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Mr. and Mrs. A, O/B/O D.A v. New York

February 1, 2011

MR. AND MRS. A, O/B/O D.A.,
PLAINTIFFS,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION,
AND JOEL KLEIN, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE NEW YORK CITY SCHOOL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

MEMORANDUM OPINION & ORDER

This case presents the following question of first impression:

When a child with disabilities has been denied a free and appropriate public education; and the child's parents have enrolled the child in an appropriate private school; and the equities favor an award of the costs of private school tuition; but the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so; does this Court's authority under Section 1415(i)(2)(C)(iii) of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1415 (i)(2)(C)(iii), "to grant such relief as the court determines is appropriate," include the power to order a school district to make a retroactive tuition payment directly to the private school? The New York City Department of Education and its Chancellor, defendants herein, contend that IDEA grants courts no such authority, arguing that the private school tuition remedy is available only to parents with the financial means to pay -- in the first instance -- private school tuition out-of-pocket. This Court concludes that imposing such a limitation on this remedy is inconsistent with the statutory language and with Supreme Court jurisprudence interpreting IDEA, and would be entirely antithetical to Congress's clearly expressed legislative intent and purpose in enacting IDEA.

In this action, Plaintiffs seek funding under IDEA for their son D.A.'s tuition at the Rebecca School for the 2007-08 school year. In state administrative proceedings, an impartial hearing officer ("IHO") found that (1) Defendants had failed to provide D.A., who has autism, with a free appropriate public education ("FAPE") for the 2007-08 school year; (2) the Rebecca School -- where his parents unilaterally enrolled him -- was an appropriate placement for D.A.; and (3) equitable considerations favor an award of tuition funding. (IHO Dec. 23-27) Consistent with the principles articulated by the Supreme Court in Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359 (1985) and its progeny, the IHO directed the New York City Department of Education ("DOE") to pay D.A.'s tuition balance for the 2007-08 school year, upon submission of appropriate documentation. (IHO Dec. 27)

On DOE's appeal, a state review officer ("SRO") affirmed the IHO's determinations as to all three prongs of the Burlington test, but "annulled" the IHO's determination as to the tuition remedy, concluding that because the parents had not been able to pay D.A.'s tuition at the Rebecca School out-of-pocket, they "are not entitled to funding of the student's tuition." (SRO Dec. 8) Plaintiffs then filed this action seeking to overturn the SRO's determination.

The parties have cross-moved for summary judgment.*fn1 Plaintiffs argue that this Court should overturn the SRO's determination that the private school tuition remedy is unavailable where parents have not paid the tuition out-of-pocket. Defendants contend that the IHO and SRO erred in determining that Plaintiffs had satisfied all three elements of the Burlington test, but that the SRO's determination as to the unavailability of the private school tuition remedy should be upheld. For the reasons stated below, Plaintiffs' motion for summary judgment (Docket No. 31) will be GRANTED and Defendants' motion for summary judgment (Docket No. 27) will be DENIED.

I.STATUTORY BACKGROUND

"Congress enacted the IDEA to promote the education of children with disabilities, 'to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs [and prepare them for further education, employment, and independent living, and] . . . to ensure that the rights of children with disabilities and parents of such children are protected.'" Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006) (quoting 20 U.S.C. § 1400(d)(1)(A), (B) and citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367 (1985)). "Under the IDEA, 'states receiving federal funds are required to provide "all children with disabilities" a "free appropriate public education."'" R.R. ex rel. M.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 287 (S.D.N.Y. 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (quoting IDEA, 20 U.S.C. § 1400(d)(1)(A))).

A school district administers special education services through the development of an "individualized education program" ("IEP") for each child with disabilities. 20 U.S.C. § 1414(d). In New York, local committees on special education ("CSE") are responsible for determining whether a child should be classified as eligible for educational services under IDEA and, if so, for developing an appropriate IEP for that child. Walczak v. Florida Union Free School Dist., 142 F.3d 119, 123 (2d Cir. 1998) (citing Heldman v. Sobol, 962 F.2d 152 (2d Cir. 1992)). "An IEP must state" (1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

Parents who believe that their school district has failed to provide their child with a FAPE -- due to an inadequate IEP or otherwise -- may file a complaint with the state educational agency and request an impartial due process hearing before a hearing officer. Id. (citing 20 U.S.C. § 1415(b)(1)(E); see also N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 473 F. Supp. 2d 532, 535 (S.D.N.Y. 2007), aff'd, 300 F. App'x 11 (2d Cir. 2008). An IHO's decision may be appealed to an SRO, "after which any party still aggrieved may sue in either state or federal court." Id. (citing 20 U.S.C. § 1415(e)(2)).

