NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
AMENDED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: July 22, 2013
August 29, 2013
September 25, 2013
Actual Record Closed Date: November 4, 2013
Hearing Officer: John Farago, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 22, 2013
Advocate — Student
DOE Agency Attorney — DOE
Teacher (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 29, 2013
Attorney (Via Telephone) — Student
Attorney (Via Telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25,
2013
Attorney — Student
Attorney — Student
Parents
(Via Telephone) — Student
(Via Telephone) — Student
Attorney — DOE
(Via Telephone) — DOE
— DOE
I. BACKGROUND AND SUMMARY1
This is a very strange case indeed. It addresses, exclusively, the narrow question of who is responsible for the cost of a child’s education for an -month period from . Plainly, at this point in the middle of the subsequent school year, there is nothing that can be done actually to change where the child attended school during that time. Nor can this decision have any impact on where he presently attends school or will attend school in the future, because, effective September, 2013, the parties reached an agreement that supersedes any placement decision reached in this case, thereby limiting the effect of this Order to the allocation of cost for that month window. The question presented here is exclusively about these specific months from a prior school year.
Those months took place during the period of time when the family was exercising its legal right to challenge the district’s recommended placement for the 201213 school year. Under the federal and State special education laws, although families have a right to participate in the Committee on Special Education (CSE) that is responsible for making such recommendations, they need have no meaningful role in the CSE review other than the power of persuasion; the district’s representative at the CSE may be empowered to be the sole determiner of the CSE’s recommendation if the district so chooses.
To counterbalance this strong control of CSE outcomes, families have an absolute right to challenge “any matter relating to the identification, or educational placement of the student or the provision of a free appropriate public education to the student or a manifestation determination or other matter relating to placement upon discipline of a student with a that may be the subject of an impartial hearing.” N.Y. Educ. Law § 4404. Unique to New York State, that statute places the burden of proof on the district in all such cases and requires the district in such a hearing to demonstrate by a preponderance of the evidence the propriety of its actions. Id.[2] In order to initiate a challenge to a 1 The procedural history of this case, and in particular of the extensions of the compliance date that were granted, is contained in an appended Compliance Extension Order.
district’s proposed Individualized Education Program (IEP) and/or placement, a family must, within two calendar years, file a Complaint initiating a hearing such as this one.
During the pendency of a hearing such as this, the district may not move the child from the last mutually-agreed-upon placement, or from the last unappealed or unappealable final judicially (or administratively) ordered placement, whichever is most recent.
As is true for families and children in general education, families of children with special needs may choose to educate their children in a non-public school at their own expense, or may homeschool their children. The compulsory education law does not require any family to avail itself of the public education that school districts are mandated to make available to them.
But where a family removes a child in the context of a dispute over a proposed publicly-provided special education placement, if they eventually prevail in that dispute, the obligation to pay the cost of that unilateral private placement may be allocated by the final decision-maker to the district. 20 U.S.C. §1412. If the family has paid for that unilateral placement, the order may require the district to reimburse them for that payment. Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 105 S. Ct. 1996, 1998-99, 85 L. Ed. 2d 385 (1985); Florence Cnty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 114 S. Ct. 361, 364, 126 L. Ed. 2d 284 (U.S.S.C. 1993)[3] If they have not as yet paid for the placement, the order may direct the district to pay the school directly. Connors v. Mills, 34 F. Supp. 2d 795, (NDNY 1998); see also Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F.Supp.2d 403 (2011). Reimbursement may be reduced or denied unless the family either informs the district at the most recent CSE review prior to removing the child from the publiclyprovided placement that they are rejecting the offered placement or provides the district family “shall have the burden of persuasion and burden of production on the appropriateness of such placement”. Id.
with ten business days’ notice prior to removing the child from the publicly-provided placement. 20 U.S.C. §1412.[4]
If the family files such a notice, they must, as noted above, initiate their hearing request by filing a Complaint within a two-year statute of limitations. N.Y. Educ. L.
4404. At the hearing thus triggered, a three part test from the ‘Burlington/Carter’ line of cases will be applied to determine whether the district should bear the cost of the unilateral placement. The first stage of that inquiry is a threshold liability phase; it asks the question whether the district’s placement offer was appropriate. If there is a determination of potential liability by the district for the unilateral placement because the district had failed to offer an appropriate placement, the decision-maker addresses what would constitute an appropriate remedy by conducting a two-part remedial inquiry: first, whether the family’s unilateral placement was appropriate; second whether the equities merit allocation of the cost of that placement to the district. Burlington, supra, 471 U.S. at 369-70, 373-74.
In a case in which the child has not been unilaterally removed, the inquiry would necessarily have only one stage: if there were a determination in such a case that the district had failed to prove that it had offered an appropriate placement, the placement recommendation would necessarily be nullified and the child would remain in the placement he or she had been in at the time prior to the challenged offer until a proper placement could be offered and accepted or ordered.
The months at issue here occur between the date on which the family informed the district that it disagreed with, and would seek to challenge, the recommendation made by the CSE for 2012-13 (the 10 business days’ notice described above) and the date on which the family timely filed its Complaint to initiate this hearing (within the statute of limitations described above).
The district argues that, because the Complaint had not as yet been filed, there was as yet no impartial hearing initiated during this -month period. As a result, the rules related to placement during the pendency of an impartial hearing cannot apply to the time in question. Instead, they argue, the unilateral placement test from Burlington/Carter should be applied, and if the district prevails in its effort to demonstrate that its offered placement was in fact appropriate, the family must be held accountable for the cost of the child’s education during those months prior to the filing of the Complaint.
The family argues that the pendency period should commence from the date on which the disagreement arose, that is, from the date of the April 29, 2012 CSE review or, at the latest, from the date of the family’s June 21, 2012 notice that they would be challenging the district’s recommendation for 2012-13 (for practical purposes, it does not matter which; both occurred before the start of the months in dispute here). They further argue that even if the pendency period does not begin at the time their disagreement arose, the Burlington/Carter test should be applied and if the district’s placement is deemed to have been inappropriate, the family’s placement deemed to be appropriate, and the equities deemed to favor district responsibility for the period in question, an appropriate financial remedy should be crafted.
Both of these theories of the case are built on crucial errors in parsing the law.
The liability question to be addressed in considering responsibility for the placement during the months in question is not when pendency began, but when the child’s publicly-provided placement at ended, if at all.[5] The remedial question to be addressed is not the Burlington/Carter 3-part inquiry, but rather the simpler 1-part inquiry into whether the district’s efforts to change the child’s placement were successful, and, if so, as of what date.6 If the district could not legally have changed the child’s placement prior to the completion of the months in question, there is no need for a factual inquiry into whether or not it had done so.
In the decision that follows I reach the following Conclusions of Law:
A. A final Impartial Hearing Decision that is not appealed to the Office of State Review changes the child’s legal placement and must be implemented by that district.
B. A change of legal placement may only be effectuated by agreement between the district and the family or by a final (unappealed or unappealable) order resolving the dispute between them about the child’s placement.
C. A district cannot unilaterally effectuate a change of legal placement.
D. In a change of placement arising from the ordered final resolution of a dispute about placement, the child’s placement does not change until the effective date of that order (the date on which the order is issued unless expressly defined otherwise by the order itself).
E. If, as here, the family opposes the district’s recommendation and seeks to continue the child in his current legal placement in a publicly-funded non-public-school, and provides notice of their intent to challenge the district’s proposed change of placement, then the district is responsible for continuing that non-public school placement until pendency vests, unless a balancing of the equities leads to a modification of that allocation of cost.
F. A balancing of the equities can lead an administrative or judicial decision maker to adjust the allocation of the funding responsibility for that non-public placement prior to filing of the Complaint.
G. The burden of proof for demonstrating that the equities favor a shift in the responsibility for the cost of a continuing non-public-school placement falls statutorily upon the district.
Based upon those Conclusions, I reach the following Findings of Fact:
1. was placed at by the district when it decided not to appeal the decision in Case 2006, thereby agreeing that was to be his placement for the 2006-
07 school year, and rendering that decision final. Exhibit M. Exhibit 8 at 26, 39, 227-228. Hearing Officer’s Amended Findings of Fact and Decision [7]
2. Although the district may have recommended other placements in some or all school years thereafter, he continued at without interruption at district expense pursuant to agreements, settlements, and pendency, none of which served to change his placement away from . Transcript at 162-170.
3. At a meeting held on March 30, 2012, the district made a program recommendation to change his IEP and move him away from for the 2012-13 school year. Exhibit 3.
4. On June 21, 2012, prior to receipt of the district’s placement recommendation, ’ mother informed the district that she was objecting to the district’s effort to move from , would seek to continue his enrollment at , and would seek an impartial hearing to effectuate that challenge and obtain funding for that unilateral continued enrollment. Exhibit N.
5. On that same day, prior to receiving the parent’s notice that she was planning to continue at the private school he was placed in as his publicly-provided legal placement, the district made a placement recommendation for a specific placement other than for the 2012-13 school year. Exhibit
7.
6. On April 29, 2013, within the statute of limitations for a challenge to a
2012-13 placement, the family filed the Complaint in this proceeding.
Exhibit 1.
8. The district failed to provide reasonable notice to the mother of its proposed placement for 2013-14. Exhibit 7.
9. The mother did provide the district with timely notice of her intent to continue at at district expense. Exhibit N.
10. The mother filed a timely Complaint to initiate this hearing. Exhibit 1.
11. The district failed to conduct or consider any assessment of prior to or at the annual review on March 30, 2012 that led to the placement offer on June 21, 2012. See, e.g., Transcript at 25.
12. Effective with the start of the 2013-14 school year, the parties agreed to a change of placement for , both legal and actual, and the district ceased to be responsible for the cost of his placement at as a matter of pendency.
