Opinion
22 Civ. 1865 (PAE)
07-24-2024
ROSA ELBA DE PAULINO, et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, DISTRICT JUDGE
This action, as brought, concerned funding obligations under the pendency or “stay-put” provision of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(j), for the educational placement of 12 disabled children at the International Institute for the Brain (“iBRAIN”) for the 2021-2022 extended school year. By the time the parties cross-moved for summary judgment, the dispute had narrowed significantly to involve the funding obligations of the defendants-the New York City Department of Education (“DOE”) and David C. Banks in his official capacity as Chancellor of DOE (collectively, “defendants”)-as to four students.
On June 18, 2024, this Court resolved cross-motions for summary judgment as to three of these students. Dkt. 81 at 15-16. However, finding the parties' briefing and supporting submissions inadequate to enable an informed ruling as to pendency funding for student R.Z., the Court ordered limited supplemental briefing. Id. It was to cover: “(1) how much, if any, tuition is owed for R.Z. for the 2021-2022 school year . .. and (2) what nursing and transportation costs are owed to R.Z. based on the language of the November 9, 2021 Finding of Fact and Decision (“FOFD”), as incorporated in the December 13, 2021 Pendency Order, and whether, based on the language in the FOFD, Defendants' obligation as to transportation costs is limited to days of actual attendance.” Id. The Court has now received the requested letter-briefing. Dkts. 83 (“Pl. Br.”), 84 (“Def. Br.”).
The Court assumes familiarity with the facts of this case and background principles of i law as articulated in its June 18, 2024 opinion on summary judgment.:
I. R.Z.'s Tuition
Supplemental briefing has made clear that the parties' dispute as to R.Z.'s tuition funding for the 2021-2022 extended school year is narrow. The parties agree: (1) that total tuition costs at iBrain for the 2021-2022 extended school year were $254,836? (2) that pendency obligations as to R.Z. did not accrue until October 7, 2021-several months into the school year-and tuition costs should be pro-rated accordingly, and (3) that the DOE has thus far paid out $187,090.12 in pendency funding for R.Z.'s tuition for the 2021-2022 extended school year. Pl. Br. at 1; Def. Br. at 1-2. The parties disagree, however, on how the tuition should be pro-rated.
Plaintiffs would pro-rate the tuition by the day: they argue that R.Z., whose pendency order runs retroactive to October 7, 2021, is entitled to tuition for 163 out of 218 days of the school year. Pl. Br. atl. Plaintiffs calculate the pro-rated tuition owed, then, as (163/218) times $254,836-that is, the ratio of days for which defendants owe pendency funding to total days of the school year, multiplied by the total tuition costs for the full school year. That yields a total of $ 190,542.51 pendency funds owed for tuition under plaintiffs' model. Because Defendants have paid $ 187,090.12, Plaintiffs argue that defendants owe $3,452.39 in tuition costs to R.Z.
Defendants refer to this number as $254,936; however, this appears to be a typo, rather than a point of dispute. See Def. Br. at 1; see also Dkt. 83, Ex. 1 (tuition affidavit setting forward total tuition amount as $254,836). To the extent this error affected defendants' tuition calculations, it is irrelevant to this ruling, as the Court adopts plaintiffs' methodology.
Defendants contend that they do not owe any outstanding tuition costs to R.Z. for the 2021-2022 school year because the DOE's Implementation Unit pro-rates on a monthly basis, and that defendants' pendency obligation is the $187,090.12 that defendants have already paid. Def. Br. at 2. They reach this result by dividing the total tuition amount (what they refer to as $254,936) by 12 months in a year, which results in monthly tuition costs of $21,244.67. Id. at 1. Defendants then pro-rate this figure by day for the month of October, in which all agree pendency obligations run to 25 out of the 31 days in the month (with pendency obligations starting on October 7, 2021). Id. Defendants thus calculate they owe $17,132.80 for the month of October, plus $21,244.67 for the eight months of November 2021 through June 2022. Added up, these figures yield a sum of $187,090.16, four cents more than defendants have already paid, which they ascribe to a rounding decision on their Implementation Unit's part. Def. Br. at 1.
Plaintiffs have the better of this argument. At the outset, there is little law on the narrow point of calculative methodology that yields the outstanding $3,452.39 dispute between the parties. The pragmatic inquiry on this point, see Dkt. 81 at 7, applies “a results-based standard in many respects, concerned more with a just outcome for a disabled student than with judicial efficiency.” T.Y. v. N.Y.C. Dep'tof Educ., 584 F,3d 412, 418 (2d Cir. 2009). A district court must “give due weight to the administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” A.C., 553 F.3d at 171 (cleaned up). To this end, “[a] court may remand a proceeding when it needs further clarification or does not have sufficient guidance from the administrative agencies.” Hidalgo v. N.Y.C. Dep'tof Educ., No. 20 Civ. 98 (JGK), 2021 WL 2827037, at *5 (S.D.N.Y. July 7, 2021).
