Parents who unilaterally placed student in private school not entitled to tuition reimbursement under IDEA

S.H. v. New York City Dep’t of Educ., No. 09-6072 (S.D. N.Y. Feb. 18, 2011)

Abstract: A federal district court in New York has ruled that the parents of a special education student who was denied a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), were not entitled to tuition reimbursement under IDEA for unilateral placement of the student in a private residential school because that placement was not appropriate. While conceding that a parent’s failure to meet the mainstreaming requirement of IDEA in unilaterally placing their child  is not fatal to parental reimbursement, the court determined that it is a factor in considering the appropriateness of the parent’s choice.

Specifically, it found that when a parent places the student in a private school that is limited to educating learning disabled students only, the parent bears the burden of proving that such a restrictive non-mainstream environment was needed to provide the student with an appropriate education. The district court concluded that in the present case the parents had failed to meet that burden because the evidence did not demonstrate that the student needed such a restrictive residential to obtain educational benefits.

Facts/Issues:J.G., who suffers from attention deficit hyperactivity disorder (ADHD) had been classified as “other health impaired” under IDEA from 2003 to 2006. As a result, the New York City Department of Education (NYCDE) had been reimbursing his parents for private school tuition. For the 2006-07 school year, the parents placed J.G. at an out of state private residential school, with NYCDE agreeing to provide partial tuition reimbursement. NYCDE agreed to partial tuition reimbursement again in 2007-08.  In June 2008, however, NYCDE determined that J.G. was no longer eligible for special education services under IDEA and placed him in general education at a school in the district. The parents again enrolled J.G. at the private residential school.

The parents then requested a due process hearing, seeking tuition reimbursement for the 2008-09 school year. At the hearing, NYCDE conceded that it had failed to provide J.G. with a FAPE for 2008-09 school year. However, it argued that the parents had failed to establish that the placement at the residential school was appropriate and, therefore, they were not entitled to tuition reimbursement pursuant  to IDEA. The independent hearing officer (IHO) ruled that the parents had not carried their burden of demonstrating that the highly structured environment at the residential school was appropriate. The IHO, therefore, denied the parents’ request for tuition reimbursement. The state review officer (SRO) denied the parents’ appeal, agreeing with the IHO that they had failed to demonstrate that the unilateral placement was appropriate.

Ruling/Rationale: The district court granted NYCDE’s motion for summary judgment. The court held, as had the IHO and SRO, that the parents had failed to meet their burden of demonstrating that J.G.’s unilateral placement at the out of state residential school was appropriate under IDEA.  They were not, therefore, entitled to tuition reimbursement.

Citing the Supreme Court’s recent decision in Forest Grove Sch. Dist. v. T.A., 129 S.Ct. 2484, 2496 (2009), which relied on prior precedent including Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985), the court explained that to determine whether to grant a parent’s reimbursement request for the cost of private special education services, it must consider  three factors:  (1) whether the school district has failed to provide a FAPE; (2) whether the private school placement is appropriate; and (3) whether the equities warrant a reimbursement award in full or in part.  Noting that NYCDE had conceded that it failed to provide a FAPE, the court turned to the second prong of the test, whether the school was an appropriate placement for the student, in order to determine if the parents were entitled to tuition reimbursement.

In order to satisfy the second prong of the test originally put forward in Burlington, the parents must not only show 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,” but also must reconcile the placement with IDEA’s requirement that “special education and related services must be provided in the least restrictive setting consistent with a child’s needs.” Acknowledging that parents seeking reimbursement for unilateral placement are not subject to same mainstreaming requirements as school districts, the court said that it is still a legitimate consideration in determining whether the parents’ placement was appropriate.

In the present case, the court found  that because the parents “chose a private school for [J.G.] that educated learning disabled students only,” they bore “the burden of proving that such a restrictive non-mainstream environment was needed to provide [J.G.] with an appropriate education.” The parents had not met that burden, ruled the court.  Based on J.G.’s academic and behavioral progress, the court determined that such a restrictive environment was not necessary in order for J.G. to obtain educational benefits. While it agreed that the school’s program was “advantageous” for J.G. and perhaps even necessary to “maximize his educational potential,” it stressed that IDEA does not guarantee children with disabilities an education that maximizes their educational potential.  “Instead, IDEA requires states receiving federal funding to provide a FAPE that includes ‘special education and related services’ tailored to meet the unique needs of the particular child, and [that is] ‘reasonably calculated to enable the child to receive educational benefits.’” [citations omitted].

S.H. v. New York City Dep’t of Educ., No. 09-6072 (S.D. N.Y. Feb. 18, 2011)

[Editor's Note: In February 2010, the same New York federal district court ruled that the parents of a special education student who unilaterally placed the child in a private school were entitled under IDEA to retroactive direct payment of tuition to the private school. The court concluded that the parents, having satisfied the three-prong test established in Sch. Comm. of the Town of Burlington v. Dep’t of Educ., were entitled to a court order requiring the school district to make a direct payment of the tuition to the private school. The court determined that, given the purpose of the IDEA provision authorizing the payment of private school tuition after the parents had unilaterally enrolled their disabled child in private school, the crucial determination was whether the Burlington test had been satisfied, not the parents’ ability to pay the private school tuition upfront. A summary of the opinion is available below.]

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