D.D. v. New York City Board of Education

Full title: D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a…

Court: United States District Court, E.D. New York

Date published: Mar 30, 2004

Civil Action No. CV-03-2489 (DGT) (E.D.N.Y. Mar. 30, 2004)

Opinion

Civil Action No. CV-03-2489 (DGT)

March 30, 2004

MEMORANDUM ORDER

DAVID TRAGER, District Judge

Plaintiffs D.D., A.C., and B.T., by their respective parents, bring this action on behalf of a proposed class of present and future New York City preschool children with Individualized Education Programs ("IEPs") who have not or will not timely receive services mandated by their IEPs. The "City defendants" are: the City of New York, the New York City Board of Education ("NYCBOE"); the New York City Department of Education ("NYCDOE"); Joel Klein, Chancellor of the New York City Schools; Dr. Angelo Gimondo, Superintendent of Community School District 30; Nelly Real-Korb, Chairperson of the Committee on Preschool Special Education in District 30; Michelle Fratti, Superintendent of Community School District 25; Beth Marino, Chairperson of the Committee on Preschool Special Education in District 25; Michael A. Johnson, Superintendent of Community School District 29; and Joe Blaize, Chairperson of the Committee on Preschool Special Education in District 29. Also named as a defendant is Richard Mills ("Mills"), Commissioner of the New York State Education Department ("SED").

Plaintiffs claim they have been denied the right to a free and appropriate education in violation of: (1) the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; (2) Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12312 et seq.; (3) Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, as amended by the Civil Rights Restoration Act of 1987; and (4) 42 U.S.C. § 1983 and 1988.

Pending before the court are: (1) plaintiffs' motion for class certification; (2) defendant Mills' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6); and (3) plaintiffs' motion for a preliminary injunction as to the class. For the reasons below, plaintiffs' motion for class certification pursuant to Rule 23(b)(2) is granted with modification, defendant Mills' motion to dismiss is granted in part and denied in part, and plaintiffs' motion for a preliminary injunction directing defendants to immediately implement the IEPs of the class is denied.

Background (1) Statutory Framework

In 1990, Congress enacted the IDEA¹ to ensure access for all disabled children to a free appropriate public education that "emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A).

Under the IDEA, states are eligible for federal funds if they make available "a free appropriate public education" to all children with disabilities between the ages of three and twenty-one. Id. § 1412(a)(1)(A). To meet IDEA requirements, each student with an eligible disability must receive from the state special education and related services designed for the individual student's needs. Id. § 1401(8). Those services must be administered according to an individualized education program ("IEP"), which is a written statement of: the child's present level of educational performance; measurable annual goals for the child; the special education, related services and supplementary aids and services to be provided to the child or on the child's behalf; and the projected date for the beginning of such services. Id. § 1414(d)(1)(A). The IDEA further imposes a preference for educating disabled children "[t]o the maximum extent appropriate" alongside non-disabled children. Id. § 1412(a)(5); see also N.Y. Educ. Law

§ 4410(5)(b). This provision essentially requires that special education be provided in the least restrictive setting consistent with a child's needs. See Declaration of Linda Wernikoff ("Wernikoff Decl.") at ¶ 11.

Under the New York statutes implementing the IDEA, IEPs for preschool² children with eligible disabilities are developed by a Committee on Preschool Special Education ("CPSE"), comprised of the child's parents, the child's regular teacher, and other professionals employed or appointed by the local school district. 20 U.S.C. § 1414(d)(1)(B); N.Y. Educ. Law § 4410(3). In New York City, there are ten regional CPSEs, with approximately 78 CPSE administrators and 77 clerical staff working to develop and implement IEPs for preschool children. Wernikoff Decl. at ¶ 13. Any student suspected of having an eligible disability may be referred to the local CPSE for special education services or programs by the child's parent or guardian, a professional staff member at the child's school or school district, physician, judicial officer, or other individuals prescribed by law. N.Y. Educ. Law § 4401-a(1); 8 N.Y.C.R.R. § 200.4(a)(1).

2 Preschool children are children with a listed disability between the ages of three and five. N.Y. Educ. Law § 4410(1)(i); Wernikoff Decl. ¶ 2.

If, after an individual evaluation, the CPSE determines that the child is eligible for special education services, the committee will develop a child's IEP based on the following placement options, ranked in the order of least restrictive placements first: (1) related services only;³ (2) special education itinerant services only;⁴ (3) related services in combination with special education itinerant services; (4) a half-day program; and (5) a full day program. N.Y. Educ Law § 4410(5)(b)(i); 8 N.Y.C.R.R. 200.16(d)(3). Parents who are dissatisfied with the IEP developed by the local school district may challenge it in an impartial due process hearing before an impartial hearing officer. 20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1). The decision of the impartial hearing officer may be appealed to a state review officer. 20 U.S.C. § 1415(g); N.Y. Educ. Law § 4404(2). Any party who does not have the right to appeal the impartial hearing officer's decision or who wishes to appeal the state review officer's decision may bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

3 "Related services" include audiology, counseling, occupational therapy, physical therapy, speech pathology, certain medical services, psychological services, school health services, school social work, assistive technology services, orientation and mobility services, parent counseling and training, and "other appropriate developmental, corrective or other support services." N.Y. Educ. Law §§ 4401(2)(k).

4 "Special education itinerant services" refers to an approved program provided by a certified special education teacher on an itinerant basis. N.Y. Educ. Law § 4410(1)(k).

Although the IDEA itself is silent as to the time frame for implementing IEPs, the federal regulations provide that IEPs must be implemented "as soon as possible" without specifying any time periods. 34 C.F.R. § 300.342(b)(1)(ii).^{5 6} New York's implementing regulations provide that there "may be no delay in implementing a student's IEP," 8 N.Y.C.R.R. § 200.4(e)(1)(i), and direct the board of education to arrange for the preschool student to:

5 34 C.F.R. § 300.342(b)(1)(ii) reads:

Each public agency shall ensure that . . . [a]n IEP . . . [i]s implemented as soon as possible following the meetings described under § 300, 343.

The commentary to section 300.342(b)(1)(ii) is also ambiguous, and reads as follows:

Under paragraph [(b)(ii)] of this section, it is expected that a handicapped child's individualized education program (IEP) will be implemented immediately following the meetings under § 300.343. An exception to this would be (1) when the meetings occur during the summer or a vacation period, or (2) where there are circumstances which require a short delay (e.g., working out transportation arrangements). However, there can be no undue delay in providing special education and related services to the child.

57 Fed. Reg. 44794, 44814 (Sept. 29, 1992), at 1992 WL 238661 (emphasis added).

6 Section 300.343(b)(1), cited by the City defendants, see City Mem. at 12, states only that a child must both be evaluated and provided with special education and related services "within a reasonable period of time" after the local educational agency receives parental consent to evaluate the child. 34 C.F.R. § 300.343(b)(1).

receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the [CPSE] less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided no later than 30 school days from the recommendation of the [CPSE].

Id. § 200.16(e)(1).⁷ See also N.Y. Educ. Law § 4410(5)(e). Furthermore, "[t]he school district shall ensure that the recommendations on a student's IEP are implemented." 8 N.Y.C.R.R. § 200.4(e)(3).

7 Plaintiffs contend there is a 30-day time frame for implementing all types of services on a preschooler's IEP. Specifically, plaintiffs rely on Section 200.4 of the N.Y.C.R.R., which applies generally to all qualified disabled students regardless of age. See Plaintiffs' Memorandum of Law in Support of Motion for TRO for Named Plaintiffs and Preliminary Injunction for the Plaintiff Class ("Pls.' Prelim. Inj. Mem.") at 16-17; Plaintiffs' Reply Memorandum of Law ("Pls.' Reply Mem.") at 5-6. Section 200.4 reads, in part: "the board shall arrange for such programs and services within 30 school days of the board's receipt of the recommendation of the [CPSE]." 8 N.Y.C.R.R. § 200.4(e)(1). However, a plain reading of both Section 200.4 and Section 200.16 leads to the conclusion that Section 200.16 applies to disabled preschool children to the extent that it conflicts with Section 200.4. Thus, Section 200.16(e)(1) sets forth the applicable time frame for implementing preschool IEPs. See also Cort Aff. ¶ 8; Ray M. v. Bd. of Educ., 884 F. Supp. 696, 701 (E.D.N.Y. 1995) (applying time frame set forth in 8 N.Y.C.R.R. § 200.16(e)(1) to implementation of preschool IEPs.)
Although plaintiffs argue that "Section 200.4(e)(1) comports with federal law much more closely than . . . 200.16(e)(1), whose confusing provisions appear not to follow the federal requirement that all children with IEPs receive services 'immediately'," see Pls.' Reply Mem. at 5, this does not preclude the application of Section 200.16(e)(1) to the instant case as its validity is not before the court.

In New York, programs and services in preschool IEPs are provided by a private provider system. Affidavit of Rebecca Cort ("Cort Aff.") ¶ 9; Transcript of Hearing dated 3/24/04 ("3/24/04 Tr.") at 39. Classroom placements are arranged with 420 private preschool special education programs in the state that are operated by 96 approved providers. Cort Aff. ¶ 9. As for related services, the NYCDOE maintains a list of over 900 independent related service providers, including agencies, with whom it has a contractual relationship. Wernikoff Decl. ¶ 25; 3/24/04 Tr. at 51. Children for whom providers cannot be found immediately are placed on a waiting list, also known as a parent notification or "PN list." Wernikoff Decl. ¶¶ 29, 31. Each district updates the PN list daily. Id. ¶ 31. The NYCDOE then runs a monthly report that is disseminated to all preschool providers with a letter asking them to determine whether they can provide services to children on the list, provide partial services, or request child-specific permission to temporarily exceed an approved class size to provide services to children on the list. Id.

