New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554527 - NYC: 210624

This hearing is the most recent of several concerning allegations raised by the family with respect to the district’s asserted failure to provide the student with an appropriate special education program. Specifically, the family asserts that the district failed to offer the student an appropriate placement for the 2021-22 school year and that, as a result, they were left with no choice but to place the student unilaterally in a program and placement that they deemed to be appropriate. They seek, among other things, district responsibility for the cost of that unilateral placement, including private transportation costs, as well as a finding that the program they have opted for is appropriate, and a determination that, if finally ordered or if the district accepts the Order and does not appeal it, will function to place the student at the unilateral placement for the year in question.

The district maintains that it has offered the student a FAPE and argues that the family’s requested relief be denied in its entirety.

• • The Law that Governs.
• • The Elements of the ‘Denial of FAPE’ Cause of Action – The ‘What’ of the District’s Prima Facie Case.

Special education cases such as this one are often described by the parties as being ‘about’ the remedy sought, rather than about the harm that remedy is designed to address. But that’s backwards. While a family’s motivation to bring a case may be driven by a remedy they crave, the case itself is no more about a remedy than a disease is caused by its treatment.

So, for example, many cases are referred to as ‘reimbursement’ cases because the family seeks to recover the cost of the self-help they have engaged in. Or they are referred to as being ‘prospective payment’ cases, when the family seeks direct payment to the school or other provider. But reimbursement and prospective payment are not elements that must, or even may, be proved; they are discretionary equitable remedies that may be crafted when the decision-maker deems it appropriate to do so.

The entitlement created by the law is exclusively the package of rights already described: the right to a free appropriate public education in the least restrictive environment. A FAPE in the LRE. While the statute creates a broad power on the part of decision-makers to devise remedies when that entitlement has been denied, those powers are discretionary and do not yield a right to receive reimbursement … reimbursement is merely an option, at the discretion of the decision maker, as he or she balances the equities of the individual case. To call a case a ‘reimbursement’ case is, therefore, to mischaracterize the parties’ rights and responsibilities by treating a discretionary remedy as though it were an inviolable right. For that reason, there is no such thing as a ‘reimbursement’ or ‘prospective payment’ case under the IDEA. There is, simply, no right or entitlement to receive either of those remedies under the statute, ever.

As a result, the cause of action alleged in every special education hearing is the denial of a free appropriate public education in the least restrictive environment to a student who is eligible under the law. This entitlement is loosely equivalent to what is often called the ‘first prong’ of the ‘three-prong test’ that leads to reimbursement under the analysis articulated in the Burlington/Carter line of cases discussed in depth below. But, again, reimbursement is neither the claim being made nor the entitlement being protected in any special education hearing. And the ‘Burlington test’ is neither a test nor made up of three prongs; it is simply a statement of the obvious: holding a school district accountable for the cost a family’s self-help is an exercise of the decision-maker’s equitable remedial powers and, as such, requires, first, before there may be any remedy, a showing that a harm has been done (that there was in fact a denial of FAPE); second, and only if there has been such a denial, a remedy may be crafted to restore something akin to balance.^[1]

So, in general, hearings such as this one address the core questions arising from whether the district has met its obligation to offer, to an eligible student, a placement that is indeed appropriate. Those questions are, in essence, three (though each subdivides further, of course):

(a) At the threshold: Is the student eligible to receive services.

(b) If so, has the district properly offered the student a placement?

And, (c) if so, does the placement offered appropriately address the student’s needs?

• • Eligibility There are four components to a determination of eligibility, if the question is in dispute:

First, the child must be age-eligible: he or she must be”a student … who has not attained the age of 21 prior to September 1.” 8 NYCRR 200.1(zz).^[2]

Second, the child must be entitled to attend public school pursuant NY Educ. Law 3202. 8 NYCRR 200.1(zz).

Third, the child must be “identified as having a disability.” 8 NYCRR 200.1(zz). The law lists and specifies the thirteen disabilities that satisfy this aspect of the definition:

• • Autism
• • Deafness
• • Deaf-blindness
• • Emotional disturbance
• • Hearing impairment
• • Learning disability
• • Intellectual disability
• • Multiple disabilities
• • Orthopedic impairment
• • Other health-impairment
• • Speech or language impairment
• • Traumatic brain injury
• • Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a student's educational performance. The term includes both partial sight and blindness.

Fourth, the child must be one who can, “because of mental, physical or emotional reasons … only receive appropriate educational opportunities from a program of special education.” NY Educ. Law 4401(1).

• • Was a Placement Offer Made?

At a minimum, the district must, as a second element of a showing that it has provided FAPE in the LRE, show that it made a timely offer of placement to the family, in a manner that permitted the family adequately to assess whether or not it deemed that placement appropriate. Evidence of this offer, of its substance, its reality, and its propriety, is neither speculative nor retroactive; it is the culmination of the CSE’s work. Implementation of the offer, on the other hand, takes place only if the family accepts the offer and the student attends. In most cases, concerns about implementation issues, once the family has rejected the offer, are speculative and unavailing, as the courts have repeatedly noted. M.O. v. New York City Dept. of Educ., 793 F.3d 236 (2015). But that does not diminish the district’s obligation to show that it has made a sufficiently precise offer, supported by sufficiently detailed information, to allow the family to assess (prior to the moment when they must accept the offer or seek a hearing to challenge it) whether they believe that the student will be appropriately served in that placement.

Thus, even with respect to placements that remain only a glimmer in the eye of the recommending school district, the parent must have enough concrete, non-speculative, information about the particular school to be able to make a prospective determination whether or not it is reasonably likely that it can implement an appropriate IEP. That is precisely the NYC practice that the Court in R.E., Individually, on behalf of J.E., M.E., Individually, on behalf of J.E., Plaintiffs–Appellees, v. NYC Dept of Educ., 694 F.3d 167 (2d Cir. 2012) was careful to highlight when it noted that the respondent in that case (New York City’s Department of Education) had a “practice … to provide general placement information in the IEP, such as the staffing ratio and related services, and then convey to the parents a final notice of recommendation, or Final Notice of Recommendation (FNR) identifying a specific school at a later date. The parents are then able to visit the placement before deciding whether to accept it.” At 191.

The mandate is aptly defined in greater detail by the Court in D.C. ex rel. E.B. v. New York City Dept. of Educ., 950 F.Supp.2d 494 (2013):

Prior to making a placement decision, a parent must have sufficient information about the proposed placement school's ability to implement the IEP to make an informed decision as to the school's adequacy. At the time the parent must decide whether to accept the proposed placement or unilaterally place a student elsewhere, the only information available to the parent about the proposed placement are the FNR [Final Notice of Recommendation] and, if the parent visited the proposed placement, the information provided during the visit. The information a parent can glean from these two sources creates considerable reliance interests because the parent must decide, based solely on this information, whether to take the financial risk of unilateral placement.

950 F. Supp. at 510.

More recently, in a Southern District case subsequent to the Second Circuit’s decision in M.O. v. New York City Dept. of Educ., 793 F.3d 236 (2015), Judge Engelmayer reaffirmed that the family has precisely the entitlement articulated in D.C.:

Do parents’ procedural rights stop the moment the CSE meeting ends? In other words, is the DOE’s “snapshot” conception of the Parent’s participatory right correct? Or do parents have a continuing participatory right—including, relevant here, to obtain timely information about, and/or to comment upon, the DOE’s placement decision? For the reasons that follow, the Court rejects the DOE’s myopic conception of a right limited to participating at the CSE meeting. The Court holds, including based on the Second Circuit’s decision in M.O. v. New York City Department of Education, 793 F.3d 236, 244–45 (2d Cir. 2015), that parents have the right to obtain relevant information in a timely fashion about the DOE’s proposed placement of their child, so as to enable them to assess and comment on that placement.

FB v. New York City Dep't of Educ., No. 14 CIV. 3902 PAE, 2015 WL 5564446, at *11 (S.D.N.Y. Sept. 21, 2015)

And subsequent to F.B., the Second Circuit reconfirmed that, “[w]e have recognized in other contexts the procedural importance of the parents' ability meaningfully to evaluate the sufficiency of the [placement] before it is finalized. For example, we have explained that school districts defending the adequacy of an IEP must do so with evidence that was available to parents at the time of the IEP's creation.” T.K. v. New York City Dep't of Educ., No. 14-3078-CV, 2016 WL 229842, at *5 (2d Cir. Jan. 20, 2016; citing R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 186 (2d Cir.2012))^[3]

The district must document, therefore, that it had made the placement offer to the family, and that the family had an opportunity to visit or otherwise assess whether that offer was appropriate. An appropriate written program is a wonderful thing, but unless a placement is offered to effectuate that program the child’s IDEA entitlement has not been fulfilled; and unless the district can show that it had made such an offer, its burden is still unmet. Further, the district must show that the placement it offered was viable; that it was reasonably likely, as of the date of the family’s decision, to be able to implement the child’s IEP. At the very least, the district has the obligation to demonstrate that it did in fact offer a bricks-and-mortar placement, not merely a paper and pen IEP. And once it does so it must at the very least support the assertion that the placement offered was appropriate.

• • Was it Appropriate? – The Rowley/Endrew Standard
• • Substantive Appropriateness.

As a third element of the cause of action, to be appropriate, a placement must derive from the chain of steps detailed above: an appropriate evaluation, an appropriate classification, and an appropriate program described in an appropriate IEP.

But what, as a matter of law, does it mean for any of these to be ‘appropriate’? The Supreme Court squarely asked and answered that question in Rowley, supra. The Court there started by analyzing what it means substantively for a district (or, by extension, a parent in a unilateral placement) to provide an appropriate placement. They concluded, as a starting point, that:

if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a ‘free appropriate public education’ as defined by the Act.

458 US at 189.^[4]

The Court went on to reiterate that this requirement is met “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”. Id. at 203.^[5]

The facts in Rowley involved a deaf student who was making progress in the public school’s regular education program with the assistance of an FM unit; her family argued that she would have made even more progress had a sign language interpreter been provided instead, and, importantly, they argued that the Act required the district to do all that it could do to optimize the student’s progress. In rejecting that claim the Court addressed an sought to define how low to set the upper boundary of what the Act requires of the district; it expressly left open what the Act requires as the lower boundary (because, in light of the student’s measure of success, it did not need to), and the Circuits came to split in addressing that question.

Cast in this light, the federal standard amounts to a floor, not a ceiling; the district’s placement need not be optimal – the IDEA does not require districts to support the child’s effort to achieve his or her full potential, or to maximize his or her capacity to learn. Rather, the public school program will be deemed to afford FAPE if it is reasonably calculated, at the time the program or placement is being made, to afford the child meaningful educational benefit.

This does not mean that the district will prevail if it can show simply that the child did in fact learn – some parents provide additional supports to their children, and the child may be benefiting instead from those supports and not from the school’s program. See id. at FN 25. The benefit must reasonably be seen to derive from the proffered program itself.^[6]

Conversely, neither does a failure to learn mean that the district has failed to offer FAPE – learning is a two-way street and requires the active participation of the learner, who has the capacity to thwart the most marvelous of programs.

What matters is whether a reasonable person with specific knowledge of the particular child would, knowing what the district was able to know at the time of its review (or what the family knew when it decided whether or not to accept the district’s offer), conclude that the offered placement could provide meaningful academic benefit to the child. As the Court captured this heightened minimum standard in Endrew:

Rowley sheds light on what appropriate progress will look like in many cases. There, the Court recognized that the IDEA requires that children with disabilities receive education in the regular classroom “whenever possible.” Ibid. (citing §1412(a)(5)). When this preference is met, “the system itself monitors the educational progress of the child.” Id., at 202–203. “Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material.” Id., at 203. Progress through this system is what our society generally means by an “education.” And access to an “education” is what the IDEA promises. Ibid. Accordingly, for a child fully integrated in the regular classroom, an IEP typically should, as Rowley put it, be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id., at 203–204.

