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Special Ed Connection Case Report42 IDELR 171 Full Text105 LRP 822 Appearances: BOARD OF EDUCATION OF THE APPEARANCES: CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Plaintiff, For Board of Education of the City School-against- TOM F., on behalf of GILBERT District of The City of New York, Plaintiff: Michael F., a minor child, Defendant. D. Hess, Corporation Counsel of the City of New York, New York, NY; Michael DeLarco Emanuel U.S. District Court, Southern District of DeLarco, New York City Office of Corporation New York Counsel, New York, NY. 01 Civ. 6845 (GBD) For Tom Freston on behalf of Gilbert F., a minor January 3, 2005 child, Defendant: Lauren A. Baum, Neal H.Related Index Numbers Rosenberg, New York, NY.385.005 Funding JUDGES: HON. GEORGE B. DANIELS,410.015 Private School Costs U.S.D.J.410.025 Tuition and Other Services OPINION BY: HON. GEORGE B. DANIELSJudge / Administrative Officer Opinion: Memorandum and OrderGEORGE B. DANIELS This matter is before the Court on cross-motionsCase Summary for summary judgment as to the State Education The court concluded that the parents of the Department State Review Officers (SRO) award ofstudent with a learning disability were not eligible to tuition reimbursement to Defendant. For the reasonsreceive reimbursement for their childs private school set forth below, Plaintiffs motion for summarytuition because their child, a private school student judgment reversing the award is granted, andsince kindergarten, had never received special Defendants motion is denied.education services within the public school system. I. Background The student attended private school since Many facts are undisputed. Defendants son,kindergarten. Following an annual review, his Gilbert F. ("student") has attended the Stephencommittee recommended placement at a public school Gaynor School ("Gaynor"), a private school, sincewithin the district, but the parents continued the kindergarten. On June 23, 1999, the Board ofprivate school placement. They then sought Educations Committee on Special Education ("CSE")reimbursement for his private school tuition. Both the conducted an annual review to determine the studentsIHO and SRO concluded the parents were entitled to appropriate educational placement for the 1999-2000reimbursement. But the District Court disagreed and school year. Seven people attended the CSE meeting,concluded that the parents were ineligible to receive including an educational evaluator who signed thereimbursement because their child never received Individualized Education Program (IEP) as the specialspecial education services through the public school education teacher. The students actual specialsystem. The court explained that the IDEA provision education teacher from Gaynor was unavailablepermitting tuition reimbursement awards limited because she was in the hospital.reimbursement to students who had previously Following a review of several evaluationsreceived special education and related services while conducted by the CSE in preparation for the studentsin the public school system. annual report, the CSE recommended that the studentCopyright # 2007 LRP Publications 1
Special Ed Connection Case Reportcontinue to be classified as learning disabled and that IEP is appropriate, the district court must give "duehe be placed in a Modified Instructional Services-I weight" to the findings of a state administrative("MIS-I") program with a teacher ratio of 15:1. The proceeding. Id.CSE further recommended that the student receive "[The Second Circuit] has acknowledged thatspeech/language therapy in a group twice per week Rowley requires that federal courts defer to the finaland counseling in a group once per week. The decision of state authorities." Muller v. Comm. onstudents Final Notice of Recommendation was sent to Special Educ., 145 F.3d 95, 102 (2d Cir. 1998)Defendant on July 29, 1999, which placed the student (quoting Karl v. Bd. of Educ., 736 F.2d 873, 877 (2dat P.S. 871, a public school. Cir. 1984). "Deference is owed to state and local Nonetheless, Defendant continued the students agencies having expertise in the formulation ofplacement at Gaynor for the 1999-2000 school year educational programs for the handicapped." Muller,and requested an impartial hearing to seek 145 F.3d at 103 (quoting Briggs v. Bd. of Educ., 882reimbursement for the cost of the students tuition. On F.2d 688, 693 (2d Cir. 1989)).April 6, 2000, the Impartial Hearing Officer ("IHO") Nonetheless, as Defendant acknowledges here,ordered the Board to reimburse Defendant for the cost the Second Circuit has differentiated between thoseof the students tuition at Gaynor. The plaintiff, in