Transcript at 331-336.
Accordingly, I Find that the district is responsible for, and Order that it pay the cost of, the child’s placement at during the period in dispute here, as a matter of law, irrespective of the appropriateness of the district’s proffered placement or the continued propriety of for the child.
I detail below the legal analysis that leads to these conclusions and findings, but first I turn my attention to addressing the parties here directly, to provide guidance in their continuing work together as they each seek to fulfill their respective responsibilities for ’ education:
II. TO THE PARTIES:
I used to write my decisions as, in essence, letters to the parties. I did so because the vision of the Individuals with Disabilities Education Act (IDEA) – the federal law that shapes New York’s special education law and policies – is a vision of collaboration and shared effort by school districts and families. Since 1975, that law has urged families and districts to come together with the mutual goals of (1) identifying each individual child’s special needs, (2) assessing the educational implications of those needs, (3) developing a plan that appropriately addresses those needs, and (4) identifying and implementing a specific placement consistent with that plan.
Families and school districts understandably come to these tasks from different starting points: families will surely want to maximize the benefits to their individual children, and school districts will surely feel compelled to worry about having the resources to meet the needs of all the children in their care. The law recognizes this potentially disruptive difference between the parties, and calls for a swift and objective mechanism – impartial hearings -- to resolve those disputes and bring the two sides back to a collaborative focus on the child. In this way, impartial hearings are not the final step in a dispute, but the intervention of an umpire into a longer and larger game: the work of the CSE. The IHO does not decide who wins and who loses, but rather how to resolve disputes that keep the parties from working together.
And so, I tried, and try still, to write in a voice and with a focus that I hope nonattorney parties can appreciate because they jointly start from a shared caring for children and a mutual desire to serve the needs of those who require special education. Surely, those who are called to work in schools on behalf of children with special needs do so out of that concern; it is a demanding, not-especially-financially-rewarding, often-frustrating, and all too often mired-in-bureaucracy way to spend one’s life unless one can find gratification in the children and the work. Even more plainly, families come to this table from a place that starts in love and concern for and about their child.
Over the course of the past several years, however, these hearings have increasingly gotten lawyered-up, they have more and more come to focus on technicalities and procedure and legal argument; over time they have come to be centered almost exclusively on financial issues – financial issues related to children’s education, to be sure, but distanced by fiscal self-interest from a shared focus on the joint mission that families and school districts share.
Both sides now often come to the table believing that the hearing is about money, not about a child; about winning not about resolving; about outwitting, not about working with, each other. Families see winning as a publicly-financed escape from the public schools that they unfairly believe are always an undesirable last choice. Districts see winning as a way to save urgently-needed money, even when doing so means depriving a child of access to any meaningful educational opportunity whatsoever.
One result has been that my decisions have also become far more legalistic – which is fine, even essential, as the law has gotten more complicated and detailed. But it is also a serious problem. The problem is not that the parties cannot hope to understand the technical legal jargon and reasoning. Most, if not all, families, teachers, clinicians, and administrators are smart enough to read and understand a well-written legal decision that unpacks, explains, and applies legal technicalities. The problem, rather, is that the voice of the law makes it easy to forget the cry of the child – for all of us participating in this enterprise, even the families, it makes it easy to set aside the needs of the child as we split hairs, arm wrestle, debate, and root urgently for the home team. Legalisms undercut collaboration, money concerns trump educational ones, each side increasingly feels distanced from, rather than drawn back towards, the capacity to work with the other.
And so, the challenge for me is to address the legal questions fully, while also speaking directly and clearly to the parties about their work together. That challenge is made less burdensome here, where the parties agree about much, and where the family has, in fact, subsequently accepted a district-proposed placement.
The decision that follows is, I think no surprise to either side, because I have repeatedly articulated in the record aspects and versions of the conclusions that follow.
But here is why I think that the conclusions reached here can help both sides better understand how they could have worked more effectively together last year and how they may still do so for the remainder of ’ entitlement to special education services:
All special education hearings begin with the law and end with a determination of what the hearing officer thinks fairness demands, that is, with what the law calls the ‘equities.’ Another way of saying this is that all special education hearings begin by addressing whether the district did what the law requires it to do: offer the specific child, during the specific year, a free appropriate public education in the least restrictive environment. In terms of the entitlements listed above, that means that the IHO must determine, consistent with the Complaint lodged by the families and in keeping with the allocation of the burden of proof made by New York State’s Education Law:
(1) whether the district conducted the that the law required it to do,
(2) whether the CSE brought those together to seek an individualized understanding of the educational profile and needs of the particular child, and
(3) whether it has crafted a program that is reasonably calculated to address those specific needs.
The culmination of these inquiries inevitably must be
(4) whether the district has offered the child a specific placement that can implement that program, and whether
(5) it has done so in a manner that respects the legal rights of the child and the family.
That is where all hearings start.
And every hearing ends by asking, in light of these findings of fact and law, what, if any, remedy is dictated by fairness. The law doesn’t define the remedies available to the hearing officer, other than to affirm that those remedies should be individually tailored and that their power is based on the broad equitable powers of the federal courts. Burlington v. Massachusetts, supra, 471 U.S. at 369-70, 374.
Here, in this specific case, the practical question I must decide is, as I have already noted, very narrow: Who is responsible for the cost of ’ program at from In order to answer that question, I must first determine what ’ placement was during that time, and whether that placement was made unilaterally by his family or, instead, was the result of a series of agreements and/or orders that rendered it his publicly-provided placement.
I conclude below that was ’ publicly-provided placement at the time the dispute about the district’s 2012-13 recommendation arose, and that the law prohibits the district from unilaterally changing ’ placement away from until, at the earliest, the final conclusion of the dispute between the parties about the proposed 2012-13 placement.
That dispute can be resolved no sooner than when this decision is issued, and could continue for years beyond that if one side or the other pursues appeals. It surely was not resolved on April 29, 2013, and so the district surely had not changed ’ placement away from at any point during the period that this hearing addresses. Indeed, because the parties have agreed mutually to change ’ placement effective September 2013, the district will never be able to effectuate a change in placement from what it was when the CSE convened in the 2012 annual review … its effort to do so has been overtaken by the good work of the parties together to craft a placement they both agreed upon for ’ final year of entitlement.
If that is the law – if the parties have removed any impact I can have on the future and limited my impact on the past to the question of who should pay for months of ’ placement at during 2012-13 – then I have to turn to the equities to answer whether there is any reason why the district should not be accorded the responsibility for continuing to provide a placement for by paying the cost of his continuing publicly-provided placement during the disputed month period at before pendency took over.
Balancing the demands of fairness requires that I look at the actions of three players – the family, the district, and – and review their impact on . None of the three acted perfectly during 2012-13, but none acted in a manner that even begins to tilt the equities away from the basic legal standard that the district must be responsible for the cost of ’ publicly-provided placement.
Then, after having provided that notice, the family waited ten months before filing the Complaint that initiated this action. That wait did indeed prejudice the district by exposing it, at least potentially, to the added months of possible liability that this case now addresses. And that delay, like the failure to have followed up after receiving the placement letter, was less than optimal, and while the family was surely within its right to bring the action at any time within the two-year statute of limitations, the choice to defer doing so potentially placed the district at a small financial disadvantage (small in the sense that tens of thousands of dollars are an almost infinitesimal proportion of the district’s multi-billion dollar budget -- something less than one five-hundred-thousandth of that budget).
Turning to the district, the picture is more troubling. Having met on March 30, the district waited until June 21 to offer a placement. The law requires that the district accord the family “reasonable notice” of its proposed change. 34 CFR 300.503(a)(1). It also allows an IHO to reduce or deny a reimbursement request if the family has not given the district 10 business notice prior to initiation of the private placement. 20 U.S.C.§ 1415 (f)(3)(E)(ii).
For a July 1 placement, 10 business days would have been June 18. For a family to have made a reasoned decision to reject a proffered placement, then, that proffer would have had to be made on or before June 17. While the difference between June 17 – the absolute latest possible reasonable date of offer – and June 21 – the actual date of offer -- is only four days, it is a crucial difference that could seriously affect the family’s right to recover, and so constituted a consequential lapse on the district’s part. It was, in fact, a lapse so serious that it fueled the family’s confusion and excuses its failure to act to follow up on the Final Notice of Recommendation. The district failed to provide this family with reasonable notice of its placement recommendation.
I am also troubled by the district’s choice to use this case in particular to pursue a legal theory that is at best questionable. I recognize that the district is legitimately concerned that the two year statute of limitations could allow a family to provide notice that they will seek district payment for a continued placement in a non-approved private school, and then wait almost two full years before filing a Complaint, relying on the district’s continuing responsibility to force it to be accountable for tuition for those two years even though it has done all it could do to seek to change the placement. It does make good sense that the district would want to bring a case that would clarify the nature and limits of its burden when it has offered an appropriate placement and a family abuses the statute of limitations in order to delay the impact of that determination.[7]
But why use this case as such a test case, when the district knew or could have known that it lacked any evidence in support of its claim to have or have considered the family’s of the child,8 and was aware of (a) this family’s level of financial need, (b) its own long history of agreeing to fund the cost of the child’s placement, and (c) the impact its theory of the case would have on the family and on the private school?
The district should not have pursued this case under these circumstances, and should not benefit from having done so.