Here, although R.Z.'s pendency order does not afford explicit guidance as to the pro rating process with respect to R.Z.'s tuition costs, it, and common-sense logic, together favor j pro-rating R.Z. 's pendency-based tuition costs by day, not month. All agree that the operative pendency order is that handed down by IHO Diana Ciccone on December 13, 2021. Dkt. 60 (“JSF”) ¶¶ 47-50; id., Ex. 12 (“12/13/21 Pendency Order”). There, IHO Ciccone ordered defendants “retroactive to October 7, 2021” to “fund the tuition at iBRAIN[.]” 12/13/21 Pendency Order at 4.
Plaintiffs' proposed calculation executes this order more faithfully and with greater precision, doing greater justice to the purpose of the pendency provision and the IDEA. As IHO Ciccone's order makes clear, pendency obligations do not accrue on a monthly basis, but are keyed to the specific day on which a request for an administrative hearing was first made. Id.; see also 20 U.S.C. § 1415. And R.Z.'s pendency placement at iBRAIN, and associated tuition costs, were not based on a 12-month schedule as DOE's calculations presuppose. Instead, the extended school year at iBRAIN, during the relevant years of 2021 and 2022, lasted for 218 days. Pl. Br. at 1. Therefore, dividing the year by months, and treating 12-months as the proper denominator, ill matches R.Z.'s actual school year. Defendants' own calculation ultimately acknowledges this, in that it deviates from a purely monthly pro-rata methodology: After dividing total tuition costs by 12, defendants then pro-rate the month of October by day. Def. Br. at 1-2. And defendants themselves note that the 2021-2022 extended school year ended on June 24--not the last day of the month-yet they do not pro-rate tuition for the month of June. See id.
The effect of defendant's mix-and-match methodology is to shortchange R.Z., who would receive a modestly larger reimbursement using the more precise process of prorating on a daily basis, from the day R.Z.'s guardian requested an administrative hearing.
Defendants state that the approach they urge aligns with the way DOE's Implementation Unit has historically pro-rated. Def. Br. at 1. Be that as it may, defendants do not articulate any normative or legal basis for that practice, or any justification for foregoing the more precise fairer approach of pro-rating tuition costs by day. Far from being more administrable, defendants' calculative approach is more convoluted than plaintiffs' intuitive math.
The bottom line, the Court finds, is that the more just and efficacious approach, and the one that best effectuates the pendency order requiring Defendants to pay tuition retroactive to the specific date of October 7, 2021, is to pro-rate by day. Doing so, the Court adopts plaintiffs' methodology and finds that defendants owe a total of $190,542.51 for R.Z.'s pendency tuition costs for the 2021-2022 extended school year. As defendants have paid $187,090.12 toward this total, they owe $3,452.39 in tuition costs to R.Z.
II. Nursing and Transportation Costs
In its June 18, 2024 decision, the Court found that the language of the December 13, 2021 pendency order is most faithfully read to incorporate IHO Ciccone's November 9, 2021 FOFD in setting out R.Z.'s pendency placement, and, in doing so, to require payment for some nursing and transportation costs as part of defendants' pendency obligations. Dkt. 81 at 12-15.
The Court sought supplemental briefing as to what the language of the pendency order required with respect to nursing and transportation costs, and specifically if the language of the order required proof of actual attendance before reimbursement. Id. at 15-16. The Court first considers and dispatches two threshold-and specious-arguments from defendants, and then turns to the question on which it sought briefing.
A. Defendants' Arguments
Defendants make two baseless arguments why, despite this Court's clear ruling on summary judgment, they need not pay any nursing or transportation costs.
First, they argue, plaintiffs were barred from seeking and obtaining a favorable judicial interpretation of the language in R.Z.'s pendency order by the administrative exhaustion doctrine. Def Br. at 2. That is wrong. It is black-letter law that when a plaintiff claims violations of the stay-put provision based on the DOE's failure to fund pendency services, the action falls within several enumerated exceptions to the IDEA'S exhaustion requirement. Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d Cir. 2020) (“Because the Parents allege that the City's failure to pay for the Students' services at iBRAIN violates the stay-put provision of the IDEA, the Parents are not required to satisfy the IDEA'S exhaustion requirement.”). Defendants suggest that a party who does not contest an administrative order must nevertheless appeal that order to seek “clarification” thereof. See Def. Br. at 2. That statement is incoherent. Defendants are at liberty to continue to disagree with this Court's summary judgment ruling that the text of the operative pendency order requires payment of some nursing and transportation costs. But defendants have not come up with any responsible argument why this Court was barred from making such a finding based on the administrative exhaustion doctrine.
