384 F. Supp. 3d 441
S.D. Ill.2019Background
- M.G., an 11-year-old with a serious brain injury, attended iHope in 2017–18; an IHO found iHope to be her appropriate placement and ordered DOE to fund tuition and related services for 2017–18.
- DOE issued a March 2018 IEP placing M.G. in a NYC public school for 2018–19; parents unilaterally enrolled M.G. at iBrain (a new school founded by iHope’s founder) for 2018–19 and filed a due process complaint seeking pendency funding for iBrain.
- iBrain provided substantially the same program (6:1:1 class, extended day, similar related services), but was short-staffed in July–Sept 2018 (no vision specialist for ~2.5 months; no social worker first month); parents claim make-up sessions were provided.
- IHO Suzanne Carter issued a March 5, 2019 Interim Order denying pendency at iBrain, finding iBrain was not "substantially similar" to iHope because of missed services and lack of documentary proof of make-up plans; ordered pendency at iHope.
- Parents sought review in federal court, asking the court to vacate the IHO pendency order and order DOE to fund M.G.’s pendency placement at iBrain pending final adjudication of the due process complaint.
- The district court (Chief Judge McMahon) vacated the IHO’s pendency decision and granted a preliminary injunction requiring DOE to fund pendency at iBrain through the 2018–19 school year pending final administrative resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff has Article III standing to challenge an adverse pendency IHO order | Violation of IDEA "stay-put" is a procedural injury giving standing | No concrete injury; no imminent tuition liability; failed to exhaust administrative remedies | Court: Parents have standing based on alleged violation of stay-put; exhaustion exception applies in pendency context |
| Whether iBrain is the child’s "then-current educational placement" (i.e., substantially similar to iHope) | iBrain’s program is essentially identical to iHope; missed services were temporary and being made up | iBrain lacked vision specialist and social worker early in year; missed services meant it was not substantially similar | Court: By preponderance, iBrain and iHope were substantially similar; IHO’s emphasis on documentary proof was unreasonable; pendency at iBrain ordered |
| Whether missed/delayed related services (vision, parent counseling) constituted elimination of a basic program element | Missed sessions were being made up; parent counseling loss was de minimis; classroom compensated for vision goals | Delays amounted to elimination of essential services and justified denial of pendency at iBrain | Court: Delays did not amount to elimination; make-up plan and in-class accommodations showed substantial similarity |
| Whether transportation services must accompany pendency funding | Parents requested transportation (1:1 aide, accessible vehicle, ≤60 min) as part of pendency | DOE argued travel time or vendor issues could differ and undermined similarity | Court: Transportation is a related service ordered by the prior IHO decision and should be provided for iBrain pendency |
Key Cases Cited
- Board of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476 (2d Cir.) (review of IDEA FAPE principles and private placement funding)
- Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66 (U.S.) (IDEA’s guarantee of special education and related services)
- Concerned Parents & Citizens v. New York City Bd. of Ed., 629 F.2d 751 (2d Cir. 1980) (educational placement focuses on program type, not specific location)
- Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158 (2d Cir.) (definitions of "then-current educational placement" for pendency)
- Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195 (2d Cir.) (exhaustion exception for pendency claims; need for immediate interim relief)
- Honig v. Doe, 484 U.S. 305 (U.S.) (stay-put principles and the availability of interim relief)
- T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145 (2d Cir.) (pendency preserves general level/type of services, not site-specific placement)