (2d Cir. 2002) ("Under the IDEA, a 'stay put' is a procedural right");

Melendez v. NY.C. Dep 't of Educ., 420 F. Supp. 3d 107, 117 (S.D.N.Y. 2019) (collecting cases)
(deprivation of a pendency entitlement constitutes an "injury in fact that confers standing"); S. W.

v. NY.C. Dep't ofEduc., 646 F. Supp. 2d 346,358 (S.D.N.Y. 2009) ("The denial ofa FAPE or
of a procedural right created by the IDEA . , , constitutes an injury sufficient to satisfy the
standing requirement"); de Paulino v. NY.C. Dep't ofEducation, No, 19 Civ. 222, 2019 WL
1448088, at *3 (S,D,N,Y. Mar. 20, 2019) (DOE's failure to satisfy financial obligation
constitutes an "injury in fact for standing purposes"), aff'd sub nom. de Paulino v. NY. C. Dep 't

of Educ., 959 FJd 519 (2d Cir. 2020); Cruz v. NY.C. Dep't ofEduc., No. 18 Civ. 12140, 2019
WL 147500 (S.D.N.Y. Jan. 9, 2019) (same).
CONCLUSION

For the reasons above, the Court denies DOE's motion to dismiss. The Clerk of Court is
respectfully directed to close all pending motions.
SO ORDERED,

P~lJ.Cb(

Paul A. Engelmayer
United States District Judge
Dated: November 25, 2024
New York, New York

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