Impartial Hearing Decision

The vision of the Individuals with Disabilities Education Act (IDEA) – a federal statute that shapes New York’s special education law and policies – is a vision of collaboration between school districts and parents. Since 1975, that law has urged parents and districts to come together with the shared goals of (1) identifying each individual child’s special needs, (2) assessing the educational implications of those needs, and (3) developing a plan that appropriately addresses those needs.

Recognizing that, of course, parents and school districts will come to the task from different starting points -- parents will surely want to maximize the benefits to their individual children, and school districts will surely feel compelled to balance existing resources to meet the needs of all the children in their care – the law calls for a swift and objective mechanism to resolve any disputes and bring the parties back to their collaborative focus on the individual child. Impartial hearings are not a goal or an endpoint, but the intervention of an umpire into a longer and larger game – the work of a ‘Committee on Special Education’ (CSE).

And so, at their best, the decision in special education hearings should help the parties to appreciate jointly that they start from a shared caring for children and a mutual desire to serve the needs of those who require special education. Parents certainly almost always embody that commitment to pursue the best interests of their child. But surely, those who are called to work in schools on behalf of children with special needs also do so out of a similar concern; it is a demanding, not-especially-financially-rewarding, often frustrating, and all too often mired-in-bureaucracy way to spend one’s life unless one can find gratification in the work itself. And, of course, that concern is the fuel that makes this work meaningful for me as well. We are, in this sense at least, all colleagues here, our energies are (or at least can and should all be) focused on shared student-centered goals even if we do not necessarily agree about every step of the path.

Over the course of the past several years, however, these hearings have increasingly gotten lawyered-up, and increasingly have focused on technicalities and procedure and legal argument. They have come to be so routinely centered around issues of reimbursement for private school expenditures that both sides now often come to the table believing that the hearing is about money, not a child, about outwitting, rather than working with, then other side.

One result has been that these decisions have also become far more legalistic – which is fine, even essential, as the law has gotten more complicated and detailed. The problem is not that the parties cannot hope to understand the technical legal jargon and reasoning that have become the driving force of these cases. The problem, rather, is that the voice of the law makes it easy to forget the cry of the child. For all of us participating in this enterprise, even the parents, even, perhaps especially, those who sit in judgment, legalisms undercut collaboration, money trumps education, each side increasingly feels distanced from, rather than drawn back towards, the capacity to work with the other.

I ask that we all pause and return our attention to where it most assuredly belongs. This case, then, is not about the past. It is not about money. It is about a child to whom each side in this dispute owes a profound duty of care, and it is about seeking ways to move forward in a manner that assists both sides to exercise that duty, making progress, working together.

For this reason, the challenge for me is to write at least these introductory words in a manner that addresses the legal questions fully, while retaining the ability to speak directly and clearly to the parties about their work together.

And working together is precisely the task that the law calls on you to take. It doesn’t matter whether you are a parent seeking reimbursement for a private school program and never intend even for a moment to send your child to public school if you can avoid doing so. Nor does it matter whether you are a district employee whose job it is exclusively to try to fight against parents’ reimbursement claims. A well-crafted Individualized Education Program (IEP) can be hugely helpful to a child’s teachers, whether in public or in private school. Working together to develop an excellent IEP is time well spent for both sides, no matter where the child attends school. There is much meaningful and useful work to be done together no matter who you are or what you seek from this hearing.

My decision on the merits of this case follows. Following an initial Summary, I explain in detail below the law on which my Order is based and I endeavor to do so in a manner that provides a sufficiently full and, I hope, clear description of how the law impacts on the responsibilities of the non-lawyer parties to permit the non-attorneys on both sides to move forward as they jointly address the needs of this student. I have tried, but know that I have not fully succeeded, to write this decision in a way that is always attentive to the families and clinicians whose lives and work form the heart of this process. In my Order, I require that a copy of this decision be provided to all who attend any further reviews of this student’s case this year, and, notwithstanding its length, I invite not simply the lawyers but the families and teachers and service providers and clinicians to find here a comprehensive introduction both to the principles on which the law is based and to the details of its implementation her in New York.

In the pages that follow, after summarizing the Order contained below, I therefore detail, first, the legal foundations on which my conclusions are based, and then, second, apply that understanding of the law to the facts as they are reflected in the record before me here.

THE DISTRICT’S FAILURE TO MOUNT A CASE OR MEET ITS BURDEN

This hearing concerns a challenge to the district’s program for the student for the 2020-21 and 2021-22 school years.

The family asserts that the district failed to offer the student an appropriate placement and that, as a result, they engaged in part in self-help by contracting for private tutoring services, and in part now seek further compensatory services to address the deficits resulting from that shortfall.