New York City serves approximately 23,000 preschool children with disabilities, including related services, special education itinerant services and special education provider placements. Cort Aff. ¶ 3. For the last several years, the number of disabled preschool children in New York City seeking services has increased by approximately 1,000 per year. Declaration of Jane R. Goldberg ("Goldberg Decl."), Ex. A; Wernikoff Decl. ¶ 27. For instance, in fiscal year 2001-2002, NYCDOE provided services and programs to 22,776 preschool students with disabilities, and in fiscal year 2002-2003, the NYCDOE provided services and programs to 23,794 preschool students with disabilities. Wernikoff Decl. ¶ 27. Based on this trend, City defendants anticipate a similar increase for the fiscal year 2003-2004. Goldberg Decl., Ex. A. The yearly increase in the preschool population is partially due to an approximate 12% annual increase in the number of children aged zero to two years old in Early Intervention programs,⁸ about half of whom subsequently transition to preschool programs. Wernikoff Decl. ¶ 28.

8 Early Intervention is a federally funded program administered by the New York State Department of Health, a non-party to this action, for children zero to two years of age with identified developmental delays. Cort Aff. ¶ 22; Wernikoff Decl. ¶ 28; see generally 20 U.S.C. § 1431 et seq.; N.Y. Pub. Health Law § 2540 et seq. The program provides services such as speech therapy that are routinely specified in the IEPs for preschool students. Cort Aff. ¶ 22.

Plaintiffs allege that, at the time the amended complaint was filed in June 2003, over 500 preschool children within the jurisdiction of the NYCBOE, the NYCDOE and the SED who had IEPs were not receiving the full services required by the IEPs. Amended Class Action Complaint ("Am. Compl.") ¶ 36. Some of the children on this list were allegedly receiving partial services, while others had received no services. Id. ¶ 39. Plaintiffs further allege that preschool children not on the waiting list are also not receiving all the services required by their IEPs. Id. ¶ 40.

Over time, however, the number of children on the PN list has apparently declined. By letter dated November 13, 2003, City defendants reported that, as of August 29, 2003, the total number of New York City preschool children on the PN list who had been awaiting services for over 30 days had declined to 220. See Goldberg Decl., Ex. A. As of September 30, 2003, the total number of preschool children awaiting services for over 30 days had further declined to 149. Id. And as of October 31, 2003, the total number of preschool children awaiting services for over 30 days was 112. Id. The majority of children on these PN lists were waiting for related services, a problem due in part by a national shortage of related service providers and by logistical problems arising from independent service providers who have been reluctant to travel throughout New York City to provide only a half-hour to one hour of therapy. Wernikoff Decl. at ¶ 35.

According to the City defendants, the number of children on the PN list has historically reached its peak in May of a given year. Transcript of Proceedings on 7/15/03 ("7/15/03 Tr.") at 13. This is because by January or February, as children who turn three years old "age out" of Early Intervention or other programs and become eligible for preschool special education services, a shortage develops in the number of preschool providers with spaces available to children who need classroom programs, and in the number of related service providers available for children who need only related services. 7/15/03 Tr. at 5; Wernikoff Decl. ¶ 30. According to the defendants, this number gradually declines and is at its lowest in September and October as children age out of preschool in June and August and transition into kindergarten, thereby creating new openings for preschool programs and services. 7/15/03 Tr. at 4-5, 13-14; Wernikoff Decl. at ¶ 32. Given the number of preschool children on PN lists awaiting services and the total number of preschool children served in New York City, City defendants assert that the NYCDOE's rate at providing services to preschool children in a timely manner hovers between 97% and 99%, depending on the time of year. Wernikoff Decl. ¶ 19.

(2) Individual Plaintiffs

A. D.D.

D.D. is a five-year-old resident of Jackson Heights, New York. Am. Compl. ¶ 45. Shortly after he turned four in September 2002, his parents sent him to a regular public school which offered no special education services. Id. Shortly after D.D. began attending school, his mother asked the school to evaluate him for potential developmental problems. Id. ¶ 46. The school referred D.D.'s case to the CPSE in School District 30. Id. In October 2002, evaluations showed that D.D. had significant developmental difficulties. Id. ¶¶ 47-54. As a result of these evaluations, D.D.'s mother and the District 30 CPSE representative prepared an IEP for D.D. Id. ¶ 56. This IEP recommended special education services of a "[h]alf day integrated class, 21/2 hours per day, 5 days per week with speech and occupational therapy as related services," with a class ratio of eight students to one teacher. The recommended related services were three weekly sessions of speech and language therapy, and a weekly session of occupational therapy. Id. ¶ 57. The projected date for implementing the IEP was set for December 6, 2002. Id. ¶ 58. Despite numerous phonecalls and letters from D.D's mother to various officials, D.D. remained on the waiting list for special education services for several months. Id. ¶¶ 62-66. After D.D. retained counsel in March 2003, CPSE scheduled a second conference to consider amending D.D.'s IEP to include Applied Behavioral Analysis ("ABA") services which had been recommended by a neurologist in December 2002. Id. ¶¶ 67-68. On March 31, 2003, D.D. received an amended IEP which repeated all the recommendations from the first IEP and added ten hours of weekly ABA therapy from a special education teacher. Id. ¶ 69.

Throughout March 2003, D.D. received no special education services.Id. ¶ 70. On April 11, 2003, D.D. had an impartial hearing before a NYCDOE impartial hearing officer. Id. ¶ 72. By decision dated April 30, 2003, the hearing officer held that D.D. required the services listed in the amended IEP and ordered the NYCDOE to implement this IEP by May 10, 2003 and to provide him with compensatory services. Id. ¶ 74.

On May 16, 2003, over six months beyond the projected start date for his IEP, D.D. filed and served upon defendants an order to show cause for a temporary restraining order and preliminary injunction to: comply with and implement the April 30 decision of the hearing officer; provide D.D. with special education services through the end of the summer program at a previously designated preschool; and provide D.D. with an ABA/Special Education Itinerant Teacher ("SEIT") provider through the end of the summer. See Order dated 5/21/03. The temporary restraining order was granted on May 21, 2003 by court order, and defendants NYCDOE and NYCBOE were ordered to comply with and implement the hearing officer's April 30 decision. Id.

However, in July 2003, D.D.'s parents removed him from the preschool and took him out of the country. See Wernikoff Decl. ¶ 47. As a result, by court order dated August 18, 2003, the DOE was permitted to discontinue payment of SEIT services. See Order dated 8/12/03. Finally, in July 2003, D.D. turned five years old and became ineligible for preschool services as of the end of August 2003. Municipal Defendants' Memorandum of Law in Opposition to Plaintiffs' Motions for a Preliminary Injunction and Class Certification ("City Mem.") at 3.

B. A.C.

A.C. is a four-year-old resident of Brooklyn, New York. Am. Compl. ¶ 80. Sometime after he turned two years old, A.C. was evaluated and accepted for an Early Intervention program in April 2002, and also received speech, language and occupational therapy services at home. Id. ¶ 82. In December 2002, A.C. became three years old and aged out of the Early Intervention Program.

After the local CPSE failed to arrange for A.C.'s transition to CPSE services, A.C.'s mother contacted the Birch Early Childhood Center to obtain the necessary CPSE forms and evaluations. Id. ¶¶ 84-85. Evaluations performed in November and December of 2002 and January 2003 revealed that A.C. had significant developmental difficulties with a developmental delay of almost one year, as well as a disorder on the autism spectrum. Id. ¶¶ 86-92. As a result of these evaluations, on February 26, 2003, the District 29 CPSE representative prepared an IEP which recommended a year-round special education class with a ten-student, one-teacher, two-aide ratio. The IEP also recommended speech therapy, occupational therapy and counseling services. Id. ¶¶ 93-94. The projected date for A.C.'s IEP was March 10, 2003. Id. ¶ 95.

The District 29 CPSE representative, however, told A.C.'s mother that about 500 preschool children throughout the city were on a waiting list for special education services, and that A.C. might have to wait until July or September 2003 for a placement. Id. ¶¶ 96-97. Although A.C. eventually received speech therapy on an interim basis, he did not receive any occupational therapy, counseling, or school placements for at least three months. Id. ¶¶ 98-101. Finally, on June 4, 2003, A.C.'s mother retained counsel and had an impartial hearing before a NYCDOE impartial hearing officer. Id. ¶ 102.

On or about June 4, 2003, the CPSE advised A.C.'s parents about openings at three programs, but his parents declined the program at one of the schools. Wernikoff Decl. ¶ 51. At around the same time, A.C. also relocated to School District 19. Although A.C.'s parents were advised that another program in that district was available, his parents apparently failed to honor two appointments to view the program. Id. ¶ 52. Eventually, A.C.'s parents accepted a placement at Lifeline Center for Child Development beginning July 1, 2003, which offered a full-day special class program with related services and SEIT therapy. Id. ¶ 53.

On July 25, 2003, the impartial hearing officer issued a decision ordering NYCDOE to provide compensatory services to A.C. According to the NYCDOE, A.C.'s parents made it difficult to move forward with the compensatory services because they initially insisted on adding Applied Behavioral Analysis services to their child's IEP as a precondition to granting their consent, despite being told the statutory and administrative reasons for not listing them. Id. ¶ 55. However, it appears that A.C. is now doing well and has progressed to a less restrictive class. Id. ¶ 56.

C. B.T.

B.T. is a four-year-old resident of Flushing, New York. Am. Compl. ¶ 107. In May 2001, B.T. was deemed eligible for Early Intervention services and subsequently received speech, occupation, physical therapy, special instruction and eventually Applied Behavioral Analysis services until December 2002, a few months after his third birthday. Id. ¶¶ 108-109. As part of the transition to special education services administered by the District 25 CPSE, B.T. was referred to the CPSE in October 2002. Id. ¶ 110. After preschool evaluations showed that B.T. had significant development difficulties, the District 25 CPSE developed an IEP for B.T. on January 3, 2003. Id. ¶¶ 112-121. The IEP recommended: one year of special education services; related services of speech, occupational and physical therapy; a "sensory gym" and a "sensory diet"; supports for his social and emotional needs; and the services of a special education teacher. Id. ¶¶ 121-123. The IEP initiation date was set for "ASAP," meaning "as soon as possible." Id. ¶ 124.