Id. at 122.

It is well settled that parents pursuing an administrative challenge "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo, 489 F.3d at 111 (citing Burlington, 471 U.S. at 370). Such reimbursement covers "'expenses that [the school district] should have paid all along.'" T.P. ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (quoting Burlington, 471 U.S. at 370-71). Courts considering a reimbursement request for the cost of private special education services must consider (1) whether "the school district [has] fail[ed] to provide a FAPE"; (2) whether "the private school placement is appropriate"; and (3) whether the "equities" warrant a reimbursement award in full or in part. Forest Grove School Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009); see also Frank G., 459 F.3d at 363-64. Parents bear the burden of persuasion as to each element of a claim for reimbursement. Schaffer v. Weast, 546 U.S. 49 (2005).

Here, however, the parent-plaintiffs were unable to make more than a nominal payment towards the $84,900 annual tuition at the school in which they unilaterally enrolled D.A. Accordingly, Plaintiffs do not seek reimbursement of their out-of-pocket expenses, but rather retroactive direct payment to the Rebecca School for tuition associated with the 2007-08 school year.

II.ADMINISTRATIVE PROCEEDINGS

In a letter to DOE dated May 22, 2008, D.A.'s parents requested an impartial hearing. The parents contended that the CSE had failed to provide D.A. with a FAPE in that it had not issued "an appropriate IEP and a timely placement recommendation for the 2007-08 school year." (Parents Ex. A) Plaintiffs' counsel stated that the parents sought "[f]unding for unilateral placement at the Rebecca School for the 2007-2008 school year." (Id.)

The impartial hearing commenced on September 18, 2008. (Transcript of Proceedings before Impartial Hearing Officer ("Tr.") at 4) Plaintiffs' counsel began the proceedings by stating that Plaintiffs sought "prospective funding" for D.A.'s placement at the Rebecca School. (Tr. 6) When asked whether Plaintiffs were seeking "any other remedy" in addition to "prospective payment of tuition," Plaintiffs' counsel said "No."*fn2

(Tr. 12)

A.The Evidence at the Impartial Hearing

During the 2007-08 school year, D.A. was a 14-year-old New York City resident suffering from, inter alia, autism, Asperger's Syndrome, bipolar disorder, and attention deficit hyperactivity disorder. (Def. R. 56.1 Stmt. ¶¶ 1-2; Pltf. R. 56.1 Counter-Stmt ¶¶ 1-2; Tr. 97; DOE Ex. 2 at 1) There is no dispute that D.A. is eligible for special education services. (SRO Dec. 1; Def. R. 56.1 Stmt. ¶ 4)

D.A. attended public school from kindergarten through third grade (Def. R. 56.1 Stmt. ¶ 5; Pltf. R. 56.1 Counter-Stmt. ¶ 5), and -- pursuant to an IEP developed by a CSE -- attended the Andrus-Orchard School, a private school approved by the New York State DOE, for grades four through six. (Tr. 319) For D.A.'s seventh grade year -- 2006-07 -- his parents enrolled him in the Rebecca School, a private school that has not been approved by the New York State DOE.*fn3 (SRO Dec. 2)

1.Development of D.A.'s IEP for 2007-08

On August 10, 2007, a CSE met to develop D.A.'s IEP for 2007-08, his eighth-grade year. The CSE consisted of his parents, a DOE general education teacher, a DOE special education teacher, a DOE school psychologist and private school funding coordinator, a second DOE psychologist, a DOE social worker, D.A.'s Rebecca School special education teacher, D.A.'s Rebecca School social worker, and a parent member. (Def. R. 56.1 Stmt. ¶ 10; Pltf. R. 56.1 Counter-Stmt. ¶ 10; SRO Dec. 3)