There is no dispute of fact, in large measure because the district chose not to mount a case in support of its statutory burden of proof. The district simply did not appear, a strategy that does not well serve the party who bears the entire burden of proof (there is no unilateral placement to defend here). The consequences are more pervasive and the impact of that choice extends beyond being simply self-injurious on the part of the district.

This case, for that reason, exemplifies one of the more directly destructive consequences of the commonly held view that Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985) (Burlington) defines a three-prong test of the family’s putative entitlement to reimbursement. Under that analysis, the district here has ‘conceded Prong 1’ by seeking to make no case in support of its burden to demonstrate that it had offered the student a FAPE for the years in question, without conceding the case as a whole, a notion that is, at best, problematic.

The district’s concession is troubling for a number of reasons that should be rendered explicit here:

• • Tainting the Relationship.

When the district fails to mount any case at all to meet its burden beyond, at most, resting on the documents submitted by the family and perhaps an IEP and a school location notice, while challenging the family’s efforts to engage in self-help to surmount the obstacle to the student’s education that the district has created, it manages to avoid saying: “We have failed in our obligation to this child,” and thereby ignores the language and intent of the law. It distances the district’s failure from that ongoing responsibility to the child by making it sound passive, technical, and, above all else, by failing to mention either the child or the responsibility at all. It turns a ‘Bang!’ into an ‘Oops.’ And it papers over the sad fact that not only has it failed to apologize to the family for its culpability, it is actively seeking to compound that abdication by denying any accountability for the cost of the self-help that the family engaged in.

In short, it allows the district to act as though it is not enough that it has failed to address the child’s needs, it now goes further by seeking to thwart the family’s efforts to do what the district remains responsible to have done.

How is a family to return to the CSE table after such an engagement with the district’s litigators and believe that its representatives at the CSE are good faith collaborators in the student’s education?

• • Mischaracterizing the Law.

As a consequence, referring to the failure to have offered an appropriate placement as ‘waiving Prong 1’ encourages all who participate in the hearing to misread the underlying law – ‘Burlington’ and ‘Carter’– to encourage the mistaken view that these hearings are about who should get what money – like awarding damages in a contract dispute -- when in fact they are about defining the points of contact between a child’s needs and a district’s responsibility -- like settling a boundary dispute between neighbors. Instead of resolving a shared dispute about the nature of a child’s needs and the appropriateness of a district’s program, enabling the parties to return to the CSE table and plan and work together for future years, this model views the CSE review as the tail and the hearing process as the dog. Rather than seeing hearings as the mediation of obstacles along the path of collaboration, it sees the CSE review as a procedural formality in an annual series of efforts by the family to obtain a private school voucher. And it sees the impartial hearing process not as the umpireal mechanism designed to intervene to mediate disputes in an otherwise ongoing shared enterprise, but as a zero-sum game with a winner and a loser.

Further, this language reinforces a tripartite misreading of Burlington, reifying the concept of a third prong relating to the equities.^[1] Burlington/Carter does not call for or create a separate inquiry into the equities; the cases themselves, each as a whole seamless inquiry, is an enterprise in the balancing of equities. Neither side has a burden to address the equities, but, rather, the job description of the hearing officer is precisely that task: to exercise his or her equitable jurisdiction to find what constitutes an appropriate expression of expression the district’s ongoing obligation to educate the student.^[2]

• • Isolating Accountability.

Third, encapsulating its failure for the current year in the opaque sheath of a Prong 1 waiver permits the district to narrow the focus of its obligation to the child to the moment in time of the challenged IEP or placement, when in fact there continues to be an ongoing obligation to provide an appropriate education until the student turns twenty-one or graduates. It encourages the decision maker not to ask what the district has done to remedy its default in the time that has passed since it concedes that it failed to offer an appropriate placement or program. It discourages the district from taking pro-active steps to cure the defects that it concedes fatally undermined its past efforts to offer an appropriate placement and legitimates the view that the district need not think about this particular child again until it is time to start the cycle again and develop an IEP for a subsequent school year.

I cannot express in strong enough terms how damaging this aspect of a Prong 1 waiver is to the fabric of the student’s right to a special education under the Individuals with Disabilities Education Act (IDEA). The core of the IDEA – a federal statute that shapes New York’s special education law and policies – is a vision of collaboration between school districts and parents. Since 1975, that law has urged parents and districts to come together with the shared goals of (1) identifying each individual child’s special needs, (2) assessing the educational implications of those needs, and (3) developing a plan that appropriately addresses those needs.

Recognizing that, of course, parents and school districts will come to the task from different starting points -- parents will surely want to maximize the benefits to their individual children, and school districts will surely feel compelled to balance existing resources to meet the needs of all the children in their care – the law calls for a swift and objective mechanism to resolve any disputes and bring the parties back to their collaborative focus on the individual child. Impartial hearings are not a goal or an endpoint, but the intervention of an umpire into a longer and larger game – the work of a ‘Committee on Special Education’ (CSE).