…

If [the child is not fully integrated in the regular classroom and not able to achieve on grade level], his IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.

Endrew at 999-1000.

Rowley and Endrew thus set a student-specific,^[7] comparatively low minimum standard for the district to meet.^[8] One would think that any school district acting in good faith and cognizant of its obligations to all of those in its potential care, would routinely meet this standard the vast majority of the time. And in fact that tends to be the case. Even in NYC (where the vast majority of special education hearings in NY State originate), no more than about one family in 20 (among those receiving special education; fewer than one in 150 families among students city-wide) requests a hearing in any given school year. And, of course, the federal standard merely defines a minimum acceptable level of support. Districts are free to, and often do, provide students with a good deal more than the federal minima. Indeed, the law is deferential to both generosity and collaboration: if the parties work together to define a program that they jointly deem acceptable, the law permits them to do so, because legal review only takes place when the family initiates an Impartial Hearing. And the law surely permits the parties to agree on a program that goes substantially beyond the minima that Endrew and Rowley require.

The Rowley and Endrew Courts carefully and explicitly framed a standard that accords disabled children the same measured and imperfect entitlement that all parents, not just those of special needs children, might legitimately expect from public education: that public school classrooms need not be ideal, they need not always work for every child, there may be better classes and worse ones, better teachers and worse ones, better years and worse ones, but a public school education must provide each child, each year, with a meaningful opportunity to learn and make progress, or else the school district has failed in its obligation to the family.

• • Procedural Appropriateness.

The Rowley Court next turned its attention to a second, parallel, entitlement: “[i]t seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents 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 IEP against a substantive standard.” Id. at 205-6. The Court further held: “We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Id. at 206.

In sum, Rowley stands for a two-part entitlement: eligible families are entitled to an IEP that both (a) affords a placement that, substantively, is ‘reasonably calculated’ to afford meaningful educational benefit to the child, and (b) is developed in procedural accordance with the requirements of federal law.^[9]

These, then are the three questions – eligibility, whether a placement offer was made, and whether that offer was appropriate – that must be addressed in every special education denial-of-FAPE case. Taken together, they constitute the minimum showing that must be made whenever a district is called upon to defend its placement; they constitute the ‘what’ of the district’s burden of proof. But in one sense at least – delineating whether ‘program’ and ‘placement’ are simply synonyms, or, if not, what legal difference there might be between them – Endrew-appropriateness is not as easy to assess as it may at first seem to be.

• • Clarifying the Distinction Between Program and Placement.

The entitlement to an Endrew-appropriate placement would seem to mean a placement that, at the relevant moment in time, was reasonably calculated to provide a program that would be of educational benefit to the particular child.

In practice, this distinction between ‘program’ and ‘placement’ appears to be clear: the former is abstract, general, the framework or benchmark defining appropriateness for the specific child; it is shorthand for the ‘individualized educational program’ that must be rendered concrete for each disabled student by the collaborative CSE process, yielding just that: an IEP. The latter is the implementation of the IEP program in concrete, physical terms: the place the child goes to school.

The language of the statute and regulations, however, often use these two terms interchangeably, rendering them murky, at best, or contradictory, at worst. And the caselaw has made this problem even more opaque, not clearer. In a case such as this, in which the family seeks to challenge aspects of both the proposed program and the proposed actual placement, the two must not be allowed to fuzz into one another.

• • The Basic Entitlements Related to a Specific Placement: Black Letter Law.

Assuming that the evaluation has been conducted, the parties have worked together in the CSE, and that a valid IEP has been generated detailing the essential elements of an appropriate program, the law details the steps and context within which the district must offer an appropriate bricks and mortar placement:

1. For continuing students, procedurally, “[a]t the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in § 300.320.” 34 CFR 300.324(a). That is, a program.

2. Parents are entitled to challenge that IEP: for an initial placement in special education, express parental consent is required (20 USC 1414(a)(1)(D)); for students continuing in special education, parents may seek a hearing before any change may be made to their program or placement (20 USC 1415(f) and (j)).

3. Based on that IEP, “[a] free appropriate public education must be available to all children residing in the State between the ages of 3 and 21”. 34 CFR 300.101(a). That availability amounts to an entitlement to a bricks and mortar placement, not the printed abstraction of an IEP, though that IEP is absolutely essential to determining whether the placement offered is indeed appropriate. ^[10] Without a seat in a classroom or its equivalent, the program is just a wish, not a reality, just promised, not available.

4. Parents are entitled, at a minimum, to make their own independent determination whether the specific placement offered can provide the program defined in the IEP. 20 U.S.C. § 1415 (f)(3)(E)(ii).

5. While the statute seems to assure the right to participate in making the bricks and mortar placement decision (comparable to the right to participate in developing the IEP), the courts, as discussed below, have interpreted the placement language more narrowly. Still, at a minimum, parents have the right to disagree with and reject the district’s proposed bricks and mortar placement, to convey that disagreement to the district, and to work with the district to resolve that disagreement prior to the start of the school year. See FB v. New York City Dep't of Educ., supra. To effectuate that participation procedurally, parents have an obligation to inform the district no later than 10 business days “prior to the removal of the child from the public school” (in writing) of the substance of their disagreement. 34 CFR 300.148.

• • The Murky Judicial Gloss on ‘Placement’.

Dicta in two lines of Second Circuit cases, and the District Court cases, and State Review Office decisions that have sought to make sense of that dicta, have, to put it bluntly, made a mess of any unified understanding or enforcement of these clear, black-letter, rights.^[11] While that dicta has been deeply problematic for the District Courts to disentangle, the core holdings of these two strands of cases are clear and by now not controversial. They have in large measure been synthesized and reformulated in two subsequent Second Circuit cases that reconcile the efforts to interpret the first two (M.O. and T.K., supra).

• • There is no right to have a bricks and mortar placement recorded on the IEP. ‘Placement’ means kind of placement, not a specific bricks and mortar school or location.

One line of cases holds that there is no statutory entitlement to have the bricks and mortar placement detailed on the student’s IEP; it is not, as a result, a per se procedural denial of FAPE to have a placement process in which families are not consulted in the bricks and mortar placement decision (notwithstanding the Act’s language that appears quite clearly to require just that).^[12] T.Y., K.Y., on behalf of T.Y., Plaintiffs-Appellants, v. NYC Dept. of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009), reiterated in C.F. ex rel. R.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 (2d Cir. 2014), and F.L. ex rel. F.L. v. New York City Dep't of Educ., 553 F. App'x 2, 9 (2d Cir. 2014), and R.B. ex rel. D.B. v. New York Dep't of Educ., No. 14-1405-CV, 2015 WL 1244298, at *3 (2d Cir. Mar. 19, 2015).

In T.Y., K.Y., on behalf of T.Y., Plaintiffs-Appellants, v. NYC Dept. of Educ., 584 F.3d 412 (2d Cir. 2009), the family challenged the student’s IEP because it did not include a ‘specific school placement’ and because they were not involved in the process of identifying the specific school placement that was ultimately offered by means of a written Final Notice of Recommendation. The Court, however, held:

While the parents' citation of the statute and regulations is, at first glance, compelling, upon closer evaluation we conclude that this language does not compel the result the parents seek.   As we have previously stated, the term “educational placement” in the regulations “refers only to the general type of educational program in which the child is placed.”  Concerned Parents v. N.Y. City Bd. of Educ., 629 F.2d 751, 756 (2d Cir.1980).   “Educational placement” refers to the general educational program-such as the classes, individualized attention and additional services a child will receive-rather than the “bricks and mortar” of the specific school.

Further, the requirement that an IEP specify the “location” does not mean that the IEP must specify a specific school site.   The United States Department of Education (“USDOE”) expressly considered this question in its commentary to the 1997 amendments to the IDEA. In that commentary, the USDOE noted,

Some commenters requested that the term “location” be defined as the placement on the continuum and not the exact building where the IEP service is to be provided․ Other commenters similarly stated that a note be added clarifying that “location” means the general setting in which the services will be provided, and not a particular school or facility.

Assistance to States for the Education of Children with Disabilities and the Early Intervention Program for Infants and Toddlers with Disabilities, 64 Fed. Reg. 12406, 12594 (Mar. 12, 1999).   In resolving this issue, the USDOE concluded that “[t]he location of services in the context of an IEP generally refers to the type of environment that is the appropriate place for provision of the service.   For example, is the related service to be provided in the child's regular classroom or resource room?”  Id.

…. We interpret these statements to indicate that the term “location” does not mean the specific school location, but the general environment of the overall program.

584 F.3d at 419-20.

The Court noted, however, that its actual holding in T.Y. is far narrower than this language might be construed to:

[W]e conclude that because there is no requirement in the IDEA that the IEP name a specific school location, T.Y.'s IEP was not procedurally deficient for that reason. We emphasize that we are not holding that school districts have carte blanche to assign a child to a school that cannot satisfy the IEP's requirements. We simply hold that an IEP's failure to identify a specific school location will not constitute a per se procedural violation of the IDEA. See White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003). But see A.K. ex rel J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 682 (4th Cir.2007).

We note, however, that notwithstanding our holding here, the evidence reflects that T.Y.'s parents did participate in school selection and that the NYCDOE worked cooperatively with the parents after they voiced their objections. The NYCDOE offered the parents one school, which they rejected. The NYCDOE offered the parents another school, which they also rejected without an on-site visit. The parents then enrolled their child into the Rebecca School without allowing the NYCDOE an opportunity to offer yet another school. The parents' actions suggest that they seek a “veto” over school choice, rather than “input”—a power the IDEA clearly does not grant them. See White, 343 F.3d at 380.

Id. (emphasis added).

In sum, the Court itself counseled great caution for those seeking to follow the trail of crumbs that leads from its narrow holding that the failure to name a specific location on an IEP does not constitute a per se fatal procedural flaw to the far more expansive conclusion that findings of substantive denials of FAPE may never arise from a bricks and mortar placement challenge. The Court recently reaffirmed and stressed that caution and expressly held,

[s]chool districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP's requirements,” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir.2009), and R.E. does not foreclose all prospective challenges to a proposed placement school's capacity to implement a child's IEP. To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school's capacity to implement their child's IEP, which is “antithetical to the IDEA'[s] reimbursement process.” See V.S. ex rel. D.S. v. N.Y.C. Dep't of Educ., 25 F.Supp.3d 295, 300 (E.D.N.Y.2014).

M.O. v. New York City Dept. of Educ., 793 F.3d 236, at 244-245 (2015)

• • When the family declines the placement offered, the parties may not speculate about what might have happened if the child had attended.

The second line of Second Circuit cases turned to the question of precisely when and how families may reject a placement offer because of perceived defects in the bricks and mortar placement rather than in the overarching IEP. While T.Y. had examined whether families were entitled to participate in the placement decision and to have that decision specified on the IEP, the Court in these subsequent cases sought to resolve what sorts of argument can legitimately be made by a district defending its offer and by a family challenging it.

Beginning in R.E., Individually, on behalf of J.E., M.E., Individually, on behalf of J.E., Plaintiffs–Appellees, v. NYC Dept of Educ., 694 F.3d 167 (2d Cir. 2012), the Second Circuit reaffirmed its holding in T.Y. and appeared to extend its analysis to limit the extent to which parents may challenge the actual physical placement) when (1) the IEP is valid, (2) the only remaining challenge is to the proffered bricks and mortar placement, (3) the family chose to reject that placement and instead place the student unilaterally, resulting in (4) the child never attending the offered placement at all.

