The opinion of the court was delivered by: DAVID TRAGER, District Judge
Plaintiffs D.D., A.C., and B.T., by their respective parents, bring
this action on behalf of a proposed class of present and future New York
City preschool children with Individualized Education
Programs ("IEPs") who have not or will not timely receive services
mandated by their IEPs. The "City defendants" are: the City of New York,
the New York City Board of Education ("NYCBOE"); the New York City
Department of Education ("NYCDOE"); Joel Klein, Chancellor of the New York
City Schools; Dr. Angelo Gimondo, Superintendent of Community School
District 30; Nelly Real-Korb, Chairperson of the Committee on Preschool
Special Education in District 30; Michelle Fratti, Superintendent of
Community School District 25; Beth Marino, Chairperson of the Committee on
Preschool Special Education in District 25; Michael A. Johnson,
Superintendent of Community School District 29; and Joe Blaize,
Chairperson of the Committee on Preschool Special Education in District
29. Also named as a defendant is Richard Mills ("Mills"), Commissioner of
the New York State Education Department ("SED").
Plaintiffs claim they have been denied the right to a free and
appropriate education in violation of: (1) the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; (2) Title
II of the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 12312 et seq.; (3) Section 504 of the Rehabilitation Act of
1973 ("Section 504"), 29 U.S.C. § 794, as amended by the Civil Rights
Restoration Act of 1987; and (4) 42 U.S.C. § 1983 and 1988.
Pending before the court are: (1) plaintiffs' motion for class
certification; (2) defendant Mills' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and (b)(6); and (3) plaintiffs' motion for a
preliminary injunction as to the class. For the reasons below, plaintiffs'
motion for class certification pursuant to Rule 23(b)(2) is granted with
modification, defendant Mills' motion to dismiss is granted in part and
denied in part, and plaintiffs' motion for a preliminary injunction
directing defendants to immediately implement the IEPs of the class is
In 1990, Congress enacted the IDEA*fn1 to ensure access for all
disabled children to a free appropriate public education that "emphasizes
special education and related services designed to meet their unique needs
and prepare them for employment and independent living."
20 U.S.C. § 1400(d)(1)(A).
Under the IDEA, states are eligible for federal funds if they make
available "a free appropriate public education" to all children with
disabilities between the ages of three and twenty-one. Id. §
1412(a)(1)(A). To meet IDEA requirements, each student with an eligible
disability must receive from the state special education and related
services designed for the individual student's needs. Id. § 1401(8).
Those services must be administered according to an individualized
education program ("IEP"), which is a written statement of: the child's
present level of educational performance; measurable annual goals for the
child; the special education, related services and supplementary aids and
services to be provided to the child or on the child's behalf; and the
projected date for the
beginning of such services. Id. § 1414(d)(1)(A). The IDEA further imposes
a preference for educating disabled children "[t]o the maximum extent
appropriate" alongside non-disabled children. Id. § 1412(a)(5); see also
N.Y. Educ. Law
§ 4410(5)(b). This provision essentially requires that special
education be provided in the least restrictive setting consistent with a
child's needs. See Declaration of Linda Wernikoff ("Wernikoff Decl.") at
Under the New York statutes implementing the IDEA, IEPs for preschool*fn2
children with eligible disabilities are developed by a Committee on
Preschool Special Education ("CPSE"), comprised of the child's parents,
the child's regular teacher, and other professionals employed or
appointed by the local school district. 20 U.S.C. § 1414(d)(1)(B); N.Y.
Educ. Law § 4410(3). In New York City, there are ten regional CPSEs, with
approximately 78 CPSE administrators and 77 clerical staff working to
develop and implement IEPs for preschool children. Wernikoff Decl. at ¶
13. Any student suspected of having an eligible disability may be
referred to the local CPSE for special education services or programs by
the child's parent or guardian, a professional staff member at the
child's school or school district, physician, judicial officer, or other
individuals prescribed by law. N.Y. Educ. Law § 4401-a(1); 8 N.Y.C.R.R. §
If, after an individual evaluation, the CPSE determines that the child
is eligible for special education services, the committee will develop a
child's IEP based on the following placement options, ranked in the order
of least restrictive placements first: (1) related services only;*fn3 (2)
special education itinerant services only;*fn4 (3) related services in
combination with special education itinerant services; (4) a half-day
program; and (5) a full day program. N.Y. Educ Law § 4410(5)(b)(i); 8
N.Y.C.R.R. 200.16(d)(3). Parents who are dissatisfied with the IEP
developed by the local school district may challenge it in an impartial
due process hearing before an impartial hearing officer.