And so, at their best, the decisions in special education hearings should help the parties to appreciate jointly that they start from a shared caring for children and a mutual desire to serve the needs of those who require special education. Parents certainly almost always embody that commitment to pursue the best interests of their child. But surely, those who are called to work in schools on behalf of children with special needs also do so out of a similar concern; it is a demanding, not-especially-financially-rewarding, often frustrating, and all too often mired-in-bureaucracy way to spend one’s life unless one can find gratification in the work itself. And, of course, that concern is the fuel that makes this work meaningful for me as well. We are, in this sense at least, all colleagues here, our energies are (or at least can and should all be) focused on shared student-centered goals even if we do not necessarily agree about every step of the path.

But where the district actually relies upon its own inability or unwillingness to meet its statutory burden in these hearings, it licenses itself to turn, next, to attacking the validity of the family’s efforts to engage in self-help and it erects a tall and steep boundary between the parties, reinforcing an us-against-them view of this enterprise. That is not what they as educators should be doing, indeed, it is not in keeping with what they are obligated to be doing, transforming fiduciaries – those who are pledged to put the student’s interests ahead of their own – into adversaries – those whose goal it is to thwart the family’s effort to build or obtain an appropriate academic setting for the student.

I stress, in the most forceful of terms, that the district’s obligation to the student does not end upon acknowledgment that they are not able or willing to mount an adequate case; it actually begins there.

The law requires that once they have conceded their inability to meet their burden they need immediately turn their attention to working together with the family and the decision-maker as problem solvers to develop an appropriate alternative; it rejects the accountability vacuum the district here asserts. The law denies the district the opportunity to moor its vessel in the passive aggressive shelter of a ‘Prong 2’ attack.

• • Tilting the Scales Against the District: Applying Endrew/Rowley to the Family’s Placement.

The scales of justice can’t be balanced when the decision-maker is presented with only one end of the balance beam.

The district does itself a disservice when it concedes ‘Prong 1” because it renders the decision-maker unable to assess the reasonableness of the family’s decision to reject the district’s offer and seek self-help instead. The failure to offer free appropriate public education in the least restrictive environment is not an on/off switch, amenable to only two positions. It is, rather, a variable continuum of falling short, ranging from a near-miss all the way down to no offer at all. Because these cases are not about reimbursement as an end in itself, but about the parties’ capacity to work together in a manner contemplated by the law that has created the entitlements to free appropriate public education and least restrictive environment, when the district concedes Prong 1 and declines to present any case at all about its efforts to serve the child, it forces the decision-maker to view those efforts in the starkest possible terms: as though they simply did not exist. Note that the Second Circuit in Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) has made it clear that the family’s burden, while no less rooted in the terms defined by Rowley and Endrew, is not the same as the district’s burden when each is implemented:

[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).

Note in particular the distinction implicit in the Court’s language: the placement need not even provide special education services as technically defined by the State, but simply specially designed educational instruction that meets the unique needs of the student which would otherwise render the student unable to benefit from the educational program. That metric is inevitably a variable one that is responsive to what the district has demonstrated it has made or can make available. When the district offers nothing, the family’s burden approaches demonstrated that their program offers something.

Moreover, in assessing the propriety of the family’s effort to rectify the district’s failing, the decision-maker must take into account the limited range of options available to the family, the degree to which they possessed technical/professional educational expertise, the urgency of the placement timetable, and their natural desire to maximize the student’s potential. The family is under no obligation to seek out a program that skirts just barely above the Endrew minimum, and the district that comes to the table with unclean hands is not in a strong position to argue that, notwithstanding its own derogation of duty, the family should be barred from seeking to remedy the deprivation of FAPE because the program they initiated was too good. One of the fundamental tenets of equity jurisdiction is that ‘he that hath committed inequity shall not have equity.’

As Justice O’Connor put it in Carter, “public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting or place the child in an appropriate private setting of the State's choice. This is IDEA's mandate, and school officials who conform to it need not worry about reimbursement claims.” Carter, supra, 510 US at 15. To be sure, the decision-maker is functioning within the broad scope of the equitable powers of the federal courts, as discussed above at greater length, and as Justice Rehnquist ruled in Burlington, supra, “the court [below] was correct in concluding that ‘such relief as the court determines is appropriate,’ within the meaning of § 1415(e)(2), means that equitable considerations are relevant in fashioning relief.’ Where the district has conceded ‘Prong 1,’ it starts out behind an equitable 8-ball.