The Court ruled that those supporting or challenging the placement may not rely on speculative hypotheticals about what would eventually have transpired had the student arrived: “Our evaluation must focus on the written plan offered to the parents, however. Speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, at 195 (2d Cir. 2012), reiterated in F.L. ex rel. F.L. v. New York City Dep't of Educ., 553 F. App'x 2, 9 (2d Cir. 2014) and R.B. ex rel. D.B. v. New York Dep't of Educ., No. 14-1405-CV, 2015 WL 1244298, at *3 (2d Cir. Mar. 19, 2015); see also R.E. at 187, 188.

• • The District Courts grapple with the implications of T.Y. and R.E.

These cases, taken together, appeared to some District Courts (and administrative tribunals) to support the claim that bricks and mortar placement recommendations may not be prospectively challenged but that, instead, “the appropriate forum for such a claim is ‘a later proceeding’ to show that the child was denied a free and appropriate public education ‘because necessary services included in the IEP were not provided in practice.’” F.L. ex rel. F.L. v. New York City Dep't of Educ., 553 F. App'x 2, at 9 (2d Cir. 2014). Or even the claim that families that reject a bricks and mortar placement (and therefore cannot document that needed services were not in fact provided) may never legitimately base a unilateral placement on a placement challenge if the IEP is not defective. See, e.g. K.C. ex rel. C.R. v. New York City Dep't of Educ., No. 14-CV-836 RJS, 2015 WL 1808602, at *12 (S.D.N.Y. Apr. 9, 2015) [“The Second Circuit has clearly held that, where a child never enrolls in the public placement, the adequacy of DOE's offered placement must be determined on the face of the IEP.” Citing R.E.]

Indeed, language in these cases has been relied on by the courts (see, e.g. M.M. ex rel. J.S. v. New York City Dep't of Educ., No. 14 CIV. 1542 GBD, 2015 WL 1267910, at *8 (S.D.N.Y. Mar. 18, 2015) and D.N. v. New York City Dep't of Educ., No. 14 CIV. 2526 LGS, 2015 WL 925968, at *7 (S.D.N.Y. Mar. 3, 2015), by the Office of State Review (see, e.g. SRO-012, SRO 12-050, SRO-051, SRO 12-061, SRO 13-192, SRO 14-027 and SRO 15-007),^[13] in all likelihood by other HOs, and surely by the district itself, to argue for conclusions that reach each of these dubious extensions.

Nevertheless, other District Courts such as the one in D.C., supra, and in in F.B., supra, and the Second Circuit in M.O (which cites D.C. with approval and upon which F.B. is based), and in T.K, supra, have now made it clear that it would be wrong to read too much into these cases’ holdings as limitations on the district’s burden and the family’s capacity to challenge specific schools, classrooms, and placements in the most concrete sense of the term.

The implementation of the IEP is, at the end of the day, all that the child actually receives, after the cumbersome due process mechanism that is the IDEA ruminates, churns, heaves, and expels its work product. If that specific school implementation violates the IEP, it must be subject to challenge under the broad language of the parents’ right to file a Complaint:

A parent or school district may file a due process complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.”

8 NYCRR 200.5(i)(1)).

That recognition has led the Second Circuit to reject expressly “the erroneous determination that [R.E.] requires a child physically to attend a proposed placement school before challenging that school's ability to implement the child's IEP.” M.O. v. New York City Dept. of Educ., 793 F.3d 236, at 245 (2015). And it has led the Circuit in T.K., supra, to reject, as procedurally fatally defective, a district’s refusal to consider the family’s challenge to a bricks and mortar placement they believed was rendered inappropriate by reason of bullying.

Taken together, these three Second Circuit decisions – R.E., M.O., and T.K. must be seen, at a minimum, to reaffirm a collaborative process consistent with the Act: The CSE, with the family’s participation, works to develop an IEP that responds to R.E.’s admonition that “school districts [are] on notice that they must include all of the services they intend to provide in the written plan.” R.E. at 188. Thereafter, the district, with or without input from the family, must do what the district did in both T.Y. (see 524 F.3d at 420) and R.E. (see 694 F.3d at 191) and what the courts in D.C., supra, F.B., supra, and in J.F. v. New York City Dep't of Educ., No. 12 CIV. 2184 KBF, 2013 WL 1803983, at *1-2 (S.D.N.Y. Apr. 24, 2013), anticipate: make a bricks and mortar placement offer, in time to permit the family to assess and, ideally, visit the placement.^[14]

Families may challenge the district’s substantive non-compliance with the Act, therefore, if the IEP is itself insufficiently specific fully to describe the program; or because the district failed to offer a bricks and mortar placement at all; or, as the Court held in M.O., supra, because the placement offered failed objectively, based on what was known to the family at the time the offer was made, to be able to implement the IEP; or because the district failed to meet its burden in an impartial hearing in which the bricks and mortar placement is challenged in the Complaint (N.Y. Educ. L. 4404). See, e.g. K.R., supra, 2015 WL 1808911. At *3 (“All courts appear to agree that a challenge to a proposed placement will be successful where the evidence establishes that the placement would be unable to satisfy the IEP's requirements.”)

As the Court ruled in M.O.:

While it is speculative to conclude that a school with the capacity to implement a given student's IEP will simply fail to adhere to that plan's mandates, see R.E., 694 F.3d at 195, it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP. For example, it is not speculative to conclude that an IEP recommending a seafood-free environment, for a child with a life threatening seafood allergy, could not be implemented at a proposed school that was not seafood free. See D.C. ex rel. E.B. v. N.Y.C. Dep't of Educ., 950 F.Supp.2d 494, 513 (S.D.N.Y.2013). Nor is it speculative to conclude that an IEP recommending one-on-one occupational therapy, outside of the classroom, could not be implemented at a school that provided only in-class occupational therapy in a group setting. See B.R., 910 F.Supp.2d at 676–79.

School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP's requirements,” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir.2009), and R.E. does not foreclose all prospective challenges to a proposed placement school's capacity to implement a child's IEP. To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school's capacity to implement their child's IEP, which is “antithetical to the IDEA'[s] reimbursement process.” See V.S. ex rel. D.S. v. N.Y.C. Dep't of Educ., 25 F.Supp.3d 295, 300 (E.D.N.Y.2014).

M.O. v. New York City Dept. of Educ., 793 F.3d 236, at 244-245 (2015)

To be sure, schools, like quantum physics, are subject to an Uncertainty Principle. The presence (or absence) of the child will inevitably affect the placement to which he or she has been recommended, even on some relatively macro-level aspects of building organization. Only when the school’s actual roster of attending students is fully known can a principal finally ratify the census of which children will occupy which classroom. For this reason, arguments about whether there was actually space for an additional child in a specific recommended class that the child never in fact attended are generally better characterized as implementation issues and therefore unavailable, because, had the child shown up, a principal would have had the wherewithal to adjust class enrollments. Similarly, life has a way of intervening with surprises, so a teacher may go on extended leave, or a class may be moved from one room to another. None of these are immutable elements of placement that, in general, constitute a legitimate basis for a family declining a seat. Speculation about implementation of a rejected offer, therefore, is usually beyond the scope of the hearing.

In sum, the substance of the district’s prima facie case requires that it show not only that it has properly evaluated the child, and that it has developed a Rowley-appropriate program based on that evaluation and captured in a procedurally properly developed IEP, but that it has offered the family an actual bricks and mortar placement capable of delivering the program articulated in that appropriate IEP.

Moreover, because New York State allows districts not to determine placement during the IEP meeting and to make the physical school placement and classroom assignment decisions without parent participation, there are burdens placed on the IEP and CSE review that might not otherwise be there. The need for a clear litmus test to allow parents, principals, teachers, and IHOs to determine whether a building-level or district-level choice successfully implements an appropriate IEP requires that that IEP must be detailed enough and clear enough to answer any programmatic question that may be raised.

So, if placement is to be done ministerially, outside the CSE and without participation by the family, then the IEP has to capture all aspects of the program that are essential elements of an appropriate program for the individual child. Letter to Anonymous, supra. That is, for instance, the district employee responsible for making a placement must be able to know whether the particular child requires heterogeneous [or homogeneous] grouping; he or she must know the impact of a child’s distractibility on appropriate school, classroom, and class size; similarly, if the child has limited ability to manage independent transitions between activities, that must be on the IEP; allergies; needed teaching methodologies; elopement risks; the information contained in a functional behavior assessment and a behavior intervention plan must be incorporated into the IEP; anything and everything that is essential to meeting the child’s needs. If a child has been successfully educated by means of a particular methodology or curriculum, and any subsequent placement must transition from that program to a new one in order for the child to benefit meaningfully from the new placement, it must be part of the IEP, or the IEP is invalid.

If, on the other hand, it is to be done based on the professional expertise and discretion of district staff, filling out the program elements based on their understanding of the student’s needs from the IEP, then the family must be allowed some engagement with that decision making and a meaningful opportunity to espress objections and concerns.

Moreover, if placement is ministerial and not subject to collaboration and review, then the person representing the district at the CSE meeting must have sufficient knowledge of the range of realizations of district programs on the continuum to be able to answer all reasonable questions and make all reasonable judgments about program propriety, and to know what aspects of variability need to be reined in by the IEP. The district representative needs a comprehensive understanding of relevant district programs if he or she is to be the family’s (or the decision-maker’s) last source of information before a decision must be rendered. If, alternatively it is done as an exercise of discretion, then the family must have an opportunity to meet with the decision maker to learn about how that discretion was exercised and to answer any basic programmatic questions they may have.

The interplay between the district’s obligation to design a program and to offer a placement results in a delicate four-way balance: The district is entitled to enough flexibility to be able to craft programs that allow those responsible to make administrative, managerial, and professional/pedagogical judgments in the constantly changing eco-system of the school (staff come and go; children move in and out; political agendas change; administrative fiats are issued and must be responded to; emergencies and crises erupt). The parent is entitled to enough information to make a reasoned judgment about whether the offered placement can reasonably be expected to offer FAPE prior to deciding whether to commit to that program. The building staff are entitled to enough clarity to be able to make reasonably accurate judgments on a day-to-day basis about which choices are within the scope of their discretion and which are bounded by the demands of the IEPs of the children actually in their charge; and the litigation decision-maker is entitled to enough evidence to be able to render rulings with respect to each of these potential areas of challenge to the district’s burden.

• • The Burden of Proof – the Who, When, and How Much.

Defining what must be proved in a denial of FAPE case provides only a partial description to the procedures the law lays out; in addition to ‘what,’ there are important ‘who,’ ‘when,’ and ‘how much’ parameters as well; taken together, these constitute the ‘burden of proof.’

• • The ‘Who’ – The Burden of Persuasion Litigation is the process whereby an external decision-maker is asked to intervene in the status quo, either to force a change or to compel its uninterrupted continuation. The Burden of Persuasion answers the question, ‘who is obligated to convince the decision-maker that facts exist that mandate him or her to take such action?’ If the decision-maker is not convinced that the facts based on the record in the trial favor the party with the Burden of Persuasion, the decision-maker will not, indeed cannot, intervene. Thus, if the side that has the Burden of Persuasion fails to persuade the decision-maker about the facts, if it does not meet its burden, then the other side wins even if that side sits mutely and never makes any argument at all. In contrast to the rules of blackjack – where ties routinely favor someone, the dealer – ties in litigation are allocated against someone, against the party with the Burden of Persuasion.