Turning, thirdly, to the role of in this case, the terms of the contract (Exhibit F) hold this family personally liable, in the event that it loses this case, for a debt far in excess of the family’s annual income (Transcript at 271), a burden that inflicts a harsh toll on a mother who is seeking simply to do what she deems best for her son by pursuing due process rights she had every reason to believe were hers to exercise without cost or impediment. (20 USC 1401(29))
’s institutional choices in drafting that form contract and imposing it on this family fall short as well of what one might have expected from an entity with ’s history, affiliations, and expressed mission. I recognize that the district’s litigation strategy in recent years has been an aggressive one: to challenge arrangements such as these where schools act altruistically by taking on the risk of a failure to achieve a final favorable financial determination. The Department of Education has pursued a series of legal arguments that such altruistic acts by private schools should invalidate an otherwise valid claim that the district must pay the cost of the child’s placement. The caselaw, however, is clear that the City’s legal arguments not only fails as a matter of law but are indefensible in terms of both public policy and professional ethics.[9]
Finally, however, balancing the equities is not determined by what any of these parties did, but by the impact on of the alternative outcomes I must weigh.
The district’s theory of the case would have me adopt a rule that, had it been known on September 1, 2012, would have shifted from to the Manhattan , then on April 29 would have shifted him back from the to , and then, if the district had prevailed, on the date of final decision back from to the , and, finally, at the start of the 2013-14 school year, away from the and to the new public school that it had recommended for this year and that ’ mother agreed to accept. That’s a very sorry excuse for a rule.
The rule the family would have me adopt, by contrast, would leave in consistently until the parties jointly agreed to the new placement just last month.
is not a shuttlecock in a badminton game. He is a child with a that makes him particularly ill-suited to frequent and abrupt changes in his academic setting. The equities, accordingly, strongly favor the rule the family proposes, and disfavor the rule the district puts forward. The equities mandate imposing the obligation to continue funding at for the period in question onto the district rather than the family or the private school.
In sum, this case should simply not have been litigated. While the district’s desire to resolve a real legal ambiguity that has significant consequences in many cases beyond this one makes good sense, its choice to build that effort on the foundation of this child, this family, this case, was ill-advised. It had the wrong law, the wrong rule, the wrong evidence, the wrong underlying facts, and the wrong family on which to base the claim it seeks to make here.
I turn now to an analysis of the law that supports this conclusion, beginning with an explanation of why the district’s and the family’s respective theories of the case fall wide of the mark.
III. PENDENCY VERSUS PLACEMENT
It is common to analyze the question of whether (and for what period of time) a district has an obligation to pay the cost of a continuing educational placement during an ongoing due process challenge as being a question of ‘pendency’ – the district’s obligation to continue the child in his or her last agreed-upon-or-ordered placement until the dispute is finally resolved. And, to be sure, pendency does automatically impose a statutory obligation during the entire term of a dispute. As the courts have interpreted the statutory language for decades, it functions as an ‘automatic stay-put injunction’ while the dispute is ongoing, and as such is a ministerial obligation of every district in every dispute (even if not every parent wishes to take them up on it). Honig v. Doe, 484 U.S. 305, 308, 108 S. Ct. 592, 596, 98 L. Ed. 2d 686 (1988).
But it is important to understand that pendency is not an independent concept or the law of pendency the starting point of the inquiry into the scope of the district’s obligation. Rather, pendency is defined by reference to a predecessor concept, without which pendency could not be determined or provided: the child’s ‘current educational placement.’
Pendency, that is, is a ‘which’ but not a ‘what’; the ‘what’ is the child’s current placement and the pendency obligation is built on the premise that, once a child enters the special education system, every child always has a publicly-provided special education placement: “during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing … the child involved in the complaint must remain in his or her current educational placement.” 34 CFR 518(a) (emphasis added). That concept – the continuity of, and entitlement to, a current educational placement -- is prior to pendency, essential to it, and forms the basis on which the pendency entitlement is built. Pendency, in short, is not a placement in itself, but rather identifies which, among several candidate potential placements, applies during a particular period of time.
Pendency ends when the dispute is finally decided, that is, when it is unappealable or when the parties have both chosen not to appeal it. When that happens, the end of pendency coincides with, though does not itself produce, a placement-establishing event: The purpose of the hearing is precisely to determine the child’s placement for the year in question, and so the final resolution of the case answers any open placement questions and renders pendency no longer necessary. The resolution of the dispute identifies a new and final determination of ‘which’ placement the child is entitled to, from that moment on, and replaces the contingent one defined by the pendency rules.
But if the answer to the question of when pendency ends is relatively clear, the question ‘When does pendency begin?’ is a circular and largely misleading one. To be sure, the entitlement to pendency, as pendency, may be viewed as coterminous with the litigation itself … it is, after all, a description of what constitutes the child’s placement while the litigation is going on, and so it may be argued that it cannot meaningfully preexist the initiation of the litigation. Weaver v. Millbrook Cent. School Dist., 812 F.Supp.2d 514, 526 (SDNY 2011)
But, crucially, by its very nature, the underlying placement that constitutes pendency was not created as a result of the initiation of the hearing. It becomes the pendency placement only because it was the placement already in place at the time the hearing commences. The pendency placement is by definition a pre-existing placement. Pendency does not function as a starting point for that placement but as a mandate that it continue.
That placement, like all special education placements, flows from the intersection of the district’s obligation to offer instruction to all children within its geographic catchment (N.Y.S. Constitution, Article XI; and NY Educ. L. 3202) and from the federal statutory mandate that orchestrates how placements in special education may be made, changed, and terminated. 20 USC 1414 and 1415.
Here, the factual question of what constitutes ’ placement at the time the dispute arose in 2011-12 (at the annual review for the subsequent school year) is not in dispute. ’ last agreed-upon-or-ordered placement was . Exhibit 8 at 26, 39, 227-228. The district, however, argues that responsibility for the cost of during the period in dispute only commenced when pendency, in effect, threw a switch and turned that responsibility on. In making this claim, the district mistakenly equates pendency and placement, and it is unfortunately in good company when it ignores the question of what responsibility the district had for the cost of ’ legally-defined and publicly-provided placement prior to the initiation of the impartial hearing.
The explicit question raised by this case – who is responsible for providing the child’s then-current educational placement during the period between the date of the CSE review under challenge and the filing of the Complaint -- has in fact been addressed three times before by courts within the Second Circuit, once by the Second Circuit itself (briefly, in dicta, in a footnote, in a Summary Order; a Second Circuit precedent does not, frankly, get any less authoritative than that, but it does, nevertheless, constitute the only time the Circuit has addressed the question directly; A.S. ex rel. P.B.S. v. Board of Educ. for Town of West Hartford, 47 Fed. Appx. 615 (2d Cir.2002)) and twice by District Courts, once in the Southern District (Weaver v. Millbrook Cent. School Dist., supra) and once in District of Connecticut (Doe v East Lyme Bd of Educ., 2012 WL 4344301).
In A.S., the Second Circuit concluded that, “[u]nder the IDEA, a ‘stay put’ is a procedural right that is activated as soon as the [CSE] reaches an impasse”. A.S., supra,. 47 Fed. Appx. at 616 n. 2.
In Weaver, supra, the Court addressed the matter by taking a very constrained procedural posture, created in large measure by the manner in which the issue had been framed in the administrative appeal prior to the District Court action. In that administrative appeal, SRO 08-130, the State Review Officer held that “[i]n order to invoke the pendency provisions of the IDEA, a due process proceeding must be pending (Schutz, 290 F.3d 481-82, 484-85; Student X, 2008 WL 4890440 at *20; O'Shea, 353 F. Supp. 2d at 455-56; Application of a Child with a , Appeal No. 07- 136).” 10 Id. at 20.
That conclusion has a certain technical appeal, but for it to be sustainable at all it must be deemed to cleave ‘pendency’ – which is triggered by the initiation of the hearing – from the ‘placement’ that pendency continues – which by definition predates the onset of the hearing. For the reasons detailed in Footnote 9, there is no authority on which to base such a distinction, but even assuming it to be a valid semantic line to draw, doing so would be no more than casuistry, splitting hairs in furtherance of a largely misleading argument. There are cases, to be sure (including, in some ways, this one), in which it matters where the district’s obligation to provide the child’s placement comes from, but that should be only the beginning of the inquiry into the district’s obligation (not the endpoint it was deemed to be in the SRO decision appealed in Weaver).
10 A review of the cited authority in this SRO decision is instructive. Leaving aside the citation to a prior SRO decision, notwithstanding the express injunction in the regulations governing that office that SRO decisions “shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever,” 8 NYCRR 279.12, the decision relies on a guidance letter from the US Department of Education Office of Special Education Programs (the Letter to Winston, written in 1987 when the procedures for litigating a special education dispute, and in particular for providing formal notice that the family intended to initiate an impartial hearing, were substantially different from the present mechanism) and three district court cases. All three of those cases render judgments directly opposite to the SRO’s holding in 08-130. All three, that is, presuppose funding for the child’s continuing placement from the moment the dispute arose, not from the filing of the due process Complaint. In Schutz, the Court ordered pendency reimbursement for the 1999-2000 school year in a hearing that was not requested until June of 2000 and that did not commence until August of that year. Compare “The District was therefore required to pay the costs of tuition at Kildonan during the pendency of the proceedings concerning the District's proposed IEP for the 1999–2000 school year.” Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 485 (2d Cir. 2002) with “By letter dated June 12, 2000, petitioners’ attorney requested that an impartial hearing officer be appointed to consider their objections to respondent’s programs for the 1999-2000 and 2000-01 school years, although the CSE had not as yet proposed a program for the latter school year.” SRO 01-054 (the underlying decision appealed from in Schutz). In Student X, supra, the family requested the impartial hearing before the scheduled commencement of the challenged IEP, and as a result there was no possible pendency gap between the disagreement and the initiation of the hearing. The case is simply inapposite. In O’Shea, “[b]y letter dated June 19, 2001, the Families requested an impartial hearing seeking a review of both the 1999–2000 and 2000–01 IEPs and tuition reimbursement for both school years at Kildonan.” Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 451 (S.D.N.Y. 2005). The Court, however, adjudged the district responsible for pendency effective the start of the 2000-01 school year, some nine months prior to the letter requesting the hearing.