In short, a school district that acknowledges that it has failed to meet its definitional obligation to provide an appropriate placement may not easily or seemly then argue that, although the family has exercised self-help and found such a program, the district should not be held accountable for the cost of that program because of ‘the equities.’ If there were reasons justifying the district’s failure to offer FAPE, they should be a part of its burden and be addressed as it seeks to make its prima facie case.

• • Undermining the Very Purpose of the Hearing Process.

The special education due process proceeding – this hearing – is a unique and distinctive judicial creature. We are not engaged in compensating grievances but are participants instead in the ongoing process of educating a child, partners with the family and the school district to move that process appropriately forward by addressing disputes about where it has been in the past and addressing stalemates that have immobilized it in the present.

We are umpires whose sole role is to facilitate forward movement of the game into which we have been inserted. When our decision-making process becomes so time-consuming or otherwise dysfunctional that it undermines rather than facilitates the collaboration prospectively between the CSE and the parent, there is something very wrong. But we cannot provide insight and guidance into a process about which we have been kept in the dark by the district’s choice not to open its past actions and choices to review. When a district concedes Prong 1 and does not unfold its own understanding of the child, of the child’s needs, and of the program that would be appropriate, we have nothing to build from, nothing to guide. We are relegated to doling out compensation with at best diminished opportunity to provide guidance or healing going forward.

The idea of the system limned in the IDEA and rendered concrete by the New York State Constitution and its Education Law is that school districts are responsible to provide appropriate educational opportunities to every child falling beneath the caring blanket of their obligation. When a family seeks the benefit of such coverage, and the district acknowledges by virtue of a ‘no contest’ plea that it has failed to respond to that claim on its bounty, it cannot be equitable to decide that the district gets off scot-free – to reward it for its miscreance – because of small, narrow, or technical gaps in the family’s program. If their program meets Frank G., the district must be expected to bear a measure of its cost at least comparable to what a fully appropriate public-school program would have cost. And where the district has failed to demonstrate adequately that it has made any placement at all, meeting Frank G. reduces to making a prima facie showing, at least unless and until the district responds with cognizable counter-arguments and supports them in the record I Find that the district here has not even tried to meet its burden.

The district having failed to meet its burden, and the family having none, the sole remaining task is to craft a remedy.

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 would be over.

But it did not – the district is liable by virtue of having failed to do what the laws require of it – and the decision maker must 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. What are those equitable powers?

• • 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, these cases sound in Equity, not Law, and 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 and 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.^[3]

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).^[4] The ordered placement, that is, becomes the student’s FAPE,^[5] 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.^[6]

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,^[7] at district expense.

Such a remedy might be appropriate here, but for the fact that it would inadequately address remediation of the retrospective denial of FAPE. In short, while an order directing prospective placement may set things right going forward, it is only a partial remedy for the harms alleged by the family and not challenged by the district in this case. A further mechanism must be devised to create an augmented or enhanced metric to define the appropriateness of a retrospectively compensatory remedy to be layered on topo of my determination of what will constitute Endrew/Rowley FAPE going forward.

For that reason, in these circumstances, prospective injunctive relief is only a part of the task before me and I must look to other potential measures of compensation.

• • 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.^[8] 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.

• • 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.^[9]), 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 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.^[10] Again, no such claim is available or made here.

• • Prospective Compensatory Relief: Compensatory Services in addition to FAPE.

Not all families have the money, expertise, time, or willingness to be able to engage in, or take on the risk of, unilateral self-help. It would be a gross contradiction of the ‘Free’ in FAPE if compensatory relief were limited to families wealthy enough to take on a burden that could amount to tens of thousands of dollars annually (or more). (Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d at 428).^[11]

As a result, although cases seeking to hold districts accountable for unilateral placements make up the vast majority of currently litigated hearings, a growing number of cases ask the decision maker to craft an alternative or additional remedy in the form of ‘compensatory educational services.’ This is one of those cases.

Often these are cast as being in contrast to ‘reimbursement cases’ but that is a misnomer. Both ‘reimbursement’ and ‘compensatory services’ remedies are in fact compensatory in nature – they both draw on the decision-maker’s equitable powers to craft remedies that compensate for past district failure to deliver on their obligations. But they differ both with respect to timing – reimbursement is retrospective, while compensatory services are generally prospective – and with respect to whose judgment shapes them -- Burlington-based remedies ratify the family’s past unilateral judgment, while in compensatory services cases that task falls to the IHO to do so prospectively.

Prospective compensation remedies differ from injunctive relief because they don’t simply order the district to ‘do the right thing’ under the Act, they direct it to do more than that, prospectively, to make up for not having done the right thing retrospectively. Prospective compensation presupposes that the district will place the student in what would be an Endrew-appropriate placement (or builds upon an order directing the manner in which it must do so), but then layers on top of such an injunctive prospective remedy additional services designed to make up for past deficiencies. Like the cases that have ordered both prospective and retroactive direct payment for unilateral placements – e.g. Mr. & Mrs. A. and Connors, supra – courts have repeatedly concluded that the availability of remedy should not be limited to cases in which parents are wealthy enough (or sophisticated enough, or present enough, or sufficiently willing to take on risks) to engage appropriately in self-help to address district mis- or malfeasance.