In most settings, the party that has the Burden of Persuasion is the side that wants to change the status quo. As Justice O’Connor wrote for the U.S. Supreme Court in Schaffer v. Weast:

When we are determining the burden of proof under a statutory cause of action, the touchstone of our inquiry is, of course, the statute. The plain text of Individuals with Disabilities Education Act (IDEA) is silent on the allocation of the burden of persuasion. We therefore begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims. McCormick § 337, at 412 (“The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion”); C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003) (“Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims”).

546 U.S. 49 (2005) at 56. Emphases added.

But this does not work in special education law. In our cases, the italicized language and the underscored language often point in opposite directions. While the IDEA is indeed explicitly silent with respect to which side bears the burden of persuasion, the Act is quite clear that once a child is receiving special education services (1) the school district has the right and the power unilaterally to change the status quo with respect to a disabled child’s program and placement, so long as it follows the procedures detailed in that Act when it does so; ^[15] unless (2) the family seeks judicial intervention, irrespective of whether they hope to change or maintain the status quo (there are an extremely limited number of small procedural exceptions in which the district has the obligation to request a hearing, none relevant here).

The district, that is, does not need to seek a hearing to get permission to change the status quo for a child already receiving services; it may simply make any change it wishes, once the CSE has convened and crafted an IEP calling for such a change, unless the family requests a hearing seeking to compel the district to maintain the status quo. Similarly, if the district wishes to continue the status quo, the family must seek a hearing if it wishes to compel a change. Either way, the onus is on the family.

Thus, in virtually every instance (other than opposing an Independent Educational Evaluation requested by a parent) the family will be the party that ‘seeks court action’ as described by Mueller & Kirkpatrick in the underscored passage quoted by Justice O’Connor above. BUT, the family will only sometimes be the party that ‘seeks to change the present state of affairs’ in the italicized passage. As a result, the allocation of the Burden of Persuasion would go one way under one of the standard rules cited by the Court in Schaffer but the opposite way under the other, equally authoritative, one.

The IDEA is implemented in each state pursuant to specific state law, and, as Justice O’Connor noted above at the outset, “the touchstone of our inquiry is, of course, the statute.” 546 U.S. at 56. In the case of the IDEA, there are two statutes applicable in each jurisdiction: one federal and one state. For states in which the local statutes are similarly silent about the allocation, Schaffer functions to resolve that ambiguity about how the Burden of Persuasion is allocated. But in New York State, the local allocation was made in direct response to the Schaffer decision and explicitly rejects its conclusions. In New York:

… The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.

NY Educ. L. 4404(1)(c)

So, in New York, even though it is almost always the family that must file the complaint, it is always the district that has the burdens of proof with respect to all aspects of the proceeding (except, in cases seeking reimbursement for a unilateral private school placement, with respect to the demonstration of the appropriateness of that unilateral placement). In sum, in New York, the district must prove that it has offered a free appropriate public education (FAPE) in the least restrictive environment (LRE), in all hearings, no matter what the nature of the family’s challenge.

While the family’s Complaint must detail the specific issues to be addressed in the hearing,^[16] the allocation of the burden of proof to the district means that in every case the district must make at least a minimal showing of each of the elements – set out at least a prima facie case -- that it has in fact offered FAPE in the LRE. If it does not do so, it fails to meet its Burden of Persuasion. Any presumption that the district has provided FAPE unless shown not to have done so by the family improperly offloads the statutory allocation of the burden away from the district and onto the child.

Justice O’Connor, writing for the Court in Schaffer, found the implications of such an allocation troubling: “Petitioners in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not.” 546 U.S. at 59. Indeed, it may seem unfair to presuppose that the school district has by default failed to meet its obligations, that in all cases it is guilty until it can prove its innocence. But, fair or not, that is precisely what the New York statute’s allocation of the burdens does. In fact, it was precisely the intent of the New York State legislature, two years after the Schaffer decision was issued, to adopt a statute that functioned to overturn Schaffer in New York and apply systematic skepticism to the districts’ recommendations.

Despite the seeming imbalance, there were and are four reasons why that allocation is neither anomalous nor inequitable, and why the legislature acted as it did to level a playing field that otherwise, in its view, unfairly favored the districts:

First, the entire due process mechanism – from child find, through evaluation, review of the evaluations, crafting of an IEP, and on to placement offer – must be viewed as a single, continuous flow, not as a series of snapshots. The balance of power shifts from stage to stage, but is, ultimately, a careful exercise in equality and counterpoint. It is a mistake to look at the balance of power in a single snapshot taken at any particular point in the unfolding history of the case.

For example, at the CSE/IEP-drafting stage, the district can do whatever it wants. The parent has a right to participate and be heard, but the decision-making authority lies exclusively with the district, wielded in the person of the district representative in attendance at the CSE review (FN 16. supra). The parent does not even have a right, at that stage, to require that the district explain its reasoning or demonstrate the propriety of the program and placement it has offered. There is an imbalance, strongly favoring the district at this foundational level. But it shifts back if the parent seeks to challenge the district’s decision.

Placing the burden of proof on the district when a family challenges a CSE recommendation by seeking a due process hearing merely rebalances the scales by countering the district’s initial, universal, advantage. Doing so requires that the district, perhaps for the first time, reveal its reasoning and demonstrate the propriety of its decision, and that it do so before a neutral third party. This choice not only moves the process along more smoothly than would a requirement that it do so during the IEP review, by eliminating potentially rancorous and unfruitful debate between two sides with opposing, vested interests and differing views; it introduces a neutral umpireal voice to review the challenged call.^[17]

Second, placing the burden on the district reflects the legislature’s awareness that the district, not the parent, has access to the information needed to determine whether the district’s offer was indeed appropriate. Allocating the burden to the parent, in a proceeding that, among other things, has no discovery phase, would force the family to speculate about information that is exclusively in the district’s control (such as the reasoning behind the district’s program and placement recommendations).

Third, the burden of proof must be viewed in the context of the Rowley/Endrew standard, a substantively minimalist standard that districts should have no difficulty meeting if their actions do indeed comport with the requirements of the Act. As a result, the legislature concluded that shifting the burden to the district simply had the effect of evening up what was otherwise already a lopsided balance.

Most compellingly, though, placing the burden nof proof on the district flows from, and is an urgent reminder of, the district’s fiduciary responsibility to educate this child. This process is not some zero-sum game, a tug of war in which either the district or the family will win by tearing the child apart. Rather, even the litigated hearing process is a dynamic element in the collaborative enterprise described at the outset. The district has, and should have, the burden of proof because it has the Constitutional and statutory responsibility to provide the student with a sound, basic, and, for students with IEPs, Endrew-appropriate education. That obligation plays itself out at least in the eyes of this State as properly placing the burdens of production and persuasion on the district.

• • The Standard of Proof – the ‘How Much’ Determining which party must convince the decision-maker is only the first step in allocating burden of proof. A measure must also be articulated – the Standard of Proof – defining just ‘how much’ evidence the party that has the Burden of Persuasion must put forward in order to shift the outcome and prevail.

In most civil actions, and in special education cases in particular, the standard is somewhere in the middle: there must simply be a showing (by the party with the Burden of Persuasion) of enough evidence to tilt the judicial scales in their direction – a standard referred to as a ‘preponderance of the evidence.’^[18] For the party bearing the Burden of Persuasion to prevail, therefore, it must show that, when all the evidence put forward by all sides is balanced in the decision-maker’s equitable scales, the balance tilts, however slightly, in the direction of the party bearing the burden. A gentle evidentiary breeze may be enough to shift the balance in the opposite direction, but so long as the scale at rest tips in favor of the party possessing the Burden of Persuasion, that’s a good enough basis on which to declare full-throated victory. If it does not, if it tilts the other way, or even if it remains in perfect equipoise between the parties – because ties get resolved against the party with the Burden of Persuasion, by definition -- the burden has not been met and that party loses.

The preponderance of the evidence standard is neither daunting nor trivial; what makes the district’s burden in special education cases almost minimal or pro forma lies in application: the substance of the district’s prima facie case – discussed in depth above – sets the bar very low indeed, at the Rowley/Endrew standard: the district need only show, by a preponderance of the evidence, that it had offered a placement ‘reasonably calculated to provide meaningful educational benefit’ to the child.

• • The Burden of Production – the ‘When’ The Burden of Production (also called the burden of going forward) is the ‘when’ of the burden of proof: it means that until both sides have rested their respective cases, one party must always be identified as the one with the obligation to go forward. As in a tennis game, the ball moves back and forth between the two sides, waiting to be swatted by one side’s arguments over to the other’s. In general, as noted by the authorities cited by Justice O’Connor in Schaffer, supra, the burdens of persuasion and production travel together. Dispositively, in New York State, the statute expressly allocates them jointly, assigning the “burden of proof including the burden of persuasion and burden of production” (NY Educ. L. 4404; emphasis added) to the district with respect to all aspects of a special education hearing (other than the appropriateness of the family’s unilateral placement in cases seeking reimbursement).

Of course, that only starts once a case has been initiated. At the outset, the burden of production lies statutorily with the party initiating the impartial hearing: they (almost always the family) must file a Complaint^[19]; that filing then shifts the Burden of Production to the district, which must, first, file a response, and, second, go forward to make its prima facie case. Once it has done so, the burden of going forward shifts to the family, who then have the opportunity to present a case that challenges the district’s initial showing. And when they have taken their best shot, the burden of going forward may shift back again to allow the district to address the issues raised in the family’s case.

• • Putting the Burdens Together: Delivering The District’s Prima Facie Case.

Taken together, these three components define the mechanics of the prima facie case. That is, how much must be proved by whom at the outset of the case. What does it take for a school district to win, if the other side does nothing more than file a Complaint? What is the very least that the party with the Burden of Persuasion must show in order to meet that burden and prevail?

The answer is that, with respect to each essential component of the case (the referral, evaluation, classification, program, and placement), the party with the burden of production (the district) must present enough evidence to meet the standard of proof (preponderance of the evidence) in order to persuade the decision-maker that the burden of persuasion has been met.

When added to the substance of the district’s burden – its obligation to demonstrate that, if the student is eligible for special education it has offered him or her a free appropriate publicly-provided education in the least restrictive environment -- the district’s prima facie showing is as simple as admitting into evidence two documents, supported by at least one witness available for voir dire and cross-examination with respect to each document entered (they could conceivably be the same witness): an IEP (describing the evaluation, making the classification, and defining the program in sufficient detail to permit a determination that it was appropriate) and a Final Notice of Recommendation or a School Location Letter or a Prior Written Notice demonstrating that a specific offer was made.

A district need initially do no more than that.

• • The Family’s Burden: ‘Prong 2.’ Rowley and Endrew provide a single standard against which to measure the appropriateness of a proposed placement, whether it be a district offer or a placement made unilaterally by a family engaged in self-help: whether the program reasonably could have been expected, at the time of placement, to offer meaningful educational benefit to the child. See, e.g., B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 677 (S.D.N.Y. 2012; “the Court evaluates whether, at the time B.R. was actually considering the proposed placement, the school could offer [services] in line with the IEP”).

But context is everything. Both a skilled obstetrician working in the state of the art delivery suite of a world-class teaching hospital with a team of colleagues and specialists and a terrified spouse pressed into emergency service in the back seat of a taxi pulled over by the side of a standstill traffic jam have the same legal obligation to exercise ‘reasonable care’ in guiding a difficult birth under exigent circumstances. But what that legal obligation means, and how it is applied, are likely to seem very different indeed to a decision maker in the two different sets of circumstance. It’s not just about expertise. It’s about access to equipment and supports, about the capacity to keep the environment sterile, about having assistance near to hand, about the sangfroid that travels with objectivity, and about information available in the hospital setting that can only be approximated at best in the taxi. The spouse’s knowledge and options are foreclosed, his or her timeframe narrower, the investment in survival and success very different.