While the Court’s holding in Weaver is, therefore, perhaps correct as far as it goes, and under the narrowest of constructions (as to when pendency vests as a source of responsibility for provision of a particular program) – the decision was silent with respect to placement, and, most importantly, with respect to whether the district was responsible for the provision of that placement. Worse, that silence led the District Court’s review down an incomplete path and into conflict with the clear judgments in Schutz, O’Shea, A.S., and others. Perhaps worst of all, it left the family with a narrow legal holding rather than the equitable balancing and judgment to which they were likely entitled.
In sum, the SRO decision reached a narrow semantic conclusion while avoiding the substantive issue of the school district’s continuing accountability for the provision of service to a child (and, in dodging deciding that question it of course decided it by default, permitting the district not to pay the bill for that period of the child’s placement, without ever justifying that allocation of the cost of the uncontested placement during the period between notice and Complaint). The District Court, in some senses properly, similarly constrained its review, limiting its inquiry to the issues raised by the parties to the appeal before it, a determination whether the SRO ruling on pendency was sufficiently reasonable to merit deference. The Court concluded that it was, without addressing (because it had not been expressly raised in the appeal) the question of fiscal responsibility, in the absence of a pendency obligation, for the child’s acknowledged placement during the period before the Complaint was filed. By limiting his review to pendency Judge Karas, like the SRO, avoided addressing the district’s potential accountability for providing the ongoing placement. Weaver, supra, at 526-7.[11]
Conversely, in Doe v East Lyme Bd of Educ., supra, Judge Arterton – also writing as though he were defining ‘pendency’ rather than ‘placement’ – followed the Second Circuit and triggered the stay-put provision at the start of the dispute, prior to the filing of the administrative Complaint.
In Doe, the Child was unilaterally placed in a non-public school by his family, and received related services in that school pursuant to IEPs that acknowledged the unilateral placement (at family expense) and provided related services only at that familially-placed site. Doe at 2-3. The Doe Court concluded that the child was therefore entitled to pendency (in that case, related services) from the date the dispute arose at the CSE review.
The Court expressly distinguished Weaver because, Judge Arterton suggested, in Weaver the district had never consented to the private school placement prior to the commencement of the dispute. That distinction, however, does not appear to be born out by the record in the underlying SRO decision (in 08-130 the child was placed in the private placement at district expense by virtue of a previous, unappealed, impartial hearing decision). In truth, unless one deems Weaver to be about the narrow question of when pendency, qua pendency, is triggered, while construing Doe to be about responsibility for payment for the placement that will turn out to be the pendency placement, the two cases simply disagree.
Viewed as I construe them here in a manner that respects insofar as possible the holding in Weaver, the Weaver case addresses pendency exclusively, while Doe takes the broader view, articulated in A.S., that the district is accountable for the continued provision of the child’s placement until that placement is legitimately changed pursuant to the procedures detailed in the law (unfortunately relying, as did A.S., on the word ‘pendency’ to carry that fr).
To be sure, there is a small but important way in which the distinction between pendency and placement is important, and as noted above, that distinction plays out relevantly here. Pendency is statutorily-based and statutorily-defined. Where the substance of the last-agreed-upon-or-ordered placement is not a matter of factual dispute, pendency is automatic, ministerial, not subject to discretion on the part of the school district or a decision-maker. Placement, on the other hand, is axiomatic. It is never really defined in the statute or regulations even though it suffuses them. It has been left to read in this limited and tightly constrained manner. Read in this manner, it does indeed have some procedural utility, even if it fails to address the dominant substantive question presented here.
judicial exegesis, to caselaw and to argument, and as a remedy in special education cases it is a creature of the decision-maker’s equitable powers. Rather than an ‘automatic stayput injunction’ it is just another hearable question of fact and triggers the more common balancing of the equities and exercise of some measure of judicial discretion. Where, as her, the question of district responsibility for the period in question does not flow from pendency but from placement, an equitable inquiry may be triggered in a way that would not be the case in a pure pendency inquiry.
The following analysis of ’ claim that the district should be responsible for the cost of the months here in dispute is premised on Schutz, A.S., Doe, O’Shea and the authority on which they rely and that relies upon them.
IV. ’ PLACEMENT
A. ’ Placement as of June 30, 2007.
The parties agree that Impartial Hearing #105330 adjudicated ’ placement for the entire 2006-07 school year, ordered payment for that year directly to [Exhibit M at 15], and, because it was unappealed, became final, rendering that placement ’ publiclyprovided placement both by virtue of agreement (the decision not to appeal) and by virtue of finality (the Order in that case became final when the opportunity to appeal expired).12
12 It is a matter of settled law that an unappealed Impartial Hearing decision that finds that a family’s unilateral placement constitutes an appropriate placement for the child not only awards reimbursement to the family but functions as an agreement between the parties that actually changes the child’s placement into the one deemed appropriate by the IHO. This result is best captured in the authoritative interpretation of the requirements of the preemptive federal regulations expressed in an opinion letter of the U.S. Department of Education Office of Special Education Programs (OSEP), Letter to Hampden (the best public domain source for this letter is the US DoE website: http://www2.ed.gov/policy/speced/guid/idea/letters/2007-3/hampden090407stayput3q2007.pdf ).
In that letter, OSEP wrote (at Page 2): “in a State [such as NY] that has a two-tier due process system, in which a local agency does not appeal a first-tier due process officer’s decision on the merits that is favorable to the family, [u]nder 34 CFR 300.514(a), an unappealed decision is final and must be implemented. That final decision on the merits, as implemented, becomes the child’s current educational placement.” (emphasis added) The rationale in that letter builds upon the reasoning that caused Judge Haight to hold that a final order by the SRO favoring the family’s unilateral placement constituted a form of agreement and therefore constituted a placement-shifting event. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000) aff'd, 297 F.3d 195 (2d Cir. 2002). The view has been adopted and reiterated by the Second Circuit. Mackey ex rel. Thomas M. v. Bd. of Educ. For Arlington Cent. Sch. Dist., 386 F.3d 158, 163 supplemented sub nom. Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 112 F. App'x 89 (2d Cir. 2004), and indeed has been codified in federal regulation. 34 C.F.R. § 300.514(a). Letter to Hampden merely extends that analysis to two-tier states, rebuking the SRO’s initial refusal to have done so.
The parties concur that no intervening placement-shifting events have taken place since Decision 105330 was issued. Transcript at 162-170; Exhibit 8 at 26, 39, 227-8.
B. Once Made, Does a Placement Continue into the Next School Year?
The parties do not, however, agree about the nature and continuity of such a placement. In particular, the district argues that there is no such thing as a child’s continuing placement in a publicly-funded private special education school [Memorandum of law appended to an email to me, July 11, 2013; Exhibit 8, at 115, 118], but that, instead, each year must be assessed de novo: “A placement, [either] by the CSE or by the family, is only for a school year and must be reviewed annually.” Id. at 118. The district believes, on this analysis, that a child’s placement is “new every year.” Transcript at 160.
This notion that a placement does not continue until changed by a legally-defined placement-shifting event is difficult to gibe with the extensive caselaw to the contrary, the language of the statute itself, or the district’s acknowledgment that a placement is not automatically changed retroactively by an administrative or judicial order (or, least of all, with its acknowledgment that now, some half dozen years later, the placement defined in Decision 105330 constitutes ’ last mutually-agreed-upon-or-ordered placement).
The district’s counsel opined elsewhere in the course of the hearing that when such a placement recommendation made by a CSE is challenged by a family, and the district’s recommendation is ultimately upheld by a final decision maker, that change of placement takes place prospectively only, and does not read back to the date of the CSE review:
HEARING OFFICER FARAGO: The question I have is this, I guess for you, . If the Department's proposed placement were to be deemed to be appropriate by me and then finally, would that change the child's placement?
MS. : Absolutely.
That analysis has subsequently been routinely repeated and accepted both in the courts and in administrative hearings. See, e.g., Student X, supra at 21-22.
HEARING OFFICER FARAGO: And on what day? When would the placement shift? It's not a trick question. I'm not trying to catch you in a date, but I mean, conceptually, what do you think is the effect of a Final Order that says yeah, the Board was right all along?
MS. : I think it would be going forward, I think, and that the mother would then be economically responsible for , Transcript at 189.
Disentangling this seeming contradiction, the district is correct that there must be an annual review; but it is incorrect to assert that that review is a review of the child’s placement. The regulations define it differently: the CSE must review “the child's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved.” 34 CFR 300.324(b)(1)(i) The language is unequivocal: the annual review is not a re-placement decision-making procedure, nor even a review of placement, but rather is a review of the child’s progress in the placement towards the IEP goals and objectives. Indeed, a full of the child’s needs must take place only at least once every three years. 34 CFR 300.303(b)(2), and there is no set timeframe within which the placement itself must be reassessed. Although determinations about the child’s progress and the shifting nature of his or her needs may lead to an inquiry into placement at any time, such an inquiry is neither annual nor ever automatically triggered under the statute.
The question of whether a placement continues until a procedurally proper placement-shifting event takes place is so fundamental to the Act that it has quite literally never been litigated outside the context of the definition of when pendency vests. The language in the pendency cases is compelling, however, and clearly articulates not only that the child’s placement continues until changed, but that the district cannot effectuate a change of placement unilaterally:
… implicit in the maintenance of the status quo is the requirement that a school district continue to finance an educational placement made by the agency and consented to by the family before the family requested a due process hearing. To cut off public funds would amount to a unilateral change in placement, prohibited by the Act.