20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1). The decision of the
impartial hearing officer may be appealed to a state review officer.
20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2). Any party who does not have
the right to appeal the impartial hearing officer's decision or who
wishes to appeal the state review officer's decision may bring a civil
action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).
Although the IDEA itself is silent as to the time frame for
implementing IEPs, the federal regulations provide that IEPs must be
implemented "as soon as possible" without specifying any time periods.
34 C.F.R. § 300.342(b)(1)(ii).*fn5 *fn6
New York's implementing
regulations provide that there "may be no delay in implementing a
student's IEP," 8 N.Y.C.R.R. § 200.4(e)(1)(i), and direct the board of
education to arrange for the preschool student to:
receive such programs and services commencing with
the July, September or January starting date for
the approved program, unless such services are
recommended by the [CPSE] less than 30 school days
prior to, or after, such appropriate starting date
selected for such preschool student, in which
case, such services shall be provided no later
than 30 school days from the recommendation of the
Id. § 200.16(e)(1).*fn7
See also N.Y. Educ. Law § 4410(5)(e).
Furthermore, "[t]he school district shall
ensure that the recommendations on a student's IEP are implemented."
8 N.Y.C.R.R. § 200.4(e)(3).
In New York, programs and services in preschool IEPs are provided by a
private provider system. Affidavit of Rebecca Cort ("Cort Aff.") ¶ 9;
Transcript of Hearing dated 3/24/04 ("3/24/04 Tr.") at 39. Classroom
placements are arranged with 420 private preschool special education
programs in the state that are operated by 96 approved providers. Cort
Aff. ¶ 9. As for related
services, the NYCDOE maintains a list of over 900 independent related
service providers, including agencies, with whom it has a contractual
relationship. Wernikoff Decl. ¶ 25; 3/24/04 Tr. at 51. Children for whom
providers cannot be found immediately are placed on a waiting list, also
known as a parent notification or "PN list." Wernikoff Decl. ¶¶ 29, 31.
Each district updates the PN list daily. Id. ¶ 31. The NYCDOE then runs
a monthly report that is disseminated to all preschool providers with a
letter asking them to determine whether they can provide services to
children on the list, provide partial services, or request child-specific
permission to temporarily exceed an approved class size to provide
services to children on the list. Id.
New York City serves approximately 23,000 preschool children with
disabilities, including related services, special education itinerant
services and special education provider placements. Cort Aff. ¶ 3. For
the last several years, the number of disabled preschool children in New
York City seeking services has increased by approximately 1,000 per
year. Declaration of Jane R. Goldberg ("Goldberg Decl."), Ex. A; Wernikoff
Decl. ¶ 27. For instance, in fiscal year 2001-2002, NYCDOE provided
services and programs to 22,776 preschool students with disabilities, and
in fiscal year 2002-2003, the NYCDOE provided services and programs to
23,794 preschool students with disabilities. Wernikoff Decl. ¶ 27. Based
on this trend, City defendants anticipate a similar increase for the
fiscal year 2003-2004. Goldberg Decl., Ex. A. The yearly increase in the
preschool population is partially due to an approximate 12% annual
increase in the number of children aged zero to two years old in
Early Intervention programs,*fn8 about half of whom subsequently
transition to preschool programs. Wernikoff Decl. ¶ 28.
Plaintiffs allege that, at the time the amended complaint was filed in
June 2003, over 500 preschool children within the jurisdiction of the
NYCBOE, the NYCDOE and the SED who had IEPs were not receiving the full
services required by the IEPs. Amended Class Action Complaint ("Am.