These cases have emerged fitfully over the years and have slowly come to cluster into three distinct heaps. The result has been a fair amount of confusion with respect to what the term ‘compensatory services’ even means and confusion about when it is or should be available, and what the proper measure of damages should be. The confusion is exacerbated by variations among the many different jurisdictions that implement the IDEA. Nevertheless, the three lines of case – and the three underlying situations that give rise to them – can be carefully teased apart and addressed individually. Doing so goes quite some distance towards clearing away the confusion.

• • Extending a Student’s Eligibility Beyond the Routine Limits of the Law.

In the line of cases that evolved first, and that has most frequently been adopted across multiple jurisdictions, courts and administrative law judges have awarded continuing educational programs and services for children who are beyond the age or graduation limits of the statutory entitlement. See, e.g., Lester H. v. Gilhool, 916 F.2d 865, 868 (3d Cir. 1990) (“to restore [the FAPE] that which had been denied him”); see also Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir. 2008) (“prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education”). The SRO has reached the same definition under the rubric of “compensatory additional services.” See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013) (“an equitable remedy that is tailored to meet the unique circumstances of each case,” citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)).

In New York the standard for such an award has required a sustained and substantial deprivation during the time a child had been eligible for services. The goal of this remedy is to address the deprivation of the right to an education, not simply the right to specific services delineated on an IEP.

It can reach more broadly than simply a defective IEP, or more narrowly; so it is possible that a child with an appropriate IEP in place but no appropriate education being delivered might be awarded compensatory education by a court (see, e.g. P.P. v. West Chester School District, 585 F.3d 727, 739 (3d Cir. 2009)).

Alternatively, a child for whom there was no appropriate IEP but for whom the education being provided was nonetheless appropriate might conceivably not be eligible for an award of compensatory education. See, e.g., N.Y. SRO Decision No. 05-0-84 (2005). If a passenger buys a ticket for the train from New York City to Albany but the clerk mistakenly only provides one to Saratoga Springs, and yet the passenger gets on the train in NYC, gives the conductor his or her ticket on entry and then arrives at Albany without ever having been asked again to show a ticket or pay an additional fare, the passenger has no claim against the railroad. When you get to where you were headed, on time, you have gotten all that you were entitled to get.

By extension, as discussed below, for a student who has not yet reached the year in which she or he will turn 21, but for whom prospective compensatory relief is appropriate, if her or his train doesn’t reach the anticipated station by age 21 notwithstanding having received as much compensatory service as she or he could meaningfully benefit from before that age, there may be a basis for a claim – to be litigated near to the time she or he would age out routinely – that would lead at that time to an award of compensatory services beyond age 21.

• • Compensation Making Up for Defined but Undelivered Mandated Services Eligibility Beyond the Routine Limits of the Law.

The second line of authority provides compensatory ‘services’ rather than compensatory ‘education’ and arises when some specified service mandated by a child’s IEP has been denied for a long enough period of time to cause educational harm. See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013); N.Y. SRO Decision No. 12-209 (May 3, 2013). For a state appellate court decision that upheld such an award for a lack-of-implementation denial of FAPE, see Bd. of Educ. v. Munoz, 793 N.Y.S.2d 275 (App. Div. 2005).

Under those circumstances, where the IEP itself is presumably appropriate but it had not, for some period, been properly implemented, there have been cases in New York in which hearing officers have awarded a measure of compensatory, ‘make-up’, services to layer on top of the IEP services and fill in for those that had been lost.

This second line of cases presupposes that the child’s capacity to achieve the goal of the law – to obtain an appropriate education – will inevitably be undermined by the loss of the needed service. That is, these compensatory services are ordered because, it is feared, the deprivation has interfered with the child’s capacity to achieve the full benefit of the public school’s education. See, e.g., Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]. The remedy in these cases is to provide the student with what he or she would have received had the Rowley-appropriate program defined by an existing IEP been provided in full.

Similarly, there are times when the mandated services that have not been delivered, but are not in controversy, are ones that were all or part of a pendency entitlement rather than an aspect of the student’s past FAPE. In that situation the compensation is inevitably a strict 1:1 replacement prospectively of the services denied retrospectively, because pendency by definition is uniquely unrelated to appropriateness of LRE; it is simply a flat mechanical entitlement. Even if other awards are made to address the merits of the denial of FAPE, to allow the district not to be accountable for missed pendency services to which the student was entitled would be to create an incentive for such failures in the future, whether intentional or not. See DOE v. East Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015). At 456: “when an educational agency has violated the stay-put provision, compensatory education may — and generally should — be awarded to make up for any appreciable difference between the full value of stay-put services owed and the (reimbursable) services the parent actually obtained.” In this case, the family seek some remedies that are akin to this line of cases, as I discuss further below in addressing the specific remedies sought.

