A case that came out at the end of last summer, J.L. v. New York City Department of Education, 324 F. Supp. 3d 455, 72 IDELR 237 (S.D.N.Y. Aug. 28, 2018), should be of interest to New York impartial hearing officers, even though the case did not originate through a due process hearing complaint, and part of the opinion is devoted to claims under Section 504, the Americans with Disabilities Act, and Section 1983. Three unrelated children who have severe disabilities and range in age from eight to fifteen alleged a systemic breakdown in the school system’s provision of services to medically fragile children. They stated that they were unable to obtain access to nursing services on the school bus and in school, to wheelchair-accommodating bus transportation, and to porter services to get up and down the stairs of their walk-up apartment buildings to and from the school bus. They claimed that as a result they were unable to attend school for significant periods of time. The district court entered a preliminary injunction requiring the provision of services, and in this opinion Senior District Judge Pauley granted in part and denied in part a motion to dismiss the plaintiffs’ claims. The facts reported here are taken from the students’ complaints.
J.L.’s specific allegations included that the Department repeatedly rejected the paperwork needed to obtain a nurse on the bus even though his IEP provided for that service and others, then after months the Department determined that the assigned school placement was not available; the following school year problems again arose with the porter and bus services. A second student, identified as M.C., was out of school, then in the middle of the second year out of school the student’s IEP team met, but the committee did not list bus nurse and school nurse services on the IEP, and the district representative instead told the family that the services would be provided only after the Department’s Office of School Health approved them. Despite the proper forms being submitted more than four times, the services were not approved. The next summer, the IEP team finally placed those services on the IEP, but the Department told the family that the Office of Pupil Transportation would have to approve porter services; still further delays occurred when bus nurses were not provided and the bus route assignment temporarily disappeared. A third child, O.A., missed the 2017-18 school year; his family alleged that they submitted the forms for a bus nurse and school nurse but the services were not initially provided, and when they finally were, the nurses could not meet the child’s medical needs or were not there all days of the week.
The court rejected lack of administrative exhaustion as a basis for dismissal of the plaintiffs’ claims. Following Second Circuit precedent, the court treated administrative exhaustion as a requirement for subject matter jurisdiction, but ruled that exhaustion was excused because the complaints alleged systemic violations incapable of remedy through the due process hearing procedure. “The Complaint is replete with allegations that DOE policies and procedures created layers of bureaucracy that made it difficult for parents of disabled children to obtain services.” 324 F. Supp. 3d at 464. Among the problems were that approvals were needed from units of the Department whose representatives were not required to appear at IEP meetings, and parents needed to pursue the approval process on their own, including trying to coordinate the separate units. The court said process was “Kafkaesque.” Id. There was no mechanism to ensure that the children received the services on their IEPs, even when parents repeatedly reported the failures. The question in the cases was not that of appropriateness of the children’s IEPs, so that did not provide a basis for requiring exhaustion. Moreover, the case was not moot despite revisions in the Department’s Standard Operating Procedure Manual, when there was no evidence about how the revised policies would work in practice, whereas plaintiffs submitted affidavits alleging failure to comply with the new manual.
Turning to the merits of the IDEA claim, the court said, “The basis of Plaintiffs’ IDEA claim is that DOE’s persistent failure to implement J.P., M.C., and O.A.’s IEPs prevented them from attending school and receiving a free and appropriate public education. . . . Plaintiffs sufficiently alleged that DOE’s policies had systemically foreclosed Plaintiffs from obtaining IEP services. This is enough to sustain an IDEA claim at the pleading stage.” Id. at 466. A de mininis failure to implement part of an IEP is not enough to sustain a claim for denial of free, appropriate public education, but failure to implement substantial or significant portions of an IEP is. The failure to provide nursing and transportation services kept the children out of school, which the court characterized as a very severe harm. However, the court did dismiss claims of one child insofar as they sought relief for a period before the child’s December 2016 IEP, when all that was alleged for the period was that the child was not in school.
The court applied a bad-faith-or-gross-misjudgment standard in evaluating the Section 504 and ADA claims, saying there needed to be more than a mere violation of the IDEA. Animosity or ill will was not alleged, but the complaint sufficiently pled facts showing that the failure to provide the services resulted from gross misjudgment. The court emphasized the families’ repeated efforts to obtain services and the absence of a streamlined process to deal with the units of the Department. “Moreover, parents are routinely kept in the dark about the status of their requests—their telephone calls go unreturned, and when they do make contact with DOE, the explanations they receive are unclear.” Id. at 468. Bureaucratic incompetence “eventually morphed into a reckless disregard for J.P., M.C., and O.A.’s educational needs.” Id.
The court also found the complaint made allegations of systemic policies and practices sufficient for municipal liability of the Department under 42 U.S.C. § 1983.The court further found that the New York State Education Department was not a necessary party in light of the fact there was no challenge to NYSED guidelines, policies, or regulations. The court dismissed Section 504 and ADA claims against the individual defendants.
The most directly relevant aspect of this case for hearing officers is the conclusion that it is a deprivation of free, appropriate public education to fail to arrange for and follow through on providing essential student services such as transportation and school nursing. This holding is relevant to cases before hearing officers requesting orders for immediate delivery of services promised on IEPs. Moreover, failure to provide services called for on IEPs is a frequent basis for requests for reimbursement or compensatory education, so the case has a bearing on disputes with those claims. The case merits close watching for further opinions as the proof develops and remedies, if justified, are addressed.