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March 30, 2004.

D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next Friend, V.S.; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated, Plaintiffs, -against- NEW YORK CITY BOARD OF EDUCATION; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, Chancellor of New York City Schools; DR. ANGELO GIMONDO, Superintendent, Community School District 30, NELLY REAL-KORB, Chairperson, Committee on Preschool Special Education (CPSE) District 30; MICHELLE FRATTI, Superintendent, Community School District 25; BETH MARINO, Chairperson, CPSE District 25; MICHAEL A. JOHNSON, Superintendent, Community School District 29; JOE BLAIZE, Chairperson, CPSE District 29; RICHARD P. MILLS, Commissioner of the New York State Education Department; THE CITY OF NEW YORK, Defendants

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 Page 2 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 denied. Page 3



  Statutory Framework

  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 Page 4 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 ¶ 11.

  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. § 200.4(a)(1). Page 5

  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). Page 6

  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 [CPSE].
Id. § 200.16(e)(1).*fn7 See also N.Y. Educ. Law § 4410(5)(e). Furthermore, "[t]he school district shall Page 7 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 Page 8 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 Page 9 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 Page 10 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. ¶ 19.


  Individual Plaintiffs

 A. D.D.

  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 Page 11 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. Page 12

  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 decision. Id.

  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.

 B. A.C.

  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 Page 13 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. Page 14

  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.

 C. B.T.

  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 result, Page 15 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 certification must Page 16 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.

 A. Class Definition

  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. ...

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