In developing an IEP, the CSE considered, inter alia, an August 2007 evaluation by one of D.A.'s teachers at the Rebecca School, an Educational Update from May 2007 that included the Woodcock-Johnson test of achievement, and an updated "psycho-educational evaluation" from August 2, 2007. (Def. R. 56.1 Stmt. ¶ 13; Pltf. R. 56.1 Counter-Stmt. ¶ 13) The psycho-educational report states that D.A. "continues to demonstrate significant delays in his academic achievement." He was performing at a third grade level in reading and at a second grade level in math, and had made "'negligible improvement'" over the past year. (SRO Dec. 3 (quoting DOE Ex. 2)) The CSE discussed a number of problem areas for D.A., including the social use of language, comprehension of written materials, spelling, visual perceptual skills, the reading of social cues, working memory, and frustration management. (Def. R. 56.1 Stmt. ¶ 24; Pltf. R. 56.1 Counter-Stmt. ¶ 24; Tr. 25) The IEP developed by the CSE set goals for improvement in each of these areas, with objectives to be achieved by the middle of the 2007-08 school year and by the 2008 IEP meeting. (DOE Ex. 1 at 21-35)

In order to achieve the goals set forth in the IEP, the CSE recommended that D.A. be educated in a 12-month program at a non-public school. (Def. R. 56.1 Stmt. ¶ 12; Pltf. R. 56.1 Counter-Stmt. ¶ 12) The CSE also recommended a 6:1:1 student-to-teacher-to-paraprofessional ratio in D.A.'s classroom, two sessions of counseling per week, two sessions of occupational therapy per week, and two sessions of speech and language therapy per week. (DOE Ex. 1 at 1; Def. R. 56.1 Stmt. ¶ 14; Pltf. R. 56.1 Counter-Stmt. ¶ 14)

2.The CSE Defers Placement Decision to the CBST

The CSE discussed D.A.'s progress at the Rebecca School over the past year, and whether the Rebecca School should be his permanent placement. The evidence on this point was mixed. The Woodcock-Johnson standardized test indicated that, during his year at the Rebecca School, D.A. had improved by two grade levels in "word attack," 1.1 grade levels in spelling, and 0.8 grade levels in his letter-word identification. (DOE Ex. 4 at 3) However, the test also showed a 0.2 grade level decline in reading comprehension skills. (DOE Ex. 4 at 3) DOE school psychologist/private school funding coordinator Linda Lope, a member of the CSE, concluded that D.A. had made "minimal progress" during his year at the Rebecca School. Lope conceded, however, that given the extremely low levels of achievement D.A. exhibited when he entered the Rebecca School -- third percentile in reading and first percentile in math -- D.A. made the level of progress that would be expected during his year at the Rebecca School. (Tr. 27, 36)

Despite the approaching onset of the 2007-08 school year, the CSE reached no conclusion as to an appropriate placement for D.A. Instead, "[t]he CSE deferred the placement decision to the Central Based Support Team (CBST) to determine an appropriate placement for the 2007-08 school year." (SRO Dec. 4; see also DOE Ex. 1; Def. R. 56.1 Stmt. ¶ 29; Pltf. R. 56.1 Counter-Stmt. ¶ 29; Tr. 381) When a "CSE refers a case to [the CBST] for private school placement, it's because a child has special needs which require a high student/teacher class ratio, or a highly trained staff." (Tr. 371) The CBST approves funding for a student's private school tuition and forwards the student's file to potentially appropriate private schools. Each case referred to the CBST has a "case manager" who is charged with updating parents concerning the placement process and the search for a suitable school. (Tr. 366-67; IHO Dec. 21) D.A.'s parents testified, however, that they were never contacted by CBST personnel after the CSE meeting.*fn4 (Tr. 315-16, 183)