Similarly, the ‘reasonably calculated’ standard from Rowley may be wielded very differently when it is applied to the district than it is when applied to the family. While it is seldom a daunting standard, even when applied to a district acting in good faith, it should be no surprise that a family seeking a school for a child with special needs will almost always select one that is reasonably calculated to provide meaningful educational benefit. On the other hand, the standard as applied to the district requires a determination that each element of the child’s entitlement – the evaluation, the review, the program, and the placement – be Endrew-appropriate, and that, moreover, the IDEA procedures be followed with the level of compliance defined in the law. Parents have none of these obligations, but must simply identify a program and placement that meet Rowley in a global sense. In sum, the Rowley/Endrew standard as applied to the family amounts to the question, “Did they make a mistake?” When applied to a placement made or proposed by a school district, on the other hand, Endrew is predominantly about aspiration. The question amounts to “Did the district aim high enough?”

Thus, parents, who may surely be expected to aim high in their hopes and expectations for their children, will almost always meet a standard that defines the minimum acceptable level of a family’s vision, while districts may well have a somewhat harder time.^[20]

Like the spouse in the taxi, families are amateurs playing a professional game; they lack the obligation to generate an IEP, and often lack the knowledge, specialized skill, and access to the continuum of services that a district has. See Carter, 510 US at 13-14. As a result, when asking whether a unilateral placement was ‘proper under the Act,’ the questions more frequently relevant to the family’s burden will have to do with whether their understanding of the child’s needs was sufficiently clinically-supported, and whether the choice made from among the options available to them hewed sufficiently close to the Rowley/Endrew standard to be better than the next best available alternative (whether it be the district’s offer or an available alternative non-public placement). For a family, reasonableness will in this sense inevitably be a moving target: depending on what programs (including the one offered by the district) were realistically available to the family, was their choice meaningfully calculated to afford sufficient educational benefit that it justified rejection of the district’s offer?

For a district, on the other hand, which must have a mandated continuum of services in place, which must have access to clinical expertise, which must have a CSE review mechanism in place, and which must develop and deliver services based upon a detailed IEP, the Rowley standard is more inflexible, precise, comprehensive, and demanding in application.

Thus, a program that might fall short of Rowley/Endrew when offered by the district, could very well comply with it when provided by the family. It seems, for example, self-evident that a district would not prevail if it had developed a detailed IEP but actually chose not to deliver the bulk of the program but only one or two of the related services from that IEP. They would fail to meet their burden even if the child was likely to benefit from that one related service. And yet, a parent faced with no offer from the district, having searched in good faith for a program that might benefit the child, might find only programs that provide a part of the child’s needed services – forcing them to choose between a program partially compliant with the child’s needs and nothing at all. Such a family – or one that combined services and programs obtained from more than one source into a hybrid placement made up of several non-Rowley-compliant parts – would likely meet the Rowley test as it applies to unilateral placements. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006):

[P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M. S., 231 F.3d at 105 (“The test for parents' private placement is not perfection.”) (internal quotation marks omitted). They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Rowley, 458 U.S. at 188–89, 102 S.Ct. 3034 (internal quotation marks omitted).

459 F.3d at 365. See also T.K., supra, at 12.

At the other end of the spectrum, as noted above, Endrew/Rowley functions for both districts and schools as a floor, not a ceiling, permitting the parties to agree on a program that far exceeds the minimum standard that the Court has outlined. Where the parties diverge, and the decision-maker determines that the district has failed to meet its burden, and the family engages in self-help, the family is not obliged to rein in the program they construct so that it skirts at or just slightly above the Endrew/Rowley floor. Ultimately, reimbursement is an equitable remedy and the scope of the remedy inheres in the scales and calipers of the decision-maker.

In sum, once the decision-maker has concluded that the district has failed to offer FAPE in the LRE, the family must show that, given what they knew at the time they made their placement, the program they committed to was more likely to accord the child meaningful educational benefit than was the fatally defective program the district had offered (or the lack of any program, as may be the case when the district acknowledges that it failed to offer a program, or when it simply chooses not to present any defense of a placement it did offer).

When the actions of the district amount to a failure to have offered Endrew-defined FAPE, then parents legitimately may remove their children from the public schools in order to seek a program reasonably calculated to provide educational benefit.

Where, however, the district shortfall amounts to less than a denial of FAPE, the law expects the parties to work together, including through the exercise of due process, to correct any problems that arise, while the child remains in the public schools (or in a private school at family expense).

• • The Remedy for a Denial of FAPE.

As in almost all litigation, special education hearings have two distinct phases: The first phase is a determination of liability:

Did the district fulfill its obligations under the federal and State special education laws? If it did, then the case is over.

If it did not – if, and only if, there is a determination that the district is liable by virtue of having failed to do what the laws require of it – then the decision maker may seek to craft a remedy.

First determine liability; then, if there is liability imposed, apply the broad equitable powers allocated by the law, design a remedy.

• • The Decision-Maker’s Remedial Reach: Injunctive and Compensatory Equitable Awards.

When the district fails to meet its burden of proof – when, after all the evidence is presented and weighed, the decision maker concludes that the district has not demonstrated that it offered an appropriate placement to the child – the decision-maker’s focus moves on from determining whether a harm was, in fact, done, and turns to crafting a remedy for the harm that he or she has identified. The scope of the power to fashion a remedy is neither fully defined in, nor in any way limited by, the IDEA statute. It derives globally from the decision-maker’s equitable remedial powers, the statutory power to make things right.

As developed in the cases interpreting the intersection of the statute and the common law from which federal Equity arises, that power is broad and widely discretionary:

Section 1415(e)(2) [of IDEA] is an express grant of authority to district courts to fashion all appropriate equitable relief. The power ultimately to award such relief ordinarily includes the power to issue preliminary relief in the appropriate exercise of discretion. Moreover, in the absence of a plain congressional intention to withdraw them, traditional powers of equity remain in the district court to enforce the Act. As the Supreme Court admonished in Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1981), and Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946): “[T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’” Brown v. Swann, 35 US 497 (1885), 503.

Especially in view of the expressly granted equity powers in (e)(2), we cannot find in (e)(3) a “necessary and inescapable inference” that the court's traditional equity jurisdiction is to be denied.

Doe v. Brookline Sch. Comm., 722 F.2d 910, at 917-18 (1st Cir. 1983).

The Brookline court went on to conclude:

Section (e)(2) not only creates a private right of action for aggrieved parties but also explicitly authorizes courts to “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(e)(2). Plainly this authorizes a broad grant of equitable power designed to provide courts maximum flexibility in effectuating the statutory objectives. Moreover, because the Act is remedial in nature, we are charged with interpreting its provisions generously so to effectuate the important goals Congress intended to achieve. See Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977); McComb v. Super-A Fertilizer Works, 165 F.2d 824, 826 (1st Cir.1948).

Id. at 919.

Brookline is seminal because the holding in that one First Circuit case formed the foundation for the cases that constitute both the bedrock for, and the vast majority of, the cases that have developed the scope of equitable relief available in denial of FAPE cases.

The First Circuit returned to its Brookline holding a year later in Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 801 (1st Cir. 1984), holding that:

In Brookline, we recognized the availability of reimbursement to a prevailing party, Doe v. Brookline, 722 F.2d 910 (1983) at 921; see also Doe v. Anrig II, 728 F.2d 30 at 31 but did not hold that reimbursement was automatically to be awarded as a result of prevailing on the merits. We viewed it then, as now, to be a matter of equitable relief, committed to the sound discretion of the district court.”

Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 801 (1st Cir. 1984; emphasis in original).

The Burlington decision was appealed to, and affirmed by, the U.S. Supreme Court in Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985). Justice Rehnquist in Burlington expressly acknowledged both the availability of injunctive relief, which he described as ‘clear beyond cavil’; and also the First Circuit’s holding that compensatory relief in the form of some sort of restitution or reimbursement – in that case, reimbursement for the cost of the unilateral self-help undertaken by a family who believed that a school district had denied FAPE to their child -- falls squarely within the scope of the equitable remedial powers granted by the IDEA. Subsequently, Justice O’Connor expanded on the scope of the equitable remedial power in IDEA proceedings in Carter v. Florence County School District, 510 US 7 (1993):

[O]nce a court holds that the public placement violated IDEA, it is authorized to ‘grant such relief as the court determines is appropriate.’ 20 U.S.C. § 1415(e)(2). Under this provision, ‘equitable considerations are relevant in fashioning relief,’ Burlington, 471 U.S., at 374, 105 S.Ct., at 2005, and the court enjoys ‘broad discretion’ in so doing, id., at 369, 105 S.Ct., at 2002. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.

Id. at 15-16 (1993).

In sum, the decision-maker in a special education case has broad discretion to craft a remedy appropriate to the equitable demands of the specific facts in the particular case, including reimbursement for parent self-help responding to a district’s denial of FAPE. I turn now to the particular categories of equitable relief that the courts have explored and delimited:

• • Forms of Equitable Relief in Special Education Cases:
• • Prospective Injunctive Relief: Defining the Program/Placing the student.

Prospective injunctive relief is appropriate when there is an ongoing deprivation that can be remedied by the decision-maker simply issuing a forward-looking Order to fix it in a specific way. That is, by issuing an injunction.

Special education hearings may challenge the current school year’s placement, a future year’s placement (currently proposed by the district), a previous year’s placement or some combination of the three. The most pressing of these is a finding that the student’s current placement – the program and services that he or she is presently receiving or being offered -- is inappropriate. The availability of prospective injunctive relief – ordering the district to fix the child’s current and ongoing educational placement in some specified way – has been, since the IDEA was adopted, the core remedial tool; as far back as the Supreme Court’s first inquiry into the scope of the Act’s equitable remedial reach in 1984, this is precisely the remedy that Justice Rehnquist characterized as “clear beyond cavil.” Burlington, supra, 471 U.S. at 370.^[21]

Oddly, this clarity seems to have become elusive over time, perhaps because disputes involving allegations of past deprivation have come to dominate the impartial hearing docket to such an extent that decision-makers such as Judge Kahn in Connors v. Mills, 34 F.Supp.2d 795 [N.D.N.Y.1998]) have lost track of why the remedy seemed so obvious to Justice Rehnquist that it did not require citation to authority. Indeed, the authority for a prospective remedial order is the plain language of the statute itself, and the broad scope of equitable review detailed above.

In Connors, Judge Kahn took particular note of the fact that the parent lacked the means to engage in self-help: “once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately,” 34 F.Supp.2d at 805-6 (emphasis added). The underscored language – dicta in the context of Connors since there had been a specific finding in that case that the family lacked the means to pay for a unilateral placement – has been viewed by some decision-makers as an essential criterion to an award of prospective placement (in a non-Approved school).

Such a limitation, however, flies in the face of the flat statutory requirement that special, education placements are, by definition, to be provided ‘at no cost to the parent.’ NY Educ. L. 4401(1).^[22] The ordered placement, that is, becomes the student’s FAPE,^[23] and the ‘F’ in FAPE stands for the fact that it must be ‘Free,’ while the ‘P’ stands for the fact that it must be publicly-provided. The entitlement to FAPE extends further than simply the conclusion that access to FAPE cannot be dependent on a family’s ability to have laid out the tuition cost when making a unilateral placement. Once that placement has been deemed appropriate it must be rendered ‘free’ for any family that has successfully been able to effectuate it … not simply those who can, or cannot, afford to have done so out of pocket.^[24]

Moreover, because the ordered placement becomes the child’s public school placement (in the sense of ‘publicly-provided’), the imposition of a means test – permitting prospective remedies for families without means but denying them to families who could afford to front the cost of the private school program themselves and then seek reimbursement from the district for having done so – would violate the State’s Constitutional obligation to create a series of free public schools. N.Y. Const. Art. XI, §1.