Second, defendants argue that Plaintiffs cannot seek transportation and nursing costs as part of the DOE's pendency obligation for the 2021-2022 extended school year because plaintiffs have “also sought to recover the same remaining costs of attendance at the same private school, iBrain, for the same 2021-2022 school year” in a separate case in this District that challenged the DOE's 2021-2022 individualized education program (“IEP”) for R.Z. Def. Br. at 2. In that case, Judge Failla granted defendants' motion for summary judgment on the ground that the IEP in question did not deny R.Z. a free and appropriate public education (“FAPE”). See Zayas v. Banks, No. 22 Civ. 07112 (KPF) (S.D.N.Y. January 19, 2024), Dkt. 39. That case is currently on appeal to the Second Circuit.
Defendants' argument is again misbegotten. The case before this Court concerns defendants' pendency obligations under the IDEA'S stay-put provision. 20 U.S.C. § 1415(j).
Based on an operative pendency order, R.Z. is here entitled to reimbursement for pendency services. That is so irrespective of the success or failure of any challenge to an IEP. See Mackey ex rel. Thomas M. v. Bd. of Educ., 386 F.3d 158,160-61,165-66 (2d Cir.), supplemented sub; nom., Mackey v. Bd. of Educ., 112 Fed.Appx. 89 (2d Cir. 2004) (“Congress[ made a] policy choice that all handicapped children, regardless of 'whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved.”). Defendants clearly grasp this bedrock tenet of the IDEA, as they do not contest that R.Z. can recover tuition costs for the 2021-2022 school year on the basis of the stay-put provision, notwithstanding that the litigation before Judge Failla also seeks such costs.Defendants nonetheless tacitly disclaim it in connection with nursing and transportation costs.
Plaintiffs, of course, could not collect duplicate relief were they to prevail on that point both in this litigation as to pendency obligations and their separate challenge to the IEP determination. But they do not seek, or claim entitlement to, such a double recovery here.
There is no legal basis to do so.
B. Tabulation of Nursing and Transportation Costs
The Court now considers what nursing and transportation costs the December 13, 2021 pendency order, and the language incorporated there from the November 9, 2021 FOFD, require defendants to pay.
“[T]he sole source of the DOE's reimbursement obligations in each Plaintiffs case is the applicable administrative order.” Davis v. Banks, No. 22 Civ. 8184 (JMF), 2023 WL 5917659, at *4 (S.D.N.Y. Sept. 11, 2023). “[T]he existence and extent of the DOE's reimbursement obligations turn on the language of the applicable administrative order-in particular, on the most recent, operative order, also known as the ‘last pendency-setting event.'” Id. (quoting Araujo v. New York Dep 't of Educ., No. 20 Civ. 7032 (LGS), 2023 WL 5097982, at *5 (S.D.N.Y. Aug. 9, 2023)).
Here, plaintiffs contend that DOE must reimburse R.Z. for the full costs, under relevant contracts, of nursing and transportation services during the pendency period. Pl. Br. at 1-3.
Defendants counter that the language of the pendency order and incorporated FOFD only require them to pay for services actually rendered, upon receipt of invoices or other documentation thereof. Def. Br. at 3.
Applying the relevant language from the administrative orders, the Court finds that, as to transportation, the pendency order requires DOE to pay for all costs incurred by plaintiffs during the pendency period, without further proof of in-person attendance, but that, as to nursing costs, the pendency order requires DOE to pay only for nursing services actually “provided and received.” JSF, Ex. 13 (“11/9/21 FOFD”) at 28.
The relevant language from the November 9, 2021 FOFD, as incorporated into the December 13, 2021 pendency order, is as follows:
IT IS THEREFORE ORDERED THAT: a). The DOE to pay the tuition and transportation costs for the STUDENT'S attendance at the PRIVATE SCHOOL from March 2020 to June 2021. b). The DOE pay for the related services provided and received to the STUDENT at the PRIVATE SCHOOL from March 2020 to June 2021. c) a bank of 540 hours of Occupational therapy; 540 hours of physical therapy; 360 hours of speech/language therapy; 360 hours of Vision Education Services and 180 hours of Assistive technology.11/9/21 FOFD at 28.