Compl.") ¶ 36. Some of the children on this list were allegedly
receiving partial services, while others had received no services. Id.
¶ 39. Plaintiffs further allege that preschool children not on the
waiting list are also not receiving all the services required by their
IEPs. Id. ¶ 40.
Over time, however, the number of children on the PN list has
apparently declined. By letter dated November 13, 2003, City defendants
reported that, as of August 29, 2003, the total number of New York City
preschool children on the PN list who had been awaiting services for over
30 days had declined to 220. See Goldberg Decl., Ex. A. As of September
30, 2003, the total number of preschool children awaiting services for
over 30 days had further declined to 149. Id. And as of October 31,
2003, the total number of preschool children awaiting services for over
30 days was 112. Id. The majority of children on these PN lists were
waiting for related services, a problem due in part
by a national shortage of related service providers and by logistical
problems arising from independent service providers who have been
reluctant to travel throughout New York City to provide only a half-hour
to one hour of therapy. Wernikoff Decl. at ¶ 35.
According to the City defendants, the number of children on the PN list
has historically reached its peak in May of a given year. Transcript of
Proceedings on 7/15/03 ("7/15/03 Tr.") at 13. This is because by January
or February, as children who turn three years old "age out" of Early
Intervention or other programs and become eligible for preschool special
education services, a shortage develops in the number of preschool
providers with spaces available to children who need classroom programs,
and in the number of related service providers available for children who
need only related services. 7/15/03 Tr. at 5; Wernikoff Decl. ¶ 30.
According to the defendants, this number gradually declines and is at its
lowest in September and October as children age out of preschool in June
and August and transition into kindergarten, thereby creating new
openings for preschool programs and services. 7/15/03 Tr. at 4-5, 13-14;
Wernikoff Decl. at ¶ 32. Given the number of preschool children on PN
lists awaiting services and the total number of preschool children served
in New York City, City defendants assert that the NYCDOE's rate at
providing services to preschool children in a timely manner hovers
between 97% and 99%, depending on the time of year. Wernikoff Decl. ¶
D.D. is a five-year-old resident of Jackson Heights, New York. Am.
Compl. ¶ 45. Shortly after he turned four in September 2002, his
parents sent him to a regular public school which offered no
special education services. Id. Shortly after D.D. began attending
school, his mother asked the school to evaluate him for potential
developmental problems. Id. ¶ 46. The school referred D.D.'s case to the
CPSE in School District 30. Id. In October 2002, evaluations showed that
D.D. had significant developmental difficulties. Id. ¶¶ 47-54. As a result
of these evaluations, D.D.'s mother and the District 30 CPSE
representative prepared an IEP for D.D. Id. ¶ 56. This IEP recommended
special education services of a "[h]alf day integrated class, 21/2 hours
per day, 5 days per week with speech and occupational therapy as related
services," with a class ratio of eight students to one teacher. The
recommended related services were three weekly sessions of speech and
language therapy, and a weekly session of occupational therapy. Id. ¶
57. The projected date for implementing the IEP was set for December 6,
2002. Id. ¶ 58. Despite numerous phonecalls and letters from D.D's
mother to various officials, D.D. remained on the waiting list for
special education services for several months. Id. ¶¶ 62-66. After D.D.
retained counsel in March 2003, CPSE scheduled a second conference to
consider amending D.D.'s IEP to include Applied Behavioral Analysis
("ABA") services which had been recommended by a neurologist in December
2002. Id. ¶¶ 67-68. On March 31, 2003, D.D. received an amended IEP which
repeated all the recommendations from the first IEP and added ten hours
of weekly ABA therapy from a special education teacher. Id. ¶ 69.
Throughout March 2003, D.D. received no special education services.
Id. ¶ 70. On April 11, 2003, D.D. had an impartial hearing before a
NYCDOE impartial hearing officer. Id. ¶ 72. By decision dated April 30,
2003, the hearing officer held that D.D. required the services listed in
the amended IEP and ordered the NYCDOE to implement this IEP by May 10,
2003 and to provide him with compensatory services. Id. ¶ 74.