Zvi D. by Shirley D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982)
In assessing the NYC district’s similar claim, more than three decades ago, that the child’s placement ends at the end of the school year, and that therefore pendency expires at the end of the year in which the case was initiated, the Zvi D. court was no less emphatic:
[W]e do not agree … that § 1415(e)(3) must be read to limit a child's status quo rights “to finish[ing] the school year in his existing placement.” 520 F.Supp. at
204. … The time frame of the administrative and judicial “proceedings” under §
1415(e)(3) is not necessarily coterminous with the limits of the school year.
Rather, it includes the time necessary to review and adjudicate the merits of a single “complaint” regarding or placement of the child.
Id. at 908.
The pendency cases are consistent and clear in their recognition that the underlying placement is continuous, must be maintained until legally changed, and may not legally be changed unilaterally, not merely because it is a statutorily-mandated pendency placement, but because districts may not unilaterally change placements made under the Act.
The IDEIA's “stay put” provision, 20 U.S.C. § 1415(j), provides that during the pendency of any proceedings challenging the appropriateness of a proposed IEP, “unless the State or local educational agency and the families otherwise agree, the child shall remain in the then-current educational placement of the child[.]” This provision aims to preserve public funding for an educational placement “consented to by the family before the family requested a due process hearing. To cut off public funds would amount to a unilateral change in placement, prohibited by the Act.” Mackey, 386 F.3d at 163 (quoting Zvi D. v.
Ambach, 649 F.2d 904, 906 (2d Cir.1982)). Therefore, regardless of the merits of the family's challenge to an IEP, id. at 161, a state must continue to fund the child's last agreed-upon placement unless and until a new placement is established, which occurs when (1) the families and the state agree on a new placement, see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) ; (2) an SRO decision
“agrees with the families that a change of placement is appropriate,” Mackey, 386 F.3d at 163 (quoting 34 C.F.R. § 300.514(a), (c); 34 C.F.R. § 518(d)); (3) an administrative decision agreeing with either the families or the state goes unappealed, 34 C.F.R. § 300.514(a); Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2d
Cir.2002); or (4) a court upholds a change in placement, Schutz, 290 F.3d at 484.
Student X v. N.Y. City Dep't of Educ., No. 07–CV–2316 (NGG)(RER), 2008 WL 4890440, at *20 (E.D.N.Y.2008).
New York City Dep't of Educ. v. V.S., 10-CV-05120 JG JO, 2011 WL 3273922
(E.D.N.Y. July 29, 2011)
The district’s notion that placements turn back into pumpkins at the end of each school year, in the face of these clear holdings (and no cited authority to the contrary)
amounts to the notion that pendency defines the child’s placement, rather than the placement defining pendency as the statutory language makes clear.[13]
Pendency, then, is, as detailed above, a concept that derives from the child’s placement, it does not create or define or limit it. The placement pre-exists the pendency determination and it continues, even across school years, unless and until it has been properly changed pursuant to the procedures delineated in detail in the federal and State statutes. Placement, in short, continues until it has been changed by a placement-shifting event.
C. The steps in effectuating a disputed change of placement.
A child has Placement X and her school district wishes to move her to Placement
Y. How can the district effectuate that change? Based on the authorities detailed above, it cannot do so unilaterally. Conversely, if the families agree, there will be no problem. It can be done at a CSE review or by written agreement or through an Interim Services Plan.
And it vests on the date of the IEP or the ISP or the other manifestation of their agreement.
But if the families disagree with the district, the change would need to start at a meeting of the child’s Committee on Special Education, which includes her families, and would involve the generation of an IEP capturing the newly proposed program and an offer of a placement by the district implementing that IEP. If the family disagrees with that offer, the placement could only be effectuated by following the procedural due process steps laid out in the law.
The chronology of steps effectuating the change is articulated in the statute and regulations: (1) CSE Review (8 NYCRR 200.4(d)); (2) Placement Offer (8 NYCRR 200.4(e)); (3) Prior Written Notice to Families (8 NYCRR 200.5(a)); (4) Families’ Notice of Opposition (34 CFR 300.148(d)(1)); (5) Families file Complaint( 8 NYCRR 200.5(i));
(6) Final Outcome of Dispute (8 NYCRR 200.5(j) and (k)).
D. The timing of the change of placement.
In a shift from Placement X to Placement Y proposed by the district and disputed by the family, there is no question that Placement X constitutes the child’s placement up to the Placement Offer; and that the Final Outcome constitutes the child’s placement from the date that outcome is reached, and onwards. What about in between? What is the effective date of the change of placement if the final decision supports the district’s original offer, all the way back to the CSE review that generated the IEP on which the proposed change of placement is based?
Of course, from the moment the Complaint is filed until the Final Outcome is reached, the statute mandates that Placement X be maintained as the pendency placement. So the question can be narrowed to what is the child’s placement from the date of the disputed Offer until the date the Complaint is filed (not coincidentally, the time period in dispute here)?
Finally, there can be no dispute that, if the final outcome is that the district’s proposed Placement Y is inappropriate, that offer will have failed to change the child’s placement and Placement X must continue; any other outcome would constitute a unilateral change of placement and would be barred for the reasons detailed in Zvi D., supra, and successor cases..
The remaining question that must be answered here – whether the placement is automatically, or can be discretionarily, changed at some point after the Offer and before finality of the Order -- is also uncontroversially and unambiguously answered when the district’s proposed Placement Y is ultimately held to have been inappropriate. In those cases, the placement does not shift because the district has failed in its effort to change it.
For the remaining category of cases – those in which the district prevails -- a portion of the timeline remains open, reducing the controversy here, at most, to the question whether the child’s placement can shift (either routinely or by virtue of a final Order) from Placement X to Placement Y at some point between the date of the Review prior to the date on which the Order becomes final? If so, does or can the placement change on the date of the challenged Review? The date of the challenged Offer? Or not at all until the date of the final Order?
The foundational decision in Sch. Comm. of the Town of Burlington v. Dep't of Educ., supra, does not directly answer these related questions, insofar as it addresses the rather different issue of what remedies are available when the district’s proposed placement is found to be inappropriate. Nevertheless, it does offer clear guidance with respect to cases in which the district ultimately prevails:
Burlington expressly holds that where the district fails to offer free and appropriate public education (FAPE) and the families unilaterally change the child’s placement to a private school, the decision maker may reimburse the families retroactively for that placement after the final determination is reached.[14] And it holds, in dicta, that decision-makers are free to issue placement directives prospectively changing a child’s placement and mandating direct payment for the ordered placement.15
Thus, while Burlingtion and its progeny were about situations in which school districts had denied FAPE, Justice Rehnquist drew a meaningful distinction between prospective remedies – which he cast in the form of equitable orders specifying placement, with the cost of the placement falling, by statutory definition, on district shoulders at no cost to the family, even where the order directs placement in a private school – and retroactive ones – which he cast in the form of the equitable remedy of restitution, the reimbursement of money expended out of pocket. Even in the subsequent case within the Second Circuit that most explicitly analyzes retroactive remedies, 16 extending the Burlington reimbursement remedy for risks 17 taken by families whose claims are ultimately vindicated to reach payment orders to cover direct payment of retroactive tuition, the court notably stopped short of retroactively placing the child in the private school.
Courts, in short, can place prospectively, but their retroactive power is limited to reimbursement. [As noted above in Footnote 11, once the decision has been made that the district’s placement is inappropriate and the family’s is appropriate, as it was in this case in 2006, the law is settled that that final order functions prospectively to change the child’s placement from the date of the order on.]
The logic of this is compelling. If courts and IHOs could retroactively change children’s placements, those who have to act before the final judgments are issued would be forced into the role of making book on the final outcome of the case, speculating about what the final decision is likely to be and acting accordingly. In a world in which a second or even a third school year may commence before a decision is handed down by the SRO, much less the District Court, the Circuit Court, or the Supreme Court, the CSE would be forced to do its work at a table erected on a pool of quicksand. On the other hand, if the external decision-makers’ decisions only vest on the date issued, with the prior placement remaining active until that time, the CSE can act from a place of
Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”Id. at 370.
Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., supra.
concreteness and stability: they are seeking to undertake what amounts to a de novo review of a determinate placement.
Moreover, the law’s primary focus on the welfare of the child and the irreversibility of the time that passes while the disputes wend their way through the courts does find a voice of concern and an effective instrument of remedy in the Burlington remedy as expanded by Mr. and Mrs. A.: retroactive reimbursement and direct tuition payment fully protect the children whose families feel so strongly that the district has denied FAPE that they seek unilateral placement in a non-public school. The Burlington risk inures when the familial action involves a change of placement; when placement is continuing, the presumption is that the risk to the child of changing a placement that had previously been expressly determined to be appropriate in order to adopt one that is presently in dispute is simply too great to discount.
Finally, in cases in which a proposed placement is known to be in dispute, shifting placement briefly and temporarily, from the moment of Offer only until pendency would vest, would not only be counter-intuitive and clumsy, it would be positively reckless with respect to the children whose educational lives the law is designed to protect. Placement X is the child’s current placement. The CSE proposes Placement Y. The family objects and eventually files a Complaint. The law must choose between treating the child like a tennis ball, lobbing her from Placement X to Placement Y on the day the offer is made, then back to X on the day that pendency vests, and arguably back to Y on the day the case is finished.
In sum, then, where the district ultimately prevails in its demonstration that it had offered FAPE, the law nevertheless tilts to favor maintenance of the prior placement, because (1) that placement is concretely determinable; and (2) the caselaw limits retroactive remedy to shifting fiscal accountability not children’s placements; and (3) the law favors stability in children’s educational lives.18
17 The risk, of course, being that if they lose their case on the merits they will be liable for the cost of the child’s tuition in the private school.
