L.V. v. New York City Department of Education
- Analisa Torres
- 1:19-cv-05451
- U.S. District Court · Southern District of New York
- 2
In L.V. v. New York City Department of Education, Judge Torres granted in part and denied in part L.V.’s preliminary-injunction motion.
L.V., her minor child J.V.2, the New York City Department of Education, and the providers of J.V.2’s educational and related services.
What happened
L.V. sought an emergency order requiring the New York City Department of Education to follow an education officer’s September 2019 order concerning services for her minor child, J.V.2.
The court found that the September 2019 order required in-person services and that the Department had not adequately shown that computer-based services were an acceptable substitute during the COVID-19 pandemic. The court ordered in-person services when safely possible, an assistive-technology evaluation, and related steps, but denied L.V.’s request to create a fund for her to pay service providers directly.
Judge Analisa Torres adopted the report and recommendation in full and granted in part and denied in part L.V.’s motion for a preliminary injunction.
The detailed version
- L.V. v. New York City Department of Education · No. 1:19-cv-05451
- Analisa Torres
- July 17, 2020
Background
L.V., acting for herself and her minor child, J.V.2, moved for a preliminary injunction under the Individuals with Disabilities Education Act’s “stay-put” provision and Rule 65 of the Federal Rules of Civil Procedure. The court referred the motion to Magistrate Judge Katharine H. Parker for a report and recommendation.
Judge Parker recommended granting the motion in part and denying it in part. Although parties ordinarily have 14 days to object to such a recommendation, Judge Parker allowed five days because of the emergency relief requested. No party filed objections. Judge Torres therefore reviewed the recommendation for clear error, found none, and adopted it in its entirety.
September 2019 pendency order
The court found that an impartial hearing officer had issued three orders concerning J.V.2’s education during 2018 and 2019. The September 6, 2019 order remained in force and constituted J.V.2’s current educational placement under the Individuals with Disabilities Education Act.
That order required:
- Ten hours per week of one-to-one applied behavior analysis therapy; - Three 45-minute individual occupational-therapy sessions per week; - Four 45-minute individual speech-and-language-therapy sessions per week; - Three 45-minute individual physical-therapy sessions per week; - Door-to-door transportation to and from special-education instruction and related services; - A trained transportation aide to supervise J.V.2 during transportation to services provided outside the home; and - Prompt payment of providers within 30 days after the Department received monthly invoices.
Court’s ruling
The court held that the September 2019 order contemplated in-person services. It also held that the Department had not adequately explained how computer-based services were a satisfactory substitute during the COVID-19 pandemic or evaluated how remote services could meet J.V.2’s individual needs.
The court granted the request to enforce the September 2019 order. It ordered the Department to:
- Provide the required in-person services to the extent they could be performed safely during the pandemic and in compliance with health-authority guidance;
- Use qualified service providers identified by L.V. who were willing to provide in-person services and accept Department rates, or find other qualified providers willing to do so; and
- Immediately conduct an independent assistive-technology evaluation to assess J.V.2’s needs and the software required for remote services when particular services could not be provided in person.
The order also required L.V. to provide the Department with the names of service providers willing to provide in-person services. The order was to remain effective during the 2020–2021 school year, until final judgment, or until further order of the court.
The court denied L.V.’s request for an order requiring the Department to establish a fund from which she could directly pay for services. Overall, the preliminary-injunction motion was granted in part and denied in part. Judge Analisa Torres directed the Clerk of Court to terminate the motion.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.