In short, the broad authority to craft an equitable remedy plainly includes the capacity to order prospective relief, and to direct the placement of the student in any appropriate school setting,^[25] at district expense.

The decision maker may, as well, order prospective continuation of the child’s current placement. Special education hearings are unusual, as noted above, because the law requires that parents file the complaint even if they are the ones who want to keep things as they are and the district wants to make a change. They are, on these occasions, plaintiffs who want to maintain the status quo. Courts’ equitable powers allow them to craft such a remedy, and, indeed, if a school district has failed to meet its burden of showing that a proposed change was appropriate, the existing placement inevitably continues unless the decision maker expressly orders otherwise. Every child with an IEP is entitled to a publicly-provided placement, and unless the child’s current placement is for some unusual reason an expressly temporary one, that placement continues until a placement-changing event has taken place.

• • Retroactive Compensatory Relief: Allocating responsibility for a past unilateral placement.

Prospective relief fixes the future, and that may be all that is needed or possible, especially if a case is brought and decided swiftly enough. But many cases address, at least in part, a harm that has been ongoing, for which the law requires or permits a remedy not just prospectively but for the past deprivation as well.

• • The Status Quo Continues Until Changed.

When the child is already attending a non-public school for which the district was responsible at the time the dispute arose, and the decision-maker issues a finding that the district has failed to meet its burden, continued responsibility for that ongoing placement is not so much a remedy as it is a simple consequence.^[26] That is, when the district fails to demonstrate that it has made a proper recommendation with respect to the child, the child’s pre-existing placement simply continues. If that continuation is what the family is seeking, then the case need go no further. The district’s effort to change the status quo has failed, and that status quo placement continues until such time as the district can justify the change it seeks to make happen. This can form the basis for a prospective remedy, as noted above. But it also can have retroactive impact and be the basis for the child’s placement even before a final order is issued and a prospective remedy crafted: In general, continuation of the student’s existing placement is or should be automatically implemented by the law through its pendency provisions. There may, however, be cases in which there is a legal or factual dispute about district responsibility for continuation of an existing placement either prior to the filing of the Complaint or even during the pendency period and decision makers’ equitable powers surely extend to resolving any such disputes.

In general, continuation of the student’s existing placement is or should be automatically implemented by the law through its pendency provisions. There may, however, be cases in which there is a legal or factual dispute about district responsibility for continuation of an existing placement either prior to the filing of the Complaint or even during the pendency period and decision makers’ equitable powers surely extend to resolving any such disputes.

Specifically. The parties may disagree, and the decision maker resolve, what constitutes the baseline pendency placement – the last-agreed-upon-or-ordered placement; or there may be a dispute with respect to whether a specific b ricks and mortar placement fulfills that automatic mandate. Pendency is just a placement, and the law of what constitutes a placement, while murky, is nevertheless largely clear in the Second Circuit to the extent that it deems ‘placement’ to be defined by the IEP not by the physical bricks and mortar placement the student has attended, as discussed more generally above. Where, for whatever reason, a bricks and mortar placement is discontinued or continuation is deemed impossible, the decision maker must determine whether a proposed alternative bricks and mortar placement is sufficiently capable of delivering the IEP (or ordered, or agreed-upon) program to constitute a proper implementation of pendency.

Like any other placement, the obligation to provide pendency rests squarely on the district’s shoulders, and with that responsibility comes the power to determine where and how to operationalize the placement. Only if the district fails to provide a sufficiently similar potential implementation of the pendency program does the family have an opportunity to seek an Order placing the student in a pendency site that they deem comparable to the baseline pendency program. In either case, it is the decision maker’s determination whether the proffered bricks and mortar implementation is sufficiently similar to the demands of the baseline program.

• • Reimbursement for Self-Help: The Burlington Remedy.

Where a family has had the means and the information and the will to engage in self-help once they concluded that the offered public school placement was inappropriate, they may have taken matters into their own hands and simply removed the student from public school and unilaterally placed him or her in a setting they believed would be appropriate to the student’s needs. In Burlington, supra, the unanimous U.S. Supreme Court affirmed universal judicial availability of the reimbursement remedy for such unilateral placements in State-approved non-public schools. Of course, a consequence of the Burlington holding is that there is a significant risk that the decision-maker may not ultimately order reimbursement – reimbursement is not automatic, as noted above, but rather is a discretionary equitable remedy.

And in Carter, supra, a similarly unanimous Court extended the understanding of the remedy to permit reimbursement for unilateral placements in non-State-approved schools. In New York City, where there had been a similar remedy available for more than a decade prior to Burlington (Jose P.^[27]), this created a second, parallel but distinct, path to the remedy, broader in some senses and narrower in others.

Other, subsequent, District and Circuit court decisions support injunctive relief mandating direct payment by the district to the provider for the cost of a child’s placement in a parentally-defined school or program (Connors v. Mills, 34 F.Supp.2d 795 [N.D.N.Y.1998] does so prospectively, discussed supra; and Mr. and Mrs. A. ex rel. D.A. v. New York City Department of Educ., 769 F.Supp.2d 403, at 428 [2011] provides for injunctions mandating retroactive direct payment for such costs already incurred when the risk has been undertaken by a third party such as the provider rather than by the family).

• • Statutory Award of Tuition Reimbursement for the Cost of Self-help.

Subsequent to the Burlington and Carter cases, Congress acknowledged the reimbursement remedy directly in the language of the Act and created yet another, parallel, remedial path to district responsibility for family self-help. The statute was revised to incorporate reimbursement as a potential statutory remedy. 20 USC 1412(a)(10)(C). The U.S. Supreme Court, in Forest Grove School Dist. v. TA, 557 US 230 (2009), held that the statutory remedy is in addition to, and does not undermine or diminish, the broad equitable remedial powers inherent in the grant of federal court jurisdiction in the IDEA. 557 US at 239-40.^[28]

• • The Facts Here.

As noted initially, the family here asserts that the district failed to offer this student an appropriate placement for the 2021-2022 school year. The family alleges several bases for their contention that the district denied the student a FAPE, and therefore had no choice but to unilaterally place the student at the nonpublic program for the school year at issue. See Exhibit A-1, A-3 - A-5. As a proposed remedy for the alleged denial of FAPE, the family requested the district be required to pay, directly to the school, for the full cost of the student’s school costs for the school year, funding for private transportation costs to and from the school, to reconvene a Committee on Special Education for a new annual review “if necessary,” and for the provision of assistive technology support. See Exhibit A-5.

At the commencement of the 2021-2022 extended school year in July, the student was a REDACTED-year-old child who had been diagnosed with REDACTED. See Exhibit C-1. The student’s REDACTED has resulted in the child having impairments in cognition, language, memory, vision, attention, reasoning, abstract thinking, judgment, problem solving, information processing and speech. See Exhibits 1-6, C-1. In addition, the student is non-ambulatory, requiring the use of a wheelchair. See Exhibits 1-53, 1-55, C-1, C-6, C-10, C-19, N-1. The student is reported to actively participate in class meetings, enjoys responding to questions, and interacting with peers. See Exhibit C-1.

On March 2, 2021, the school district convened a CSE meeting to create a special education program for the student’s 2021-2022 school year. See Exhibits 1-53, 4-2. The Committee classified the child as a student with a traumatic brain injury, and recommended, among other things, that the student be placed in a specialized 6:1+1 class at a district specialized school, and receive the assistance of, among other things, a full time nurse and full time paraprofessional, as well as the support of occupational therapy, physical therapy, speech-language therapy, vision education services, assistive technology, specialized transportation, and the provision of parent counseling and training, all on a twelve-month (extended school year) basis. See Exhibits 1-1, 1-47 – 1-48, 1-52 – 1-53, 4-1 – 4-2.

On June 12, 2021, the family was also offered a seat at REDACTED or implementation of the IEP for the 2021-2022 school year. See Exhibit 5-1.

These are the recommendations that gave rise to the objections lodged by the family in the due process complaint with respect to the student’s 2021-2022 school year.

As discussed above, the district carries the legal burden (both production and persuasion) of demonstrating the propriety of the program and placement it offered. See N.Y. Educ. Law § 4404(1)(c).

Broadly speaking, the family asserted the following objections to the district’s conduct: (a) the district failed to appropriately address and make recommendations for the student’s highly intensive management needs, (b) it failed to recommend music therapy services and recommend concomitant music therapy goals, (c) it failed to recommend 1:1 nursing services for the student, and (d) it failed to recommend an appropriate brick-and-mortar school location to implement the IEP, due to (i) the recommended placement’s grouping of the student with dissimilar peers, (ii) the student’s unique needs (including but not limited to being non-ambulatory, nonverbal, vision-impaired and medically fragile) would necessarily lead to a lack of appropriate attention and intervention from the public placement that the student requires, and (iii) the inability of the recommended school to provide an extended school day, which was necessary to implement the IEP. See Exhibit A-3 – A-4.

A review of the hearing record compels a conclusion that the district has failed to meet its burden of production and persuasion and has denied the student a FAPE for the 2021-2022 school year. That said, not all of the family’s allegations are meritorious.

The family’s argument that the district denied the student a FAPE due to the absence of a recommendation for 1:1 nursing support is rejected. It is, in fact, unclear why the family alleged this. The IEP is quite clear that the student was appropriately recommended for 1:1 nursing support – both throughout the school day, as well as during specialized transportation to and from school. See Exhibit 1-47, 1-53. The district’s school psychologist’s testimony corroborated this (see Tr. 79-94; Exhibit 11-3), as did the CSE meeting minutes (see Exhibit 3-4). The family’s argument is without merit.

Similarly, the family’s argument that the failure to recommend music therapy, as well as create goals for such a service, amounted to a deprivation of FAPE is without merit. It is true that the district relied solely on the evaluative information provided by the nonpublic placement (see Tr. 76-77), where the student had been receiving music therapy and was benefitting from it (see Exhibit C-9, C-13 – C-14). However, an IEP need only be appropriate for a student, not perfect nor must it provide everything a parent could possibly want for their child. See, e.g., Walczak v. Florida Union Free School District, 142 F.3d 119, 132 (2d Cir. 1998). I Find that the absence of a recommendation for the provision of music therapy and concomitant goals did not, by itself, render the IEP a nullity. See Exhibit 11-4 (district witness persuasively testifying as to how the IEP addressed the student’s needs with respect to heightening the student’s arousal and focus, increasing motivation, addressing self-regulation and sensory needs).

I also reject the family’s argument that the district IEP did not sufficiently address the student’s management needs insofar as it did not adopt, verbatim, the strategies recommended by the private program to meet such needs. See Exhibit A-4. I Find that the IEP sufficiently addressed the student’s management needs and easily satisfied the appropriateness standard as required under Endrew and Rowley. See Exhibit 1-24 – 1-25.

Nevertheless, the impartial hearing record compels the conclusion that the district denied the student a FAPE.

First, it should be noted that the family put the district on notice about its concerns that the CSE failed to inform the family adequately of the recommended program and placement. See Exhibit D-2. The district did not rebut this allegation, factually or legally.