This last is perhaps most vividly illustrated in the stay-put provision itself. 20 U.S.C. 1415 (j).
I therefore Find, as a matter of law, that the district quite simply could not have effectuated a change of placement at any time prior to the date on which this as-yet continuing hearing finally resolves the dispute, because the final determination of this hearing is an essential component of the mechanism that effectuates the change.[19]
That finding leads to a somewhat remarkable outcome: If the district could not effectuate a change of placement until this case has finally been decided (or the parties have agreed to a change of placement, neither of which can possibly have taken place before April 29, 2013), then it makes absolutely no difference how the merits of this case are decided. No matter what I decide on the merits, it cannot effectuate a change of placement until long after April 29, 2013, the last day on which it could possibly have affected the answer to the sole question before me.
Accordingly, at this moment in time, the merits of this case have become almost entirely moot: no matter what I decide, the outcome remains the same: ’ placement was at the outset of the dispute at the start of the 2012-13 school year, and remained throughout the dispute until the parties agreed to the change in September of this school year.[20]
V. THE APPLICABLE TEST.
A. How many prongs? Unilateral placement versus continuing placement.
The parties jointly have approached this case as though it were a unilateral placement case and have applied the familiar three-prong Burlington/Carter test: Is the district’s proposed placement appropriate? Is the family’s unilateral placement appropriate? Do the equities favor reimbursement/public-funding?
In a unilateral placement case, a child starts in Placement X, which the family does not believe to be appropriate; the district then recommends either continuation in that placement or a change to Placement Y, which the family also does not deem to be appropriate; and, as a result, the family, while opposing the district’s proposal, unilaterally moves the child from Placement X to Placement Z, a private school that the family believes to be appropriate but for which the district declines to pay.
This is not, however, such a case. ’ Burlington/Carter case, Impartial Hearing # was heard in 2006 and is now long past; it was decided and finally resolved when the district chose not to appeal that decision. Indeed, the unilateral placement question had likely been decided even before that, in the first year when the district agreed to or was ordered to fund the family’s placement at . That was the first and only time that was unilaterally moved by his family into ; I have found, above, based on the uncontroverted agreement of the parties, that he attended without interruption from then until the start of the 2012-13 school year.
Rather than being about a unilateral placement, this is, instead, a maintenance-ofplacement case, or perhaps more properly a district’s-proposed-change-of-placement case.
In such a case, a child is currently placed in Placement X, a private school that he attends at district expense and which the family believes to be appropriate; the district seeks to move him to Placement Y, which the family believes to be inappropriate; the family continues the child at Placement X, while opposing the proposed change of placement.
Is there a practical or legal difference between these two theories of the case, between a unilateral-placement case and a change-of-placement case? To be sure, the starting point of both is the same, the first ‘prong’ of Burlington: an inquiry into whether the placement proposed by the district was appropriate as of the date on which it was proposed.
In addressing that question, State law determines that the district has the burden of proof (both the burden of persuasion and the burden of production). NYS Education Law 4404(1)(c). Indeed, that statute places these burdens exclusively on the district with respect to all aspects of the case, “except that a parent or person in parental relation seeking tuition reimbursement for a unilateral familial placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” Id. That is, in a unilateral-placement case, the family has the burden for what is often referred (I think, for reasons irrelevant to this case, inappropriately) as ‘Prong 2’ of the Burlington/Carter test. And at Prong 2 unilateral-placement and change-of-placement cases diverge:
In a change-of-placement case there is no ‘Prong 2’ because the child has not been unilaterally removed by the family. Rather, the family seeks to have the child continue in the then-current placement for which the district had concededly previously been responsible. The family in a case such as this is simply challenging the district’s efforts to move the child out of what had jointly been considered, until the date of the challenged attempt to make the move, his appropriate placement.[21]
If the family has unilaterally placed the child – if, that is, the family has removed the child from his or her then-current publicly provided placement (not the offered placement, but a public or publicly-funded placement the child had been in at the time of the hearing request) – then the Burlington/Carter test is applied. That test requires the family to demonstrate that the new unilateral placement is itself appropriate. Burlington, supra., 471 U.S. at 370. And it leaves a final determination of whether or not to fund the unilateral placement up to the decision maker’s weighing of the equities. Id. at 373-74.
If, on the other hand, the child remains in the public or publicly-funded placement he or she had been in prior to the offered change of placement, then the case must end with the finding that the district failed to meet its burden of showing that its proposed change constituted FAPE. N.Y. Educ. L. 4404(1)(c). In such a case, because the family has not made a unilateral change, the existing placement does not turn back into a pumpkin at midnight at the end of the school year. The district has, simply, failed to effectuate a change and must continue the child in the then-current publicly-provided placement (which, of course may be in a public school, but which may also be in a private school pursuant to an order or a contract with the district).
So there are two key differences between unilateral-placement cases and changeof-placement cases: first, change-of-placement cases by definition cannot trigger ‘Prong 2’ of the Burlington/Carter inquiry and, as a result, second, they do not shift the burden of proof pursuant to New York’s unique allocation of that burden in N.Y. Educ. L. 4404.
Here, this means that because the family did not in fact effectuate a change, but rather continued the child in the publicly-funded 2011-12 placement (or, more precisely, the publicly-funded 2006-07 placement from which he had never been moved), there is no need to review the appropriateness of during 2012-13; it simply continues during the period in question because the district could not yet have effectuated a change of placement at any time during that period. The sole question presented on the merits is about Prong 1, the assessment of the district’s proposed placement.
The lack of a Prong 2 does not, however, eliminate what is commonly referred to as ‘Prong 3’ – a consideration of whether the equities favor a shifting of the cost of the program ordered by the decision-maker. In a case that arises from the equitable powers of the federal courts, as Justice Rehnquist notes that all special education hearings do (Burlington, supra, at 374), the equities are never off the table when crafting a remedy.[22]
More critically here, the structure of the law creates a circumstance in which a balancing of the equities seems particularly apposite: the two year statute of limitations makes it possible for a family that has been awarded reimbursement for a unilateral placement in an impartial hearing in Year 1 to sit out Years 2 and almost all of Year 3 before filing a challenge to the district’s recommendations for those years. During that time, the unilateral placement would have morphed into the district placement, pursuant to the Letter to Hampden analysis, and the inability of the district to force swift adjudication of the family’s objections to its subsequent placements could leave it appeal the decision in , the parties also agreed with respect to that final determination. So placement was both a finally ordered placement and a placement resulting from an agreement between the parties.
helpless and exposed. To be sure, that risk must be evident to the district when it decides, as it did in Case not to appeal. Nevertheless, the possibility that a family might seek to manipulate its filing for the purpose of dodging review renders a consideration of the equities the only protection available to prevent such procedural skullduggery.
Accordingly, in a continuing-placement case such as this one, there are two potential ‘prongs’ to be decided: the propriety of the district’s placement and the balancing of the equities. Under NY Educ. L. 4404, the burden of proof and persuasion for both fall to the district.
B. Notice.
There is a second difference between uniilateral placement and continuing placement cases. In a unilateral placement case, decision-makers are permitted, but not required, to reduce or deny reimbursement unless the family provides the district with one or the other of two forms of notice of their opposition to the recommended placement and their decision to remove the child from the publicly-provided placement. 34 CFR 300.148(d)(1). The context and language of that mandate bear careful parsing. On its face, it is permissive, not mandatory (“[t]he cost of reimbursement … may be reduced or denied … ). Id. Emphasis added. It is about reimbursement, not direct payment, and it is expressly about unilateral placements not continuing publicly-provided placements in non-public schools. Id.
It would seem therefore simply to be inapplicable to continuing-placement cases such as this one. Nevertheless, at least one District Court has ruled that some sort of notice by the parent is required when the district proposes to remove a child from an existing publicly-provided placement such as ’ at and the parent opposes that removal and seeks to continue the non-public placement.
In S.W. v. New York City Dep't of Educ., supra, the parent “did not give notice to the DOE that she had rejected the public school placement and had enrolled . at [the private school he had been attending pursuant to a series of settlements] until the following January [after September enrollment].” 646 F. Supp 2d at 654. While the private school in that case had never been the child’s legal publicly-provided placement, Judge Koeltl did not appear to view that fact to be consequential. The family argued that
34 CFR 300.148(d)(1) “the notice requirement does not apply to students who are already enrolled in private school, because the relevant portion of the statute refers to giving ten days' notice ‘prior to the removal of the child from the public school.’” S.W, supra, 646
F. Supp. 2d at 361 (S.D.N.Y. 2009).
The Court concluded:
The reading advanced by [plaintiffs,] would mean that parents of children who are enrolled in private schools at public expense, or who are otherwise not currently enrolled in a public school, have no obligation whatsoever to notify their local school district before unilaterally enrolling or re-enrolling their children in private school. … This reading is plainly mistaken. See Greenland, 358 F.3d 150
(applying notice requirements where parents had re-enrolled child at private school); see also Roark v. District of Columbia, 460 F.Supp.2d 32, 41 & n. 9
(D.D.C.2006) (assuming without deciding that notice requirements applied to parents whose child was already enrolled in a private school at public expense and who removed the child to another private school).\
Id. at 363.
Although the case does not stand for the premise for which the district cited it,[23] does directly hold that parents of children continuing (re-enrolling) in private school placements at public expense have an obligation to provide the district with some form of notice of rejection of the district’s offered placement.