• • Compensation for Past Failures to Offer FAPE.

Finally, the most recent line of cases, and the one with the least consistent analytic coherence, involves children for whom, like those that extend eligibility, the district has been found to have failed to offer them – in general, over a sustained period of time and to a substantial degree – a FAPE, but for whom, unlike those in the first group, the student remains statutorily eligible for services (and for whom the district’s CSE remains responsible for providing FAPE).

Like the children in the second line of cases, these are students who have, or will have, or have been ordered to have, an IEP developed that provides (prospectively) an Endrew-appropriate FAPE. But unlike them, once that IEP is in place there is no finding of shortfall in the services it prospectively mandates.

The students in this third category of cases are, in sum, students with IEPs who are owed an indeterminate measure of past services to make up for a period of time during which they did not have valid programs and/or services in place, but for whom Rowley/Endrew-appropriate programs and services either are currently in place or are being ordered by the same order that awards the compensatory remedy.

• • Caution is Due in Crafting Prospective Compensatory Remedies.

Here, I have concluded that the district has failed to meet its burden and that as a result I must find that there has been a substantial and extended denial FAPE. The family asks that, at least in part, I craft a prospective compensatory remedy. This is not as simple a task as it may seem.

There are at least three reasons why IHOs and courts have trod, and should tread, gently on the thin ice of crafting a prospective compensatory remedy:

• • Responding to a Child’s Educational Needs Constitutes Shooting at a Moving Target.

Inevitably, Final Orders issued in administrative hearings or judicial cases are frozen snapshots in time, but the educational needs of children are rapidly evolving, multi-dimensional, often unpredictable real-time events. The IDEA wisely understands this dynamic and defines and mandates a process for the development of IEPs by CSEs, rather than a fixed series of entitlements or amounts. Each child is to be treated individually, assessment is to be repeated at least triennially, reviews are to be conducted at least annually, almost anyone involved in the student’s education can trigger a new inquiry into his or her status. IEPs have a lifespan of a year, placements must be reviewed with each IEP. CSE’s – the delivery mechanism created to oversee and implement these dynamic entitlements – are living, relational, ongoing entities.

By contrast an impartial hearing is a single-shot intervention; it exists once, briefly, for a single purpose. The final administrative or judicial Order has to get it right – to predict the future – all at once and without easy recourse to review or revision.

While the measure of damages in an undelivered-mandate case is simple and straightforward (make up the lost resources), and while the unavailability of the CSE for ongoing monitoring is a statutory limitation in a post-eligibility case, neither of these characterize prospective compensatory services cases for eligible children.

Worse, these cases are not simply evolving on their own, the CSE is, one hopes, providing new IEPs and ongoing appropriate services and programs designed to meet the child’s current needs. The potential traffic jam involved in trying to coordinate CSE-mandated services with those derived from a rapidly aging impartial hearing decision makes this sort of remedy all the harder to craft with confidence. Even beginning to craft a compensatory services award can be an impossibly recursive effort unless and until FAPE is firmly and authoritatively defined for the student prospectively and has either been ordered or has been agreed upon through the CSE process.

The measure of compensation due is inevitably affected by the baseline of services and programs to be delivered by the student’s (potentially changing) post-hearing FAPE-providing IEP; not just because there is significant potential for inadvertently awarding duplicative or even counterproductive services, but because students can only absorb so much intervention in any given time span (even sponges reach a saturation point). While the CSE can monitor and adjust their end of the process, the decision maker in an impartial hearing will have left the scene before the ink on his or her Order is dry.

• • Hearing officers are neither clinicians nor teachers.

It is one thing to balance the arguments presented by opposing advocates and weigh credibility and assess documentary evidence, it is quite another to undertake detailed clinical assessment of questions like how available the student will be for intensive intervention – how many hours per week, of what kind of services, beyond those provided by the FAPE, will the student be available, productively, before the return on effort is diminished or the work actually becomes counterproductive? How much growth exactly was foregone because of the denial of FAPE in the past? What will it take to catch up? The Act presupposes that answers to questions like these are not simple facts to be found, but are balances best weighed by a multi-disciplinary team that includes both the full range of clinical and educational expertise relevant to the case as well as those who love the student and have known him or her longest and best.

Few if any other remedial questions are less amenable to adjudicative assessment, and IHOs, and courts are wise in this context to defer whenever possible to the combination of the multi-disciplinary team and the statutory due process protections attached to the team’s determinations.

