R. A-G, by her parent, R.B., individually and on behalf of a class of others (parents and students) similarly situated, Plaintiffs,
BUFFALO CITY SCHOOL DISTRICT BOARD OF EDUCATION, and PAMELA C. BROWN, Superintendent, Defendants.
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
Plaintiffs commenced this putative class action alleging, among other things, that Defendants' policies and procedures with respect to educationally disabled children attending school in the Buffalo City School District violate the rights of those children and their parents under the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400 et seq. Presently before this Court is Plaintiffs' motion to certify class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Also before this Court is Defendants' cross-motion to stay class certification pending resolution of an as yet unfiled summary judgment motion. For the reasons that follow, Defendants' motion is denied and Plaintiffs' motion is granted.
A. Statutory Background
The purpose of IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). A key component to achieving this goal is the individualized education program, or "IEP, " which is a written statement jointly created annually by a team consisting of educators and the parents of the disabled child. 20 U.S.C. §§ 1401 (14), 1414(d). In New York, that team is referred to as a Committee on Special Education, or a "CSE." N.Y. Educ. Law § 4402; 8 N.Y.C.R.R. § 200.3(a)(1); see T.B. v. Haverstraw-Stony Point Cent. Sch. Dist., ___ F.Supp.2d ___, 2013 WL 1187479, *1 (S.D.N.Y. 2013). The CSE examines the student's specific individual needs and develops an IEP that is "reasonably calculated to enable the child to receive educational benefits.'" R.E. v. N.Y.C. Dep't of Educ. , 694 F.3d 167, 175 (2d Cir. 2012), cert denied, ___ U.S. ___, 2013 WL 1418840 (June 10, 2013)(quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)); D.N. v. N.Y.C. Dep't of Educ., 905 F.Supp.2d 582, 584 (S.D.N.Y. 2012).
An IEP must include "a statement of the special education and related services and supplementary aids and services" that will be provided in order for the child to be able to advance toward the specified annual goals. 20 U.S.C. § 1414 (d)(1)(A)(i)(IV). "The term related services' means transportation, and such developmental, corrective, and other supportive services... as may be required to assist a child with a disability to benefit from special education." 20 U.S.C. § 1401(26)(A); see Cedar Rapids Community Sch. Dist. v. Garret F. Ex rel. Charlene F. , 526 U.S. 66, 73, 119 S.Ct. 992, 143 L.Ed.2d. 154 (1999). "As a general matter, services that enable a disabled child to remain in school during the day provide the student with the meaningful access to education that Congress envisioned." Garret F. ex rel. Charlene F. , 526 U.S. at 73 (internal quotation marks omitted). Related services therefore include a range of supportive services, such as transportation, speech pathology and audiology services, psychological services, physical and occupational therapy, therapeutic recreation, social work services, counseling services, and diagnostic and evaluative medical services. Id .; see 20 U.S.C. § 1401(26), (33).
The provisions of IDEA also "ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400 (d)(1)(B); Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist. , 288 F.3d 478, 482 (2d Cir. 2002). "[P]arents of students with disabling conditions are guaranteed both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate.'" Cave v. East Meadow Union Free School Dist. , 514 F.3d 240, 245 (2d Cir. 2008) (quoting Honig v. Doe , 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). Parents are also entitled to present complaints regarding "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child, " and to an impartial due process hearing on that complaint. 20 U.S.C. § 1415(b)(6)(A), (f)(1)(A); Polera , 288 F.3d at 482.
In New York, this hearing process consists of a two-tier administrative system for reviewing IEPs. Cave , 514 F.3d at 245. "First, an impartial hearing officer is selected from a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision." Id . A parent may appeal that decision to a state review officer of the New York Education Department. Id . (citing Heldman ex rel. v. Sobel , 962 F.2d 148, 152 (2d Cir. 1992)); see 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(1)-(2). Any party aggrieved after utilizing these procedures may "bring a civil action with respect to the complaint presented" in state or district court. 20 U.S.C. § 1415(i)(2)(A).
B. Factual Background
Plaintiff R. A-G. is a student in the Defendant Buffalo City School District ("the District") and is classified by the District as learning disabled. (Compl. ¶¶ 2, 20, Docket No. 1.) The District's CSE prepared the Plaintiff student's IEP for the 2011-2012 school year in May 2011. (Compl. ¶ 21.) Her IEP indicated that she required integrated co-teaching services daily and three 30 minute sessions of related services per six day cycle, specifically speech and language small group therapy. (Compl. ¶ 22-23; Attorney Aff. of Bruce A. Goldstein, Esq., Ex. A, Docket No. 5 (Plaintiff student's IEP).) At that time, the start date for both co-teaching and the related services was identified as September 7, 2011, the first week of school. (Compl. ¶ 24; Goldstein Aff. Ex A.)
