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M.G. v. New York City Dep't of Education

United States District Court, S.D. New York

August 1, 2013

M.G. and V.M., on behalf of themselves individually and their child, Y.T., Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION; NEW YORK CITY BOARD OF EDUCATION; DENNIS WALCOTT, in his official capacity as Chancellor of the New York City School District, Defendants

Page 241

For Plaintiffs: Elisa F. Hyman, Esq., Friedman & Moses, LLP, New York, NY.

For Defendants: Andrew J. Rauchberg, Assistant Corporation Counsel, New York, NY.

OPINION

Page 242

OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

The parents of Y.T. -- a child with autism in the New York City school system -- filed this action against the New York City Department of Education (" DOE" ) and other defendants, and are seeking a preliminary injunction to maintain Y.T. 's current 1:1 applied behavioral analysis (" ABA" ) home services and also to add several new services to his educational placement. Because plaintiffs have not yet exhausted administrative review on their claims, this Court lacks subject-matter jurisdiction to consider their request for new services. However, because I find that the 1:1 ABA services are part of Y.T.'s current educational placement, and therefore must be maintained during the pendency of the state administrative review, plaintiffs need not exhaust administrative remedies to seek continuation of these services. Further, they are entitled to an injunction enjoining defendants from defunding the 1:1 ABA home services until a final, non-appealable order or an uncontested individualized education program (" IEP" ) removes those services from Y.T.'s educational placement.

II. FACTUAL BACKGROUND

A. Y.T.'s Background

Y.T. is an eleven year old child who has been classified as a student with autism.[1] This manifests itself through " weaknesses and deficits in the areas of cognition, focus/attention, eye contact, socialization, expressive and receptive language, activities of daily living . . ., behavior, gross motor skills and fine motor development." [2] " Y.T. is nonverbal," [3] and also has problems using the toilet, is self-injurious, and hyperactive.[4]

B. The 2008-2012 School Years

While born in Egypt, Y.T. moved with his parents to New York in 2008, where he was enrolled in the New York City public school system.[5] Upon their arrival, plaintiffs notified the DOE that Y.T. needed " special education placement and services," and the DOE began evaluating him in September 2008 to determine a proper ...


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