Far more consequential, however, and dispositive to the question of FAPE, is that the district made no showing whatsoever of the appropriateness of the recommended school placement to implement the proposed IEP. The district declined to proffer a witness regarding the school placement offered to the student. The family squarely raised the issue of the appropriateness of the district’s recommended school placement in the due process complaint. See Exhibit A-4. The district chose not to substantively engage with this issue, instead submitting vague information about the category of the school, not the school itself, Nor did it specify adequately how it would implement the IEP. See Exhibit 11-4 – 11-5. See also Tr. 101-102 (district’s sole witness conceding that they did not know anything about the specific school placement offered to the student).

The family’s concerns were neither di minimis nor speculative. The family alleged that the placement would not be appropriate for the student due to the absence of an extended school day to accommodate the student’s significant, and uncontested, need for a panoply of specialized services. See Exhibit A-4. The family also alleged that the school site would not be appropriate for the child due to, among other things, the student being non-ambulatory and medically fragile. Id.

The hearing record reflects that the CSE did not even consider the student’s need for an extended school day (Tr. 78-79), despite being on actual notice of the child’s need for such support (see Exhibits C-48, I-1). The district’s attempt to counter the family’s allegations (Exhibit 11-5) was not persuasive, and in any event, did not even address, let alone rebut, the family’s claim regarding the student’s need for such extended day support, which should have been recommended on the IEP. It was not, and I Find the resulting IEP to be defective on this basis, independently and also in combination with the below.

Moreover, the evidence the family submitted about the recommended placement – keeping in mind that the family had no such burden of production or persuasion on this issue – reflects that the district’s own documentation demonstrates that the is not wheelchair accessible, while the student is wheelchair-bound. See Exhibit P-1.

The district not only failed to meet its prima facie burden in demonstrating the appropriateness of its recommended placement, but moreover, recommended a placement that was objectively and demonstrably inappropriate for this non-ambulatory, wheelchair-dependent student, consistent with the allegations of the family in their due process complaint.

School districts do not have ‘carte blanche’ to assign a child to a school ‘that cannot satisfy the IEP’s requirements’ … and R.E. does not foreclose all prospective challenges to a proposed placement school’s capacity to implement a child’s IEP.  To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school’s capacity to implement their child's IEP, which is ‘antithetical to the IDEA’[s] reimbursement process.’

M.O. ex rel. D.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 244-245 (2d Cir. 2015) (citations omitted).

The district denied the student a FAPE for the 2021-2022 school year.

As for the second inquiry under Burlington/Carter – whether the family’s choice of private program was reasonably calculated to meet the student’s needs – I find, for several reasons, that the family has met their burden under N.Y. Educ. Law § 4404(1)(c) to prove that the program was appropriate.

First, the private school’s program during the 2021-2022 school year was substantially similar – the size of the student’s class, teaching/support ratio, provision of supportive services – to the program the student received during the prior school year, which was recently determined to be substantively appropriate for the student in a prior impartial hearing. See Exhibits B-9 – B-12, C-49 – C-51, O-2 – O-3.

The school district, which is responsible for ensuring that students are comprehensively evaluated in all areas of actual or suspected disability, submitted no evidence that the student’s needs materially changed between school years, let alone significantly enough to warrant a change in program.

Given the extreme similarities of the programs, and no evidence of any fundamental error with respect to the prior determination of appropriateness nor evidence of fundamental change in the student’s assessments or needs between the school years, the presumption that continuation of a similar program would remain appropriate for the student, while not dispositive, is a fair and realistic starting point for the analysis. See S.H. v. Eastchester Union Free School Dist., 2011 WL 6108523, at *10 (S.D.N.Y. Dec. 8, 2011); F.L. v. Bd. of Educ. of the Great Neck U.F.S.D., 274 F. Supp. 3d 94, 120 (E.D.N.Y. 2017) (where a student made progress under a prior program, a successive, substantially similar program modeled upon the previous, progress-inducing program was appropriate).

Moreover, the family presented more than sufficient evidence reflecting that for the 2021-2022 school year, the school recommended, and is implementing, a comprehensive, service-rich specialized program that is meeting the student’s myriad unique needs. See, e.g., Exhibits C (passim), G-1, N-1, O-2 – O-3.

Although a privately-developed IEP is not a prerequisite to be eligible for tuition reimbursement (see Frank G., 459 F.3d at 364), the private school at issue here not only developed such a program for the student; it did so and incorporated comprehensive programmatic recommendations and sufficiently ambitious goals for the student. See Exhibit C, passim.

The key inquiry is whether at the time the family made their decision to continue to place the student in the private program, they had a reasonable expectation that the placement would afford the student a meaningful benefit (see Endrew and R.E., supra). I Find that the family had a reasonable belief that the nonpublic program would be appropriate for the student when they enrolled the child there, and, while not controlling as to the legal inquiry, the record also reflects that the student has made progress under the program. See, e.g., Exhibits N-1 – N-2, O-3.

Finally, while families do have a legal burden of production and persuasion with respect to the private programs pursuant to N.Y. Educ. Law § 4404(1)(c), it is settled law that such families are not held to the same legal standard in demonstrating the appropriateness of a unilateral program as a school district is to proving it offered a student a FAPE. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836-837 (2d Cir. 2014). “The test for the private placement ‘is that it is appropriate, and not that it is perfect.’” T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 (2d Cir. 2016) (citations omitted).

Based on the hearing record as a whole as discussed here, I Find that the family has adequately demonstrated that they reasonably believed that the placement they selected would afford the student meaningful educational benefit for the 2021-2022 school year. They have met their burden.

The family has also requested public funding of the private transportation services secured and contracted for the 2021-2022 school year. Unlike their showing with respect to the private school program, the family has provided virtually nothing regarding the private transportation services they are seeking to have funded by the district. Specifically, the family submitted into evidence a private transportation agreement, reflecting a daily transportation cost of $430 to and from the student’s home and the school. See Exhibit M-2.

The family did not submit anything else to explain or justify this cost or why I should order it paid for by the district. No explanation from the family was forthcoming as to why it did not utilize specialized transportation from the district’s office of pupil transportation, which the CSE recommended for the student (see Exhibit 1-52 – 1-53) and which the district was legally required to provide to the student pursuant to N.Y. Educ. Law § 4402(4)(d).

On the other hand, there is nothing in the hearing record that reflects that comparable specialized transportation from the office of pupil transportation costs the district any less than the family’s private vendor charged. Hearing Officers are ill-equipped, absent evidence entered into a particular hearing record on the issue (which did not happen here) to assess the fair market value of such transportation.

I therefore Order the district to directly fund the costs of the student’s transportation services during the 2021-2022 school year at a fair market rate based on comparable transportation, from a comparable vehicle with comparable accommodations for transportation services to and from the private program that were actually provided.

There is no compelling basis for me to order any assistive technology support beyond what is part and parcel of the unilateral placement’s program and paid for via tuition costs. As noted infra, the family, represented by counsel, has essentially abandoned the initial claim for assistive technology relief, and it will not be ordered here.

Finally, the district’s closing memorandum argues that the ten day notice submitted by the family was both procedurally and substantively deficient, insofar as it was not sent to the district sufficiently early, and also did not articulate the family’s concerns specifically enough. District Closing Memorandum at pp. 18-21.

A review of the applicable statute, 20 U.S.C. § 1412(a)(10)(C)(iii)(I), compared with the notice the family sent the district on June 23, 2021 (Exhibit D) reflects that the district’s arguments while far from frivolous, are not convincing.

First, the district misreads the family’s obligation with respect to when the notice should have been sent. The ten-day notice was sent on June 23, 2021, which was in fact ten business days before the student began the 2021-2022 school year at the unilateral program on July 7, 2021. See Exhibits E-1, G-1. The district’s use of the date when public school began – as opposed to the private program’s calendar, when the student began the new school year in the private program – is misplaced.

Somewhat more significant, though, is the district’s argument about the substance of the notice. I Find that the family could have (and should have) articulated the same specific bases for their concerns with the district’s program and placement as were articulated mere days later in their due process complaint (Exhibit A), both of which were filed on behalf of the family by the same advocate of the same law firm.

That said, the district’s focus on the family’s procedural and substantive shortcomings in the notice letter is ultimately not persuasive, given the district’s own errors and omissions noted above, which were of far greater import with respect to this student and the rights accorded to the family under the IDEA. To argue equity one must do equity.

I Find that neither party’s actions towards the other was perfect, but at the same time, there is no basis on these grounds to diminish the district’s responsibility to this student.

• • ORDER.

As detailed above, I Find that the family’s placement was and continues to be appropriate and I Order the district (1) by way of injunction, to continue to place, and to pay for, the student at that school for the remainder of the 2021-22 school year (inclusive of the costs, if any, of all items that would routinely be included on the student’s IEP pursuant to law and regulation, such as related services and augmentative equipment. Burlington, supra, at 370. By way of further injunctive relief I Order the district, (2) to reimburse the family for their out of pocket tuition costs for the child’s placement (inclusive of the costs of related services), if any, during the 2021-2022 school year; (3) to pay directly to the school any outstanding amount as yet unpaid for the program and related services for the 2021-2022 school year; and (4) I Order that the district directly fund the costs of transportation of the student during the 2021-2022 school year at a fair market rate based on comparable transportation, from a comparable vehicle with comparable accommodations for transportation services to and from the private program that were actually provided.

• • Finally, I Order the district to provide a copy of this decision to any person participating in any review of this student’s placement that takes place during the next twelve (12) months from the date of this decision. The copy of this decision provided by the district shall be provided to all meeting participants at least three (3) school days in advance of such meeting.

January 6, 2022

John Farago, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.  The regulations governing appeals are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found.

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

Footnotes

[1] The distinction between characterizing a case as being about denial of FAPE rather than about reimbursement as an end in itself is important, even crucial, because casting reimbursement as an entitlement both under-protects family rights and over-burdens district responsibilities. It under-protects families’ rights because when reimbursement is viewed as a right, districts wrongly conclude and argue that a determination that reimbursement is not merited means that they have no other or further obligation to the child. Denial of a reimbursement claim does not function as a Get-Out-Of-Jail-Free card. And lumping entitlement and remedy unduly burdens the district because when reimbursement is viewed as an entitlement it permits parents to feel and to argue that a right to be reimbursed flows directly from a showing that a child has been denied a free appropriate public education in the least restrictive environment, when in fact it is merely an available remedy in the equitable discretion of the decision-maker.

[2] The full text of the relevant regulation is: Student with a disability means a student with a disability as defined in section 4401(1) of the Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. NYCRR 200.1(zz)

[3] The court’s language refers to the right to evaluate the ‘IEP’ but in fact T.K. is a case about allegations that bullying taking place in a particular school placement rendered it impossible for the student’s IEP to be delivered at that particular school, and so the Court is using the term IEP in its most global sense, to include not simply the document, or the program, but the specific bricks and mortar placement as well. The muddiness arising from this conflation of program, placement, and IEP is discussed below. Further, in a recent OSEP Guidance Letter, Letter to Anonymous, March 3, 2016, 116 LRP 11174, in answer to the question,” Is it permissible for New York to have a State regulation that requires the board of education (Board) to approve/determine services and setting after the child's individualized education program (IEP) is developed by the Committee on Special Education?” The US Department of Education opined, “the Board is not permitted to unilaterally change a child's IEP and/or placement. Furthermore, the State must ensure that the Board's actions do not delay or deny the provision of a free appropriate public education (FAPE) to the child. Rather, if the Board determines that the educational program and/or placement proposed by the IEP Team are not appropriate, the State must ensure that a group that includes the appropriate IEP Team members, including the child's parent(s), meets in a timely manner to consider the Board's objections or concerns and to make revisions, if needed, to the IEP and/or placement in order to ensure FAPE is provided to the child.” In sum, the CSE may not substantively change, add to, or subtract from the program and placement defined in the IEP except by convening a meeting that includes the family.

