Melendez v. New York City Department of Education., Nos. 19 Civ. 2928, et al., 2020 WL 4273907, 77 IDELR 8 (S.D.N.Y. July 24, 2020), is a follow-up to Ventura de Paulino v. New York City Department of Education, No. 19 Civ. 1662, 959 F.3d 519 (2d Cir. 2020). In Melendez, parents of children with serious brain injuries asked the court for an injunction to make defendants pay the tuition at “iBrain,” the school the parents unilaterally enrolled them in, for the pendency of the due process proceedings the parents initiated. The court granted the defendants’ motion to dismiss the cases and denied the plaintiffs’ motion for immediate injunctive relief.

An earlier decision at 420 F. Supp. 3d 107 (S.D.N.Y. 2019) provides additional background, but the key facts concerned J.C., a ten-year-old who cannot walk or speak and requires a significant degree of attention and educational intervention. He was at a school named iHope for school year 2016-17, and the city department of education funded the tuition. The iHope school proposed an IEP for him for school year 2017-18 in April 2017, and J.C. continued to attend iHope during school year 2017-18. In November 2017, his parent filed a due process complaint regarding the 2017-18 school year, and asked for pendency funding at iHope, which the parent contended was substantially similar to the program identified in the last uncontested IEP issued by the department, which was dated August 29, 2016. The department did not appear for the hearing; on January 3, 2018, the impartial hearing officer granted the request for pendency funding, holding that the last agreed upon placement was being substantially implemented at iHope. The IHO denied the due process complaint on May 31, 2018, however, and the parent appealed to the state review officer.

While that appeal was pending, the parent notified the department that she was enrolling J.C. in iBrain for 2018-19 school year. J.C. enrolled in iBrain on July 9, 2018, and the parent filed a due process complaint alleging the department failed to offer J.C. a free, appropriate public education for the 2018-19 school year. The parent again sought pendency funding based on the August 29, 2016 IEP. The IHO ultimately denied the request for pendency funding at iBrain. The parent and the department then settled the appeal of the due process complaint that was filed when J.C. was at iHope. The department agreed to pay $85,000 for the tuition and services for the 2017-18 school year at iHope.

Litigation in district court began on April 2, 2019, when the parent filed a complaint alleging denial of pendency funding at iBrain for 2018-19, in violation of  the stay-put provision. The court granted an injunction requiring funding at iBrain to the extent the services were similar to those at iHope and remanded the case to the IHO to address the similarity of the services and any differences in cost. The parent filed a new case seeking pendency funding for 2019-20; the court stayed that case pending the outcome of the administrative remand.

An IHO issued a new interim order of pendency for 2019-20 school year, ruling that the pendency placement was iBrain, based on the substantial similarity between iBrain’s program and that at iHope during 2017-18 school year. The department sent a notice of intent to seek SRO review. The parent then filed a third district court action asking for implementation of the IHO’s order. In the case the district court had remanded, an IHO issued a pendency order for school year 2018-19, and the department sent notice of intent to seek SRO review of that decision, saying it would not implement the pendency order while the appeal before the SRO was pending. The parent filed a fourth district court action, joining with other parents who unilaterally moved their children from iHope to iBrain and received pendency orders from IHOs that the department said it would not implement.

On May 8, 2020, the Second Circuit issued its decision in Ventura de Paulino, which is the subject of a previous posting on this blog. The court denied the petition for rehearing on June 22, 2020 and denied the motion to recall and stay the mandate in mid-July. The Melendez court gave the following description of the Ventura de Paulino’s holding and reasoning:

In Ventura de Paulino, the Second Circuit held that “[r]egardless of whether [iBrain’s] educational program is substantially similar to that offered previously at [iHope], the IDEA does not require the City to fund the Students’ program at [iBrain] during the pendency of their IEP dispute.” 959 F.3d at 525. This is because “when the Parents unilaterally enrolled the Students at [iBrain], the Parent did so at their own financial risk.” Id. In this situation, parents can retroactively receive reimbursement from the school district once the IEP dispute is resolved, but only if they satisfy the so-called Burlington-Carter test by showing that: “(1) the school district’s proposed placement violated the IDEA by, for example, denying a FAPE to the student because the IEP was inadequate; (2) the parents’ alternative private placement was appropriate; and (3) equitable considerations favor reimbursement.” Id. at 526–27 (internal quotation marks and citations omitted).

2020 WL 4273907, at *6. The district court agreed with the plaintiffs’ argument that the Second Circuit did not reject the substantial similarity standard for appropriateness of a pendency placement, but concluded “the Second Circuit did explicitly reject Plaintiffs’ assumption ‘that because a school district can move a child to a new school that offers the same general level and type of services without violating the IDEA’s stay-put provision, a parent is likewise authorized to invoke the stay-put provision to require the school district to pay for a new school identified by the parent so long as the new school offers substantially similar educational services.’ Ventura de Paulino, 959 F.3d at 533. In other words, while the DOE can invoke the substantial similarity standard, parents—like Plaintiffs—cannot.” Id.

The plaintiffs further argued that because of changes they believe occurred at iHope, that placement was so different from what it had been that the placement was effectively no longer available. The Second Circuit noted that at least one circuit has permitted injunctive relief for maintenance of a new placement when the old one was no longer available. The court responded, “These cases, as they are currently before the Court, do not present the extraordinary circumstances contemplated by Ventura de Paulino. Plaintiffs point to nothing in the record to suggest that iHope is not available or cannot provide J.C.’s pendency services. Nor have Plaintiffs made any showing that DOE has refused to provide him any pendency services at all.” Id. at *7.

Thus, the plaintiffs’ claims failed. The Second Circuit’s holding stands, and at least one district court has now concluded that the one possible exception to its application has no validity in the cases before it.