In the months following the IEP, the CPSE Administrator for District 25 contacted ten preschool programs to find a place for B.T. in the appropriate program and also explored half-day programs and larger class size programs, but none were available. Wernikoff Decl. ¶ 58. As a result, from January through March 2003, B.T. received none of the services required by the IEP and was not in school. Am. Compl. ¶¶ 125-128. In April or May 2003, the CPSE offered B.T. an interim placement of home-based occupational and physical therapy three times a week and two hours daily of ABA services, but did not offer any speech therapy or school placements. Id. ¶¶ 129-130. On or about May 29, 2003, B.T.'s parents accepted partial services in the form of SEIT services ten hours per week. Wernikoff Decl ¶ 59. It was not until June 25, 2003 that B.T. was offered and accepted a placement at a school. Wernikoff Decl. ¶ 60.

Discussion (1) Motion for Class Certification

Plaintiffs seek to certify a class comprised of "[a]ll present and future New York City preschool children with IEPs who have not or will not receive all of the services required by their IEPs." Plaintiffs' Memorandum of Law in Support of Motion for Class Certification ("Pls.' Class Cert. Mem.") at 3. In order to certify a class, plaintiffs must satisfy the four requirements of Rule 23(a) and demonstrate that the proposed class action fits into one of the three categories described in Rule 23(b). Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968). Although plaintiffs bear the burden of proving that the proposed class is appropriate for certification, see Demarco. v. Edens, 390 F.2d 836, 845 (2d Cir. 1968), plaintiffs do not have to make an extensive evidentiary showing in support of their motion. Follette v. Vitanza, 658 F. Supp. 492, 505 (N.D.N.Y. 1987), vac'd in part on other grounds by 671 F. Supp. 1362 (N.D.N.Y. 1987). In addition, a court considering a motion for class certification must assume the truth of the plaintiff's allegations. See Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661, n. 15 (2d Cir. 1978);DeAllaume v. Perales, 110 F.R.D. 299, 305 (S.D.N.Y. 1986) ("[F]or purposes of determining class certification issues, the allegations are taken as true and the merits of the complaint are not examined.")

For the reasons set forth below, the court grants plaintiffs' motion for class certification with a modification, and appoints individual plaintiffs D.D., A.C. and B.T. as class representatives.

A. Class Definition

As a threshold matter, the City defendants oppose plaintiffs' class definition because it could theoretically include all preschool children with IEPs who do not receive services "even the day after the IEP is developed." City Mem. at 18.

Addressing the City defendants' concern that the class definition includes children who have timely received services, the following limited alteration to the proposed class definition is adopted: "All present and future New York City preschool children with IEPs who have not or will not timely receive all of the services required by their IEPs" (emphasis added). See, e.g., Ray M. v. Bd. of Educ., 884 F. Supp. 696, 698 (E.D.N.Y. 1995) (certifying provisional class of "[a]ll preschool students, ages three through five, living in New York City, who have been or will be referred to the Committee on Preschool Special Education for a determination as to whether they require special education services and who have not been or will not be timely evaluated, recommended for and/or provided special education services.); Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1113 (N.D. Ill. 1982) (certifying class of "all handicapped children who . . . will not be placed in such facilities by the Chicago defendants in a timely manner.")

B. Rule 23(a)

In pertinent part, Rule 23(a) provides that:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a). Each of these requirements will be addressed in turn.

(1) Numerosity

Rule 23(a)(1) requires that a proposed class be so numerous that joinder is impracticable. The plaintiff is not obligated to identify the exact number of class plaintiffs. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). "[A] class action may proceed upon estimates as to the size of the proposed class," In re Alcoholic Beverages Litig., 95 F.R.D. 321, 324 (E.D.N.Y. 1992), and "courts may 'make common sense assumptions' to support a finding of numerosity." Weissman v. ABD Fin. Servs., Inc., 203 F.R.D. 81, 84 (E.D.N.Y. 2001) (quoting Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000)). Generally, "numerosity is presumed at a level of 40 members." Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).

When plaintiffs filed their amended complaint in June 2003, there were allegedly more than 500 preschool children with IEPs on the PN list who were awaiting services. Am. Compl.

¶ 36. City defendants represented to the court that the total number of children on this list had gone down to 125 as of October 31, 2003.See Goldberg Decl., Ex. A. Taking into account the fluctuating number of preschool students awaiting services, either the low end (125) or the high end (over 500) of the range constitutes a sufficient number of members to satisfy numerosity. Thus, the numerosity requirement has been met.

(2) Commonality

To fulfill the commonality requirement of Rule 23(a)(2), plaintiffs must demonstrate that common questions of law or fact are at the core of the cause of action. City defendants contend there are no questions of fact common to the class as a whole and assert that the court would have to conduct individualized inquiries to determine, among other things, whether each potential class member had an IEP, when the IEP was developed, how long the child had been waiting for the services recommended on the IEP, and whether parents or guardians had accepted the recommendations or requested an impartial hearing. See City Mem. at 17. This argument, however, is unavailing, for "the existence of factual variations in the types of irreparable injury suffered or in the length of the delay does not preclude class certification." Alexander A. v. Novello, 210 F.R.D. 27, 33 (E.D.N.Y. 2002) (quoting Brown v. Giuliani, 158 F.R.D. 251, 268 (E.D.N.Y. 1994)).

Despite individual variations in the services sought by the named representatives and the putative class members, all their claims singularly focus on the defendants' alleged failure to provide services listed on their IEPs in a timely manner in violation of the IDEA, the ADA, Section 504 and 42 U.S.C. § 1983 and 1988. Since "[e]ven a single common question has been sufficient to satisfy the commonality requirement," Boyland v. Wing, 92 CV 1002, 2001 WL 761180, at *8 (E.D.N.Y. Apr. 6, 2001), plaintiffs have satisfied this element.

(3) Typicality

The typicality requirement of Rule 23(a)(3) is met when the class representatives' claims are typical of those in the proposed class. Boyland, 2001 WL 761180, at *10. "[E]ach class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability." Robidoux, 987 F.2d at 936 . Like the commonality prong, when the pleadings allege that the named plaintiff and the class were subjected to or affected by the same unlawful conduct, the typicality requirement is usually met regardless of "minor variations in the fact patterns underlying individual claims." Id. at 936-37. The individual plaintiffs assert that their claims for injunctive relief are typical of the proposed class as a whole because they are subject to the same policies and practices that have failed to provide timely services to New York City preschool children with IEPs. Pls.' Class Mem. at 7. Plaintiffs also assert that typicality exists because the named plaintiffs have already suffered an injury and seek to represent a class which includes children who are threatened by similar injuries, but have not yet suffered them. Id. at 7-8. On the other hand, City defendants and Mills also appear to attack typicality by asserting that the interests of the named plaintiffs are atypical of the rest of the class because they sought half- or full-day classroom placements, whereas most preschool students with disabilities require related services. See City Mem. at 20; Memorandum of Law in Support of Defendant Mills' Motion to Dismiss and in Opposition to Plaintiffs' Motions for Preliminary Injunction and Class Certification ("Mills' Mem.") at 26.

Again, the defendants' arguments are unavailing. "When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." Robidoux, 987 F.2d at 936-37. See also Tonya K., 551 F. Supp. at 1111) (holding that, regardless of diverse disabilities and needs of class members, common and only legal issue was whether defendants' failure to place them in private educational services was untimely and violative of their federal and state rights to a free appropriate education); Rossini v. Ogilvy Mather, Inc., 798 F.2d 590, 595 (2d Cir. 1986) (holding that defendants acted "in the same general fashion" and typicality was met where individual and class members alleged wrongful denials of opportunities for professional advancement, despite differences in decisions affecting opportunities for promotion and training). Similarly, individual variations in IEP-mandated placements and/or services cannot defeat the typicality prong where plaintiffs' primary claim is that defendants unlawfully failed to implement their IEPs in a timely manner. As a result, the typicality prong has been met.

(4) Fair and Adequate Representation

Finally, to satisfy Rule 23(a)(4), plaintiffs must demonstrate that "the representative parties will fairly and adequately protect the interests of the class." The "adequate representation" inquiry has two prongs: "First, class counsel must be qualified, experienced and generally able to conduct the litigation. Second, the class members must not have interests that are antagonistic to one another." Harrison v. Great Springwaters of Am., No. 96-CV-5990, 1997 WL 469996, at *5 (E.D.N.Y. June 18, 1997) (quoting D'Alauro v. GC Servs. Ltd. P'ship, 168 F.R.D. 451, 457 (E.D.N.Y. 1996)).

There is no dispute as to the first part of the adequacy test. Plaintiffs are represented by the law firm of Emery Celli Cuti Brinckerhoff Abady P.C. Plaintiffs allege that the firm has substantial expertise in civil rights litigation and class action representation, and there are no known conflicts between the firm and members of the class and among members of the class. See Declaration of Ilann M. Maazel in Support of Motion for Class Representation ("Maazel Class Cert. Decl.") at ¶¶ 2-4. Since defendants do not challenge these assertions and there is no reason for the court to doubt them, the first element has been met.

However, defendants argue that the class representatives fail to meet the second part of the adequacy inquiry for two reasons. City defendants first argue that the named representatives have received or are receiving the services mandated on their IEPs. See City Mem. at 20-21. Defendants' second attack on the adequacy prong center around the fact that the named plaintiffs generally required one type of services (school placements), and that other class members will likely need other types of services (related or itinerant services). City Mem. at 20; Mills' Mem. at 26. In particular, Mills and the City defendants suggest in conclusory fashion that the named plaintiffs' interests are antagonistic to those of the putative class because "the named plaintiffs have an interest in increasing the number of instructors in approved preschool programs, even to the detriment of related or itinerant services." Mills' Mem. at 26; see also City Mem. at 20. Both arguments are unpersuasive for the following reasons.