The requirement that the DOE “pay the tuition and transportation costs for the STUDENT'S attendance” is best read as a directive to pay for the total transportation costs incurred during the pendency period. Id. The FOFD refers generally to transportation costs- not to the transportation costs for services “actually provided,” or any other such qualification.
There is no textual basis to read such a qualification into the order's language. And the parties have read the near-identical generalized text in the FOFD and pendency order going to tuition costs in this fashion. Such costs are to be reimbursed for the entire pendency period, not merely for those days or hours as to which attendance can be proven. Courts in this District applying similar language in pendency orders have interpreted this wording in a manner consistent with this holding. See, e.g., Donohue v. Banks, No. 22 Civ. 8998 (JPC), 2023 WL 6386014, at *9 (S.D.N.Y. Sept. 30, 2023) (where pendency-setting order directed reimbursement for “any transportation costs upon presentation of invoices for the same[,]” DOE's obligation was not limited to reimbursement for transportation services “actually used” by child on any given day); Abrams v. New York City Dep't of Educ., No. 20 Civ. 5085 (JPO), 2022 WL 523455, at *4 (S.D.N.Y. Feb. 22, 2022) (DOE could not claim pendency orders made payment for transportation services conditional on services actually being rendered where order provided that student “shall attend iBRAIN and receive the following instruction and related services at public expense,” including “specialized transportation”). The pendency order thus requires DOE to pay for R.Z.'s transportation costs, without qualification or further documentation.
However, as to nursing costs, the text of the relevant administrative order requires reimbursement only for the services actually provided and received by R.Z. during the pendency period. As to nursing or other “related services,” the FOFD states: “The DOE [is to] pay for the related services provided and received to the STUDENT at the PRIVATE SCHOOL[.]” 11/9/21 FOFD at 28. The plain meaning of this language is that the DOE need pay only for those services actually rendered-those provided and received. The case law arising from similar provisions is in accord. See, e.g., Davis, 2023 WL 5917659, at *4 (plaintiffs entitled to reimbursement only for instances where students actually used services given pendency order language referencing services “actually provided”); Araujo v. New York City Dep't of Educ., No. 20 Civ. 7032 (LGS), 2023 WL 5097982, at *4 (S.D.N.Y. Aug. 9, 2023) (FOFD requiring DOE to fund services actually provided refers to, in the context of transportation services, rides actually taken); Donohue, 2023WL 6386014, at * 10 (same). In light of the immediately prior reference in the FOFD to tuition and transportation costs, the qualification that reimbursement for other related services should be for those provided and received is particularly significant. Defendants thus are required to reimburse R.Z. only for days on which R.Z. attended iBRAIN in person, such that nursing services were, in fact, provided and received.
CONCLUSION
For the foregoing reasons, the Court grants summary judgment to R.Z. with respect to outstanding tuition costs and outstanding transportation costs. The outstanding tuition costs for the 2021-2022 extended school year are $3,452.39. The outstanding transportation costs, as set forward in the affidavit, contract, and legal brief submitted by plaintiffs, Pl. Br. & Exs. 3-4, total $70,090.
The Court, for the time being, denies summary judgment to R.Z. with respect to nursing costs. That is because plaintiffs' submissions are inadequate to enable the Court to tabulate such costs. These merely set forward the daily cost of nursing services provided, multiplied by the number of days for which R.Z.'s pendency period during the 2021-2022 extended school year spanned. See Pl. Br., Ex. 2. Plaintiffs have included an attendance record, but attendance is recorded if the student either in fact attended school in-person, participated in home learning, or had an excused absence. Id., Ex. 1 A. Under the ruling above, which limits reimbursable nursing costs to nursing services actually provided and received, plaintiffs must provide additional documentation to the DOE to isolate and substantiate reimbursable nursing. See Araujo, 2023 WL 5097982, at *5 (noting that satisfactory documentation of such need not “necessarily require formal attendance records, if neither iBRAIN nor [the nursing contractor] keep such records. Affidavits from individuals who interacted with [R.Z.] may suffice.]”).
The Court expects that the parties will be able collegially and efficiently to reach agreement on the result. The Court directs the parties urgently to meet and confer and submit a joint letter due Friday, August 2, 2024, reporting whether they have agreed on a figure and, if so, what it is, and whether any additional action need be taken before the Court closes this case. Given the discrete open issue, which responsible counsel should be able to run to ground quickly, counsel should not expect the Court to be receptive to an extension of the August 2 deadline.
The Clerk of Court is respectfully directed to terminate all pending motions.
SO ORDERED.