When a CSE has determined that a child is entitled to special education services but has not selected a specific placement, it generally "make[s] an interim placement prior to finding an appropriate private school." (Tr. 375) Here, however, the CSE "did not make an interim program recommendation" for D.A (Tr. 377; see also Tr. 377-78), because -- according to Lope -- "the parent was not going to accept it." (Tr. 376; see also Def. R. 56.1 Stmt. ¶¶ 30-31) Lope testified that no interim program placement was offered, because "it was quite clear to the team that the parent was placing the child back in the Rebecca School." (Tr. 375)

The parents deny Lope's account (Pltf. R. 56.1 Counter-Stmt. ¶¶ 30-31), noting that it is undisputed that no placement of any sort was offered to D.A. at the CSE meeting. See Tr. 376-78, 185-87, 313. Mrs. A testified that she pointed out to the CSE at the meeting that it was then August 10, and asked "where are we putting him in September? . . . What am I going to do?" According to Mrs. A, Lope replied that the parents should "put [D.A.] in Rebecca and fight for funding next year."*fn5 (Tr. 313) Mr. A likewise testified that his understanding, after the CSE meeting, was that "D.A. "should return to the Rebecca School until an . . . approved, non-public school could be found." (Tr. 185) The parents further testified that they delayed formally enrolling D.A. at the Rebecca School until several weeks into the school year, and that they had no desire to "take on the debt" of tuition at the Rebecca School if an appropriate non-public school placement was offered to D.A. (Tr. 328)

After the CSE meeting, Lope contacted Frederica Blauston, the Executive Director of the Association for Metroarea Autistic Children (AMAC), to discuss the possibility of D.A. being placed at the AMAC school for the 2007-08 school year.*fn6 (Def. R. 56.1 Stmt. ¶ 33; Pltf. R. 56.1 Counter-Stmt. ¶ 33) Lope also faxed D.A.'s IEP to Blauston. (Def. R. 56.1 Stmt. ¶ 36; Pltf. R. 56.1 Counter-Stmt. ¶ 36) Blauston reviewed D.A.'s IEP, and concluded that he was an "appropriate candidate." AMAC requires a personal interview of a child and his or her family before making an admission decision, however. (Def. R. 56.1 Stmt. ¶ 39; Pltf. R. 56.1 Counter-Stmt. ¶ 39; Tr. 88) Accordingly, Blauston twice called Mr. and Mrs. A. to schedule an intake interview,leaving a message on each occasion. Blauston further testified that the parents did not return her calls. (Tr. 104, 107) Mr. A. testified, however, that he twice returned AMAC's calls, leaving a message on at least one occasion that he was calling about a possible placement, but never succeeded in making contact with anyone at the AMAC school. (Tr. 336, 188, 181-82)

In addition to AMAC, the parents were contacted by two other private schools. D.A. and his father visited both schools, but neither offered D.A. a placement. (Tr. 179-81)

3.D.A. Is Enrolled at the Rebecca School for the 2007-08 School Year

In a letter dated August 21, 2007, the parents advised the CSE that D.A. would begin the 2007-08 school year at the Rebecca School, because "the CSE ha[d] failed to provide an appropriate placement recommendation." (Def. R. 56.1 Stmt. ¶ 63; Pltf. R. 56.1 Counter-Stmt. ¶ 63) In October 2007, the parents signed an enrollment contract with that school. (Def. R. 56.1 Stmt. ¶ 65; Pltf. R. 56.1 Counter-Stmt. ¶ 65; Tr. 16-20, 338; Parents Ex. H)

D.A.'s Rebecca School tuition for the 2007-08 school year was $84,900. (Def. R. 56.1 Stmt. ¶ 65; Pltf. R. 56.1 Counter-Stmt. ¶ 65) Plaintiffs' annual income in 2007 was approximately $64,000. (Tr. 185) Plaintiffs signed the October 2007 enrollment contract with the hope that D.A.'s tuition would be funded pursuant to Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y 1998).*fn7 (Tr. 345) At the request of the Rebecca School, Plaintiffs later entered into a monthly payment plan pending resolution of their request for public funding. (Tr. 344-45) Under that plan, the parents are paying off their tuition debt in monthly installments of $100. (Def. R. 56.1 Stmt. ¶ 67; Pltf. R. 56.1 Counter-Stmt. ¶ 67) As of the time of the impartial hearing, Plaintiffs had paid $1100 to the Rebecca School. (Def. R. 56.1 Stmt. ¶ 66; Pltf. R. 56.1 Counter-Stmt. ¶ 66) A Rebecca School representative testified at the hearing that if the parents failed to make their monthly payments, the School would take legal action against them. (Tr. 246)