On May 16, 2003, over six months beyond the projected start date for
his IEP, D.D. filed and served upon defendants an order to show cause for
a temporary restraining order and preliminary injunction to: comply with
and implement the April 30 decision of the hearing officer; provide D.D.
with special education services through the end of the summer program at
a previously designated preschool; and provide D.D. with an ABA/Special
Education Itinerant Teacher ("SEIT") provider through the end of the
summer. See Order dated 5/21/03. The temporary restraining order was
granted on May 21, 2003 by court order, and defendants NYCDOE and NYCBOE
were ordered to comply with and implement the hearing officer's April 30
However, in July 2003, D.D.'s parents removed him from the preschool
and took him out of the country. See Wernikoff Decl. ¶ 47. As a result,
by court order dated August 18, 2003, the DOE was permitted to
discontinue payment of SEIT services. See Order dated 8/12/03. Finally,
in July 2003, D.D. turned five years old and became ineligible for
preschool services as of the end of August 2003. Municipal Defendants'
Memorandum of Law in Opposition to Plaintiffs' Motions for a Preliminary
Injunction and Class Certification ("City Mem.") at 3.
A.C. is a four-year-old resident of Brooklyn, New York. Am. Compl. ¶
80. Sometime after he turned two years old, A.C. was evaluated and
accepted for an Early Intervention program in April 2002, and also
received speech, language and occupational therapy services at home. Id.
¶ 82. In December 2002, A.C. became three years old and aged out of the
Early Intervention Program.
After the local CPSE failed to arrange for A.C.'s transition to CPSE
services, A.C.'s mother
contacted the Birch Early Childhood Center to obtain the necessary CPSE
forms and evaluations. Id. ¶¶ 84-85. Evaluations performed in November and
December of 2002 and January 2003 revealed that A.C. had significant
developmental difficulties with a developmental delay of almost one
year, as well as a disorder on the autism spectrum. Id. ¶¶ 86-92. As a
result of these evaluations, on February 26, 2003, the District 29 CPSE
representative prepared an IEP which recommended a year-round special
education class with a ten-student, one-teacher, two-aide ratio. The IEP
also recommended speech therapy, occupational therapy and counseling
services. Id. ¶¶ 93-94. The projected date for A.C.'s IEP was March 10,
2003. Id. ¶ 95.
The District 29 CPSE representative, however, told A.C.'s mother that
about 500 preschool children throughout the city were on a waiting list
for special education services, and that A.C. might have to wait until
July or September 2003 for a placement. Id. ¶¶ 96-97. Although A.C.
eventually received speech therapy on an interim basis, he did not
receive any occupational therapy, counseling, or school placements for at
least three months. Id. ¶¶ 98-101. Finally, on June 4, 2003, A.C.'s mother
retained counsel and had an impartial hearing before a NYCDOE impartial
hearing officer. Id. ¶ 102.
On or about June 4, 2003, the CPSE advised A.C.'s parents about
openings at three programs, but his parents declined the program at one of
the schools. Wernikoff Decl. ¶ 51. At around the same time, A.C. also
relocated to School District 19. Although A.C.'s parents were advised
that another program in that district was available, his parents
apparently failed to honor two appointments to view the program. Id. ¶
52. Eventually, A.C.'s parents accepted a placement at Lifeline Center
for Child Development beginning July 1, 2003, which offered a full-day
special class program with related services and SEIT therapy. Id. ¶ 53.
On July 25, 2003, the impartial hearing officer issued a decision
ordering NYCDOE to provide compensatory services to A.C. According to the
NYCDOE, A.C.'s parents made it difficult to move forward with the
compensatory services because they initially insisted on adding Applied
Behavioral Analysis services to their child's IEP as a precondition to
granting their consent, despite being told the statutory and
administrative reasons for not listing them. Id. ¶ 55. However, it
appears that A.C. is now doing well and has progressed to a less
restrictive class. Id. ¶ 56.