With respect to defendants' first argument, class certification is still proper even where named plaintiffs have already received the relief they sought. Although a genuine dispute must exist in order to meet the "case or controversy" requirement of Article III of the Constitution, the Supreme Court has recognized that in class action contexts:

[t]here may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to 'relate back' to the filing of the compliant may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.

Sosna v. Iowa, 419 U.S. 393, 402 n. 11 (1975). This "relation back" doctrine has been applied to allow class representation by individuals whose claims became moot after the motion for class certification was filed, but before the motion was resolved. Crisci v. Shalala, 169 F.R.D. 563, 567 (S.D.N.Y. 1996) (citations omitted). This is especially true where class claims are "inherently transitory."Robidoux, 987 F.2d at 939. Relation back is also appropriate "so long as a justiciable controversy existed some time prior to class certification." Goetz v. Crosson, 728 F. Supp. 995, 1000 n. 8 (S.D.N.Y. 1990). Here, plaintiffs' claims are inherently transitory because defendants will almost always be able to implement an IEP before a plaintiff can obtain relief through litigation. See, e.g., Robidoux, 987 F.2d at 939 (recognizing "inherently transitory" nature of claim involving unlawful delays in processing applications for public assistance benefits); Olson v. Wing, 281 F. Supp.2d 476, 484 (E.D.N.Y. 2003) ("[D]efendants' voluntary actions to resolve the named plaintiff's claim should not be allowed to serve as a mechanism for avoiding judicial scrutiny of allegedly unconstitutional acts against plaintiff's proposed class.")

Although D.D., A.C. and B.T. have either aged out of the system or have received the services listed in their IEPs, their IEPs clearly had not been implemented for several months at the time their amended complaint was filed. Given the inherently transitory nature of plaintiffs' claims and the fact that plaintiffs allegedly suffered injuries at the time the complaint was filed but before the class was certified, plaintiffs' receipt of IEP placements and services does not render the entire class action moot. See also Robidoux, 987 F.2d at 938 (holding that class action was not moot merely because named plaintiffs received their unlawfully delayed benefits after lawsuit was filed); Olson, 281 F. Supp.2d at 484 (holding that class action was not moot because named plaintiffs were granted hearings to contest termination of Disaster Relief Medicaid benefits after suit was filed); Tonya K., 551 F. Supp. at 1112 (holding that class action was not moot because named plaintiffs no longer awaited placement in appropriate educational programs). Defendants' first argument is, therefore, without merit.

As for the defendants' claim that the difference in services sought renders the named plaintiffs' interests antagonistic to those of the class, nothing in plaintiffs' amended complaint can be read as an inference that one type of services need be sacrificed for the benefit of another. Instead, the amended complaint consistently demands an implementation of "all of the services" or "the full services" required by the IEPs of the putative class. See Am. Compl. ¶¶ 23, 24, 26, 38, 140, 148, ad damnum clause. Despite the difference in services sought, the named plaintiffs and the class members still have an identical interest in the timely implementation of their IEPs. The adequacy prong of Rule 23(a) has, therefore, been met. See Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (holding that the class members' interests were identical and that Rule 23(a)(4) was met, where plaintiffs sought "broad based relief which would require the child welfare system to dramatically improve the quality of all of its services. . . .")

C. Rule 23(b)

In addition to satisfying the requirements of Rule 23(a), a potential class action must qualify under one of the categories set forth in Rule 23(b). Plaintiffs rely on Rule 23(b)(2), or in the alternative, Rule 23(b)(1)(A).

Rule 23(b)(2) allows class certification if the moving party shows that the defendants have "acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). Rule 23(b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Fed.R.Civ.P. 23(b)(2) advisory committee's note (1966). However, if money damages are "merely incidental" to plaintiffs' request for injunctive or declaratory relief, a class action may be certified under Rule 23(b)(2). Vengurlekar v. Silverline Tech., Ltd., No. 02 Civ. 7724, 2003 WL 22801757, at *4 (S.D.N.Y. Nov. 24, 2003) (citing Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 156-57 (S.D.N.Y. 2002)).

Plaintiffs assert that class certification under Rule 23(b)(2) is appropriate because defendants, by failing to implement the IEPs of the putative plaintiff class, have refused to act on grounds generally applicable to the class. See Pls.' Class Cert. Mem. at 10. Defendants, however, attack Rule 23(b)(2) certification with several arguments. First, they claim to have expended tremendous efforts to facilitate, expand and deliver services to the disabled preschool population as a whole. See City Mem. at 21; Mills' Mem. at 23. Second, the City defendants argue that plaintiffs' claims for compensatory and punitive damages require this court to determine whether those damages predominate over the claims for injunctive and declaratory relief. See City Mem. at 21-22. Finally, Mills contends that this court can, in the exercise of discretion, deny certification if it finds that it is "unnecessary to ensure that all persons similarly situated to plaintiffs will benefit by any relief accorded to plaintiffs." Mills' Mem. at 27-28 (quotingDenenberg v. Blum, 93 F.R.D. 131, 133-34 (S.D.N.Y. 1982)). According to Mills, class certification is "unnecessary" in actions where plaintiffs are challenging the policies and practices of governmental officials seeking injunctive or declaratory relief. Mills' Mem. at 28 (citingGalvan v. Levine, 490 F.2d 1255, 1261-62 (2d Cir. 1973); Ruiz v. Blum, 549 F. Supp. 871, 878 (S.D.N.Y. 1982); Davis v. Smith, 431 F. Supp. 1206 (S.D.N.Y. 1977), aff'd, 607 F.2d 535 (2d Cir. 1978); Aluminum Co. of Am. v. FTC, 67 F.R.D. 510, 512 (S.D.N.Y. 1975)). Defendants' arguments will be addressed in turn.

First, as plaintiffs note, defendants' claims of exerting their best efforts to serve most of the disabled preschool population are irrelevant for purposes of 23(b)(2). The question is whether defendants have allegedly failed to act "on grounds generally applicable to the class." Fed.R.Civ.P. 23(b)(2) (emphasis added). Here, the proposed class consists of disabled preschool children whose IEPs have not or will not be implemented in a timely manner due to defendants' alleged failure to act on grounds generally applicable to them. Thus, defendants' first argument is without merit.

Turning to the next argument, this court notes that plaintiffs seek, in addition to declaratory and injunctive relief, compensatory and punitive damages arising from defendants' allegedly unlawful policy and practice of failing to immediately implement services required by their IEPs. See Am. Compl. ¶ 4, ad damnum clause. City defendants correctly point out that these claims for compensatory and punitive damages require this court to determine whether they predominate over the claims for injunctive and declaratory relief. See Parker v. Time Warner Entm't Co., 331 F.3d 13, 18 (2d Cir. 2003) ("[W]hen monetary relief is requested in tandem with injunctive and declaratory relief, the court must determine whether the requested monetary relief predominates over the claims for equitable relief."). This is because certification under Rule 23(b)(2) is inappropriate for class actions where "the appropriate final relief relates exclusively or predominately to money damages." Id. (quoting Fed.R.Civ.P. 23(b)(2), advisory committee note (1966)).

A district court considering a motion for Rule 23(b)(2) certification of a claim seeking both injunctive relief and non-incidental monetary damages must "'consider the evidence presented at a class certification hearing and the arguments of counsel,' and then assess whether (b)(2) certification is appropriate in light of 'the relative importance of the remedies sought, given all of the facts and circumstances of the case.'" Id. at 20 (quoting Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001)). A court should allow Rule 23(b)(2) certification where: "(1) the positive weight or value to the plaintiffs of the injunctive or declaratory relief sought is predominant even though compensatory or punitive damages are also claimed, and (2) class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy." Dodge v. County of Orange, 208 F.R.D. 79, 90 (S.D.N.Y. 2002) (quoting Robinson, 267 F.3d at 164). Although deciding whether injunctive or declaratory relief predominates requires an "ad hoc approach" that varies from case to case, in making its determination, the court should, at a minimum, be satisfied with the following:

(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits. Insignificant or sham requests for injunctive relief should not provide cover for (b)(2) certification of claims that are brought essentially for monetary recovery.

Robinson, 267 F.3d at 164.

Here, the injunctive and declaratory relief sought by plaintiffs predominate over the compensatory and punitive damages claimed. It is likely that plaintiffs would have brought this suit even in the absence of the potential for monetary recovery by some plaintiffs, as the class seeks a declaration that the defendants' policy, practice and custom of failing to immediately implement IEPs to New York City preschool children violate federal law. Plaintiffs also seek significant injunctive relief in the form of an order enjoining defendants to immediately implement all the services required by IEPs. If defendants are in fact liable, it would be in plaintiffs' interest to obtain the equitable relief that, if complied with, would halt or prevent the alleged harms arising from the denial of a free appropriate public education.

While plaintiffs do request monetary damages, the positive or qualitative value of the declaratory and injunctive relief they seek overwhelms these requests for damages.⁹ Finally, it would be an extremely inefficient use of judicial resources to try the liability phase of each plaintiff's claims individually.

9 Statutory or constitutional bars also appear to limit the extent to which plaintiffs will ultimately receive monetary damages from all defendants. First, the IDEA does not provide for awards of compensatory or punitive damages, although parents may be reimbursed for cash payments if they unilaterally obtained and paid for special education services to which an IDEA plaintiff was legally entitled. A.A. v. Bd. of Educ., 196 F. Supp.2d 259, 264 (E.D.N.Y. 2002). Second, under Title II of the ADA, money damages against New York State are available only if plaintiffs can show that the state's violation was motivated by either "discriminatory animus or ill will due to disability." Id. at 265 (citingGarcia v. SUNY Health Sci. Ctr., 280 F.3d 98, 112 (2d Cir. 2001)). Punitive damages are also not available on either the Rehabilitation Act or the ADA claim. Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003) (citing Barnes v. Gorman, 536 U.S. 181, 189 (2002)). Finally, § 1983 claims for money damages are also barred against New York State.A.A., 196 F. Supp.2d at 266.