4. D.A.'s Program and Progress at the Rebecca School

Several witnesses at the hearing addressed D.A.'s program and progress during his seventh and eighth grade years at the Rebecca School. Bonnie Waring, a social worker at the School, testified that she met with D.A. approximately twice a week during these years to work on his social and emotional problems. (Tr. 141) She noted that D.A.'s "social emotional functioning" had improved during this period, and that he had developed an ability to remove himself from stressful situations and calm himself. (Tr. 143) She also testified that he had improved his personal hygiene and developed more independence, learning to travel to school alone on the subway. (Tr. at 144-45, 151) Waring noted that when D.A. arrived at the Rebecca School, he was unable to remove himself from stressful situations and often became very aggressive. (Tr. 143)She said that his "biggest achievement" was in the area of building peer social relationships. (Tr. 146)

Tina McCourt, Program Director at the Rebecca School, addressed both D.A.'s emotional development and his academic program. The Rebecca School uses a Developmental, Individual-Difference, Relationship-Based ("DIR") methodology. (Tr. 196) The School develops an individualized program for each child by evaluating the child along three axes: development of intellectual and social skills, individual learning style and sensory capacities, and relationship building with peers and family. (Tr. 200-02) In order to facilitate D.A.'s progress in each of these areas, he met twice a week with a social worker, and received twice-weekly occupational therapy, weekly speech therapy, and "art therapy," in which he expressed ideas through art and learned to collaborate with other students on projects. (Tr. 202, 208-09)

McCourt testified that the School also developed an individualized reading and math program for D.A. (Tr. 208) She explained that because D.A. is particularly interested in filmmaking, the School has "us[ed] that as one of the avenues to help him get ahead in . . . all the academics." (Tr. 207) For example, D.A. and his classmates produced a short movie on the American Revolution. (Tr. 212) D.A. began the 2007-08 school year in a classroom with seven other students, one teacher and three teaching assistants; in January, his class size was reduced to four students taught by one teacher and two para-professionals. (Tr. 212)

McCourt stated that when D.A. arrived at the Rebecca School, he was emotionally shut down and prone to anger. (Tr. 205) She explained that "the only range of emotion that he would have is sort of baseline and then very angry." (Tr. 205) She shares Waring's view that D.A. made "huge" gains during his time at the school. (Tr. 205) D.A.'s aggressive outbursts stopped and his ability to discuss his feelings -- rather than simply "shut down" -- significantly improved. (Tr. 207) McCourt also noticed improvements in D.A.'s personal hygiene and in exercising independence, including unaccompanied use of the subway. (Tr. 207)

Ms. A testified that D.A. had made tremendous progress at the Rebecca School, both academically and emotionally. She testified that D.A. could now carry on a conversation, read and do research, cook for himself, navigate the internet, and take public transportation unsupervised. (Tr. 321-22)

B.Impartial Hearing Officer's Determination

The IHO, in a December 1, 2008 decision, ruled that the parents were entitled to "prospective funding for the Rebecca School tuition balance for the 2007/2008 school year."*fn8 (IHO Dec. 27).

The IHO found that the "CSE team was properly comprised and procedurally proper" (id. at 23), and that "the IEP was reasonably calculated to enable the student to receive an educational benefit." (Id. at 24) The IHO concluded, however, the school district had failed to offer a FAPE to D.A., because it never provided him with either an interim or permanent placement:

[T]he main issue raised in this record is whether the district provided a timely and appropriate placement for the student. . . . I find that a mere referral to the CBST does not constitute a placement. . . . [T]he record contains no evidence that an offer of placement or written recommendation for placement at AMAC was ever extended to the parent. The record lacks any evidence of a formal offer of placement for the student subsequent to the review held on August 10, 2007. Additionally, the school district failed to develop an interim placement for the student. Accordingly, the Board failed to establish ...


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