[4] The ‘checklist’ referred to is precisely the list of requirements in 1415(e)(2) that the Court subsequently ruled in Carter, 510 US at 12-13 (1993) were not applicable to parental placements. Accordingly, for a parental placement to be appropriate, there need only be an affirmative showing that “personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction.” Districts, on the other hand, are held to adherence to the definitional checklist.

[5] Note that the words call for ‘support services,’ which should not be confused with the statutory term of art ‘related services’; support services are simply special education instructional interventions, and may be delivered through the child’s program or through related service providers, or both.

[6] This crucial holding was reiterated and affirmed when the Court revisited Rowley to clarify and address the minimum mandate of the Act, in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993, 197 L. Ed. 2d 335 (2017): “We declined to hold in Rowley, and do not hold today, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 203, n. 25 (1982).” Endrew at FN2.

[7] “[T]he progress contemplated by the IEP must be … appropriate in light of the child’s circumstances... A focus on the particular child is at the core of the IDEA.” Endrew at 992.

[8] It is critical to bear in mind, however, that the core holding in Endrew is that that lower boundary is far greater than de minimis, “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly... awaiting the time when they were old enough to “drop out.” ‘Rowley, 458 U. S., at 179 (some internal quotation marks omitted). The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew at 1001.

[9] Procedural violations under Rowley have come to be accorded a more limited access to the reimbursement remedy as a result of subsequent explicit legislative action. Enacting a legislative definition of what measure of procedural defect rises to the level of a denial of FAPE: 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 parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits. U.S.C. § 1415 (f)(3)(E)(ii) Thus, a denial of FAPE – the crucial finding of liability that gives rise to the reimbursement remedy under both Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985), and the subsequent amendments to the statute – may only be found when there has been a substantive failure to provide a ‘reasonably calculated’ placement for the child or when a procedural defect rises to the level of one of these three Congressionally-defined outcomes. That does not mean that no consequences follow in instances of lesser procedural violations, or that a decision-maker could not craft a remedy to address that sort of procedural defect. Indeed, under Rowley, he or she must do so because procedural violations are deemed to be as important as substantive ones. But the harm does not rise to being a denial of FAPE and, accordingly, the reimbursement remedy that may follow from a denial of FAPE is not available.

[10] The very first of the four purposes of the federal special education statute as originally articulated (and as they continue to be disseminated on the US DoE website is: “to assure that all children with disabilities have available to them … a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” http://www2.ed.gov/about/offices/list/osers/idea35/history/index_pg10.html (quoting the original language in the Preamble to PLm94-142).

[11] “The case law regarding challenges to a school's ability to provide a FAPE is less than a model of clarity.” N.S. v. New York City Dep't of Educ., No. 13-CV-7819 VEC, 2014 WL 2722967, at *12 (S.D.N.Y. June 16, 2014). “[D]istrict courts disagree over their proper role in evaluating a proposed placement”. K.C. ex rel. C.R. v. New York City Dep't of Educ., No. 14-CV-836 RJS, 2015 WL 1808602, at *12 (S.D.N.Y. Apr. 9, 2015). See also, K.R. ex rel. Matthew R. v. New York City Dep't of Educ., No. 13 CIV. 7464 SAS, 2015 WL 1808911, at *3 (S.D.N.Y. Apr. 20, 2015).

[12] “Each public agency must ensure that a parent of each child with a disability is a member of any group that makes decisions on the educational placement of the parent's child.” 34 C.F.R. § 300.501(c).

[13] In 13-192, the SRO reiterated the sweeping claim that, “if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement the IEP.” At 20. And the reviewing District Court appeared to articulate a no-less-broad conclusion “a challenge to the district's choice of school is improper where the student never attended the school” B.P. v. New York City Dep't of Educ., No. 14 CIV. 1822 LGS, 2014 WL 6808130, at *12 (S.D.N.Y. Dec. 3, 2014).

[14] See, Scott ex rel. C.S. v. New York City Dep't of Educ., 12 CIV. 3558 AT, 2014 WL 1225529 (S.D.N.Y. Mar. 25, 2014); M.S. v. New York City Dep't of Educ., 13-CV-3719 RRM VMS, 2013 WL 6028817 (E.D.N.Y. Nov. 13, 2013: “Of course, the court may consider evidence (not mere speculation) that the school will not adhere to the IEP. See T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 (2d Cir.2009) (“We emphasize that we are not holding that school districts have carte blanche to assign a child to a school that cannot satisfy the IEP's requirements.”); M.S. v. New York City Dep't of Educ., 12-CV-3533 NG, 2013 WL 7819319 at *16 (E.D.N.Y. Nov. 5, 2013). More recently still, Judge Weinstein has ruled that: [d]epending on the needs of the student, the characteristics of the specific school site can be an important factor in assessing the adequacy of the IEP and its implementation. See, e.g., T.L. v. N.Y. City Dep't of Educ., 938 F.Supp.2d 417, 436–7 (E.D.N.Y.2013) (remanding to the SRO for consideration of “the effect of the school's facilities and environment” because “the physical environment itself must be suitable for the child.”). Parents must rely on the FNR and other notices to determine if a proposed location is appropriate for their child's IEP. V.S. ex rel. D.S. v. New York City Dep't of Educ., No. 13-CV-3476, 2014 WL 2600313, at *4 (E.D.N.Y. June 10, 2014)

[15] The U.S. Department of Education’s 1999 Appendix A to Part 300 Regulations implementing the IDEA address this question explicitly: What is a public agency’s responsibility if it is not possible to reach consensus on what services should be included in a child’s IEP? The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child’s needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents’ concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)). The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority “vote.’’ If the team cannot reach consensus, the public agency must provide the parents [FR Page 12474] with prior written notice of the agency’s proposals or refusals, or both, regarding the child’s educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing.

[16] ‘Issues’ may unduly cast the family’s obligation with respect to the Complaint; it is meant to be a forum in which parents may appear pro se and the terms used make it clear that the requirement is for ‘notice pleading’: “a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem.” 34 CFR 508(a)(5).

[17] The Supreme Court in Endrew made this very point about the imbalance of power prior to the administrative hearing: “By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew 137 S. Ct. at 993.

[18] Although the New York and federal statutes are silent with respect to the standard of proof in special education hearings, they both specify that the standard with respect to the de novo judicial review of the subject matter of those hearings shall be ‘preponderance of the evidence.’ NY Educ. Law 4404.

[19] To be sure, as noted above, the family has an obligation to frame the hearing issues in their Complaint, and the hearing is bound to address the problem(s) alleged and no others, but that is explicitly a factual description – “a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem” [8 NYCRR 200.5(i)(1)(iv)] – not a legal one. The obligation of the family in their Complaint is to provide the district with facts sufficient to convey notice of the substantive nature of their concern, they need not specify their legal theory of the case. The two may be very different indeed and it may not be easy to discern from the former what the latter may turn out to be. Thus, for example, a Complaint that alleges that a proposed placement has too many distractions for a child diagnosed with ADHD could constitute a sufficient description of the problem with the placement, without detailing whether the family is challenging the district’s evaluation, the IEP it has generated, or the placement it is proposing. It could be any or all of these, and the district’s initial burden is affirmative: it must make at least a minimalist showing of the propriety of each. Families, under the IDEA, are not required to be experts on the law; they need simply articulate the nature of what they disagree with their child’s school district about.

[20] This does not mean that, once a district has failed to meet its burden, the family will almost automatically win because theirs is so low. The equities may well still not favor reimbursement. Reimbursement for all or part of a unilateral placement may be inappropriate because it falls too far in the opposite direction –the family has opted for a ‘Cadillac’ when a ‘Chevy’ could have gotten the child to his or her Rowley-defined destination. That, however, is not properly an argument about the propriety of the family’s placement, but, rather, an argument that the family should not be entitled to recapture the full cost of their placement – an argument about how the equitable remedy should be sculpted. When the parents’ unilateral placement exceeds the child’s minimal Rowley entitlement, a decision-maker balancing the equities has the opportunity -- though not the obligation -- to whittle the desired remedy down from reimbursement for what the parents obtained to something closer to the cost of what the district should have offered; the equities, not Rowley or the parents’ burden, allow the judge to reshape the remedy under these circumstances, Similarly, when families prioritize other values ahead of their child’s education – prejudice, even bigotry, or religion or cultural values – and decline a public offer and insist on a non-public school that comports better with their notion of what they want for their child, they run the very serious risk that the decision-maker won’t feel that the equities tilt in their favor. They may even find that a decision-maker believes that a Guardian ad Litem need be appointed to protect the child’s interests.

[21] “In a case where a court determines that a private placement desired by the parents was proper under the 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.”

[22] Captured as well in New York regulation in 8 NYCRR 200.1 (ww); both use the identical language: “Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, and special transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities.”

[23] See, Letter to Hampden at Page 2 (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).

[24] Indeed, a subsequent decision makes it clearer that the entitlement is not needs-related, even if it most frequently arises in cases in which the family lacks resources. As a matter of principle, however, it is simply wrong to engage in an inquiry into family finances as a threshold to determining an entitlement to a public education, even when that public education is provided via contract with a non-public school: Where, as here, parents lack the financial resources to “front” the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief. Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 428 (S.D.N.Y. 2011)

[25] And, under Carter, appropriateness for a family’s unilateral placement is not limited to those programs and placements that would be available to a school district; rather, it is defined functionally, and equitably, by the decision maker in the specific case. See fn 5, supra.

[26] Or at least it is a simple consequence if the ongoing placement has in fact been maintained, as it generally is, pursuant to the pendency requirements of the special education law at both the federal and state levels. If something has interfered with pendency, some form of remedial intervention may be necessary in the Order finally resolving the case.

[27] In New York State the history of district responsibility for unilateral non-public placements by parents as a means of self-help for failure to offer a timely and appropriate public school program significantly predated even the adoption of the Education for all Handicapped Act in 1975. In Matter of Riley Reid, 13 Ed. Dept. Rep. 117, 120 (1973), the N.Y.S. Commissioner of Education directed the New York City Board of Education to place and pay for private school special education placements for children whose parents had sought public school special education but for whom the City had not offered timely placements. The remedy, once articulated in 1973, was adverted to repeatedly, initially with respect to the growing class of plaintiff families who found themselves unserved by the City school district. See In the Matter of Riley Reid, 17 Ed. Dept. Rep. 72, and 17 Ed. Dept. Rep. 127 (October 12, 1977); Matter of Kelly, 15 Ed. Dept. Rep. 427 (April 6, 1976). Ultimately, its applicability was generalized by federal court order in Jose P. v. Ambach, 79 C 270, Memorandum and Order (EDNY 1982): “ORDERED that parents of handicapped students who have requested special education services and have not received a placement within sixty days of referral for evaluation shall be permitted to enroll their children in appropriate programs conducted at non-public schools approved by the New York State Commissioner of Education …, at public expense….” Although the City repeatedly sought to be relieved of this obligation, it was, instead, reaffirmed in 1983 and has not been challenged since. 557 F. Supp 1230 at 1244 (EDNY 1983). Jose P. is often thought of as a series of consent decrees, but in fact it has generated both agreed upon remedies and ones imposed by the court in the context of hard-fought disputes. The Order imposing district responsibility for non-public placements when a public placement has not been made available within the Jose P. timelines, was the result of one of these disputes. The mechanics of that process have, of course, evolved over time. Jose P. remains an ongoing proceeding in that same court.

[28] The statutory language is somewhat different from that of the Burlington decision and arguably the statute does not require a showing by the family that their unilateral placement was itself Rowley-appropriate.