Because the child in . had never been placed in the private school, by means of either agreement to a CSE recommendation or order finally resolving a dispute, and because the family in that case had never provided the district with any notice of her opposition to the district’s proposed placement until she formally requested a hearing, it is unclear what sort of notice, if any, is required in a situation such as the one here. In
light of the plain language of the regulation (leaving the effect of a lack of notice to the discretion of the hearing officer and not seeming to apply in cases where the child is simply continuing in a publicly-provided setting), and in light of the factual differences that distinguish from the case at hand, I Find that any expectation of notice to the district in a case such as this is a matter to be considered when balancing the equities, and is not a per se requirement under the Act. Nevertheless, the parent here did, in fact, provide precisely the sort of notice required by S.W. Exhibit N.
In sum, the two significant differences between a unilateral-placement case and a continued-placement case are (1) that there is no obligation to assess the propriety of the unilateral placement in a continued placement case because there is no unilateral placement to assess; and (2) that whether and to what extent the family is obligated to notify the district of their objection to a proposed change of placement is a matter to be determined, among others, in the balancing of the equities.
VI. THE EQUITIES
A. Recapping the balance.
Above, in Section II focusing on providing guidance to the parties for their continuing interactions, I detail the way the equities align as I see them. I summarize them here and expand only where that section condensed the authority for the legal underpinnings of my conclusions.
In sum, it is a 4-way balance: the family, the district, , and . ’ interests largely trump those of the other three, but the record would lead me to conclude as I do even if they did not.
Taken as a whole, the district failed to meet its burden of dislodging its obligation to continue funding ’ placement until the dispute is finally resolved. It did not meaningfully allege, much less demonstrate, any evidence of lack of cooperation, bad faith, or unclean hands on the part of the family. For this reason alone, the equities would not upset the district’s obligation to provide service to pursuant to NY Educ. L. 3202, nor did it reveal any other placement besides by which it could meet that obligation.
The family ideally should have followed up by articulating their objections to the IEP and the district’s placement offer once that offer was received after June 21. But that desideratum is outweighed by the facts that (a) because they sought to continue ’ publiclyprovided placement, not remove him from it, there is no statutory obligation for them to have provided any notice at all (20 U.S.C.§ 1415 (f)(3)(E)(ii)); (b) had they instead been making a unilateral placement, the statute does not require notice but merely permits the lack of notice to be taken into account by me when crafting a remedy (id.); (c) notice of the intent to continue at had indeed been provided, albeit about the failure to provide a timely final notice of recommendation (FNR) (Exhibit N); (d) the district’s offer of placement was so late as to have rendered any such notice impossible to submit 10 days prior to the start of the school year (Exhibit 7); (e) by any reasonable standard the district knew or should have known that the parent was continuing at (id.); (f) the parent went out of her way to seek to visit the offered placement even though the district had failed to make a specific offer in time to allow her to visit it before the school year started (Transcript at 286-6); and (g) the parent’s openness to a subsequent recommendation of public school for the current school year bespeaks a willingness to take such an offer seriously and without guile (Transcript at 233-335).
The family also could have avoided the question to be decided here if they had filed sooner than they did, which might have limited the district’s exposure by several months. (Transcript at 213-4.) This is counterbalanced by the fact that (a) a review of the record, discussed in greater detail below (Section VI(B)), leads me to conclude that the district could not have prevailed on the merits; (b) there is no evidence whatsoever, in the record that the delay was for the purpose of running out the clock and no suggestion was made by the district that it had been made for that purpose (Transcript at 213-4); (c) in general, litigation strategies, such as when to file within the applicable statute of limitations, are matters that due process requires be left within the discretion of the parties and their counsel.
Turning back to the district, it was dilatory in its offer of a specific placement to the family, offering it several days after the absolute deadline for the provision of notice of objection that the district argued should be applied to the parent. (Exhibit 7). In light of the months of delay on the district’s part that passed between the CSE review and the (late) identification of a site, if not a classroom, I cannot conclude that the parent’s delay was less excusable than the district’s.
Moreover, the district was or should have been aware that it could not prevail on the merits, for the reasons detailed below in VI(B), but nevertheless pursued this litigation against a parent of limited means (Transcript at 271) who had diligently cooperated over a many year period with the CSE, and who had every expectation that the district would act in a manner consistent with its actions over the past half dozen years. The district had an independent fiduciary responsibility for – a student among those it was currently serving (by providing him with a publicly-provided placement) – and yet it failed to take his special needs into account in the development and implementation of its litigation strategies. The fact that ’ family was challenging one of its recommendations did not relieve it of its continuing obligation to afford him a placement and to act in a manner consistent with its obligation to provide him at all times with FAPE.
The school, for its part, acted in a manner that contributed to the parent’s fear that she might become liable for a debt three times her annual income. Transcript at 297-300. The contract that it required ’ mother to sign was a contract of adhesion (because the parent had no meaningful opportunity to negotiate any of its terms) and verged on being extortionate (in light of the cost imposed and failure to offer any opportunity to seek scholarship assistance from the non-profit school if the hearing failed to award continued funding).
While it seems possible that the school may have chosen not to enforce the financial terms of the contract against the family if the family failed to prevail at a hearing, it chose to draft the document in a manner that maximized the parent’s fears and feelings of potential guilt. It chose not to draft the contract to reflect what it seems likely was its true intent: to seek no more than a means-based tuition if the district were not ultimately deemed accountable for the costs. See, generally, Exhibit F, Transcript at 29899 and 311-13.
To be sure, the school was pressed by self-interest to do so in response to the district’s repeated efforts to litigate theories that argued that the school was not the real party in interest unless the parents were held accountable under an enforceable and enforced contract (see D.A., supra) or that the contract was a sham and therefore a nullity (see A.R., supra). Nevertheless, the school, like the district, had a fiduciary responsibility to the children in its care and, once it accepted the contractual placement from the district, arguably had a legal responsibility to provide that placement in accord with State and federal special education law. That law mandates against removing a child from his or her current placement except by means of the due process mechanism detailed in the law which had not, for the reasons detailed above, as yet removed from . It also means that the placement must be provided to the family at no cost to them (20 USC 1401(29)), a provision that the agreement essentially ignored.
Again, was likely motivated by the district’s urging 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.” D.A., 769 F. Supp. at 406, and by the State Review Officer’s ruling, now expressly reversed by D.A., that “IDEA does not authorize payment of private school tuition costs where a parent—due to a lack of financial resources—has not incurred out-of-pocket expense.” Id. at 420. In sum, the equities with respect to this intersection of the private and public schools weigh strongly against rewarding their joint effort to impose what amounts to an illegal means test on this important component of the family’s due process rights created and guaranteed by the IDEIA.
Finally, and most importantly, for the reasons detailed above, ’ own rights militate against imposing an allocation of cost that could only proceed from a theory of the case that would treat him like a yo-yo. As discussed above, that theory of his placement would conclude that ’ placement changed from for the period September 1, 2012 until April 28, 2013, only to be returned there no less arbitrarily on April 29 because of the operation of the district’s arcane application of its reading of the pendency entitlement and its desire to pinch pennies by forcing ’ family to litigate this matter immediately if they were going to do so at all.
B. The Merits.
I hate it when a decision maker writes: “I therefore need not reach the following point …” and then proceeds not only to reach it but to flog it into the ground. Nevertheless …
For the foregoing reasons, I need not, in general, reach the merits in this case because ’ placement would be the same no matter I decide about them: was ’ legal publicly-provided placement for the period in question.
And that is where I would leave it, but for the fact that the merits do have bearing on the equities with respect both to the district's decision to litigate this case to a conclusion and to ’ family’s decision not to file the Complaint in this case until late April.
Turning, then, to a brief assessment of the merits as revealed in the record, the family alleges here, in short, that the district failed substantively to provide FAPE because it failed adequately to evaluate as mandated by law and failed to consider the provided by his family as similarly required by the statute; and it alleges that the district failed procedurally to provide FAPE when it denied the family’s right to participate fully in its decision-making by failing to take the that ’ mother provided into account at all in the CSE review under challenge.
I Find that the family was likely to prevail on both of these arguments, based on the evidence before me, and I further Find that the district accordingly failed entirely, and should have known that it would so fail, to meet its burden with respect to demonstrating the appropriateness of the challenged placement.
In briefest capsule form, the statute accords the child four distinct substantive rights (and a fifth entitlement, to the core procedural protections that in the US Supreme Court deemed no less important than the definition of any one substantive standard24), like a chair with four legs. The law assures each child of:
24 “When the elaborate and highly specific procedural safeguards embodied in § 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving families and guardians a large measure of participation at every stage of the administrative process, see, e.g., §§ 1415(a)–(d), as it did upon the measurement of the resulting *206 IEP against a substantive standard.”
(1) a proper by a multi-disciplinary team (implemented in 34 CFR 300.122);
(2) a program developed on the basis of that , collaboratively by a committee with specified membership including the families or the child and captured in an IEP (implemented in 34 CFR 300.320 et seq);
(3) a proposed placement capable of delivering that IEP program (implemented in 34 CFR 300.101), to be in effect at the beginning of each school year (implemented in 34 CFR 300.323);
(4) the actual delivery of the IEP program once the child is enrolled in the offered placement (id.).]
Denial of any one of these four rights is a denial of the district’s substantive obligation to the child. Evidence that each leg is independently protected ranges from the Second Circuit’s holding in R.E. that no matter how well a placement implements a program that fully meets a child’s needs it cannot cure defects in the development of the IEP (R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2012), at 186-88), to the language of the statute that defines what constitutes a procedural violation so severe that it constitutes a denial of FAPE, language that equates a denial of FAPE not only with the development of a substantively flawed placement but with interference with the family’s capacity to participate in the process delineated in (2) above:
Procedural issues
In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies--
(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the families' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the families' child; or
(III) caused a deprivation of educational benefits.