• • A Prospective Award Undermines the Collaborative Process Envisioned in the Law.

I began this decision with a paean to the central role of cooperation and collaboration in capturing the spirit and letter of the Act. Substituting the judgment of the IHO, at the conclusion of a hearing structured as an adversary proceeding, totally ignores, even undermines, those values. It not only reaches its decision in a different way -- through a process that fosters argument and dissonance rather than cooperation and compromise – it removes important subject matter from the scrutiny and oversight of the CSE and substitutes that of an outside neutral.

In sum, every element of a student’s education that is subsumed into a prospective compensatory services award is removed from the purview prospectively of the CSE and diminishes the centrality of the CSE to the student’s educational program. Again, this student is no longer under the aegis of the CSE, and so this particular concern is de minimis.

For these reasons at least, and there may well be many more, IHOs are well advised to act cautiously when determining and applying the appropriate measure of relief in a compensatory services case.

• • Revisiting Rowley and Endrew.

Based on the foregoing, and taking my own advice, I conclude that the values that make sense to me in crafting a compensatory remedy are that it should:

• • minimize clinical speculation by the IHO.
• • maximize reliance on objective independent assessment
• • accommodate modification, extension, and adjustment of the Order, either by consensus, or if consensus cannot be achieved, by recourse to a new impartial hearing The courts have struggled with articulating alternative measures of damages for compensatory services remedies. See Zirkel, Adjudicative Remedies for Denials of FAPE Under the IDEA 33 J. of the Nat’l Ass’n of Admin. L. Judiciary 214 (2013) [http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1547&context=naalj] In the context of that struggle, no clear standard has been articulated by the Second Circuit for prospective compensatory services remedies.

Among the cases outside the Circuit, the decision in Reid ex rel. Reid v. D.C., 401 F.3d 516 (D.C. Cir. 2005) provides the most thoughtful and compelling argument.

In weighing how to craft an appropriate remedy for these students, the D.C. Circuit rejected the notion that providing Rowley-appropriate placements prospectively would adequately address their needs or deliver their IDEA entitlement. As Judge Tatel wrote:

To be sure,… students could seek prospective correction of a deficient IEP, as the Reids did in the first administrative proceeding described above. But because the Rowley standard requires only that schools provide “some educational benefit,” see Rowley, 458 U.S. at 200, 102 S.Ct. 3034—a standard that looks to the child's present abilities—an IEP conforming to that standard carries no guarantee of undoing damage done by prior violations.

Reid at 523.

Judge Tatel went on to note that, “the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” 401 F.3d at 524 (emphasis added).

Judge Tatel properly crafted a standard that should be met when designing prospectively a program for a child for whom a past, unremedied, deprivation has been found in response to a family’s complaint: “Accordingly, just as IEPs focus on disabled students' individual needs, so must awards compensating past violations rely on individualized assessments. … In every case, however, the inquiry must be fact-specific and, to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Id at 524.

In short, a prospective determination of program for a child for whom the district’s past offers have been inappropriate should not have a Rowley/Endrew-defined ceiling, but rather it should start from a Rowley/ Endrew-defined foundation. That is, it should not simply be reasonably calculated to provide academic benefit for the coming year, but rather should be designed to allow the child, as swiftly as possible, to achieve the level of progress that he or she would have been able to achieve had a Rowley/Endrew-defined program been offered in the lost years.

Where the CSE can no longer reach the child – as, for example, when the child has graduated or aged out – an externally defined and ordered compensatory services award may be the only way to achieve that goal.

Similarly, where the CSE has crafted an IEP that all agree is appropriate but which has not been fully implemented, the CSE has no role in determining what services must be provided by way of compensation – the IHO can just add them up and order them, based on that uncontested IEP.

And where the family has engaged in self-help, and the child has already received services sufficient to address the full range of the deprivation engendered by the CSE’s actions, again a litigation-defined reimbursement order may be an appropriate measure to achieve compensation for the lost years. By extension, where services were provided similarly by one or more providers, adequate to meet the Reid standard but for which the family seeks retroactive direct payment, again that order must come from a hearing officer or judge.

But where the family seeks a prospective order crafting a program tailored to the child’s current needs as defined by the standard defined in Reid, there is no need to deprive the CSE of its statutory involvement in the child’s unfolding educational needs and plan. And there are strong policy reason to involve the in assessing, designing, and providing the student’s program and placement, consistent with the Reid standard CSE – as always, operating within the framework of the law’s strict due process mandates including the opportunity for further oversight and review by subsequent Impartial Hearings as called for by the family should subsequent disagreements emerge.

In such cases, the CSE has greater clinical knowledge, a more immediate capacity to assess the child’s current and prospective needs, the ability and mandate to draw those presently educating the child into the design of the program, a better attuned capacity to determine how much additional service the student may sustain and for how long that additional service need be made available.