Finally, Mills' incorrectly argues that certification is "unnecessary" in actions where plaintiffs are challenging the policies and practices of governmental officials seeking injunctive or declaratory relief. In fact, Rule 23(b)(2) was "designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a numerous . . . class of persons." In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323, 341 (S.D.N.Y. 2002) (quoting Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994)); Fed.R.Civ.P. 23(b)(2) advisory committee's note (1966). There is also "a long line of cases in the

Second Circuit allowing class actions that seek to enjoin governmental actions." Alexander A., 210 F.R.D. at 34 (citations omitted).

Notwithstanding precedent granting Rule 23(b)(2) certification in actions similar to the instant case, Mills argues that, "where plaintiff is successful in challenging the legality of a policy or practice of a governmental or public official and obtaining injunctive or declaratory relief," class certification is unnecessary because "defendants will provide that relief to all others similarly situated." Mills' Mem. at 28. In making this argument, Mills misrepresents and misapplies Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973) and other cases citing Galvan.

In Galvan, plaintiffs challenged the state industrial commissioner's policy of denying unemployment benefits to persons of Puerto Rican origin who had returned from New York to Puerto Rico. Id. at 1257. In denying plaintiffs' motion for certification pursuant to Rule 23(b)(2), the Second Circuit explained that:

[I]nsofar as the relief sought is prohibitory, an action seeking declaratory or injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative practice is the archetype of one where class action designation is largely a formality at least for the plaintiffs. As we have recently noted . . . what is important in such a case for the plaintiffs . . . is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated. . . .

Id. at 1261. The Second Circuit then observed that, prior to class certification and prior to judgment, the state indicated that it understood the judgment would bind it with respect to all claimants, withdrew the challenged policy, and promised not to reinstate it. Id. Given the state's willingness to comply, class action designation would have been "unnecessary." Id. As discussed below, however, class certification would not be "largely a formality" or "unnecessary" for the instant case.

Courts deciding the necessity of Rule 23(b)(2) certification underGalvan have focused on four factors to determine whether certification would be superfluous. Daniels v. City of New York, 198 F.R.D. 409, 421 (S.D.N.Y. 2001) (citing Blecher v. Dep't of Hous. Pres. and Dev., No. 92 CIV. 8760, 1994 WL 144376, at *4 (S.D.N.Y. Apr. 19, 1994)). First, "an affirmative statement from the government defendant that it will apply any relief across the board militates against the need for class certification." Second, "withdrawal of the challenged action or non-enforcement of the challenged statute militates against the need for class certification." Third, if "the relief sought is merely a declaration that a statute or policy is unconstitutional, denial of class certification is more appropriate than where plaintiffs seek complex, affirmative relief." Fourth, class certification is necessary if plaintiffs' claims are likely to become moot. Daniels, 198 F.R.D. at 421 (quoting Blecher, 1994 WL 144376, at *4-5 (citations omitted)).

Applying all four factors to this case: (1) the defendants have not expressed a willingness to ensure compliance with a ruling for the putative class; (2) defendants are being asked to comply with existing regulations, not to withdraw or discontinue the enforcement of an existing policy; (3) the relief sought is not a declaration that a statute or policy is unconstitutional, but a declaration that defendants are violating existing law, and a mandate for defendants to affirmatively ensure compliance; and (4) the class members' claims are likely to become moot.¹⁰ Given these circumstances, and because plaintiffs allege that defendants, in failing to comply with their statutory duties of timely providing services, have refused to act on grounds generally applicable to them, plaintiffs' class action can be maintained under Rule 23(b)(2).¹¹

10 The remaining cases cited by Mills are inapposite because the defendant either withdrew the challenged policy or it was clear that plaintiffs sought prohibitive relief, which, if granted, would have automatically benefited the proposed class members. See Galvan, 490 F.2d at 1261 (state withdrew challenged policy); Ruiz, 549 F. Supp. at 878 (plaintiffs challenged state and city policy of denying publicly-funded day care to a certain class of children); Denenberg, 93 F.R.D. at 133-34 (plaintiffs challenged state and city policy of applying restrictions on certain classes of Medicaid recipients); Aluminum Co., 67 F.R.D. at 511 (plaintiffs challenged Federal Trade Commission order requiring the filing of certain reports).

11 Since class certification is proper under Rule 23(b)(2), the court need not determine whether plaintiffs have satisfied the requirements of Rule 23(b)(1)(A).

(2) Defendant Richard Mills' Motion to Dismiss

Defendant Mills moves pursuant to Rules 12(b)(1) and (b)(6) to dismiss the amended complaint as to him on the following grounds: (1) the IDEA does not provide for monetary damages, Mills' Mem. at 9-10; (2) the Eleventh Amendment bars plaintiffs' claims for monetary damages against him under § 1983, id. at 10-11; (3) Mills is not liable in his individual capacity for § 1983 monetary damages because he was not personally involved in the provision of special education services, id. at 11-12; (4) plaintiffs have not stated a cause of action under the ADA or the Section 504 of the Rehabilitation Act, id. at 13-14; and (5) the injunctive claims against him require dismissal because implementation of IEPs is the responsibility of the local school districts. Plaintiffs and the City defendants oppose Mills' motion to dismiss. For the following reasons, Mills' motion to dismiss is granted in part and denied in part.

Standard

For both Rule 12(b)(1) and a 12(b)(6) motions to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs' favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). This court may not dismiss the complaint pursuant to either rule unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989). The court must "limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). In this context, a complaint is deemed to include "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing this suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000). Under Rule 12(b)(1), however, this court may consider evidence outside the complaint to determine whether jurisdiction is lacking. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

From the outset, this court notes that Mills' and the City defendants' briefs in support of and opposing this motion to dismiss refer to affidavits previously submitted in response to plaintiffs' class certification and preliminary injunction motions-specifically, the affidavits of Rebecca Cort and Linda Wernikoff. See, e.g., Mills' Mem. at 16-17; Reply Memorandum of Law in Further Support of Defendant Mills' Motion to Dismiss ("Mills' Reply Mem.") at 5; Municipal Defendants' Memorandum of Law in Opposition to State Defendant's Motion to Dismiss ("City Mem. in Opp.") at 3, 6-7. The City defendants' opposition brief also refers the court to various SED publications which are disseminated to school districts throughout the state. City Mem. in Opp. at 6. When a district court is provided with materials beyond the pleadings in a 12(b)(6) motion to dismiss, the court may either: (1) exclude the additional materials and decide the motion on the complaint alone; or (2) convert the motion to a Fed.R.Civ.P. 56 motion for summary judgment and give all parties the opportunity to present supporting material. Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 2001). Because plaintiffs have not filed any material outside their pleadings in response to Mills' motion to dismiss, and because discovery is at a preliminary stage, this motion will not be converted to a summary judgment motion. Accordingly, statements outside the pleadings will not be taken into consideration for purpose of deciding Mills' 12(b)(6) motion.

A. Claims for Monetary Damages Under the IDEA and Section 1983

Defendant Mills first asserts that claims for compensatory and punitive damages under the IDEA should be dismissed against him because the statute does not provide for such awards. Mills' Mem. at 9-10 (citations omitted). Mills further asserts that both the Eleventh Amendment and the doctrine of respondeat superior also bar recovery of monetary damages brought against him in his official capacity under § 1983. Mills' Mem. at 10-12 (citations omitted). Since plaintiffs' reply brief asserts that they are not seeking monetary damages against Mills, see Plaintiffs' Reply Memorandum of Law ("Pls.' Reply Mem.") at 11, these arguments are moot, and all claims for monetary damages under IDEA and § 1983 against Mills are thereby dismissed.¹² B. ADA and Section 504 Claims

12 It should be noted, however, that the Eleventh Amendment does not bar this court from granting prospective injunctive relief against a state official for continuing violations of federal law. Henrietta D. v. Giuliani, 81 F. Supp.2d 425, 430 n. 13 (S.D.N.Y. 2000) (citing Ex Parte Young, 209 U.S. 123 (1908)). Since plaintiffs have sued Mills, the Commissioner of the New York State Education Department, for failing to timely implement preschool IEPs in violation of the IDEA, the ADA, Section 504, and 42 U.S.C. § 1983, the Eleventh Amendment will not bar any federal claims for injunctive relief against him.

Next, Mills asserts that plaintiffs have failed to state a cause of action under either the ADA or Section 504 of the Rehabilitation Act. Mills' Mem. at 13-14. Specifically, Mills claims that plaintiffs' complaint fails to allege that they were treated differently from non-disabled individuals solely because of their disabilities. Id. Plaintiffs respond that they "did not move for a preliminary injunction on the ADA or Section 504 claims." Pls.' Reply Mem. at 10,¹³ but this still leaves an ADA and Section 504 claim for money damages against Mills. Plaintiffs also respond that the Second Circuit's holding inHenrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003), "simply dispose of Mills' argument." Pls.' Reply Mem. at 11. For the reasons set forth below, this court agrees with Mills' contention that plaintiffs cannot allege discrimination by reason of their disabilities and that Henrietta D. is inapposite. Accordingly, plaintiffs' ADA and Section 504 claims against Mills are dismissed. For similar reasons, plaintiffs' ADA and Section 504 claims against the City defendants are also dismissed sua sponte.

13 Although their reply brief states otherwise, plaintiffs' third claim for relief (under the ADA) and their fourth claim for relief (under Section 504 of the Rehabilitation Act) allege that "their right to a free appropriate public education . . . will continue unless defendants are enjoined from their unlawful conduct." Am. Compl. ¶¶ 156, 163 (emphasis added). However, since plaintiffs' briefs with respect to the preliminary injunction motion discuss their likelihood of success as to the IDEA violation only, I assume that plaintiffs do, in fact, intend to move for a preliminary injunction under the IDEA.

1. Reasonable Accommodation

Title II of the ADA and Section 504 of the Rehabilitation Act protect disabled persons from discrimination in the provision of public services. Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002). Title II of the ADA provides that:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.

Section 504 of the Rehabilitation Act similarly provides, in part:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a).