matters where the court has been called upon to judgeturn, appealed to the State Education Department whether a child has been offered a free andSRO, who affirmed the IHOs award of tuition appropriate education, and matters of statutoryreimbursement on grounds that the CSE was not interpretation. The line of cases that calls forvalidly constituted and, thus, resulted in an deference to administrative proceedings addressesinappropriate placement. only the former situation. In contrast, where the issue Plaintiff now seeks to reverse the March 30, facing the court is one of statutory interpretation, the2001 decision of the SRO granting Defendant tuition district court may review the matter de novo. Seereimbursement on grounds that: (1) the IDEA Muller, 145 F.3d at 103 (approving of district courtsprecludes an award of tuition reimbursement in de novo review of whether a school districtinstances where a student has not previously received appropriately classified a childs disability statusspecial education services from a public agency; and because resolution of the issue involved interpretation(2) in any event, the CSE was properly constituted. of the IDEA and applicable regulations). Under the latter circumstances, "state administrative officials II. Discussion [are] in no better position than the district court to A. Standard of Review make conclusions." Id. "Federal courts assess IDEA petitions based on Here, as in Muller, it is not the underlying factsthe preponderance of the evidence developed at the that are in dispute, but rather the legal conclusions toadministrative proceedings and any further evidence be drawn from those facts. As a result, the concernpresented by the parties." M.S. v. Bd. of Educ., 231 that motivated the court in Rowley, of courtsF.3d 96, 102 (2d Cir. 2000) (quoting Walczak v. substituting their own notions of sound educationalFlorida Union Free Sch. Dist., 142 F.3d 119, 122-23 policy for those of school authorities, is not present.(2d Cir. 1998). However, this assessment is not an See Rowley, 458 U.S. at 206. As the issues here are"invitation to the courts to substitute their own ones of statutory interpretation, the SROsnotions of sound educational policy for those of the determinations are to be reviewed de novo.school authorities which they review." Bd. of Educ. v.Rowley, 458 U.S. 176, 206, 73 L. Ed. 2d 690, 102 S. B. Defendants Eligibility for TuitionCt. 3034 (1982). When reviewing whether a proposed ReimbursementCopyright # 2007 LRP Publications 2
Special Ed Connection Case Report The Board of Education argues that Defendant is parents of a child who had never received specialbarred from tuition reimbursement under the IDEA education services in public school sought tuitionbecause his child did not previously receive special reimbursement after having unilaterally removed theeducation under the authority of a public agency. child from public school and placed her in privateDefendant argues that despite the plain language of school. As in the instant case, the hearing officerthe statute to the contrary, he should be permitted to ordered the school district to reimburse the childsreceive tuition reimbursement because to hold tuition. However, in affirming the district courtsotherwise would defeat the purpose of the IDEA. reversal of the hearing officers holding, the Court of In School Committee of Burlington v. Appeals concluded that the amended provision limitsDepartment of Education, the Supreme Court set forth tuition reimbursement to children "who havethe circumstances under which a parent who previously received special education and relatedunilaterally enrolled a child in a private school could services while in the public school system (orreceive tuition reimbursement. 471 U.S. 359, 369-70, perhaps those who at least timely requested such85 L. Ed. 2d 385, 105 S. Ct. 1996. The Court did not services while the child is in public school)." Id. atlimit the remedy to parents of children who 159-160.previously received special education in a public As neither threshold is satisfied here, the SROsschool. However, Burlington predated the holding awarding tuition reimbursement to Defendantamendments to the IDEA made in 1997. was erroneous. The 1997 amendments to the IDEA provide, in Defendant advocates departure from the plainpertinent part: language of the statute on grounds that adhering to its If the parents of a child with a disability, who literal interpretation would defeat the statutes verypreviously received special education and related purpose. This contention is without merit. "Only theservices under the authority of a public agency, enroll most extraordinary showing of a contrary intentionthe child