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 205-06, 102
S. Ct. 3034, 3050, 73 L. Ed. 2d 690 (1982)
20 U.S.C.§ 1415 (f)(3)(E)(ii)
Similarly, the denial of the right to an , and the failure to take that into account as a part of the CSE review, each separately constitute a violation of the family’s core substantive rights under the law. When coupled with the allocation of the burden of proof N.Y. Educ. L. 4404, in particular in a case such as this where the family alleges precisely these deprivations relating to ’ , the district must show that it has conducted all mandated and considered all relevant reports at the CSE review.
Here, the district has failed to meet either burden. It is obligated to conduct an no less frequently than once every three years (8 NYCRR 200.4(b)(4)), but there is no evidence that it had done so at the time of the CSE meeting under review. It could have waived such an but it had to do so in writing and (at the time this review took place) based upon a written determination that none was needed (id.; the language of the regulation was amended to remove the requirement of the written , subsequent to the date of the CSE review). No such waiver or determination was entered into the record. It could have, indeed it must have, taken the family’s reports into account (to the extent they were provided to the district by the family). 8 NYCRR 200.5(g)(vi). Here, all agree that the family provided detailed assessments to the district, but there is no evidence to demonstrate that the district decided to rely on these in lieu of conducting its own triennial review, nor that they were even taken into consideration by the CSE. Indeed there is no evidence at all of what took place at the CSE review, because the district's sole witness who attended acknowledged that she had no recollection whatsoever of this specific review. Transcript at 22-30 and 50-52.
The district argues that the CSE could/would/should have taken these into account simply because it is supposed to do so when it possesses such reports (Transcript at 383400),[25] but that hardly counts as a demonstration that it did do so, and falls far short of the district’s burden of production, much less persuasion with respect to having done so. Not only did the only district witness who attended the review state that she had no independent recollection of having done so (id.); there is no reference to the reports in the IEP (Exhibit 3); no exhibit reflecting that, in the alternative, a had conducted a review and filed a written report that no was necessary, and the district did not submit any evidence of these reports as having formed part of the basis of the committee’s review as required by law and regulation. 8 NYCRR 200.4(d)(5).
And so the district’s case fails on the merits as well, and should not have been litigated once the district became aware that it lacked the documentary and testimonial evidence on which to build even a prima facie case.
VII. ORDER
In sum, the months in question took place at a point in time when was, without interruption, ’ legal, publicly-provided placement.
The district cannot have moved or changed his placement, as a matter of law, until the dispute being litigated here is finally decided or resolved.
Accordingly, its responsibility to continue to provide that placement during the full period in dispute here (and thereafter, pursuant to pendency) continued without interruption.
’ family sought only to continue him in the publicly-provided placement, not to remove him from it, and therefore the propriety of that placement is not at issue here.
’ family provided the district with adequate notice that it would seek to challenge the district’s recommended change of placement, and that ’ mother intended that he continue in his existing placement at until that challenge had been effectuated.
The equities do not support shifting responsibility for the cost of continuing that placement away from the district and onto the family, who cooperated fully with the district and who lack the means to have paid for the placement if such a shift were including his 2009–2010 IEP, It simply held that the fact that no were conducted did not amount to a denial of FAPE (D.B. v. New York City Dep't of Educ., 12 CIV. 4833 DLC, 2013 WL 4437247 (S.D.N.Y. Aug. 19, 2013)); here,however, there is no evidence that any clinical information at all was either ereviewed or taken into consideration by the CSE review challenged in this proceeding. ordered. To the contrary, the district’s delay in notifying the parent of its placement recommendation and the fact that a decision rendering the district non-accountable for the period in question would amount to a ruling that should have been shuffled back and forth repeatedly during the 2012-13 school year, strongly favor continued funding of the placement by the district.
I therefore Order the district to pay directly to the cost of ’ continued attendance in that placement for the period September 1, 2012 until April 28, 2013, and that, if it has not already done so, it further pay directly to the cost of ’ attendance in that program, pursuant to pendency, for the period April 29 – June 30, 2013. Dated: November 13, 2013 Original Decision Rendered: November 6, 2013
________________________
JOHN FARAGO, ESQ.
Impartial Hearing Officer JF:mv
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT .
A , 1/27/10, 4pp
B , 10/12/10, 12pp
C , 2/20/10, 4 pages
D on, 11/30/10, 2 pages
E , Undated, 6 pages
F , 6/20/12, 2 pages
G , November 2012, 18 pages
H , March 2013, 18 pages
I , June 2013, 18 pages
J , 3/20/12, 2 pages
K Attendance, 6/20/13, 1 page
L Meeting 30/12, 5 pages
M Decision case 105330, 10/23/06
N Ten-day notice, 6/21/12, 1 page
DISTRICT
1 Due Process Complaint, 4/29/13, 3pp 2 Due Process Response, 5/2/13, 3pp 3 IEP, 3/30/12, 22pp 4 CSE notes from IEP meeting, 3/3/12, 5pp 5 , March 2012, 15pp 6 Letter scheduling CSE meeting, 2/23/12, 4pp 7 6/21/12,1pp 8 Emails w/briefs re: subpoenas and pendency, 161 pp
Footnotes
[2] The burden of proof allocation includes a single, limited, exception, assigning the burden to the family when the family is “seeking tuition reimbursement for a unilateral parental placement”. In such cases, the
[3] These two U.S. Supreme Court decisions form the foundation for the often-cited 3-prong ‘Burlington’ or ‘Burlington/Carter’ test for provision of reimbursement for unilateral familyal placement in cases in which families challenge that a placement recommended by a school district fails to offer a free appropriate public education (FAPE).
[4] The district further cites S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 354 (S.D.N.Y. 2009), a Southern District case that appears to extend the notice requirement to situations in which the family seeks to continue the child in a publicly-provided placement in a private school when the district has made a recommendation to return the child to a public school placement.
[5] Discussed at length in Section III, below. Discussed at length in Section V, below.
[7] From that date until this case is finally decided or the parties agree otherwise (whichever comes first), the district was and is responsible for the cost of continuing to provide ’ placement at , subject to a balancing of the equities.
[7] Discussed in Section VI(A), below. Discussed in Section VI(B), below.
[9] Mr. and Mrs. A. ex rel. D.A. v. New York City, 769 F.Supp.2d 403 (SDNY, 2011), affirmed the legitimacy of a private school that had absorbed some or all of the financial risk of continuing the placement of a child for whom the families were to seek funding via an impartial hearing; more recently, A.R. ex rel F.P. v. N.Y.C. Dept. of Educ., 2013 WL 5312537 (SDNY, 2013), upheld the validity of a contract between itself and another family of a different child even though it was evident that the family could not afford to pay the cost of the tuition to which the contract committed them. There is no longer any need, if ever there were, for a private school to engage in contractual pretense when it undertakes the mix of self-interest and altruism implicit in allowing a family with limited resources to place a child prospectively in anticipation of the likelihood that the family will eventually prevail in an impartial hearing.
[11] Of course, one could simply argue that Judge Karas was merely wrong when he apparently ignored the facts of the line of clear Second Circuit precedent in the cases he actually cited within Weaver, but if his decision is to be construed in a manner that allows it to be consistent with that binding authority, it must be
[13] Again: “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the families otherwise agree, the child shall remain in the then-current educational placement of the child.” 20 USC 1415(j)
[14] Justice Rehnquist wrote that the federal special education law grants to decision-makers in impartial hearings, “the power to order school authorities to reimburse families for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.” Burlington, supra, 471 U.S. at 369 (1985); emphasis added. “In a case where a court determines that a private placement desired by the families was proper under the
[19] I note again, of course, that here there has in fact been a change of placement before the conclusion of this case, but it arises from an agreement between the parties, which always trumps an ordered change. That shift, however, takes place only after the scope of remedy of the instant case, and serves only to limit further the possible impact of the decision here to being about precisely what the parties agree this case to be about: responsibility for the cost of the program for the limited period between September 2012 and the end of April 2013.
[20] I do consider the merits below, briefly, in Section VI(B), because the specific facts in this case make the assessment of likelihood of success on the merits relevant to the district’s calculus about whether it was appropriate to litigate this case, and thereby to the balancing of the equities with respect to whether this was an appropriate case in which to seek to pursue vindication of its interests in limiting liability where a parent fails to file a Complaint prior to the date of proposed initiation of the challenged IEP.
[21] The fact that the district did not affirmatively place the child at on its own makes no difference. It acted consciously, and with no less deliberation than if it had offered to place the child there, when it decided not to challenge the decision in 0. As the US Department of Education opined in Letter to Hampden, that decision was a final decision to change the child’s placement. And because the family also chose not to
[22] As discussed above, where the remedy is enforcement of the ministerial entitlement to pendency, by contrast, the equities do not enter into the calculus. See discussion above at Page 21.
[23] The district cited the case in an email dated July 17, 2013 and included in District Exhibit 8, arguing that the . court “implicitly held that each year a parent places their child anew.” It does not do that, and indeed does the exact opposite: it acknowledges the distinction between enrolling and re-enrolling, and it precisely understands that the child in that case was continuing in an existing placement at district expense, and that the district was seeking to change that placement, and that the parent was objecting to the change. It holds that the parent had an obligation to provide notice of that objection, to the district, pursuant to regulation, as the parent did here.
[25] In this closing statement, the district cited a recent case in which it alleged that were “there was no denial of a FAPE when there hadn't been a triennial if there had been progress reports, a teacher participated in the meeting, [and] a prior IEP was considered.” Transcript at 399. In that case, however, the district had indeed had past clinical material available to it and the court expressly noted that that material had been considered: “The CSE also reviewed a number of additional reports documenting the Student's abilities,