"Apart from the Rehabilitation Act's limitation to denials of benefits 'solely' by reason of disability and its reach of only federally funded-as opposed to 'public'-entities, the reach and requirements of both statutes are precisely the same." Weixel, 287 F.3d at 146 n. 6. See also Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) ("Because Section 504 of the Rehabilitation Act and the ADA impose identical requirements, we consider these claims in tandem."). Thus, where neither difference is significant or relevant to the case at hand, claims under both statutes are treated identically. Henrietta D., 331 F.3d at 272. Because there is no question that defendants are public entities and receive federal funding under both statutes, plaintiffs' claims under the ADA and Section 504 will be analyzed together.

To establish a violation under Title II of the ADA and Section 504 of the Rehabilitation Act, plaintiffs must show that: (1) they have a disability for purposes of the ADA and Section 504; (2) they were otherwise qualified for the benefits that had been denied; and (3) they had been denied the benefit by reason of their disabilities. Weixel, 287 F.3d at 146-47; Henrietta D., 331 F.3d at 272 (citing Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)).

Mills does not contest that plaintiffs are qualified individuals with disabilities or that they were otherwise qualified for the benefits denied them. What Mills contests is that plaintiffs have failed to allege, and cannot allege, that they were denied the opportunity to participate in or benefit from state services, programs or activities, or that they were otherwise discriminated against by reason of their disabilities. Mills' Mem. at 13-14; Mills' Reply Mem. at 8-10. Plaintiffs, without analysis or explanation, respond that the Second Circuit's analysis and holding in Henrietta D. supports their proposition that the failure to timely implement IEPs is a discriminatory failure to reasonably accommodate the disabilities of preschool disabled children under both statutes. Pls.' Reply Mem. at 11. Contrary to plaintiffs' assertions, however, this court finds that Henrietta D. is distinguishable from this case.

In Henrietta D., a class of New York City residents suffering from AIDS and other HIV-related illness sued the city and the state under, inter alia, Title II of the ADA and Section 504 of the Rehabilitation Act. 331 F.3d at 264. Although the city had established the Division of AIDS Services and Income Support ("DASIS") pursuant to N.Y.C. Admin. Code § 21-126, et seq. ("DASIS law") to help HIV-afflicted residents access federal, state and local welfare benefits which were also available to qualifying non-disabled persons, plaintiffs asserted that DASIS had systematically failed to achieve its goals. Id. at 265-66.

Following a bench trial, the district court agreed with plaintiffs' assertions that their illnesses presented unique physical challenges and medical risks which, in turn, created barriers to accessing public assistance benefits and services. Id. at 265, 267. Specifically, the court found that AIDS and HIV-infected persons experience "serious functional limitations that make it extremely difficult . . . to negotiate the complicated City social service system on their own," and "to engage in regular activities of daily life such as traveling, standing in line, attending scheduled appointments, completing paper work and otherwise negotiating medical and social service bureaucracies. . . ."Id. at 267-68. Although DASIS was designed to overcome these barriers by providing the reasonable accommodations sought by plaintiffs, the court found that the agency had generally failed to deliver services which it was required by law to provide. As a result, the court found the city and the state liable to plaintiffs for failing to provide them with meaningful access to critical benefits and services in violation of the ADA and Section 504. Id. at 269.

The city and state defendants appealed, arguing that the facts found by the trial court did not establish any violation of the ADA or Section 504. Id. at 271. Defendants contended that, because plaintiffs had not demonstrated that they were receiving less access to services than non-disabled individuals, plaintiffs had not shown that defendants "denied [them] the benefits of the services, programs or activities of a public entity . . . by reason of their disability," rather than for other reasons that would also affect non-disabled clients-e.g., systemic breakdowns in the social services system. Id. at 272-73 (emphasis in original). Plaintiffs responded that, because of their disabilities, they needed special accommodations to obtain meaningful access to social service benefits that were more readily accessible to the non-disabled. Therefore, a showing of disparate impact was unnecessary; rather, it was sufficient for them to show that reasonable accommodations were not being made. Id. at 273.

The Second Circuit first noted that plaintiffs had advanced a "reasonable accommodation" claim-defined as "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. . . .unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." Id. (citing 42 U.S.C. § 12112(b)(5)(A);Alexander v. Choate, 469 U.S. 287, 300-01 (1985)). Since reasonable accommodation claims "do not expressly rely on a theory of disparate impact," the threshold question was whether the ADA's "concept of discrimination" required plaintiffs to identify "a comparison class of similarly situated individuals given preferential treatment." Id. (quoting Olmstead v. L.C., 527 U.S. 581, 598 (1999) (plurality)). The Second Circuit concluded that it did not. Id.

Following a lengthy analysis of its own cases applying Section 504 of the Rehabilitation Act, the Second Circuit declared that:

our cases speak simply in terms of helping individuals with disabilities access public benefits to which both they and those without disabilities are legally entitled, and to which they would have difficulty obtaining access due to disabilities; the cases do not invite comparisons to the results obtained by individuals without disabilities.

Id. at 274 (emphasis added) (citing Dopico. v. Goldschmidt, 687 F.2d 644, 652 (2d Cir. 1982); Rothschild v. Grottenthaler, 907 F.2d 286, 292-93 (2d Cir. 1990)). In sum, the Second Circuit concluded that "the demonstration that a disability makes it difficult for a plaintiff to access benefits that are available to both those with and without disabilities is sufficient to sustain a claim for reasonable accommodation." Id. at 277 (emphasis added).

Here, plaintiffs allege they have "physical impairments that substantially limit one or more major life activities, including talking, communicating, learning and interacting with others," and that defendants "have failed and will continue to fail to reasonably accommodate the disabilities of . . . the plaintiff class," by not timely providing a free appropriate public education. See Am. Compl. ¶¶ 152, 155, 159, 162. However, plaintiffs' amended complaint fails to allege that they seek access to benefits that a public entity has made available to both disabled and non-disabled children of preschool age. Mills points out that under New York law, the right to a free public education is extended to resident children over the age of five and under twenty-one. N.Y. Educ. Law § 3202(1). By contrast, the putative class is comprised of preschool children with disabilities, which under New York law, are children between the ages of three and five. N.Y. Educ. Law § 4410(1)(i).

Unlike the instant case, the reasonable accommodation claims inHenrietta D. and the other ADA/Section 504 cases cited by the Second Circuit, see 331 F.3d at 273, involve programs or services made available to both disabled and non-disabled persons. In these cases, certain applicants or users were, by reasons of their disability, unable to access or benefit from those programs or services. In Henrietta D., for instance, the Second Circuit found it was sufficient that AIDS- or HIV-afflicted plaintiffs demonstrated a facial entitlement to public benefits which are also available to similarly situated persons without disabilities and that their disabilities necessitated a reasonable accommodation for them to access those benefits. Id. at 280. In Dopico, the Second Circuit recognized that Section 504 at least required "modest, affirmative steps" to accommodate handicapped persons in public transportation systems that are open to all passengers. 687 F.2d at 652. In Rothschild, the Second Circuit also held that Section 504 requires the provision of publicly-funded sign language interpreters so that deaf parents of non-hearing impaired children can participate in education-related conferences and meetings that are open to all parents. 907 F.2d at 289.

Because plaintiffs have failed to allege a necessary element of an ADA/Section 504 reasonable accommodation claim-i.e., that they were denied the opportunity to participate in or benefit from defendants' services, programs, or activities that the defendants have made available to non-disabled preschool children, or were otherwise discriminated against by defendants, by reason of their disabilities-plaintiffs' ADA and Section 504 claims against Mills and the City defendants must be dismissed.

C. IDEA Claims for Injunctive Relief Against Mills

Defendant Mills also moves to dismiss plaintiffs' claims for injunctive relief as against him, claiming that the SED cannot provide appropriate injunctive relief. Mills' Mem. at 14-15. Mills asserts that under the IDEA, his role is only a general, supervisory one, and that the local school districts are actually responsible for implementing IEPs. Id. In opposition, plaintiffs and City defendants assert that the SED is a necessary and proper party to this action, and that Mills' characterization of his duties under IDEA are based on a narrow construction of the statute. Pls.' Reply Mem. at 8; Municipal Defendants' Memorandum of Law in Opposition to State Defendant's Motion to Dismiss ("City Defs.' Opp to Mills") at 4. For the following reasons, this court denies Mills' motion to dismiss claims for injunctive relief against him.

As an initial matter, we note that any injunctive relief against Mills and the City defendants is appropriately based on 42 U.S.C. § 1983, not the IDEA itself. Under the IDEA, "[a]ny party aggrieved" by a final state administrative decision may bring a civil action in a state or federal court. 20 U.S.C. § 1415(i)(2)(A). This provision has been interpreted to mean that "parties seeking to enforce favorable decisions under the IDEA have 'neither the responsibility nor the right to appeal the favorable decision by the local hearing officer since they were not aggrieved by [her] decision.'" A.T., 1998 WL 765371, at *6 (quoting Antkowiak v. Ambach, 838 F.2d 635, 641 (2d Cir. 1988)). Parents of a disabled child may also bring an action for reimbursement of tuition and costs if they enrolled their child in a private school to compensate for a public agency's failure to make a free appropriate education "in a timely manner prior to enrollment." 20 U.S.C. § 1412(10)(C)(ii). Plaintiffs are not seeking any tuition reimbursements, nor are they challenging any state review officer's findings against them. Because they "are before the [c]ourt solely for the purpose of enforcement, [they] cannot be characterized as aggrieved parties under the IDEA."A.T., 1998 WL 765371, at *6. Accordingly, the IDEA is not the proper basis for the injunctive relief which plaintiffs seek.

However, plaintiffs' rights to injunctive relief are still enforceable through 42 U.S.C. § 1983. Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987). This is because § 1983 is a recognized vehicle for addressing violations of federal statutory rights as well as constitutional violations, Chan v. City of New York, 1 F.3d 96, 103 (2d Cir. 1993), and because of Congress's express intent to include § 1983 within the range of available rights and remedies for IDEA violations. Mrs. W., 832 F.2d at 755 (citing 20 U.S.C. § 1415(f) (recodified as 20 U.S.C.