Perhaps most importantly, defining a compensatory award that will be implemented, overseen, and potentially shaped by the CSE (as always, including the family, and working in the context of the ongoing IDEA-defined due process protections) furthers the Act’s express goal of fostering collaboration between the district and the family. Imposing an external Order for third-party services without CSE engagement, on the other hand, just adds bricks to the wall that separates them.

In sum, an ideal remedy re-engages the parties, by virtue of the law’s dominant focus on the collaborative team process that forms the heart and soul of the IDEA, to the greatest extent possible through the ongoing and fluid CSE mechanism, in delivering and refining the compensatory award, cognizant of the fact that the standard against which their work is to be measured is not the Rowley minimum (of reasonably calculated to provide meaningful educational benefit) but the Reid mandate of bringing the child as swiftly as possible to the level he or she would have been at but for the past deprivation.

Here, the remedial task is comparatively straightforward, both because the family seeks what amount, at present, to make-up services for missed entitlements and plainly assessed deficits, and in part because the family has gathered assessments and a detailed proposed remedy that fit squarely with the deficits they have documented. It may well be that when the independent assessments I have previously ordered be conducted in this matter are complete, the understanding of the student’s needs may be sufficiently more detailed for planning purposes that for the 2022-23 school year a more complex analysis may need to be undertaken. But here, I conclude that the family’s proposal is well thought through and founded on the available evidence for the past two school years.

Specifically, the record here supports the family’s claim for reimbursement of the documented payments for tutoring services during the years under review. See Exhibits I, J, and K, and well as for payment directly to the provider of duly licensed tutoring services at reasonable market rates for up to a total of 470 additional hours of such services in a manner consistent with the student’s needs and proposed program as detailed in Exhibits I and L. Finally, I Order the district to provide the family with a bank of 80 hours of compensatory Speech/Language services by a duly licensed provider at reasonable market rates, to compensate for the various documented forms of shortfall in provision of FAPE during 2020-21 and 2021-22, to be utilized no later than August 31, 2024.

September 7, 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.

DOCUMENTATION ENTERED INTO THE RECORD BY THE DISTRICT

NONE

DOCUMENTATION ENTERED INTO THE RECORD BY THE FAMILY

Footnotes

[1] It should be noted that there is dicta in important Second Circuit decision that suggests that the Court there similarly misunderstood the Burlington reference to the decision-maker’s equitable power to craft a remedy to be the third element of a non-existent reimbursement a cause of action. Nor did that court accurately parse the NY State statutory allocation of burden of proof with respect to the equities determination: Under New York's Education Law § 4404(1)(c), the local school board bears the initial burden of establishing the validity of its plan at a due process hearing. *185 If the board fails to carry this burden, the parents bear the burden of establishing the appropriateness of their private placement and that the equities favor them. Cerra, 427 F.3d at 192. R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012) This is particularly anomalous because not only does the authority cited by the Court – Cerra -- nowhere mention the allocation of the burden of proof in New York, it actually predates the adoption of the relevant governing statutory language in New York by two years and predates the U.S. Supreme Court’s Schaffer decision on the subject by two months, rendering it entirely useless as authority with respect to the question in New York State. At the end of the day, R.E.’s dicta on allocation of the burden with respect to the equities must simply yield to the dispositive statutory language allocating the burden entirely to the district except for the single determination in reimbursement cases of the appropriateness of the parental placement. More importantly, it should not be read to ratify the misconception that ‘the equities’ are in some sense an element that either party bears the obligation to assert and prove. They are the water in which we all are swimming, not a burden that one of us must carry.

[2] To be sure, families always have the right to place a child outside of public education, unilaterally. But by their very nature, these cases seek to enforce to district’s obligation and to deny that the family wishes to undertake such a removal. Cases about parentally placed students, while similar in structure, arise under NY Education Law 3602-c, not the IDEA and 4400 et seq. No less surely, there are many cases in which the district does, or at least has the capacity to (if they choose to put on a case), prevail. To say that the IHO is giving expression to the district’s appropriate exercise of its obligation to offer an education to all students within its catchment is not to say that the family should always win. It is simply another way of saying that these disputes are not adversarial: all three sides of the table are there in pursuit of the common goal of defining the district’s obligation to the student.

[3] “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.”

[4] 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.”

[5] 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).

[6] 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)

[7] 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.

[8] 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.

[9] 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.

[10] 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.

[11] “Limiting [remedy] only to those with the financial means to pay the costs of private school tuition in the first instance, is entirely antithetical to IDEA's universal guarantee of a ‘free, appropriate public education to all children with disabilities, regardless of means. Defendants' arguments to the contrary are not persuasive.”