in a private elementary or secondary school, from the legislative history would justify interpretivewithout the consent of or referral by the public departure from a statutes plain language." OConnellagency, a court or hearing officer may require the v. Hove, 22 F.3d 463, 470 (2d Cir. 1994). Here,agency to reimburse the parents for the cost of that however, evidence of congressional intent from theenrollment if the court or hearing officer finds that the legislative history is consistent with the plain meaningagency had not made a free appropriate public of the text. The relevant House Report from theeducation available to the child in a timely manner Committee on Education and the Workforce states:prior to that enrollment. (emphasis omitted).1 Section 612 [20 U.S.C. # 1412] also specifies 20 U.S.C. # 1412(a)(10)(C). that parents may be reimbursed for the cost of a private educational placement under certain Interpretation of this provision is an issue of conditions (i.e., when a due process hearing officer orfirst-impression in this circuit. The clear implication judge determines that a public agency had not made aof the plain language, however, is that where a child free appropriate public education available to thehas not previously received special education from a child, in a timely manner, prior to the parentspublic agency, there is no authority to reimburse the enrolling the child in that placement without thetuition expenses arising from a parents unilateral public agencys consent). Previously, the child mustplacement of the child in private school. have had received special education and related The Court of Appeals for the First Circuit services under the authority of a public agency.reached this conclusion in Greenland School District House Report No. 105-95 (emphasis omitted).v. Amy N. 358 F.3d 150, 158-160 (2004). There, theCopyright # 2007 LRP Publications 3
Special Ed Connection Case Report As Plaintiff suggests, the provision ensures that a For the reasons set forth above, Plaintiffs motionparents rejection of a public school placement is not for summary judgment reversing the SROs grant ofbased on mere speculation as to whether the tuition reimbursement to Defendant is granted, andrecommended public school placement would have Defendants motion is denied. The Clerk is directed tobeen inappropriate. Therefore, it cannot be said that close this case.adherence to the plain language would defeat the SO ORDERED.purpose of the IDEA to provide every child with a 1 This language is reiterated in the applicabledisability a free and appropriate public education. See federal regulation. 34 C.F.R. # 300.403(c).20 U.S.C. # 1400(d)(1)(A). 2 The Declaration of Linda Wernikoff in Support Finally, Defendant relies on an opinion given by of Plaintiffs Motion for Summary Judgmentthe Office of Special Education Programs ("OSEP") addressed issues pertinent only to this latter question.in response to the question of whether the 1997 Therefore, Defendants motion to strike theAmendments to the IDEA preclude private school Declaration as improper is rendered moot.tuition reimbursement for children who had notpreviously received special education from a public Statutes Citedagency. OSEP concluded that it did "not appear that 20 USC 1412(a)(10)(C)[this] question ... [was] answered by # 612(a)(10)(C) 20 USC 1400(d)(1)(A)of IDEA 97." Letter to Luger, 33 I.D.E.L.R. 126 Regulations Cited(March 19, 1999). 34 CFR 300.403(c) "Deference to an OSEP policy letter may be Cases Citedappropriate where statutory language is ambiguous." 231 F.3d 96St. Johnsbury Acad. v. D.H., 240 F.3d 163, 171 (2d 458 U.S. 176 145 F.3d 95Cir. 2001) (quoting Honig v. Doe, 484 U.S. 305, 325 471 U.S. 359n.8, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988). 358 F.3d 150However, "if the intent of Congress is clear," a court 33 IDELR 126reviewing an agencys construction of a statute that it 240 F.3d 163administers "must give effect to the unambiguouslyexpressed intent of Congress." Chevron U.S.A. Inc. v.Natural Resources Defense Council, Inc., 467 U.S.837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778(1984). Here, where there is no ambiguity in thestatutory language, deference to the OSEP letterwould be inappropriate. Therefore, this Court reachesthe same conclusion as to the meaning of 20 U.S.C. #1412 (a)(10)(C) that the First Circuit reached in AmyN. See 358 F.3d at 158-160. As the IDEA bars tuition reimbursement in theinstant case, it is not necessary for the Court toaddress the issue of whether the educational evaluatorproperly served as the childs special educationteacher such that the CSE was validly constituted.2 III. ConclusionCopyright # 2007 LRP Publications 4