Prior to the commencement of the 2011-2012 school year, the District sent Plaintiff R.B., R. A-G's parent, a written notice of a "Proposed Amendment to IEP without a Committee Meeting." (Compl. ¶ 28; Goldstein Aff. ¶ 9, Ex. B.) The notice was signed by the CSE Chairperson, and indicated that the Committee was proposing to amend the IEP in order to correct certain "clerical errors on the 2011-2012 IEP following the 2011 Annual Review." (Goldstein Affid. ¶ 9, Ex. B.) The proposed changes included altering the start date of the Plaintiff student's speech and language therapy to September 19, 2011 "to follow district policy." (Id.) A form was included to allow the Plaintiff parent to sign and authorize the purported clerical changes without an additional meeting. (Id.) The Plaintiff parent was informed that if written consent was not received to amend the student's IEP, the District would schedule a meeting with the CSE. (Id.) The Plaintiff parent did not sign the consent form, but no CSE meeting was ever scheduled. (Compl. ¶¶ 32-34; Goldstein Aff. ¶ 12.) An additional notice was dated September 22, 2011, which included a handwritten notation changing the related services start date from September 19th to September 21st. (Goldstein Aff. ¶ 11, Exs. C, D at 5.) The parties do not dispute that, although co-teaching of the Plaintiff student commenced at the beginning of the school year, her related services did not begin until September 23, 2011. (Compl. ¶ 34; Aff. of Kim H. Curtin ¶ 7, Docket No. 24.)
The Plaintiff parent, through counsel, requested an administrative hearing to address alleged violations of the Plaintiff student's rights. (Compl. ¶ 37; Goldstein Aff. ¶ 15.) It was alleged in the administrative complaint that: (1) speech and therapy services were not provided until three weeks after the start of the school year; (2) the Plaintiff student was not consistently receiving class notes daily as required by her IEP; and (3) the CSE failed to recommend occupational therapy services as required by a prior agreement. (Affirm. of Jeffrey J. Weiss, Esq. ¶ 4, Ex. A (due process complaint notice).) It was further asserted that the failure to implement the IEP resulted in a denial of the Plaintiff student's right to the free, appropriate public education (commonly referred to as a "FAPE"). (Id.)
A hearing was held before an impartial hearing officer in December 2011. (Compl. ¶ 38; Weiss Affirm. ¶ 5, Ex. B.) During his opening statement at the hearing, Plaintiffs' counsel asserted that the District had a "district wide policy that related services will not begin until the third week of school, regardless of what the IEP says, " which counsel argued was in violation of federal law and state regulations. (Weiss Affirm. Ex. D (pg. 24).) The hearing officer noted that he was constrained to the issues raised in the administrative complaint, and was not "to determine whether the city school district or the City of Buffalo is following laws generally." (Id. (pg. 27-29).) In a written decision, the hearing officer determined that "[t]he minor flaws in [the] District's special education program offered to Student, as raised in Parent's Due Process Complaint... fail to establish that Student was denied her entitlement to a [FAPE], " and dismissed the due process complaint. (Weiss Affirm. Ex. B (pg. 14).)
Plaintiffs appealed the decision to a state review officer. (Compl. ¶ 40; Weiss Affirm. Ex. E.) Plaintiffs argued on appeal that the Plaintiff student was denied a FAPE because, among other things, the District's "across-the-board" policy of delaying commencement of related services resulted in a delay of services. (Weiss Affirm. Ex. E (pg. 5).) The state review officer declined to review this issue in the absence of an agreement to expand the scope of the impartial hearing to include issues not raised in the administrative complaint. (Id. at 8.) With respect to the issues that were raised, the state review officer found, after independent review, that there was no material failure in the District's implementation of the Plaintiff student's IEP for the 2011-2012 school year. (Compl. ¶¶ 40-41; Weiss Affirm. Ex. E (pg. 12).)
The Plaintiff parent commenced the instant action on behalf of herself and the Plaintiff student in this Court in October 2012. (Compl. ¶¶ 14, 43.) Plaintiffs allege that "Defendants maintain and implement a policy by which the District does not provide the related services to be provided via students' IEPs during the first two weeks of the school year (or longer), irrespective of any individual student's need for such related services at the inception of the school year." (Compl. ¶ 5.) They claim that, as a result of this policy, the District substantially failed to provide the student class with a FAPE; failed to make individual assessments of students' needs; denied parents meaningful participation in the decision-making regarding their children; and failed to implement students' related services as required by IEPs, all in contravention of the mandates of IDEA. (Compl. ¶¶ 61-70.) Plaintiffs further allege that, in failing to provide services to disabled students when services for non-disabled students were provided, the District discriminated against the student members of the class in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. (Compl. ¶ 72.)
Plaintiffs therefore seek a judgment declaring that Defendants' policy or practice of delaying related services deprives Plaintiffs, as well as similarly situated students and parents, of their statutory rights with respect to the prompt receipt of services at the beginning of the school year, receipt of services based on an individual assessment of each disabled student's need, and the meaningful participation of parents in the IEP process. (Compl. at pg. 13.) Plaintiffs further seek: (1) a preliminary and permanent injunction precluding Defendants from continuing the unlawful practice or policy of delaying related services; (2) an order directing that compensatory educational services, specifically additional related services, be provided to the Plaintiff student to compensate for the unlawful policy; and (3) costs, disbursements, and reasonable attorneys' fees. (Id.)
Plaintiffs presently move for certification of a class consisting of "children, and parents of children, between the ages of 5 and 21 residing in the Buffalo City School District, present and future, who are classified as disabled per the definition in [IDEA]... and receive related services." (Compl. ¶ 43.) Defendants cross-move for a stay of the Court's resolution of this motion or, alternatively, denial of class certification.
A. Defendants' Cross-Motion to Stay Determination of ...