§ 1415(1))). See also Blazejewski v. Bd. of Educ., 599 F. Supp. 975, 979 (W.D.N.Y. 1985) ("Congress limited relief under [§ 1415(i)(2)(A)] only to parties who are aggrieved at the administrative level. If Congress saw a need to extend to extend the scope of [§ 1415(i)(2)(A)], it could have easily done so. Congress did not need to do so, because section 1983 is available to remedy deprivations of statutory rights."). Thus, plaintiffs may seek to enforce their IDEA claim under § 1983.

Secondly, we also note that a § 1983 claim that seeks relief available under the IDEA must first exhaust all administrative remedies by obtaining adverse decisions at the state and local level. Polera v. Bd. of Educ., 288 F.3d 478, 487 (2d Cir. 2002); Adrian R. v. New York City Bd. of Educ., 99 Civ. 9064, 2001 U.S. Dist. LEXIS 15616, at *5 (S.D.N.Y. Oct. 2, 2001) (citing 20 U.S.C. § 1415(i)(2)).

However, exhaustion is not required if the claim falls within any of the following three exceptions:

(1) it would be fufile to use the due process procedures . . .; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies (e.g., the hearing officer lacks the authority to grant the relief sought). . . .

Mrs. W., 832 F.2d at 756. Plaintiffs have the burden of showing that the futility exception applies. Polera, 288 F.3d at 489 n. 8.

Plaintiffs argue, and defendants do not contest, that this exception applies in class action litigation alleging "a practice of systemic [IDEA] violations," because "a due process hearing officer lacks the authority to effectuate class action and system-wide relief." Pls.' Class Cert. Mem. at 19 (quoting Mrs. W., 832 F.2d at 756-57)). Taking into account plaintiffs' request for class-wide relief, and the fact that defendants failed to immediately implement the IEPs of two of the three named plaintiffs despite orders from the impartial hearing officers who heard their cases, see Am. Compl. ¶¶ 74-75, 103, administrative exhaustion would be fufile under the circumstances.

Having waived the administrative exhaustion requirement, we turn to the merits of Mills' argument that any injunctive claims under the IDEA should be dismissed as to him. For the following reasons, this court disagrees with Mills' characterization of his role under the IDEA and denies his motion to dismiss.

Under the IDEA, any state receiving federal funds is entrusted with "general supervisory responsibilities" and must have policies and procedures to ensure, among other things, that it provides a free appropriate public education to all children with disabilities in the state. 20 U.S.C. § 1412 (a). By placing such supervisory responsibilities in the hands of the "state educational agency," Congress intended to insure the following:

Without this requirement, there is an abdication of responsibility for the education of handicapped children. Presently, in many states, responsibility is divided, depending upon the age of the handicapped child, sources of funding, and types of services delivered. While the Committee understands that different agencies may, in fact, deliver services, the responsibility must remain in a central agency overseeing the education of handicapped children, so that failure to deliver services or the violation of the rights of handicapped children is squarely the responsibility of one agency.

S. Rep. No. 94-168, at 24 (1975) (quoted in Garrity v. Gallen, 522 F. Supp. 171, 235 (D.N.H. 1981)). The state also has the power to allocate IDEA funds towards supporting and directing personnel development and training, assisting local educational agencies in meeting personnel shortages, and making sub-grants to local educational agencies to help them provide direct services and "in making systemic change to improve results for children with disabilities. . . ." 20 U.S.C. § 1411(f)(3), (f)(4)(A). Under the New York implementing statutes, the state education commissioner is also responsible for, among other things, approving and re-approving applications to provide special preschool services and to expand existing preschool programs, establishing tuition rates for approved preschool services or programs, reimbursing school districts for administrative costs associated with IDEA implementation, and setting regional cost ceilings on transportation costs per student. See N.Y. Educ. Law § 4410.

Given the broad statutory supervisory responsibilities accorded to state educational agencies, in cases such as this where plaintiffs have alleged systemic violations of IDEA, courts have found that the state is a proper party to the action. See, e.g., Adams v. Sch. Bd. of Anoka-Hennepin Indep. Sch. Dist. No. 11, No. Civ. 02-991, 2002 WL 31571207, at *2 (D. Minn. Nov. 18, 2002) ("A state education agency is only a proper party if an action involves claims of 'systemic' violations of the IDEA."); S.C. v. Deptford Township Bd. of Educ., 213 F. Supp.2d 452, 466 (D.N.J. 2002) ("Traditionally . . . the IDEA has been interpreted to require a 'single line of responsibility,' with the buck stopping at the desk of the state educational agency.");Fetto v. Sergi, 181 F. Supp.2d 53, 72 (D. Conn. 2001) ("The state education agency is a proper party to actions involving claims of systemic violations of the IDEA."); Corey H. v. Bd. of Educ., 995 F. Supp. 900, 910 (N.D. Ill. 1998) (finding, after trial against the Illinois State Board of Education, that the state was liable for failing to "perform its monitoring and enforcement function" under the IDEA);Gadsby v. Grasmick, 109 F.3d 940, 953 (4th Cir. 1997) (holding that the state educational agency "is ultimately responsible for the provision of a free appropriate public education to all of its students and may be held liable for the state's failure to assure compliance with IDEA.");Jose P. v. Ambach, 669 F.2d 865, 870-71 (2d Cir. 1982) (holding that the state educational agency could be held responsible for supervisory failures in violation of § 1412(6) of the Education of All Handicapped Children Act, the precursor to the IDEA).

Here, plaintiffs allege that Mills, as the Commissioner of the SED, "has the power and duty to perform any duty imposed upon the SED, including the operation of all special education programs and services." Am. Compl. ¶ 16. Plaintiffs further allege that: Mills acted under color of law and in his capacity as an SED agent, servant, and employee within the relevant time period; SED receives federal funds under the IDEA; and SED is required by the IDEA to ensure the administration of special education and related services to all disabled children between the ages of three and twenty-one who reside within the state. Id. Plaintiffs further allege that, at the time the amended complaint was filed, over 500 preschool children within the jurisdiction of the NYCDOE and the SED were not receiving the full services required by their IEPs. Id. ¶ 24. This "pervasive and blatant violation of federal law" was, among other things, due to the NYCDOE and the SED's failure to place preschool children in appropriate schools, the SED's failure to certify a sufficient number of schools, and the city and state's failure to certify and/or provide sufficient providers of educational services. Id. ¶ 41. This practice of failing to implement IEPs is "persistent and widespread." Id. ¶ 42. In sum, plaintiffs allege a systemic violation of the IDEA that is supposedly, in part, due to the SED's failure to exercise its supervisory and other responsibilities under the statute. Accepting plaintiffs' allegations as true, plaintiffs have stated a claim against Mills upon which relief can be granted.

In his defense, Mills cites several cases where the SED and its commissioner were dismissed from IDEA actions, see Mills' Mem. at 15-16; Mills' Reply Mem. at 4, but these cases do not support the proposition that, as a matter of law, the state can never be liable for systemic violations of the IDEA. What distinguishes these cases is that the court either found no allegations of systemic IDEA violations, or found that the local board of education could provide complete relief. See Adrian R., 2001 U.S. Dist. LEXIS 15616, at *2-3 (dismissing IDEA claim against state defendants where parents challenged practice of placing disabled children in resource rooms with inappropriate high student-teacher ratios, since city defendants were capable of providing requested relief); Yamen v. Bd. of Educ., 909 F. Supp. 207, 210-11 (S.D.N.Y. 1996) (dismissing IDEA claim for reimbursement of student's tuition against the SED and its commissioner because the complaint did not allege systemic violations of federal and state law). Additionally, A.A. v. Board of Education (cited in Mills' Mem. at 15-16) is also distinguishable because the court dismissed IDEA claims against state education officials only after plaintiff had settled its claims against the local school district, and after a bench trial with extensive findings of fact regarding the measures the state took or could have taken in monitoring the local district's compliance with IDEA. 255 F. Supp.2d 119, 124-29 (E.D.N.Y. 2003).

Reading the amended complaint in the light most favorable to plaintiffs, and taking into account the SED's supervisory role and other responsibilities under federal and state law, it cannot be determined at this juncture whether plaintiffs, if successful, can attain the relief they seek without the state's participation. As a result, Mills' motion to dismiss plaintiffs' claims to compel enforcement of the IDEA is denied.

(3) Motion for Preliminary Injunction

"[A] preliminary injunction is an extraordinary remedy that should not be granted as a routine matter." JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990).

To prevail on a motion for a preliminary injunction, a plaintiff ordinarily must demonstrate: (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) "sufficiently serious questions" on the merits and a balance of hardships "tipping decidedly" in the movant's favor. Brooks v. Giuliani, 84 F.3d 1454, 1462 (2d Cir. 1996) (quoting Jackson Dairy, Inc. v. H.P. Hood Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). However, a party moving for a mandatory injunction which alters the status quo by commanding some positive act must meet a higher standard. Tom Doherty Assoc., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-35 (2d Cir. 1995). To obtain a mandatory injunction, the moving party must demonstrate a clear or substantial likelihood of success on the merits, or that it will suffer extreme or very serious damage if denied preliminary relief. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996); Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985).

Because plaintiffs seek a mandatory injunction-i.e., an injunctive order which alters the status quo with a positive act-the heightened standard will apply. Plaintiffs concede and defendants acquiesce in the application of the heightened standard. Pls.' Prelim. Inj. Mem. at 11; City Mem. at 11; Mills' Mem. at 18-19.

A. Irreparable Harm

A showing of irreparable harm is the "single most important prerequisite for the issuance of a preliminary injunction." Brown v. Guiliani, 158 F.R.D. 251, 264 (E.D.N.Y. 1994) (quoting Bell and Howell v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). Before the other requirements for a preliminary injunction will be considered, the movant must show that injury is likely. Id. "Irreparable harm must be shown to be imminent, not remote or speculative, and the injury must be such that it cannot be fully remedied by monetary damages." Brown, 158 F.R.D. at 264 (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)).