B.T. is a four-year-old resident of Flushing, New York. Am. Compl. ¶
107. In May 2001, B.T. was deemed eligible for Early Intervention
services and subsequently received speech, occupation, physical therapy,
special instruction and eventually Applied Behavioral Analysis services
until December 2002, a few months after his third birthday. Id. ¶¶
108-109. As part of the transition to special education services
administered by the District 25 CPSE, B.T. was referred to the CPSE in
October 2002. Id. ¶ 110. After preschool evaluations showed that B.T.
had significant development difficulties, the District 25 CPSE developed
an IEP for B.T. on January 3, 2003. Id. ¶¶ 112-121. The IEP recommended:
one year of special education services; related services of speech,
occupational and physical therapy; a "sensory gym" and a "sensory diet";
supports for his social and emotional needs; and the services of a special
education teacher. Id. ¶¶ 121-123. The IEP initiation date was set for
"ASAP," meaning "as soon as possible." Id. ¶ 124.
In the months following the IEP, the CPSE Administrator for District 25
contacted ten preschool programs to find a place for B.T. in the
appropriate program and also explored half-day programs and larger class
size programs, but none were available. Wernikoff Decl. ¶ 58. As a
from January through March 2003, B.T. received none of the services
required by the IEP and was not in school. Am. Compl. ¶¶ 125-128. In April
or May 2003, the CPSE offered B.T. an interim placement of home-based
occupational and physical therapy three times a week and two hours daily
of ABA services, but did not offer any speech therapy or school
placements. Id. ¶¶ 129-130. On or about May 29, 2003, B.T.'s parents
accepted partial services in the form of SEIT services ten hours per
week. Wernikoff Decl ¶ 59. It was not until June 25, 2003 that B.T. was
offered and accepted a placement at a school. Wernikoff Decl. ¶ 60.
Motion for Class Certification
Plaintiffs seek to certify a class comprised of "[a]ll present and
future New York City preschool children with IEPs who have not or will
not receive all of the services required by their IEPs." Plaintiffs'
Memorandum of Law in Support of Motion for Class Certification ("Pls.'
Class Cert. Mem.") at 3. In order to certify a class, plaintiffs must
satisfy the four requirements of Rule 23(a) and demonstrate that the
proposed class action fits into one of the three categories described in
Rule 23(b). Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968).
Although plaintiffs bear the burden of proving that the proposed class is
appropriate for certification, see Demarco. v. Edens, 390 F.2d 836, 845
(2d Cir. 1968), plaintiffs do not have to make an extensive evidentiary
showing in support of their motion. Follette v. Vitanza, 658 F. Supp. 492,
505 (N.D.N.Y. 1987), vac'd in part on other grounds by 671 F. Supp. 1362
(N.D.N.Y. 1987). In addition, a court considering a motion for class
assume the truth of the plaintiff's allegations. See Shelter Realty
Corp. v. Allied Maint. Corp., 574 F.2d 656, 661, n.15 (2d Cir. 1978);
DeAllaume v. Perales, 110 F.R.D. 299, 305 (S.D.N.Y. 1986) ("[F]or
purposes of determining class certification issues, the allegations are
taken as true and the merits of the complaint are not examined.")
For the reasons set forth below, the court grants plaintiffs' motion
for class certification with a modification, and appoints individual
plaintiffs D.D., A.C. and B.T. as class representatives.
As a threshold matter, the City defendants oppose plaintiffs' class
definition because it could theoretically include all preschool children
with IEPs who do not receive services "even the day after the IEP is
developed." City Mem. at 18.
Addressing the City defendants' concern that the class definition
includes children who have timely received services, the following
limited alteration to the proposed class definition is adopted: "All
present and future New York City preschool children with IEPs who have not
or will not timely receive all of the services required by their IEPs"
(emphasis added). See, e.g., Ray M. v. Bd. of Educ., 884 F. Supp. 696,
698 (E.D.N.Y. 1995) (certifying provisional class of "[a]ll preschool
students, ages three through five, living in New York City, who have been
or will be referred to the Committee on Preschool Special Education for a
determination as to whether they require special education services and
who have not been or will not be timely evaluated, recommended for and/or
provided special education services.); Tonya K. v. ...