In this case, plaintiffs argue that further developmental delays or damages resulting from their failure to timely receive educational services constitute irreparable harm. Pls.' Prelim. Inj. Mem. at 12. In opposition, defendants contend that since this case was filed, all named plaintiffs and at least two-thirds of preschoolers on NYDOE waiting list have received the services in their IEPs. See Municipal Defendants' Memorandum of Law in Opposition to Plaintiffs' Motions for a Preliminary Injunction and Class Certification ("City Reply Mem.") at 9; Mills' Mem. at 20. Defendants also argue that members of the putative class will not suffer irreparable harm because the NYCDOE provides preschool special education services to "nearly all eligible preschool children" as recommended by their IEPs. City Reply Mem. at 10.

Plaintiffs' assertion of irreparable harm finds support in cases holding that the deprivation of mandated educational services will result in irreparable harm. See, e.g., A.T. v. New York State Educ. Dep't, No. 98-CV-4166, 1998 WL 765371, at *10 (E.D.N.Y. Aug. 4, 1998) (holding that child who was denied a free and appropriate public education under the IDEA was suffering actual and imminent harm); Borough of Palmyra Bd. of Educ. v. F.C., 2 F. Supp.2d 637, 645 (D.N.J. 1998) (holding that loss of appropriate education for child with Attention Deficit Disorder would constitute irreparable harm); J.B. v. Killingly Bd. of Educ., 990 F. Supp. 57, 72 (D. Conn. 1997) (holding that continued denial of a free appropriate public education satisfied irreparable harm element). Moreover, any developmental delays suffered as a result of further placement delays cannot be fully remedied by monetary damages. Defendants' arguments in opposition to a finding of irreparable harm are without merit. That other preschool children outside the putative class are not being harmed is irrelevant, as the alleged irreparable harm is being suffered by members of the plaintiff class who are not receiving services in a timely manner. Plaintiffs have, therefore, satisfied the first prong of the preliminary injunction test.

B. Substantial Likelihood of Success on the Merits

Although plaintiffs have shown that they would suffer irreparable harm without an injunction, they have not satisfied the second part of the preliminary injunction test-i.e., a clear or substantial likelihood of success on the merits.

Though neither party raises this point, it should be noted that the IDEA contains a provision permitting the Secretary of Education to withhold federal funds if it finds "that there has been a failure by the State to comply substantially with any provision of this subchapter." 20 U.S.C. § 1416(a); 34 C.F.R. § 300.587(a)(1). Additionally, under 20 U.S.C. § 1234c, the Department of Education is authorized to take certain measures against a state if it determines that a recipient "is failing to comply substantially with any requirement of law applicable" to the federal program funds administered by that agency. Other federal welfare and Medicaid statutes also provide that federal funding may be withheld if the state has failed "substantially" to comply with federal standards.See, e.g., 42 U.S.C. § 609(a)(8) (Title IV-D of the Social Security Act); 42 U.S.C. § 671(b) (amended 1994) (Adoption Assistance and Child Welfare Act); 42 U.S.C.

§ 1396c (Medicaid Act).

Courts in this and other circuits have construed these provisions to mean that a state cannot be held to a standard higher than "substantial compliance" when applicants or recipients seek an injunction to mandate full enforcement of these statutes. See Karen L. v. Health Net, 267 F. Supp.2d 184, 192 (D. Conn. 2003), aff'd, No. 03-7656, 2003 WL 22429040 (2d Cir. Oct. 24, 2003) (holding that federal Medicaid law requires "something less than total and absolute compliance" due to statutory authorization for Secretary of Health and Human Services to cease payments to a state if, inter alia, 'there is a failure to comply substantially with any such provision [of 42 U.S.C. § 1396a].'"); Roberta G. v. Perales, No. 90 CIV 3485, 1992 WL 320469, at *4 (S.D.N.Y. Oct. 23, 1992) (despite defendants' failure to achieve "100% compliance with literal requirements of the statute and regulations . . . acceptance of less than 100% compliance [was] reasonable and not unfair to class members."); Moore v. Perales, 692 F. Supp. 137, 144-45 (E.D.N.Y. 1988) (denying injunction directing state and local welfare authorities to timely issue decisions regarding AFDC benefits because defendants' level of compliance under "substantial compliance" standard was unclear); Shands v. Tull, 602 F.2d 1156, 1160 (3d Cir. 1979) (holding that "substantial compliance" provisions "show an implied intent to hold the states to a standard of substantial compliance and thus to make some allowance for the difficulties of administering an extensive bureaucracy."). See also Blessing v. Freestone, 520 U.S. 329, 343 (1997) (noting, in dicta, that the "substantial compliance" provision in Title IV-D of the Social Security Act requires the Secretary of Health and Human Services to "examine aggregate services provided by the state, not to whether the needs of any particular person have been met."). But see Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir. 1991) (holding that, in claim involving state's failure to issue timely decisions involving welfare benefits, "[i]mpossibility of perfect compliance . . . does not preclude an injunction requiring compliance with the regulations when a pattern of non-compliance has been shown to have existed.")

Although the IDEA and the accompanying regulations do not appear to contain objective criteria for what constitutes "substantial compliance," at a minimum, § 1416(a) and the above cases raise some question as to whether defendants can be held to an absolute standard of timely providing services to 100% of preschool children with IEPs. See Pls.' Reply Mem. at 6-7. In addition, assuming that "substantial compliance" with IDEA is legally sufficient, as the record now stands, it is uncertain whether the defendants' rate of timely placing 97% to 99% of preschool children with IEPs fails to meet that standard.

The causes underlying defendants' pattern of delay are not clear from the present record. Neither party has proffered sufficient evidence for the court to infer that the delays are due to defendants' inexcusable failure to properly ascertain and make adequate preparations or provisions for preschool services, or whether unforeseen circumstances or structural problems beyond the defendants' control contributed to these delays.

On the one hand, defendants' briefs and statements made at oral argument suggest that, in some cases, IEP implementation was delayed because a parent refused to accept proposed placements or otherwise cooperate with local education officials. See 3/24/04 Tr. at 21-22. Defendants also claim that the largest number of children under the PN lists are waiting for related services-a problem that allegedly reflects a national shortage of related service providers. Wernikoff Decl. ¶ 35. Additionally, the SED asserts that any delays in processing applications to provide special education services are caused by incomplete or inaccurate applications, or by applicants who were unable or unwilling to meet minimal building safety, licensing, staff and programs requirements that are a precondition to receiving state approval. Cort Aff. ¶¶ 11, 14.

Defendants further claim that injunctive relief is unwarranted because they have embarked on a number of initiatives to project future needs and increase preschool special education services. For example, to better project the number of classroom spaces and related service providers that will be needed in the coming school year, NYCDOE is collaborating with the State Department of Health in monitoring the number of children who will make the transition from Early Intervention to preschool. Wernikoff Decl. ¶ 20. City defendants have also developed a coding system to track other referral sources besides Early Intervention to better evaluate the number of children who will transition to preschool at different times of the year. Id. ¶ 21. SED, in collaboration with the NYCDOE and the State Department of Health, is also investigating the possibility of encouraging parents to retain their children in Early Intervention services to the maximum extent permitted by state law. Cort Aff. ¶ 22.

To meet the need for more providers, City defendants further assert they are making "continual efforts" to locate additional independent related service providers and to fund scholarship programs to encourage students to enter related service fields. Wernikoff Decl.

¶¶ 25-26. SED is also working closely with NYCDOE on plans for retaining existing special education teachers and recruiting new teachers for disabled preschool children. Cort Aff. ¶ 18. SED has also developed procedures to allow the expansion of existing programs by instituting a procedure to waive statutory requirements for maximum class sizes and by holding periodic meetings with service providers to identify obstacles to the delivery of services. Id. ¶ 29. Additionally, SED asserts that it is promoting the integration of preschool children with disabilities through the use of Universal Prekindergarten programs, thereby increasing available educational placements. Id. ¶ 26.

All these assertions or claims raise open questions as to what constitutes an acceptable level of compliance, whether extrinsic factors contributed to the delays, and whether defendants' efforts are the best they can expend under the circumstances and would, therefore, militate against a finding that plaintiffs have shown a clear or substantial likelihood of success. However, if all these assertions or claims are true, this does not mean plaintiffs cannot prevail on their IDEA claim, for the fact remains that, at any given time of the year, 1% to 3% of eligible preschool children in New York City are still not receiving services in a timely manner. As some of the parties have alluded, it may well be that defendants have failed to utilize every resource or alternative available to them.¹⁴ In any event, these issues cannot be resolved on the basis of the present record; further inquiry is needed to substantiate the factors affecting defendants' placement times and the adequacy of their present efforts and to identify possible remedies. Accordingly, plaintiffs' motion for a preliminary injunction is denied.

14 Some alternative measures raised at oral argument included paying private agencies to arrange for additional personnel to be available during those times of the year when the demand for related services is highest, see 3/24/04 Tr. at 51, or modifying the state's funding structure in such a way that private preschools have an incentive to reserve seats for certain times of the year. See id. at 27-28; Wernikoff Decl. ¶ 6

Conclusion

For the foregoing reasons, plaintiffs' motion for class certification under Rule 23(b)(2) is granted, and the following class definition is adopted: "All present and future New York City preschool children with IEPs who have not or will not timely receive all of the services required by their IEPs."

Defendant Mills' motion to dismiss all claims for monetary damages under the IDEA and 42 U.S.C. § 1983 against him is granted, his motion to dismiss the ADA and Section 504 claims against him is granted, and his motion to dismiss the claims for injunctive relief against him pursuant to 42 U.S.C. § 1983 is denied.

The ADA and Section 504 claims against the City defendants are dismissed.

Plaintiffs' motion for a preliminary injunction is denied.

SO ORDERED.